Nevada Reports 1979 (95 Nev.) PDF

95 Nev.
1, 1 (1979)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 95
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95 Nev. 1, 1 (1979) Olson v. State
HARVEY LYNN OLSON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 9680
January 10, 1979 588 P.2d 1018
Appeal from order denying motion for new trial, Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of statutory rape and he appealed. The
Supreme Court held that: (1) statutory rape statute does not violate equal protection clause,
despite contention that it invidiously discriminates against males by proscribing consensual
rape of female by a male while failing to proscribe consensual rape of a male by a female,
since ostensible objective of statute is to further State's interest in preventing pregnancy of
young females and the gender-based classification is substantially related to achievement of
that objective, and (2) difference in punishment prescribed for statutory rape committed by
males under age of 21 as opposed to those who are older does not violate equal protection
clause, since legislature could reasonably decide that men beyond certain age should have
sufficient maturity and judgment to be held responsible for conduct which might be
excusable in a younger person.
since legislature could reasonably decide that men beyond certain age should have sufficient
maturity and judgment to be held responsible for conduct which might be excusable in a
younger person.
Affirmed.
Horace R. Goff, Public Defender, and J. Thomas Susich, Chief Deputy Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, Elko
County, for Respondent.
1. Constitutional Law.
To withstand equal protection clause challenge, gender-based classification must serve important
governmental objectives and must be substantially related to achievement of those objectives.
U.S.C.A.Const. Amend. 14.
2. Constitutional Law; Rape.
Statutory rape statute does not violate equal protection clause, despite contention that it invidiously
discriminates against males by proscribing consensual rape of female by male while failing to proscribe
consensual rape of male by female, since ostensible objective of statute is to further State's interest in
preventing pregnancy of young females and the gender-based classification is substantially related to
achievement of that objective. NRS 260.365; U.S.C.A.Const. Amend. 14.
3. Constitutional Law; Rape.
Difference in punishment prescribed for statutory rape committed by males under age of 21 as opposed to
those who are older does not violate equal protection clause, since legislature could reasonably decide that
men beyond certain age should have sufficient maturity and judgment to be held responsible for conduct
which might be excusable in a younger person. NRS 200.365; U.S.C.A.Const. Amend. 14.
Statutory discrimination based on age is presumed to be valid and will not be set aside if any state of facts
reasonably may be conceived to justify it. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Convicted, by jury verdict, of statutory rape (NRS 200.365), appellant's only arguable
contention in this appeal is that NRS 200.365 is unconstitutional.
1
Appellant advances two
theories in support of his contention that NRS 200.365 violates the equal protection
clause of the United States Constitution.
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1
At all times relevant to these proceedings, NRS 200.365 provided:
Statutory rape is the carnal knowledge of a female under the age of 16 years, with her consent, by a male
person of the age of 18 years or over. A person convicted of statutory rape shall be punished:
1. Where the male is under the age of 21 years, for a gross misdemeanor.
2. Where the male is of the age of 21 years or older, by imprisonment in the state prison for not less than 1
year nor more than 10 years.
This statute was subsequently repealed. See 1977 Nev. Stats. ch. 598.
Appellant advances two theories in support of his contention that NRS 200.365 violates
the equal protection clause of the United States Constitution.
The thrust of appellant's first theory is that the statute invidiously discriminates against
males by proscribing consensual rape of a female by a male while failing to proscribe
consensual rape of a male by a female.
[Headnote 1]
We have previously held that gender-based classifications are subject to close scrutiny
under the equal protection clause. Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348 (1977).
Accordingly, to withstand constitutional challenge, such classifications must serve important
governmental objectives and must be substantially related to achievement of those
objectives. Craig v. Boren, 429 U.S. 190, 197 (1976). Measured against this standard, we
perceive no constitutionally impermissible discrimination in the present statute.
[Headnote 2]
The ostensible objective of the subject statute is to further the state's interest in preventing
the pregnancy of young females. Indeed, the female can become pregnant while the male
cannot. Pregnancy carries with it attendant medical, psychological, sociological, and moral
problems which a young female may not be able to maturely consider or even fully fathom or
appreciate. Manifestly, the adverse effect upon the female can be disastrous. In our view, the
gender-based classification here involved is substantially related to the achievement of this
objective and, accordingly, withstands constitutional scrutiny. As expressed by Judge Lowe in
Brooks v. State, 330 A.2d 670, 673 (Md.App. 1975): The equality of the sexes expresses a
societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations
toward the ideal of equality under the law caused us to overlook our disparate human
vulnerabilities.
[Headnote 3]
Appellant's second theory is predicated upon the difference in punishments prescribed for
statutory rape by males under the age of 21 as opposed to those age 21 or older. He argues
this age-based classification is neither natural nor reasonable and, thus, violates the equal
protection clause.
[Headnote 4]
A statutory discrimination based on age is presumed to be valid, Massachusetts Bd. of
Retirement v. Murgia, 427 U.S. 307 (1976), and will not be set aside if any state of facts
reasonably may be conceived to justify it. See Smith v. State, 444 S.W.2d 941 {Tex.Civ.App.
S.W.2d 941 (Tex.Civ.App. 1969). Cf. McGowan v. Maryland, 366 U.S. 420 (1961). Where,
as here, consensual rape is being punished, we believe the legislature could reasonably
decide that men beyond a certain age should have sufficient maturity and judgment to be held
responsible for conduct which might be excusable in a younger person. State v. Drake, 219
N.W.2d 492, 496 (Iowa 1974). Whether the age selected by the legislature should be 18 or 21
is a matter which lies peculiarly within the sphere of legislative discretion, and we decline to
substitute our judgment for that of the legislature in this case. Id.
The district court judgment is affirmed.
2

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2
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Merlyn H. Hoyt, Judge of the
Seventh Judicial District, to sit in place of the Honorable Gordon Thompson, Justice, who was disabled.
____________
95 Nev. 4, 4 (1979) Provence v. Cunningham
MARY PROVENCE, HAROLD LESTER PROVENCE, CARMEN MARIE HAMMARI,
BEVERLY JOYCE ATCHISON, DALE FREDRICK PROVENCE, and JUNE MARIE
ANDRUS as Guardian of the Person and Estate of MARY KATHLEEN PROVENCE, an
Incompetent, Appellants, v. JACK ARVIL CUNNINGHAM and OUTDOOR PRODUCTS
COMPANY, INC., Respondents.
No. 9426
January 11, 1979 588 P.2d 1020
Appeal from judgment in favor of defendants and from an order denying plaintiffs' motion
for a new trial; Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Survivors of deceased motorcyclist brought negligence action against driver of truck and
driver's employer based on collision between motorcycle and truck. The district court entered
judgment on jury verdict in favor of driver and employer and denied survivors' motion for
new trial, and survivors appealed. The Supreme Court held that where expert testimony as to
area of impact between truck and motorcycle was initially introduced by survivors, and
primary effect of testimony by expert witness for driver and employer was to cast doubt on
testimony offered by police officer as to how accident occurred, and particularly as to area of
impact, testimony of expert for driver and employer was appropriate and relevant rebuttal
evidence.
expert for driver and employer was appropriate and relevant rebuttal evidence.
Affirmed.
Bradley & Drendel, Ltd., Reno, for Appellants.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondents.
1. Appeal and Error; Evidence.
Admission of expert testimony is generally matter left to sound discretion of trial court and will not be
disturbed on appeal in absence of showing such discretion was abused.
2. Trial.
Where expert testimony as to area of impact between motorcycle and truck was initially introduced by
survivors of deceased motorcyclist in negligence action against driver of truck and employer of driver, and
primary effect of testimony by expert for driver and employer was to cast doubt upon testimony offered by
police officer as to how accident occurred, and particularly as to area of impact, such expert testimony for
driver and owner was appropriate and relevant rebuttal evidence.
3. Evidence.
Photographs are not per se invalid as basis for expert testimony in accident reconstruction cases.
OPINION
Per Curiam:
THE FACTS
This case is focused on the collision of a southbound motorcycle and a northbound truck
on Highway 395 south of Carson City, Nevada, in which the motorcycle driver, Harold
Provence, was fatally injured. A negligence action against the driver of the truck, respondent
Cunningham, and his employer, respondent Outdoor Products Company, Inc., resulted in a
jury verdict for defendants. The sole assignment of error by plaintiffs on appeal is that the
trial court erred in admitting the testimony of an accident reconstruction expert regarding the
point of impact between the truck and motorcycle.
The accident occurred on the night of May 29, 1975, on a straight and level portion of
Highway 395, some seven miles south of Carson City. The highway at this point consists of a
northbound and a southbound lane, each approximately 12 feet wide, divided by a center line.
Physical evidence after the accident revealed considerable damage to the left-front portion of
each vehicle. A fresh oil deposit was found some three feet inside the southbound lane. A
series of scrape or gouge marks were also found in the southbound lane, leading to the
resting place of the motorcycle off the west shoulder of the highway.
were also found in the southbound lane, leading to the resting place of the motorcycle off the
west shoulder of the highway. Debris was generally scattered to the west of the center line.
Defendant Cunningham testified that he was engaged in a brief conversation with his
passenger and did not see the motorcycle until he had turned the truck around to investigate
after he heard an impact. He also testified that he was driving in his own lane before, and
immediately after, the impact. Provence's wife was permitted to testify that before his death,
Provence had said, I saw the lights coming towards me, and I knew he was going to hit me. I
tried to get over as far as I could, but I couldn't get out of his way.
Plaintiffs' theory of the case was that the accident occurred as a result of the truck crossing
into the motorcycle's south-bound lane. Their first witness was James H. Ruble of the Nevada
Highway Patrol, whom they qualified as an expert. The officer testified that in his opinion the
area of impact was at the point where the oil deposit was located and the gouge marks began,
approximately three feet west of the center line in the southbound lane. On cross-examination
he conceded that his conclusions were based upon the assumption that the motorcycle was
knocked to its side on the pavement immediately upon impact.
Following presentation of plaintiffs' evidence, defendants called Lindley Manning, an
associate professor of mechanical engineering at the University of Nevada, Reno, who had
been involved in accident investigation for some ten years. No objection was made to
Professor Manning's qualification as an expert. The witness described his investigation of the
accident at issue, which involved review of the police photographs taken at the scene,
showing the gouge marks, oil deposit, several views of the damage to each vehicle, and the
resting place of the motorcycle; review of the officer's scaled diagram of the location of the
gouge marks, oil deposit, and resting place of the motorcycle; a visit to the accident scene, at
which he testified he was able to locate the gouge marks from the photographs and diagram;
and use of the measurements of the truck and several motorcycles of the type driven by
Provence.
The witness was allowed to testify, over objection, that on the basis of the information
available to him, he was able to conclude that the motorcycle was not knocked to the
pavement immediately upon impact, but rather continued to travel for some distance before
striking the pavement. The witness further testified that the precise area of impact could not
be determined on the basis of the available information, since the angle of impact and speed
of the vehicles were unknown, and no marks were made by the motorcycle upon the
pavement at the time impact occurred.
marks were made by the motorcycle upon the pavement at the time impact occurred. He did
testify as to a range of probabilities, which included the possibility that the accident had
occurred in the northbound lane.
Following the jury's verdict for defendants, plaintiffs moved for a new trial on the ground
that Professor Manning's testimony had been erroneously admitted. They appeal both the
judgment and the court's denial of this motion.
THE ISSUE PRESENTED
[Headnote 1]
Admission of expert testimony is generally a matter left to the sound discretion of the trial
court, and will not be disturbed on appeal in the absence of a showing by appellants that such
discretion was abused. Levine v. Remolif, 80 Nev. 168, 172, 390 P.2d 718 (1964); Kettle v.
Smircich, 415 S.W.2d 935 (Tex.Civ.App. 1967); Tuck v. Buller, 311 P.2d 212 (Okla. 1957).
Appellants have cited Nevada cases upholding or requiring the exclusion of expert
accident reconstruction opinion. Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235 (1976);
Gordon v. Hurtado, 91 Nev. 641, 541 P.2d 533 (1975); Choat v. McDorman, 86 Nev. 332,
468 P.2d 354 (1970); Levine v. Remolif, supra. In the circumstances presented by the case at
hand, however, the opinion evidence of respondents' expert was properly admitted to rebut
the evidence introduced by appellants' own expert.
In McNab v. Jeppesen, 102 N.W.2d 709 (Minn. 1960), the Minnesota Supreme Court held
that it was error to exclude expert opinion testimony as to the area of impact offered to rebut
the opinion of an investigating officer. The court explained:
Generally where a party elicits evidence he cannot thereafter be heard to say that such
evidence is not admissible, and where he offers evidence that certain conditions exist,
he cannot complain that the court permits his evidence to be rebutted. . . .
Id., at 712. See 5 Am.Jur.2d, Appeal and Error 717 (1962); 31A C.J.S. Evidence, at 190
(1964). Accord, Felde v. Kohnke, 184 N.W.2d 433 (Wis. 1971); Leeper v. Thornton, 344
P.2d 1101 (Okla. 1959); Ryan v. Furey, 303 A.2d 221 (Pa. Super. 1973).
[Headnote 2]
In this case, expert testimony as to the area of impact was initially introduced by
appellants, not respondents. The battle of experts was thus joined by appellants
themselves.
of experts was thus joined by appellants themselves. The primary effect of Professor
Manning's testimony was to cast doubt upon the testimony offered by Officer Ruble as to how
the accident occurred, and particularly as to the area of impact. This was appropriate and
relevant rebuttal evidence. Felde v. Kohnke, supra, at 441.
[Headnote 3]
Appellants argue that the testimony of Professor Manning is distinguishable from that
offered by Officer Ruble because the former's testimony was predicated upon a series of
photographs in evaluating the damage to the vehicles. Appellants suggest, however, no basis
for concluding that the photographs contained less information than was ascertained by the
officer in his visual inspection at the accident scene. Nor are photographs per se invalid as a
basis for expert testimony in accident reconstruction cases. Felde v. Kohnke, supra; Leeper v.
Thornton, supra; City of Phoenix v. Schroeder, 405 P.2d 301 (Ariz.App. 1965); Woyak v.
Konieske, 54 N.W.2d 649 (Minn. 1952). See NRS 50.285.
Under these circumstances, we hold that the trial court properly exercised its discretion in
admitting the opinion of Professor Manning to rebut the opinion testimony elicited by
appellants from their expert witness.
Therefore, the judgment and order of the trial court denying appellants' motion for a new
trial are affirmed.
1

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1
The Governor designated Michael J. Wendell, Judge of the Eighth Judicial District, to sit in place of Hon.
Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
The Governor designated William P. Beko, Judge of the Fifth Judicial District to sit in place of Hon. Noel E.
Manoukian, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 8, 8 (1979) Tahoe Highlander v. Westside Fed. Sav.
THE TAHOE HIGHLANDER, a Nevada Corporation; DONALD B. STEINMEYER and
MARLENE STEINMEYER, Appellants and Cross-Respondents, v. WESTSIDE
FEDERAL SAVINGS AND LOAN ASSOCIATION; GREAT WESTERN UNION
SAVINGS AND LOAN ASSOCIATION, Respondents and Cross-Appellants.
No. 9944
January 12, 1979 588 P.2d 1022
Appeal and cross-appeal from judgment, Second Judicial District Court, Washoe County;
Roy L. Torvinen, Judge.
Mortgagees that had foreclosed on a deed of trust encumbering an apartment complex
brought suit against guarantors of promissory note for which the deed of trust was given as
security, seeking a deficiency judgment for the amount by which the total indebtedness
exceeded the fair market value of the apartment complex at the foreclosure sale. The district
court awarded the mortgagees $157,909 plus interest and attorney fees. All parties appealed,
and the Supreme Court held that: (1) the highest and best use of property is but one factor to
be considered in ascertaining the property's fair market value for purposes of deficiency
judgment proceedings; (2) the district court could properly consider expert testimony relative
to highest and best use, along with other evidence in the record, in determining the fair
market value of the property, and (3) substantial evidence supported the district court's
determination as to the fair market value of the property.
Affirmed.
Woodburn, Wedge, Blakey and Folsom, and William E. Peterson, Reno, for Appellants and
Cross-Respondents.
Wilson, Pereos & Henderson, Reno, for Respondents and Cross-Appellants.
1. Mortgages.
Although highest and best use may be determinative of value for purposes of condemnation, it is but one
factor to be considered in ascertaining the fair market value of property for purposes of a deficiency
judgment proceeding. NRS 40.457, 40.459.
2. Evidence; Mortgages.
In proceeding to obtain a deficiency judgment for amount by which total indebtedness on promissory
note exceeded fair market value of apartment complex at time of foreclosure sale, district court, in
exercising its discretion, could properly consider expert testimony relative to the highest and best use of the
property, along with all other evidence in the record, in determining the fair market value of the property.
NRS 40.457, 40.459.
3. Mortgages.
Where district court's determination as to fair market value of apartment complex on date of foreclosure
sale was supported by substantial evidence, determination would not be disturbed on appeal.
4. Mortgages.
Evidence including testimony of first appraiser that fair market value of 75-unit apartment complex was
$1,712,000 and testimony of second appraiser that fair market value was $1,135,000 supported
determination of district court, in deficiency judgment proceeding, that the fair market value of the
apartment complex when it was sold at a foreclosure sale was $1,450,000.
5. Mortgages.
Failure to object to the testimony at trial of deficiency judgment suit precluded appellate review of
contention that testimony of an expert appraiser should have been disregarded because his
appraisal of apartment complex was based in part on market factors that occurred
after the date the apartment complex was sold at a foreclosure sale.
appraiser should have been disregarded because his appraisal of apartment complex was based in part on
market factors that occurred after the date the apartment complex was sold at a foreclosure sale.
OPINION
Per Curiam:
On November 24, 1975, respondents foreclosed upon a deed of trust executed by appellant
Tahoe Highlander. The deed of trust encumbered a 75-unit apartment complex at Incline
Village, Nevada, and was given as security for a $1,400,000 promissory note to respondents'
assignor. The promissory note was also personally guaranteed by appellants Donald and
Marlene Steinmeyer.
On January 24, 1976, respondents commenced this action, pursuant to NRS 40.455,
seeking a deficiency judgment against appellants for the amount by which the total
indebtedness exceeded the fair market value of the property at the time of the foreclosure
sale.
1
The district court scheduled a hearing on the matter, as required by NRS 40.457.
2
Prior to the hearing, each side employed a real estate appraiser to value the apartment
complex as of the date of the foreclosure sale. At the hearing, appellants' appraiser testified
that the highest and best use of the property was as a cooperative housing complex, and
computed the fair market value at $1,712,000. Respondents' appraiser testified that the
highest and best use of the property was as an apartment complex, and computed the fair
market value at $1,135,000.
At the conclusion of the hearing, the district court found the total indebtedness to be
$1,607,909 and concluded that the fair market value at the time of the foreclosure sale was
$1,450,000. Accordingly, the district court, as required by NRS 40.459, awarded respondents
$157,909 (the difference between the indebtedness and the fair market value of the property),
plus interest and attorney's fees.3 Both parties appealed from the judgment.
____________________

1
NRS 40.455 provides:
Upon application of the judgment creditor or the trustee within 3 months from the date of the foreclosure
sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after the hearing conducted under NRS
40.457, the court may award a deficiency judgment to the judgment creditor or trustee if it appears from the
sheriff's return or the recital of consideration in the trustee's deed that there is a deficiency of sale proceeds and a
balance remaining due to the judgment creditor or the trustee, respectively.

2
NRS 40.457 provides, in pertinent part:
1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take
evidence presented by either party concerning the fair market value of the property sold as of the date of
foreclosure sale. . . .
interest and attorney's fees.
3
Both parties appealed from the judgment.
Appellants contend the evidence does not support the district court's determination of the
property's fair market value. Their contention is based upon the assumption that fair market
value is determined solely by the property's highest and best use.
4
We disagree.
[Headnotes 1-4]
Although highest and best use may be determinative of value for purposes of
condemnation, see Sorenson v. State ex rel. Dep't of Hwys., 92 Nev. 445, 552 P.2d 487
(1976), it is but one factor to be considered in ascertaining the property's fair market value for
purposes of deficiency judgment proceedings. See Union Nat. Bank of Pittsburgh v. Crump,
37 A.2d 733 (Pa. 1944). Accordingly, the district court, in exercise of its discretion, could
properly consider the experts' testimony relative to highest and best use, along with the rest of
the evidence in the record, in determining the fair market value of the property. Where, as
here, that determination is supported by substantial evidence, it will not be disturbed on
appeal. Id; see also Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
[Headnote 5]
On cross-appeal respondents contend the testimony of appellants' expert should have been
disregarded since his appraisal was based, in part, upon market factors which occurred after
the date of the foreclosure sale. Respondents' failure to object to this testimony at trial
precludes appellate review of this issue. See Warner v. Dillon, 92 Nev. 677, 558 P.2d 540
(1976).
Other issues raised by the parties are without merit.
The district court judgment is affirmed.
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3
After the hearing under NRS 40.457, the court may award a money judgment against the defendant or
defendants personally liable for the debt. The court shall not render judgment for more than the amount by which
the amount of indebtedness which was secured by the mortgage, deed of trust or other lien at the time of the
foreclosure sale or trustee's sale, as the case may be, exceeded the fair market value of the property sold at the
time of such sale, with interest from the date of such sale. In no event shall the court award such judgment,
exclusive of interest after the date of such sale, in an amount exceeding the difference between the amount for
which the property was actually sold at the foreclosure sale or trustee's sale and the amount of indebtedness
which was secured by the mortgage, deed of trust or other lien at the time of such sale.

4
Appellants contend that where, as here, rival experts offer disparate opinions as to the property's highest and
best use, the court must select one use and value the property on the basis of evidence adduced as to that use.
Thus, they conclude, the court's valuation at a sum between the two expert's valuations is in error.
____________
95 Nev. 12, 12 (1979) Plankinton v. Nye County
WALTER R. PLANKINTON, Appellant, v. NYE COUNTY, NEVADA, An Unincorporated
County, and THE BOARD OF COUNTY COMMISSIONERS OF NYE COUNTY,
NEVADA, ANDREW M. EASON, ROBERT H. CORNELL, and DONALD J. BARNETT,
Respondents.
No. 9712
January 12, 1979 588 P.2d 1025
Appeal from order dismissing complaint. Fifth Judicial District Court, Nye County; Joseph
O. McDaniel, Judge.
Plaintiff appealed from order of the district court dismissing his complaint in action to
enjoin enforcement of township ordinance. The Supreme Court held that error alleged as to
dismissal of complaint would not be sustained on appeal absent citation of relevant authority.
Affirmed.
[Rehearing denied January 31, 1979]
Jeffrey Ian Shaner, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Peter L. Knight, District Attorney, and
A. D. Demetras, Deputy District Attorney, Nye County, for Respondents.
Appeal and Error.
Error alleged as to dismissal of complaint would not be sustained on appeal absent citation of relevant
authority.
OPINION
Per Curiam:
Appellant contends that the trial court erred in determining that he was precluded from
raising the issue of irregularities in the creation of the unincorporated town of Pahrump in this
action in order to enjoin the enforcement of a township ordinance. Appellant has cited no
relevant authority in support of his contention. Since error has not been affirmatively
demonstrated, the judgment is affirmed. Holland Livestock v. B & C Enterprises, 92 Nev.
473, 553 P.2d 950 (1976).
____________
95 Nev. 13, 13 (1979) Naimo v. Fleming
GARY NAIMO, Appellant, v. CHARLES H. FLEMING, Jr., RALPH T. COPPOLA, ST.
MARY'S HOSPITAL, Respondents.
No. 9599
January 12, 1979 588 P.2d 1025
Appeal from order dismissing complaint and from order denying plaintiff's motion to
amend or modify dismissal order. Second Judicial District Court, Washoe County; William
N. Forman, Judge.
The Supreme Court held that where original complaint was signed by plaintiff's
out-of-state counsel, who did not include his address thereon, and was not signed by plaintiff
or by an active member of Nevada State Bar, and a First Amended Complaint signed by
Nevada counsel was filed more than 18 months later, at which time defendants learned for
first time of pendency of cause of action against them, there was ample basis for trial court's
conclusion that there had been a deliberate violation of rules of civil procedure in an effort to
keep lawsuit viable but avoid cost of associating Nevada counsel, and trial court accordingly
did not abuse its discretion in dismissing complaint, or in denying plaintiff's subsequent
motion to amend or modify dismissal order.
Affirmed.
David Hamilton, Reno, and Edward Friedberg, Sacramento, California, for Appellant.
Erickson, Thorpe & Swainston, Wait, Shamberger, Georgeson & McQuaid; and Gary G.
Bullis, Reno, for Respondents.
1. Appeal and Error.
Supreme Court would not consider argument which was raised for first time on appeal.
2. Pleading.
District court had discretion under rules of civil procedure to strike any pleading not signed or signed
with intent to defeat purpose of rule requiring that pleadings of a party represented by an attorney be signed
by at least one attorney of record. NRCP 11.
3. Pretrial Procedure.
Where original complaint was signed by plaintiff's out-of-state counsel, who did not include his address
thereon, and was not signed by plaintiff or by an active member of Nevada State Bar, and a First
Amended Complaint signed by Nevada counsel was filed more than 18 months later, at which time
defendants learned for first time of pendency of cause of action against them, there was ample basis for
trial court's conclusion that there had been a deliberate violation of rules of civil procedure in an effort to
keep lawsuit viable but avoid cost of associating Nevada counsel, and trial court accordingly did
not abuse its discretion in dismissing complaint, or in denying plaintiff's subsequent
motion to amend or modify dismissal order.
and trial court accordingly did not abuse its discretion in dismissing complaint, or in denying plaintiff's
subsequent motion to amend or modify dismissal order. NRCP 11; SCR 42, 42(1); DCR 30.
OPINION
Per Curiam:
A complaint against respondents was filed on behalf of appellant on November 1, 1974.
The complaint was signed by appellant's out-of-state counsel, who did not include his address
thereon. It was not signed by appellant, or by an active member of the State Bar of Nevada, as
required by NRCP 11, SCR 42, and DCR 30.
1

More than eighteen months later, a First Amended Complaint, signed by Nevada
counsel, was filed, and respondents learned for the first time of the pendency of this cause of
action against them.
[Headnote 1]
The district court found that plaintiff's California counsel and/or the plaintiff deliberately
violated NRCP 11, Supreme Court Rule 42, and District Court Rule 30 in an effort to keep
their lawsuit viable but avoid the cost of associating Nevada counsel. The court accordingly
dismissed appellant's complaint.
2
Appellant subsequently moved to modify or amend the
order, based primarily upon the affidavit of his out-of-state counsel that the lack of local
counsel, and the eighteen months delay, were occasioned by ignorance, and by efforts
expended "investigating the merits of the action".
____________________

1
NRCP 11 provides, in pertinent part:
Every pleading of a party represented by an attorney shall be signed by at least one attorney of
record in his individual name, whose address shall be stated. . . . The signature of an attorney constitutes
a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief
there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is
signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action
may proceed as though the pleading had not been served. . . .
SCR 42(1) provides that an out-of-state attorney may be permitted to appear in the courts of this state
provided that an active member of the State Bar of Nevada is associated as counsel of record.
DCR 30 provides:
Unless appearing by an attorney regularly admitted to practice law in Nevada and in good standing,
no entry of appearance or initial pleading purporting to be signed by any party to an action shall be
recognized or given any force or effect by any district court unless the same shall be acknowledged by the
party signing the same before a notary public or some other officer having a seal and authorized by law to
administer oaths.

2
Dismissal of the complaint was further predicated upon the court's finding that the statute of limitations had
run against appellant prior to the filing of the first amended complaint. We will not consider appellant's
argument, raised for the first time on this appeal, that the statute had not so run. Central Bank v. Baldwin, 94
Nev. 581, 583 P.2d 1087 (1978).
the order, based primarily upon the affidavit of his out-of-state counsel that the lack of local
counsel, and the eighteen months delay, were occasioned by ignorance, and by efforts
expended investigating the merits of the action.
[Headnote 2]
The district court had discretion, under NRCP 11, to strike any pleading not signed or . . .
signed with intent to defeat the purpose of this rule. The rule further provides that the
signature of an attorney constitutes a certificate by him that to the best of his knowledge,
information and belief, there is good ground to support it; and that it is not interposed for
delay.
[Headnote 3]
Under the circumstances presented here, there was ample basis for the trial court's
conclusion that there had been a deliberate violation of the rules cited. The affidavit of
appellant's out-of-state counsel only lends further support for the conclusion that the court
acted in accordance with the spirit and purpose of NRCP 11.
Finding no abuse of discretion, we accordingly affirm.
3

____________________

3
Mr. Justice Thompson voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. VI, 4 of the Constitution, designated District Judge Michael E. Fondi to sit in his stead.
____________
95 Nev. 15, 15 (1979) Diversified Capital v. City N. Las Vegas
DIVERSIFIED CAPITAL CORPORATION, A Delaware Corporation, Appellant, v. CITY
OF NORTH LAS VEGAS, A Municipal Corporation, Respondent.
No. 10558
January 12, 1979 590 P.2d 146
Appeal from amended judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Trustor brought suit against city, seeking to permanently enjoin the city's exercise of a
power of sale in a deed of trust. The city, asserting that the trustor was in default in payment
of certain assessments secured by the deed of trust, counter-claimed for declaratory relief and
damages. The district court granted the trustor a preliminary injunction but denied permanent
relief. The trustor appealed, and the Supreme Court, 92 Nev. 621, 555 P.2d 1236 (1976),
reversed and remanded to the district court with instructions. On remand, the trustor moved
for leave to file an amended and supplemental complaint and to reopen discovery.
reopen discovery. Both motions were denied and the trial court appointed a certified public
accountant to act as a master and take evidence. After the master's report was submitted and
preliminary evidentiary hearing was held, the district court entered an order directing that
collection of the delinquent assessments be made by foreclosure only, thereby relieving the
trustor of personal liability. The trustor appealed, and the Supreme Court, Manoukian, J., held
that: (1) the proceedings before the master did not violate the trustor's right to procedural due
process; (2) the master did not fail to make necessary credits against assessments; (3) the
master's determination that the credit should be allocated among the various tracts within the
assessment district was correct; (4) the denial of the trustor's motion for leave to submit
amended and supplemental pleadings was not prejudicial; (5) the trial court did not abuse
discretion in denying the trustor's motion for leave to conduct discovery, and (6) the master's
findings of fact were not erroneous.
Affirmed.
[Rehearing denied February 1, 1979]
Lionel Sawyer and Collins, and Paul R. Hejmanowski, Las Vegas, for Appellant.
Paul H. Schofield, Las Vegas, for Respondent.
In absence of any indication that appellant timely requested master to conduct formal hearing or
requested a record or advanced the costs therefor, appellant was without standing to assert as error the
master's failure to make a record. NRCP 53(c).
2. Reference.
Where duty of master was simply to perform an accounting from existing records, no formal prereport
evidentiary hearing was required. NRCP 53(c).
3. Reference.
Master, whose duty was to perform an accounting from existing records, properly relied on public
records and records of county treasurer's and assessor's offices. NRS 52.085.
Where master, whose duty it was to perform an accounting from existing records, met with parties during
the course of his investigation and discussed various drafts of his report with them and where, during
subsequent evidentiary hearings, the master testified and was cross-examined as to his methodology in
preparing the report and a schedule of allowed expenditures which was appended to the final report was the
subject of adversary inquiry at evidentiary hearing and where, in addition to his ex parte investigation, the
master met with counsel and afforded both sides an opportunity to provide information and discuss
tentative drafts, the master's failure to follow ordinary judicial procedures did not violate
parties' due process rights.
the master's failure to follow ordinary judicial procedures did not violate parties' due process rights.
5. Municipal Corporations.
In determining whether city had reduced assessments levied against improvement district by an amount
equal to amount earmarked for improvements under agreement to provide funds for improvements to
industrial park, master correctly concluded that the amount earmarked for improvements should include
only the amount of the project fund and not also an amount set aside for payments of interest and principal;
additionally, the credit was properly allocated among various tracts within the assessment district.
While a reversal does establish the law of the case, a remand with instruction does not per se forbid
supplemental pleadings if the trial court, in the exercise of its sound discretion, deems them appropriate.
NRCP 15, 15(a), (d).
Where, while appellant's original complaint sought only injunctive relief, proffered pleadings added
claims for damages and rescission arising out of alleged conspiracies, interferences with contractual and
prospective advantages and breach of contract and where appellant conceded that not all the proposed
causes of action arose from transactions or occurrences that occurred after the original complaint, denial of
appellant's motion for leave to file an amended and supplemental complaint and to reopen discovery, made
on basis that remand with instructions precluded district court from entertaining any new matters, was not
error. NRCP 15, 15(a), (d).
8. Appeal and Error; Pretrial Procedure.
Trial courts have reasonable discretion to control the conduct of discovery and decisions thereon are
subject to reversal only for a clear abuse of discretion.
Where plaintiff never attempted discovery and did not exercise its subpoena power in proceedings on
remand before a master, district court did not err in denying plaintiff's postremand motion for leave to
conduct discovery. NRCP 26-36, 53(d)(2).
Under the rule which provides that in nonjury actions, the district court shall accept the master's findings
of fact unless clearly erroneous, only question on appeal from order adopting master's findings is whether
the master's findings are clearly erroneous as a matter of law. NRCP 53, 53(e)(2).
OPINION
By the Court, Manoukian, J.:
Diversified, a trustor, commenced this action in August 1973, seeking to permanently
enjoin respondents' exercise of a power of sale in a deed of trust. Asserting that Diversified
was in default in payment of certain assessments secured by the deed of trust, City, the
beneficiary, counterclaimed for declaratory relief and damages.
deed of trust, City, the beneficiary, counterclaimed for declaratory relief and damages.
Diversified was granted a preliminary injunction but permanent relief was ultimately denied.
Thereafter, Diversified appealed.
On appeal, Diversified argued that by unilaterally imposing a moratorium on project
expenditures, the City breached its prior agreement to provide funds for improvements to
appellant's industrial park.
1
In addition, Diversified contended that the City's assessments
were excessive and attributable to improvements which were promised but never realized.
We agreed, and reversed and remanded to the district court, with instructions,
to calculate the amount remaining in the project fund (including accrued interest) plus
all amounts which were disbursed therefrom for which no improvements or direct
benefit to the property can be shown. The total should be subtracted from the amount of
all unpaid assessments. If a surplus in the project fund remains, it should be credited
against future assessments and the trustees' sale should be enjoined unless or until
Diversified defaults again on the assessments. If the unpaid assessments exceed the
amount in the project fund as computed by the trial court, the trustees' sale shall
proceed in accordance with the terms of the agreement. Diversified Capital v. City No.
Las Vegas, 92 Nev. 621, 628, 555 P.2d 1236, 1241 (1976).
Following remand, Diversified moved for leave to file an amended and supplemental
complaint and to reopen discovery. Both motions were denied on the basis that the remand
with instructions precluded the district court from entertaining any new matters. No
interlocutory relief was sought in this Court.
Thereafter, the trial court appointed W. Wayne Bunker, a certified public accountant, to
take and receive and collect evidence as directed in the order of reference. The order
specified and limited the powers and duties of the master.
2
NRCP 53(c).
____________________

1
The complicated contractual and financial arrangements between these litigants commenced in 1970, and
are explicated in our prior opinion. See Diversified Capital v. City No. Las Vegas, 92 Nev. 621, 555 P.2d 1236
(1976).

2
The appointment was with the consent of the parties. The master was ordered to prepare schedules from the
evidence he collected setting forth (1) all assessments due, pursuant to the special improvement assessment
district; (2) all payments of such assessments; (3) all interest earned on the project fund of the special
improvement assessment district; (4) all disbursements made from the project fund; (5) the amount remaining in
the project fund for which no improvement or direct benefit to the property could be shown.
The master submitted his report on October 11, 1977, and a preliminary evidentiary
hearing thereon was held. Diversified subsequently filed written objections in the district
court.
3

Further evidentiary hearings were held, and on November 17, 1977, the district court, in
compliance with NRCP 53, entered its findings of fact, conclusions of law and judgment,
generally overruling Diversified's objections, adopting, with minor modifications, the report
of the special master. The court determined appellant's net assessment delinquency to be
$1,445,562.21, that no surplus remained in the project fund, and that the trustees' sale should
therefore proceed.
Thereafter, on January 16, 1978, the district court entered an order directing that collection
of the delinquent assessments be made by foreclosure only, thereby relieving Diversified of
personal liability. From this amended judgment, Diversified pursues its second appeal.
Several issues are presented for our consideration: (1) Did the master's failure to conduct
formal evidentiary hearings constitute reversible error? (2) Was the master's report clearly
erroneous? (3) Was the denial of appellant's motion to file amended and supplemental
pleadings reversible error? (4) Did the denial of appellant's motion to conduct discovery
following remand constitute reversible error? We turn now to address these questions.
1. The requirement of evidentiary hearings.
[Headnotes 1-3]
Diversified contends the proceedings before the master violated its right to procedural due
process and are therefore null and void. It claims the master was required to hold formal
hearings, swear witnesses and make a record.
4
Conversely, the City contends that because
the duty of the master was simply to perform an accounting from existing records, no formal
pre-report evidentiary hearing was required.
5
We agree with the City.
____________________

3
The thrust of Diversified's objections is that the master did not conduct formal evidentiary hearings.

4
Diversified is without standing to assert the master's failure to make a record since there is no indication that
appellant either timely requested the master to conduct formal hearings, requested a record or advanced the costs
therefor. Phillips v. Adams, 85 Nev. 675, 678, 462 P.2d 35 (1969); NRCP 53(c); 5A Moore's Federal Practice,
53.10.

5
NRCP 53(c) gives the master power to control the mode of proof in matters of account. 5A Moore's Federal
Practice, 53.06. See also 76 C.J.S., References 83 (1952). NRCP 53(d)(3) provides,
When matters of accounting are in issue before the master, he may prescribe the form in which the
accounts shall be submitted and in any proper case may require or receive in evidence a statement by a
certified public accountant who is called as a witness. Upon objection of a party to any of
City. Appellant was not denied its right to due process. On at least five occasions during the
preparation of his report, the master met with counsel and other representatives of Diversified
either alone or together with the City and its counsel to discuss the report and consider
objections.
6
The subsequent evidentiary hearings before the district court demonstrated the
master relied only on competent, admissible evidence.
7
Finally, Diversified failed to exercise
its right under NRCP 53(d)(2) to subpoena witnesses before the master.
[Headnote 4]
In support of its due process claim, appellant cites Baker v. Simmons Company, 325 F.2d
580 (1st Cir. 1963), a patent infringement case, wherein the district court referred plaintiff's
claim for damages to a master to hear the parties and their witnesses, and to report to the
court his findings and conclusions of law thereon on the question of damages. Id. at 582. On
appeal, the court held improper the master's ex parte enlistment of an accountant to furnish
him with defendant's profit and loss statements, finding a reversible impropriety in the fact
that appellant had no opportunity to cross-examine the accountant as to his qualifications,
methodology or conclusion. Id. at 583. Here, however, the master performed his own
accounting functions. He met with the parties during the course of his investigation and
discussed the various drafts of his report with them. During the subsequent evidentiary
hearings he testified and was cross-examined as to his methodology in preparing the report.
He placed the burden of proving an expenditure as benefiting the assessed land on the City. If
the City failed to supply supporting documentation to his satisfaction, the expenditure was
disallowed, which disallowance resulted in an increased credit against Diversified's
assessment. A schedule of allowed expenditures was appended to the final report and was the
subject of adversary inquiry at the evidentiary hearings. In contrast to Baker, supra, the
master's failure to follow "ordinary judicial procedures" did not here constitute an
insufferable prejudice to appellant.
____________________
the items thus submitted or upon a showing that the form of statement is insufficient, the master may
require a different form of statement to be furnished, or the accounts or specific items thereof to be
proved by oral examination of the accounting parties or upon written interrogatories or in such other
manner as he directs. (Emphasis added.)

6
NRCP 53(e)(5) provides that,
Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of
receiving their suggestions.

7
The master examined the records of the City, the County Treasurer's and Assessor's Offices and his report
was based on information therein contained. The district court properly determined the relied on public records
are admissible evidence. NRS 52.085.
to follow ordinary judicial procedures did not here constitute an insufferable prejudice to
appellant.
In addition to his ex parte investigation, the master met with counsel, afforded both sides
an opportunity to provide input, and discussed with counsel his tentative drafts. Appellant
presented no evidence whatsoever to either the master or the district court. It neither
subpoenaed witnesses to appear before the master, nor requested that formal evidentiary
hearings be had. These failures militate against appellant's claim that the procedures below
violated its right to due process. This is especially true in light of the master's continuous
communications with the parties and the fact that the court itself examined the account and
entertained all objections thereto. Cf. Foster v. Bank of America, 77 Nev. 365, 365 P.2d 313
(1961).
2. The master's report.
Diversified next contends the master failed to make all necessary credits against the
assessments. Specifically, appellant argues the master should have credited amounts
remaining in the reserve fund and funded interest account.
8

[Headnote 5]
Resolution of this issue rests on the construction we place on the prior opinion in this case.
Appellant relies on the court's direction that,
Before the City should be permitted to compel a sale of the land under the deed of trust,
it first should be required to reduce the assessments levied against the improvement
district in an amount equal to the amount earmarked for improvements by the August 8
agreement plus accrued interest on that sum. From that amount, there should be
subtracted any money actually expended for improvements or for the direct benefit of
the district. That sum would not include expenditures for such items as the salaries of
guards [footnote omitted] hired to protect the site from vandalism or attorneys fees and
litigation expenses incurred by reason of certain lawsuits pending against Diversified.
(Emphasis added.) Diversified Capital v. City No. Las Vegas, supra, at 627, 555 P.2d at
1240.
____________________

8
The parties' prior agreement concerning funding for improvements to Diversified's industrial park provided
for a reserve fund of $500,000.00 to be retained by City for payment of principal on its obligations in the event
of deficiencies in the collection of assessments. The fund was to be held for the life of the bonds and warrants
issues, and returned only after all assessments had been paid. Likewise, the funded interest account was to be
held by the City for the life of the issue for the payment of interest in the event of defaults in assessment
payments.
Diversified contends the amount earmarked for improvements should include not only the
amount of the project fund, but also the amount set aside for payments of interest and
principal. The master considered, but rejected, that argument. The master concluded, and we
agree, that the amount earmarked for improvements included only the amount of the project
fund. Accordingly, the master's finding was correct and the district court properly accepted it.
NRCP 53(e)(2).
Finally, the master's determination that the credit should be allocated among the various
tracts within the assessment district was also correct. Assessments within the district were
levied on the basis of property ownership. Appellant's contention that it is entitled to the
entire credit to the exclusion of other property owners is without merit.
3. The proffered pleadings.
Diversified contends the district court erred in its conclusion that the remand with
instructions precluded amended and supplemental pleadings.
The single purpose of our remand was for the district court to make certain calculations in
regard to credits against assessments and for determination as to whether appellant was in
default.
[Headnote 6]
In these circumstances, Rule 15 provides the court may (1) permit a party to amend his
pleading and that leave shall be freely given when justice so requires (NRCP 15(a)), and (2)
permit a supplemental pleading setting forth transactions or occurrences or events which
have happened since the date of the pleading sought to be supplemented. NRCP 15(d).
While a reversal does establish the law of the case (LoBue v. State ex rel. Dep't Hwys., 92
Nev. 529, 544 P.2d 258 (1976), Lanigir v. Arden, 85 Nev. 79, 450 P.2d 148 (1969)), a
remand with instructions does not per se forbid supplemental pleadings if the trial court, in
the exercise of its sound discretion, deems them appropriate. Crane Paper Stock Co. v.
Chicago & N.W. Ry. Co., 344 N.E.2d 461 (Ill. 1976). We have consistently sustained the
action of our trial courts in allowing or refusing amended or supplemental pleadings. Madsen
v. Riverside M & L, 71 Nev. 356, 291 P.2d 1056 (1955); Gottwals v. Rencher, 60 Nev. 35, 92
P.2d 1000 (1939); Finnegan v. Ulmer, 31 Nev. 523, 104 P. 17 (1909); McCausland v.
Ralston, 12 Nev. 195 (1877).
[Headnote 7]
While appellant's original complaint sought only injunctive relief, the proffered pleadings
added claims for damages and recission arising out of alleged conspiracies, interferences with
contractual and prospective advantages and breach of contract.
contractual and prospective advantages and breach of contract. Appellant concedes that not
all of the proposed causes of action arose from transactions or occurrences which occurred
subsequent to the original complaint. These claims might properly have been precluded. See
Foman v. Davis, 371 U.S. 178 (1962). Clearly, should appellant wish to proceed against
respondent incident to the claims, it may do so in an independent action. We are not here,
however, expressing a view respecting the efficacy of these claims.
The denial of appellant's motion was not prejudicial. See Dressler v. Johnston, 21 P.2d 969
(Cal.App. 1933); cf. Crane Paper Stock Co. v. Chicago & N.W. Ry. Co., supra.
4. The discovery prohibition.
Diversified next alleges error in the trial court's denial of its motion for leave to conduct
discovery.
[Headnotes 8, 9]
Following remand, the district court denied appellant's motion for discovery, concluding
that allowance would exceed the scope of the remand. Our trial courts are afforded reasonable
discretion in controlling the conduct of discovery and its decisions are reversed only where a
clear abuse appears. Jones v. Bank of Nevada, 91 Nev. 368, 535 P.2d 1279 (1975). Here,
appellant never attempted discovery under NRCP 26-36. As we have already noted, appellant
further failed to exercise its subpoena power in proceedings before the master; indeed, it
failed to demand formal pre-report proceedings. See NRCP 53(d)(2).
Respondent argues appellant's generalized motion was simply a dilatory tactic, the denial
of which appellant failed to preserve for appeal. See Jones, supra. Appellant has made no
showing that the vaguely sought after evidence was any less accessible to appellant than it
was to respondent or that the prospective products of any anticipated discovery would have
materially changed the ultimate result. See 8 Wright & Miller, Federal Practice and
Procedure, 2008.
[Headnote 10]
In conclusion, Rule 53 provides that in non-jury actions, the district court shall accept the
master's findings of fact unless clearly erroneous. NRCP 53(e)(2). See also Locklin v.
Day-Glo Color Corporation, 429 F.2d 873 (2d Cir. 1970); Phillips v. Adams, 85 Nev. 675
462 P.2d 35 (1969); Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963). On appeal, the
question is whether the master's findings are clearly erroneous as a matter of law. Krinsley v.
United Artists Corp., 225 F.2d 579 (7th Cir. 1955). NRCP 53(e)(2). The order of reference
directed the master to report only upon particular issues. See Foster v. Bank of America, 77
Nev. 365
America, 77 Nev. 365, 365 P.2d 313 (1961). This he did with commendable skill and candor.
Cf. Oswald v. Dawn, 354 P.2d 505 (Colo. 1960). The master's findings of fact were not
erroneous.
We affirm.
Mowbray, C. J., and Thompson, Gunderson, and Batjer, JJ., concur.
___________
95 Nev. 24, 24 (1979) Clark v. State
PAMELA SUE CLARK, Appellant, v. THE
No. 9633
January 12, 1979 588 P.2d 1027
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted before the district court of the attempted murder of her infant
daughter, and she appealed. The Supreme Court, Manoukian, J., held that: (1) there was
substantial evidence to support the jury's determination that defendant's conduct and
declarations before and after the offense belied her insanity claim; (2) presumption of sanity
remains viable throughout the trial, absent sufficient countervailing proof, and (3) while
expert testimony suggested that defendant was legally insane at the time of the crime, the trial
court, in the exercise of its discretion, properly concluded that such evidence as a whole did
not negative the existence of the presumed fact of sanity sufficiently to remove the issue from
jury consideration.
Affirmed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; and George E. Holt, District Attorney, and Ira
H. Hecht, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Insanity is an affirmative defense and the accused is presumed to be sane absent proof of insanity by a
preponderance of the evidence.
2. Criminal Law.
The M'Naughten rule is the test for criminal responsibility in the State of Nevada.
95 Nev. 24, 25 (1979) Clark v. State
3. Criminal Law.
It was within the province of the jury to weigh the evidence and determine whether defendant knew the
nature and quality of her acts, had the capacity to determine right from wrong, or knew whether she was
doing wrong when she committed the crime.
4. Homicide.
In prosecution of defendant for the attempted murder of her infant daughter, there was substantial
evidence to support the jury's determination that defendant's conduct and declarations before and after the
offense belied her insanity claim.
5. Criminal Law.
Presumption of sanity remains viable throughout the trial, absent sufficient countervailing proof.
6. Criminal Law.
Insanity is not proved simply by raising a doubt as to whether it exists.
7. Criminal Law.
Presumption of sanity is a disputable one and its effect in a criminal action is governed by statute
providing in part that [T]he existence of the presumed fact may be submitted to the jury if the basic facts
are supported by substantial evidence, or are otherwise established, unless the evidence as a whole
negatives the existence of the presumed fact. NRS 47.230, subd. 2, 47.240, 47.250.
8. Criminal Law.
While expert testimony suggested that defendant was legally insane at the time of the crime, the trial
court, in the exercise of its discretion, properly concluded that such evidence as a whole did not negative
the existence of the presumed fact of sanity sufficiently to remove the issue from jury consideration.
9. Criminal Law.
Expert testimony which suggested that defendant was legally insane at the time of the crime was not
binding on the trier of fact.
10. Criminal Law.
Jury was entitled to believe or disbelieve expert witnesses who suggested that defendant was legally
insane at the time of the crime.
11. Indictment and Information.
Sanity is not considered an element of the offense which must be pleaded and proved by the prosecutor.
OPINION
Following pleas of not guilty and not guilty by reason of insanity, and trial, a jury
convicted appellant of attempted murder of her infant daughter, Heather Denise Clark. This
appeal ensued.
Two issues confront us: (1) Was appellant properly found to be sane at the time of the
commission of the offense? (2) Was the jury correctly instructed on the presumption of
sanity?1 We answer both questions in the affirmative and uphold the conviction.
95 Nev. 24, 26 (1979) Clark v. State
the jury correctly instructed on the presumption of sanity?
1
We answer both questions in the
affirmative and uphold the conviction.
(Headnote 1]
It is well settled in Nevada that insanity is an affirmative defense and that the accused is
presumed to be sane absent proof of insanity by a preponderance of the evidence. Guynes v.
State, 92 Nev. 693, 558 P.2d 626 (1976); Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970),
cert. denied, 403 U.S. 940; Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968), cert. denied,
400 U.S. 946.
The jury heard evidence that on the evening of May 3, 1975, while her husband was at
work, appellant wrapped her two week old baby in a blanket and abandoned it behind a
clump of bushes off the side of a desert road in Clark County. Appellant then went to her
husband and told him that the baby had been kidnapped. When the police arrived, appellant
told them that she was putting the baby in its crib when someone grabbed her from behind, hit
her on the head and knocked her unconscious. When she awakened, the baby was gone. The
police were suspicious however, since there was no indication of a forced entry into
appellant's mobile home and appellant was calm and unemotional. Further, there were no
visible injuries resulting from the alleged attack.
Three days later, appellant was taken to Las Vegas police headquarters for further
interrogation. There she admitted that she had abandoned the baby, believing that the child
was probably dead. She explained that on the evening of May 3, 1975, she fell asleep after
putting the baby to bed. She awakened a couple hours later and noticed the infant was not
moving. Fearful that it was dead, she wrapped the baby in a blanket, drove out to the desert
and there abandoned it. Appellant directed the police to where the child had been left.
____________________

1
The court's Instruction No. 13 read in part:
The jury may consider evidence of defendant's mental condition before and after the time of the
commission of the offense. Such evidence is to be considered for the purpose of throwing light upon her
mental condition as it was when the offense was committed.
* * *
However, if you find that the defendant was not capable of knowing or understanding the nature and
quality of her act, you will find that she was legally insane; or, if you did that she was incapable of
knowing or understanding that her act was wrong, you will find that she was legally insane.
The defendant has the burden of proving her legal insanity by a preponderance of the evidence.
95 Nev. 24, 27 (1979) Clark v. State
directed the police to where the child had been left. A helicopter spotted it and rushed the
infant to Southern Nevada Memorial Hospital where it was treated essentially for
dehydration.
At trial, two psychiatrists and one psychologist testified that a severe post partum
depression rendered appellant legally insane at the time of the crime. Cross-examination of
the defense experts, however, developed that only the psychologist had examined appellant
shortly after the events involved. The psychiatrists examined appellant over a year following
the incident. Members of appellant's family, on the other hand, testified that her conduct
immediately preceding the commission of the crime was normal and that she seemed happy
and excited about having the baby. It was only after the events of May 3, 1975, that they
noticed a change in her personality. After that date, she seemed despondent, unusually quiet
and unemotional.
[Headnotes 2-4]
The M'Naughten rule has long been the test for criminal responsibility in the State of
Nevada, Williams v. State, 85 Nev. 169, 451 P.2d 848 (1969); Sollars v. State, 73 Nev. 248,
316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889), and here it was within
the province of the jury to weigh the evidence, Lewis, supra, and determine whether appellant
knew the nature and quality of her acts, had the capacity to determine right from wrong or
knew whether she was doing wrong when she committed the crime. The jury, fulfilling its
role as finder of fact, made a determination adverse to appellant, apparently concluding that
appellant's conduct and declarations before and after the offense belied her insanity claim.
There is substantial evidence supporting the jury's determination. See Criswell, supra.
[Headnote 5]
Incidental to the presumption of sanity question, a subsidiary issue arises as to the
continued vitality of the presumption confronted by controverting evidence. Appellant
contends that the presumption evaporates with introduction of controverting evidence, while
respondent argues that the presumption remains viable throughout the trial, absent sufficient
countervailing proof. We agree with respondent's contention.
[Headnotes 6-10]
In Nevada insanity is not proved simply by raising a doubt as to whether sanity exists.
State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954). The presumption is a disputable one
(NRS 47.240, 47.250) and its effect in a criminal action is governed by NRS 47.230(2) which
provides in part: [T]he existence of the presumed fact may be submitted to the jury if the
basic facts are supported by substantial evidence, or are otherwise established, unless the
evidence as a whole negatives the existence of the presumed fact.
95 Nev. 24, 28 (1979) Clark v. State
[T]he existence of the presumed fact may be submitted to the jury if the basic facts are
supported by substantial evidence, or are otherwise established, unless the evidence as a
whole negatives the existence of the presumed fact.
Here, while expert testimony suggested that appellant was legally insane at the time of the
crime, the trial court, in the exercise of its discretion properly concluded that such evidence as
a whole did not negative the existence of the presumed fact sufficiently to remove the issue
from jury consideration. Additionally, such testimony is not binding on the trier of fact, and
the jury was entitled to believe or disbelieve the expert witnesses. State v. Nobel, 563 P.2d
1153 (N.M. 1977); see Criswell, supra. The expert opinions were largely based on
information supplied to the psychiatrists by appellant over a year subsequent to the
commission of the crime, which information was markedly sharp in contrast to statements
given police more proximate to the infant's disappearance. Neither did the testimony of lay
witnesses sufficiently negative the presumed fact.
[Headnote 11]
Appellant faults the State's failure to present rebuttal witnesses. She contends that the
presumption of sanity is dispelled once evidence of insanity is introduced. Appellant
misconceives the nature of the insanity defense. In this State, sanity is not considered an
element of the offense which must be pleaded and proved by the prosecutor. Cf. In re
Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975). Moreover, the
conflicting statements of appellant coupled with expert testimony premised on information
supplied by appellant over a year later cannot be said to be uncontradicted evidence. The jury
concluded that the evidence produced as a whole was inadequate to overcome by a
preponderance of evidence the presumption of sanity. Appellant cites In re Dennis, 335 P.2d
657 (Cal. 1959) as controlling. That case is clearly distinguishable. There the disputable
presumption of sanity was overcome by a preponderance of uncontradicted evidence. The
defendant had been institutionalized on several occasions prior to the commission of the
crime compelling the court to conclude that:
[p]roof that defendant was afflicted with a permanent insanity, as distinguished from a
temporary or transient insanity, prior to the commission of the crime charged will,
however, dispel the presumption of sanity and raise a presumption that his insanity
continued to exist until the time of the commission of the crime. Id. at 661.
95 Nev. 24, 29 (1979) Clark v. State
In State v. King, 375 S.W.2d 34 (Mo. 1964), although five witnesses testified to the
defendant's lack of mental capacity and the state offered no evidence on that subject, the court
held that the verdict of guilty is not contrary to the evidence since the burden was on the
defendant to prove insanity by a preponderance of the evidence, the issue was a jury question,
and the jury, as in the instant case, had a right to disbelieve the defendant's witnesses, which
they obviously did. Accord State v. Sands, 499 P.2d 821 (Ore.App. 1972); Gibson v. State,
197 N.W.2d 813 (Wis. 1972).
Here, appellant alleged temporary, not permanent, insanity and consequently the jury
found her evidence, whether controverted or uncontroverted (see Annot., 62 ALR2d 7 at
1191), was nevertheless insufficient to dispel the presumption.
The verdict is supported by substantial evidence and the jury was properly instructed
regarding the burden and sufficiency of proof necessary to establish the defense of insanity.
We find no error and affirm.
____________
95 Nev. 29, 29 (1979) Woods v. State
BOBBY LEE WOODS, Appellant, v. THE
No. 10125
January 12, 1979 588 P.2d 1030
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of two counts of robbery with deadly
weapon, two counts of first degree kidnapping with deadly weapon and one count of
possession of stolen property, and he appealed. The Supreme Court held that: (1) removing
victims from van and locking them in trunk of another vehicle facilitated robbery, and thus
such conduct fell within purview of statute defining first degree kidnapping; (2) locking of
victims in trunk of car in remote area substantially increased victims' risk of harm, and such
action was not merely incidental to robbery in that it was not necessary to consummation of
robbery, and thus defendant was properly convicted for both first degree kidnapping and
robbery; (3) locking of victims in trunk of vehicle went beyond means necessary to effectuate
robbery and thus defendant's sentence was properly enhanced for each of robbery and
kidnapping counts, and {4) defendant's motion to dismiss for lack of speedy trial was
properly denied where defendant was cause of numerous continuances, and defendant
did not demonstrate how defense was prejudiced by delay.
95 Nev. 29, 30 (1979) Woods v. State
enhanced for each of robbery and kidnapping counts, and (4) defendant's motion to dismiss
for lack of speedy trial was properly denied where defendant was cause of numerous
continuances, and defendant did not demonstrate how defense was prejudiced by delay.
Affirmed.
Alan R. Johns, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
Clark County, for Respondent.
1. Kidnapping.
Moving of victims from van and locking them in trunk of another vehicle facilitated robbery, and thus
such conduct fell within purview of statute defining kidnapping in the first degree. NRS 200.310, subd.
1.
2. Kidnapping.
Locking victims in trunk of car in a remote area substantially increased victims' risk of harm, and such
action was not merely incidental to robbery in that it was not necessary to consummation of robbery, and
thus defendant was properly convicted of both first degree kidnapping and robbery. NRS 200.310, subd.
1, 200.380.
3. Criminal Law.
In determining whether enhanced penalty could be applied to each crime of which defendant was
convicted, Supreme Court had to determine whether each crime required proof of additional facts which
the other did not require. NRS 193.165.
4. Criminal Law.
Locking of victims in trunk of vehicle went beyond means necessary to effectuate robbery of victims;
thus, such fact constituted additional fact required of one crime which was not required of other, so that
defendant's sentence was properly enhanced for each of the robbery and kidnapping counts. NRS
193.165, 200.310, subd. 1, 200.380.
5. Criminal Law.
Defendant's motion to dismiss for lack of speedy trial was properly denied where defendant was cause of
numerous continuances, both before and after clerk's delay in docketing record on appeal from denial of
petition for writ of habeas corpus, and defendant did not demonstrate how defense was prejudiced, if at all,
by delay in prosecution for kidnapping and robbery.
6. Criminal Law.
If defendant is responsible for delay in trial, he may not complain of such delay.
OPINION
Per Curiam:
A jury convicted appellant on two counts of robbery with a deadly weapon (NRS 200.380;
NRS 193.165); two counts of first degree kidnapping with a deadly weapon (NRS
200.310(1); NRS 193.165); and one count of possession of stolen property {NRS 205.275).
95 Nev. 29, 31 (1979) Woods v. State
(NRS 205.275). He was sentenced to prison to serve four terms of 15 years each for robbery
with the use of a deadly weapon; four terms of life with the possibility of parole for
kidnapping with the use of a deadly weapon; and 10 years for the possession of stolen
property. All sentences to run concurrently.
1

Appellant contends that it was error to (1) convict him of both robbery and first degree
kidnapping, (2) enhance the penalties on each robbery and kidnapping count, and (3) deny
him the right to a speedy trial. We find no error.
On the night of February 26, 1976, the victims parked their vehicle in a deserted area near
Lake Mead and went to sleep.
2
The next morning the appellant and his companion
confronted the victims, held them at gun point, and demanded the van. The victims were
forcibly removed from the van and locked in the trunk of the car
3
in which appellant and
companion had arrived. During the course of the robbery, one of the victims was removed
from the trunk, again at gun point, and forced to start the van, then again locked in the trunk.
Appellant and crime partner then departed, driving the van containing the personal
possessions of the victims. After being confined in the trunk for some two and one-half hours,
the victims managed to break the lock and free themselves.
[Headnote 1]
1. Appellant argues that he cannot be convicted of first degree kidnapping because NRS
200.310(1) applies only when property is removed from the victim's person.
4
We disagree
with the appellant's narrow interpretation of this statute. The removing of the victims from
the van and locking them in the trunk of another vehicle facilitated the robbery. Such conduct
falls within the purview of the statute.
[Headnote 2]
In Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978), we concluded that the Legislature
intended a conviction of both kidnapping and robbery only when the movement of the victim
substantially increases the risk of harm beyond that necessarily present in the crime of
robbery itself.
____________________

1
These sentences to run consecutive to sentences imposed for an earlier conviction. See Woods v. State, 94
Nev. 435, 581 P.2d 444 (1978).

2
The vehicle was a van which had been borrowed by one of the victims from his brother.

3
On the morning of February 27, 1976, this automobile had been reported stolen.

4
NRS 200.310(1) provides in pertinent part:
Every person who shall wilfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or carry
away any individual human being by any means whatsoever . . . for the purpose of committing extortion or
robbery upon or from such individual, . . . shall be deemed guilty of kidnapping in the first degree.
95 Nev. 29, 32 (1979) Woods v. State
substantially increases the risk of harm beyond that necessarily present in the crime of
robbery itself. Locking the victims in the trunk of a car in a remote area substantially
increased their risk of harm. Such movement was not merely incidental to the robbery
because it was not necessary in its consummation. Appellant's conviction for both first degree
kidnapping and robbery is affirmed.
[Headnote 3]
2. Since the appellant used a gun in the commission of these crimes, he was sentenced,
pursuant to NRS 193.165,
5
to serve a term equal to and in addition to the term of
imprisonment prescribed for the crime of robbery and first degree kidnapping. He asserts that
he should have been subject to only one enhanced penalty, rather than four, because the
appellant's use of the gun constituted a single, indivisible act. Upon the facts of this case, it
must be determined whether each crime requires proof of an additional fact which the other
does not. Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978); Franko v. State, 94 Nev. 651,
584 P.2d 678 (1978).
[Headnote 4]
Locking of the victims in the trunk went beyond the means necessary to effectuate the
robbery. This action constitutes the additional fact necessary to qualify under the test
enunciated in Woods, supra. Two separate crimes were committed upon each of the victims.
The district court did not err in enhancing the appellant's sentence for each of the robbery and
kidnapping counts.
Appellant next claims that the enhanced sentences were unconstitutionally applied because
the prosecution failed to prove that the deadly weapon used by the appellant was indeed
capable of causing death. This contention has been previously considered and rejected in
Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975), and in Woods v. State, supra. Appellant
also claims that NRS 193.165 is unconstitutionally vague. This contention has been
considered and rejected in Woofter v. O'Donnell, 91 Nev. 756
____________________

5
NRS 193.165 provides that:
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.
2. This section does not create any separate offense but provides an additional penalty for the primary
offense, whose imposition is contingent upon the finding of the prescribed fact.
3. The provisions of this section do not apply where the use of a firearm or other deadly weapon is a
necessary element of such crime.
95 Nev. 29, 33 (1979) Woods v. State
contention has been considered and rejected in Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d
1396 (1975).
[Headnotes 5, 6]
3. Earlier in these proceedings appellant filed a pretrial petition for a writ of habeas
corpus. The petition was denied by the district court. Although appellant timely filed a notice
of appeal, the clerk of the district court delayed docketing the record on appeal for
approximately 95 days.
6
Appellant contends that this delay constitutes a denial of his right to
a speedy trial. Shortly before trial, and some seven months after the delay, appellant moved to
dismiss for lack of a speedy trial. On the basis of Sheriff v. McKinney, 93 Nev. 313, 565 P.2d
649 (1977), we affirm the district court's denial of that motion.
7

4. Other assigned errors have been considered and are rejected as meritless.
Affirmed.
____________________

6
(1) In an unpublished order, filed November 10, 1976, we dismissed the appeal because appellant's habeas
petition was not verified as required by NRS 34.370(3).
(2) Appellant again petitioned the district court for a pretrial writ of habeas corpus following the dismissal of
the unverified petition by this Court. The district court denied the petition. Appellant appealed. In an
unpublished order dated January 12, 1977, this Court dismissed the appeal because, even if a second habeas
petition had been permissible, it was without merit.

7
(1) For various reasons, the appellant was the cause of numerous continuances of this case, both before and
after the clerk's delay. It has long been the rule in Nevada that when the defendant is responsible for the delay in
trial he may not complain. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Woods v. State, supra.
(2) Appellant has not demonstrated how his defense has been prejudiced, if at all, by the delay.
____________
95 Nev. 33, 33 (1979) Molino v. Asher
LEONA MOLINO, Appellant, v. WAYNE ASHER and
EMMA ASHER, Husband and Wife, Respondents.
No. 10216
January 12, 1979 588 P.2d 1033
Appeal from summary judgment; Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Plaintiff brought action against coemployee and her husband to recover for personal injury
sustained when struck by automobile driven by coemployee. The district court granted
summary judgment to defendants, and plaintiff appealed. The Supreme Court, Thompson, J.,
held that: (1) Legislature did not intend to exempt a coemployee from common-law liability
in a situation where, apart from the Industrial Insurance Act, the common employer
would not be responsible for the coemployee's actions under the doctrine of respondent
superior, and thus, provided common-law employer would not have been responsible for
conduct of coemployee, employee who had parked automobile in parking lot of common
employer and who was preparing to go to work could recover for injury sustained when,
as she was exiting her vehicle, it was struck by automobile driven by her coemployee, and
{2) statute imposing liability upon owner of motor vehicle negligently driven upon a
highway with owner's permission by immediate member of his family was applicable to
accident occurring in parking lot and not on a highway.
not intend to exempt a coemployee from common-law liability in a situation where, apart
from the Industrial Insurance Act, the common employer would not be responsible for the
coemployee's actions under the doctrine of respondent superior, and thus, provided
common-law employer would not have been responsible for conduct of coemployee,
employee who had parked automobile in parking lot of common employer and who was
preparing to go to work could recover for injury sustained when, as she was exiting her
vehicle, it was struck by automobile driven by her coemployee, and (2) statute imposing
liability upon owner of motor vehicle negligently driven upon a highway with owner's
permission by immediate member of his family was applicable to accident occurring in
parking lot and not on a highway.
Reversed and remanded.
Jaquette and Kilpatrick, of Carson City, for Appellant.
Cromer, Barker & Michaelson, and Victor Alan Perry, of Reno, for Respondents.
1. Workers' Compensation.
Legislature did not intend to exempt a coemployee from commonlaw liability in a situation where, apart
from the Industrial Insurance Act, the common employer would not be responsible for the coemployee's
actions under the doctrine of respondeat superior, and thus, provided common employer would not have
been responsible for conduct of coemployee, employee who had parked automobile in parking lot of
common employer and who was preparing to go to work could recover for injury sustained when, as she
was exiting her vehicle, it was struck by automobile driven by her coemployee. NRS 616.010 et seq.,
616.560, subd. 1.
2. Automobiles.
Statute imposing liability upon owner of motor vehicle negligently driven upon a highway with owner's
permission by immediate member of his family was applicable to accident occurring in parking lot and not
on a highway. NRS 41.440.
OPINION
By the Court, Thompson, J.:
This is an action to recover damages for personal injuries sustained by Leona Molino. She
had parked her car in the parking lot of her employer, Lynch Communications Systems, and
was preparing to go to work. As she was exiting her vehicle, it was struck by another car
driven by her coemployee, Emma Asher. The employer had accepted the provisions of the
Nevada Industrial Insurance Act.
Nevada Industrial Insurance Act. The complaint alleges negligence of the coemployee as the
proximate cause of Molino's injury and damage, and also seeks to impose liability upon
Wayne Asher, Emma's husband, by reason of his ownership of the car Emma was driving
when the accident occurred.
The district court granted summary judgment to the Ashers. It found that Molino was
injured in the course of her employment, and that the immunity from suit created by the NIIA
embraced not only the employer but the coemployee as well. Moreover, the court concluded
that ownership of the car Emma was driving was not enough to impose liability upon Wayne
in these circumstances. This appeal is from the order granting summary judgment.
1. The phrase arising out of and in the course of employment has received a liberal
interpretation by this court where the issue is entitlement to industrial compensation. Costley
v. Nevada Ind. Ins. Com., 53 Nev. 219, 296 P. 1011 (1931); Nevada Ind. Com. v. Leonard, 58
Nev. 16, 68 P.2d 576 (1937); Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947). Indeed,
Provenzano is factually similar to the case at hand, for there an employee who had quit work
for the day and was waiting for a ride home, and while so waiting was struck by a truck
driven by a coemployee, was found to have sustained an injury arising out of and in the
course of his employment, and, therefore, entitled to industrial compensation. None of the
cited cases, however, concern the tort liability of a third person coemployee who may not
have been acting within the scope of her employment when the accident occurred. We turn to
address this problem.
2. NRS 616.560(1) extends immunity from suit to a person in the same employ.
1
Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969); Stolte, Inc. v. District
Court, 89 Nev. 257, 510 P.2d 870 (1973). NRS 616.560 also recognizes third-party liability
to an employee who receives an injury for which compensation is payable under the Act.
[Headnote 1]
Whether the legislature intended to grant immunity to a coemployee simply by reason of
his status as such, or whether the intention was to grant immunity only in situations where the
employee perpetrating the injury acts in the scope of employment in the respondeat
superior sense is the precise issue presented for our resolution.
____________________

1
NRS 616.560(1): When an employee coming under the provisions of this chapter receives an injury for
which compensation is payable under this chapter and which injury was caused under circumstances creating a
legal liability in some person, other than the employer or a person in the same employ, to pay damages in respect
thereof: . . . .
the employee perpetrating the injury acts in the scope of employment in the respondeat
superior sense is the precise issue presented for our resolution. This issue was not before the
court in either Aragonez or Stolte for in each instance the coemployee was conducting his
employer's business, within the scope of his employment and, therefore, clearly within the
statutory grant of immunity.
Case authority elsewhere is split. Cases collected in Annot., 21 A.L.R.3d 845 (1968),
entitled Right to Maintain Direct Action Against Fellow Employee for Injury or Death
Covered by Workmen's Compensation. We do not believe that the legislature intended to
exempt a coemployee from common law liability in a situation where, apart from the
compensation act, the common employer would not be responsible for the coemployee's
actions under the doctrine of respondeat superior. Saala v. McFarland, 403 P.2d 400 (Cal.
1965); Williams v. Bebbington, 146 S.E.2d 853 (S.C. 1966); McKelvy v. Barber, 381 S.W.2d
59 (Tex. 1964); Ward v. Wright, 490 S.W.2d 223 (Tex.Civ. 1973).
Whether Lynch Communications Systems, the common employer, apart from the
compensation act, would or would not be responsible for the conduct of Emma Asher in
causing injury to Leona Molino was not considered by the district court in deciding the issue
of coemployee immunity. Consequently, we reverse this aspect of the judgment below and
remand for further proceedings.
[Headnote 2]
3. Statute imposes liability upon the owner of a motor vehicle negligently driven upon a
highway with the owner's permission by an immediate member of his family.
2
Wayne Asher,
owner of the vehicle driven by his wife Emma, contends that the statute is inapplicable since
the accident occurred in a parking lot and not on a highway. In our view, the term highway is
broad enough to embrace a parking lot. People v. Jensen, 347 N.E.2d 371 {Ill.App.
____________________

2
NRS 41.440: 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.
N.E.2d 371 (Ill.App. 1976). To rule otherwise would destroy the public policy considerations
of the statute.
Mowbray, C. J., and Gunderson, Manoukian, and Batjer, JJ., concur.
____________
95 Nev. 37, 37 (1979) Kelso v. State
LYNDEN OREN KELSO, Appellant, v. THE
No. 10135
January 15, 1979 588 P.2d 1035
Appeal from convictions and sentences imposed, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Defendant was convicted before the district court of three first-degree murders, and he
appealed. The Supreme Court, Gunderson, J., held that: (1) person accused of murder cannot
be required to carry burden of proving self-defense by a preponderance of the evidence; (2)
giving instruction that burden of proving circumstances which justify or excuse the killing of
another is upon the defendant, but the defendant need not prove such circumstances beyond a
reasonable doubt was error; (3) such error was harmless, and (4) refusal to give certain
instruction was not error, in light of fact that law encompassed within such instruction was
substantially covered in another instruction.
Affirmed.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
Richard Bryan, Attorney General, Carson City; Calvin Dunlap, District Attorney, and
John L. Conner, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
States may require a defendant to prove by a preponderance of evidence a defense that does not negate
any element of crime charged, but if the defense, by its nature, disproves a fact essential to the offense as
defined by state, the burden may not be shifted to a defendant.
2. Homicide.
A killing in necessary self-defense is not unlawful. NRS 200.120.
95 Nev. 37, 38 (1979) Kelso v. State
3. Homicide.
For purposes of statute defining murder as the unlawful killing of a human being, with malice
aforethought, either express or implied, implied malice requires either absence of considerable
provocation or abandoned and malignant heart. NRS 200.010.
4. Homicide.
For purposes of statute defining murder as the unlawful killing of a human being, with malice
aforethought, either express or implied, express malice requires the deliberate intention unlawfully to
take away the life of another. NRS 200.010.
5. Homicide.
If killing is done in actual self-defense, it is justifiable even if the killing is deliberate. NRS 200.010,
200.120, 200.130, 200.190, 200.200.
6. Homicide.
Person accused of murder cannot be required to carry burden of proving self-defense by a preponderance
of the evidence. NRS 200.010, 200.120, 200.130, 200.190, 200.200.
7. Criminal Law.
In murder prosecution in which defendant contended that he acted in self-defense in killing two of the
victims, giving instruction that burden of proving circumstances which justify or excuse the killing of
another is upon the defendant, but the defendant need not prove such circumstances beyond a reasonable
doubt was error; overruling St. Pierre v. State, 92 Nev. 546, 554 P.2d 1126. NRS 200.010,
200.020, 200.120, 200.130, 200.170, 200.190, 200.200.
8. Criminal Law.
In murder prosecution, error, in giving instruction that burden of proving circumstances which justify or
excuse the killing of another is upon the defendant, but the defendant need not prove such circumstances
beyond a reasonable doubt, was harmless, in light of fact that jury could not reasonably have believed
defendant's claim of self-defense. NRS 177.255, 200.010, 200.020, 200.120, 200.130, 200.170,
200.190, 200.200
9. Criminal Law.
On appeal from conviction, Supreme Court need not consider merits of contention that trial court erred in
not recognizing its inherent discretion to order discovery of materials, in light of fact that defendant did not
assert that such alleged error had denied him of fair trial or had prejudiced him in any manner.
10. Criminal Law.
In murder prosecution, refusal to give instruction that you may consider the use of provoking, insulting
words by a victim as creating a sudden heat of passion in the defendant which may negate premeditation
and deliberation, making the crime second degree murder was not error, in light of fact that law
encompassed within such instruction was substantially covered by another instruction. NRS 200.010.
11. Criminal Law.
To preserve issue for review, in regard to whether cumulative effect of improper statements made by
prosecutor has denied defendant a fair trial, objections must be made to the challenged remarks at the time
and trial court must be requested to rule on objection, to admonish counsel and to instruct jury.
12. Criminal Law.
Defendant's contention that cumulative effect of improper statements made by prosecutor denied him a
fair trial was not preserved for review where, though defense counsel objected to the
prosecutor arguing his case within objections, defense counsel pursued no request
for a ruling, interposed no objections in regard to cumulative effect of prosecutor's
statements, requested no corrective admonition and tendered no motion for mistrial.
95 Nev. 37, 39 (1979) Kelso v. State
review where, though defense counsel objected to the prosecutor arguing his case within objections,
defense counsel pursued no request for a ruling, interposed no objections in regard to cumulative effect of
prosecutor's statements, requested no corrective admonition and tendered no motion for mistrial.
OPINION
By the Court, Gunderson, J.:
A jury convicted Lynden Oren Kelso of first-degree murder for killing Mary Jane (Sherry)
Millhouse, Lester Mitchell, and John Mitchell. At trial, Kelso did not deny shooting the
victims, but claimed that in the Millhouse killing he lacked deliberate, premeditated intent
requisite for first-degree murder, and that in the Mitchell killings he acted in self-defense. The
court sentenced him to serve, concurrently, three life terms in prison, one with possibility and
two without possibility of parole. Kelso appeals, seeking reversal on four grounds, i.e. that:
1) Jury Instruction No. 16 unconstitutionally imposed on him the burden of persuasion as
to self-defense;
2) the trial court erred in not recognizing what he terms its inherent discretion to order
discovery of certain materials;
3) the court erred by refusing a requested instruction that provoking and insulting words
may negate premeditation and deliberation;
4) prosecutorial misconduct prevented a fair trial.
We affirm the convictions, finding none of the appellant's contentions require reversal.
Kelso first met Sherry Millhouse in 1974. A stormy affair ensued, contributing to Kelso's
divorce from his wife. Kelso then began living with Sherry, but their relationship was erratic
and Kelso moved out at least twice. Although Sherry's involvement with Lester Mitchell and
her refusal to choose between the two men apparently occasioned Kelso's second departure,
he again moved in with Sherry five days before the killings.
The day of the shootings, Kelso spent the afternoon at Lester Mitchell's trailer drinking
with Sherry and her friend, Betty Rykman. Around 6:00 p.m., he drove the women to Sherry's
home. After Betty departed, Kelso testified, he and Sherry continued drinking, an argument
developed, and Sherry attempted to load a shotgun, which he took from her and dismantled.
Betty testified she received a phone call from Sherry around 9:00 p.m., inquiring why Betty
had not followed their practice of telephoning upon safe arrival home. Betty explained she
had become engrossed in a television program, in which a murder was about to take
place.
95 Nev. 37, 40 (1979) Kelso v. State
become engrossed in a television program, in which a murder was about to take place. Sherry
replied, there is going to be one here, too. At this point, Kelso took the phone and made
small talk. Sherry then returned on the phone and said in a muffled tone, I want to tell you
what is going to happen. The phone thereupon went dead. Later that evening, officers
discovered Sherry's body, with two bullet holes in the back, and a gash on the head consistent
with being struck from behind with a gun. They found the phone dangling off its hook, a few
feet from her body.
Kelso testified he hung up the phone when Sherry handed it to him. Then, Kelso said, the
argument resumed, with Sherry bragging about her affairs with Lester Mitchell and another
man. This assertedly caused him to blow his top, and he could recall nothing until he found
himself in the parking lot of a bar. There, he stated, he remembered leaving his wallet at
Lester Mitchell's trailer, and decided to retrieve it.
Kelso testified that, remembering the animosity between himself and Mitchell, he tucked
his pistol behind his belt before entering the Mitchell trailer. In an argument that soon
followed, Lester Mitchell allegedly walked to where a rifle was kept, saying to his son John:
Let's do it. In response, John Mitchell supposedly reached for a shotgun standing in the
corner. At this point, Kelso testified, he first warned the Mitchells to stop, then shot both men
twice. He said he also struck Lester on the head with the butt of his pistol, because he
continued reaching for the rifle.
As with the Millhouse killing, other evidence contradicted Kelso's story. The State
introduced a sworn statement given by John Mitchell before death. John said Kelso came to
the trailer, and sat briefly at the table before announcing: . . . I have already shot Sherry,
bumped her off with two rounds. Thereupon, Kelso pulled his pistol and shot both Mitchells
twice. John played dead while Kelso struck his father, rummaged around, and finally left.
John then rose, drove to a neighbor's for help, and reported the shootings. He lived three
weeks; Lester Mitchell died quickly from two bullet wounds and a massive head injury.
Officers investigating the scene found no rifle there, as later alluded to by Kelso. They did
find a shotgun, but it was not loaded. Contradicting Kelso's testimony that he could remember
nothing of Sherry's death, the police discovered Sherry Millhouse's body because of Kelso's
statements to John Mitchell before shooting him. Kelso's statement to the police following
arrest also differed from his trial testimony. Specifically, in the former, he stated he was not
drunk, and remembered driving from Sherry's house toward the Mitchell trailer, rather
than toward the bar he mentioned at trial.
95 Nev. 37, 41 (1979) Kelso v. State
remembered driving from Sherry's house toward the Mitchell trailer, rather than toward the
bar he mentioned at trial.
1. Jury Instruction No. 16 recited: [t]he burden of proving circumstances which justify or
excuse the killing of another is upon the defendant, but the defendant need not prove such
circumstances beyond a reasonable doubt. ln objecting that this instruction violated
constitutional doctrine articulated in Mullaney v. Wilbur, 421 U.S. 684 (1975), Kelso's
counsel alluded only to the matter of self-defense. Thus, we consider the issue only in regard
to the Mitchell killings.
[Headnote 1]
In St. Pierre v. State, 92 Nev. 546, 554 P.2d 1126 (1976), considering an identical
instruction, we discussed Mullaney's holdings that the prosecution must prove every element
of the crime charged, and that the State therefore may not compel a defendant to prove his
crime is less than murder by a preponderance of evidence showing heat of passion on sudden
provocation. In St. Pierre, we refused to extend the Mullaney reasoning to the defense of
self-defense, before receiving further guidance; but since then, the U.S. Supreme Court has
expressly declined to decide whether it denies due process to require a defendant to prove
self-defense affirmatively. Hankerson v. North Carolina, 432 U.S. 233, n. 6 (1977). States
may, of course, require a defendant to prove, by a preponderance of evidence, a defense that
does not negate any element of the crime charged. Patterson v. New York, 432 U.S. 197
(1977). However, when the defense, by its nature, disproves a fact essential to the offense as
defined by the State, the burden may not be shifted to a defendant, since doing so dilutes the
State's own due process burden of proving, beyond a reasonable doubt, every element of the
crime charged. Id. Thus, applying such authority as is available, it appears that whether a
defendant may be required to prove self-defense affirmatively depends on whether such
defense, if established, negates any of the elements of murder as defined in the Nevada
Revised Statutes.
[Headnote 2]
As so defined, murder necessarily requires a killing that is unlawful and accomplished
with malice aforethought, either or implied,
1
while for self-defense, it must appear:
1. The danger was so urgent and pressing that, in order to save his own life, or to
prevent his receiving great bodily harm, the killing of the other was absolutely
necessary; . . .
2.
____________________

1
NRS 200.010 defines murder as:
the unlawful killing of a human being, with malice aforethought, either express or implied.
95 Nev. 37, 42 (1979) Kelso v. State
bodily harm, the killing of the other was absolutely necessary; . . .
2. The person killed was the assailant, or that the slayer had really, and in good
faith, endeavored to decline any further struggle before the mortal blow was given;
2

[3.] . . . [T]he circumstances were sufficient to excite the fears of a reasonable
person, and that the party killing really acted under the influence of those fears and not
in a spirit of revenge.
3

As defined, a killing in necessary self-defense is justifiable and not punishable in any manner.
4
It cannot, therefore, be considered unlawful.
[Headnotes 3-7]
Implied malice requires either absence of considerable provocation or an abandoned and
malignant heart. Express malice requires the deliberate intention unlawfully to take away the
life of another.
5
We believe the self-defense elements quoted above necessarily require the
existence of some considerable provocation and the absence of an abandoned and malignant
heart. They thus exclude any situation where implied malice exists. Likewise express malice
cannot exist; for even a deliberate killing, if done in actual self-defense, is justifiable; the
intent is not unlawfully to take the life of another.
6
Thus, since self-defense negates elements
of murder, a defendant so accused in Nevada cannot be required to carry the burden of
proving self-defense by a preponderance of the evidence. See Commonwealth v. Hilbert, 382
A.2d 724 (Pa. 1978). Instruction Number 16 does not, however, expressly impose such a
burden.
____________________

2
NRS 200.200.

3
NRS 200.130. This provision applies to all justifiable homicides.

4
NRS 200.120 provides in pertinent part:
Justifiable homicide is the killing of a human being in necessary self-defense. . . .
Justifiable and excusable homicide not punishable. The homicide appearing to be justifiable or excusable,
the person indicted shall, upon his trial, be fully acquitted and discharged.

5
NRS 200.020 states:
1. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof.
2. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.

6
See State v. Vaughan, 22 Nev. 285 (1895), in which this court discussed intentional killing in justifiable
self-defense to show error of an instruction that to constitute malice aforethought, it is only necessary intent to
kill be formed.
95 Nev. 37, 43 (1979) Kelso v. State
burden. Indeed, it does not specify what degree of proof is required, except that the defendant
need not make proof beyond a reasonable doubt.
The instruction's language apparently is derived from NRS 200.170.
7
ln White v. State,
82 Nev. 304, 417 P.2d 592 (1966), we held that the language of NRS 175.235 (now 200.170),
should never be used as a jury instruction in a murder case. In Phillips v. State, 86 Nev. 720,
475 P.2d 671 (1970), we reiterated that condemnation and specifically noted that the phrase,
burden of proving circumstances of mitigation, may mislead the jury into believing that the
instruction imposes upon the defendant the burden of persuasion by a preponderance of the
evidence. Id. at 722, 723. Our criticism in White and Phillips focused particularly on the
impropriety of the term mitigation. The instruction in this case omits that term, but still
imposes the burden of proving circumstances which justify. . . . Thus, with respect to
justifiable self-defense, it retains the misleading tendency to impose the burden of proof by a
preponderance on the defendant. Since an instruction expressly imposing that burden would
be impermissible under the doctrine of Mullaney, and its progeny, we hold Instruction No. 16
to be improper where self-defense is raised by a defendant.
[Headnote 8]
So far as it may be read as authorizing that particular instruction, St. Pierre v. State, supra,
is therefore overruled.
8
However, although erroneous, the instruction does not mandate
reversal since consideration of the entire case indicates neither a miscarriage of justice, nor
prejudice to Kelso's substantial rights. State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948). The
trial court advised the jury in three separate instructions of the prosecution's burden of
proving its case beyond a reasonable doubt. As noted earlier, Kelso's story of self-defense was
in total conflict with both the physical evidence and John Mitchell's statements before his
death. In other respects, Kelso's version of events deviated from his own prior statements,
and circumstances ascertainable about Sherry Millhouse's death.
____________________

7
The killing of the deceased named in the indictment or information by the defendant being proved, the
burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the
accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only
amounts to manslaughter, or that the accused was justified, or excused in committing the homicide.

8
We note that in St. Pierre, the appellant not only failed to object, in any manner, to the instruction at trial
but provided no transcript on appeal from which to determine whether it was in fact prejudicial.
95 Nev. 37, 44 (1979) Kelso v. State
statements, and circumstances ascertainable about Sherry Millhouse's death. The evidence in
the record, including photographs of the death scenes, and of the gun's butt Kelso apparently
damaged by beating his victims, seems consistent only with a vengeful rampage. Thus,
because the jury, in any event, could not reasonably have believed Kelso's claim of
self-defense, the erroneous ambiguity in Instruction No. 16 was harmless. NRS 177.255.
[Headnote 9]
2. Appellant's second contention is the court erred in not recognizing its inherent
discretion to order discovery of materials. However, on appeal, appellant does not assert that
he was thus denied a fair trial, or prejudiced in any manner whatsoever. We therefore need
not reach the merits of this issue, since for all that appears, the claimed error was harmless.
Id.
[Headnote 10]
3. Appellant's third claim of error involves the following offered instruction, which the
trial court rejected as cumulative: You may consider the use of provoking, insulting words
by a victim as creating a sudden heat of passion in the defendant which may negate
premeditation and deliberation, making the crime second degree murder. Another instruction
specifically stated that sudden heat of passion could negate premeditation and deliberation,
and thus substantially covered the law encompassed in the offered instruction. Accordingly,
the court acted properly. Beets v. State, 94 Nev. 89, 575 P.2d 591 (1978); Geary v. State, 91
Nev. 784, 544 P.2d 417 (1975).
[Headnotes 11, 12]
4. Kelso finally complains that the cumulative effect of improper statements made by the
prosecutor denied him a fair trial. To preserve this issue for review, objections must be made
to the challenged remarks at the time, and the court must be requested to rule upon the
objection, to admonish counsel, and instruct the jury. Moser v. State, 91 Nev. 809, 544 P.2d
424 (1975). Although defense counsel objected to the prosecutor arguing his case within
objections, he pursued no request for a ruling. Further, counsel interposed no objections on
the specific grounds here urged on appeal. Moreover, he requested no corrective admonition,
and tendered no motion for mistrial. Defendant's cumulative effects argument, as raised for
the first time on appeal, thus will not be considered.
Affirmed.
Mowbray, C. J., and Thompson, Manoukian, and Batjer, JJ., concur.
____________
95 Nev. 45, 45 (1979) Golden Nugget, Inc. v. Ham
GOLDEN NUGGET, INC., a Nevada Corporation, Appellant, v. A. W. HAM, Jr., an
Individual; BANK OF NEVADA, as Trustee under that Certain Trust Agreement Dated
June 27, 1973, wherein A. W. HAM, Jr., is Trustor and BANK OF NEVADA is Trustee,
Respondents.
No. 9330
January 17, 1979 589 P.2d 173
Appeal from order granting defendants' motion for summary judgment and dismissal.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Corporation brought suit for damages for breach of alleged fiduciary duty and for
declaration that it was legal owner of interest in real property held by bank as trustee for
former corporate director-attorney. The district court granted defendants' motion for summary
judgment, and corporation appealed. The Supreme Court held that a genuine issue of material
fact existed as to when corporation had sufficient knowledge to commence running of
three-year statutory period of limitations governing fraud by corporate director, precluding
summary judgment.
Goodman, Oshins, Brown & Singer, Las Vegas; Saphier, Rein & Burris, Los Angeles,
California, for Appellant.
Morse, Foley & Wadsworth, and A. B. Morse, Las Vegas, for Respondent A. W. Ham, Jr.
Weiner, Goldwater & Waldman, Ltd., and Lawrence A. Speiser, Las Vegas, for
Respondent Bank of Nevada.
1. Judgment.
Summary judgment is appropriate only if there is no genuine issue as to any material fact and moving
party is entitled to judgment as matter of law. NRCP 56(c).
2. Judgment.
Trial judges should exercise great care in granting motions for summary judgment, and litigant has a right
to trial where there is slightest doubt as to facts.
3. Judgment.
In action for damages for breach of alleged fiduciary duty and for declaration that corporation was legal
owner of interest in real property held by bank as trustee for former corporate director-attorney, genuine
issue of material fact existed as to when corporation had sufficient knowledge to commence running of
three-year statutory period of limitations governing fraud by corporate director, precluding summary
judgment. NRS 11.190, subd. 3(d).
4. Corporations.
Corporate director, who obtained from his former wife a leasehold with an option to purchase in one-half
interest of property at time when corporation had interest in acquiring such property, was under duty to
inform corporation of full circumstances of transaction with his former wife.
5. Limitation of Actions.
Mere disclosure of a transaction by director of corporation, without disclosure to corporation of
circumstances surrounding transaction, is not sufficient, as matter of law, to commence running of the
three-year statute of limitation governing fraud by corporate director. NRS 11.190, subd. 3(d).
6. Attorney and Client.
Corporate director, who obtained leasehold with option to purchase one-half interest of property at time
when corporation had interest in acquiring such property, had additional duty to corporation, as its
attorney, not only to inform corporation fully of factual circumstances of transaction, but also of its rights
in regard thereto.
7. Corporations.
Corporation was not derelict in duty to investigate details of property transaction between
director-attorney and his former wife, where corporation was told that property had been subject of
property settlement agreement between director-attorney and his wife, and that, thereafter, an undivided
half interest was held by director-attorney as trustee for wife; to require corporation, under such
circumstances, to investigate whether director-attorney had personally usurped opportunity available to
corporation would have required inquiry into second fiduciary relationship, quite independent of
corporation's corporate business.
OPINION
Per Curiam:
The appellant, Golden Nugget, Inc. (GNI), commenced this action against respondent, A.
W. Ham, Jr. (Ham), seeking damages for breach of an alleged fiduciary duty, and also a
declaration that GNI is the legal owner of an undivided one-half interest in certain real
property presently held by respondent, Bank of Nevada (Bank), as Trustee under a Trust
Agreement.
1

Ham, joined by Bank, filed a motion for summary judgment predicated on the ground that
GNI's claim was barred by the statute of limitation. The court below agreed and granted the
motion. Hence, this appeal.
[Headnotes 1, 2]
1. 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."
____________________

1
Bank is named a party defendant because of the trust agreement which conveys Ham's interest in a certain
lease agreement covering the property, the subject of the action, to Bank. Doris Ham Shupe was also named a
nominal defendant; no appeal is taken from the court's order dismissing the complaint as to her.
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). Summary judgment is appropriate only if there is no genuine issue as to any material
fact and . . . the moving party is entitled to judgment as a matter of law. NRCP 56(c). As this
court stated in McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957), trial judges should
exercise great care in granting motions for summary judgment, and . . . a litigant has a right to
a trial where there is the slightest doubt as to the facts. 73 Nev. at 231-32, 315 P.2d 810.
GNI's cause of action is predicated on its contention that defendant Ham, in 1969, while
serving as a director and corporate counsel to GNI, obtained a leasehold with an option to
purchase in a one-half interest in the California Club, at a time when the property in equity
and fairness should have been obtained for GNI. The subject real property, commonly
referred to as the California Club, is located at 101 Fremont Street, Las Vegas, Nevada, and is
situated next to a series of properties on which GNI conducts its casino operations.
The transaction at issue is a lease with an option to purchase entered into on August 12,
1969, whereby Ham, while a director and attorney for GNI, leased from his former wife,
Doris Ham Shupe, an undivided one-half interest in the said property for a term of 99 years,
with an option to purchase for $1,000,000. This transaction was consummated shortly after
GNI, through a series of property acquisitions, had extended its operations to every other lot
on that segment of Fremont Street. GNI, in its pleading, contends that Ham breached his
fiduciary duty to GNI by failing to advise it of the opportunity of leasing Shupe's one-half
interest in the property at a time when GNI had an interest in acquiring the subject property,
and that Ham entered the transaction in bad faith so that he could subsequently relet that
interest to GNI for a substantial personal profit, which did occur.
In its order granting summary judgment, the trial court ruled that the applicable statute
governing fraud by a corporate director was NRS 11.190(3)(d), which requires a plaintiff to
bring:
3. Within 3 years:
. . .
(d) An action for relief on the ground of fraud or mistake; the cause of an action in
such case not to be deemed to have accrued until the discovery by the aggrieved
party of the facts constituting the fraud or mistake.
to have accrued until the discovery by the aggrieved party of the facts constituting the
fraud or mistake.
The court also held that GNI's cause of action as a matter of law accrued either on August 20,
1970, when notice of the lease in question was given by defendant Ham to a law firm retained
as securities specialists for GNI who were preparing a Consent Statement to be submitted to
the stockholders seeking authorization to confirm Ham's lease with GNI, or on November 10,
1970, the date on which the Consent Statement was submitted. Using these dates, the court
concluded that GNI's action, which was filed in September of 1974, was barred by NRS
11.190(3)(d).
2. The issue presented is whether, based on the pleading and proof offered, GNI is barred
by the three year statute of limitations from having its day in court.
[Headnote 3]
The complaint alleged that GNI did not learn of Ham's breach of fiduciary duty until on or
about August 1, 1973. This allegation was supported by the deposition of William Boyd,
director of GNI since 1969. According to the deposition, neither Boyd nor any other director
was aware, from August 1969, to at least June 1, 1973, that Shupe's interest in the property
would have been available to the corporation. GNI contends that in these circumstances, a
genuine issue of a material fact exists as to when the corporation had sufficient knowledge to
commence the running of the statutory period. We agree.
[Headnotes 4-6]
Respondent Ham was under a duty, as a director of GNI, to inform the corporation of the
full circumstances of the transaction with his former wife. Central Ry. Signal Co. v. Longden,
194 F.2d 310 (7th Cir. 1952); Russell v. Republic Production Co., 112 F.2d 663 (5th Cir.
1940). Mere disclosure of a transaction by a director, without disclosure of the circumstances
surrounding the transaction, is not sufficient, as a matter of law, to commence the running of
the statute. See Central Ry. Signal Co. v. Longden, supra. Further, Ham was under an
additional duty to the corporation, as its attorney, not only to inform GNI fully of the factual
circumstances of the transaction, but also to inform GNI of its rights in regard thereto. Martin
v. Dixon, 49 Nev. 161, 241 P. 213 (1925).
We have held that when a party who is relied upon in a fiduciary capacity fails to fulfill his
obligations thereunder, and does not tell the other party of his failure, his omission constitutes
constructive fraud, tolling the statute of limitations until the facts constituting the fraud are
discovered, or should have been discovered, by the injured party.
been discovered, by the injured party. Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971).
[Headnote 7]
We cannot agree that in the present posture of this case, the corporation must be found, as
a matter of law, to have been derelict in its duty when it failed to investigate the details of the
transaction between its director and attorney and his former wife, Shupe. The corporation was
told that the property had been the subject of a 1962 property settlement agreement between
Ham and Shupe, and that thereafter, an undivided half interest was held by Ham as trustee for
Shupe. To have required GNI, under these circumstances, to investigate whether Ham had
personally usurped an opportunity available to GNI would have required an inquiry into a
second fiduciary relationship, quite independent of GNI's corporate business.
It has been observed that a fiduciary has a duty to make full and fair disclosure of all facts
which materially affect the rights and interest of the parties, and, where a fiduciary
relationship exists, facts which would ordinarily require investigation may not excite
suspicion. Bennett v. Hibernia Bank, 305 P.2d 20, 32-33 (Cal. 1956). See also Sanguinetti v.
Strecker, 94 Nev. 20, 577 P.2d 404 (1978).
Under the state of the record, we are compelled to conclude that the trial court erred when
it found that, as a matter of law, the corporation had actually discovered the facts constituting
the fraud, or facts which in the exercise of proper diligence would have enabled them to
discover the fraud, in August or November, 1970, and on those findings granted summary
judgment. We must, therefore, reverse and remand this case for a full hearing on its merits.
____________
95 Nev. 50, 50 (1979) Laman v. Nevada R. E. Adv. Commission
NILA R. LAMAN, Appellant, v. NEVADA REAL ESTATE ADVISORY COMMISSION,
CARL FUETSCH, ROBERT HASS, ELIZABETH LIZ KROLAK, FRED SCHULTZ,
OLIVIA SILVAGNI, Constituting the Membership of said Commission, NEVADA REAL
ESTATE DIVISION, DEPARTMENT OF COMMERCE, ANGUS W. McLEOD,
Administrator of the REAL ESTATE DIVISION, JEANNE HANNAFIN, Deputy
Administrator of the REAL ESTATE DIVISION, and R. E. EDMONDSON, Deputy
Attorney General, Respondents.
No. 9608
January 17, 1979 589 P.2d 166
Appeal from a decision and order affirming a decision of the Nevada Real Estate Advisory
Commission. Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
The Real Estate Advisory Commission entered order revoking license of real estate
salesperson, and she appealed and applied for writ of review. The district court upheld
Commission's order, and salesperson appealed. The Supreme Court, Mowbray, C. J., held
that: (1) Commission did not exceed its jurisdiction by considering allegations which might
have provided factual basis for criminal charge; (2) provisions of real estate code of ethics, as
interpreted and applied, were not too vague and uncertain to provide a constitutional basis for
disciplinary action; (3) there was no improper commingling of judicial and prosecutorial
functions during commission proceedings; (4) composition of Commission did not violate
licensee's right to equal protection under the law; (5) Commission was not required to
exclude written statement of licensee, and (6) although Commission was not entitled to rely
upon affidavit to support its findings, there was substantial evidence in record apart from
affidavit to support Commission's decision.
Affirmed.
Hilbrecht, Jones, Schreck & Bybee, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City, and Joshua M. Landish, Deputy, Las
Vegas, for Respondents.
1. Brokers.
Real estate advisory Commission is authorized to impose discipline upon licensed real estate
salesperson for violation of code of ethics without reference to to any potential
criminal liability.
upon licensed real estate salesperson for violation of code of ethics without reference to to any potential
criminal liability. NRS 645.630, subd. 9.
2. Brokers.
Fact that there exists possibility that conduct of licensed real estate salesperson found to be violative of
code of ethics might also provide basis for charge that salesperson committed a crime does not deprive
Real Estate Advisory Commission of jurisdiction to impose discipline upon salesperson for violation of
code of ethics. NRS 645.630, subds. 9, 12.
3. Licenses.
Professional disciplinary rules must not be so vague and ambiguous as to provide substantial danger of
arbitrary discrimination in their application or so as to embrace an almost unlimited area of conduct.
Real estate salesperson's right to due process of law was not violated by application of standard contained
in code of ethics requiring salesperson to do his utmost to protect the public against fraud,
misrepresentation or unethical practices in the real estate field and to endeavor to eliminate in his
community any practices which could be damaging to the public or to the dignity or integrity of the real
estate profession, in view of fact that rules were not so vague as to invite arbitrary and discriminatory
enforcement. NRS 645.630, 645.630, subd. 9.
5. Brokers.
Licensed real estate salesperson failed to establish violation of statute providing that no agency member
who acts as an investigator or prosecutor in any contested case may take any part in the adjudication of
such case and failed to demonstrate any improper commingling of judicial and prosecutorial functions by
Real Estate Advisory Commission that were violative of due process or of Administrative Procedure Act.
NRS 233B.010 et seq., 233B.122, subd. 1; U.S.C.A.Const. Amend. 14.
Licensed real estate salesperson failed to establish that her right to equal protection of the law was
violated by fact that statutes required all members of Real Estate Advisory Commission to be brokers,
despite fact that salesperson was not a broker. NRS 645.050, subd. 1, 645.090, subd. 3; U.S.C.A.Const.
Amend. 14.
7. Brokers.
Real Estate Advisory Commission did not err in failing to exclude written statement made by licensed
real estate salesperson and submitted to real estate division investigator, where statement itself was
unqualified assertion of fact and where there was no suggestion that it did not represent salesperson's true
belief as to the facts, so that statement was properly viewed as an admission and was properly admitted as
such, despite salesperson's assertion that her statement was made in connection with her desire for an
expeditious and less harsh resolution of charges against her. NRS 48.105.
8. Brokers.
Statute providing that at hearing required before revocation or suspension of real estate license licensee
shall be entitled to examine any and all persons complaining against him as well as all other witnesses
whose testimony is relied upon to substantiate charge made was applicable to affidavit of individual who
was unable to testify at revocation hearing, but erroneous admission of affidavit did not warrant reversal of
revocation order, where Real Estate Advisory Commission had before it ample evidence
from which conclusion reached in challenged finding could reasonably have been
inferred.
order, where Real Estate Advisory Commission had before it ample evidence from which conclusion
reached in challenged finding could reasonably have been inferred. NRS 645.690, subds. 2, 2(a).
OPINION
By the Court, Mowbray, C. J.:
This is an appeal from an order of the district court affirming a decision of the Nevada
Real Estate Advisory Commission. We affirm.
THE FACTS
On July 7, 1976, the Nevada Real Estate Division filed a complaint against appellant, Nila
R. Laman, with the Nevada Real Estate Advisory Commission [hereafter Commission]. By
her answer, appellant admitted the facts below, as alleged in the complaint.
Appellant at all relevant times held a real estate salesman's license issued by the State of
Nevada. On April 3, 1976, appellant accompanied one Tobias C. Miscevic, also a licensed
real estate salesman, on an inspection of a Las Vegas condominium unit which was listed for
sale by Sahara Realty Company. Appellant returned to her car, leaving Miscevic in the
condominium. From her car, she observed Miscevic leaving the premises, carrying a portable
fireplace. Appellant then drove Miscevic to his apartment building, where she observed him
carry the fireplace up the stairs to his apartment, assisted by his landlord.
On April 5, 1976, appellant was contacted and questioned by Detective Robert Krenn of
the Las Vegas Police Department. Appellant subsequently tried to contact Miscevic to urge
the return of the fireplace. She was ultimately successful in this attempt, and called Detective
Krenn the following day to inform him that the fireplace had been returned.
By her answer, appellant denied the allegation of the complaint that she was aware that the
fireplace was the property of the owners of the condominium, illegally in the possession of
Miscevic. She further denied that her conduct violated NRS 645.630(9);
1
Commission Rules
and Regulations Section VII, subsection 17;2 and Code of Ethics, Part I, subsection 2,3 as
charged by the Division.
____________________

1
NRS 645.630 provides, in pertinent part, that
The [Nevada Real Estate Advisory] commission may suspend, revoke or reissue subject to
conditions any license issued under the provisions of this chapter at any time . . . where the licensee,
whether or not acting as a licensee, is found to be guilty of:
. . . .
9. Disregarding or violating any of the provisions of this chapter,
subsection 17;
2
and Code of Ethics, Part I, subsection 2,
3
as charged by the Division.
A hearing was conducted before the Commission, at which appellant was present and
represented by able counsel. The Commission heard from Rochelle Hilton, saleswoman for
Sahara Realty, who testified that on April 3, 1976, she had seen a car pulling out of the
condominium area with a portable fireplace in its open trunk. She further testified that she
went to check the condominium where she had previously observed such a fireplace. When
she found it missing, she called her office and the police, to whom she gave the license
number of the car. On Monday, April 5, Ms. Hilton discussed the matter with her broker, Gil
Schwartz.
Mr. Schwartz testified that he had then contacted appellant's broker, Jack Mathews. He
further testified that Mathews called appellant into his office and questioned her in the
presence of the witness. According to Schwartz, appellant stated that she had loaned her car
to Miscevic on the day in question.
Both Miscevic and appellant were excused from testifying upon their statements that they
would stand upon their right to refuse to answer questions which might tend to incriminate
them. The Commission did admit written statements signed by both licensees. Appellant's
statement described the events of April 3 as follows:
About 2:30 p.m. we [appellant and Miscevic] were at the Gordon Park Townhouses.
We toured the condo's available. [Appellant then suggested they look at the
condominium in question]. . . .
I walked into the living room and brought Toby's attention to the portable fireplace. I
told him they were great, as I had one in my own condo. Toby continued to tour the unit
and I returned to the car. . . .
Toby comes to the car carrying the fireplace. He asked for the keys to the trunk. I
couldn't believe he was standing there with the fireplace. I went to the trunk and
removed my dry cleaning and put it on the back seat.
____________________
chapter 119 of NRS or of any regulation promulgated under either chapter.

2
Nevada Real Estate Advisory Commission Rules and Regulations, Section VII, subsection 17, provides:
Each licensee shall abide by the Code of Ethics.

3
Code of Ethics, Part I, subsection 2, provides:
2. The licensee should do his utmost to protect the public against fraud, misrepresentation or
unethical practices in the real estate field.
He should endeavor to eliminate in his community any practices which could be damaging to the
public or to the dignity or integrity of the real estate profession.
removed my dry cleaning and put it on the back seat. I then got in the car and drove to
Toby's apartment. I sat in the car while he carried the fireplace up to his apartment. His
landlord helped him around a corner and on up the remaining stairs. We then drove back
to the office.
According to the statement, appellant did not disclose these facts to anyone until questioned
by her broker on April 5.
The Commission found that appellant had been aware that Miscevic was illegally in
possession of the fireplace, and had failed to report this. The Commission concluded that
appellant's behavior was extremely damaging to the dignity and integrity of the profession,
and that she had failed to do her utmost to protect the public against unethical practices and
in fact committed unethical practices. The Commission ordered appellant's license revoked
for violation of the statute, rule and provision of the code of ethics as charged.
Appellant filed an appeal (NRS 645.760) and an application for a writ of review (NRS
34.010, et seq.) in the district court. The district court rejected appellant's appeal and
application and upheld the validity and propriety of the Commission's order and decision.
On appeal from that determination, appellant now urges that the court erred in rejecting
her contentions that (1) the Commission lacked jurisdiction to consider the charges specified,
(2) the ethical provision which she was alleged to have violated was too vague and uncertain
to be considered as a basis for discipline, (3) her due process rights were violated by an
improper commingling of judicial and prosecutorial functions, (4) the Commission was
unconstitutionally constituted, and (5) the Commission improperly admitted (a) a statement
signed by the owner of the condominium and (b) her written statement describing the
incident.
THE ISSUES
1. The Commission's Jurisdiction Under NRS 645.630(9).
Appellant suggests that the Commission exceeded its jurisdiction under NRS 645.630(9),
(supra, n. 1), because the complaint on file herein alleged that [appellant] committed acts
which would constitute the crime of theft or abetting such crime. She contends that the
commission is only empowered to discipline licensees for the commission of criminal acts
under NRS 645.630(12), which provides for such discipline when a licensee has been found
guilty of:
Forgery, embezzlement, obtaining money under false pretenses, larceny, extortion,
theft, fraud, conspiracy, a crime involving moral turpitude or other like offense,
whether arising from a real estate transaction or not, and has been convicted
thereof in a court of competent jurisdiction.
crime involving moral turpitude or other like offense, whether arising from a real estate
transaction or not, and has been convicted thereof in a court of competent jurisdiction.
(Emphasis added.)
[Headnote 1]
Appellant's contention, however, ignores the posture of the case before the Commission.
The complaint alleged, and the Commission so found, that she was guilty, not of theft, but of
violating the code of ethics of her profession by failing to do her utmost to protect the public
against unethical practices or to eliminate practices damaging to the public or to the dignity or
integrity of the real estate profession. Under NRS 645.630(9), and the Rules and Regulations
promulgated thereunder, the Commission is empowered to impose discipline upon a licensee
for violation of the code of ethics, without reference to any potential criminal liability.
[Headnote 2]
Appellant argues, nevertheless, that NRS 645.630(12) must be read to deprive the
Commission of such jurisdiction so long as there is any possibility that the conduct found to
be a violation of the code of ethics might also provide the basis for a charge that the licensee
had committed a crime. We do not agree. There is no basis in the statutory language, or in
logic, for concluding that the legislature intended to immunize from disciplinary action a
licensee accused of unethical conduct on grounds serious enough to warrant criminal charges
as well. See State Board of Technical Registration v. McDaniel, 326 P.2d 348, 353 (Ariz.
1958). Appellant suggests that this result would in some way compromise the fifth
amendment rights of licensees. The record in this case refutes such a suggestion.
Appellant's right to invoke the fifth amendment at hearing was fully protected by the
Commission, and there is no basis in the record for concluding that the Commission drew any
adverse inference from her refusal to testify. Cf. Rudin v. Nevada R. E. Advisory Comm'n.,
86 Nev. 562, 471 P.2d 658 (1970). The fifth amendment does not require more. See De Vita
v. Sills, 422 F.2d 1172 (3d Cir. 1970) (denial of application for stay of disbarment
proceedings until completion of pending criminal proceedings does not violate privilege
against self-incrimination).
We conclude that the Commission was acting within its jurisdiction in subjecting appellant
to discipline for conduct found violative of NRS 645.630(9).
2. The Charge of Vagueness of The Code of Ethics.
Appellant contends that the provisions of the Code of Ethics, Part I, subsection 2,
requiring a licensee to "do his utmost to protect the public against fraud,
misrepresentation or unethical practices in the real estate field" and to "endeavor to
eliminate in his community any practices which could be damaging to the public or to the
dignity or integrity of the real estate profession" are too vague and uncertain to provide a
constitutional basis for imposition of discipline.
Ethics, Part I, subsection 2, requiring a licensee to do his utmost to protect the public against
fraud, misrepresentation or unethical practices in the real estate field and to endeavor to
eliminate in his community any practices which could be damaging to the public or to the
dignity or integrity of the real estate profession are too vague and uncertain to provide a
constitutional basis for imposition of discipline.
[Headnotes 3, 4]
In Stevens v. Hocker, 91 Nev. 392, 536 P.2d 88 (1975), this court described the due
process limitation upon use of vague and uncertain language in personnel or professional
disciplinary rules. Such rules must not be so vague and ambiguous as to provide a
substantial danger of arbitrary discrimination in their application or so elusive as to
embrace an almost unlimited area of conduct. 91 Nev. at 394, 536 P.2d at 90.
In Stevens, we ruled that such general phrases as notoriously disgraceful personal
conduct and conduct detrimental to the good of the institution could provide a valid basis
for dismissal of a state employee if they were interpreted to relate directly to the issue of the
employee's fitness to perform his job. We noted that in Moore v. Board of Trustees, 88 Nev.
207, 495 P.2d 605, cert. denied, 409 U.S. 879 (1972), and Meinhold v. Clark County School
District, 89 Nev. 56, 506 P.2d 420, cert. denied sub nom. Meinhold v. Taylor, 414 U.S. 943
(1973), we sustained disciplinary action for unprofessional conduct', . . . [when] the conduct
in issue bore directly upon fitness to perform the profession involved. 91 Nev. at 394-95,
536 P.2d at 90.
In the instant case, the rules in question are not so vague as to invite arbitrary and
discriminatory enforcement. Greyned v. City of Rockford, 408 U.S. 104, 108 (1972). As in
Moore and Meinhold, the terms were interpreted with particular reference to appellant's
fitness to practice her profession.
We hold that appellant's right to due process of law was not violated by the application of
the standard contained in the Code of Ethics, Part I, subsection 2, to her conduct.
3. The Commingling of Judicial and Prosecutorial Functions.
[Headnote 5]
Appellant contends that there was an improper commingling of judicial and prosecutorial
functions during the Commission proceedings in that a Deputy Attorney General participated
by advising the Commission on evidentiary matters, while his subordinate in the same office
was engaged in prosecuting appellant. This contention, unsupported by case authority, is
adequately answered by this court's ruling in Rudin v. Nevada Real Estate Advisory
Commission, supra, S6 Nev. at 565, 471 P.2d at 660:
adequately answered by this court's ruling in Rudin v. Nevada Real Estate Advisory
Commission, supra, 86 Nev. at 565, 471 P.2d at 660:
It is not uncommon in administrative law to find the combination of investigating,
prosecuting and judging functions. As a general proposition, such a combination,
standing alone, does not constitute a denial of due process. 2 Davis, Administrative
Law Treatise 13.02. Such combination of functions possesses the potential for
unfairness, but unfairness is not its inevitable consequence. In the matter at hand that
combination did not exist. The investigation was conducted by investigators, the
prosecution, by counsel for the Commission, and the decision was made by the
Commission itself. There is nothing to suggest that the prosecutor decided the case. . . .
.
Here, the separation was even more clearly defined. The Commission alone performed all
adjudicative functions, including rulings on evidentiary matters. There was, therefore, no
violation of NRS 233B.122(1).
4

Appellant has demonstrated no improper commingling of judicial and prosecutorial
functions violative of due process, or of Nevada's Administrative Procedure Act.
4. The Appellant's Right to Equal Protection.
[Headnote 6]
Appellant contends that since all members of the Commission must by statute be brokers
(NRS 645.090(3)), and since the legislature has also provided that the governor shall obtain
and consider a list of nominees for the Commission from the Nevada Association of
Realtors (NRS 645.050(1)), she has been deprived of equal protection of the law, because
appellant is a salesperson and not a broker. Appellant has cited no case authority for her
position.
5

Appellant has failed to demonstrate that her right to equal protection of the law was
violated by the statutory composition of the Commission.
5. The Admissibility of the Evidence.
a. Appellant's written statement.
____________________

4
NRS 233B.122(1) provides:
No agency member who acts as an investigator or prosecutor in any contested case may take any part
in the adjudication of such case.

5
Appellant has cited one case, Smith v. Department of Registration, 106 N.E.2d 722 (Ill. 1952), in which the
court held the dissimilar treatment of two physicians in identical circumstances violative of equal protection,
citing Yick Wo v. Hopkins, 118 U.S. 356 (1886). However, appellant does not contend here that she has been
treated differently from any other licensee in identical circumstances.
[Headnote 7]
Appellant contends that her written statement, dated April 15, 1976, and submitted to a
Division investigator on April 16, 1976, should have been excluded under NRS 48.105,
6
as a
statement made in compromise negotiations.
Appellant's contention is based upon her assertion, by affidavit submitted to the district
court, that her statement was made in connection with her desire for an expeditious and less
harsh resolution of the charges against her. The statement itself is an unqualified assertion of
facts. There is no suggestion that it did not represent appellant's true belief as to the facts.
Hiram Ricker & Sons v. Students Inter. Meditation Soc., 501 F.2d 550, 553 (1st Cir. 1974).
In the circumstances, the statement was properly viewed as an admission, and was properly
admitted as such. Id. see also City Bank of Honolulu v. Rivera Davila, 438 F.2d 1367 (1st
Cir. 1971); 4 Wigmore, Evidence 1061, at 41-42 (Chadbourn rev. 1972).
b. Affidavit of Daniel Alexander.
Over the objection of counsel for appellant, the Commission admitted into evidence a
statement, signed by Daniel Alexander before a notary in Los Angeles, California, on June
18, 1976. The substantive portion of the typed statement read:
I freely and voluntarily give this affidavit to DUANE DEMAY who is known to me
as INVESTIGATOR for the Nevada Real Estate Division. I DID NOT AUTHORIZE
OR GIVE PERMISSION TO ANYONE, AT ANY TIME, TO REMOVE A
PORTABLE ELECTRIC FIREPLACE OR ANY OTHER PERSONAL PROPERTY
FROM MY HOUSE LOCATED AT 3455 GARDEN DRIVE SOUTH IN LAS
VEGAS, NEVADA. I will not be available to appear as a witness in any proceeding
relating to the above matter. As of July 1, 1976, I will be residing in the State of
Florida.
I have read the foregoing affidavit consisting of (1) pages, and it is true and correct
to the best of my knowledge and belief.
____________________

6
NRS 48.105:
1. Evidence of:
(a) Furnishing or offering or promising to furnish; or
(b) Accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to
prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible.
2. This section does not require exclusion when the evidence is offered for another purpose, such as
proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
pages, and it is true and correct to the best of my knowledge and belief.
Appellant suggests that the admission of this statement, and the Commission's purported
reliance thereon, is a violation of NRS 645.690(2), which provides that at the hearing
required before the revocation or suspension of a real estate license,
the licensee shall be entitled:
(a) To examine, either in person or by counsel, any and all persons complaining
against him, as well as all other witnesses whose testimony is relied upon to
substantiate the charge made.
We agree. In Greene v. McElroy, 360 U.S. 474 (1959), the United States Supreme Court
overruled the administrative revocation of petitioner's security clearance on the basis of
reports made to government investigators. While noting the due process challenge of
petitioner, the Court chose to rest its holding upon statutory grounds, refusing to interpret the
statute in question as authorizing the Department of Defense
to create an industrial security clearance program under which affected persons may
lose their jobs and may be restrained in following their chosen professions on the basis
of fact determinations concerning their fitness for clearance made in proceedings in
which they are denied the traditional procedural safeguards of confrontation and
cross-examination.
360 U.S. at 493. The Court, in condemning the practices of the administrative board, noted
that the testimony of absent witnesses was allowed to stand without the probing questions
of the person under attack. Id. at 497. (Emphasis added.)
While respondents urge that testimony, as used in NRS 645.690(2)(a), refers exclusively
to the sworn statements of witnesses at trial or hearing, it is clear from the use of the term by
the Court in Greene that the term does have a broader meaning. Respondents rely upon the
primary definition of the term in Black's Law Dictionary, 1646 (rev. 4th ed. 1968): Evidence
given by a competent witness, under oath or affirmation; as distinguished from evidence
derived from writings, and other sources. However, Black's Law Dictionary, Id., at 1778,
defines witness as A person whose declaration under oath (or affirmation) is received as
evidence for any person, whether such declaration be made on oral examination or by
deposition or affidavit. (Emphasis added.)
[Headnote 8]
Thus interpreted, we hold that NRS 645.690(2)(a) is applicable to the Alexander affidavit.
The remaining question is whether the Commission relied upon that affidavit for its factual
findings, in violation of its statutory authority. Appellant contends that without the affidavit,
there is no competent evidence in the record to support the finding that [a]t all times
[appellant] was aware that the fireplace was the property of the owners of the condominium
and that it was illegally in possession of Tobias Miscevic. We disagree.
A review of the evidence, and of the facts admitted by appellant, reveals the contrary. The
Commission had before it ample evidence from which the conclusion reached in the
challenged finding could reasonably have been inferred. Therefore, the district court's
decision and order upholding the Commission need not be reversed on this ground. See
Nardoni v. McConnell, 310 P.2d 644 (Cal. 1957); Richards Realty Co. v. Real Estate
Commissioner, 300 P.2d 893 (Cal.App. 1956); Dittmeier v. Missouri Real Estate
Commission, 237 S.W.2d 201 (Mo.App. 1951).
We conclude, therefore, that the Commission did not exceed its jurisdiction by considering
allegations which may have provided a factual basis for a criminal charge; that the provisions
of the real estate Code of Ethics, Part I, subsection 2, as interpreted and applied in this case
are not too vague and uncertain to provide a constitutional basis for disciplinary action; that
there was no improper commingling of judicial and prosecutorial functions during the
Commission proceedings; that the composition of the Commission did not violate appellant's
right to equal protection under the law, and that the Commission was not required by NRS
48.105 to exclude the written statement of appellant. Finally, although the Commission was
not entitled to rely upon the affidavit of Alexander to support its findings, there was sufficient
substantial evidence in the record apart from the affidavit to support the Commission's
decision.
For these reasons, the decision and order of the district court affirming the decision of the
Nevada Real Estate Advisory Commission is affirmed.
Thompson, Gunderson, Batjer, and Manoukian, JJ., concur.
____________
95 Nev. 61, 61 (1979) Lucas v. Sheriff
CHARLES DONALD LUCAS, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 10963
January 17, 1979 589 P.2d 176
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Habeas corpus was sought as a means of challenging the sufficiency of charges against an
adult of committing the infamous crime against nature. The district court denied the petition,
and petitioner appealed. The Supreme Court, Mowbray, C. J., held that defendant, an adult,
could not be charged with the crime in question as an aider and abettor to the extent that such
charges were based on his actions in inducing minors to perform the alleged acts with each
other.
Affirmed in part; reversed in part.
Gunderson and Batjer, JJ., dissented.
Wiener, Goldwater & Waldman, and Laurence A. Speiser, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
Gordon C. Richards, Deputy District Attorney, Clark County, for Respondent.
Sodomy.
Adult could not be charged with infamous crime against nature, even as aider or abettor, to extent that
such charges were based on his actions in inducing minors to perform sodomous acts upon each other.
NRS 172.155, subd. 1, 193.050, 195.020, 201.190, 201.190, subd. 2.
OPINION
The Clark County Grand Jury returned an indictment charging the appellant-defendant,
Charles Donald Lucas, with thirteen felonies as follows: COUNT IIIInfamous Crime
Against Nature; COUNT IVInfamous Crime Against Nature; COUNT VIInfamous
Crime Against Nature; COUNT VIIGive Away Controlled Substance; COUNT VIIIGive
Away Controlled Substance; COUNT IXGive Away Controlled Substance; COUNT
XIInfamous Crime Against Nature; COUNT XIIInfamous Crime Against Nature; COUNT
XIIIInfamous Crime Against Nature.
Against Nature; COUNT XIIInfamous Crime Against Nature; COUNT XIIIInfamous
Crime Against Nature.
Lucas challenged the sufficiency of the charges in the court below by filing this habeas
proceeding. The district judge denied his petition in toto and this appeal resulted.
We have reviewed the record before the Grand Jury. There is sufficient evidence therein to
require Lucas to answer the charges set forth in Counts III, IV, VII, VIII, IX, and XI.
Accordingly, he shall stand trial in the district court on those charges. NRS 172.155(1).
Counts VI, XII and XIII are focused on the sexual behavior of two minors, encouraged by
Lucas, which constitutes the basis for the infamous crime charge in each count.
1

At the time the offenses took place between the minors in Counts VI, XII and XIII, NRS
201.190 provided, in pertinent part: [E]very person of full age who commits the infamous
crime against nature shall be punished: . . . (Emphasis added.) See 1977 Nev. Stats. ch. 430,
84. The current statutory definition of the crime, effective July 1, 1977, goes even further:
The infamous crime against nature' means anal intercourse, cunnilingus or fellatio between
consenting adults of the same sex. NRS 201.190(2) (Emphasis added.) Minors are not
punishable under the infamous crime statute. Lucas' infamous crime charges on the three
counts are predicated on NRS 195.020. Under that statute an accused who has aided and
abetted another person in the commission of a crime is subject to being charged with having
committed that crime. Wills v. State, 93 Nev. 443, 566 P.2d 1138 (1977).
Although one may be charged with a crime if he aided and abetted its commission, that
person may not be charged under NRS 195.020, the aiding and abetting statute, when the act
or conduct is not proscribed by the statute constituting the offense charged.
As this court held in Ex Parte Smith, 33 Nev. 466, 487, 111 P. 930, 937 (1910) (emphasis
added):
[I]f the indictment does not allege any facts which would constitute an offense by a
principal, it does not state sufficient facts as against an accessory before the fact so that he
could be tried as a principal. See also, State of Nevada v. Jones, 7 Nev. 408, 417 (1872);
State v. Cushing, 61 Nev. 132, 145-46 120 P.2d 208, 214 (1941); Hanley v. State, 85 Nev.
154, 160-61, 451 P.2d 852, 856 (1969).
This is not an instance in which minors are simply deemed not to have the requisite
criminal intent, though their conduct is criminal.
____________________

1
The other infamous crime counts allege that Lucas personally committed the act.
is criminal. By its statutory scheme, the legislature has determined that their conduct does not
constitute a crime under NRS 201.190, the infamous crime against nature. Indeed, the
Legislature by the amendment, in 1967, of NRS 193.050, has provided that No conduct
constitutes a crime unless prohibited by some statute of this state or by some ordinance or like
enactment of a political subdivision of this state. 1967 Nev. Stats. ch. 211, 1, at 458.
Accordingly, Counts VI, XII and XIII of the indictment may not stand and the writ as to
them must be granted; however, without prejudice to the State to refile new charges against
the appellant predicated upon an appropriate statute.
2

Thompson and Manoukian, JJ., concur.
Gunderson, J., with whom Batjer, J., agrees, dissenting:
We respectfully dissent.
With exceptions not pertinent here, NRS 201.190 declared that, every person of full age
who commits the infamous crime against nature shall be punished by imprisonment in the
state prison. . . . Thus, although the statute only imposed punishment on persons of full
age, it quite clearly recognized that persons under full age may perform the infamous crime
against nature. The statute simply excepted minors from punishmentimplicitly
recognizing that the law should not deem criminal intent possible, in the case of children and
adolescents experimenting with each other.
However, Nevada's aiding and abetting statute, NRS 195.020, expressly declares: The
fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or
procured, could not or did not entertain a criminal intent shall not be a defense to any person
aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.
(Emphasis added.) It is therefore clear that in this case, legal incapacity to form criminal
intent is a defense personal to the minors, and not available to appellant, an adult who
allegedly instigated their conduct. Cf. Thomas v. Sheriff, 89 Nev. 17, 504 P.2d 1313 (1973).
Of course, the record indicates appellant personally participated in other acts, on which
other charges are grounded; however, this does not diminish the legal significance of the
issue before us, to-wit: whether encouraging children to act as alleged constitutes the crimes
charged in Counts VI, XII and XIII.
____________________

2
Of course, we certainly do not hold, contrary to the statement in the dissenting opinion that it is no crime to
cause children to perform cunnilingus, fellatio, or anal intercourse upon each other, . . .only that such
offenders must be charged under the statutes made and provided therefor.
XIII. In future cases, other crimes may not always be provable. Hence, the essence of this
court's determination today, that it is no crime to cause children to perform cunnilingus,
fellatio or anal intercourse upon each other, is a precedent of some significance. Furthermore,
to us, this significance is not diminished by stating that the State may refile new charges
against the appellant predicated upon an appropriate statute. Respectfully, we note that it
appears to us the State has here availed itself of the statute most clearly appropriate when
adults cause children to sodomize each other. We are unaware of any alternative statutes, to
which the State now may reasonably take recourse. Therefore, absent any showing either by
appellant or by our brethren that other statutes more explicitly cover such cases, we believe
prosecution should proceed as instituted.
____________
95 Nev. 64, 64 (1979) Department of Motor Vehicles v. Rebol
DEPARTMENT OF MOTOR VEHICLES, Appellant,
v. JOHN C. REBOL, Respondent.
No. 10503
January 22, 1979 589 P.2d 178
Appeal from judgment granting permanent writ of mandamus, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
Department of Motor Vehicles appealed from order of the district court which issued writ
of mandamus requiring reinstatement of a driver's license examiner. The Supreme Court held
that: (1) trial court had not improperly granted mandamus by default, and (2) trial court
properly refused to hear oral assertions by the respondent.
Affirmed.
Robert List, Attorney General, Stephen R. Minagil, Wayne D. Wilson, Deputy Attorneys
General, Carson City, and Michael Kaplan, Deputy Attorney General, Las Vegas, for
Appellant.
1

Carl F. Martillaro and Edward Bernard, Carson City, for Respondent.
1. Mandamus.
Where trial court considered evidence presented by the petitioner, the grant of mandamus did not fall
within the proscription against issuance of writs of mandamus by default. NRS 34.200.
____________________

1
Counsel of record for appellant were not the counsel for the DMV in the trial court.
2. Mandamus.
Trial court properly concluded that written answer to order for show cause in connection with application
for writ of mandamus was required and properly refused to hear the respondent's oral assertions. NRS
34.210.
OPINION
Per Curiam:
On March 29, 1977, appellant terminated respondent's employment as drivers' license
examiner. On April 5, 1977, pursuant to NRS 284.390, respondent requested a hearing before
the Personnel Advisory Commission. Without explanation for the delay, Rebol received
notice on June 27, 1977, that his hearing was set for July 6, 1977.
On June 29, 1977, Rebol filed a petition and verified affidavit for an alternative writ of
mandamus. He complained that he had not been granted a termination hearing within twenty
days of his request as contemplated by NRS 284.390.
2
He demanded either reinstatement
and reimbursement for lost wages and benefits or, alternatively, an order to show cause why
he should not be reinstated. The order to show cause issued July 5, 1977 and service of
process was then effected.
Thereafter, appellant failed to answer the petition, and the district court granted Rebol the
requested relief. An order granting permanent mandamus was entered September 27, 1977.
Contending the writ was granted by default in violation NRS 34.200, the Department of
Motor Vehicles appealed.
3
We find the writ was not granted by default, and accordingly
dismiss the appeal.
[Headnote 1]
NRS 34.260 provides that if no answer is made to the order to show cause, the case shall
be heard on the papers of the applicant. Before it the trial court had Rebol's verified petition
and affidavit. The affidavit averred that the allegations contained in Rebol's notice of
termination were false and misleading, that he had not been granted a hearing within 20
days as required by NRS 2S4.390, and that the delay in a hearing had resulted in the
deprivation of an important property right without due process of law.
____________________

2
NRS 284.390(2) provides:
The hearing officer shall grant the employee a hearing within 20 working days after receipt of the
employee's written request unless the time limitation is waived, in writing, by the employee or there is a
conflict with the hearing or review calendar of the hearing officer, in which case the hearing shall be
scheduled for the earliest possible date after the expiration of the 20 days.

3
NRS 34.200 provides in part that [t]he writ shall not be granted by default. The case shall be heard by the
court, whether the adverse party appear or not.
contained in Rebol's notice of termination were false and misleading, that he had not been
granted a hearing within 20 days as required by NRS 284.390, and that the delay in a hearing
had resulted in the deprivation of an important property right without due process of law. He
demanded that he be reinstated and reimbursed for lost wages and benefits. The district court
considered the evidence and granted the relief requested. As the petition was heard on the
papers of the movant, it was not granted by default. NRS 34.200; compare Gulbranson v. City
of Sparks, 89 Nev. 93, 506 P.2d 1264 (1973).
[Headnote 2]
Finally, appellant's assertion that it was entitled to answer orally on the date set for the
hearing on the order to show cause is without merit. NRS 34.210 provides that the answer
shall be made in the same manner as an answer to a complaint in a civil action. The trial
judge properly concluded that a written answer is contemplated and accordingly refused to
hear appellant's oral assertions.
There being no error, the judgment is affirmed.
4

____________________

4
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in place of the Hon.
Gordon Thompson, who was disqualified. Nev. Const. art. 6, 19; SCR 243.
____________
95 Nev. 66, 66 (1979) Stover v. Las Vegas Int'l Country Club
MARSHALL L. STOVER, Appellant, v. LAS VEGAS INTERNATIONAL COUNTRY
CLUB ESTATES HOME OWNERS ASSOCIATION, INC., a Nevada Corporation;
ARTHUR WERMUTH, an Individual, Respondents.
No. 9005
January 24, 1979 589 P.2d 671
Appeal from an order granting a motion to dismiss appellant's complaint, Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
A licensed process server, who was refused permission to enter a residential development
to serve a notice of lien, initiated action seeking damages for false arrest, false
imprisonment, loss of business resulting from his inability to serve process within
subdivision, and injunctive relief. The district court granted defendants' motion to dismiss,
and plaintiff appealed.
appealed. The Supreme Court held that: (1) appellate review is precluded for failure to
furnish prescribed record only when review is dependent upon evidence or testimony which
would have been disclosed in such transcript or statement; (2) when evidence on which a
district court's judgment rests is not properly included in record on appeal, it is assumed that
record supports lower court's findings; (3) where plaintiff neglected to file a transcript or a
statement of evidence or proceedings required by appellate rules, dismissal of tort actions by
trial court would be affirmed, and (4) plaintiff, who claimed a right to enter a secured
enclosure to reach residence or usual place of abode of a resident therein for purpose of
serving process, was seeking to extend or enlarge authority granted to process servers by
statute, but it was not within power of court to extend provisions of statute beyond limits
fixed by legislature.
Affirmed.
[Rehearing denied March 5, 1979]
Fitzgibbons & Maley, Las Vegas, for Appellant.
Rose, Edwards & Hunt, Ltd., and Niels L. Pearson, Las Vegas, for Respondent Las Vegas
International Country Club Estates Home Owners Association, Inc.
Respondent Arthur Wermuth was not represented by counsel on the appeal.
Appellate review is precluded for failure to furnish prescribed record only when review is dependent
upon evidence or testimony which would have been disclosed in such transcript or statement.
When evidence on which a district court's judgment rests is not properly included in record on appeal, it
is assumed that record supports lower court's findings.
Where appellant neglected to file a transcript or a statement of evidence or proceedings required by
appellate rules, dismissal of tort actions by trial court would be affirmed. NRAP 10(b), (c).
Licensed process server, who brought action to recover damages for false arrest, false imprisonment, loss
of business resulting from his inability to serve process within subdivision, and injunctive relief, claiming a
right to enter a secured enclosure to reach residence or usual place of abode of a resident therein for
purpose of serving process, was seeking in effect to extend or enlarge authority granted to process servers
by statute, but it was not within power of court to extend provisions of statute beyond limits fixed by
legislature; to do so would be a usurpation of powers of legislature denied to courts under
Constitution.
powers of legislature denied to courts under Constitution. NRS 648.014, 648.140.
OPINION
Per Curiam:
Appellant is a process server licensed in the State of Nevada under the provisions of NRS
648.014 and NRS 648.140. He attempted to gain access to serve a notice of lien upon an
individual residing within Las Vegas International Country Club Estates, a residential
development surrounded by a high, brick wall. The three gates providing entrance to
authorized persons were secured by guards who refused permission to appellant to enter the
premises. When appellant persisted, he was arrested for trespass, but criminal charges were
subsequently dismissed. Appellant initiated this action seeking damages for false arrest, false
imprisonment, loss of business resulting from his inability to serve process within the
subdivision, and also sought injunctive relief to restrain respondents from continuing to deny
access for such purposes. From an order granting respondents' motion to dismiss, appellant
appealed but neglected to file a transcript or a statement of the evidence or proceedings
required by NRAP 10(b) and (c).
[Headnotes 1-3]
Respondents assert, initially, that a failure to file a statement of the evidence or
proceedings mandates a dismissal of this appeal, citing 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); and, Alexander v.
Simmons, 90 Nev. 23, 518 P.2d 160 (1974). Appellate review is precluded for failure to
furnish the prescribed record only when review is dependent upon the evidence or testimony
which would have been disclosed in such transcript or statement. When evidence on which a
district court's judgment rests is not properly included in the record on appeal, it is assumed
that the record supports the lower court's findings. City of Las Vegas v. Bolden, 89 Nev. 526,
516 P.2d 110 (1973). On this record, the dismissal of the tort actions by the trial court must
be affirmed.
[Headnote 4]
Appellant claims a right to enter a secured enclosure to reach the residence or usual place
of abode of a resident therein for the purpose of serving process. It is conceded that access to
the secured area has been, and is, granted to officers of the county and city law enforcement
agencies for the purpose of serving legal process, but denied to others. Residents of such
areas, therefore, do not enjoy immunity from service of process.
therefore, do not enjoy immunity from service of process. In effect, appellant, through this
proceeding, seeks to extend or enlarge the authority granted to process servers by our statute.
It is not within the power of the court to extend the provisions of the statute beyond the limits
fixed by the legislature. To do so would be a usurpation of the powers of the legislature
denied to the courts under the Constitution. Seaborn v. District Court, 55 Nev. 206, 29 P.2d
500 (1934); State v. Beemer, 51 Nev. 192, 272 P. 656 (1928).
Affirmed.
1

____________________

1
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable William P. Beko, Judge of the
Fifth Judicial District, to sit in the place of The Honorable Gordon Thompson, who was disabled.
____________
95 Nev. 69, 69 (1979) Verner v. Jouflas
J. JANET VERNER, Doing Business as J. JANET VERNER, KUTE KURL, Appellant, v.
PETER T. JOUFLAS and L. D. SCHNEIDER, Respondents.
No. 9560
January 31, 1979 589 P.2d 1025
Appeal from judgment, Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Action was brought to recover for breach of lease agreement. The district court entered
judgment for plaintiff, and defendant appealed. The Supreme Court held that: (1) when
defendant failed to appeal from trial court's denial of her motion for change of venue, she
waived any right to complain about the improper place of trial, and therefore, trial court did
not lose jurisdiction to decide the case when defendant's motion for change of venue was
denied, and (2) where defendant received due notice of trial date, but defendant and her
counsel failed to appear at trial, district court did not err when it proceeded to receive
evidence, dismiss her counterclaim and enter judgment on merits, and such judgment was not
a default within meaning of rule providing that if party against whom judgment by default
is sought has appeared in the action, he shall be served with written notice of application for
judgment at least three days prior to hearing on such application.
Affirmed.
Ralph M. Crow, Carson City, for Appellant.
Hale, Lane, Peek, Dennison and Howard, and Stephen v. Novacek, Reno, for Respondents.
1. Venue.
When defendant failed to appeal from trial court's denial of her motion for change of venue, she waived
any right to complain about the improper place of trial, and therefore, trial court did not lose jurisdiction to
decide the case when defendant's motion for change of venue was denied.
2. Judgment.
Where defendant in action to recover for breach of lease agreement received due notice of trial date, but
defendant and her counsel failed to appear at trial, district court did not err when it proceeded to receive
evidence, dismiss her counterclaim and enter judgment on merits, and such judgment was not a default
within meaning of rule providing that if party against whom judgment by default is sought has appeared in
the action, he shall be served with written notice of application for judgment at least three days prior to
hearing on such application. NRCP 55, 55(b)(2).
OPINION
Per Curiam:
Respondents sought damages alleging appellant's breach of a lease agreement. Appellant
denied liability, asserted affirmative defenses and a counterclaim. Appellant also filed a
demand and motion for a change of venue from Washoe County to Carson City. The district
court denied the motion. Upon due notice to appellant, trial was set for December 16, 1976.
When the appointed time for trial arrived, neither appellant nor her counsel were present. The
trial court proceeded to hear respondents' evidence, granted judgment for respondents and
dismissed appellant's counterclaim. On appeal appellant contends that the judgment against
her is void because (1) the court was ousted of jurisdiction to decide the case when it
erroneously denied the motion for a change of venue and (2) she did not receive the three-day
notice required by NRCP 55(b)(2) before the judgment was entered. We disagree.
[Headnote 1]
1. In support of her contention that the district court lost jurisdiction to decide the case
when her motion for a change of venue was denied, appellant relies on Williams v. Keller, 6
Nev. 141 (1870). Even if we assume, arguendo, that the denial of the motion for a change of
venue was improper, Williams does not control this case because the district court's order
was appealable.1 When appellant failed to appeal, she waived any right to complain
about the improper place of trial.2
control this case because the district court's order was appealable.
1
When appellant failed to
appeal, she waived any right to complain about the improper place of trial.
2

[Headnote 2]
2. Appellant's contention that she was entitled to a three-day notice
3
before a judgment
could be entered because her answer and motion for a change of venue constituted an
appearance in the action is entirely without merit. Appellant received due notice that the
matter would be tried on December 16, 1976. When the appellant and her counsel failed to
appear at trial, the district court did not err when it proceeded to receive evidence, dismiss her
counterclaim and enter a judgment on the merits. The judgment was not a default within the
meaning of NRCP 55. The three-day notice requirement in NRCP 55(b)(2) is not applicable
to this case. Coulas v. Smith, 395 P.2d 527 (Ariz. 1964); Gillette v. Lanier, 406 P.2d 416
(Ariz.App. 1965).
Affirmed.
____________________

1
NRAP 3A(b) permits review of orders changing or refusing to change the place of trial. In 1870 such orders
were not appealable. See Stats. of Nev., 1869, ch. 112 330; State v. Shaw, 21 Nev. 222, 29 P. 321 (1892).

2
Ash Springs Dev. Corp. v. Crunk, 95 Nev. 73, 589 P.2d 1023 (1979), and Stocks v. Stocks, 64 Nev. 431,
183 P.2d 617 (1974), are inapposite because in each case the order was timely appealed.

3
NRCP 55(b)(2) provides in pertinent part:
If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by
representative, his representative) shall be served with written notice of the application for judgment at least 3
days prior to the hearing on such application.
____________
95 Nev. 71, 71 (1979) Norris v. Graville
LAURA NORRIS, Appellant, v. MICHAEL GRAVILLE
on Behalf of STEPHANIE GRAVILLE, Respondents.
No. 9736
January 31, 1979 589 P.2d 1024
Appeal from judgment granting writ of habeas corpus and awarding custody of minor
child to father. Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Natural father filed petition for writ of habeas corpus seeking custody of his daughter from
her maternal grandmother. The district court granted writ of habeas corpus and awarded
custody of minor child to father, and maternal grandmother appealed. The Supreme Court
held that trial court did not abuse its discretion in awarding custody of minor child to
child's natural father in preference to child's maternal grandmother.
abuse its discretion in awarding custody of minor child to child's natural father in preference
to child's maternal grandmother.
Affirmed.
Neil R. Slocum, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent.
1. Parent and Child.
Trial court did not abuse its discretion in awarding custody of child to child's natural father, in preference
to child's maternal grandmother.
It is policy of Nevada to award custody of child to a parent, in preference to a nonparent, unless parent is
found to be unfit.
3. Infants.
Determination of trial court in custody matters is presumed to be in best interest of child.
4. Infants.
When court has exercised its discretion in custody case after a full hearing and based upon substantial
evidence, its determination shall not be disturbed on appeal.
OPINION
Per Curiam:
Michael Graville filed a petition for a writ of habeas corpus in the court below, seeking
custody of Stephanie, his four year old daughter, from her maternal grandmother. In support
of the petition, Graville submitted a certified copy of an Illinois decree, issued May 5, 1976,
which awarded him custody of Stephanie. The Illinois order was predicated upon a showing
of changed circumstances that had occurred since the entry of that court's 1974 decree
awarding Stephanie's custody to the child's mother. These changed circumstances included
the father's remarriage, and the mother's abandonment of the child to the care of her maternal
grandmother, who is the appellant herein.
In the habeas proceedings below, the appellant requested that the court order an
investigation into the relative fitness of Graville and of appellant regarding the care and
custody of Stephanie. The court did so. After receiving the report and testimony of the
investigator, which recommended that the child be placed with Graville, and after hearing the
testimony of the child's natural mother and that of appellant, the court granted Graville's
petition and ordered appellant to return Stephanie to her father.
[Headnote 1]
Appellant's main contention on appeal is that the trial court abused its discretion in
awarding custody to the child's natural father, in preference to appellant, her maternal
grandmother. This contention is meritless. The court had before it the report of the child
welfare investigator, and the parties themselves. The investigator testified that Graville was a
fit custodian of the child. Neither appellant nor the child's mother, who had previously
voluntarily surrendered custody of the couple's older child to Graville, seriously challenged
this testimony.
[Headnotes 2-4]
It is the policy of this state to award custody to a parent, in preference to a nonparent,
unless the parent is found to be unfit. Cole v. Dawson, 89 Nev. 14, 504 P.2d 1314 (1973);
McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970). The determination of the trial court,
in such custody matters, is presumed to be in the best interest of the child. Nichols v. Nichols,
91 Nev. 479, 537 P.2d 1196 (1975); Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768
(1975); Howe v. Howe, 87 Nev. 595, 491 P.2d 38 (1971). When, as here, the court has
exercised its discretion, after a full hearing and based upon substantial evidence, its
determination shall not be disturbed on appeal. Culbertson v. Culbertson, supra; Timney v.
Timney, 76 Nev. 230, 351 P.2d 611 (1960).
1

The judgment of the trial court is accordingly affirmed.
____________________

1
Appellant's suggestion that the case is analogous to Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668(1967),
in which we reversed the granting of a habeas petition by a lower court, based solely upon a foreign decree, is
belied by the record, and therefore misplaced. Here, appellant was afforded a full opportunity for a hearing on
the merits of the habeas petition.
Under the circumstances, and in light of the harmony of the Nevada and Illinois orders, it is unnecessary to
discuss further the full faith and credit implications of the Illinois decree. Cf. Lyerla v. Ramsay, 82 Nev. 250,
415 P.2d 623 (1966).
____________
95 Nev. 73, 73 (1979) Ash Springs Dev. Corp. v. Crunk
ASH SPRINGS DEVELOPMENT CORPORATION, a Nevada Corporation, Appellant, v.
KAREN SUE CRUNK; MAURICE and CAROLYN CRUNK, Parents of KAREN SUE
CRUNK, Respondents.
No. 10634
January 31, 1979 589 P.2d 1023
Interlocutory appeal from order, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
In a personal injury action, the district court denied the corporate defendant's motion for
change of venue and defendant appealed. The Supreme Court, Manoukian, J., held that once
the defendant proved its corporate existence within Lincoln and not Clark County, it was
entitled to a change of venue to Lincoln County and was not required to establish that none of
the potential defendants was a resident of the county in which the action was brought.
Reversed.
Thorndal, Gentner, Backus, Lytes & Maupin, Las Vegas, for Appellant.
Manzonie & Massi, Las Vegas, for Respondents.
1. Corporations.
Once corporate defendant established that its corporate existence was in county other than that where the
action was brought, it was entitled to change of venue and was not required to establish that none of the
potential defendants was resident of county where action was brought. NRS 13.040.
2. Venue.
Defendant was entitled to change of venue to county of its residence, but, after that change, plaintiff
could then seek change of venue back to original forum on ground of convenience of witnesses and
promotion of justice. NRS 13.040, 13.050.
OPINION
Respondents commenced this personal injury action in Clark County on December 8,
1977. Appellant, Ash Springs, Joe Does I-X and Roe Corp. I-X, were the named defendants.
Service was effected solely upon Ash Springs, a Nevada corporation, in Lincoln County, its
principal and only place of business and the County in which the minor respondent allegedly
incurred her severe injuries.
Thereafter, appellant timely filed and served a demand and motion to change venue to
Lincoln County. The motion was based upon NRS 13.040 which in part provides that the
action shall be tried in the county in which the defendants, or any of them, may reside at the
commencement of the action. The trial court denied appellant's motion.
1
[Headnote 1]
[Headnote 1]
____________________

1
This is an appealable order. NRAP 3A(b)(2), see also NRS 2.090, 2.110.
[Headnote 1]
Contending the trial court erred in refusing to change venue, Ash Springs appealed. We
reverse and order that venue be changed to the proper county. NRS 2.110.
Respondents, in their opposition to the demand suggested that NRS 13.050(2)(c), which
permits the court to change the place of trial when the convenience of the witnesses and the
ends of justice would be promoted by the change, allows the continued prosecution of
respondent's case in Clark County because of Karen Sue Crunk's general physical and
ambulatory limitations. Because our rationale in considering NRS 13.040 is dispositive of
this appeal, we conclude the convenience of witness contention is premature. See Stocks v.
Stocks, 64 Nev. 431, 183 P.2d 617 (1947).
Respondents claim that NRS 13.040 is not limited to a consideration of appellant's
residence and that appellant has the burden of establishing that none of the potential
defendants is a resident of the county where the action is brought. We disagree and hold that
appellant has no such burden. To show that venue was improper, appellant was only required
to prove its corporate existence is in Lincoln and not Clark County. Williams v. Keller, 6
Nev. 141 (1870). Nowhere in the complaint is there any indication who or what the
fictitiously named defendants are or where they reside. Nearly every allegation is directed
solely at appellant Ash Springs.
[Headnote 2]
We do not here intend to intimate that respondents are foreclosed from pursuing the venue
question below on the grounds of convenience of witnesses and the promotion of justice.
Stocks v. Stocks, supra; compare Pearce v. Boberg, 87 Nev. 255, 485 P.2d 101 (1971).
Respondents are now free to proceed under NRS 13.050 in the Lincoln County Court. Stocks
v. Stocks, supra.
We therefore conclude that the trial court abused its discretion in the denial of appellant's
motion for change of venue. NRS 13.040.
The order is reversed.
Mowbray, C. J., and Thompson and Batjer, JJ., concur.
Gunderson, J., concurring:
I concur in the result.
____________
95 Nev. 76, 76 (1979) Sparkman v. State
ALFONZO SPARKMAN, Appellant, v. THE
No. 10236
February 7, 1979 590 P.2d 151
Appeal from judgment of conviction and sentence, Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Defendant was convicted before the district court of possession of heroin, use of heroin
and two counts of sale of heroin, and he appealed. The Supreme Court, Manoukian, J., held
that: (1) evidence supported conclusion that defendant's consent to search of home was
voluntary; (2) defendant's failure to timely object to admission of informant buyers'
preliminary hearing testimony at trial prohibited review of such use of that testimony; (3)
such use of the testimony did not violate defendant's right of confrontation, and (4) statutory
amendment, which had effect of reducing enhanced penalty from life imprisonment without
possibility of parole to life imprisonment with possibility of parole or a definite term of not
less than 5 nor more than 20 years, was applicable.
Affirmed in part, reversed in part with instructions.
Durney and Friedman, Reno, for Appellant.
Richard Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and John L. Conner, Deputy District Attorney, Washoe County, for Respondent.
1. Searches and Seizures.
Searches conducted without warrant issued on probable cause are unreasonable unless shown to fall
within a specific exception to warrant requirement of Fourth Amendment, such as the exception for
searches conducted incident to valid consent. U.S.C.A.Const. Amend. 4.
To be valid, consent to search must be voluntarily given, and not the product of deceit or coercion,
express or implied. U.S.C.A.Const. Amend. 4.
Burden is on State to prove voluntariness of consent to a search by clear and persuasive evidence.
4. Criminal Law.
Question whether consent to a search is voluntary is one of fact to be determined from totality of the
surrounding circumstances. U.S.C.A. Const. Amend. 4.
Mere fact that consent to search is given while defendant is in custody does not render the consent
involuntary. U.S.C.A.Const. Amend. 4.
Evidence supported finding that defendant's consent to search of home was voluntary and not coerced by
dramatic excitement of drawn guns. NRS 453.321, 453.336, 453.411; U.S.C.A.Const. Amend. 4.
7. Criminal Law.
Fact that defendant, who was convicted of drug offenses, failed to object at trial to State's use of
informant buyers' preliminary hearing testimony on ground that ii violated his Sixth Amendment
confrontation right prohibited review of such issue on appeal, absent any plain error. NRS 47.040,
178.602; U.S.C.A.Const. Amend. 6.
8. Criminal Law.
In proceeding in which defendant was convicted of possession of heroin, use of heroin and two counts of
sale of heroin, admission of preliminary hearing testimony given by two informant buyers, who were shown
to be unavailable to testify at trial and who were material to prosecution's case, did not violate defendant's
right of confrontation, in light of fact that defendant was represented by counsel at preliminary hearing at
which such witnesses were subjected to plenary cross-examination. NRS 51.055, 453.321, 453.336,
453.411; U.S.C.A.Const. Amend. 6.
9. Drugs and Narcotics.
Statutory amendment, which had effect of reducing enhanced penalty of life imprisonment without
possibility of parole to life imprisonment with possibility of parole or definite term of not less than 5 nor
more than 20 years, was applicable in case which involved possession of heroin, use of heroin and two
sales of heroin offenses committed before amendment was enacted but in which defendant was not
sentenced until after the amendment was enacted. NRS 453.321, 453.321(2)(a), (b), 453.336, 453.341.
10. Criminal Law.
Generally, proper penalty is that in effect at time of commission of the offense.
11. Statutes.
Laws imposing criminal sanctions must be given strict construction in favor of citizen and against the
government.
OPINION
A jury found appellant, Alfonzo Sparkman, guilty of two counts of sale, one count of
possession and one count of use of a controlled substance, heroin. NRS 453.321, 453.336,
453.411. For the sales, Sparkman was sentenced to concurrent terms of life imprisonment
without the possibility of parole, these terms reflecting the maximum penalties available at
the time the crimes were committed. For his use and possession, he was sentenced to two four
year terms, each to run concurrently with the other but consecutively to the life terms. He now
pursues this appeal.
Appellant was prosecuted by indictment charging drug related offenses occurring on three
separate dates. Only two dates, July 7, 1976, and September 12, 1976, are relevant to this
appeal.
dates, July 7, 1976, and September 12, 1976, are relevant to this appeal. On July 7, appellant
allegedly sold six balloons containing heroin to a police informant. The sale was made in
Sparkman's home while the police waited outside. The informant had been fitted with a body
transmitter which enabled the officers to monitor the transaction. The informant exited
appellant's house with six balloons of heroin and gave a prearranged signal. The police
converged on the area and feigned an arrest of the informant. Two uniformed officers, armed
with shotguns, entered the home through the open door. Appellant then ran to the back of the
house and threw money and some balloons containing heroin out the bedroom window. The
wind blew some of the money to the area where the informant was being held and the rest
was subsequently found in a gutter two or three houses down the street.
When the two uniformed officers entered the dwelling, one subjected appellant to a pat
down search for weapons in the living room while the other checked the remaining rooms to
determine whether other persons were present. A third policeman, Officer Meyers, entered
the house, placed appellant under arrest and advised him of the charges and his rights. The
officers then solicited appellant's consent to search the house. Initially, appellant refused, and
Officer Meyers telephoned the district attorney's office. However, before Meyers got through
to the district attorney, appellant purportedly changed his mind and agreed to the search.
The circumstances surrounding the consent were the subject of conflicting testimony.
Appellant claims his consent was procured through compulsion, the result of the presence of
police armed with shotguns. Disputing appellant's claim, the police testified the shotguns
were returned to the patrol car once it was determined that Sparkman was alone and unarmed.
Appellant ultimately signed a consent to search form. During the search, the officers
recovered various items of contraband and evidence, including a quantity of heroin, narcotics
paraphernalia and a container of lactose. Colored photographs were taken which were
eventually admitted into evidence. It is noteworthy that a number of the pictures depict
Sparkman pointing to the items of contraband and other evidence.
Notwithstanding their diligent efforts, police detectives were unable to locate the
informant prior to trial. The judge declared the witness unavailable and respondent was
permitted to read to the jury portions of his preliminary examination testimony, to which
appellant made no objection.
The other sales conviction also involved a controlled purchase by a police informant,
transacted in Sparkman's home on September 12, 1976.
on September 12, 1976. An officer conducting an on the scene surveillance at the time of the
sale testified that he observed Sparkman come to the door when the informant entered.
Although this informant took the stand at trial, he limited his testimony to his past criminal
record and the fact that he was currently serving a prison term, refusing to give any further
testimony claiming fear for his personal safety. Recognizing the futility of contempt threats,
the trial judge declared the witness unavailable and the state was allowed to read the
informant's prior recorded testimony into the record. Sparkman again offered no objection.
Seeking reversal, Sparkman contends that (1) his consent to the warrantless search on July
7, 1976 was involuntarily given; (2) the use of the informants' preliminary hearing testimony
violated his right to confront the witnesses, and (3) he was improperly sentenced. Although
we disagree with appellant's first and second claims, and accordingly affirm the convictions,
we find merit in his third contention, and are constrained to reverse the life without
possibility of parole sentences. We turn to consider the issues.
[Headnote 1]
1. The warrantless search. The evidence appellant seeks to suppress is the product of the
warrantless search of his home. Searches conducted without a warrant issued upon probable
cause are unreasonable unless shown to fall within a specific exception to the warrant
requirement of the Fourth Amendment. Katz v. United States, 389 U.S. 347 (1967). One
exception to the warrant requirement is a search conducted incident to a valid consent.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
[Headnotes 2-4]
To be valid, the consent to search must be voluntarily given, and not the product of deceit
or coercion, express or implied. Schneckloth v. Bustamonte, supra; United States v.
Thompson, 356 F.2d 216 (2d Cir. 1965), cert. denied, 384 U.S. 964; see also Barnato v. State,
88 Nev. 508, 501 P.2d 643 (1972). The burden is on the state to prove the voluntariness of
the consent by clear and persuasive evidence; the question being essentially one of fact
determined from the totality of the surrounding circumstances. Surianello v. State, 92 Nev.
492, 553 P.2d 942 (1976); Lamb v. State, 89 Nev. 570, 516 P.2d 1405 (1973); McIntosh v.
State, 86 Nev. 133, 466 P.2d 656 (1970).
Our examination of the circumstances surrounding appellant's consent to the search
reveals that the police had probable cause to believe a felony had been committed.
cause to believe a felony had been committed. Upon entering the residence, the officers did
not assert a right to conduct a warrantless search, indeed, they sought to obtain a warrant.
Compare Lamb v. State, supra. Appellant is no stranger to the criminal process and knew he
had the right to withhold consent. See Sparkman v. State, 88 Nev. 680, 504 P.2d 8 (1972).
Furthermore, he was present at all times while the search was being made, the atmosphere
was one of cooperation, and appellant himself testified that neither force nor threats of force
were exerted by any of the officers against him. Compare Surianello v. State, supra. The
arrest, accompanied by the Miranda warning,
1
together with the search, although somewhat
prolonged, were conducted pursuant to reasonable police practices. The totality of the
circumstances overwhelmingly belie appellant's contention that his consent was involuntary.
[Headnotes 5, 6]
Moreover, appellant's signature on the consent to search form which states expressly that
the signer has a right to withhold consent, is persuasive evidence of the voluntariness of his
consent. The mere fact that the consent was given while appellant was in custody does not
render it involuntary. McIntosh v. State, supra; State v. Plas, 80 Nev. 251, 391 P.2d 867
(1964). Here, no promises or threats were made. Lightford v. State, 90 Nev. 136, 520 P.2d
955 (1974). While the officers may have been armed with shotguns, the trial judge apparently
disbelieved appellant's testimony that the guns were leveled at him and that he felt
intimidated by the presence of the police with firearms. Two officers testified that the
cumbersome weapons were returned to the patrol car once Sparkman was apprehended. In
State v. Patterson, 571 P.2d 745 (Haw. 1977), it was held that the arrival of police officers at
the home of a suspect with weapons drawn and pointed at him did not negate the possibility
of a voluntary consent to a subsequent search. Id. at 750-751. Although the display was a
factor to be considered militating against consent, it was not conclusive. Accordingly, the
court affirmed the lower court's determination that the entry was legal and that appellant's
consent to the subsequent search was not coerced. Id. See also United States v. Taibe, 446
F.Supp. 1142 (E.D.N.Y. 1978); cf., Weed v. United States, 340 F.2d 827 (10th Cir. 1965),
where consent given under the dramatic excitement of drawn guns was held involuntary.
Here, there was no dramatic excitement or other sufficiently aggravating circumstances that
would nullify appellant's consent.
It was permissible for the trial court to conclude that the voluntariness of appellant's
consent was proven by clear and persuasive evidence and justified admission of the
complained of evidence.
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
voluntariness of appellant's consent was proven by clear and persuasive evidence and justified
admission of the complained of evidence. Surianello v. State, supra; see also Bumper v.
North Carolina, 391 U.S. 543 (1968). The United States Supreme Court in Stone v. Powell,
428 U.S. 465 (1976), held that the basic justification for the exclusionary rule is the
deterrence of police conduct that violates Fourth Amendment rights. We find no Fourth
Amendment violation.
2. The use of the preliminary hearing transcript.
[Headnote 7]
Appellant contends for the first time on appeal that the state's use of the informant buyers'
preliminary hearing testimony violated his Sixth Amendment confrontation right. Upon this
basis, we are requested to void his convictions. However, in the absence of plain error,
2
we
hold that appellant's failure to timely object to the use of the preliminary hearing transcripts
prohibits review. Drummond v. State, 86 Nev. 4, 8, fn. 2, 462 P.2d 1012 (1970).
[Headnote 8]
Assuming, arguendo, that appellate review was not foreclosed, here there was a specific
showing that both informant buyers were unavailable to testify at the trial. NRS 51.055;
Barber v. Page, 390 U.S. 719 (1968). Moreover, while we acknowledge that both witnesses
were material to the prosecution's case, appellant was represented by counsel at the
preliminary hearing where the witnesses were subjected to plenary cross-examination. Under
such circumstances, the use of the preliminary hearing transcripts did not violate appellant's
right of confrontation. California v. Green, 399 U.S. 149 (1970).
3. The propriety or the two life sentences.
[Headnote 9]
Finally, appellant challenges the imposed two life sentences.
____________________

2
NRS 47.040 provides in part:
1. Except as otherwise provided in subsection 2, error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected, and,
(a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record,
stating the specific ground of objection.
. . . .
2. This section does not preclude taking notice of plain errors affecting substantial rights although they were
not brought to the attention of the judge. [Emphasis added.]
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.
The sentences of life without possibility of parole reflect the enhanced penalty provisions of
NRS 453.321(2)(a) as they existed prior to July, 1977. After commission of the sale offenses,
but prior to sentencing, the enhanced penalty provisions were amended to provide for life,
impliedly with the possibility of parole or a definite term of not less than five nor more than
twenty years, together with a discretionary fine not to exceed $10,000. See NRS
453.321(2)(b).
[Headnote 10]
Sparkman contends the lower court erred in failing to apply the ameliorative penalty
provisions in effect at the time he was sentenced. We agree. Although the general rule is that
the proper penalty is that in effect at the time of the commission of the offense (Tellis v.
State, 84 Nev. 587, 445 P.2d 938 (1968)), NRS 453.341, a statute relating solely to drug
convictions, provides:
Prosecution for any violation of law occurring prior to January 1, 1972, is not affected
or abated by the provisions of NRS 453.011 to 453.551, inclusive. If the offense being
prosecuted is similar to one set out in NRS 453.321 to 453.551, inclusive, then the
penalties under NRS 453.321 to 453.551, inclusive, apply if they are less than those
under prior law. [Emphasis added.]
[Headnote 11]
Laws imposing criminal sanctions require strict construction in favor of the citizen and
against the government. United States v. Brown, 333 U.S. 18 (1947). Here, NRS 453.341 is
explicit, and the statute, relating solely to drug related offenses, controls to the exclusion of
the general rule of Tellis v. State, supra.
Accordingly, the convictions are affirmed, but the two life sentences without the
possibility of parole are reversed with instructions to the trial court to resentence in
accordance with applicable law.
Gunderson, J., concurring in the result:
Without endorsing the entirety of the above opinion, I agree the evidence does not compel
a finding that appellant's consent to search was involuntary. I can agree, also, that in the
absence of any objection below, this court may decline to review appellant's complaints
concerning use of preliminary hearing transcripts.
____________
95 Nev. 83, 83 (1979) Kirkland v. State
JOHN LEE KIRKLAND, Appellant v. The
No. 10242
February 7, 1979 590 P.2d 156
Appeal from judgments and sentences entered upon jury verdicts of guilty of robbery and
burglary; Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court, Thompson, J., held that: (1) inquiry of juror as to what a question by
defense counsel to a witness had to do with robbery did not amount to a prohibited
conversation with fellow jurors on a subject connected with trial nor to a prohibited
commentary on trial heard by other jurors, and (2) statement of prosecutor during closing
arguments that defense counsel had no facts to support his theory that defendant was innocent
did not amount to a prohibited comment that State's evidence was uncontradicted.
Affirmed.
Morgan D. Harris, Public Defender, and Robert B. Amundson, Deputy Public Defender,
Robert J. Miller, District Attorney, H. Leon Simon, Chief Appellate Deputy District
Attorney, and Roberta J. O'Neale, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Inquiry of juror as to what a question by defense counsel to a witness had to do with robbery did not
amount to a prohibited conversation with fellow jurors on a subject connected with trial nor to a
prohibited commentary on trial heard by other jurors. NRS 175.401.
2. Criminal Law.
Prosecutorial reference to uncontradicted evidence or testimony is permissible and does not offend
constitutional proscriptions.
3. Criminal Law.
Statement of prosecutor during closing arguments that defense counsel had no facts to support his theory
that defendant was innocent did not amount to a prohibited comment that State's evidence was
uncontradicted. SCR 194(8).
4. Criminal Law.
Multiple punishment is not prohibited when a person in commission of a burglary commits another crime.
NRS 205.070.
OPINION
John Lee Kirkland was convicted of two robberies and two burglaries.
burglaries. He contends that his trial was prejudiced by reason of a juror's comment, and by
certain remarks of the prosecutor in closing argument. Moreover, he asserts that the sentences
imposed are prohibited. We are asked to annul the convictions and order a new trial, or, at the
very least, to set aside the sentences for burglary. We find no error, and affirm.
The crimes occurred at the Hilton Hotel, Las Vegas. A hotel guest, Lawrence Duncan, was
in his room, number 2674, with his friend, James Brovold. During the evening, Kirkland and,
his companion, Anthony Curtis Jones, a codefendant at trial, pushed the hotel room door open
and entered without permission, one of them stating, we are going to rob you. Kirkland
kicked Duncan in the head, knocking him unconscious and bleeding to the floor. Duncan and
Brovold then were bound and robbed.
In response to Kirkland's question as to the location of his money, Brovold replied that it
was in his room. Kirkland took the key to Brovold's room, number 2720, and departed. Jones
left shortly thereafter. Duncan and Brovold freed themselves and notified hotel security.
Kirkland was apprehended as he left Brovold's room which had been ransacked. Jones was
seized in the hotel parking lot. We turn briefly to discuss the assigned errors.
1. During cross-examination, a security guard of the Hilton Hotel was asked by defense
counsel whether he applied pressure to Kirkland's arm to gain information, whereupon a juror
inquired, What has this to do with a robbery? Defense counsel moved for a mistrial. He
contends that the juror's question was a conversation with fellow-jurors on a subject
connected with the trial, a commentary on the trial heard by the other jurors; and, that the
comment indicated a prematurely formed opinion as to Kirkland's guilt; all in violation of
NRS 175.401.
1

(Headnote 1]
The juror's inquiry obviously is not prohibited by the mentioned statute. It did not amount
to a conversation within the contemplation of section 1.
____________________

1
NRS 175.401. Jury to be admonished at each adjournment. At each adjournment of the court, whether the
jurors are permitted to separate or depart for home overnight, or are kept in charge of officers, they shall be
admonished by the court that it is their duty not to:
1. Converse among themselves or with anyone else on any subject connected with the trial;
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; or
3. If they have not been charged, form or express any opinion on any subject connected with the trial until
the cause is finally submitted to them.
the contemplation of section 1. Neither was it a commentary by a medium of information
within the sweep of section 2. Contrary to the appellant's insistence, the juror's inquiry does
not indicate a premature opinion of guilt. Indeed, when questioned by the judge, the juror
stated that he had not formed an opinion as to guilt or innocence. It is apparent that he simply
wanted to know the relevancy of the question put to the witness by defense counsel.
2. During summation, defense counsel said: I have no problems with this case. I think
Mr. Kirkland is innocent. I don't believe the State has proved its burden beyond a reasonable
doubt.
2

During rebuttal argument, and in response, the prosecutor stated that defense counsel
does not have any facts to support this theory.
[Headnotes 2, 3]
It is asserted that the prosecutor's responsive argument was a comment upon the
defendant's failure to testify and constitutionally impermissible. Griffin v. California, 380 U.S
609 (1965). A prosecutorial reference to uncontradicted evidence or testimony is permissible
and does not offend constitutional proscriptions. Septer v. Warden, 91 Nev. 84, 530 P.2d
1390 (1975); Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965); McNeeley v. State, 81
Nev. 663, 409 P.2d 135 (1965). In our view, a statement that defense counsel has no facts to
support his theory that the accused is innocent falls into the same category with a comment
that the State's evidence is uncontradicted.
3. Relying upon People v. Diaz, 427 P.2d 505 (Cal. 1967), Kirkland seeks to annul his
sentences for burglary as multiple punishment based upon a single transaction. Cal. Pen.
Code 654, in most instances, prohibits such punishment. Cf. People v. Miller, 558 P.2d 552
(Cal. 1977).
[Headnote 4]
In Nevada, however, statute directs multiple punishment where a person in the
commission of a burglary, commits another crime.
3
Flynn v. State, 93 Nev. 247, 562 P.2d
1135 {1977).
____________________

2
Nevada Supreme Court Rule 194(8). A lawyer should not assert in argument his personal belief in the
integrity of his client or of his witnesses or in the justice of his cause which is unrelated to a fair analysis of the
evidence touching these matters.
Defense counsel's expressed belief that his client was innocent violated this rule.

3
NRS 205.070: Every person who, in the commission of a burglary, shall commit any other crime, shall be
punished therefor as well as for the burglary, and may be prosecuted for each crime separately.
(1977). Since our statutory scheme is different than California's, case authority from that
jurisdiction is not persuasive. Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978).
Judgments and sentences are affirmed.
____________
95 Nev. 86, 86 (1979) In re Claerhout
In re Petition of WILLIAM A. CLAERHOUT,
Petitioner.
No. 11301
In re Petition of RICHARD J. TETREAULT,
Petitioner.
No. 11302
In re Petition of EARL T. AYERS,
Petitioner.
No. 11303
February 7, 1979 590 P.2d 620
Petitions for review of bar examinations.
The Supreme Court held that where, contrary to Supreme Court rule that essay and
multistate portions of the examination were to receive equal weight, percentage grades were
unevenly assigned to raw multistate scores and those with higher raw scores were assigned a
smaller percentage weight for each correct question, with result that certain applicants having
high raw multistate scores and low essay scores failed while those having low raw multistate
scores and relatively high essay grades passed, the examinations would be regraded with the
same percentage value assigned to each correct answer on the multistate portion.
Petitions granted.
Morse-Foley, Las Vegas, for Petitioners.
Samuel S. Lionel, Las Vegas, and David Hagen, Reno, for Respondents, the State Bar of
Nevada and its Board of Bar Examiners.
Attorney and Client.
Where, contrary to Supreme Court rule that essay and multistate portions of bar examination received
equal weight, percentage grades were unevenly assigned to raw multistate scores and those with higher raw
scores were assigned a smaller percentage weight for each correct question, with result that certain
applicants having high raw multistate scores and low essay scores failed while those having low raw
multistate scores and relatively high essay grades passed, the examinations would be regarded with the
same percentage value assigned to each correct answer on the multistate portion. SCR 65(1).
OPINION
Per Curiam:
By SCR 65(1), the board of bar examiners is required to administer to all applicants a
written bar examination consisting of two parts:
One part shall be the Multistate Bar Examination prepared by the National Conference
of Bar Examiners and the other part shall be a one-day essay examination. Each part
shall be given on successive days. The same subjects may be covered on both parts.
Each part shall be entitled to equal weight in the grading of the examination.
(Emphasis added.)
The board of bar examiners grades each question on the essay half of the examination with a
score ranging up to 100. The average of each applicant's scores on the essay questions
constitutes his or her grade on the essay half of the examination. No issue is raised here
concerning the propriety of the essay grades. In these cases, the problem relates solely to the
manner utilized to assign percentage values to the various applicants' raw multistate scores, in
order to equate that half of the examination to the essay half.
The facts are not in dispute. Counsel representing the State Bar of Nevada and the board of
bar examiners acknowledges that, for the multistate half of the examination, the ostensible
percentage scores assigned to the various applicants represented neither a percentage of the
total possible raw score, nor a percentage of the highest raw score actually achieved, nor a
percentage of anything else. The multistate scores were not equated or scaled to the essay
scores in any even manner. Rather, different applicants received varying percentage-value
scores for each multistate question correctly answered. Those with the higher raw scores were
assigned a smaller percentage value for each correct question, as compared with those having
lower raw scores. Thus, because percentage grades were unevenly assigned to the raw
multistate scores, certain applicants, whose high raw multistate scores were combined
with relatively low essay scores, failed, while applicants achieving low raw multistate
scores, along with relatively high essay grades, passed.
unevenly assigned to the raw multistate scores, certain applicants, whose high raw multistate
scores were combined with relatively low essay scores, failed, while applicants achieving low
raw multistate scores, along with relatively high essay grades, passed. Therefore, it cannot be
said that the examination's two halves received equal weight in all cases. Relative weight
varied substantially, with adverse impact upon those whose best area of performance had
been the multistate half. All this, in effect, stands admitted by respondents' counsel.
Petitioners' counsel directs attention to the fact that Applicant No. 135, who received a raw
multistate score of 120, passed the examination, while 23 other applicants with an equal or
higher multistate score failed.
1
Eighteen of those twenty-three would have passed, if the
board of bar examiners had accorded equal weight to each correct multistate answer, in
converting raw multistate scores to a percentage grade. In particular, it appears that Applicant
No. 135, with the lowest raw multistate score achieved by any passing applicant, was
accorded a percentage score of .6145 for each correct multistate answer. Reviewing the
grades of all applicants with a raw multistate score of 120 or more, and according the same
percentage value to each of their correct answers, we recalculate such grades as follows:
.6145
Applicant MS raw factor Adjusted
number Essay score score grade
5 71.55 121 74.35 72.9
37 68.66 139 85.42 77.0
40 72.66 137 84.19 78.4
44 74.33 130 79.89 77.1
64 73.77 122 74.97 74.3
66 73.88 124 76.19 75.0
68 74.55 126 77.43 75.9
72 72.99 125 76.81 75.0
73 73.88 129 79.27 76.6
79 68.77 127 78.04 73.4
81 72.10 129 79.27 75.6
84 73.55 136 83.57 78.5
96 73.77 128 78.66 76.2
100 70.22 133 81.73 75.9
106 72.77 143 87.87 80.3
.6145
____________________

1
Petitioners are in this category, and, on the basis of issues they have raised, we here also review and
recalculate the final grades of all those similarly situated. The grades of applicants who received a raw multistate
score of less than 120 could not be affected, and therefore need not be recalculated.
.6145
Applicant MS raw factor Adjusted
number Essay score score grade
108 73.88 123 75.58 74.7
128 73.88 126 77.43 75.6
130 73.66 128 78.66 76.1
137 73.88 132 81.11 77.4
168 74.99 124 76.20 75.6
169 73.66 142 87.26 80.4
170 73.77 121 74.35 74.1
181 72.88 134 82.34 77.6
Thus, it appears to us that applicants 37, 40, 44, 66, 68, 72, 73, 81, 84, 96, 100, 106, 128,
130, 137, 168, 169 and 181 should be deemed to have passed the 1978 bar examination,
according the same percentage weight to each of their correct multistate answers as the board
of bar examiners allowed to each of Applicant No. 135's correct answers.
Accordingly, upon expiration of the time to petition for rehearing, an appropriate order
will enter, admitting such applicants to the practice of law if their qualifications be otherwise
established.
2

____________________

2
The Governor designated the Honorable Michael Fondi, a Judge of the First Judicial District, to sit in the
place of Chief Justice John C. Mowbray, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 89, 89 (1979) Seim v. State
ALLAN CONRAD SEIM, Appellant, v. THE
No. 9927
ALLAN CONRAD SEIM, Appellant, v. THE
No. 10146
February 7, 1979 590 P.2d 1152
Consolidated appeals from judgment of conviction and revocation of probation, Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Defendant was convicted before the district court of possession of stolen property, and his
probation was revoked, and he appealed. The Supreme Court, Manoukian, J., held that: (1)
where defendant's probation officer received information that two stolen automobiles were
being stored in warehouse rented to defendant under fictitious name, defendant's prior
conviction was based upon theft of same model automobile, and defendant had agreed,
as a special condition of probation, to submit his person, vehicle and residence to a
warrantless search and seizure by any peace officer, the warrantless search of warehouse
was justified; search of warehouse was not beyond scope of condition of probation
authorizing warrantless searches, and defendant did not have reasonable expectation of
privacy with respect to warehouse; {2) trial court did not abuse its discretion in allowing
State to introduce, during its rebuttal, evidence of defendant's prior conviction arising out
of his use and possession of a stolen automobile of the same model as the automobile
involved in the instant prosecution; such evidence was properly admitted to prove motive
and common scheme or plan, and {3) fact that defendant's prosecution for possession of
stolen property was initiated by indictment rather than by information did not violate
defendant's right to due process or equal protection.
95 Nev. 89, 90 (1979) Seim v. State
to defendant under fictitious name, defendant's prior conviction was based upon theft of same
model automobile, and defendant had agreed, as a special condition of probation, to submit
his person, vehicle and residence to a warrantless search and seizure by any peace officer, the
warrantless search of warehouse was justified; search of warehouse was not beyond scope of
condition of probation authorizing warrantless searches, and defendant did not have
reasonable expectation of privacy with respect to warehouse; (2) trial court did not abuse its
discretion in allowing State to introduce, during its rebuttal, evidence of defendant's prior
conviction arising out of his use and possession of a stolen automobile of the same model as
the automobile involved in the instant prosecution; such evidence was properly admitted to
prove motive and common scheme or plan, and (3) fact that defendant's prosecution for
possession of stolen property was initiated by indictment rather than by information did not
violate defendant's right to due process or equal protection.
Affirmed.
[Rehearing denied April 18, 1979]
Newell B. Knight, Sparks, and Edwin S. Saul, Van Nuys, California, for Appellant.
Richard Bryan, Attorney General, Carson City, Calvin R. X. Dunlap, District Attorney,
1. Criminal Law.
Probation is an integral part of the penal system, calculated to provide period of grace in order to assist in
the rehabilitation of an eligible offender.
2. Criminal Law.
The broad objective of probation is rehabilitation with incidental public safety, and conditions of
probation should further provide this objective.
Neither probationers nor parolees can assert, save in a limited number of circumstances, Fourth
Amendment guarantees against correctional authorities who supervise them. U.S.C.A.Const. Amend. 4.
4. Criminal Law; Pardon and Parole.
To justify a warrantless search by a parole or probation officer, the officer must have reasonable grounds
to believe that a violation of parole or probation has occurred. U.S.C.A.Const. Amend. 4.
5. Criminal Law.
Where defendant's probation officer received information that two stolen automobiles were being stored
in warehouse rented to defendant under fictitious name, defendant's prior conviction was based upon a theft
of same model automobile, and defendant had agreed, as a special condition of
probation, to submit his person, vehicle and residence to a warrantless search and
seizure by any peace officer, the warrantless search of warehouse was justified;
search of warehouse was not beyond scope of condition of probation authorizing
warrantless searches, and defendant did not have reasonable expectation of privacy
with respect to warehouse.
95 Nev. 89, 91 (1979) Seim v. State
of same model automobile, and defendant had agreed, as a special condition of probation, to submit his
person, vehicle and residence to a warrantless search and seizure by any peace officer, the warrantless
search of warehouse was justified; search of warehouse was not beyond scope of condition of probation
authorizing warrantless searches, and defendant did not have reasonable expectation of privacy with
respect to warehouse. U.S.C.A.Const. Amend. 4.
6. Criminal Law.
The admission of evidence after district judge has balanced its probative value against its potential for
undue prejudice, a judgment committed to his sound discretion, will not be disturbed in the absence of an
abuse. NRS 48.035, subd. 1.
7. Criminal Law.
In prosecution for possession of stolen property, trial court did not abuse its discretion in allowing State
to introduce, during its rebuttal, evidence of defendant's prior conviction arising out of his use and
possession of a stolen automobile of the same model as the automobile involved in the instant prosecution;
such evidence was properly admitted to prove motive and common scheme or plan. NRS 48.045, subd.
2.
The fact that defendant's prosecution for possession of stolen property was initiated by indictment rather
than by information did not violate defendant's right to due process or equal protection. U.S.C.A. Const.
Amend. 5; Const. art. 1, 8; NRS 34.500, subd. 7, 172.065, 172.155, 172.225, 172.235, 172.245,
174.125.
OPINION
These are consolidated appeals from a conviction of possession of stolen property, a
felony, NRS 205.275, and from a revocation of probation predicated on a prior felony
conviction.
Appellant's prior conviction was entered on a plea of guilty to the felony charge of
attempted possession of a stolen vehicle, to-wit: a 1974 Porsche. Judgment was entered May
14, 1976, and appellant was sentenced to a term of three years, suspended, and placed on
probation. As a special condition of probation, the court ordered that [Seim] will submit his
person, vehicle and residence to a search and seizure without a warrant by any parole,
probation or peace officer to determine the presence of stolen property.
Subsequently, on October 19, 1976, an informant contacted appellant's probation officer
with information that there were two new 1975 Porsches stored in a Reno warehouse leased
by appellant. Dennis Balaam, a detective with the Washoe County Sheriff's Office, was
contacted. Balaam went to the Mini-Maxi Storage yard where he spoke with Sam
Rosenberger, the manager. Rosenberger informed Balaam that the unit in question, No.
95 Nev. 89, 92 (1979) Seim v. State
No. 12, was rented to one Rodney Flournoy, whose rental payments were in arrears. In fact, it
was appellant, posing as Flournoy, who had leased the storage unit. The real Flournoy was a
customer of appellant's antique automobile restoration business and had never authorized
appellant to use his name for any purpose.
Suspecting a probation violation, Balaam returned to Mini-Maxi Storage that afternoon,
accompanied by a Washoe County probation officer. Mr. Rosenberger removed the lock from
the storage unit and allowed the officers to enter. Inside they observed the two automobiles,
the subject of Seim's subsequent conviction.
A warrant issued, and appellant was arrested by the local police in Nevada City,
California. Also present at the time of the arrest were Balaam and appellant's probation
officer. Appellant was advised of his rights, and during a search incidental to the arrest, a key
to the padlock on the storage unit was found and taken from his person.
Appellant made several pretrial motions and renewed them at trial: to suppress the key to
the storage unit, together with the contents discovered therein; to restrain respondent from
impeaching appellant by the use of a prior felony conviction; to exclude evidence of his prior
conduct (embodied in the conviction), and to dismiss the indictment or, alternatively, to
convene a postindictment preliminary hearing. Following hearings on the motions, the state
agreed to refrain from the use of appellant's prior criminal conduct in its case in chief; the
other motions were denied.
At trial, appellant denied having any knowledge concerning the stolen vehicles or where
they were found. While he admitted that he had used Flournoy's name to rent the storage unit,
he claimed that he took most of his property, including the contents of the unit, with him
when he moved to Nevada City in June, 1976. He testified that several of his former
employees had access to the warehouse.
The jury returned a verdict of guilty. Appellant was sentenced to a consecutive three-year
term, and probation relating to his prior conviction was subsequently revoked. From this
conviction and revocation of probation Seim perfected these appeals.
We recognize three issues as meriting discussion. They are: (1) Whether the trial court
erred in denying appellant's motion to suppress the evidence discovered as a result of the
warrantless search of the storage unit? (2) Whether the admission of evidence of appellant's
prior criminal conduct was reversible error? (3) Whether the Nevada grand jury system
violates the right of an accused to due process and equal protection?
95 Nev. 89, 93 (1979) Seim v. State
right of an accused to due process and equal protection? We answer each question in the
negative.
1. The warrantless search. Appellant contends the trial court erred in denying his motion
to suppress the evidence discovered as a result of the search of the storage unit. Essentially,
he maintains that there was no probable cause to justify the warrantless search and, absent
consent, his Fourth Amendment rights were violated. The state argues that the requirement of
a warrant was dispensed with in view of the special condition of appellant's probation.
Himmage v. State, 88 Nev. 296, 496 P.2d 763 (1972); see Annot., 32 ALR Fed. 155 (1977).
Before reaching the issue of whether appellant's Fourth Amendment rights have been
violated, it is important to remember the function of probation in our correctional process.
[Headnotes 1, 2]
Probation is an integral part of the penal system, calculated to provide a period of grace in
order to assist in the rehabilitation of an eligible offender; to take advantage of an
opportunity for reformation which actual service of the suspended sentence might make less
probable. [Citations omitted.] Burns v. United States, 287 U.S. 216, 220 (1932). It is clear
then that the broad objective of probation is rehabilitation with incidental public safety, and
that the conditions of probation should further provide this objective. See People v. Mason,
488 P.2d 630 (Cal. 1971), cert. denied, 405 U.S. 1016; Logan v. People, 332 P.2d 897 (Colo.
1958). Nevada's legislation relating to probation confers an authority commensurate with its
objectives
1
and empowers our parole and probation officers, inter alia, to keep informed
concerning the conduct and condition of all persons under their supervision and use all
suitable methods to aid and encourage them . . . to bring about improvement in their conduct
and conditions. NRS 213.1096.
[Headnote 3]
In Nevada, as elsewhere, probation officers have long enjoyed extensive powers to search
probationers under their supervision.
____________________

1
In issuing the order granting probation, the court may fix the terms and conditions thereof, including a
requirement for restitution as provided in NRS 176.189, except that the court shall not suspend the
execution of a sentence of imprisonment after the defendant has begun to serve it.
NRS 176.205 further provides:
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.
95 Nev. 89, 94 (1979) Seim v. State
supervision. See Himmage v. State, supra. People v. Hernandez, 40 Cal. Rptr. 100 (Cal.App.
1964), sets forth the traditional view of a parolee's Fourth Amendment rights, and we
perceive no material distinctions between parolees and probationers. Neither probationers nor
parolees can assert, save in a limited number of circumstances (see, for example, United
States v. Follette, 282 F.Supp. 10 (S.D.N.Y. 1968), aff'd, United States ex rel. Randazzo v.
Follette, 418 F.2d 1319 (2d Cir. 1969), cert. denied, 402 U.S. 984, search by parole officer
held invalid where made for the purpose of harassing or oppressing the parolee; United States
v. Hallman, 365 F.2d 289 (3rd Cir. 1966), police, as distinguished from parole officers, could
not initiate search of parolee where they could not search ordinary citizen; Annot., 32 ALR
Fed., supra, at 165), Fourth Amendment guarantees against correctional authorities who
supervise them. Compare Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. denied, 423
U.S. 897.
Appellant does not challenge the validity of the condition of his probation. Cf. United
States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); State v. Page, 564 P.2d 82
(Ariz.App. 1976). Indeed, he recognizes that a probationer has no reasonable expectation of
traditional Fourth Amendment protection. Himmage v. State, supra; People v. Mason, supra;
Annot., 32 ALR Fed., supra, at 159. Instead, he challenges the reasonableness of the search
as being conducted outside the presence of the defendant or his probation officer, without
probable cause, and beyond the scope of the probation order. We disagree.
[Headnote 4]
To justify a warrantless search by a parole or probation officer, the officer must have
reasonable grounds to believe that a violation of the parole or probation has occurred. People
v. Anderson, 536 P.2d 302 (Colo. 1975); Annot., 32 ALR Fed., supra, at 160. Thus, it has
been said that even a hunch, if reasonable and held in good faith, would justify a search of a
parolee's home. Latta v. Fitzharris, supra; cf. United States v. Smith, 395 F.Supp. 1155
(W.D.N.Y. 1975).
[Headnote 5]
Here, information that two stolen Porsches were being stored in a warehouse rented to
appellant under a fictitious name was communicated to appellant's probation officer. This,
coupled with the fact that his prior conviction was based upon a theft of the same model car,
surely supplied reasonable cause to believe that a search was necessary to detect a possible
probation violation. It has been held that such information is per se sufficient, dehors a
probation context, to sustain a finding that a search and seizure were made with probable
cause.
95 Nev. 89, 95 (1979) Seim v. State
se sufficient, dehors a probation context, to sustain a finding that a search and seizure were
made with probable cause. See People v. Prewitt, 341 P.2d 1 (Cal. 1959).
The fact that neither appellant nor his probation officer was present at the time of the
search of the storage unit is not decisive.
2
We note that a probation officer, familiar with
appellant, was present.
The condition of appellant's probation read that he shall submit to a search of his person,
vehicle or residence without a warrant, by any parole, probation or peace officer to detect
the presence of stolen property. In Latta v. Fitzharris, supra, at 250, the court stated, the
parole officer ought to know more about the parolee than anyone else but his family. He is
therefore in a better position than anyone else to decide whether a search is necessary. Here,
the search condition contemplated the prospective involvement of any peace officer, there
was probable cause to search, and appellant's probation officer had been consulted respecting
appellant's alleged violative conduct prior to the search. Although the search could have been
conducted by any peace officer, a probation officer did participate and it is clear that the
police did not initiate, but rather joined to expedite the search. See United States v. Hallman,
supra. There often exists a fine line between purely probationary or correctional purposes and
police investigatory objectives; here, however, the predominant purpose for the search was to
determine whether the conditions of appellant's probation had been violated. Cf. People v.
Coffman, 82 Cal. Rptr. 782 (Cal.App. 1969); United States v. Hallman, supra.
Finally, appellant contends that the search of the storage unit was beyond the scope of the
condition of the probation authorizing searches of his person, automobile or residence. We
will not invalidate the search on such a literal reading of the probation agreement since to do
so would be in derogation of the primary purposes of such provisions, namely, to deter further
criminal conduct by the probationer and to determine whether he is complying with the terms
of his probation. See NRS 213.1096(4).
Equally non-meritorious is the notion that appellant had a reasonable expectation of
privacy with respect to the storage unit. "[W]hen [a] defendant in order to obtain probation
specifically agreed to permit at any time a warrantless search of his person, car and
house, he [has] voluntarily waived whatever claim of privacy he might otherwise have
had." People v. Mason, supra, at 634; in accord Himmage v.
____________________

2
In United States ex rel. Santos v. New York State Bd. of Par., 441 F.2d 1216 (2nd Cir. 1971), cert. denied,
404 U.S. 1025, the parolee's absence was not considered a significant factor in determining the validity of a
search of his apartment. Moreover participation by law enforcement officials other than the probationer's
regularly assigned agent has been held not to affect the validity of the search, at least where the moving force for
the search and seizure came from the parole or probation department. See also Annot., 32 ALR Fed., supra, at
161 and 177.
95 Nev. 89, 96 (1979) Seim v. State
unit. [W]hen [a] defendant in order to obtain probation specifically agreed to permit at any
time a warrantless search of his person, car and house, he [has] voluntarily waived whatever
claim of privacy he might otherwise have had. People v. Mason, supra, at 634; in accord
Himmage v. State, supra. Moreover, we do not believe that a police intrusion into a storage
unit is as offensive as a warrantless search of a car or residence. Yet, such searches of
appellant's home or car were expressly authorized. The trial courts cannot be expected to
enumerate every item of property that can be searched or seized. Here, the special condition
of probation was clearly related to appellant's prior criminal conduct and is directed at
deterring or discovering subsequent criminal conduct. Accordingly, we hold that the
warrantless search of appellant's property was justified on the facts of this case, and that the
authorities did not exceed the scope of a reasonable search and seizure.
3

Although the purposes of the [probation] system give the [probation] authorities a special
and unique interest in invading the privacy of [probationers] under their supervision, Latta v.
Fitzharris, supra, at 249, we do not hold that every search of persons or property made
incident to a probation search condition would be reasonable. See People v. Mason, supra;
Randazzo v. Follette, supra. Indeed, it seems compatible with our correctional system,
consistent with the court's narrow view of any advance waiver of constitutional rights,
People v. Bremmer, 106 Cal. Rptr. 797 (Cal.App. 1973); cf. Zap v. United States, 328 U.S.
624 (1946), and desirable from a penological point of view to obtain a probation violation
warrant, where not impracticable, before conducting a search notwithstanding the existence
of a probation agreement waiver. Cf. United States v. Smith, supra; compare Niro v. United
States, 388 F.2d 535 (1st Cir. 1968).
2. Appellant's prior conduct. Appellant next contends that the trial court committed
reversible error in allowing the state to introduce during its rebuttal, evidence that defendant
had previously committed a criminal act. This contention is based upon the perceived danger
that the jury might have convicted him on the basis of his prior wrongful conduct rather than
for the crime charged in the indictment, despite the limiting instructions as to the permissible
use of the evidence.
____________________

3
Although the state has argued that the consent of the landlord obviated the need for a warrant, constituted a
private search, and that appellant's abandonment of the unit dispenses with the requirement of a warrant, it is
unnecessary to reach these questions in view of our holding that the probation condition authorized the
warrantless search.
95 Nev. 89, 97 (1979) Seim v. State
[Headnotes 6, 7]
The state had stipulated that it would not use the prior conduct in its case in chief. The
prior conduct, resulting in conviction, concerned appellant's use and possession of a stolen
Porsche and his conduct of changing the serial numbers of the stolen car to conform to title
documents appellant had previously acquired. The trial court admitted the evidence to prove
motive and common scheme or plan. NRS 48.045(2).
4
See also Wallin v. State, 93 Nev. 10,
558 P.2d 1143 (1977), and Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959), approving
admission for those purposes. The admission of the evidence after the district judge balanced
its probative value against its potential for undue prejudice, a judgment committed to his
sound discretion, will not be disturbed in the absence of an abuse. NRS 48.035(1); Bishop v.
State, 92 Nev. 510, 554 P.2d 266 (1976); Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972);
Nester v. State, supra. Here, the prior conduct, considering its similarity to the instant offense
and its proximateness in time, was relevant. State v. McDaniel, 298 P.2d 798 (Ariz. 1956);
compare Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978). The trial judge was fully
apprised of the possible prejudicial effect but nevertheless concluded that the probative value
of the evidence outweighed any prejudice. We find no abuse of discretion and will not reverse
that judgment.
3. The grand jury challenge. Appellant next contends that the fact that the prosecution
was initiated by indictment rather than by information violates his right to due process and
equal protection under the United States Constitution. He claims he has been denied the many
fundamental rights attendant to an adversary preliminary hearing proceeding. In support of
this contention, he cites People v. Duncan, 201 N.W.2d 629, 635 (Mich. 1972), which held
that, [i]n all future cases wherein a defendant is accused of a felony, the right to a
preliminary examination shall exist. Appellant urges this court to follow that precedent.
However, Duncan was not decided on constitutional grounds, but rather on the basis of the
court's inherent power in the area of criminal procedure. We decline to follow the Duncan
precedent.
The California Supreme Court recently decided Hawkins v. Superior Court, 586 P.2d 916,
922 (Cal. 1978), and concluded that "the denial of a postindictment preliminary hearing
deprived [the accused] of equal protection of the laws guaranteed by article I, section 7
of the California Constitution.
____________________

4
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show
that he acted in conformity therewith. It may, however, be admissible to prove other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [Emphasis
added.]
95 Nev. 89, 98 (1979) Seim v. State
that the denial of a postindictment preliminary hearing deprived [the accused] of equal
protection of the laws guaranteed by article I, section 7 of the California Constitution.
[Footnote omitted.] While recognizing that there is a disparity in the procedural rights
afforded defendants charged by the prosecutor by means of an information and defendants
charged by the grand jury in an indictment, Id., at 917, we believe the existence of statutory
and other procedural safeguards, coupled with the availability of extraordinary relief in our
district courts and State Supreme Court are adequate to protect an accused from
discriminatory treatment and unfounded accusations. See Cairns v. Sheriff, 89 Nev. 113, 508
P.2d 1015 (1973), where we rejected a similar due process and equal protection challenge to
our grand jury system.
[Headnote 8]
In Nevada, prosecutions may be initiated either by indictment or information. Nevada
Const., Art. 1, 8; NRS 173.015; Hyler v. Sheriff, 93 Nev. 561, 571 P.2d 114 (1977). The
power and jurisdiction of the district court in cases initiated by indictment is the same
respecting prosecutions commenced by information. NRS 173.025. The grand jury can
consider only legal evidence, NRS 172. 135(2), and although not bound to hear the evidence
of an accused, it may order the production of explanatory evidence, including the issuance of
process for witnesses. NRS 172.145; Hyler v. Sheriff, supra. Until an indictment is issued, a
shroud of secrecy keeps the proceedings confidential, with logical statutory exceptions (NRS
172.235, 172,245), thereby protecting an accused from unfounded accusations. Cairns v.
Sheriff, supra. The grand jury is permitted to return an indictment only when the evidence
establishes probable cause to believe that an offense has been committed and that the
defendant has committed it. NRS 172.155. The defendant can object to the sufficiency of the
evidence by application for writ of habeas corpus. NRS 34.500(7). Shelby v. District Court,
82 Nev. 204, 414 P.2d 942 (1966). An indictment cannot be found absent concurrence of
twelve of the seventeen jurors. NRS 172.065. A complete copy of the transcript of the
testimony of the witnesses before the grand jury must be promptly made available to the
defendant. NRS 172.225; Shelby v. District Court, supra. Evidentiary hearings, including
motions to suppress evidence are available to one accused by indictment. NRS 174.125. See
United States v. Hocker, 268 F.Supp. 864 (D.C. Nev. 1967), aff'd, Morford v. Hocker, 394
F.2d 169 (9th Cir. 1968), cert. denied, 392 U.S. 944; for an excellent analysis of Nevada's two
methods of instituting a criminal prosecution.
95 Nev. 89, 99 (1979) Seim v. State
Although the United States Supreme Court in Coleman v. Alabama, 399 U.S. 1 (1970),
determined that an accused is entitled to counsel at a preliminary hearing, that being a
critical stage because of the information potentially discoverable, the high Court has never
held that a preliminary examination is either expressly or impliedly required by any provision
of the federal Constitution, and we are not disposed to interpret our state constitution to
mandate that result.
Accordingly, we affirm the conviction and probation revocation.
____________
95 Nev. 99, 99 (1979) Gibson v. State
ROBERT LEE GIBSON, Appellant, v.
No. 10197
February 7, 1979 590 P.2d 158
Appeal from conviction, Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Defendant was convicted in the district court of causing substantial bodily harm to another
by driving under the influence of intoxicating liquor, and he appealed. The Supreme Court
held that evidence was sufficient to support a finding of substantial bodily harm in that the
victim, whose nose was crushed, face lacerated, and wrist broken, suffered either protracted
loss or impairment of the function of bodily member or prolonged physical pain or both.
Affirmed.
W. H. Tobeler, Reno, for Appellant.
Richard Bryan, Attorney General, Carson City; Calvin Dunlap, District Attorney, and
Bruce R. Laxalt, Deputy District Attorney, Washoe County, for Respondent.
Automobiles.
Evidence in prosecution for causing substantial bodily harm to another by driving under the influence of
intoxicating liquor was sufficient to support a finding of substantial bodily harm in that the
victim, whose nose was crushed, face lacerated, and wrist broken, suffered either
protracted loss or impairment of the function of a bodily member or prolonged
physical pain or both. NRS 16.010 et seq., 193.015, 4S4.3795.
to support a finding of substantial bodily harm in that the victim, whose nose was crushed, face lacerated,
and wrist broken, suffered either protracted loss or impairment of the function of a bodily member or
prolonged physical pain or both. NRS 16.010 et seq., 193.015, 484.3795.
OPINION
Per Curiam:
A jury convicted Robert Lee Gibson of causing substantial bodily harm to another by
driving under the influence of intoxicating liquor, a felony pursuant to NRS 484.3795.
1
Gibson's sole argument on appeal challenges the sufficiency of evidence supporting the jury
finding the victim's bodily injury was substantial.
We disagree with appellant's contention. Both parties suggest that the definition of
substantial bodily harm contained in NRS 193.015, although not directly applicable, should
govern by analogy.
2
Without imposing any legal requirement in this respect for other cases
based on NRS 484.3795, we accept the parties' position and apply NRS 193.015 for purposes
of this appeal. NRS 193.015 provides in pertinent part:
Substantial bodily harm' means:
1. Bodily injury which creates a substantial risk of death or which causes serious,
permanent disfigurement or protracted loss or impairment of the function of any bodily
member or organ; or
2. Prolonged physical pain.
In considering the similar phrase, substantial physical injury, as an enhanced penalty
standard in a different context, we have held it poses a question of degree to be determined
from the evidence by the trier of fact. Brooks v. Sheriff, 89 Nev. 260, 510 P.2d 1371 (1973).
In applying the definition contained in NRS 193.015, we think the jury retains this role. We
also think the record indicates evidence sufficient to support a finding of substantial bodily
harm as defined. The jury could have found that the victim suffered either protracted loss of
the function of a bodily member or prolonged physical pain or both.
The victim was knocked unconscious for some period of time by the initial impact of
appellant's vehicle, and was pinned in the wreckage of the vehicle in which she was a
passenger.
____________________

1
Any person who, while under the influence of intoxicating liquor . . . does any act or neglects any duty
imposed by law while driving . . ., 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.

2
By its terms, NRS 193.015 is limited in application to Title 16 of NRS.
pinned in the wreckage of the vehicle in which she was a passenger. Screams and moans were
heard coming from that vehicle. After an ambulance transported the victim to the hospital,
emergency room physicians deemed her in need of immediate care by specialists. Her nose
was crushed, her face lacerated, and her wrist broken.
The facial lacerations required stitches and will leave residual scars. The wrist fracture was
severe, requiring a period of traction before it could be set and placed in a cast.
The attending plastic surgeon described the nose injury as substantial. The official
diagnosis was severe comminuted fracture . . . one in which instead of just two simple parts,
it's in several pieces. This injury was compounded by a cut, one inch deep, penetrating to the
underlying nasal facial bones of the skull. The nose had to be re-structured, and
administration of anesthesia caused severe pain. Because of the nature of the injury, swelling
of internal tissue was predicted to occur periodically for up to a year following the accident
and prognosis for functional recovery was uncertain.
Affirmed.
____________
95 Nev. 101, 101 (1979) County of Douglas v. TRPA
THE COUNTY OF DOUGLAS, a Political Subdivision of the State of Nevada; ROLAND
ADAMS, Planning Director and Manager of the County of Douglas; and ROBERT A.
GARDNER, Engineer of the County of Douglas, Appellants, v. TAHOE REGIONAL
PLANNING AGENCY, Respondents.
No. 9726
February 12, 1979 590 P.2d 160
Appeal from judgment, Ninth Judicial District Court, Douglas County; Stanley A. Smart,
Judge.
County appealed from a judgment of the district court which enjoined the county's
approval of any parcel map violating regional planning agency ordinances and ordered the
county to vacate approval and certifications of one such parcel map. The Supreme Court held
that the county could not approve and certify a parcel map which, though in compliance with
county ordinances violated a regional planning agency's land use ordinance.
Affirmed.
95 Nev. 101, 102 (1979) County of Douglas v. TRPA
Steven D. McMorris, District Attorney, and William J. Crowell, Jr., Deputy District
Attorney, Douglas County, for Appellants.
Owen and Rollston, South Lake Tahoe, California, for Respondents.
Zoning and Planning; Records.
Where, though parcel map satisfied county ordinances, it violated regional planning agency's land use
ordinance, county was required to vacate its approval and certification of the parcel map and to expunge
the map in the county's official records.
OPINION
Per Curiam:
The County of Douglas, Nevada, with its Planning Director/Manager and its Engineer,
here appeal from a judgment enjoining their approval of any parcel maps violating the Tahoe
Regional Planning Agency ordinances, and ordering them to vacate approval and
certifications of one such parcel map, as well as to expunge that map from the county's
official records.
The facts are undisputed. The county approved and certified a parcel map which satisfies
Douglas County ordinances, but violates TRPA's land use ordinance. TRPA brought this
action to compel County and its officers to vacate their approval and certifications of that
parcel map and to expunge it from County's official records.
1
Judgment was granted in favor
of TRPA. Appellants claim they need not enforce the TRPA's ordinance, and proffer various
arguments in support of their position. The trial court considered and disposed of all of these
arguments in its decision, No. 7327, filed August 9, 1976, and captioned Tahoe Regional
Planning Agency (TRPA) vs. Henry J. Martin, et al. For the reasons given, and based on the
authority set forth therein, we affirm the judgment.
2

____________________

1
TRPA also requested injunctive relief against the owners of the premises described by the parcel map.
However, direct relief against the owners was denied as rendered moot by the decision against the governmental
defendants. The owners are not parties to this appeal.

2
Justice Noel Manoukian voluntarily disqualified himself from participating in the decision of this appeal.
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Noel Manoukian, Nev. Const. art. 6, 19; SCR 243.
____________
95 Nev. 103, 103 (1979) State ex rel. List v. Courtesy Motors
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 and Cross-Respondents, v. COURTESY MOTORS, TYRONE
HAVAS, Individually and as Owner, Manager and/or Agent of COURTESY MOTORS;
VICTOR HAVAS, Individually and as Owner, Manager and/or Agent of COURTESY
MOTORS and AAA AUTO LEASING AND RENTAL, INC., a Nevada Corporation d/b/a
COURTESY R.V. AUTO AND LEASING; and TYRONE HAVAS as Sole Shareholder,
Agent and Operator of AAA AUTO LEASING AND RENTAL INC. d/b/a COURTESY
R.V. AUTO AND LEASING; and VICTOR HAVAS as Agent and Operator of AAA AUTO
LEASING AND RENTAL, INC. d/b/a COURTESY R.V. AUTO AND LEASING,
Respondents and Cross-Appellants.
No. 8992
February 13, 1979 590 P.2d 163
Appeal and cross-appeal from judgment, Eighth Judicial District Court, Clark County;
State and others brought action alleging violations of trade regulations and practices
governing automotive repairs, deceptive advertising, and deceptive trade practice. The district
court dismissed three causes of action and thereafter directed entry of judgment in favor of
defendants on remaining causes, with defendants to recover their costs incurred and each
party to bear his own attorney's fees, and State and others appealed and defendants
cross-appealed. The Supreme Court held that: (1) trial court did not err in admitting or
construing evidence of facts and circumstances surrounding execution of written instrument,
including prior and contemporaneous conversations between parties to agreement; (2) trial
court's reference in oral decision to the social relationship between parties to agreement
was a finding relating to credibility of their testimony and did not result in application of
improper legal standards, and (3) district court properly awarded costs to defendants under
statutory provisions.
Affirmed on the appeal and the cross-appeal.
[Rehearing denied March 16, 1979] Richard Bryan, Attorney General and Joshua M.
Richard Bryan, Attorney General and Joshua M. Landis, Deputy Attorney General, Carson
City; Robert J. Miller, District Attorney, and Elliott A. Sattler, Deputy District Attorney,
Clark County, for Appellants and Cross-Respondents.
Paul V. Carelli, III, Las Vegas, for Respondents and Cross-Appellants.
1. Evidence.
Any oral agreements reached after execution of written instrument and modifying terms of that instrument
are not within scope of parol evidence exclusion.
2. Evidence.
Parol evidence is admissible for purpose of ascertaining true intentions and agreement of parties when
written instrument is ambiguous.
3. Evidence.
Where cost estimate in written instrument for repair on van was ambiguous on its face as to whether it
included parts and materials, in that dollar figure was in column labeled Labor Charge and yet a three
and a half percent sales tax on total amount was added, even though there is no sales tax on labor under
such circumstances, evidence of facts and circumstances surrounding execution of written instrument,
including prior and contemporaneous conversations between parties to agreement, was properly
considered. NRS 372.025, subd. 3(c).
4. Trade Regulation.
In action alleging deceptive advertising and deceptive trade practices in connection with automotive
repairs, trial court's reference in its oral decision to the social relationship between parties to agreement
for repair of automobile was, an oblique, but nonetheless clear, finding relating to credibility of their
testimony and did not result in application of improper legal standard.
5. Trade Regulation.
Even if references to a social relationship between parties to agreement for repair of automobile were
excised from findings of fact in action alleging deceptive advertising and deceptive trade practices in
connection with automobile repair, judgment against State was amply supported by findings and there was
substantial, even though conflicting, evidence in record to support the findings. NRS 207.171,
207.173, 598.410, subd. 12.
6. States.
In State's unsuccessful action alleging violations of trade regulations and practices governing automotive
repairs, deceptive advertising, and deceptive trade practice, costs were properly awarded against the State.
NRS 18.040. (Repealed).
7. States.
In State's action alleging violations of trade regulations and practices governing automotive repair,
deceptive advertising, and deceptive trade practice, attorney's fees would not be awarded against the State
in absence of statute, rule or contract providing for allowance of attorney's fees in case.
of statute, rule or contract providing for allowance of attorney's fees in case.
OPINION
Per Curiam:
In this action appellants and cross-respondents (hereinafter referred to as appellants)
stated in their amended complaint five causes of action. The first three alleged violations of
the trade regulations and practices governing automotive repairs (NRS 598.690 to NRS
598.745, inclusive); the fourth alleged deceptive advertising (NRS 207.171, NRS 207.173)
and the fifth alleged a deceptive trade practice (NRS 598.410(12)). Appellants sought
injunctive relief pursuant to NRS 598.740, NRS 207.176, NRS 598.530 and NRS 598.590
and civil penalties pursuant to NRS 598.745, NRS 207.174 and NRS 598.640. They also
prayed for the allowance of costs and attorney's fees.
The district court, on motion of respondents and cross-appellants (hereinafter referred to as
respondents), entered an order dismissing the first three causes of action, concluding that
the nature of the work performed by respondents, as alleged in those causes of action, was not
within the defined subject matter of NRS 598.690 to NRS 598.745, inclusive. The order
contained no determination under NRCP 54(b), but the appellants have not challenged the
order in this appeal.
Respondents, in their answers, generally denied the allegations of the amended complaint
and prayed for the allowance of costs and attorney's fees. The case proceeded to trial, without
a jury, on the fourth and fifth causes of action. At the conclusion of the trial, the district judge
announced his decision and directed entry of judgment in favor of respondents and against
appellants on both causes of action with respondents to recover their costs incurred and with
each party to bear his own attorney's fees. The appeal is from the judgment against appellants
on the merits and awarding costs to respondents. The cross-appeal is from that portion of the
judgment denying attorney's fees to respondents.
The owner of the motor vehicle involved in the events giving rise to this case was Paulette
Suzanne Stearns. She dealt with Larry Hagin, an employee of respondent, AAA Auto Leasing
and Rental, Inc. d/b/a Courtesy R.V. Auto and Leasing. Both Stearns and Hagin testified.
Stearns testified that approximately two weeks prior to the subject transaction, she had other
work done on her vehicle at Courtesy, at which time she had also dealt with Hagin.
Documents relating to both transactions, including the cost estimates prepared by Hagin, were
introduced into evidence.
introduced into evidence. Over objection, the trial court permitted Hagin to testify concerning
an ongoing social relationship he had with Stearns during this period of time. Hagin's
testimony in this regard was corroborated by several other witnesses, but flatly denied by
Stearns. Hagin also testified, again over objection, as to conversations and understandings he
had had with Stearns relating to the scope of the cost estimate he prepared in connection with
the second transaction. According to Hagin, this transaction involved labor only, with parts
and materials to be supplied separately, initially by Stearns and later by Courtesy when it was
discovered that Hagin, acting through Courtesy, could obtain these items at a lower cost.
Stearns testified that there were no such conversations or understandings.
In its oral decision, the district court stated, in part: Despite what Miss Stearns has
testified to it seems to me that the relationship between Miss Stearns and Mr. Hagin was
something more than just a business relationship. This comment was carried over into the
findings of fact in several references to a social relationship between Stearns and Hagin.
[Headnote 1]
The three issues presented in this appeal are that the trial court erred in: (1) admitting and
considering the testimony concerning conversations and oral agreements occurring prior to, or
contemporaneously with, the preparation and execution of the cost estimate, contrary to the
parol evidence rule;
1
(2) admitting and considering the testimony concerning a social
relationship between Stearns and Hagin; and, (3) awarding costs to respondents. On the
cross-appeal it is claimed the trial court erred in failing to award attorney's fees to
respondents.
1. Parol evidence.
It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract
from, vary, or contradict . . . written instruments which dispose of property, or are
contractual in nature and which are valid, complete, unambiguous, and unaffected by
accident or mistake. This rule, which is known as the parol evidence rule, is one of
substantive law and not merely one of evidence; and it obtains in equity as well as at
law. Wheeler, Kelly & Hagny Inv. Co. v. Curts, 147 P.2d 737, 740 (Kan. 1944).
(Emphasis added.)
____________________

1
Any oral agreements between Stearns and Hagin reached after the execution of the written instrument and
modifying the terms of that instrument are not within the scope of the parol evidence exclusion. Silver Dollar
Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923 (1964). Accordingly, they are not subject to appellants'
objection on this issue.
[Headnote 2]
Parol evidence is admissible for the purpose of ascertaining the true intentions and
agreement of the parties when the written instrument is ambiguous. Nevada Refining Co. v.
Newton, 88 Nev. 333, 497 P.2d 887 (1972); Holland v. Crummer Corp., 78 Nev. 1, 368 P.2d
63 (1962); Kennedy v. Schwartz, 13 Nev. 229 (1878).
[Headnote 3]
Here, the written instrument, the cost estimate, was ambiguous on its face. It referred to
Repair on Van. The dollar figure was in a column labeled Labor Charge. Yet, a 3 1/2
percent sales tax on the total amount was added, even though there is no sales tax on labor
under such circumstances. See NRS 372.025(3)(c). Accordingly, we hold that the trial court
did not err in admitting or considering evidence of facts and circumstances surrounding the
execution of the written instrument, including the prior and contemporaneous conversations
between Stearns and Hagin.
2. Social relationship.
[Headnote 4]
The trial court's reference in its oral decision to the social relationship between Stearns
and Hagin was, in our opinion, an oblique, but nonetheless clear, finding relating to the
credibility of their testimony. It accepted as true the testimony of Hagin and other
corroborative testimony and rejected that of Stearns. It is the prerogative of the trier of facts
to evaluate the credibility of witnesses and determine the weight of their testimony, and it is
not within the province of the appellate court to instruct the trier of fact that certain witnesses
or testimony must be believed. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 282, 439
P.2d 473, 475 (1968).
[Headnote 5]
Even if references to a social relationship between Stearns and Hagin were excised from
the findings of fact, the judgment is amply supported by the findings and there is substantial,
even though conflicting, evidence in the record to support the findings. Under such
circumstances, we will not disturb the district court's judgment. B & C Enterprises v. Utter,
88 Nev. 433, 498 P.2d 1327 (1972); Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d
624 (1972); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970). We are not persuaded
that the district court's reference to a social relationship between Stearns and Hagin was the
result of, or resulted in, the application of an improper legal standard.
an improper legal standard. See Wright & Miller, Federal Practice and Procedure: Civil
2585, and cases cited in n. 7 of that section.
3. Costs.
[Headnote 6]
At all times relevant to these proceedings, NRS 18.040 provided that, Costs shall be
allowed of course to the defendant upon a judgment in his favor . . . in the actions mentioned
in NRS 18.020, and in a special proceeding in the nature of an action.
2
Costs awarded
against the state were payable out of the state treasury. NRS 18.150(1). We are not persuaded
that the district court erred in awarding costs to respondents under these statutory provisions.
The judgment from which the appeal has been taken is affirmed.
[Headnote 7]
We have repeatedly held that attorney's fees may not be awarded in the absence of a
statute, rule or contract which so provides. Consumers League of Nev. v. Southwest Gas, 94
Nev. 153, 576 P.2d 737 (1978). No statute, rule or contract provides for the allowance of
attorney's fees in this instance.
3
Respondents have not advanced any theory supported by
relevant authority which illustrates that the trial court was in error in refusing to award them
attorney's fees or in failing to state its reason for such refusal. See Lyon v. Walker Boudwin
Constr. Co, 88 Nev. 646, 503 P.2d 1219 (1972). The judgment from which the cross-appeal
was taken is also affirmed.
4, 5

____________________

2
After this case was tried, NRS 18.040 was repealed. See 1977 Nev. Stats. ch. 401, 12.

3
NRS 18.150(1) was amended in 1977 by adding the words or, attorney's fees, and now reads as follows:
When the state is a party, and costs or attorney's fees are awarded against it, they must be paid out of the state
treasury. See 1977 Nev. Stats. ch. 401, 9. We express no opinion on the effect, if any, of this amendment on
cases arising, tried or decided after July 1, 1977, the effective date of the amendment.

4
The Governor designated the Honorable William P. Beko, Judge of the Fifth Judicial District, to sit in the
place of The Honorable John Mowbray, who was disqualified. Nev. Const. art. 6, 4.

5
The Governor designated the Honorable Stanley A. Smart, Judge of the Third Judicial District, to sit in the
place of The Honorable Gordon Thompson, who was disabled. Nev. Const. art. 6, 4.
____________
95 Nev. 109, 109 (1979) Azbarea v. City of North Las Vegas
ZANE AZBAREA, Municipal Judge of the City of North Las Vegas, Appellant, v. CITY OF
NORTH LAS VEGAS, a Municipal Corporation, Respondent.
No. 10903
February 13, 1979 590 P.2d 161
Appeal from order denying mandamus; Eighth Judicial District Court, Clark County;
George E. Marshall, Judge.
Municipal judge brought mandamus proceeding to compel city to pay court personnel for
overtime hours worked and to pay alternate judge for services rendered when municipal judge
was either disqualified to sit or was unable to do so because of illness. The district court
denied relief, and appeal was taken. The Supreme Court, Thompson, J., held that: (1)
requiring court personnel to perform overtime work necessary to handle court's business with
reasonable dispatch was within court's inherent power, and thus city was obliged to pay such
personnel for overtime hours worked despite claimed violations of the Local Government
Budget Act and the Local Government Employee-Management Relations Act and claimed
intrusion on the authority of the city manager; (2) despite absence of written request from
mayor for alternate judge to act, city was obliged to pay alternate where mayor had orally
authorized municipal judge to assign alternate to sit in his place, and (3) municipal judge was
a real party in interest possessing capacity to commence the proceeding.
Reversed with direction for writ to issue.
Douglas J. Shoemaker, and Greenman & Goldberg, of Las Vegas, for Appellant.
George E. Franklin, City Attorney of North Las Vegas, for Respondent.
1. Courts.
Actions of municipal judge in requiring overtime work of court personnel where such was necessary to
handle the court's business with reasonable dispatch was within court's inherent power, despite contention
that since municipal court was not constitutionally created it does not enjoy the inherent powers which
constitutionally created courts possess, and thus city was obliged to pay court personnel for overtime hours
worked regardless of claimed violations of the Local Government Budget Act and the Local Government
Employee-Management Relations Act, and claimed usurpations of functions of the city manager. NRS
288.010 et seq., 354.470 et seq.
Where mayor orally authorized municipal judge to assign another judge to sit in his place when municipal
judge was disqualified to sit or was unable to do so because of illness, city was obliged to pay the alternate
judge, even though mayor did not provide a written request, pursuant to statute, that the alternate act. NRS
266.575.
3. Mandamus.
Municipal judge was real party in interest with capacity to commence mandamus proceeding to compel
city to pay court personnel for overtime hours worked and to pay alternate judge for services rendered
when municipal judge was disqualified or was ill. NRCP 17(a).
OPINION
By a proceeding in mandamus the Municipal Judge for the City of North Las Vegas, Zane
Azbarea, seeks to compel the City to pay court personnel for overtime hours worked, and also
to pay an alternate judge for services rendered when Judge Azbarea was either disqualified to
sit or was unable to do so because of illness. The district court denied relief and this appeal
followed. For reasons hereafter expressed, we reverse.
Initially, we note that the City does not dispute the reasonableness of the claims for
compensation, nor the need of the municipal court to have its personnel work overtime in
order to handle the court's business with reasonable dispatch. The City simply contends that
the Judge lacked power to act as he did.
With respect to overtime compensation for court personnel, the City asserts that the Judge,
by requiring such overtime work, violated the Local Government Budget Act, the Local
Government Employee-Management Relations Act, and usurped the functions of the
city.manager. And, with regard to the claim submitted by the alternate judge, the City
contends that since the Mayor did not in writing request that judge to sit in place of Judge
Azbarea as contemplated by statute, it is not obliged to pay for services admittedly rendered.
It is the position of Judge Azbarea that his court has the inherent power to act as it did in
order to perform its mandated responsibilities as a part of the judicial branch of our
government.
[Headnote 1]
If the actions of Judge Azbarea were within his inherent power, it is apparent that the
contentions of the City with regard to claimed violations of the Local Government Budget
Act, the Local Government Employee-Management Relations Act, and intrusion upon the
authority of the city manager, are without substance.1
Act, and intrusion upon the authority of the city manager, are without substance.
1

1. Judicial power is the authority to hear and determine justiciable controversies and
includes within its scope the inherent or incidental authority to do that which is reasonably
necessary to exercise the power conferred. Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237
(1967). Heretofore, we have ruled that reasonable budgetary requests of a district judge must
be paid by the Board of County Commissioners. Young v. Board of County Commr's, 91
Nev. 52, 530 P.2d 1203 (1975). The case at hand is controlled by Young in so far as payment
to court personnel for overtime hours worked is concerned.
[Headnote 2]
2. NRS 266.575 provides, among other things, that when a municipal court judge is
disqualified any justice of the peace of the county, on the written request of the Mayor, shall
act in his place. Justice of the Peace Marley Robinson acted on several occasions for Judge
Azbarea when he was either disqualified or ill. The Mayor did not, in writing, request Judge
Robinson to act. However, the record discloses that the Mayor orally authorized Judge
Azbarea to assign Judge Robinson to sit in his place. Consequently, the purposes of the
statute were met. A written request from the Mayor, had there been one, would have added
nothing of substance. We are surprised that the City would endeavor to avoid paying Judge
Robinson for her services rendered at the oral authorization of the Mayor, and deny
out-of-hand its attempt to do so.
[Headnote 3]
3. It is suggested that Judge Azbarea is not a real party in interest within the intendment of
NRCP 17(a) since he is endeavoring to compel payment of compensation to others than
himself. The interest of Judge Azbarea is clear. It is that of discharging the responsibilities of
his court. Accordingly, he is a real party in interest possessing the capacity to commence this
proceeding. Smith v. Miller, 384 P.2d 738, 742 (Colo. 1963). By necessary implication we so
ruled in Young, supra.
We, therefore, reverse the order entered below and remand with direction to (1) issue a
writ of mandate compelling the City of North Las Vegas to pay court personnel for overtime
hours worked as requested, and also to pay the claims of alternate Judge Marley Robinson;
(2) award Azbarea his costs incurred in the district court, and to evaluate his claim for
counsel fees.
____________________

1
The assertion by the City that since its Municipal Court was not constitutionally created it does not enjoy the
inherent powers which ally constitutionally created courts possess, was forcefully rejected by our opinion in City
of No. Las Vegas v. Daines, 92 Nev. 292, 550 P.2d 399 (1976).
incurred in the district court, and to evaluate his claim for counsel fees. Young, supra.
____________
95 Nev. 112, 112 (1979) Twigg v. Sheriff
MICHAEL DAVID TWIGG, and PAULA TWIGG, Appellants, v. SHERIFF,
ELKO COUNTY, NEVADA, Respondent.
No. 11475
February 16, 1979 590 P.2d 630
Appeal from orders denying pretrial petitions for writs of habeas corpus, Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court held that: (1) failure of state to disclose informant's name or produce
him at preliminary examination did not constitute reversible error where informant did not
supply information to substantiate a defense or rebut an element of offense, and (2) although
association and conduct of one petitioner may well have exposed him to some criminal
liability, where record was barren of any evidence that petitioner either suggested,
encouraged, negotiated or consummated sale, evidence was insufficient to establish probable
cause that petitioner participated in charged sale of a controlled substance.
Affirmed as to Paula Twigg; reversed as to Michael David Twigg.
Peter L. Flangas, Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, Carson City; and Thomas Stringfield, District
Attorney, Elko County, for Respondent.
1. Criminal Law.
Failure of state to disclose informant's name or produce him at preliminary examination did not constitute
reversible error where informant did not supply information to substantiate a defense or rebut an element of
offense.
Although petitioner's association and conduct may well have exposed him to some criminal liability,
where record was barren of any evidence that petitioner either suggested, encouraged, negotiated or
consummated sale, evidence was insufficient to establish probable cause that petitioner participated
in charged "sale" of a controlled substance.
petitioner participated in charged sale of a controlled substance. NRS 453.321.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, an information was filed charging both
appellants with the sale of a controlled substance, oil of hashish, a violation of NRS 453.321.
Both appellants filed separate and timely petitions for writs of habeas corpus contending:
(1) that the information should be dismissed because of the failure of the state to produce a
confidential informant at the preliminary examination; and, (2) that as to Michael Twigg, the
evidence was insufficient to support a finding of probable cause that he made a sale of a
controlled substance. The district court denied both habeas petitions, and this appeal has been
perfected.
1

Evidence adduced at the preliminary examination disclosed that on the morning of July 27,
1977, Wendy Lovato, an undercover agent, was put in telephone contact with appellants by a
confidential informant. Subsequently, a meeting took place between Lovato, the confidential
informant, and the appellants. At that time, Michael Twigg and the confidential informant
entered the cab of Twigg's pickup truck while Lovato and Paula Twigg positioned themselves
in the rear of the truck. Michael Twigg then began a short drive to a casino parking lot. In the
course of the drive, Paula Twigg handed Lovato a vial containing oil of hashish. Upon arrival
at the parking lot, Lovato and Paula Twigg exited from the back of the vehicle. Michael
Twigg and the informant also exited from the cab of the vehicle. Thereafter, Michael and
Lovato discussed matters unrelated to the sale of the oil of hashish. At the conclusion of the
conversation, Lovato gave Paula Twigg $40 in payment for the oil of hashish. The
confidential informant stood several feet away from the group and did not participate in the
conversation.
[Headnote 1]
1. The contention that the information should be dismissed because of the state's failure to
produce the confidential informant is without merit. Here, the confidential informant's
conduct did little more than introduce Lovato to the appellants. The confidential informant
neither witnessed the alleged sale nor participated in the subsequent conversation.
____________________

1
There is also an appeal from the district court's Order Striking Untimely Affidavit of Prejudice filed by
Michael Twigg. Because we reverse the order denying Michael Twigg's petition for a writ of habeas corpus, we
need not, and therefore do not, reach that issue.
sale nor participated in the subsequent conversation. Therefore, it does not appear that the
confidential informant could supply information to substantiate a defense or rebut an element
of the offense. In this limited situation, the state's failure to disclose the informant's name or
produce him at the preliminary examination does not constitute reversible error.
2
Cf. State v.
Stiglitz, 94 Nev. 158, 576 P.2d 746 (1978).
[Headnote 2]
2. The record is barren of any evidence that Michael Twigg either suggested, encouraged,
negotiated or consummated the sale. Although his association and the recited conduct may
well expose him to some criminal liability, the evidence is insufficient to establish probable
cause that Michael Twigg participated in the charged sale of a controlled substance. See
Loucious v. Sheriff, 94 Nev. 98, 575 P.2d 598 (1978); Cunningham v. Sheriff, 94 Nev. 65,
574 P.2d 282 (1978); Palombo v. Sheriff, 93 Nev. 492, 568 P.2d 580 (1977); Campbell v.
Sheriff, 92 Nev. 575, 555 P.2d 218 (1976); Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972).
Accordingly, the district court's order denying Paula Twigg's petition for a writ of habeas
corpus is affirmed. The order denying Michael Twigg's petition is reversed, without prejudice
to the state's right to institute appropriate charges, if any, within 15 days after remittitur
issues.
____________________

2
In so holding, we express no opinion with regard to appellants' contention that the identity of an informant
who is a material witness must be disclosed before the preliminary hearing.
____________
95 Nev. 114, 114 (1979) Cooper v. State
KELLY CECIL COOPER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10158
February 16, 1979 590 P.2d 166
Appeal from judgment of conviction, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendant was convicted in the district court of attempted murder, forcible rape and two
counts of infamous crime against nature, and he appealed. The Supreme Court, Zenoff S. J.,
held that: (1) evidence was not sufficient to establish that defendant's motion to suppress
victim's precomplaint identification was improperly denied, and (2) where defendant testified
on cross-examination that he was 27 years old, infamous crime conviction could stand
notwithstanding that prosecuting attorney failed to allege and prove that defendant was
of full age.
crime conviction could stand notwithstanding that prosecuting attorney failed to allege and
prove that defendant was of full age.
Affirmed.
Horace R. Goff, State Public Defender, Thomas R. Susich, and Robert B. Walker, Jr.,
Deputy Public Defenders, Carson City, for Appellant.
David B. Small, District Attorney, Thomas L. Stringfield, Deputy District Attorney, Carson
City, for Respondent.
1. Constitutional Law; Criminal Law.
Evidence in prosecution for attempted murder, rape and infamous crime against nature was not sufficient
to establish that defendant was either under arrest or restrained of his liberty prior to time he was identified
by victim, that defendant did not voluntarily accompany deputy to victim's residence or that identification
was conducted in manner so unnecessarily suggestive and conducive to irreparable mistaken identification
that defendant was denied due process of law. U.S.C.A.Const. Amend. 14.
2. Sodomy.
Age of defendant was matter of defense in prosecution for infamous crime against nature, and burden of
establishing such defense was on defendant. NRS 201.190.
3. Sodomy.
Where defendant during trial testified on cross-examination that he was 27 years old, conviction for
infamous crime against nature could stand notwithstanding that prosecuting attorney failed to allege or
prove that defendant was of full age, an essential element of the crime. NRS 201. 190.
OPINION
By the Court, Zenoff, Sr. J.:
1

Kelly Cecil Cooper was convicted, by jury verdict, of attempted murder, forcible rape, and
two counts of the infamous crime against nature. After sentence was imposed, he perfected
this appeal.
In asking us to reverse, he advances multiple claims of error; however, only two warrant
comment. They are: (1) the district court improperly denied the motion to suppress the
victim's pre-complaint identification; and, (2) the infamous crime conviction cannot stand
because the prosecuting attorney failed to allege and prove that Cooper was of "full age," an
essential element of the crime.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of Justice Noel
E. Manoukian, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR 243.
allege and prove that Cooper was of full age, an essential element of the crime.
Late on the night of October 8, 1976, the victim was beaten, choked, raped and forced to
perform oral sex by a black male intruder in her home. The incident was reported to the
Carson City Sheriff's office. The deputy who was dispatched to investigate observed an
automobile driven by a black male subsequently identified as Cooper. The deputy stopped the
car, explained the reason for the stop, and after a brief conversation, Cooper agreed to
accompany the deputy to the victim's house to clear up the matter. Before presenting Cooper
for identification, the deputy questioned the victim about her ability to identify the assailant
and how he was dressed.
[Headnote 1]
1. In support of his claim that the motion to suppress should have been granted, Cooper
argues: (a) the identification was the fruit of an unlawful arrest made upon uncorroborated
information; (b) his consent to accompany the deputy was involuntarily given; and, (c) the
manner in which the identification was made violates constitutional standards.
Other than Cooper's subjective conclusions, the record is barren of any evidence to support
the claim that he was either under arrest or restrained of his liberty prior to the time he was
identified by the victim. Neither has Cooper pointed to any part of the record that might
support his claim that he did not voluntarily accompany the deputy to the victim's residence.
The record is also barren of any evidence that would support Cooper's undocumented
claim that the identification was conducted in a manner so unnecessarily suggestive and
conducive to irreparable mistaken identification that Cooper was denied due process of law.
Baker v. State, 88 Nev. 369, 372, 498 P.2d 1310, 1312 (1972). See also Kirby v. Illinois, 406
U.S. 682 (1972); Banks v. State, 94 Nev. 90, 575 P.2d 592 (1978).
[Headnotes 2, 3]
2. In rejecting Cooper's claim that the infamous crime conviction cannot stand, we
recognize that the statute, NRS 201.190, provides, in pertinent part, that every person of full
age who commits the infamous crime against nature shall be punished by imprisonment. . . .
(Emphasis added.) However, we note, that in another case which involved the then statutory
rape statute (NRS 200.365), we rejected the same argument because [t]here is a
presumption that a male person charged with . . . rape is over 18 years of age. If a defendant,
so charged, is under 18 years of age, such is relevant only on the question of punishment. Age
is a matter of defense, and the burden of establishing this defense is on him.' " Thomas v.
Sheriff, S9 Nev. 17, 19
burden of establishing this defense is on him.' Thomas v. Sheriff, 89 Nev. 17, 19, 504 P.2d
1313, 1314 (1973). Furthermore, during trial Cooper testified, on cross-examination, that he
was 27 years old.
Cooper's other claims of error also lack merit and are summarily rejected.
Affirmed.
____________
95 Nev. 117, 117 (1979) Buckner v. State
RALPH V. BUCKNER, Jr., Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 9449
February 16, 1979 590 P.2d 628
Appeal from judgment of conviction and order denying motion for new trial, Second
Judicial District Court, Washoe County; John W. Barrett, Judge.
Defendant was convicted in the district court of obtaining money by false pretenses and
attempting to obtain money by false pretenses, and he appealed. The Supreme Court held
that: (1) record contained sufficient evidence from which jury could imply false pretense; (2)
trial court properly admitted evidence relating to checking account to establish defendant's
knowledge and intent at time of commission of crimes, and (3) trial court properly instructed
jury.
Affirmed.
Peter A. Perry, Reno, for Appellant.
1. False Pretenses.
In prosecution for obtaining money by false pretenses and attempting to obtain money by false pretenses,
record contained sufficient evidence from which jury could imply a false pretense. NRS 205.380,
208.070.
2. False Pretenses.
In prosecution for obtaining money by false pretenses and attempting to obtain money by false pretenses,
evidence relating to checking account offered to establish defendant's knowledge and intent at time of
commission of crimes was relevant and properly admitted. NRS 205.380, 208.070.
3. Criminal Law.
Court did not commit reversible error in refusing to instruct jury on defendant's theory of case where
proposed instruction was substantially covered by other instructions given to jury.
Statutory reasonable doubt instruction does not violate due process protection. NRS 175.211;
U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Ralph V. Buckner, Jr., was convicted by jury verdict of obtaining money by false pretenses
(NRS 205.380), and attempting to obtain money by false pretenses (NRS 208.070, NRS
205.380).
1
In this appeal, Buckner contends: (1) the evidence failed to support the verdict;
(2) the district court erred in admitting certain physical evidence; and, (3) the district court
erred in instructing the jury. We find no merit in these contentions and affirm the district
court judgment.
During the early morning hours of January 1, 1976, Buckner cashed a check for $125.00 at
the Boomtown Casino, west of Reno. The check, made payable to Buckner, was drawn on the
Ralph Hughes Trucking Company account at the San Luis Obispo National Bank in
California, and had been prepared with a typewriter and check protector. Around noon of that
same day, Buckner attempted to cash another check at John Ascuaga's Nugget in Sparks,
drawn on the same account and made payable to Buckner. When the credit manager of the
Nugget made a routine call to a central credit information center, he learned that the
numerical sequence of the check presented was unusually close to the check presented at
Boomtown and to another check which Buckner had unsuccessfully attempted to cash at
another area casino. This information, when coupled with the fact that Buckner, purportedly a
truck driver, had no driver's license to present as identification caused the manager to become
suspicious and to call the police.
When the police officers arrived, the credit manager attempted to hand the challenged
check to one of the officers.
____________________

1
Every person who knowingly and designedly by any false pretense obtains from any other person
any chose in action, money, goods, wares, chattels, effects or other valuable thing, with intent to cheat or
defraud the other person, is a cheat, and, unless otherwise prescribed by law, shall be punished. . . .
An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to
commit that crime. . . .
attempted to hand the challenged check to one of the officers. Buckner grabbed the check,
began to tear it into pieces, and attempted to put the torn pieces of the check into his mouth.
Buckner was seen chewing and repeatedly attempting to swallow as he was led away in
handcuffs.
During a search of Buckner's person conducted at the Sparks Police Department, the police
discovered two (2) more Hughes Trucking Company checks in Buckner's pockets; each dated
December 29, 1975, and each made payable in the amount of $247.50. Buckner's truck was
also searched and the police discovered five (5) more Hughes Trucking Company checks,
along with a typewriter and a check protector.
At trial, an employee of the San Luis Obispo National Bank testified that the Hughes
Trucking Company account was opened with a cash deposit of $130.00 and that all remaining
deposits were made by checks drawn upon either the Ralph Buckner Wholesale or
Buckner Wholesale accounts. All of these checks were ultimately returned to the bank
marked either insufficient funds or account closed. The employee also testified that the
Hughes Trucking Company account was only open for five (5) weeks and during that time, 26
checks were issued. Thirteen (13) of those checks were issued to Buckner and of those
thirteen, ten (10) were returned for collection.
1. Buckner contends the evidence adduced at trial fails to establish that he obtained
money by false pretenses. The thrust of his argument is that he neither issued the checks in
question, nor made any representations to the persons to whom they were presented regarding
the sufficiency of funds in the drawer's account.
[Headnote 1]
We have previously held that a false pretense is a representation of some fact or
circumstance which is not true and is calculated to mislead . . . [and] may consist of any act,
word, symbol or token calculated and intended to deceive. It may be made either expressly, or
by implication. Bright v. Sheriff, 90 Nev. 168, 170, 521 P.2d 371, 373 (1974). Here, the
record contains sufficient evidence from which the jury could imply a false pretense.
Accordingly, the judgment will not be disturbed.
2

____________________

2
Buckner further contends that certain provisions of the Uniform Commercial Code (U.C.C.), NRS ch. 104,
when applied to this case, negate the elements required to establish a false pretense. Although the U.C.C. may be
applicable in the context of some criminal cases, see, e.g., Watkins v. Sheriff, 85 Nev. 246, 453 P.2d 611
(1969), it is inapplicable in the factual posture of the present case. Moreover, in this appeal, Buckner failed to
cite any relevant legal authority in support of this contention. Woods v. State, 94 Nev. 435, 581 P.2d 444
(1978).
[Headnote 2]
2. Buckner also contends that the trial court erred in admitting evidence relating to the
Hughes Trucking Company account because the prejudicial effect of that evidence
out-weighed its probative value. The evidence was offered to establish Buckner's knowledge
and intent at the time of the commission of the crimes and, thus, was relevant and properly
admitted. NRS 48.015; NRS 48.045(2). See McMichael v. State, 94 Nev. 184, 577 P.2d 398
(1978). In addition, the jury was given a proper limiting instruction as to the use of the
challenged evidence, thereby reducing any prejudice. NRS 48.035. Cf. Bails v. State, 92 Nev.
95, 545 P.2d 1155 (1976).
3. Finally, Buckner propounds two (2) separate arguments in support of his contention
that the district court erred in instructing the jury.
[Headnote 3]
Buckner first contends the district court committed reversible error by refusing to instruct
the jury on his theory of the case. The proposed instruction was substantially covered by other
instructions given to the jury and, therefore, it was cumulative and properly refused. See
Passarelli v. State, 93 Nev. 292, 564 P.2d 608 (1977).
[Headnote 4]
Buckner next argues that use of the statutory reasonable doubt instruction, NRS 175.211,
violates fundamental due process protection by equating reasonable doubt with substantial
doubt and, thus, dilutes the state's burden of proof.
3
A similar constitutional challenge was
previously considered and rejected in Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977). We
perceive no reason to disturb that decision.
Other issues raised by Buckner are without merit and need not be considered.
Affirmed.
____________________

3
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.
____________
95 Nev. 121, 121 (1979) In re Report Washoe Co. Grand Jury
IN THE MATTER OF THE REPORT OF THE WASHOE COUNTY GRAND JURY;
Appeal of JOSEPH CONFORTE.
No. 9862
February 16, 1979 590 P.2d 622
Appeal from portions of judgment denying injunctive relief and expungement of grand
jury report; Second Judicial District Court, Washoe County; William N. Forman, Judge.
The district court denied relief and individual appealed. The Supreme Court, Manoukian,
J., held that: (1) grand jury has investigatory authority over diversified local governmental
agencies and activities; (2) district court has the power to review reports of grand jury within
its jurisdiction prior to publication and to expunge the report where the jury has gone beyond
its express authority; (3) report which related to the individual's purchase of property and sale
to governmental agencies and the fact that some local governmental officials favoring the
purchase were regularly entertained at the individual's brothel without charge was not subject
to expungement, but (4) grand jury exceeded its statutory authority with respect to its
reference to the individual's purported activities in another state.
Affirmed, as modified.
Gunderson and Batjer, JJ., concurring in part, dissenting in part.
Stanley H. Brown and James Belford Brown, Reno, for Appellant.
1. Grand Jury.
Individual referred to in grand jury report did not have standing to assert that district court should
expunge portions of the report which referred to other persons.
2. Grand Jury.
In Nevada, grand jury has investigatory authority over diversified local governmental agencies and
activities. NRS 172.175.
3. Grand Jury.
If grand jury's report, in effect, accuses an individual of an indictable offense, the report must be
accompanied by indictment or presentment, both of which must be filed with the court. NRS 172.175
subd. 3.
4. Grand Jury.
Judicial review to determine the excess of established legal limits with respect to a grand jury
report is implicit in the legislation defining the grand jury's subject matter
jurisdiction.
respect to a grand jury report is implicit in the legislation defining the grand jury's subject matter
jurisdiction. NRS 172.175.
5. Grand Jury.
Grand juries are within the control of the courts, which should exercise their powers over the grand jury
when appropriate.
6. Grand Jury.
District court has limited power to review reports of grand juries within its jurisdiction prior to
publication of the reports; trial judge simply reviews the proposed report to determine whether the jury has
acted not just irresponsibly but unlawfully.
7. Grand Jury.
Judiciary must refrain from interfering unduly with the grand jury through any investigatory stage of its
work, whether the investigation is reportorial or inquisitorial or both in nature. NRS 172.175.
8. Grand Jury.
A grand jury report which was an expos relating to the purchase of land by one person and his attempt to
sell a portion of it to a local government agency while profiting on the remainder of the property and which
evidenced the fact that some local governmental officials favoring the purchase from the individual were
regularly entertained without charge at a brothel which he ran was generally detailed with respect to factual
matters and was not a proper subject of expungement by the court. NRS 172.175.
9. Grand Jury.
If a grand jury has gone beyond its express authority in compiling a report, expungement is the proper
remedy. NRS 172.175.
10. Grand Jury.
Legislative grant to grand juries of the authority to investigate and report on matters affecting the morals,
health and general welfare of inhabitants of the county is not an unchecked opportunity by which a grand
jury may make adverse findings, conclusions, and recommendations concerning acts, omissions, or
practices which, although not expressly forbidden by law, are immoral and thus subject to censure. NRS
172.175.
11. Grand Jury.
Grand jury convened in washoe County exceeded its statutory authority relative to its reference, in a
report, to one person's purported activities in Montana and those portions of the report should have been
expunged by the court prior to publication. NRS 172.175.
12. Constitutional Law; Grand Jury.
Statute permitting the grand jury to make an investigation and issue a report is not overbroad, does not
deny equal protection, and does not violate the separation of powers doctrine. NRS 172.175.
OPINION
In July, 1974, the Washoe County Grand Jury commenced an investigation which focused
upon a matter commonly referred to as the Conforte Land Transaction wherein northern
Nevada brothel owner and appellant herein, Joseph Conforte, had purchased for development
several hundred acres of ranch land located in the City of Sparks.
land located in the City of Sparks. Conforte subsequently sold a portion of the property to the
Washoe County Convention Authority for use as a golf course. Development of the golf
course at county expense greatly enhanced the value of the property retained by appellant.
The scope of the investigation expanded measurably, ultimately involving members of
both the then Reno and Sparks City Councils, Washoe County Commission, Washoe
Convention Authority and various former public officials.
The grand jury publicly disseminated its report March 15, 1976 prior to review by the
District Court. Among other things and in detail, it related that Conforte had established
substantial contacts with a number of the public officials who were directly involved in the
land transaction and other matters related thereto; that he contributed financially to their
political campaigns and/or extended to them other favors or gratuities; that the courtesies
had been extended to four of the five members of the Convention Authority who were
concurrently members of the Reno and Sparks City Councils, and the Washoe County
Commission, the governmental entities responsible for a substantial majority of all decisions
affecting the public's welfare in Washoe County.
The report further disclosed a 1962 felony-extortion conviction and 1963 federal
felony-income tax evasion conviction from appellant's criminal history; related his apparent
affiliation with a number of ex-felons; referred to his ownership of the Mustang brothel in
Storey County, and its effects on the inhabitants of adjoining Washoe County; mentioned that
establishment's claimed deleterious health effects on Washoe County; and even made
reference to an alleged attempt by appellant to establish close contacts with public officials
in Libby, Montana with an apparent intent on his part of expanding business operations into
that area.
No presentments or indictments accompanied the report, and in our view, none was legally
returnable, a conclusion expressly mentioned by the grand jury, in which we concur.
[Headnote 1]
Appellant took exception to the report, contending that he was prominently and
specifically identified in portions of it. Consequently, he petitioned the district court to
expunge not only those portions referring to him, but the entire report, including portions
referring to other individuals. We note that appellant lacks standing respecting the latter
challenge.
The trial court expunged only a segment of the report which referred to Conforte's refusal
to testify before the grand jury and his assertion of his Fifth Amendment constitutional
privilege.
and his assertion of his Fifth Amendment constitutional privilege. Appellant, requesting
further expungement, has appealed.
Appellant contends that the report accuses him of the crime of bribery.
1
Appellant raises
other issues for our consideration; however, we perceive only one of them as meriting
discussion, namely, whether a district court must review a grand jury report prior to its
release. A related issue requires us to inquire into the scope and extent of a grand jury's
reportorial authority. These issues are of considerable importance to the State's grand jury
reportorial process. We turn now to consider them.
[Headnote 2]
In Nevada, unlike many other jurisdictions, the grand jury has investigatory authority over
diversified local governmental agencies and activities. NRS 172.175; Parus v. District Court,
42 Nev. 229, 174 P. 706 (1918). Specific legislative authorization for grand jury reports in
Nevada was first enacted in 1943.
2
Today, the pertinent statute is NRS 172.175 which in
relevant part provides:
2. The grand jury may inquire into and report on any and all matters affecting the
morals, health and general welfare of the inhabitants of the county, or any
administrative division thereof, or of any township, incorporated city, irrigation district
or town therein. [Emphasis added.]
The authority of a grand jury to investigate matters pertaining to the public welfare,
morals, or safety of the community is restrained only by NRS 172.175(3), which provides:
3. No report issued pursuant to this section shall single out any person or persons
which directly or by innuendo, imputation, or otherwise accuses such person or persons
of a wrongdoing which if true would constitute an indictable offense unless the
report is accompanied by a presentment or indictment of such person or persons.
____________________

1
NRS 197.020 states:
Every person who shall give, offer or promise, directly or indirectly, any compensation, gratuity or
reward to a person executing any of the functions of a public officer other than as specified in NRS
197.010, 199.010 and 218.590, with intent to influence him with respect to any act, decision, vote or
other proceeding in the exercise of his powers or functions, 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
See NCL, 1943-49 Supp. 787 (1950); 1943 Stats. Nev. at 228-29.
The power to report may have been contained in the first compilation of Nevada law. Bonnifield and
Healy's 1873 edition of the Compiled Laws, Volume 1 at Section 1835, shows that Nevada grand juries
have historically been directed to inquire into the condition of prisoners and prisons and into the willful
and corrupt misconduct in office of public officers.
of a wrongdoing which if true would constitute an indictable offense unless the report is
accompanied by a presentment or indictment of such person or persons. At the time any
grand jury is impaneled, the provisions of this subsection shall be included in the charge
to such grand jury.
Respondent argues that there is no compelling justification to judicially restrain the efforts
of the grand jury where the legislature has intentionally or inadvertently refrained. Compare
Wood v. Hughes, 173 N.E.2d 21 (N.Y. 1961); but see Re Investigation of South Mall
Financing, 330 N.Y.S.2d 170 (N.Y. 1972), cf. People v. Superior Court of Santa Barbara
County, 531 P.2d 761 (Cal. 1975). We disagree.
[Headnote 3]
While the return of either a presentment or indictment is expressly required by statute to
be made to the district court (NRS 172.115, 172.125), there is no such express mandate
regarding a report on matters affecting the morals, health, and general welfare of the
community. However, according to NRS 172.175(3), if this report in effect accuses an
individual of an indictable offense, the report must be accompanied by an indictment or
presentment, both of which must be filed with the court.
While it would appear quite obvious that a report pursuant to NRS 172.175 will be filed
with the court as a matter of routine, the significance is the silence of the statute with respect
to reports but not to presentments or indictments. This significance is magnified when the
court is asked to impose a requirement of pre-release review.
It is, of course, our prerogative to interpret NRS 172.175 as allowing the district court the
power to refuse to file reports which exceed the grand jury's authority. See People v. Superior
Court of Santa Barbara County, supra. There, the district attorney sought a writ of prohibition
restraining the trial court from reviewing the grand jury report prior to filing.
In a sharply split decision, the California Supreme Court held that the trial court had the
power of limited review to insure that the grand jury not exceed its authority.
As in so many other instances, we face here competing values; the value of the
protection of the public through the unrestricted power of the grand jury to probe and
expose the operations of government, as opposed to the value of the protection of the
individual from unlawful and unauthorized conduct of that tribunal. Although we
recognize the advantage of a wider range in the grand jury's investigatory authority, we
do not accept the extreme position that such authority is absolute or that its sweep is
so extensive that under any and all circumstances its proposed reports may be
publicized. Id., at 769.
extreme position that such authority is absolute or that its sweep is so extensive that
under any and all circumstances its proposed reports may be publicized. Id., at 769.
[Headnote 4]
Although no Nevada statute expressly permits even limited judicial review, we elect to
follow the lead of the California Supreme Court. To us, judicial review to determine the
excess of established legal limits is implicit in legislation defining the grand jury's subject
matter jurisdiction, is confirmed in the common law (see In re Presentment of Camden
County Grand Jury, 89 A.2d 416 (N.J. 1952); State v. Wurdeman, 187 S.W. 257 (Mo. 1916),
see generally Kuh, The Grand Jury Presentment: Foul Blow or Fair Play? 55 Colum. L.Rev.
1103, 1132 (1955)), and, here, is mandated by the trial court's own instructions given during
the body's organizational meeting in 1974.
3

[Headnotes 5-7]
Grand juries have traditionally been within the control of the courts, In re Grand Jury
Subpoena to Central States, 225 F.Supp. 923 (N.D. Ill. 1964); In re Ormsby Grand Jury, 74
Nev. 80, 322 P.2d 1099 (1958); and the trial judge should exercise his powers when
appropriate. United States v. Doulin, 538 F.2d 466 (2d Cir. 1976), cert. denied, 429 U.S. 895.
Moreover, our constitutional and statutory scheme contemplate reasonable judicial control of
our grand juries. Thus, the court presides at the impanellment of the grand jury (Art. 6, 5,
Nev.
____________________

3
Instruction No. 12 provided in part:
A Grand Jury cannot forage at will upon any whim it may entertain. Your geographical jurisdiction is
Washoe County. Therefore, you are not permitted to investigate any matters or situations of a statewide
or national character.
In any written report you should not administer a reprimand or condemnation of any person or
persons for failure to meet the standards fixed by your own ethical or moral views, the violation of which
are not crimes or public offenses under the laws of this state. The reason for this rule is that such a report
gives the individual named, or designated, no opportunity to reply or defend himself as he could do at his
trial if you found and issued against him an Indictment for the commission of a crime. [Emphasis added.]
In an attempt to define the procedural method in which a grand jury report under NRS 172.175 must
issue, the court gave Instruction No. 14 which in part provided:
Under the provisions of this statute, you must inquire into misconduct in office of public officials of
every description within the county, save and except the courts. The reason for this rule is that the Grand
Jury is empaneled by the court and must report its findings only to the court. [Emphasis added.] In many
respects, the Grand Jury is a part of the Judiciary and, therefore, cannot investigate the governmental
entity under which the Grand Jury functions. The law provides other means for the investigation and
correction of irregularities in the conduct of Judges.
Const.; NRS 6.110-140), receives presentments and indictments (Art. 6, 5, Nev. Const.;
NRS 172.255, 172.285), determines when a grand jury shall be impanelled (NRS 6.110,
6.130), charges the grand jury as to its authorities and responsibilities (NRS 172.095), and
determines when a grand jury is to be discharged, recessed (NRS 6.145), or a juror excused
(NRS 172.275). Accordingly, we hold the district court has the limited power to review
reports of grand juries within its jurisdiction prior to publication.
This limitation will not unduly interfere with the grand jury's reportorial authority, since
the trial judge simply will be reviewing the proposed report to determine whether the jury,
one of it appendages, has acted not just irresponsibly, but unlawfully. Of course, the judiciary
will refrain from interfering unduly with the grand jury during the investigatory stage of its
work, whether the investigation is reportorial or inquisitorial or both in nature.
4
Compare
United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied, 352
U.S. 981. Thus the judgmental independence of the grand jury will continue, with the district
court having no authority either to impose its own views on the grand jury or to suppress a
report simply because it considers it ill-advised, insufficiently documented or even libelous.
People v. Superior Court of Santa Barbara County, supra, at 766. Trial court pre-filing review
is consistent with the concept of judicial economy, since it will avert post-filing expungement
proceedings or, at least minimize the scope and extent of such proceedings.
[Headnotes 8, 9]
Appellant's argument is that, without some restriction by the courts on the content of a
grand jury report, individuals cannot adequately defend themselves. As a matter of fairness, it
seems sufficient that appellant in this case was given an opportunity to testify and present
evidence for consideration by the grand jury. The report presumptively was made in the
public interest. Here, as Mr. Conforte was inextricably involved with public officials and
matters of significant public concern, such involvement was appropriately directed to the
community's attention. Appellant was not accused of any crime or publicly condemned
without indictment. Appeal of William Gregory, 77 Nev. 290, 362 P.2d 447 (1961). The
report was in part an expos relating to the purchase of land by Conforte and his attempt to
sell a portion of it to a local governmental agency while profiting on the remainder of the
property. The report evidenced that some local governmental officials favoring the purchase
from Conforte were regularly entertained without charge at Conforte's Mustang brothel.
____________________

4
A district court's suppression in whole or in part, of a legally valid grand jury report is, of course, subject to
appellate review. NRAP 3 A(b)(1).
local governmental officials favoring the purchase from Conforte were regularly entertained
without charge at Conforte's Mustang brothel. Compare In Re Presentment By Camden
County Grand Jury, 169 A.2d 465 (1961). The report generally thus detailed factual matters
and is not properly subject to expungement. In re Ormsby Grand Jury, supra. If a grand jury
has gone beyond its express authority, expungement is the proper remedy. Appeal of Gregory,
supra; Clemmons v. State, 141 So.2d 749 (Fla.App. 1962). Here, the report was generally
issued in the legitimate community interest, and Conforte, with one exception, has not
demonstrated that justice requires further expungement.
[Headnotes 10, 11]
Touching once again on the scope and extent of grand jury reportorial authority, In re
Ormsby Grand Jury, supra, at 85, 322 P.2d at 1102, held:
There are limits to its reportorial power, however. Such power to report upon public
affairs must be distinguished from the power to accuse of public offense, which by
statute is accomplished by indictment or presentment. The grand jury has no power,
where the law is silent, to declare certain acts to be public offenses through the fixing of
standards in accordance with its ethical or moral views.
The legislative grant to grand juries of the authority to investigate and report on any and all
matters affecting the morals, health and general welfare of the inhabitants of the county was
not an unchecked opportunity by which a grand jury could make adverse findings,
conclusions and recommendations concerning acts, omissions or practices, which although
not expressly forbidden by law, were immoral and therefore subject to censure. Moreover, the
proper territorial scope of any grand jury investigation is limited to the county in which it is
impanelled. NRS 172.175(2). Accordingly, we find that the grand jury exceeded its statutory
authority relative to its reference to appellant's purported Libby, Montana activities. However,
notwithstanding the fact that the district court was not afforded the opportunity to preview the
instant report, the grand jury generally acted within its province.
We hold that the district court properly denied expungement of the remaining portions of
the grand jury report, with the exception of the reference to the Libby, Montana matter, and as
to that portion, we remand for modification by the district court of its findings, conclusion
and judgment and for expungement of page 29, lines 17-28; page 30, lines 1-4.
[Headnote 12]
Appellant's claim that the reporting statute is vague and overbroad, that he was denied
equal protection, that the secrecy provisions of the Nevada Revised Statutes were violated,
and that the reportorial functions of the grand jury violate the separation of powers doctrine
are all without merit.
Affirmed as modified with instructions.
Mowbray, C. J., and Fondi, D. J.,
5
concur.
Batjer, J., concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which states: It is, of course,
our prerogative to interpret NRS 172.175 as allowing the district court the power to refuse to
file reports which exceed the grand jury's authority., and from the holding of the majority
that the district court has the limited power to review reports of grand juries within its
jurisdiction prior to publication.
The majority concedes there is no statutory authority requiring or authorizing a district
court to review reports of grand juries prior to publication and relies heavily upon People v.
Superior Court of Santa Barbara County, 531 P.2d 761 (Cal. 1975) in reaching its holding. A
close examination of the California cases decided prior to Santa Barbara County reveal none
holding or suggesting that a right exists in a judge to subject the report of a grand jury to prior
judicial censorship and approval.
As Justice Stanley Mosk wrote in his dissent in Santa Barbara County:
Indeed, no statute gives to a court the duty or right to investigate or report on county or
other governmental affairs. Nevertheless the ability to suppress the whole, or to excise
parts, of a report, in effect places with the court responsibility over the investigating and
reporting of matters entirely extraneous to the judicial function. By authorizing this
procedure, the majority thrust the court into the maelstrom of local government
controversy. For if the court may suppress reports with which it finds fault, a failure to
suppress will be deemed approval.
The proper course is the traditional course. The grand jury may file its reportwith the
court only because the law directs that to be the resting placeand the grand jury alone
assumes the responsibility for content. If there is to be any prior restraint on the grand
jury, its work or its work product, the Legislature must authorize it."
____________________

5
The Governor designated Michael Fondi, Judge of the First Judicial District, to sit in the place or The
Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
be any prior restraint on the grand jury, its work or its work product, the Legislature must
authorize it.
Neither by direct order nor by the suppression of a report should a court prevent a grand
jury from expressing views on subjects the court might believe improper.
As a result of the majority opinion, this Court is in effect expanding the jurisdiction of the
district courts and diminishing the jurisdiction of the grand jury.
I would deny all district courts the power to review prior to publication the reports of
grand juries within their jurisdiction.
I concur with the remainder of the majority opinion.
Gunderson, J., concurring and dissenting:
I agree with Justice Batjer's view that district courts have no lawful franchise to censor
grand jury reports before they are filed and made public. I also agree that this court has no
lawful franchise to interject one person, a district judge, between the public's right to know
and evaluate a grand jury's actions. If citizens, on occasion, believe that a particular grand
jury has exceeded its lawful authority, then I submit it is more appropriate to require the
persons thus arguably aggrieved to present their contentions, as was done in this case, through
public proceedings for expungement. We should not constitute district judges the final
censors of the public issues considered by grand juries, in closed proceedings forever veiled
in secrecy.
In the instant case, I can agree that the grand jury exceeded its lawful authority, in dwelling
on activities in the state of Montana. Also, without indicting those accused, the grand jury
rather clearly implied that criminal conduct occurred during the association of public officials
and the petitioner. Thus, in my view, although the district court did not have authority to
restrain the grand jury from announcing their views on such matters, the petitioner is entitled
to have such views declared to be in excess of the jury's lawful authority.
____________
95 Nev. 131, 131 (1979) Tahoe Village Realty v. DeSmet
TAHOE VILLAGE REALTY, S.A.W. CO., FERDIE SIEVERS, LEONARD J. WYKOFF,
JERRY L. ALLEY, Appellants, v. HECTOR DeSMIT, and BETTY E. DeSMIT, Husband
and Wife, Respondents.
No. 10324
February 21, 1979 590 P.2d 1158
Appeal from judgment, First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Purchasers commenced action alleging that defendants engaged in fraud and deceit in sale
of certain real estate. After default judgment was entered against defendants, defendants
moved to set aside same. The district court denied defendants' motion and, after dismissal of
an appeal therefrom without prejudice, entered judgment against defendants jointly and
severally for $3,150 in compensatory damages and $15,000 in punitive damages, and
defendants appealed. The Supreme Court, Gabrielli, D. J., held that: (1) where defendants
made no attempt to establish that failure to file answer resulted from mistake, inadvertence,
surprise or excusable neglect on part of counsel, and, even if defendants' delay were
considered excusable, their affidavit and answer failed to set out a meritorious defense to
plaintiffs' claim of fraud, district court did not abuse its discretion in refusing to set default
judgment aside, and (2) district court did not abuse its discretion in awarding $15,000
punitive damages against defendants.
Affirmed.
Carl F. Martillaro, Carson City, for Appellants.
Jaquette & Kilpatrick, Carson City, for Respondents.
1. Judgment.
Although failure to file answer may have suggested neglect on part of defendants' counsel, district court
was not bound to declare it excusable, for purposes of setting aside default judgment obtained against
defendants. NRCP 55(c), 60(b)(1).
2. Judgment.
Even if defendants' delay in filing a responsive pleading to plaintiff purchasers' complaint, alleging fraud
and deceit in sale of real estate, were considered excusable, their affidavit and answer, which alleged
disclosure to plaintiffs of fact that defendant investment company, which was composed of defendant real
estate agents, was vendor, failed to set out a meritorious defense to plaintiffs' claim of fraud, for purposes
of setting aside default judgment against defendants, where defendants neither disclosed nor denied
that had transaction gone through, whereby defendants purchased land from original
vendor and then sold it to plaintiffs, defendant, would have made a secret profit of
$2,000.
nor denied that had transaction gone through, whereby defendants purchased land from original vendor and
then sold it to plaintiffs, defendant, would have made a secret profit of $2,000. NRCP 55(c), 60(b)(1).
3. Brokers.
Licensed real estate agents were prohibited from engaging in a double escrow transaction.
4. Judgment.
General rule is that negligence of an attorney is imputable to his client and latter cannot be relieved from
a judgment taken against him, in consequence of the neglect, carelessness, forgetfulness or inattention of
the former.
5. Judgment.
Where defendants made no attempt to establish that failure to file answer resulted from mistake,
inadvertence, surprise or excusable neglect on part of counsel, and, even if defendants' delay were
considered excusable, their affidavit and answer failed to set out a meritorious defense to plaintiffs' claim
of fraud, district court did not abuse its discretion in refusing to set aside default judgment entered against
defendants. NRCP 55(c), 60(b)(1).
6. Contribution; Indemnity.
If codefendant in fraud action in which punitive damages were awarded against all defendants had wished
to vindicate himself, he could have entered an appearance and either moved to dismiss or sought
contribution or indemnity.
7. Damages.
Assessing punitive damages is wholly subjective; there are no objective standards by which monetary
amount can be calculated.
8. Fraud.
In action alleging that defendants engaged in fraud and deceit in sale of real estate to plaintiffs, district
court could have taken into account defendants' culpability and financial worth to arrive at its award of
punitive damages.
9. Damages.
Amount of punitive damages assessed should be sufficient to punish a wrongdoer and deter others from
acting in a similar manner without financially annihilating defendant.
10. Fraud.
In action alleging that defendants engaged in fraud and deceit in sale of certain real estate, trial court, in
awarding punitive damages, could properly rely on uncontroverted evidence of financial worth presented
notwithstanding fact that only evidence of financial worth of some of defendants was testimony of other
defendants.
11. Damages.
Punitive damages were not required to be awarded against joint defendants according to culpability of
least culpable defendant.
12. Fraud.
In purchasers' action against licensed real estate agents, alleging that defendants engaged in fraud and
deceit in sale of certain real estate, district court had sufficient evidence before it to determine whether an
award of punitive damages should be made and amount of award and it did not abuse its discretion in either
award of punitive damages or amount thereof, i.e., $15,000; while award was quite high, it did not shock
the Supreme Court's conscience in instant case, wherein expertise, professionalism,
ethics and reliability of licensed real estate agents were involved.
Supreme Court's conscience in instant case, wherein expertise, professionalism, ethics and reliability of
licensed real estate agents were involved.
OPINION
By the Court, Gabrielli, D. J.:
1

On February 12, 1976, respondents Hector and Betty DeSmet commenced this action
alleging that appellants had engaged in fraud and deceit in the sale of certain real estate.
Appellants' prior counsel withdrew on May 11, 1976, without having filed a responsive
pleading. On June 8, 1976, a default judgment was entered against appellants Wykoff, Tahoe
Village Realty and S.A.W. Co. On August 26, 1976, a default judgment was entered against
appellants Sievers and Alley.
Appellants Wykoff, Alley and Sievers all contacted their substitute, and present, counsel
for the first time on September 13, 1976. Appellants moved to set aside the default judgment
on December 7, 1976. Their motion was denied on April 22, 1977, and an appeal therefrom
dismissed by this court without prejudice on July 13, 1977.
On August 26, 1977, judgment was entered against appellants jointly and severally for
$3,150 in compensatory damages and $15,000 in punitive damages. Appellants now seek
reversal of this judgment contending (1) the district court abused its discretion in refusing to
set aside the default judgment, and (2) the district court erred in awarding punitive damages.
[Headnotes 1-5]
1. Appellants argue that an abuse of discretion occurred in the district court's refusal to set
aside the defaults because their neglect was excusable and not in bad faith. In support of
this argument appellants contend that the evidence shows (a) they mistakenly believed that a
responsive pleading had been timely filed; (b) they promptly attempted to have the default set
aside; and, (c) they had a meritorious defense to the suit and raised this by affidavit in support
of the motion to set aside the default. They also contend that their attorney's failure to file a
responsive pleading should not be imputed to them.
NRCP 55(c) provides that [f]or good cause shown the court may set aside an entry of
default. . . . Here, appellants' motion to set aside the default judgment was premised upon
____________________

1
The Governor designated the Honorable John E. Gabrielli, Judge of the Second Judicial District, to sit in the
place of The Honorable Noel E. Manoukian, Justice, who was disqualified. Nev. Const. art. 6, 4.
excusable neglect, a ground for challenging a final judgment under NRCP 60(b)(1).
2

Though counsel may have mistakenly proceeded under an inappropriate rule in
expressing his ground to vacate the entry of default, this does not work to his prejudice,
since the phrase good cause shown in Rule 55(c) is broad in scope, and includes the
mistake, inadvertence, surprise and excusable neglect referred to in Rule 60(b)(1).
Intermountain Lumber v. Glens Falls, 83 Nev. 126, 129, 424 P.2d 884, 886 (1967).
No attempt has been made by appellants to establish that the failure to file an answer
resulted from mistake, inadvertence, surprise or excusable neglect on the part of counsel.
Though this conduct may suggest neglect, the district court was not bound to declare it
excusable. Intermountain Lumber v. Glens Falls, supra, and cases cited therein.
Even if appellants' delay were considered excusable, their affidavit and answer fail to set
out a meritorious defense to respondents' claim of fraud. Their defense consists of an alleged
disclosure to respondents that S.A.W. Co., an investment company composed of appellants
Sievers, Alley and Wykoff, was the seller. However, appellants did not disclose, nor do they
now deny, that had the transaction gone through as planned, they would have made a secret
profit of $2,000. Moreover, as licensed real estate agents, appellants were prohibited from
engaging in a double escrow transaction. See Alley v. Nevada Real Estate Div. 94 Nev.
123, 575 P.2d 1334 (1978).
Appellants' only remaining argument is that their attorney's nonfeasance should not be
imputed to them. We have previously considered and resolved this issue: It is a general rule
that the negligence of an attorney is imputable to his client, and that the latter cannot be
relieved from a judgment taken against him, in consequence of the neglect, carelessness,
forgetfulness, or inattention of the former. Guardia v. Guardia, 48 Nev. 230, 233-234, 229 P.
386, 387 (1924). See Intermountain Lumber v. Glens Falls, supra. Cf. Norris v. Phillips, 86
Nev. 619, 472 P.2d 347 (1970).
From the foregoing, it is apparent to us that the grounds for setting aside a default
judgment were not met and that the district court did not abuse its discretion by refusing to set
it aside.
____________________

2
NRCP 60(b)(1) provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect.
[Headnotes 6-12]
2. Appellants also contend the district court erred in awarding punitive damages.
Appellants first argue that there was insufficient evidence to find that Sievers acted with
malice. Evidence was adduced at the damages hearing that appellant Alley, then employed by
Village Realty, took a listing to sell certain land for $6,000, including the commission, on
September 7, 1973. Later that day, respondents were shown the land and told the purchase
price was a firm $8,000. Respondents paid a $100 deposit. The next day, S.A.W. Co.,
appellants' investment firm, purchased the land from the original seller for $6,000. Sievers,
Alley and Wykoff, acting for S.A.W. Co., then sold the property to respondents for $8,000,
thereby making a $2,000 profit. Alley, the salesman, and Wykoff, the broker and owner of
Village Realty, testified to their involvement in the transaction and admitted wrongdoing.
Sievers made no appearance in the action and offered no evidence to refute the respondents'
allegations that he had full knowledge of the fraudulent transaction. Had he wished to
vindicate himself, he could have entered an appearance and either moved to dismiss or sought
contribution or indemnity.
Appellants next argue that no evidence was presented as to whether each appellant acted in
an equally malicious manner. They contend that an award of punitive damages against all the
defendants without distinguishing the allegedly varying degrees of culpability was improper.
Appellants further argue that the evidence showed that each of them had different financial
worth and that the court is required to consider these variances and award amounts against
each appellant accordingly.
In Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974), we pointed out that
the assessing of punitive damages is wholly subjective. There are no objective standards by
which the monetary amount can be calculated. Thus, in this case, the district court could very
well have taken into account appellants' culpability and financial worth to arrive at its award.
Furthermore, the amount of punitive damages assessed should be sufficient to punish a
wrongdoer and deter others from acting in a similar manner without financially annihilating
the defendant. Id. There has been no suggestion made by appellants that the award in this case
would financially annihilate any of them.
Appellants also argue that the only evidence of the financial worth of some of them was
the testimony of other appellants. They assert that such evidence is an insufficient basis for
the court to determine financial worth. However, in Caple, this court refused to reverse an
award of punitive damages where no indication of the financial worth of the defendant was
presented at trial.
no indication of the financial worth of the defendant was presented at trial. In the absence of
such evidence, we stated that we were in no position to question the amount of the award.
Therefore, having refused to find an award of punitive damages improper where no evidence
of financial worth was presented, it seems clear that the trial court in this case could properly
rely on the uncontroverted evidence of financial worth presented.
Finally, appellants argue that punitive damages should be awarded against joint defendants
according to the culpability of the least culpable defendant. No persuasive legal authority was
cited in support of this novel proposition and, thus, it is summarily rejected. See Holland
Livestock v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976).
The district court had sufficient evidence before it to determine whether an award of
punitive damages should be made, and the amount of the award. Based upon Caple, we are
constrained to conclude that the district court did not abuse its discretion in either the award
of punitive damages or the amount thereof. While the award is quite high, it does not shock
our conscience in this case, wherein the expertise, professionalism, ethics and reliability of
licensed real estate agents of this state are involved.
The judgment and award of damages is affirmed.
____________
95 Nev. 136, 136 (1979) Warrington v. Empey
JAMES C. WARRINGTON, dba JAMES C. WARRINGTON and ASSOCIATES; JAMES
McCOY, dba McCOY-NEVADA REAL ESTATE; and HARRY HUCKINS, Appellants, v.
GENE EMPEY and DENNIS TURNER, Respondents.
No. 8838
February 22, 1979 590 P.2d 1162
Appeal from judgment, Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Two real estate brokers brought action against third real estate broker for breach of
contract, willful interference with rights under listing agreement and conspiracy to defraud,
and also brought action against purchaser of real estate for interfering with cobrokerage
contract and conspiracy to defraud.
The third broker cross-claimed against the purchaser seeking broker's commission based upon
alleged breach of written contract. The district court entered judgment in favor of third broker
and purchaser on claims of the two brokers and in favor of the third broker on his
cross-claim, and other brokers appealed. The Supreme Court held that evidence was sufficient
to support finding of trial court that brokers, in simply introducing purchaser to third broker,
were not procuring cause of sale which subsequently occurred.
Affirmed.
Donald W. Gilfillan, Incline Village, for Appellants.
Diehl, Recanzone & Evans, Fallon, for Respondent Turner.
Laxalt, Berry & Allison, and James T. Russell, Carson City, for Respondent Empey.
1. Contracts.
Essential to creation of contract, whether express or implied, is manifestation by the parties of intent to
contract.
2. Contracts.
In implied contract, intent required to create contract is inferred from conduct of parties and other
relevant facts and circumstances.
3. Customs and Usages.
While custom and usage may be used to establish terms of contract, they cannot create contract where
none existed.
4. Brokers.
If real estate broker has been procuring cause of sale, he is entitled to his agreed commission
irrespective of who makes actual sale or terms thereof.
5. Brokers; Conspiracy; Torts.
In action by two real estate brokers against third real estate broker for breach of contract, willful
interference in rights under listing agreement and conspiracy to defraud and against purchaser of real estate
for interference with cobrokerage contract and conspiracy to defraud, evidence was sufficient to support
finding of trial court that plaintiff brokers, in simply introducing purchaser to third broker, were not
procuring cause of sale which subsequently occurred.
OPINION
Per Curiam:
On May 23, 1972, the owner of 210 acres of ranch property near Dayton, Nevada, entered
into an exclusive written listing agreement with respondent Empey, a real estate broker. The
agreement included a 10% broker's commission to be paid to Empey in the event of a sale as
a result of his efforts. This agreement was cancelled by the owner on November 30, 1972.
Respondent Turner was interested in buying ranch property and, accordingly, on
November 28, 1972, he contacted appellant Huckins, a real estate broker employed by
appellant James C. Warrington. Since a fellow salesman, appellant McCoy, knew that Empey
had a listing on the aforementioned property, he contacted Empey to arrange a viewing of this
property. The three salesmen/brokers (Empey, McCoy and Huckins) and Turner all drove out
to look at the property from a road bordering the property. During this viewing, McCoy and
Huckins misrepresented to Turner the possible uses of the property. Empey corrected this
misstatement. Thereafter, Turner, dissatisfied with appellants' handling of the matter, dealt
directly with Empey, after first agreeing with Empey to satisfy his obligation to appellants.
In February of 1973, Turner, with Empey's assistance, made an offer for the property and
paid $5,000 earnest money, but negotiations failed and Empey withdrew his services.
Subsequently, on March 26, 1973, Turner negotiated an agreement to purchase the property
and agreed to pay Empey 5% of the sales price as consideration for his services.
Appellants subsequently commenced this action seeking damages (1) from Empey for a
breach of contract, and wilfull interference with their rights under the seller's listing
agreement; (2) from Turner for interference with the co-brokerage contract; and, (3) from
Empey and Turner for an alleged conspiracy to defraud appellants out of their share of the
real estate commission. Additionally, Empey cross-claimed against Turner seeking a 5%
broker's commission based upon an alleged breach of a written contract.
After a trial without jury, the district court concluded there was no contract between
Empey and appellants and, accordingly, Empey was not obligated to pay appellants one-half
of the real estate commission. The district court awarded Empey $9,500 based upon Turner's
admitted liability.
Appellants contend that the district court erred in finding that there was no contract
between appellants and Empey.
[Headnotes 1, 2]
Essential to the creation of a contract, whether express or implied, is a manifestation, by
the parties, of an intent to contract. See Smith v. Recrion Corp., 91 Nev. 666, 541 P.2d 663
(1975); Morgan v. Board of State Lands, 549 P.2d 695 (Utah 1976); Milone and Tucci, Inc. v.
Bona Fide Builders, 301 P.2d 759 (Wash. 1956); Richards v. Kuppinger, 278 P.2d 395
(Wash. 1955). In an implied contract, such intent is inferred from the conduct of the parties,
and other relevant facts and circumstances. Chandler v. Roach, 319 P.2d 776 (Cal.App.
1957). See Martens v. Metzgar, 524 P.2d 666 {Alaska 1974); Ray F. Fischer Co. v.
Martens v. Metzgar, 524 P.2d 666 (Alaska 1974); Ray F. Fischer Co. v. Loeffler-Green
Supply Co. 289 P.2d 139 (Okla. 1955); Kilthau v. Covelli, 563 P.2d 1305 (Wash.App. 1977).
[Headnote 3]
1. Appellants first argue that such circumstances may be found in the custom and usage of
the real estate trade. However, while custom and usage may be used to establish the terms of
a contract, it cannot create one where none existed. John I. Haas, Inc. v. Wellman, 186 F.2d
862 (9th Cir. 1951); Century Insurance Agency, Inc. v. City Commerce Corp., 396 P.2d 80
(Alaska 1964); Milone and Tucci, Inc. v. Bona Fide Builders, supra; Hanley v. March &
McLennan-J.B.F. Davis & Son, 117 P.2d 69 (Cal.App. 1941).
[Headnotes 4, 5]
2. Appellants argued, alternatively, that such conduct is evidenced by their act of
procuring the buyer. If a real estate broker has been a procuring cause of a sale, he is entitled
to his agreed commission, irrespective of who makes the actual sale or the terms thereof.
Schneider v. Biglieri, 94 Nev. 426, 581 P.2d 8 (1978). While this court has acknowledged
that the determination of who was a procuring cause is elusive, we have set forth some
guidelines for the district courts to follow in making this factual determination. In Bartsas
Realty, Inc. v. Leverton, 82 Nev. 6, 9, 409 P.2d 627, 629-30 (1966), we stated that:
It is impossible to measure in quantitative units the efforts necessary to constitute
procuring cause. Suffice that on the one hand it is conduct that is more than merely
trifling. (Citation omitted.) Thus in non-exclusive situations, merely introducing the
eventual purchaser is not necessarily enough. (Citations omitted.) The first broker still
may be shown to have abandoned efforts or been helplessly ineffective. (Citations
omitted.)
We find that there was sufficient evidence for the district court to determine that appellants,
in simply introducing Turner to Empey, were not the procuring cause of the sale. See
Schneider v. Biglieri, supra. Accordingly, the Judgment of the district court is affirmed.
1

____________________

1
The Governor designated the Honorable Merlyn H. Hoyt. Judge of the Seventh Judicial District Court, to sit
in the place of The Honorable Cameron M. Batjer, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 140, 140 (1979) Mayes v. State
OLIVIA LYNN MAYES, Appellant, v. THE
No. 10066
February 28, 1979 591 P.2d 250
Appeal from judgment, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Defendant was convicted by a jury in the district court of grand larceny, and she appealed.
The Supreme Court, Batjer, J., held that because of frequency of thefts committed by
prostitutes after having had sexual intercourse with victims, evidence of three other thefts
allegedly committed by defendant prostitute was not admissible to show identity in
prosecution for charged theft, absent evidence that some distinctive characteristic was
common to charged theft and three other thefts and not common to other prostitute thefts.
James L. Buchanan II, Las Vegas, for Appellant.
H. Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
When identity of perpetrator of crime is in issue, evidence of other crimes or wrongs committed by
defendant may be admitted for limited purpose of identity if probative value of such evidence outweighs its
prejudicial effect. NRS 48.045, subd. 2.
2. Criminal Law.
Evidence of other crimes has a strong probative value when there is sufficient evidence of similar
characteristics of conduct in each crime to show perpetrator of other crime and perpetrator of crime for
which defendant has been charged is one and same person. NRS 48.045, subd. 2.
3. Criminal Law.
Although admission of evidence of separate and independent criminal acts rests within sound discretion
of trial court, it is, nevertheless, duty of that court to strike proper balance between probative value of
evidence and its prejudicial dangers. NRS 48.035.
4. Criminal Law.
Because of frequency of thefts committed by prostitutes after having had sexual intercourse with victims,
evidence of three other thefts allegedly committed by defendant prostitute was not admissible to show
identity in prosecution for charged theft, absent evidence that some distinctive characteristic was
common to charged theft and three other thefts and not common to other prostitute
thefts.
95 Nev. 140, 141 (1979) Mayes v. State
characteristic was common to charged theft and three other thefts and not common to other prostitute
thefts. NRS 48.035, 48.045, subd. 2.
OPINION
By the Court, Batjer, J.:
Appellant was convicted by a jury of grand larceny, NRS 205.220,
1
and sentenced to
serve a term of 10 years in the Nevada State Prison. The state alleged that appellant, while
plying her trade as a prostitute, had stolen the victim's money and jewelry after sexual
intercourse. On appeal, she claims that the district court erred by allowing the introduction of
evidence of other crimes.
The victim of this crime testified that he met the appellant in the lounge of a Las Vegas
hotel. After some insignificant conversation, appellant proposed that she would go to bed
with the victim for $100. He accepted and the two left for his hotel room. Once in the room,
the victim paid the appellant and, while undressing, placed his money, rings and watch on the
dresser. After the sexual act was consummated, the victim fell asleep. When he awoke, the
appellant, as well as his money and jewelry, were gone.
The defense called a witness who admitted that she was a prostitute and testified that it
was she, and not the appellant, who had been with the victim on the night of the alleged
crime. In rebuttal, the prosecution presented two witnesses who testified that they had hired
the services of the appellant and had their possessions stolen by her after sexual intercourse.
In a hearing outside the presence of the jury, the trial judge, over the appellant's objection,
decided to admit this rebuttal testimony for the limited purpose of identity.
[Headnotes 1-3]
When the identity of the perpetrator of the crime is in issue, evidence of other crimes or
wrongs committed by the defendant may be admitted for the limited purpose of identity if the
probative value of such evidence outweighs its prejudicial effect. See NRS 48.045(2); Jones
v. State, 85 Nev. 4, 448 P.2d 702 {1969); Junior v. State, S9 Nev. 121, 507 P.2d 1037
{1973); Bails v. State, 92 Nev. 95, 545 P.2d 1155 {1976); Green v. State, 94 Nev. 731
____________________

1
Every person who shall feloniously steal, take and carry away, lead or drive away the personal goods
or property of another, of the value of $100 or more shall be deemed guilty of grand larceny, and upon
conviction thereof shall be punished by imprisonment in the state prison for any term not less than 1 year
nor more than 10 years, and may be further punished by a fine of not more than $5,000.
95 Nev. 140, 142 (1979) Mayes v. State
702 (1969); Junior v. State, 89 Nev. 121, 507 P.2d 1037 (1973); Bails v. State, 92 Nev. 95,
545 P.2d 1155 (1976); Green v. State, 94 Nev. 731, 587 P.2d 38 (1978). Evidence of other
crimes has a strong probative value when there is sufficient evidence of similar characteristics
of conduct in each crime to show the perpetrator of the other crime and the perpetrator of the
crime for which the defendant has been charged is one and the same person. Nester v. State,
75 Nev. 41, 55, 334 P.2d 524, 531-532 (1959). In People v. Banks, 465 P.2d 263, 271 (Cal.
1970), the California High Court, quoting in part from its decision in People v. Haston, 444
P.2d 91, 99-100 (Cal. 1968), aptly summarizes the law on this subject as follows:
When the purpose for which such evidence is offered is that of identifying the defendant
as the perpetrator of the charged offense through showing a modus operandi common to
the charged and uncharged offenses, particular care must be exercised to insure that the
inference of identity, upon which probative value depends, is of significant force. It is
apparent that the indicated inference does not arise * * * from the mere fact that the
charged and uncharged offenses share certain marks of similarity, for it may be that the
marks in question are of such common occurrence that they are shared not only by the
charged crime and defendant's prior offenses, but also by numerous other crimes
committed by persons other than defendant. On the other hand, the inference need not
depend upon one or more unique or nearly unique features common to the charged and
uncharged offenses, for features of substantial but lesser distinctiveness, although
insufficient to raise the inference if considered separately, may yield a distinctive
combination if considered together. Thus it may be said that the inference of identity
arises when the marks common to the charged and uncharged offenses, considered singly
or in combination, logically operate to set the charged and uncharged offenses apart from
other crimes of the same general variety and, in so doing, tend to suggest that the
perpetrator of the uncharged offenses was the perpetrator of the charged offenses. * * *
[Par.] The important point to be made is that, when such evidence is introduced for the
purpose of proving the identity of the perpetrator of the charged offense, it has probative
value only to the extent that distinctive common marks give logical force to the
inference of identity. If the inference is weak, the probative value is likewise weak, and
the court's discretion should be exercised in favor of exclusion.' (Fns. omitted.)
95 Nev. 140, 143 (1979) Mayes v. State
See also State v. Estrada, 550 P.2d 1080 (Ariz.App. 1976). Although the admission of
evidence of separate and independent criminal acts rests within the sound discretion of the
trial court, it is, nevertheless, the duty of that court to strike a proper balance between the
probative value of the evidence and its prejudicial dangers. Elsbury v. State, 90 Nev. 50, 518
P.2d 599 (1974); Nester v. State, supra; NRS 48.035.
[Headnote 4]
Appellant argues that it was error to admit the rebuttal evidence because thefts similar in
circumstances to the one which occurred in this case occur frequently; therefore, unless there
exists some special characteristic connecting the two rebuttal crimes with the crime herein
alleged, those rebuttal crimes cannot be construed as similar acts which would justify their
admission for purposes of identity. We agree.
In the present case, the prosecution failed to establish how the three thefts allegedly
committed by the appellant contained a characteristic common with one another, yet in some
way different from the type of thefts committed frequently by other prostitutes. Cf. Nester v.
State, supra; People v. Banks, supra. Since most of the crimes of this type are committed in
much the same manner, it is essential that some distinctive characteristics be demonstrated.
No such characteristics are revealed by the testimony of the rebuttal witnesses.
For this reason, the district court abused its discretion by admitting the evidence of the
other crimes. The prejudicial effect of this evidence outweighed its probative value.
Appellant's conviction is reversed and the case remanded for a new trial.
Mowbray, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
____________
95 Nev. 144, 144 (1979) Merna v. State
ROBERT STEVEN MERNA, Appellant, v. THE
No. 10968
February 28, 1979 591 P.2d 252
Appeal from order denying appellant-probationer credit for jail time served, Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
After probation was revoked, probationer filed motions for allowance of credit for time
spent in jail as a condition of his probation and for time spent in jail awaiting his revocation
hearing. The district court denied motions, and probationer appealed. The Supreme Court
held that: (1) probationer was entitled to credit for jail time served as a condition of his
probation, but (2) denying probationer credit for time spent in jail awaiting revocation
hearings did not contravene constitutional mandates.
Affirmed in part; reversed in part, and remanded with instructions.
Robert Steven Merna, Stewart, In Proper Person.
H. Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Criminal Law.
Probationer, whose probation was revoked, was entitled to credit for jail time served as a condition of his
probation.
2. Criminal Law.
Refusal to grant credit to probationer, whose probation was revoked, for the time spent in jail awaiting
revocation hearings did not contravene constitutional mandates.
3. Criminal Law.
Probation revocation is not a stage of criminal prosecution.
OPINION
Per Curiam:
Appellant plead guilty to three (3) counts of forgery, a felony pursuant to NRS 205.090.
As to count III, appellant was sentenced to eight (8) years in the Nevada State Prison. The
sentence was suspended and appellant granted probation for a period not to exceed five (5)
years.
1
While on probation, appellant violated the conditions of his probation and the
state moved to have it revoked.
____________________

1
As to counts I and II, appellant received one-year concurrent sentences in the Nevada State Prison. The
circumstances relevant to the disposition of this case arise after the discharge of those sentences.
95 Nev. 144, 145 (1979) Merna v. State
While on probation, appellant violated the conditions of his probation and the state moved
to have it revoked. After a hearing on the matter, the district court ordered appellant to again
be placed on probation for a period of five (5) years and, as a condition of probation, to serve
one (1) year in the Clark County Jail.
After his release from the Clark County Jail, appellant once more violated the conditions
of his probation and thereafter, the state moved to have probation revoked. At the conclusion
of a hearing, the district court revoked appellant's probation and reinstated his eight-year
sentence.
Appellant subsequently filed an in pro per motion for allowance of credit for (1) time
spent in jail as a condition of his probation; and (2) time spent in jail awaiting his revocation
hearing. The district court denied both motions and appellant here contends that denial
deprived him of basic constitutional rights.
[Headnote 1]
1. Although we have not previously addressed this issue, as a matter of fundamental
fairness, we feel the more salutary rule is to grant appellant credit for time served as a
condition of probation. See State v. Jones, 327 So.2d 18 (Fla. 1976). To hold otherwise
would result in a possible constitutional violation under the standards set down in North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Id. at 25.
Accordingly, that portion of the district court order is reversed and the case is remanded with
instructions to credit appellant with the time he served as a condition of his probation.
[Headnotes 2, 3]
2. We have considered and approved the denial of credit for time spent in jail awaiting
revocation hearings. Ward v. State, 93 Nev. 501, 569 P.2d 399 (1977). In our view, this rule
does not contravene established constitutional mandates. While the constitution prohibits
double punishment for the same crime, North Carolina v. Pearce, supra, a probationer held in
county jail awaiting a probation revocation hearing is not being incarcerated for the same
crime, but rather, is being held for engaging in a separate course of proscribed conduct. Cf.
Matter of Ratzlaff, 564 P.2d 1312 (Mont. 1977); State v. Eckley, 579 P.2d 291 (Or.App.
1978). Moreover, probation revocation is not a stage of criminal prosecution. Gagnon v.
Scarpelli, 411 U.S. 778 (1973). Therefore, we deal here not with the rights of an accused, but
with the more limited rights of a probationer, who was granted his conditional liberty only
after being convicted of a crime. Id. at 781. Accordingly, that portion of the district court
order denying credit for jail time awaiting revocation hearings is affirmed.
95 Nev. 144, 146 (1979) Merna v. State
portion of the district court order denying credit for jail time awaiting revocation hearings is
affirmed.
____________
95 Nev. 146, 146 (1979) Estate of Hughes v. FNB
In the Matter of the Estate of HOWARD ROBARD HUGHES, Jr., Deceased, MINORS and
ABSENT HEIRS, Appellants, v. FIRST NATIONAL BANK OF NEVADA and WILLIAM
R. LUMMIS, Co-Special Administrators, Respondents.
No. 9463
February 28, 1979 590 P.2d 1164
Appeal from order settling special administrators' first account and granting petition for
allowance of fees and costs. Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Minors and absent heirs of decedent appealed from an order of the district court settling
special administrators' first account and granting a petition for allowance of fees and costs.
The Supreme Court held that: (1) the nonclaim statute did not bar reimbursement to the
wholly owned corporation of decedent for expenditures paid on behalf of the decedent, and
(2) there was authority for the allowance of interim fees to special administrators and their
counsel.
Affirmed.
George Dickerson; Charles William Johnson, Las Vegas, for Appellants.
Morse, Foley & Wadsworth, Las Vegas; Andrews, Kurth, Campbell & Jones, Houston,
Texas, for Respondents.
1. Executors and Administrators.
Nonclaim statute did not bar reimbursement to wholly owned corporation of decedent for expenditures
paid on behalf of decedent's estate. NRS 147.040.
There was authority for allowance of interim fees to special administrators and their counsel. NRS
150.060, subds. 1, 3.
There was no error in allowing interim fees to special administrator and counsel in light of
evidence of time and effort devoted by administrator and attorneys to complex affairs
of estate.
and counsel in light of evidence of time and effort devoted by administrator and attorneys to complex
affairs of estate. NRS 150.060, subds. 1, 3.
OPINION
Per Curiam:
This is an appeal from an order of the district court approving the first accounting of First
National Bank of Nevada and William R. Lummis, who are the respondents and co-special
administrators of the estate of Howard Robard Hughes, Jr., and granting an interim allowance
of fees and costs to Bank and their counsel.
Attorneys appointed to represent the absent heirs and minors, who are the appellants
herein, objected to the accounting and the granting of the allowance. They claim there is no
authority under Nevada law for the allowances of interim fees to special administrators or
their counsel. They also challenge that part of the accounting, approved by the court, which
reimbursed Summa Corporation, of which Hughes was the sole stockholder, for certain sums
advanced on behalf of the estate.
THE FACTS
Howard Robard Hughes, Jr. died on April 5, 1976, while enroute from Acapulco, Mexico
to Houston, Texas. On April 14, 1976, Bank was appointed special administrator of
decedent's estate in the State of Nevada. Its duties and responsibilities were enlarged in June,
1976, to those of a general administrator. NRS 140.060(2). William R. Lummis was
appointed co-special administrator on October 7, 1976.
The co-special administrators filed their instant accounting and petition on December 3,
1976. The court below, after a hearing at which the objections of the appellants were heard
and considered, approved the first accounting, ordering reimbursement to Summa in the sum
of $292,322.16 for expenditures advanced on behalf of the estate, and granting interim
allowances of $50,000 to Bank, and $190,000 to their attorneys.
THE REIMBURSEMENT OF SUMMA CORPORATION
Appellants suggest that the reimbursement of Summa was improper because Summa had
not filed a creditor's claim within the period specified by NRS 147.040, and that its claim,
therefore, is barred under the terms of the statute.
1
[Headnote 1]
[Headnote 1]
____________________

1
NRS 147.040
1. All persons having claims against the deceased must, within 90 days
[Headnote 1]
We have consistently held that a claim which will not diminish the estate does not fall
within the bar of the nonclaim statute under the provisions of NRS 147.040. E.g., Bell Brand
Ranches v. First Nat'l Bank, 91 Nev. 88, 531 P.2d 471 (1975); Reed v. Dist. Court, 75 Nev.
338, 341 P.2d 100 (1959). Indeed, counsel for appellants suggested at the hearing below,
whether the estate pays [these expenses] in the form of a claim payment to Summa or
whether the profits flowing to the estate [now sole owner of Summa] are reduced, it seems to
me it has the same result. We agree.
The Supreme Court of Montana, In re Russell's Estate, 59 P.2d 777 (Mont. 1936),
considered a similar situation, where an executrix had paid sums to satisfy certain debts and
obligations of an oil company owned almost entirely by the decedent through a holding
company, although no statutory creditor's claim against the estate had been filed. The court
ruled that it was error to refuse to credit the executrix with the sums paid, and said, 59 P.2d at
780,
This court has not hesitated to ignore and disregard corporate entities where the ends of
justice require it. [Citations omitted.] Here we think that the ends of justice require that
the corporate entities of these two corporations should be disregarded to the extent that
the action of the executrix in discharging the corporate debts as she did should be
approved and that she should be credited for the same as requested in her account. This
view is particularly emphasized by the fact that the stock in the two corporations really
constituted the estate, and, of course, the stock really represented the property held in the
names of the corporations. . . .
Under the circumstances here presented, we find that the court below was not precluded by
the provisions of NRS 147.040 from ordering reimbursement to the wholly-owned
corporation of decedent for expenditures paid on behalf of the decedent. As to appellant's
remaining objections, they are not supported by relevant authority and, therefore, will not
be considered.
____________________
after the first publication of the notice specified in NRS 147.010, file the same, with the necessary
vouchers, with the clerk of the court, who shall file and register each claim.
2. If a claim is not filed with the clerk within 90 days after the first publication of the notice, the
claim shall be forever barred; but when it is made to appear, by the affidavit of the claimant or by other
proof to the satisfaction of the court or judge, that the claimant had no notice as provided in this chapter,
the claim may be filed at any time before the filing of the final account.
supported by relevant authority and, therefore, will not be considered. Holland Livestock v. B
& C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976).
THE ALLOWANCE OF FEES TO SPECIAL
ADMINISTRATOR AND ATTORNEYS
[Headnote 2]
Appellants argue that the allowance of fees to the Bank, as special administrator, and to
the attorneys for the special administrators, was premature. They suggest that it was not
within the discretionary power of the court to award such fees until the estate is closed, or at
least until the completion of all pending litigation relating to any alleged wills. We do not
agree.
Provision for allowance of fees to executors and administrators is set forth in NRS
150.050. At the time of the hearing on the petition, that statute provided that [a]ny executor
or administrator, at any time after the issuance of letters testamentary or of administration,
and upon such notice to the persons interested in the estate as the court or a judge thereof
shall require, may apply to the court for an allowance upon his commissions. . . . 1941 Nev.
Stats. ch. 107, 210, p. 210. In 1977, however, the legislature amended this statute to
expressly include special administrators. 1977 Nev. Stats. ch. 493, 1, p. 1017.
Statutory authority also existed, at the time of the hearing on the petition, for allowance of
fees to attorneys for executors and administrators, for services rendered up to a certain
time during the proceedings. 1975 Nev. Stats. ch. 751, 31, p. 1776 [NRS 150.060 (1) and
(3)]. Later, and at the same time the Legislature amended the provision related to allowances
for executors and administrators, this statute relating to attorneys fees was also amended to
include [a]ttorneys for executors, administrators, and special administrators. 1977 Nev.
Stats. ch. 493, 2, p. 1018.
While it is true that the former statutes did not expressly include special administrators or
their attorneys at the time of the hearing for fees and allowances in the instant case, they
were, nevertheless, not excluded by the general terms of the said statutes. If any such
limitation did exist, the Legislature corrected it by the 1977 amendments. As this court said in
Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396 (1975), [w]hen a former statute is
amended, or a doubtful interpretation rendered certain by subsequent legislation, it has been
held that such amendment is persuasive evidence of what the Legislature intended by the
first statute."
the Legislature intended by the first statute. We conclude, therefore, that the Legislature
intended to authorize the probate court, acting within its discretion, to award interim fees, for
services rendered, to special administrators and their attorneys.
[Headnote 3]
Nor do we find an abuse of discretion by the court below in allowing the awards granted.
The court had before it evidence of the time and effort devoted by the Bank and the attorneys
to the complex affairs of the estate. Services rendered by the Bank included handling of some
$1.5 million in cash, arrangement for the lease or sale of aircraft which had to be marshalled
from points in this country and abroad, responsibility for overseeing the operation of
decedent's business interests in Nevada, aid in the search for a valid will, review of creditors'
claims, and preparation for participation in or review of approximately twenty law suits. The
attorneys documented an equally impressive effort, including research, advice, and
consultation with attorneys in other jurisdictions regarding the appointment and
responsibilities of the special administrators, the search for a will, efforts to determine
decedent's domicile and situs of decedent's properties, appraisal of the estate, and advice to
the special administrators regarding litigation against the estate and federal estate tax matters.
There was also the prospect of years of litigation before an executor or general administrator
could be appointed, with additional years before the estate could finally be closed. It is clear
that in allowing interim compensation, under these circumstances, the court was acting in the
best interests of the estate, for to refuse to periodically compensate [the special administrator
and the attorneys] would be tantamount to requiring their resignations. In re McDonald's
Estate, 188 P. 523, 527 (Wash. 1920).
The order of the district court settling the first account of the special administrators and
ordering allowance of fees for the co-special administrator Bank, and for the attorneys of the
special administrators, is affirmed.
____________
95 Nev. 151, 151 (1979) Bruttomesso v. Las Vegas Met. Police
GARRY MICHAEL BRUTTOMESSO, VINCENT J. BRUTTOMESSO and BETTY L.
BRUTTOMESSO, Appellants, v. LAS VEGAS METROPOLITAN POLICE
DEPARTMENT and LAS VEGAS METROPOLITAN POLICE COMMISSION,
Respondents, and KLUC BROADCASTING COMPANY, a Nevada Corporation,
Respondent.
Nos. 9803 and 10422
February 28, 1979 591 P.2d 254
Consolidated appeals from summary judgments; Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge, case No. 9803; Keith C. Hayes, Judge, case No. 10422.
Suits were brought to recover for injuries sustained by viewer when he was stabbed while
attending a showing of movies in library parking lot. The district court entered summary
judgments for defendants, and appeal was taken. The Supreme Court, Thompson, J., held
that: (1) police department's decision not to provide security for film festival was
discretionary and thus claim that police department negligently failed to provide security had
to fail, and (2) broadcasting company, which neither owned nor controlled property where
films were screened and which was only involved to extent of publicizing festival and
deferring some costs, could not be found liable as joint venturer for any negligent act of
library district.
Affirmed.
Foley Brothers and Paul Elcano, of Las Vegas, for Appellants.
Cromer, Barker & Michaelson and James R. Olson, of Las Vegas, for Respondents in case
No. 9803.
Rose, Edwards, Hunt & Pearson, Ltd., of Las Vegas, for Respondent in case No. 10422.
Police department's decision not to provide security for film festival shown in library parking lot was
discretionary and thus, under statute prohibiting action based on performance or failure to perform
discretionary function, claim that police department negligently failed to provide security had to fail in suit
for injuries sustained by viewer who was stabbed while attending festival. NRS 41.032, subd. 2.
Duty of government, including police department, runs to all citizens and is to protect safety and
well-being of the public at large, and consequently the government is not liable for
failure to supply police protection without showing of special relationship or duty to
particular individual.
and is to protect safety and well-being of the public at large, and consequently the government is not liable
for failure to supply police protection without showing of special relationship or duty to particular
individual.
Where special relationship creating duty to supply police protection to viewer who was stabbed while
attending film festival in library parking lot had not been shown, police department was not liable for
failure to provide police protection nor was it liable for any alleged failure to provide prompt medical aid.
Police commission, function of which was to supervise budget of police department and which was not
otherwise involved in carrying out police function, was not liable for stabbing of viewer in library parking
lot while attending film festival because of police department's refusal to provide security.
5. Joint Adventures.
Joint venture is contractual relationship in nature of informal partnership wherein two or more persons
conduct some business enterprise, agreeing to share jointly, or in proportion to capital contributed, in
profits and losses.
6. Joint Adventures.
Where there was nothing to suggest that film festival was business enterprise on part of either library
district or broadcasting company, those patronizing event were not charged admission, festival was not for
profit but was presented as public service, and it was not alleged that district and broadcasting company
entered agreement of joint venture, broadcasting company was not liable for injuries sustained by viewer
when stabbed while attending film festival on theory that it was joint venturer with library district, which
owned property where assault occurred.
OPINION
Garry Bruttomesso was injured when repeatedly stabbed by William Bush, Jr., while
attending a showing of Beatles movies in the parking lot of the Clark County Library on
Flamingo Road. It is alleged that the defendants, who are respondents in this court, were
negligent in failing to provide proper security and medical care. Garry seeks money damages
as do his parents, Vincent and Betty, who claim a financial loss by reason of their son's injury.
Summary judgments were entered for the defendants, respondents here, and an NRCP
54(b) determination made. This consolidated appeal is from the summary judgments so
entered. In each instance the appellants contend that genuine issues of material fact exist to
preclude summary judgment.
1. Appeal No. 9803
[Headnote 1]
A representative of the Clark County Library District requested the Las Vegas
Metropolitan Police Department to provide security for the Beatles film festival.
requested the Las Vegas Metropolitan Police Department to provide security for the Beatles
film festival. The Department declined to do so because of inadequate man power. The
decision not to provide security was discretionary and falls within NRS 41.032(2)
1
which
prohibits an action based upon the performance or failure to perform a discretionary function.
LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972). Consequently, the claim that
the police department negligently failed to provide security must fail.
[Headnotes 2, 3]
We note that apart from the statutory prohibition, it is generally true that government is not
liable for failing to prevent the unlawful acts of others. The duty of government, in this
instance the Police Department, runs to all citizens and is to protect the safety and well-being
of the public at large. Keane v. City of Chicago, 240 N.E.2d 321 (Ill.App. 1968).
Consequently, government is not liable for a failure to supply police protection without a
showing of a special relationship or duty to the particular individual. Massengill v. Yuma
County, 456 P.2d 376 (Ariz. 1969); Huey v. Town of Cicero, 243 N.E.2d 214 (Ill. 1968). Cf.
Fair v. United States, 234 F.2d 288 (5th Cir. 1956); Schuster v. City of New York, 154
N.E.2d 534 (1958). A special relationship creating a duty to supply police protection to Garry
Bruttomesso has not been shown in this case. Since the department is not liable for the failure
to provide police protection for Garry, it follows that it also is free of liability for any alleged
failure to provide prompt medical aid.
[Headnote 4]
The Police Commission obviously has no liability since its function is to supervise the
budget of the Police Department. The Commission is not otherwise involved in carrying out
the police function. We conclude that summary judgment properly was entered for the Las
Vegas Metropolitan Police Department and the Las Vegas Metropolitan Police Commission.
2. Appeal No. 10422.
KLUC Broadcasting Company honored the request of the Clark County Library District to
cosponsor the showing of the Beatles films.
____________________

1
NRS 41.032: No action may be brought under NRS 41.031 or against an officer or employee of the state or
any of its agencies or political subdivisions which is:
1. . . . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of the state or any of its agencies or political subdivisions or of any officer or employee of
any of these, whether or not the discretion involved is abused.
Clark County Library District to cosponsor the showing of the Beatles films. The
involvement of KLUC was only to the extent of publicizing the festival and defraying some
of the costs. KLUC neither owned nor controlled the property upon which the films were
screened.
It is the contention of plaintiffs-appellants that KLUC may be found liable as a joint
venturer for any negligent acts of the Clark County Library District who did own and control
the property where the assault occurred.
[Headnote 5]
A joint venture is a contractual relationship in the nature of an informal partnership
wherein two or more persons conduct some business enterprise, agreeing to share jointly, or
in proportion to capital contributed, in profits and losses. Swensen v. McDaniel, 119 F.Supp.
152 (D. Nev. 1953).
[Headnote 6]
There is nothing to suggest that the Beatles film festival was a business enterprise on the
part of either the Library District or KLUC. Those patronizing the event were not charged
admission. The festival was not for profit. It was presented as a public service for the free
enjoyment of those who might be interested. Indeed, it is not alleged that the Library District
and KLUC entered into an agreement of joint venture, nor are facts asserted from which such
an agreement may reasonably be implied. It was proper for the district court to enter summary
judgment for KLUC.
Affirmed.
____________
95 Nev. 154, 154 (1979) Jones v. State
LEROY JAMES JONES, Appellant, v. THE
No. 10258
February 28, 1979 591 P.2d 263
Appeal from judgment of conviction entered upon a jury verdict, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court held that: (1) trial court did not err in admitting, over a hearsay objection,
victim's identification of defendant as the individual who had robbed him, since the
declarant testified at trial and was subject to cross-examination concerning the
statement; {2) trial court did not err in admitting certain statements made by defendant
to police officer after Miranda warnings had been given, even if some of the same
information was imparted to the officer prior to the warning, since there was no showing
that the information elicited after the warning had been given was obtained by
exploitation of the primary alleged illegality, and {3) evidence sustained conviction.
95 Nev. 154, 155 (1979) Jones v. State
court did not err in admitting, over a hearsay objection, victim's identification of defendant as
the individual who had robbed him, since the declarant testified at trial and was subject to
cross-examination concerning the statement; (2) trial court did not err in admitting certain
statements made by defendant to police officer after Miranda warnings had been given, even
if some of the same information was imparted to the officer prior to the warning, since there
was no showing that the information elicited after the warning had been given was obtained
by exploitation of the primary alleged illegality, and (3) evidence sustained conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Victor Austin, Deputy Public Defender, Clark
County, for Appellant.
Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for robbery, trial court did not err in admitting, over a hearsay objection, victim's
identification of defendant as the individual who had robbed him, since the declarant testified at trial and
was subject to cross-examination concerning the statement. NRS 51.035, subd. 2(c).
2. Criminal Law.
In prosecution for robbery, trial court did not err in admitting certain statements made by defendant to
police officer after Miranda warnings had been given, even if some of the same information was imparted
to the officer prior to the warning, since there was no showing that the information elicited after the
warning had been given was obtained by exploitation of the primary alleged illegality.
3. Robbery.
Evidence in prosecution for robbery sustained conviction.
OPINION
Per Curiam:
Appellant was convicted, upon a jury verdict, of robbery (NRS 200.380). At trial,
appellant admitted his presence at the scene of the beating and robbery of the elderly male
victim, but contended that he had been attempting to protect the victim from a second
assailant. Appellant's version of these events was contradicted by the testimony of the victim,
and the testimony of the two police officers who had witnessed a part of the robbery and who
had apprehended the appellant in a nearby bar almost immediately after the crime had been
committed.
95 Nev. 154, 156 (1979) Jones v. State
[Headnote 1]
1. Appellant first contends that the trial court erred in admitting, over a hearsay objection,
the victim's identification of appellant, upon seeing him emerge from the bar, as the
individual who had robbed him. This contention is meritless. The statement was one of
identification, made by the victim soon after perceiving appellant. The declarant testified at
trial, and was subject to cross-examination concerning the statement. As the court below
correctly ruled, the statement falls within the identification exception to the statutory
definition of hearsay, NRS 51.035(2)(c).
1

[Headnote 2]
2. Appellant's contention that certain statements made by him were admitted in violation
of Miranda v. Arizona, 384 U.S. 436 (1966), is also without merit. Appellant claims that
certain statements made to a police officer, after Miranda warnings had been given, should
have been excluded because some of the same information may have been imparted to the
officer prior to the warning, citing Wong Sun v. United States, 371 U.S. 471 (1963). First, we
note that the high court has not held Wong Sun applicable to the Miranda situation. See 46
L.Ed.2d 903, 14 (1977). Second, we note that the trial court did not find that any specific
statements were given by appellant prior to Miranda warnings. And third, we conclude that
even if the appellant's view of the evidence were correct, it would not support an inference
that the information elicited after the warnings had been given was obtained by exploitation
of [the primary] illegality. Wong Sun v. United States, supra, 371 U.S. at 488. See also
United States v. Wade, 388 U.S. 218, 241 (1967).
Appellant also raises certain objections regarding his right to have his questioning cease.
The record reveals that appellant was fully aware of this right, and that the trial court
correctly applied the principles enunciated in Michigan v. Mosley, 423 U.S. 96 (1975), to
ensure that his right to cut off questioning was scrupulously honored. 423 U.S. at 104.
____________________

1
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:
. . . .
(c) One of identification of a person made soon after perceiving him. . . .
95 Nev. 154, 156 (1979) Jones v. State
[Headnote 3]
3. We also summarily reject appellant's contention that his conviction was not supported
by substantial evidence in the record. Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977);
Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977).
The judgment of conviction is therefore affirmed.
____________
95 Nev. 157, 157 (1979) McGeehan v. State
DAVID McGEEHAN, Also Known As PHILLIP EDWARD JAROS, Appellant, v. THE
No. 10841
February 28, 1979 591 P.2d 265
Appeal from judgment and sentence, Fourth Judicial District Court, Elko County; Joseph
0. McDaniel, Judge.
The district court convicted defendant, upon plea of nolo contendere, of passing a check
on a closed account, and defendant appealed. The Supreme Court held that where defendant
claimed that he lacked sufficient funds to retain his own attorney, where district judge denied
defendant's request for court-appointed counsel, and where transcript of relevant hearing
before district court was either lost or misplaced and was therefore not included in record on
appeal, Supreme Court would not blindly presume knowing and intelligent waiver of
constitutionally protected right from deficient record.
Horace R. Goff, State Public Defender, and J. Gregory Damm, Chief Trial Deputy, Carson
City, for Appellant.
Richard Bryan, Attorney General, Carson City; and Thomas L. Stringfield, District
Attorney, Elko County, for Respondent.
1. Criminal Law.
Court must appoint counsel to act on behalf of person charged with a crime who is financially unable to
retain his own attorney.
2. Criminal Law.
Where defendant was charged with a felony, where district judge denied defendant's request for
court-appointed counsel despite defendant's claim that he lacked sufficient funds to retain his own attorney,
and where transcript of relevant hearing before district court was either lost or misplaced and was therefore
not included in record on appeal of conviction pursuant to plea of nolo contendere, Supreme Court would
not blindly presume knowing and intelligent waiver of constitutionally protected right
from a deficient record, and therefore conviction and judgment would be reversed
and cause would be remanded for trial.
95 Nev. 157, 158 (1979) McGeehan v. State
blindly presume knowing and intelligent waiver of constitutionally protected right from a deficient record,
and therefore conviction and judgment would be reversed and cause would be remanded for trial.
OPINION
Per Curiam:
Appellant was charged in Justice Court with passing a check on a closed account, a felony,
in violation of NRS 205.130(1). Without the benefit of counsel, appellant waived his right to
a preliminary examination.
Over appellant's claim that he lacked sufficient funds to retain his own attorney, the district
judge denied appellant's request for court appointed counsel. The request was made orally at
appellant's initial arraignment. The transcript of the relevant hearing before the district court
was either lost or misplaced and is therefore not included in the record on appeal.
Thereafter, appellant appeared in his own behalf and entered a plea of nolo contendere
pursuant to negotiations with the district attorney. Upon such plea, appellant was convicted
and sentenced to four years in state prison.
1

[Headnotes 1, 2]
It is axiomatic that a court must appoint counsel to act on behalf of a person charged with
a crime who is financially unable to retain his own attorney. Gideon v. Wainwright, 372 U.S.
335 (1963); see NRS 178.397 and NRS 171.188. Appellant's assertion that he is financially
unable to retain counsel is virtually unrebutted by anything in the record before us. We will
not blindly presume a knowing and intelligent waiver of a constitutionally protected right
from a deficient record. Johnson v. Zerbst, 304 U.S. 458 (1937).
Accordingly, the conviction and judgment are reversed and the cause remanded for trial.
____________________

1
The state public defender was appointed to prosecute this appeal.
____________
95 Nev. 159, 159 (1979) White v. State
RONALD GREGORY WHITE, Appellant, v. THE
No. 10286
February 28, 1979 591 P.2d 266
Appeal from judgment upon jury verdict; Eighth Judicial District Court, Clark County;
Paul S. Goldman, Judge.
Defendant was convicted in the district court of extortion, and he appealed. The Supreme
Court, Thompson, J., held that: (1) assertion that defense counsel's representation was
ineffective by reason of his failure to object to evidence identifying defendant's voice as
extortioner was without substance inasmuch as positive voice identification was not required
and identity could be shown by circumstantial evidence, and (2) statement of prosecutor in
closing argument that the defendant had stated that he was on a bus was incorrect when in
fact the statement was made by a witness, but since it amounted to nothing more than a slip of
the tongue and was promptly corrected, it was not erroneous as amounting to a comment on
defendant's failure to testify.
Affirmed.
W. Randall Mainor, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, H. Leon Simon, Chief Appellate Deputy, and James N.
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Presumption exists that defense counsel discharged his duties and is not overcome unless there is strong
and convincing proof to contrary.
2. Criminal Law.
Claim of ineffective assistance of counsel due to failure of counsel to pursue an alibi defense by
interviewing dealers at casino where defendant alleged he was gambling at time of purported extortion was
not established where record was silent as to whether counsel attempted to locate dealers and, hence,
precluded an evaluation of claim.
3. Criminal Law.
Positive identification by victim of defendant's voice as person who made extortionate phone call was not
required inasmuch as identity of defendant as person who made call could be shown by circumstantial
evidence.
4. Criminal Law.
Assertion that defense counsel's representation was ineffective by reason of his failure to object to
evidence identifying defendant's voice as extortioner was without substance inasmuch as positive voice
identification was not required and identity could be shown by circumstantial evidence.
95 Nev. 159, 160 (1979) White v. State
5. Criminal Law.
Statement of prosecutor in closing argument that the defendant had stated that he was on a bus was
incorrect when in fact the statement was made by a witness, but since it amounted to nothing more than a
slip of the tongue and was promptly corrected, it was not erroneous as amounting to a comment on
defendant's failure to testify.
OPINION
Ronald Gregory White, found guilty of extortion, asks that we set aside his conviction
asserting that he was denied the effective assistance of counsel. He also contends that words
uttered by the prosecutor during summation amounted to a comment on his failure to testify
thereby nullifying a fair trial. We find no merit to either contention and affirm the conviction.
On September 23, 1976, Charlene Coffman received a telephone call from a man
identifying himself as Mr. Taylor from the K. O. Knudson Junior High School. She was told
that her daughter had not made it to school and that she would be raped and killed unless Mrs.
Coffman complied with his demands. After the conversation, Mrs. Coffman's father notified
the police. It then was learned that her daughter was in school. A detective, who had
investigated 40 to 50 similar phone calls, arrived to talk with Mrs. Coffman. He produced a
tape recording of a voice for her to listen to. The tape featured a telephone message procured
the previous day by the detective after dialing an advertised telephone number which had
requested information about students at the Jo Mackey School. After listening to the
recording a few times, Mrs. Coffman indicated that she was fairly certain that the voice she
heard was that of the man who had called earlier. Detective Hoffman then requested Mrs.
Coffman to dial the telephone number from which the tape recording had been obtained. Mrs.
Coffman complied and was able to make a personal contact. During the ensuing conversation,
Mrs. Coffman indicated to Hoffman that she was certain the person she was talking to was
the extortioner. Having already discovered that the advertised telephone number had been
placed by Ronald White, Detective Hoffman immediately proceeded to White's residence
where he placed White under arrest for extortion.
At the police station, White informed Detective Hoffman that he had not made any phone
calls that day and had been gambling at the Golden Nugget at the time Mrs. Coffman received
her call. Hoffman then escorted White to the Golden Nugget in an attempt to verify this
alibi.
95 Nev. 159, 161 (1979) White v. State
Nugget in an attempt to verify this alibi. However, the dealers with whom White had
allegedly been gambling were gone and no one else was able to recall White's presence earlier
that day.
1. His claim of ineffective counsel rests mainly upon the alleged failure of counsel to
pursue the Golden Nugget alibi defense. The record is silent as to whether counsel attempted
to locate the two female dealers with whom White said he was gambling when the Coffman
telephone call was made. Consequently, we are unable to evaluate this particular contention.
Perhaps counsel did interview them only to learn that they would not confirm White's story.
Maybe White privately informed counsel that his alibi was false. Indeed, other testimony
indicated that White's presence at the casino would have been remembered had he been there
because of his distinctive physical appearance, the amount of money allegedly lost, and the
lack of activity at the casino during the time in question, and that his presence was not
remembered.
[Headnotes 1, 2]
Counsel is presumed to have discharged his duties. This presumption is overcome only by
strong and convincing proof to the contrary. Shuman v. State, 94 Nev. 265, 578 P.2d 1183
(1978); Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974); Smithart v. State, 86 Nev. 925,
478 P.2d 576 (1970). A silent record is the equivalent of no proof at all.
[Headnotes 3, 4]
It is contended that counsel should have objected to Mrs. Coffman's identification of the
defendant's voice from the tape recording. This identification was preliminary and later was
confirmed when Mrs. Coffman called the defendant personally and again identified his voice
as that of the extortioner. Moreover, another witness, also a victim of the same type of
extortionate call, had listened to the tape recording and had identified the taped voice as that
of the extortioner. Positive voice identification is not required. The identity of the person on
the other end of the line may be shown by circumstantial evidence. State v. Billings, 84 Nev.
55, 436 P.2d 212 (1968); King v. State, 80 Nev. 269, 392 P.2d 310 (1964). In these
circumstances, the assertion that counsel's representation was ineffective by reason of his
failure to object to voice identification evidence is without substance. We perceive no
foundation for the claim of ineffective counsel under any test.
1
2.
____________________

1
The test in Nevada is whether the representation of counsel was of such low caliber as to reduce the trial to a
sham, farce or pretense. Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
The Ninth Circuit Court of Appeals prefers a less stringent test, that is,
95 Nev. 159, 162 (1979) White v. State
2. During closing argument the prosecutor said: Now, the defendant says on July 26, I
was on a bus.' Excuse me. Mr. Confer says that on July 26, 1976, the defendant was in a bus
on his way to Denver. [July 26 was the day another witness, Patricia Roberts, had received
the same type of extortionate phone call which she identified as a call from White. The
testimony of Mr. Confer to which the prosecutor alluded was produced by defense counsel to
impeach the testimony of Patricia Roberts.]
[Headnote 5]
We are asked to construe those words as a comment on the defendant's failure to testify.
They amount to nothing more than a slip of the tongue which counsel promptly corrected.
The jurors knew that the defendant did not take the stand, and that the prosecutor's statement
the defendant says............. was incorrect. We perceive no error.
Affirmed.
____________________
whether counsel rendered reasonably effective assistance. Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir.
1977). Heretofore, we have recognized the different standards used to decide a claim of ineffective counsel.
Bailey v. State, 94 Nev. 323, 579 P.2d 1247 (1978).
____________
95 Nev. 162, 162 (1979) Sparks v. State
MICHAEL ALAN SPARKS, Appellant, v. THE
No. 10298
February 28, 1979 591 P.2d 268
Appeal from conviction, upon a jury verdict. Eighth Judicial District Court, Clark County;
Defendant was convicted before the district court of sale of a controlled substance, and he
appealed. The Supreme Court held that: (1) trial court did not commit reversible error with
respect to testimony relating to other criminal activity by defendant, and (2) evidence was
sufficient to sustain conviction.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
1. Criminal Law.
Where undercover officer testified, without objection, in prosecution for sale of a controlled substance,
that during transaction which led to defendant's conviction defendant volunteered information that he
expected a subsequent shipment of drugs, where defense counsel later asked witness whether he
subsequently visited defendant and asked him for drugs, and where defense counsel's motion to strike was
granted and jury was immediately admonished to disregard question and answer when prosecutor, on
redirect, asked purpose of subsequent visit and witness replied that he went there to inquire of defendant if
his new shipment of drugs had come in, no reversible error occurred with respect to testimony relating to
other criminal activity by defendant. NRS 453.171, 453.321.
Evidence, which disclosed that defendant negotiated sale of a controlled substance for a specified price
and that he received money in exchange for a controlled substance, was sufficient to support his conviction
of sale of a controlled substance. NRS 453.171, 453.321.
OPINION
Per Curiam:
Appellant Michael Alan Sparks was tried to a jury and convicted of the sale of a controlled
substance. NRS 453.321, 453.171. He was sentenced to serve eight years in the Nevada State
Prison. He has appealed, seeking reversal on two grounds: that testimony relating to other
criminal activity by appellant prejudiced his right to a fair trial, and that there was insufficient
evidence presented to sustain the conviction. We disagree and therefore affirm.
[Headnote 1]
1. An undercover officer testified, without objection, that during the transaction which led
to appellant's conviction, appellant volunteered the information that he expected a subsequent
shipment of drugs. Defense counsel later asked the witness whether he had subsequently
visited appellant, and whether he had asked appellant for drugs at that time. On redirect, the
prosecutor asked the purpose of the subsequent visit. The witness replied: I went there to
inquire from the defendant if his new shipment of drugs had come in. Defense counsel's
motion to strike was granted, and the jury was immediately admonished to disregard the
question and answer. Under the circumstances presented, we find no basis for concluding that
the trial court committed reversible error. NRS 177.255. Allen v. State, 91 Nev. 78, 530 P.2d
1195 (1975); Revuelta v. State, S6 Nev. 5S7, 472 P.2d 343 {1970); Williams v. State, S5
Nev. 169
Revuelta v. State, 86 Nev. 587, 472 P.2d 343 (1970); Williams v. State, 85 Nev. 169, 451
P.2d 848 (1969). See Carpenter v. State, 530 P.2d 1049 (0kla.Crim.App. 1975).
[Headnote 2]
2. Appellant's contention that there was insufficient evidence to support his conviction is
similarly without merit. There is evidence in the record that appellant negotiated the sale of a
controlled substance for a specified price, and that he received money in exchange for a
controlled substance. The verdict of the jury will therefore not be disturbed on appeal.
Hamilton v. State, 94 Nev. 535, 582 P.2d 376 (1978); Silks v. State, 92 Nev. 91, 545 P.2d
1159 (1976); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972).
The judgment is accordingly affirmed.
____________
95 Nev. 164, 164 (1979) Diotallevi v. Sierra Dev. Co.
PIETRO DIOTALLEVI, Appellant, v. SIERRA DEVELOPMENT COMPANY, a Nevada
Corporation, dba CLUB CAL NEVA; FIRST NATIONAL BANK OF NEVADA, a National
Banking Association; and RAE ZETOONY KAHAN, Respondents.
No. 10463
February 28, 1979 591 P.2d 270
Appeal from order conditionally confirming sale of trust property. Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Prospective purchaser of property held subject to trust appealed from order of the district
court confirming lease-sale of property to another prospective purchaser. The Supreme Court,
Mowbray, C. J., held that district court, sitting as probate court in matter before it as result of
trustee's petition, did not abuse its discretion, after having authorized trustees to commence
negotiations for sale of properly held in trust, after high bid of $51,000 annual rent and later
purchase was accepted by trustees, and after second bidder objected and submitted bid of
$72,000 annual rent with same terms as bid accepted by trustee, in ordering confirmation of
$72,000 bid subject to receipt of any higher bid at public hearing to be held for that purpose.
Affirmed.
Swanson, Swanson & Capurro, Reno, for Appellant.
Phyllis Halsey Atkins and William Thornton, Reno; and Sinai, Ohlson & Schroeder, Reno,
for Respondents.
1. Courts.
Fact that plaintiff argued issue of probate court's jurisdiction to enter order conditionally confirming
lease-sale of property held in trust in his petition for writ of prohibition, which was denied, did not preclude
him from raising that issue again on second appeal, since plaintiff's petition was denied on ground that he
had adequate remedy at law, and issue of probate court's jurisdiction was not ruled upon in prior appeal
denying petition.
2. Trusts.
District court, sitting as probate court, in matter before it as result of trustee's petition, had jurisdiction,
under statute providing that trustees may petition court for instruction as to administration of trust, to issue
order conditionally confirming one bid for lease-sale of property held in trust and refusing to confirm prior
bid submitted pursuant to court-authorized negotiations with trustees; since district court had jurisdiction to
authorize lease-sale, it also had jurisdiction to require trustees to return to it for confirmation, and could
bring to bear its full equitable powers. NRS 153.040, subd. 1.
3. Trusts.
District court, sitting as probate court in matter before it as result of trustee's petition, did not abuse its
discretion, after having authorized trustees to commence negotiations for sale of property held in trust, after
high bid of $51,000 annual rent and later purchase was accepted by trustees, and after second bidder
objected and submitted bid of $72,000 annual rent with same terms as bid accepted by trustees, in ordering
confirmation of $72,000 bid subject to receipt of any higher bid at public hearing to be held for that
purpose. NRS 153.040, subd. 1.
OPINION
This is an appeal from an order confirming sale of trust property. We affirm.
This is the second time the case has been before us. In Diotallevi v. District Court, 93 Nev.
633, 572 P.2d 214 (1977), appellant Diotallevi's petition for a writ of prohibition was denied
on the ground that he had an adequate remedy by appeal. This appeal is brought as a result of
that ruling.
The underlying facts are set forth in our previous opinion. In brief, appellant challenges an
order entered by the court below on April 15, 1977, which confirmed a lease-sale of property
held in trust by respondent First National Bank of Nevada (Bank) to respondent Sierra
Development Corporation (Cal Neva), subject to receipt of higher bids at an oral bidding
conducted in open court. Appellant suggests that the court was bound to confirm his prior
bid of $51,000 annual rent, submitted pursuant to a court-authorized sale.
bound to confirm his prior bid of $51,000 annual rent, submitted pursuant to a
court-authorized sale. The authorization, and subsequent proposed contract, however, were
expressly made subject to confirmation by the lower court.
In-court bidding was later conducted, pursuant to notice, by the court on February 23,
1978, following our denial of appellant's petition for a writ of prohibition. Cal Neva
submitted the high bid of $150,000 annual rent. The court ordered the lease-purchase
agreement confirmed with Cal Neva, at that rate. This appeal resulted.
THE COURT'S JURISDICTION
[Headnote 1]
As a threshold issue, respondent Cal Neva urges that since appellant argued the issue of
the court's jurisdiction in the petition for a writ of prohibition, which this court denied in
Diotallevi v. District Court, supra, appellant is now precluded from raising that issue again
on this appeal. This contention is meritless. Appellant's petition was denied on the ground
that he had an adequate remedy at law under NRS 155.190. The issue of the jurisdiction of
the lower court to refuse to confirm appellant's bid was not ruled upon in Diotallevi v.
District Court, supra. Appellant may therefore raise the issue on this appeal.
[Headnote 2]
Appellant suggests that the order conditionally confirming the bid of Cal Neva, and
refusing to confirm his bid, was beyond the subject matter jurisdiction of the lower court,
sitting as a probate court, under NRS Ch. 153. We believe, however, that the probate court
had jurisdiction under NRS Ch. 153 to issue the order in question.
1

Since its adoption in 1941, NRS Ch. 153 has permitted probate courts to retain jurisdiction
over testamentary trusts for the purpose of the settlement of accounts . . . and for the
distribution of the residue to those entitled to it. NRS 153.020(1); 1941 Nev. Stats. ch. 107,
244, p. 217. By amendment in 1947, the statute also permits a trustee to petition the court
from time to time, for instructions as to the administration of the trust. NRS 153.040(1);
1947 Nev. Stats. ch. 22, 1, p. 39.
Appellant relies heavily on In Re Devincenzi's Estate, 65 Nev. 158, 190 P.2d 842 (1948),
for the proposition that Chapter 153 does not confer upon the probate court jurisdiction to
refuse to confirm the lease-sale to him.
____________________

1
Much attention has been given in the briefs to the question of whether Chapter 153, dealing with probate
matters, or Chapter 164, dealing with trusts, applies to the present administration of this testamentary trust,
established in 1951. In view of our resolution of the matter, it is unnecessary to discuss this issue.
refuse to confirm the lease-sale to him. The Devincenzi case dealt with the predecessor of
NRS 153.020, regarding settlement of accounts. In that case, the beneficiaries objected to an
already completed sale, which the trustees had not brought to court for prior approval.
California cases, as noted in Devincenzi, had interpreted the comparable provision of their
probate code quite narrowly, so as to limit the ability of beneficiaries to challenge, in probate
court, the administration of a testamentary trust. E.g., In Re Hubbell's Estate, 8 P.2d 530
(Cal.App. 1932); Johnson v. Superior Court, 247 P. 249 (Cal.App. 1926); Parkman v.
Superior Court, 246 P. 334 (Cal.App. 1926).
Since those California cases were decided, two changes have been made in the comparable
section of the California Probate Code, now 1120. See 1931 Cal. Stats. ch. 281, 1120, at
659. The first, for which there has been no comparable change in NRS Ch. 153, provides that
the probate court retains jurisdiction for the purpose not only of settling accounts and
distribution but also of passing upon the acts of the trustees. The second addition to the
California section provides that The trustee may also petition such court, from time to time,
for instructions as to the administration of the trust. For this addition, Nevada does have a
comparable provision, NRS 153.040(1), providing that trustees may petition the court, from
time to time, for instructions at to the administration of the trust. (added 1947 Nev. Stats. ch.
33, 1, at 39). This provision of the California statute has been interpreted by the California
courts as conferring upon probate courts jurisdiction over administration of trust
matterswhen such matters are brought to the court by the trustees themselves. See In Re
Keet's Estate, 100 P.2d 1045 (Cal. 1940); In Re Smith's Estate, 41 P.2d 565 (Cal.App. 1935).
In this case, the matter was before the court as a result of a trustee's petition. Therefore,
NRS 153.040 provided the predicate for the court's jurisdiction.
Since the lower court had jurisdiction to authorize the lease-sale under NRS 153.040, it
also had jurisdiction to require the trustees to return to it for confirmation. Having subject
matter jurisdiction, the court could bring to bear its full equitable powers. See In Re Charters'
Estate, 293 P.2d 778, 784 (Cal. 1956); In Re Evans' Estate, 144 P.2d 625, 629-30 (Cal.App.
1944). Courts of equity have traditionally had the power to authorize a trustee's sale subject to
a requirement that the proposed sale be submitted to the court for approval. 7 Bogert, Trusts
742 pp. 587-88 (2d ed. 1960). In confirming the sale, the court simply borrowed a procedure
from statutes governing estate sales for receipt of higher bids in open court, a practical and
fair method for determining the best price available.
estate sales for receipt of higher bids in open court, a practical and fair method for
determining the best price available. See In Re De La Montanya's Estate, 188 P.2d 494
(Cal.App. 1948). Therefore, the order entered April 15, 1977, was within the jurisdiction of
the probate court under the provisions of NRS 153.040.
THE COURT'S DISCRETION
[Headnote 3]
We turn to consider whether the court abused its discretion in refusing to confirm
appellant's bid. In claiming that the court did so, appellant urges this court to follow In Re
Strass' Trust Estate, 105 N.W.2d 553 (Wis. 1960), where the court reversed a lower court
confirmation of a subsequent higher bid following a trustee sale.
In Strass, the testamentary trustee petitioned the court for permission to vacate an
agreement for sale of trust property made pursuant to court authorization. The agreement
provided that it was subject to court confirmation. The trustee alleged that he had received
and accepted an offer of $16,000 for the property, only to receive an offer of $17,000 a few
days later. The property had been appraised at $15,000, and the beneficiaries had consented to
a sale at $16,000 or more. The lower court refused to confirm the original agreement, and
conducted an auction in open court that produced a high bid of $18,300, which the court
confirmed.
The Supreme Court of Wisconsin reversed, holding that the facts were insufficient to
sustain an order setting aside the original sale or refusing to confirm it. The court noted that
there is no claim that there was any mistake, misapprehension, or inadvertence, no suspicion
of fraud, and the trustee acknowledged that $16,000 was not disproportionate to the value of
the property. The trial court did not find otherwise. 105 N.W.2d at 555.
Respondents, on the other hand, urge this court to follow In Re De La Montanya's Estate,
supra, in which the California appellate court sustained a similar lower court order. In
Montanya, the testamentary trustee applied to the court for an order confirming its sale of
trust property under a trust instrument which granted it full discretionary power to do so. The
contract for purchase provided for a full price of $130,000, of which a portion of the payment
was to be made on court confirmation. During the confirmation hearing, a bidder offered
$150,000. The court, after inquiring whether there were any further bids, ordered the sale to
the second bidder confirmed.
The appellate court upheld the trial court's determination that "the original sale [was] not
for the best interests of the trust nor for its advantage and benefit."
that the original sale [was] not for the best interests of the trust nor for its advantage and
benefit. 188 P.2d at 498. It emphasized that in the present case title did not pass to the man
who made the original offer. The prospective sale . . . was on condition that the sale should be
confirmed by the court. In the court's view, the determinative question on this appeal is
whether the evidence supports the findings in the order. It concluded that As a matter of
law we are not in a position to say that the trial court erred in determining that the sale [to the
highest bidder] was in the best interests of the trust. Id.
The most clear-cut distinguishing feature between the authority cited by appellant and that
cited by respondents is the courts' respective policy concerns. Those jurisdictions which stress
the importance of upholding trustee's contracts and the finality of trustee sales tend to uphold
the original agreement. See Evans v. Hunold, 65 N.E.2d 373 (Ill. 1946); Gilden v. Harris, 78
A.2d 167 (Md.App. 1951); In Re Strass' Trust Estate, supra. Those jurisdictions which stress
the duty of trustees, and the courts, to protect the interests of beneficiaries in obtaining the
best possible price tend to allow acceptance of later bids. See In Re De La Montanya's Estate,
supra, Buttle v. Saunders, 2 All E.R. 193 (1950); Forester v. O'Connell & Lee Mfg. Co., 103
N.E.2d 705 (Mass. 1952); Application of First Methodist Church, 56 A.2d 120 (N.J.Ch.
1947); In Re Stone's Estate, 56 A.2d 664 (Pa. 1948). Cf. A-Mark Coin Co. v. Estate of
Redfield, 94 Nev. 495, 582 P.2d 359 (1978). We prefer the latter policy as more equitable,
and for the reasons expressed below hold that it should govern in the instant case.
In the instant case, the trustees and the court had a particular responsibility for considering
the interests of the beneficiaries, the great majority of whom resided in various foreign
countries and, therefore, could not have been expected to appear before the court. Unlike the
situation in Strass, where the trustees had specifically obtained the consent of the
beneficiaries, the only beneficiary who resides in Nevada appeared at the hearing to object to
the confirmation of the original agreement. On the other hand, appellant was fully aware that
he was dealing with trustees authorized only to negotiate a sale or lease, and that the proposed
contract was subject to court approval.
The court had before it an agreement providing for $51,000 annual rent, and a subsequent
offer of $72,000 annual rent. Although it had no way of knowing that the eventual bid would
be almost triple the amount bid by appellant, it could well have considered that it was worth
even more than the subsequent bid before it. In Gumz v. Chickering, 121 N.W.2d 279 (Wis.
1963), the Supreme Court of Wisconsin upheld a lower court's refusal to confirm a
foreclosure sale purchase, holding that the general rule prohibiting such refusal solely on
grounds of inadequate price was subject to an exception when the price was "so grossly
inadequate as to shock the conscience" of the court.
to confirm a foreclosure sale purchase, holding that the general rule prohibiting such refusal
solely on grounds of inadequate price was subject to an exception when the price was so
grossly inadequate as to shock the conscience of the court. 121 N.W.2d at 284.
Finally, there was evidence before the court below which suggested that the original
bidding may have been intentionally low, due to a misunderstanding on the part of Cal Neva
officers, namely, that bidding would be entertained at the confirmation hearing. The Supreme
Court of Utah refused to compel the lower court to confirm the initially accepted bid in a
court-ordered sale of a company in receivership. The court held that [w]hile the mere
inadequacy of the amount bid, standing alone, may not be an adequate cause for setting aside
a sale, yet, where, as in this case, there is a misunderstanding among the creditors who desire
to bid, it was the duty of the court to protect the best interests of all concerned. Joseph
Nelson Plumbing & Heating Supply Corp. v. McCrea, 231 P. 823, 825 (Utah 1924). The
court concluded that, under the circumstances, the owners and creditors had greater equitable
interests than did the purchaser.
In light of all these circumstances, the beneficiaries are particularly entitled to the critical
scrutiny and supervision of the [court] to the end that the trust may be nourished as much as
the available opportunities will permit. Application of First Methodist Church, supra, 56
A.2d at 122. In the terms suggested by the court in Montanya's Estate, the court's
determination in the case at hand that the interests of the trust, and the beneficiaries, required
acceptance of subsequent bids was supported by the evidence before it.
We conclude, therefore, that the court below did not exceed its statutory jurisdiction in
ruling on the sale, nor did it abuse its discretion in confirming the higher bid of Cal Neva.
Consequently, we affirm.
Thompson, Gunderson, Manoukian, and Batjer, JJ., concur.
____________
95 Nev. 171, 171 (1979) Larsgaard v. Sheriff
DENNIS LARSGAARD, Appellant, v. SHERIFF,
No. 10890
February 28, 1979 591 P.2d 256
Appeal from an order denying pretrial petition for a writ of habeas corpus; Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
Defendant filed petition for writ of habeas corpus, seeking release because of delay in his
arraignment. The district court denied petition, and defendant appealed. The Supreme Court,
Thompson, J., held that: (1) where 60-day delay in arraignment of defendant, who was
promptly taken before magistrate after arrest, was mainly caused by action of defendant in
persuading magistrate that he was within exclusive jurisdiction of juvenile court, when this
was not true, such delay was not unreasonable, and defendant would not be released on that
ground, and (2) in balancing factors to be considered, including length of delay, reason for
delay, assertion by defendant of his right, and prejudice to him, defendant was not denied his
right to speedy trial.
Affirmed.
Denton & Denton, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, and Bill C. Hammer, Chief Deputy District Attorney,
1. Infants.
Juvenile court certification is not necessary when minor is charged with capital offense. NRS 62.050.
2. Criminal Law.
Where 60-day delay in arraignment of defendant, who was promptly taken before magistrate after arrest,
was mainly caused by action of defendant in persuading magistrate that he was within exclusive jurisdiction
of juvenile court, when this was not true, such delay was not unreasonable, and defendant would not be
released on that ground. NRS 62.040, 62.050, 171.178, subd. 1.
3. Criminal Law.
In balancing factors to be considered, including length of delay, reason for delay, assertion by defendant
of his right, and prejudice to him, defendant, who himself mainly caused delay in his coming to trial by
persuading magistrate that he was within exclusive jurisdiction of juvenile court, when this was not
true, was not denied his right to speedy trial.
court, when this was not true, was not denied his right to speedy trial. U.S.C.A.Const. Amend. 6.
OPINION
The appellant, in custody on an open charge of murder, seeks release because of a 60-day
delay in his arraignment. He asserts that such delay violates NRS 171.178(1) and his sixth
amendment right to a speedy trial. These contentions were presented to the district court
through a petition for habeas corpus and there denied. For reasons hereafter stated we agree
with that court and affirm.
1. NRS 171.178(1) directs a peace officer to take the arrested person before a magistrate
without unnecessary delay.
1

After arrest the appellant promptly was taken before a magistrate. Arraignment, however,
did not occur because of his motion to transfer the case to the juvenile division of the district
court on the ground that he was only 17 years old at the time of the murder. His motion was
granted and the case transferred. Thereafter, a petition was filed charging him with murder.
The State then sought to have the case transferred back to justice's court, or to have the
accused certified as an adult. The motion to transfer was denied and the petition for
certification investigation was granted. Approximately three weeks thereafter, the accused
was certified to stand trial as an adult, and his arraignment occurred the following day.
[Headnotes 1, 2]
When first brought before the magistrate the appellant contended that since he was not
charged with capital murder as defined in 1975 (when the offense allegedly happened) by
NRS 200.030(1), he was within the exclusive jurisdiction of the juvenile court.
2
The
magistrate accepted his contention and transferred the cause. In doing so the magistrate erred
since juvenile court certification is not necessary when a minor is charged with a capital
offense.
____________________

1
NRS 171.178(1): . . . a peace officer making an arrest under a warrant issued upon a complaint or without a
warrant shall take the arrested person without unnecessary delay before the magistrate who issued the warrant or
the nearest available magistrate empowered to commit persons charged with offenses against the laws of the
State of Nevada.

2
In 1975, NRS 200.030(1) defined capital murder as murder perpetrated by: a) killing a peace officer or
fireman . . .; b) a person who is under a sentence of life imprisonment without possibility of parole; c) executing
a contract to kill . . .; d) use or detonation of a bomb or explosive device; and, e) killing more
with a capital offense. Rhodes v. State, 91 Nev. 17, 530 P.2d 1199 (1975); Lehmann v.
Warden, 87 Nev. 24, 480 P.2d 155 (1971). His error which necessarily caused a delay in
arraignment was prompted by the accused. We find it quite impossible to consider the delay
unreasonable in these circumstances. The purposes behind the statutory requirement (see
Morgan v. Sheriff, 92 Nev. 544, 554 P.2d 733 (1976)) were not frustrated here.
[Headnote 3]
2. The contention that his right to a speedy trial was denied similarly is without merit. In
balancing the factors to be considered, the length of the delay, the reason for the delay, the
assertion of his right and prejudice to him [Barker v. Wingo, 407 U.S. 514 (1972); Sheriff v.
McKinney, 93 Nev. 313, 565 P.2d 649 (1977); Sondergaard v. Sheriff, 91 Nev. 93, 531 P.2d
474 (1975)] the scales weigh in favor of the State. Most of the delay happened because of the
appellant's erroneous insistance that the matter be transferred to the juvenile division of the
district court. Neither is prejudice shown, although we acknowledge the possibility of its
existence in any case where delay is involved. It would manifestly be improper to penalize the
State for a delay caused mainly by the accused.
Affirmed.
____________________
than one person willfully, deliberately and without premeditation as the result of a single plan, scheme or design.
NRS 62.040 invested the juvenile division of the district court with original exclusive jurisdiction over
children who had committed delinquent acts.
NRS 62.050 required that criminal cases involving persons under the age of 18 years at the time the offense
was committed be transferred to the juvenile division, except in the case of a capital offense.
____________
95 Nev. 173, 173 (1979) Ormound v. Sheriff
WILLIE FRED ORMOUND, Appellant, v. SHERIFF,
No. 11467
February 28, 1979 591 P.2d 258
Appeal from order denying pretrial petition for a writ of habeas corpus, Eighth Judicial
Pretrial petition for writ of habeas corpus was filed on ground that district court had
improperly granted continuance of preliminary examination due to absence of prosecuting
witness.
of preliminary examination due to absence of prosecuting witness. The district court denied
petition and petitioner appealed. The Supreme Court held that the district court improperly
granted the continuance, where prosecuting witness was resident of Virginia and prosecuting
attorney stated that Nevada justice's court subpena had been mailed to witness' Virginia
address and that deputy district attorney had telephone conversation with witness and advised
her of necessity of her testimony, but legal force of the subpena was limited to the State of
Nevada, and prosecuting attorney did not utilize the provisions of the Uniform Act to Secure
the Attendance of Witnesses From Without a State in Criminal Proceedings, so that
prosecuting attorney did not make a good-faith effort to obtain attendance of witness.
Reversed.
[Rehearing denied July 6, 1979]
Morgan D. Harris, Public Defender, and William P. Henry, Deputy Public Defender,
M. Douglas Whitney, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
District court improperly granted continuance of preliminary examination due to absence of prosecuting
witness, where prosecuting witness was resident of Virginia and prosecuting attorney stated that Nevada
justice's court subpena had been mailed to witness' Virginia address and that deputy district attorney had
telephone conversation with witness and advised her of necessity of her testimony, but legal force of
subpena was limited to State of Nevada, and prosecuting attorney did not utilize provisions of Uniform Act
to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings so that prosecuting
attorney did not make a good-faith effort to obtain attendance of witness. DCR 21; NRS 174.315,
174.365, 174.395-174.445.
2. District and Prosecuting Attorneys.
The procedures of the Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal
Proceedings must be utilized to support finding that prosecuting attorney has made good-faith effort to
obtain attendance of necessary witness who resides in state where the Act has been adopted. DCR 21;
NRS 174.315, 174.365, 174.395-174.445.
OPINION
Per Curiam:
The sole question before us on this appeal from an order denying a petition for a writ of
habeas corpus is whether the district court improperly granted a continuance of the
preliminary examination due to the absence of the prosecuting witness.
district court improperly granted a continuance of the preliminary examination due to the
absence of the prosecuting witness. We agree with the appellant's contention that the
continuance was improperly granted.
[Headnote 1]
Our prior decisions have established that where a legal means of compelling the
attendance of a witness is available, that method must be utilized before the good cause
requirement of DCR 21 is met. See Salas v. Sheriff, 91 Nev. 802, 543 P.2d 1343 (1975).
Here, the prosecuting witness was a resident of Virginia. The prosecuting attorney stated that
a Nevada Justice's Court subpena had been mailed to the witness's Virginia address and a
deputy district attorney had a telephone conversation with the witness and advised her of the
necessity of her testimony. Such informal methods do not satisfy the requirement of DCR 21
because the legal force of a Nevada Justice's Court subpena is limited to the State of Nevada.
See NRS 174.315 and NRS 174.365.
[Headnote 2]
Moreover, the prosecuting attorney had available to him the provisions of the Uniform Act
To Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. See
NRS 174.395-445. The Act delineates a specific procedure to compel a witness residing in a
foreign state to appear in a criminal proceeding in Nevada. We hold that the procedures of the
Act must be utilized to support a finding that the prosecuting attorney has made a good faith
effort to obtain the attendance of a necessary witness who resides in another state where the
Act has been adopted.
1
Cf. State v. Kim, 519 P.2d 1241 (Hawaii 1974); Brooks v. State, 371
A.2d 674 (Md. Ct.Spec.App. 1977). Here, the prosecuting attorney's disregard of the
provisions of the Act constitutes a willful failure to comply with important procedural rules.
See Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970). Accordingly, the order of the district
court is reversed.
____________________

1
The Uniform Act To Secure the Attendance of Witnesses From Without a State in Criminal Proceedings has
been adopted in Virginia. See Va. Code 19.2-272 to -282. We express no opinion on what efforts must be
made to secure the attendance of a witness who resides in a state that has not adopted the Act.
____________
95 Nev. 176, 176 (1979) Meyer v. District Court
ANDREE J. MEYER, Formerly ANDREE J. METZKER, Petitioner, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE
COUNTY OF WASHOE (DEPT. NO. 5 THEREOF, THE HONORABLE WILLIAM N.
FORMAN, DISTRICT JUDGE, PRESIDING); and JOHN G. METZKER, Real Party in
Interest, Respondents.
No. 10688
February 28, 1979 591 P.2d 259
Original petition for writ of prohibition to enjoin enforcement of an order entered in the
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Original petition was brought for writ of prohibition to enjoin enforcement of an order
entered in the district court preventing petitioner from testifying at a child custody hearing
unless she answers certain questions propounded during discovery. The Supreme Court,
Mowbray, C. J., held that order prohibiting ex-wife, who, in respect to ex-husband's petition
for change of child custody, refused on Fifth Amendment grounds to answer deposition
questions relating to her use or purchase of drugs and their presence in her home and use by
friends or acquaintances, from testifying in the custody hearing unless she elected to answer
the deposition questions under specified conditions designed to limit disclosure of her
answers to the court, counsel and parties did not impose a penalty on wife for the exercise of
her constitutional privilege against self-incrimination, nor levy a sanction under the rules of
civil procedure; the order simply bound her to her choice, while advising her of the
consequences.
Denied.
Raggio, Walker & Wooster, and Michael Lindell, Reno, for Petitioner.
Swanson, Swanson & Capurro, Reno, Walther, Key, Maupin & Oats, Reno, for
Respondents.
1. Divorce; Witnesses.
Order prohibiting ex-wife, who, in respect to ex-husband's petition for change of child custody, refused
on Fifth Amendment grounds to answer deposition questions relating to her use or purchase of drugs and
their presence in her home and use by friends or acquaintances, from testifying in the custody hearing
unless she elected to answer the deposition questions under specified conditions designed to limit
disclosure of her answers to the court, counsel and parties did not impose a penalty on wife for the exercise
of her constitutional privilege against self-incrimination, nor levy a sanction under the rules of
civil procedure; the order simply bound her to her choice, while advising her of the
consequences.
nor levy a sanction under the rules of civil procedure; the order simply bound her to her choice, while
advising her of the consequences. U.S.C.A.Const. Amend. 5.
2. Witnesses.
Constitutional mandates of Fifth Amendment do not preclude courts from determining that a party who
volunteers to testify in a civil matter must either weigh privilege against self-incrimination or accept
consequence that such testimony will be stricken from record. U.S.C.A.Const. Amend. 5.
3. Witnesses.
While ex-wife, who, in regard to ex-husband's petition for change of child custody, refused on Fifth
Amendment grounds to answer deposition questions relating to her use or purchase of drugs, might have a
constitutional right to claim the privilege against self-incrimination, she had no constitutional right to
choose the time at which such privilege might be waived, to the prejudice of the opposing party and in
derogation of the discovery policies of the Nevada Rules of Civil Procedure. U.S.C.A.Const. Amend. 5.
OPINION
This is an original petition for a writ of prohibition to enjoin the enforcement of an order
entered in the Second Judicial District Court. Petitioner seeks to bar the enforcement of the
district judge's order preventing her from testifying at a child custody hearing unless
petitioner answers certain questions, under specified conditions, propounded during
discovery.
THE FACTS
Petitioner and respondent John G. Metzker, real party in interest, were divorced in March,
1976. Petitioner was awarded custody of the couple's three children, then age 5, 8, and 10. On
February 10, 1978, respondent Metzker filed a motion to modify the decree of divorce to
award custody of the children to him, on the ground of material changes in the circumstances
of the parties and the children. He alleged that since the decree of divorce he had remarried,
purchased a home, and rearranged his business affairs so as to have more time to devote to his
children. He further alleged that petitioner's relationship with the children had deteriorated,
and that she was not providing a stable, constructive and moral atmosphere and
environment for the proper rearing of the children.
Pursuant to a court order, petitioner and her present husband appeared for deposition. On
advice of counsel, petitioner refused to answer any questions relating to her use or purchase
of drugs; the presence of drugs in her home; the use of drugs by friends or acquaintances in
her home or in her presence.
friends or acquaintances in her home or in her presence. In response to all such questions,
petitioner invoked the privilege against self-incrimination. Her present husband took the same
position during his deposition on the same day.
Respondent Metzker subsequently moved for an order compelling discovery; an order
preventing petitioner or her present husband from testifying at the hearing, or, alternatively,
granting respondent Metzker's motion for modification. Following a hearing, the court
entered an order providing that the motion for an order preventing petitioner from testifying
at the hearing
is hereby granted unless [petitioner] elects to answer the questions propounded to her at
the deposition. In the event [petitioner] elects to answer such questions, the Court will
enter an order that the deposition be conducted with no one present except the court
reporter, the parties and counsel for the parties, and that her testimony be sealed and
disclosed only to the court, counsel and the parties.
THE COURT'S JURISDICTION
Petitioner argues that the order in question imposes a penalty for the exercise of her
constitutional privilege against self-incrimination,
1
and thus was an act in excess of
jurisdiction under Spevack v. Klein, 385 U.S. 511 (1967) (disbarment for exercise of Fifth
Amendment privilege unconstitutional).
Petitioner also contends that the order was improper under the Nevada Rules of Civil
Procedure, which authorize discovery only of matters not privileged. N.R.C.P. 26(b)(1). She
relies particularly upon the discussion of court-imposed sanctions, in civil cases, for the
exercise of the Fifth Amendment privilege found in 8 Wright & Miller, Federal Practice and
Procedure: Civil 2018 (1970).
The courts of many jurisdictions have applied sanctions in civil cases for the refusal of a
party to respond to relevant questions, even though such refusal may have been based upon a
legitimate invocation of the privilege against self-incrimination.
2
Commentators have urged
the courts to devise remedies which would accommodate the constitutional safeguards of
the privilege, while not permitting its invocation to thwart the purposes and policies of
the discovery rules. See, e.g., M.
____________________

1
As to a majority of the questions which petitioner refused to answer, respondents do not question the
legitimacy of petitioner's invocation of the Fifth Amendment. We therefore assume, arguendo, that the
invocation of the privilege was legitimate.

2
Appellate courts have, for instance, upheld dismissal of plaintiffs' complaints, generally on equitable
principles, when such plaintiffs have invoked the Fifth Amendment privilege during discovery. E.g., Lyons v.
Johnson, 415 F.2d 540 (9th Cir. 1969); Minor v. Minor, 240 So.2d 301 (Fla. 1970) (rejecting contention that
Spevack required reversal of its prior rule); Christenson v. Christenson, 162 N.W.2d 194 (Minn. 1968); Franklin
v. Franklin, 283 S.W.2d
which would accommodate the constitutional safeguards of the privilege, while not
permitting its invocation to thwart the purposes and policies of the discovery rules. See, e.g.,
M. Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private
Civil Litigation: A Critical Analysis, 39 Brook. L. Rev. 121 (1972); P. Donnici, The Privilege
Against Self-Incrimination in Civil Pre-Trial Discovery: The Use of Protective Orders to
Avoid Constitutional Issues, 3 U.S.F. L. Rev. 12 (1968).
The order of the trial court in this case was carefully designed to accommodate both the
constitutional policies underlying the Fifth Amendment and the legitimate purposes sought to
be served by the rules of discovery. An analysis of the order demonstrates that petitioner's
constitutional privilege against self-incrimination was not abrogated. What petitioner actually
seeks in this extraordinary writ proceeding is a declaration by this court that petitioner had an
absolute right to waive the privilege at any time, regardless of prejudice to the other party or
of the obvious circumvention of the policies of the rules of civil procedure which such a
holding would encourage. As recently noted by a California appellate court, Such a strategy
subjects the opposing party to unwarranted surprise. A litigant cannot be permitted to blow
hot and cold in this manner. A & M Records, Inc. v. Heilman, supra, 142 Cal.Rptr. at 398.
The court below did not preclude petitioner from presenting evidence on her behalf related
to her fitness or that of respondent Metzker. Nor did the court purport to order petitioner to
answer the questions directed to her at deposition. The court thus followed the cases, relied
upon by petitioner, which have held that a motion to compel discovery should be denied
when the deponent legitimately invokes the Fifth Amendment privilege. E.g., Duffy v.
Currier, 291 F.Supp. 810 (D.Minn. 1968); de Antonio v. Solomon, 42 F.R.D. 320 (D.Mass.
1967); Lowe's of Roanoke, Inc. v. Jefferson Standard Life Ins. Co., 219 F.Supp.
____________________
483 (Mo. 1955); see Henson v. Citizens Bank of Irving, 549 S.W.2d 446 (Tex.Civ.App. 1977) (reversing solely
on ground that plaintiff had not been given option of changing position prior to dismissal).
Courts have also ordered or authorized sanctions against defendants for refusing to answer questions during
discovery or trial on Fifth Amendment grounds. E.g.; Rubenstein v. Kleven, 150 F.Supp. 47 (D.Mass. 1957)
(related defenses precluded); A & M Records, Inc. v. Heilman, 142 Cal.Rptr. 390 (Cal.App. 1977), appeal
dismissed and cert. denied sub nom. Heilman v. A & M Records, Inc., 436 U.S. 952 (1978) (production of
documents and certain testimony precluded); Costanza v. Costanza, 328 A.2d 230 (N.J. 1974) (testimony
precluded); Levin v. Levin, 322 A.2d 486 (N.J.App. 1974) (suppression of related defense); Berner v.
Schlesinger, 178 N.Y.S.2d 135 (Sup.Ct. 1957), aff'd 175 N.Y.S.2d 579 (App.Div. 1958) (striking testimony);
Annest v. Annest, 298 P.2d 483 (Wash. 1956) (striking testimony).
Lowe's of Roanoke, Inc. v. Jefferson Standard Life Ins. Co., 219 F.Supp. 181 (S.D.N.Y.
1963); Federal Deposit Insurance Corp. v. Logsdon, 18 F.R.D. 57 (W.D.Ky. 1955); Zonver v.
Superior Court, 76 Cal.Rptr. 10 (Cal.App. 1969); Townsend v. Northcutt, 173 S.E.2d 470
(Ga.App. 1970).
[Headnote 1]
What the court did order was that if petitioner chose not to respond to the questions at
deposition, under protective measures which the court indicated would be taken, petitioner
would not later be permitted to testify. This result would follow if petitioner should persist,
throughout the hearing, in maintaining her right to invoke the Fifth Amendment, or should
refuse to answer such questions for any reason. See 5 Wigmore, Evidence 1391 (Chadbourn
rev. 1974). Viewed from this perspective, we do not find that the order either imposes a
penalty in violation of Spevack, or levies a sanction under the rules of civil procedure. It binds
petitioner to her choice, while advising her of the consequences.
[Headnote 2]
The courts have consistently held that the constitutional mandates of the Fifth Amendment
do not preclude the courts from determining that a party who volunteers to testify in a civil
matter must either waive the privilege, or accept the consequence that such testimony will be
stricken from the record. Brown v. United States, 356 U.S. 148 (1957); Berner v. Schlesinger,
supra [178 N.Y.S.2d 135 (Sup.Ct. 1957), aff'd 175 N.Y.S.2d 579 (App.Div. 1958)]; Annest
v. Annest, supra [298 P.2d 483 (Wash. 1956)]; 8 Wigmore, Evidence 2276 (McNaughton
rev. 1961); Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va.
L. Rev. 322, 336 (1966). As the high court noted in Brown, when a witness voluntarily
testifies, the privilege against self-incrimination is amply respected without need of accepting
testimony freed from the antiseptic test of the adversary process. . . . Such a witness has the
choice, after weighing the advantage of the privilege against self-incrimination against the
advantage of putting forward his version of the facts and his reliability as a witness, not to
testify at all. 356 U.S. at 155.
In the case at hand, the questions which petitioner has refused to answer go to the heart of
the major issues before the court; her fitness, and the fitness of the children's father and his
present wife, to serve as custodial parents of the couple's three minor children. As the
Supreme Court of Minnesota observed when faced with a similar refusal by a mother to
answer questions, on Fifth Amendment grounds, which related directly to her alleged
misconduct as a wife and mother; "a person ought not to be permitted to divulge only
that part of the story favorable to his or her position and thus present a distorted and
misleading picture of what has really happened."
her alleged misconduct as a wife and mother; a person ought not to be permitted to divulge
only that part of the story favorable to his or her position and thus present a distorted and
misleading picture of what has really happened. Christenson v. Christenson, supra, 162
N.W.2d [194], 202 [(Minn. 1968)].
In Costanza v. Costanza, supra [328 A.2d 230 (N.J. 1974)], the Supreme Court of New
Jersey upheld an order such as the one issued by the court in this case. The New Jersey lower
court had denied plaintiff's motion for an order compelling discovery or for summary
judgment, but had provided that the defendant in the civil action be precluded from testifying
if she persisted in her refusal to answer questions at deposition. The appellate court held that
If [the defendant] is going to testify, then in all fairness the plaintiffs should have her
deposition before trial so that they may properly prepare and avoid trial surprises which
frustrate rather than aid the search for truth and justice. 328 A.2d at 232.
Similarly, the federal district court in Duffy v. Currier, supra, while denying plaintiff's
motion to compel discovery, explained that it would not allow a subsequent waiver at trial, in
contravention of the policies of the rules of civil procedure:
The Federal Rules contemplate that there be full and equal mutual discovery in
advance of trial so as to prevent surprise, prejudice, and perjury. It is an effective
means of detecting and exposing false, fraudulent, and sham claims and defenses. 4
Moore, Federal Practice 26.02(2) at 1034-35. The court would not tolerate nor indulge
a practice whereby a defendant by asserting the privilege against self-incrimination
during pre-trial examination and then voluntarily waiving the privilege at the main trial
surprised or prejudiced the opposing party.
291 F.Supp. at 815.
Indeed, Wright and Miller, upon whose position petitioner relies, have urged the courts to
apply exactly the remedy chosen by Judge Forman. They note that if a party is free to shield
himself with the privilege during discovery, while having the full benefit of his testimony at
trial, the whole process of discovery could be seriously hampered. 8 Wright & Miller, supra
[Federal Practice and Procedure: Civil 2018 (1970)], at 149.
[Headnote 3]
We conclude that the court's order in this case effectuates the policies underlying the
discovery provisions of the Nevada Rules of Civil Procedure, without compromising the
prerogative of petitioner to insist upon her right to refuse to disclose information which might
tend to incriminate her. The court went further in providing that should petitioner choose
to respond at deposition, only the court, parties and counsel would have access to the
information thus disclosed.
went further in providing that should petitioner choose to respond at deposition, only the
court, parties and counsel would have access to the information thus disclosed. The district
judge did not exceed his jurisdiction. While petitioner may have a constitutional right to
claim the privilege, she has no constitutional right to choose the time at which such privilege
may be waived, to the prejudice of the opposing party and in derogation of the discovery
policies of the Nevada Rules of Civil Procedure.
Therefore, the petition for the writ of prohibition is denied.
____________
95 Nev. 182, 182 (1979) Archie v. Sheriff
GLENN DAVIS ARCHIE, Appellant, v. SHERIFF,
No. 11430
February 28, 1979 591 P.2d 245
District Court, Clark County; Thomas J. O'Donnell, Judge.
The district court entered order denying defendant's pretrial habeas corpus challenge to
information charging that defendant committed a battery with a deadly weapon and a robbery.
Defendant appealed. The Supreme Court held that testimony that, during an altercation,
defendant struck victim with a two-by-four piece of lumber supported trial court's
determination that defendant probably committed a battery with use of a deadly weapon, but
record was barren of any evidence that would support an inference that defendant either
committed alleged robbery or participated in a scheme to do so, and thus trial court should
have grated habeas on robbery charge.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Fernando Guzman, Deputy District Attorney, Clark County, for Respondent.
1. Assault and Battery.
Testimony that, during an altercation, defendant struck victim with a two-by-four piece of lumber
supported trial court's determination that defendant probably committed a battery with use of
a deadly weapon.
95 Nev. 182, 183 (1979) Archie v. Sheriff
defendant probably committed a battery with use of a deadly weapon. NRS 200.481.
2. Habeas Corpus.
In case in which trial court denied defendant's pretrial habeas corpus challenge to information charging
that defendant committed a battery with a deadly weapon and a robbery, preliminary examination record
was barren of any evidence that would support an inference that defendant either committed alleged
robbery or participated in a scheme to do so, and thus trial court should have granted habeas on robbery
charge. NRS 200.380.
OPINION
Per Curiam:
[Headnotes 1, 2]
This appeal is from an order denying a pretrial habeas corpus challenge to an information
charging that Glenn Davis Archie committed a battery with a deadly weapon (NRS 200.481),
and a robbery (NRS 200.380). There is testimony recorded in the transcript of the preliminary
examination that, during an altercation, Archie struck the victim with a two-by-four piece of
lumber. This testimony supports the district court's determination, that Archie probably
committed a battery with the use of a deadly weapon. Cf. Lindsay v. State, 64 So. 501 (Fla.
1914). However, the record is barren of any evidence that would support an inference that
Archie either committed the alleged robbery or participated in a scheme to do so. See Skinner
v. Sheriff, 93 Nev. 340, 566 P.2d 80 (1977). Therefore, the district court should have granted
habeas on the robbery charge. Accordingly, the portion of the district court's order which
denied the habeas challenge to the robbery charge is reversed. The portion of the order which
denied the habeas challenge to the battery charge is affirmed.
____________
95 Nev. 183, 183 (1979) Berge v. Fredericks
AIKO BERGE, Appellant, v. FRED FREDERICKS and BETTY L. VALDEZ, aka BETTY
L. FREDERICKS, Respondents.
No. 10251
February 28, 1979 591 P.2d 246
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Appeal was taken from an order of the district court granting summary judgment in favor
of defendant in an action brought to quiet title in certain property.
brought to quiet title in certain property. The Supreme Court, Mowbray, C. J., held that
genuine issues of material fact existed as to whether defendant was either a purchaser for
value or without notice of prior conveyance, precluding summary judgment.
Deaner, Deaner & Reynolds and Robert M. Apple, Las Vegas, for Appellant.
Eric Zubel, Las Vegas, for Respondents.
1. Judgment.
In quiet title action, genuine issues of material fact existed as to whether defendant was either a purchaser
for value or without notice of prior conveyance, precluding summary judgment. NRS 111.325.
2. Judgment.
On motion for summary judgment, trial court is precluded from drawing inferences favorable to moving
party.
3. Vendor and Purchaser.
Party claiming title to land by subsequent conveyance must show that purchase was made in good faith
and for valuable consideration and that conveyance of legal title was received before notice of any equities
of prior grantee. NRS 111.325.
A subsequent grantee receiving property as a gift is precluded from claiming protection of recording act
afforded only to subsequent purchaser for valuable consideration. NRS 111.325.
Burden of establishing status as purchaser rests with party claiming such status. NRS 111.325.
Marriage, unlike love and affection, may constitute valuable consideration entitling a grantee of property
to status of purchaser for value; however, marriage as a consideration must be bargained for and exchanged
in return for that received. NRS 111.325.
Where marriage was in fact consummated prior to any agreement to grant property in question to wife,
marriage would not constitute valuable consideration for transfer. NRS 111.325.
In order to be entitled to status of bona fide purchaser without notice, party was required to show that
legal title had been transferred to her before she had notice of prior conveyance to third party. NRS
111.325.
Party would not qualify as bona fide purchaser without notice if, prior to payment of consideration and
transfer of legal title, she was under duty to inquire. NRS 111.325.
A purchaser put on inquiry may rebut presumption of notice by showing that he made due
investigation without discovering prior right or title he was bound to investigate.
showing that he made due investigation without discovering prior right or title he was bound to investigate.
NRS 111.325.
Question of whether purchaser made due inquiry to rebut presumption of notice of prior conveyance is
question of fact to be investigated by jury. NRS 111.325.
OPINION
This is an appeal from an order granting summary judgment in favor of respondent, Betty
L. Valdez, now known as Betty L. Fredericks [hereafter Valdez], defendant in an action
brought by appellant to quiet title in certain property located in Clark County, Nevada.
1
We
reverse and remand for a full hearing on the merits.
Appellant and Valdez both claim title to the house and lot in question through Fred
Fredericks, who is now the husband of respondent Valdez. Appellant's claim is based upon a
quitclaim deed from Fredericks dated June 21, 1974, and recorded January 1, 1976. The claim
of Valdez is based upon a quitclaim deed from Fredericks to her dated December 22, 1975,
and recorded on the same date.
The court below granted summary judgment for respondent Valdez, on the ground that
there was no genuine issue of material fact. The court concluded that under NRS 111.325
2
the conveyance to appellant was void as against Valdez, whom the court found to be a
subsequent bona fide purchaser for value recording first.
[Headnote 1]
Appellant contends that on the basis of the affidavits and depositions before the court
below, genuine issues of material fact are presented regarding whether Valdez was either (1)
a purchaser for value, or (2) without notice of the prior conveyance. We agree.
____________________

1
Appellant also seeks, by a separate cause of action, damages from Fred Fredericks for conveyance of the
property in fraud of appellant's rights. This cause of action is not affected by the court's order, which has been
duly certified as a final judgment pursuant to NRCP 54(b).

2
Every conveyance of real property within this state hereafter made, which shall not be recorded as
provided in this chapter, shall be void as against any subsequent purchaser, in good faith and for a valuable
consideration, of the same real property, or any portion thereof, where his own conveyance shall be first duly
recorded.
[Headnote 2]
In Keck v. Peckham, 93 Nev. 587, 589-90, 571 P.2d 813, 815 (1977), this court reiterated
the standard for appellate review of an order granting summary judgment:
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). ln 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., 93 Nev. 370, 375, 566 P.2d 819,
822 (1977).
On a motion for summary judgment, the trial court is precluded from drawing inferences
favorable to the moving party. Abbott v. Miller, 80 Nev. 174, 390 P.2d 429 (1964).
[Headnote 3]
In the case at hand, the court below granted summary judgment for Valdez upon the
premise that the evidence established that she was a bona fide purchaser for value who had
recorded first, and thus was entitled to the protection of the recording act. However, a party
claiming title to the land by a subsequent conveyance must show that the purchase was made
in good faith, for a valuable consideration; and that the conveyance of the legal title was
received before notice of any equities of the prior grantee. Brophy M. Co. v. B. & D. M. Co.,
15 Nev. 101, 106 (1880). Accord, Allison Steel Mfg. Co. v. Bentonite, Inc., 86 Nev. 494, 471
P.2d 666 (1970); Moore v. De Bernardi, 47 Nev. 33, 213 P. 1041, 220 P. 544 (1923); Moresi
v. Swift, 15 Nev. 215 (1880); Gilson v. Boston, 11 Nev. 413 (1876). When the evidence is
viewed, as it must be upon this appeal, in the light most favorable to appellant and without
benefit of inferences favorable to movant Valdez, it is apparent that there are genuine issues
of material fact which remain to be resolved, and that summary judgment, therefore, should
not have been granted.
RESPONDENT VALDEZ AS A
PURCHASER FOR VALUE
[Headnotes 4, 5]
The protection of the recording act is afforded only to a subsequent purchaser . . . for a
valuable consideration. NRS 111.325. A purchaser under similar recording acts has been
defined as one who, in exchange for a present consideration, acquires his interest from the
record owner."
acquires his interest from the record owner. 6 R. Powell, Real Property 915, at 282-3
(Rohan rev. 1977). A subsequent grantee receiving property as a gift is, of course, precluded
from claiming the benefits of such a statute. 4 A. J. Casner, American Law of Property
17.6, at 546 (1952); 6 Powell, supra, at 284; 8 G. W. Thompson, Real Property 4319, at
398 (Grimes ed. 1963). Therefore, the burden of establishing her status as a purchaser rests
with respondent Valdez. Moresi v. Swift, supra, 15 Nev. at 224; Davis v. Ward, 41 P. 1010,
1011 (Cal. 1895); 8 Thompson, supra 4316.
Fredericks and Valdez each asserted by affidavit that on October 20, 1975, they had
entered into an oral ante-nuptial agreement that in consideration of her marriage to
Fredericks, Valdez would receive the real property in question as her sole and separate
property. They argue that the consummation of their marriage on December 7, 1975, thus
constituted her payment of the purchase price.
The later deposition of Valdez, however, casts doubt upon these factual assertions. Valdez
testified, for example, that according to the pre-nuptial agreement, We were going to sell
[the property in question] and it was going to go towards a house that he would buy me. She
further testified that the first time she and Fredericks had discussed putting the property in her
name was about two days before we did go down and make the deed out. Since the deed
was executed on December 22, 1975, this would place that discussion about two weeks after
their marriage on December 7.
[Headnotes 6, 7]
Respondent Valdez is correct in asserting that marriageunlike love and
affectionmay constitute valuable consideration, entitling a grantee of property to the status
of a purchaser for value. See 1 A. Corbin, Contracts 131, 134 (1963); 8 Thompson, supra
4319, at 401. However, as with consideration of any other kind, [m]arriage as a
consideration must be bargained for and exchanged in return for that received. Davis v.
Nielson, 515 P.2d 995, 1004 (Wash.App. 1973). See also 1 Corbin, supra 134; Restatement
(Second), Contracts 75 (Tent. Draft, 1973). If, therefore, the marriage was in fact
consummated prior to any agreement to grant the property in question to respondent Valdez,
the marriage would not constitute valuable consideration for the transfer. See Lloyd v. Fulton,
91 U.S. 479 (1875); Kramer v. Kramer, 74 N.E. 474 (N.Y. 1905); Annot., 63 A.L.R. 1184
(1929).
The court below found that Betty L. Valdez married Fred Fredericks with the
consideration that he would transfer the property to her. Since the evidence would permit an
inference that the agreement to transfer the property to Valdez was not, in fact, entered
into prior to her marriage to Fredericks, this finding was improperly made upon the
motion for summary judgment.
that the agreement to transfer the property to Valdez was not, in fact, entered into prior to her
marriage to Fredericks, this finding was improperly made upon the motion for summary
judgment.
RESPONDENT VALDEZ' NOTICE OF
THE PRIOR CONVEYANCE
[Headnote 8]
The court below also found that Betty L. Valdez knew nothing of the plaintiff's
unrecorded deed prior to the marriage. ln order to be entitled to the status of a bona fide
purchaser without notice under NRS 111.325, respondent Valdez was required to show that
legal title had been transferred to her before she had notice of the prior conveyance to
appellant. Moore v. De Bernardi, supra, 47 Nev. at 55, 220 P.2d at 547 (1923). Moresi v.
Swift, supra, 15 Nev. at 223; Boskowitz v. Davis, 12 Nev. 446, 466 (1877). See 4 Casner,
supra 17.9, at 557.
Fredericks and Valdez each asserted by affidavit that Valdez first had express notice of the
prior unrecorded deed to appellant on December 22, 1975, the same day the deed to Valdez
was executed and recorded. Each further asserted that Fredericks told Valdez of the prior
conveyance only after execution of the deed. At deposition, however, Valdez testified that the
discussion of transfer of the property to her, two days prior to the execution of the deed, arose
because there was no quitclaim deed on the house filed and he [Fredericks] wanted to get
one and put it into my name. (Emphasis added.)
It has been noted by one commentator that notice may be inferred from slight
circumstances when it is shown that the purchaser and the vendor, who has made a prior
conveyance or encumbrance of the same property, are intimately associated in business, or
intimately related by blood or connected by marriage. 8 Thompson, supra 4326, at 462.
The same commentator has noted: In order to be able to wrap around himself the cloak of a
bona fide purchaser the buyer must be acting in good faith. He must not be in collusion with
the seller. Such a proposition is axiomatic. 8 Thompson, supra 4313, at 367.
[Headnote 9]
Even if the assertions by Fredericks and Valdez as to the timing of the express notice to
Valdez are credited, however, Valdez would not qualify as a bona fide purchaser without
notice if, prior to the payment of consideration and the transfer of legal title, she was under a
duty of inquiry. Such duty arises when the circumstances are such that a purchaser is in
possession of facts which would lead a reasonable man in his position to make an
investigation that would advise him of the existence of prior unrecorded rights.
when the circumstances are such that a purchaser is in possession of facts which would
lead a reasonable man in his position to make an investigation that would advise him of
the existence of prior unrecorded rights. He is said to have constructive notice of their
existence whether he does or does not make the investigation. The authorities are
unanimous in holding that he has notice of whatever the search would disclose.
Allison Steel Mfg. Co. v. Bentonite, Inc., 86 Nev. 494, 498, 471 P.2d 666, 668 (1970),
quoting 4 Casner, supra 17.11, at 565-66.
It is undisputed that from mid-June, 1975, until the time of the motion for summary
judgment, appellant was in sole and exclusive possession of the property in question. It is also
undisputed that on or about October 27, 1975, respondent Valdez visited the house, and that
from that date, prior to the marriage as well as to the transfer of legal title, she had actual
notice of appellant's residence on the property.
This court, in an early case regarding implied, or inquiry notice, recognized that
As a general rule the authorities declare that open, notorious, and exclusive possession
and occupation of lands by a stranger to a vendor's title, as of record, at the time of a
purchase from and conveyance by such vendor out of possession, is sufficient to put such
purchaser upon inquiry as to the legal and equitable rights of the party so in possession,
and such vendee is presumed to have purchased and taken a conveyance from the vendor
with full notice of all legal and equitable rights in the premises of such party in
possession and in subordination to these rights; and this presumption is only to be
overcome or rebutted by clear and explicit proof on the part of such purchaser, or those
claiming under him, of diligent, unavailing effort by the vendee to discover or obtain
actual notice of any legal or equitable rights in the premises in behalf of the party in
possession.
Brophy M. Co. v. B. & D. M. Co., supra, 15 Nev. at 109. (Refusing to apply rule to
possession by prior grantor.) Accord, Keck v. Brookfield, 409 P.2d 583 (Ariz.App. 1965);
Sheerer v. Cuddy, 24 P. 713 (Cal. 1890); J. R. Garrett Co. v. States, 44 P.2d 538 (Cal. 1935).
See also 4 Casner, supra 17.12; 8 Thompson, supra 4332.
[Headnotes 10, 11]
As suggested in Brophy, a purchaser put upon inquiry may rebut the presumption of
notice by showing that he made due investigation without discovering the prior right or
title he was bound to investigate.
rebut the presumption of notice by showing that he made due investigation without
discovering the prior right or title he was bound to investigate. The question whether he has
made due inquiry is one of fact, to be investigated by the jury. . . . 8 Thompson, supra
4326, at 451.
Respondent Valdez has admitted that she made no inquiries of appellant, and relied upon
Fredericks' assertion that he had title to the property. Courts have consistently held that
reliance upon a vendor, or similar person with reason to conceal a prior grantee's interest,
does not constitute adequate inquiry for purposes of rebutting the presumption of notice.
See, e.g., Keck v. Brookfield, supra [409 P.2d 583 (Ariz.App. 1965)]; Schroeder v.
Toedtemeier, 200 P.2d 606 (Or. 1948); Pender v. Dowse, 265 P.2d 644 (Utah 1954).
We conclude, therefore, that viewing the evidence in the light most favorable to appellant,
respondent Valdez was not entitled to the protection of the recording act. It is not clear that
Valdez was either a purchaser for value or that she was without notice of the prior
conveyance. Consequently, the summary judgment must be reversed. It is so ordered and the
case is remanded for a full hearing on its merits.
____________
95 Nev. 190, 190 (1979) Reed v. State
ALBERT ANTHONY REED, Appellant, v. THE
No. 10156
March 5, 1979 591 P.2d 274
Appeal from judgment of Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Defendant was convicted by a jury in the district court of burglary, and defendant
appealed. The Supreme Court held that: (1) no error occurred in admitting evidence of other
crimes to prove identity, and (2) neither victim's failure at preliminary hearing to identify
defendant nor tentativeness of victim's identification at trial robbed that identification of its
status as substantial corroborative evidence of fingerprint evidence.
Affirmed.
Morgan D. Harris, Public Defender, and Gregory Barlow, Deputy Public Defender, Clark
95 Nev. 190, 191 (1979) Reed v. State
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
Nikolas Mastrangelo, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
No error occurred in permitting State, by oral argument, to oppose defendant's motion for exclusion of
other crimes evidence, even though State had not submitted points and authorities, since applicable rule
provided for exercise of judicial discretion in such an instance, and there was no basis in record for
concluding that trial court abused that discretion in instant case. Eighth Judicial District Court Amended
Supplemental Rules, pt. B, rule XXII.
2. Criminal Law.
Any discrepancies between witnesses' testimony at preliminary hearing and their identification of
defendant at trial presented an issue of credibility to be resolved by jury.
3. Criminal Law.
Questions raised as to credibility of witnesses' trial identification of defendant as the burglar served to
highlight necessity for additional evidence which could help establish identity of burglar, and buttressed
decision of trial court to admit evidence of other crimes for that purpose. NRS 48.045, subd. 2.
4. Criminal Law.
In prosecution for burglary, trial court could properly decide to admit evidence of similar distinctive
crimes, concerning issue of perpetrator's identity, since, as in burglary in question, such evidence indicated
that defendant had previously penetrated downtown motel rooms, through windows immediately adjacent
to doors of such rooms. NRS 48.045, subd. 2.
5. Criminal Law.
Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify a
defendant.
6. Burglary.
Neither victim's failure at preliminary bearing to identify defendant as burglar nor tentativeness of
victim's identification at trial robbed that identification of its status as substantial corroborative evidence of
fingerprint evidence that defendant's fingerprints were found inside victim's motel room at point where
entry was effected.
7. Criminal Law.
In criminal cases, identification is generally a jury question.
OPINION
Per Curiam:
The appellant, Albert Anthony Reed, was tried to a jury and found guilty of burglary. He
seeks reversal on two grounds: that the court below erred in admitting evidence of other
crimes to prove identity and that the conviction is not supported by substantial evidence. We
disagree and affirm.
95 Nev. 190, 192 (1979) Reed v. State
THE FACTS
At trial, the State presented the testimony of the victim, Ruth Liable, that on the night of
December 7, 1976, she heard the window, next to the door of her room at the Orbit Inn Motel
in Las Vegas, open. She saw a hand reach in and turn the doorknob, and then saw one man
enter through the door, and another through the window. The men removed her purse and a
cup of change. When asked whether the appellant was one of those men, she replied, I think
he is the man who stood at the door. A latent palm print on the outside of the window and a
fingerprint on the inside window frame, taken that night, were identified as those of appellant.
Over the objections of appellant, the State was permitted to introduce evidence of two
other night burglaries of motel rooms in downtown Las Vegas which had occurred in
September and October of the same year. Police experts identified as appellant's a fingerprint
taken from the inside window ledge at the scene of the first intrusion, and a fingerprint taken
from what officers concluded was the inside portion of a screen removed from the room
where the second incident occurred. The victim of the second burglary, Earl Ayres, identified
appellant at trial as the man who had entered his room.
Appellant took the stand in his own defense, and denied committing the burglary in
question. He claimed not to know how his fingerprints came to be found in the three motel
rooms, but contended that he had lived or stayed at many downtown hotels since 1972. He
testified that he did not remember staying at the Orbit Inn, and that it was possible he had
stayed at the other two motels with lady friends, without being registered. He did not
remember where he was on the night of December 7, 1976.
Appellant contends that the introduction of evidence of the two other crimes was
reversible error, and further that the evidence was insufficient to support his conviction.
THE EVIDENCE OF OTHER CRIMES
After a hearing, the trial court denied appellant's motion in limine for the exclusion of the
other crimes evidence offered by the State. The court ruled that such evidence was admissible
on the sole issue of the identity of the perpetrator of the Orbit Inn Motel burglary, and the jury
was so instructed.
[Headnote 1]
Appellant first argues that the court should not have permitted the State to oppose his
motion by oral argument, since they had not submitted points and authorities pursuant to
Eighth Judicial District Court Rule 22.
95 Nev. 190, 193 (1979) Reed v. State
Eighth Judicial District Court Rule 22. This argument is meritless. The Rule provides for the
exercise of judicical discretion in such an instance, and there is no basis in the record for
concluding that the court abused that discretion in this case.
Appellant's second contention is that the evidence was improperly admitted to show
identity, Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959); NRS 48.045(2), because identity
was not in real issue. His argument is based on the fact that neither Liable nor Ayres had
specifically identified appellant as the perpetrator at the time of the preliminary hearing. In
fact, as the jury was fully informed, it appeared that each had identified another individual
who had been present in the courtroom on an unrelated matter.
[Headnote 2]
Any discrepancies between the witnesses' testimony at preliminary hearing and their
identification of appellant at trial presented an issue of credibility to be resolved by the jury.
See People v. Weiss, 327 P.2d 527, 535-36 (Cal. 1958). The weight and credibility of
identifying witnesses [] testimony is solely within the province of the jury, and their
determination will not be disturbed on appeal. Wise v. State, 92 Nev. 181, 183, 547 P.2d 314,
315 (1976). Accord Wheeler v. State, 91 Nev. 119, 531 P.2d 1358 (1975).
[Headnote 3]
The questions raised as to the credibility of the witnesses' trial identification of appellant
served to highlight the necessity for additional evidence which could help establish the
identity of the perpetrator, and buttress the decision of the trial court to admit the evidence of
other crimes for that purpose. See Jones v. State, 85 Nev. 4, 448 P.2d 702 (1969).
[Headnote 4]
Here, the trial court could properly decide to admit evidence of similar distinctive crimes,
concerning the issue of the perpetrator's identity. As in the Orbit Inn burglary, such evidence
indicated that appellant had previously penetrated downtown motel rooms, through the
windows immediately adjacent to the doors of such rooms. See Mayes v. State, 95 Nev. 140,
591 P.2d 250 (1979); Nester v. State, supra; Junior v. State, 89 Nev. 121, 507 P.2d 1037
(1973).
THE SUBSTANTIAL EVIDENCE
Appellant suggests that his conviction should be reversed because as a matter of law,
fingerprints alone, without accompanying corroboration[,] are insufficient to support a
conviction.
95 Nev. 190, 194 (1979) Reed v. State
[Headnotes 5, 6]
Fingerprint evidence has been described as the strongest evidence of identity, and . . .
ordinarily sufficient alone to identify the defendant. People v. Gardner, 457 P.2d 575, 579
(Cal. 1969). Furthermore, appellant's own characterization of the law does not apply to the
facts of this case, since the victim of the crime did corroborate the fingerprint evidence by her
identification of appellant as the perpetrator. Neither the failure of the witness to identify
appellant at the preliminary hearing nor the tentativeness of the witness' identification at trial
rob that identification of its status as substantial corroborative evidence. See Johnson v. State,
562 P.2d 1294 (Wyo. 1977).
Convictions based upon fingerprint evidence have been upheld when other substantial
evidence tended to link the defendant with the crime charged. United States v. Harris, 530
F.2d 576 (4th Cir. 1976); People v. Gardner, supra. In Matthews v. State, 94 Nev. 179, 576
P.2d 1125 (1978), this court followed the general rule, and upheld the conviction of a burglar
upon evidence establishing that he fit the general description of a man seen running from the
scene of the crime and was apprehended near the scene, when his fingerprints were found on
several items in the store which had been burglarized.
Furthermore, in this case, appellant's fingerprints were found inside the room, at the point
where entry was effected. Courts have upheld convictions based upon fingerprint evidence
alone when the prints were found in such a location. E.g., People v. Hannaman, 507 P.2d 466
(Colo. 1973); State v. Mireles, 483 P.2d 508 (N.M.App. 1971); State v. Jones, 410 P.2d 219
(Or. 1961); State v. Hanna, 459 P.2d 564 (Or.App. 1969).
[Headnote 7]
The case at hand presents no reason for departing from the basic rule that [i]dentification
is generally a jury question. O'Brien v. State, 88 Nev. 488, 489, 500 P.2d 693 (1972). Since
there is substantial evidence of appellant's identity in the record, the jury verdict must be
sustained.
We, therefore, affirm.
1

____________________

1
The Governor designated The Honorable David Zenoff, Senior Justice, to sit in the place of The Honorable
Noel E. Manoukian, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 195, 195 (1979) Quiriconi v. State
STEVEN DARIO QUIRICONI, Appellant, v. THE
No. 10323
March 15, 1979 591 P.2d 1133
Appeal from conviction, by jury verdict, of indecent exposure, Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
The Supreme Court held that: (1) words and obscene within information charging
defendant with indecent exposure could be treated as surplusage, and inclusion of such words
in the information did not obligate State to prove obscenity, and (2) evidence sufficiently
established that defendant's exposure of his person was intentional so as to sustain his
conviction.
Affirmed.
Carl F. Martillaro, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Calvin R. X. Dunlap, District
Attorney, Washoe County, for Respondent.
Words and obscene within information, which alleged that defendant did wilfully and unlawfully
make an open, indecent, and obscene exposure of his person, could be treated as surplusage, and the
inclusion of such words did not obligate State to prove obscenity. NRS 201.220.
2. Obscenity.
If requisite intent is established, proof that an exposure was open and indecent is sufficient to make out
the crime of indecent exposure. NRS 201.220.
3. Obscenity.
Evidence sufficiently established that defendant's exposure of his person was intentional so as to sustain
his conviction of indecent exposure. NRS 201.220.
OPINION
Per Curiam:
A jury convicted Steven Dario Quiriconi of indecent exposure, a violation of NRS
201.220.
1
The complaint and information alleged that he did willfully and unlawfully make
an open, indecent, and obscene exposure of his person. . . .
____________________

1
1. Every person who makes any open and indecent or obscene exposure of his person . . . is guilty:
(a) For the first offense, of a gross misdemeanor. (Emphasis added.)
95 Nev. 195, 196 (1979) Quiriconi v. State
(Emphasis added.) Quiriconi appeals the conviction, claiming the conjunctive language of the
information obligated the State to prove the exposure was obscene, and the evidence was
insufficient to establish either obscenity
2
or criminal intent. We disagree.
[Headnotes 1, 2]
1. The words and obscene may be treated as surplusage in the information since if
stricken, the remaining language is sufficient to charge the public offense of indecent
exposure. See Hulett v. Sheriff, 91 Nev. 139, 532 P.2d 607 (1975); Stokes v. State, 76 Nev.
474, 357 P.2d 851 (1960). If appellant deems such surplusage prejudicial, he may move [in
the trial court] to have it stricken. . . . Hulett v. Sheriff, supra at 141. However, its inclusion
in the information does not obligate the State to prove obscenity. Assuming the requisite
intent is established,
3
proof that the exposure was open and indecent is sufficient to make
out the crime. See Turner v. United States, 396 U.S. 398, 420 (1970); United States v.
Ippolito, 438 F.2d 417 (5th Cir. 1971); State v. Fowler, 525 P.2d 1061 (Or.App. 1974).
That the proof adequately established openness and indecency is not in issue. Thus, the
only disputed element essential to proof of the crime is intent.
[Headnote 3]
2. The following evidence appears in the record: the street traveled by the victim as she
approached the scene was clearly visible from the defendant's residence. The defendant
seemed to step out onto his front porch just in time for the victim to view him. He stood there
pantless and, without any attempt to turn away or otherwise conceal his nakedness, made eye
contact with the victim as she drove by. As the victim departed the area she saw the defendant
continue watching her. Given these circumstances, the jury could reasonably conclude the
defendant's exposure was intentional.
Affirmed.
____________________

2
Appellant also urges that obscenity must be proved by expert evidence relative to community standards of
decency. However, our resolution of the first issue removes the necessity of reaching this contention.

3
Because the evidence in this case supports a finding of intentional conduct, we need not decide whether
proof of unintentional conduct amounting to criminal negligence, would support a conviction of indecent
exposure. See NRS 193.190.
____________
95 Nev. 197, 197 (1979) Crockett v. Sahara Realty Corp.
J. R. CROCKETT, Sr., and JOHN E. CLARK, Appellants and Cross-Respondents, v.
SAHARA REALTY CORPORATION, a Nevada Corporation; EMANUEL J. SCHWARTZ;
and GILBERT S. SCHWARTZ, Respondents and Cross-Appellants.
No. 9661
March 15, 1979 591 P.2d 1135
Appeal from summary judgment in favor of defendants, and cross-appeal from denial of
attorneys' fees to defendants. Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Suit was brought to recover damages for alleged tortious interference by defendants with
plaintiffs' prospective economic advantage. The district court entered judgment for
defendants and dismissed the action. Plaintiffs appealed, and the Supreme Court held that: (1)
in absence of any allegations or facts from which it could be inferred that defendants resorted
to unlawful or improper means and where there was no suggestion that defendants took
advantage of plaintiffs' services and were thereby unjustly enriched by a real estate
commission that they obtained, plaintiffs were not entitled to recover for tortious interference
with prospective economic advantage consisting in the expected real estate commission, and
(2) the trial court did not abuse discretion in not allowing attorney fees.
Affirmed.
Crockett & Rickdall, Las Vegas, for Appellants and Cross-Respondents.
Cromer, Barker & Michaelson and James R. Olson, Las Vegas, for Respondents and
Cross-Appellants.
On appeal from summary judgment, all evidence favorable to appellants must be accepted as true.
2. Torts.
Where plaintiffs neither alleged nor offered any facts from which it could be inferred that defendants
resorted to unlawful or improper means to obtain exclusive listing agreement to sell property which
plaintiffs allegedly had a verbal listing to sell and in absence of any suggestion that defendants took
advantage of plaintiffs' services and were thereby unjustly enriched and where, according to plaintiffs' own
view of the facts, each broker had an opportunity to sell the property to the buyer, defendants were not
liable to plaintiffs for tortious interference with plaintiffs' prospective economic advantage
consisting in an anticipated real estate commission.
plaintiffs' prospective economic advantage consisting in an anticipated real estate commission.
3. Costs.
While facts of suit would have allowed the court to grant attorney fees, there was no basis for finding that
the trial court abused discretion in not allowing attorney fees, in suit wherein plaintiffs unsuccessfully
sought to recover damages for alleged tortious interference with prospective economic advantage. NRCP
68.
OPINION
Per Curiam:
The appellants brought this action against respondents to recover damages allegedly
resulting from respondents' tortious interference with appellants' prospective economic
advantage, i.e., the obtaining of a commission on the sale of real property. The court below,
on a motion for summary judgment, entered judgment in favor of respondents and dismissed
the action. This appeal resulted.
1

THE FACTS
The appellants in the summer of 1974 contacted Fletcher Jones, who was interested in
purchasing real property in Clark County. The case is focused on a piece of realty known as
the Harrison Parcel, upon which the appellants claim they had a verbal listing to sell from
one Jack Rankin who had signed an agreement with the owner to purchase the said property.
The owner, Charles Harrison, signed an exclusive listing agreement to sell the property
through respondent Sahara Realty Corporation. Sahara, through its salesman Emanuel
Schwartz, later sold the property to Jones and earned a commission of $45,750 on the sale.
This litigation followed.
THE MATERIAL ISSUES OF FACT
[Headnote 1]
Rule 56(c), NRCP, provides that summary judgment shall be rendered if pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. On appeal, all evidence favorable to appellants must
be accepted as true. Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90, 560 P.2d 914 (1977).
____________________

1
Respondents have cross appealed from the court's order denying them their attorneys' fees.
Appellants, in seeking damages for the alleged tortious conduct of the respondents, rely
heavily on Buckaloo v. Johnson, 537 P.2d 865 (Cal. 1975), and Harris v. Perl, 197 A.2d 359
(N.J. 1964). They concede that their cause of action is not predicated upon an enforceable
contract with the seller of the property.
What appellants have overlooked in their cited authority of Buckaloo v. Johnson, supra,
and Harris v. Perl, supra, is that both cases, while recognizing a cause of action by a broker
against a purchaser of property who negotiates a direct sale, without commission, after
voluntarily using the services of the broker, were careful to point out that these were not
competitive (broker/broker) situations.
In Buckaloo, the Supreme Court of California emphasized that
Perhaps the most significant privilege or justification for interference with a prospective
business advantage is free competition. Ours is a competitive economy in which business
entities vie for economic advantage. In a sense, all vendees are potential buyers of the
products and services of all sellers in a given line, and success goes to him who is able to
induce potential customers not to deal with a competitor. Thus, as Prosser states: So
long as the plaintiff's contractual relations are merely contemplated or potential, it is
considered to be in the interest of the public that any competitor should be free to divert
them to himself by all fair and reasonable means. (Prosser, Torts (4th ed. 1971), p. 954).
537 P.2d at 872. See also, Restatement, Torts 768 (1939).
In Harris, the New Jersey court similarly distinguished the situations, pointing out that Of
course a broker must accept competition from other brokers. 197 A.2d at 364, citing George
F. Hewson Co. v. Hopper, 33 A.2d 889 (N.J. 1943), and Weinstein v. Clementsen, 90 A.2d
77 (N.J.Super.Ct.App. Div. 1952), in support of that proposition.
In Hewson, the court sustained the granting of a nonsuit to defendants, including agents of
the vendor and purchaser, and the broker who ultimately received the commission on the sale,
when the plaintiff had alleged that all proceeded to deliberately exclude him, with full
knowledge that the buyer had been plaintiff's customer. The court pointed out that the
gravamen of such a cause of action is conditioned upon the wanton, malicious and
unjustifiable acts of others, and that where a loss occurs by reason of lawful competition
however sharp, the loss is one for which the law affords no redress. 33 A.2d at 889.
The court in Weinstein also denied relief to a broker, as against the purchaser and the
second broker to show purchaser the property, when it was uncontroverted that the seller told
the second broker of the previous showing before negotiations were begun. The court
emphasized that there was no evidence of ill-will on the part of the second broker toward the
first, or of any purpose other than the competitor's economic interest. Nor was there any
evidence of subterfuge or other improper means. In language appropriate to the case at hand,
and to appellants' contentions, the court observed:
The plaintiff's postulate seems to be that the broker who first finds a potential customer
and arouses his interest in the matter which the broker is promoting, acquires an
exclusive right to develop that interest into an actual business transaction. Such is not the
American law of free enterprise. One sows and another reaps. One insurance salesman
convinces the prospect that more insurance is advisable, and another salesmanan old
friend of the prospectwrites the policy. A well-conceived advertisement of one
merchant, or an able salesman, almost makes the sale but the customer decides to think it
over, and next day buys the article from a competitor.
90 A.2d at 80.
[Headnote 2]
In this case, appellants have neither alleged nor offered any facts from which an inference
could be drawn of any resort by respondents to unlawful or improper means. See
Restatement, Torts, supra, Comment (e), at 74-75. There is not, as in the purchaser situation,
any suggestion that the defendants took advantage of the services of the plaintiff-appellants,
and were thereby unjustly enriched. According to appellants' own view of the facts, each
broker had an opportunity to sell the property to Jones during the period in question. The fact
that respondents succeeded where appellants failed, with or without knowledge of their
previous efforts, is not in itself a tortious act.
THE ATTORNEYS' FEES
[Headnote 3]
Respondents have filed a cross appeal, challenging the lower court's denial of their motion
for attorneys' fees, based upon NRCP 68.
While the facts of this case would have allowed the court to grant attorneys' fees, there is
no basis for finding that the court abused its discretion in not allowing attorneys' fees.
Therefore, the order of the trial court granting summary judgment is affirmed in all
respects.
____________
95 Nev. 201, 201 (1979) Bradley v. Bradley
MELBA RUTH BRADLEY, Appellant, v.
ROBERT Q. BRADLEY, Respondent.
No. 9703
March 15, 1979 591 P.2d 663
Appeal from order denying motion for new trial, Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Affirmed.
Rickdall & Shulman, Las Vegas, for Appellant.
Cromer, Barker & Michaelson and Gerald S. Gillock, Las Vegas, for Respondent.
OPINION
Per Curiam:
Appellant claimed she was unaware that her husband's divorce action was proceeding as
an uncontested hearing, although she was present at all pertinent conferences and sessions.
She also complains that because of inadequate legal representation, the property division was
inequitable.
The court has reviewed the proceedings, briefs and record and after hearing oral argument
determines there is no merit to this appeal.
1

Affirmed.
2

____________________

1
Present counsel did not represent the appellant in the court below.

2
The Hon. E. M. Gunderson having voluntarily disqualified himself from participating in the decision of this
appeal, the Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in his stead. Nev. Const. art. 6,
19; SCR 243.
____________
95 Nev. 202, 202 (1979) Schwartz v. Schwartz
LILLY SCHWARTZ, Appellant, v. EUGENE
L. SCHWARTZ, Respondent.
No. 9857
March 15, 1979 591 P.2d 1137
Appeal from judgment dismissing plaintiff's complaint, and from an order denying
plaintiff's motion for relief from judgment or for a new trial; First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
In action by former wife against husband seeking to recover arrearages in spousal and
child support, the district court entered judgment dismissing wife's complaint, and wife
appealed. The Supreme Court held that: (1) issue of res judicata was not properly before trial
court, and thus judgment of dismissal predicated thereon could not be upheld, and (2)
equivocal and limited testimony of wife was not sufficient to satisfy husband's burden of
proof as to each element of affirmative defense of res judicata.
Kenneth J. Jordan, Carson City, for Appellant.
Eck & Harkins, Ltd., Carson City, for Respondent.
1. Judgment.
Res judicata is affirmative defense which must be specifically pleaded, and, normally, failure to plead res
judicata is considered as waiver thereof. NRCP 8(c).
2. Pleading.
Failure to amend pleadings does not affect result of trial of issues tried by express or implied consent of
the parties. NRCP 15(b).
3. Judgment.
Party surprised by such development as raising of issue of affirmative defense of res judicata at trial must
be given reasonable opportunity to respond.
4. Judgment.
Where there was no reference to res judicata as a defense, or to factual issues involved, during pretrial
discovery, opening remarks of counsel or at any time prior to cross-examination of former wife in action by
wife seeking to recover arrearages in spousal and child support, and when issue did arise counsel for wife
was surprised and understandably unprepared and objected to pursuit of issue, issue of res judicata was not
properly before trial court, and thus judgment of dismissal predicated thereon could not be upheld. NRCP
8(c).
5. Judgment.
Application of doctrine of res judicata requires showing that has been previous action between same
parties involving same subject matter in which final judgment on the merits has been rendered with respect
to same cause of action.
6. Evidence.
Since averments of affirmative defense are taken as denied or avoided, each element of defense
must be affirmatively proved and burden of proof rests with party asserting defense.
avoided, each element of defense must be affirmatively proved and burden of proof rests with party
asserting defense.
7. Divorce.
Equivocal and limited testimony of former wife, which was only evidence upon which order of dismissal
was predicated, was not sufficient to satisfy former husband's burden of proof on issue of res judicata in
action by wife to recover arrearages in spousal and child support.
OPINION
Per Curiam:
The principal issue presented in this appeal from the judgment below dismissing
appellant-plaintiff's complaint is whether the affirmative defense of res judicata, upon which
the dismissal was predicated, was properly before the court. We hold that it was not, and
therefore reverse and remand for a new hearing.
THE FACTS
Appellant initiated this action, seeking amounts she claimed were due from respondent,
her former husband, under a California decree of divorce entered in 1965 and a subsequent
stipulation filed by the parties in Los Angeles Superior Court in 1973, as spousal and child
support. Respondent's answer denied that any arrearages were due and owing; no affirmative
defenses were raised.
At trial during cross-examination, appellant was asked by counsel for respondent whether
she had attempted to bring this matter to judgment in California. Appellant replied: I think
I got two judgments that he was supposed to pay and then he moved to Nevada. Counsel for
respondent asked whether the judgments were for the full amount appellant was claiming in
the present action. Appellant answered, Yes, but upon questioning by the court, said
merely, I don't remember the figures, but the figures I added entered in alimony and child
support, this is what Mr. Schwartz owes me. Counsel for appellant then interposed an
objection to the line of questioning, which the court overruled.
1
At the conclusion of
appellant's testimony, respondent moved to dismiss the action on the basis of res
judicata.
____________________

1
The full account of this exchange is as follows:
Q: [Counsel for Respondent]: Did you ever attempt to bring this matter to judgment in California?
A: [Appellant]: Yes, we've been in court lots of times.
Q: And what happened to those?
A: I think I got two judgments that he was supposed to pay and then he moved to Nevada.
Q: And did you tell - -
The Court: Did I understand that some of this arrearage was reduced to judgment in California?
At the conclusion of appellant's testimony, respondent moved to dismiss the action on the
basis of res judicata. Counsel for appellant argued that appellant had been confused by the
legal term, and was referring to various orders to show cause. He further argued that no
affirmative defense had been pleaded or previously raised. NRCP 8(c). The court, however,
ruled that appellant was bound by her own testimony, and granted respondent's motion and
dismissed the complaint.
THE DEFENSE OF RES JUDICATA
[Headnote 1]
Res judicata is an affirmative defense that must be specifically pleaded. NRCP 8(c).
Normally, failure to plead res judicata is considered a waiver thereof. See, e.g., Tolotti v.
Eikelberger, 90 Nev. 466, 530 P.2d 106 (1974). Cf. Coray v. Hom, S0 Nev. 39
____________________
[Counsel for Respondent]: I think it all was, your Honor.
[Counsel for Appellant]: I don't have any records of that, your Honor.
The Court: I'll want to know more about that, [Counsel for Respondent]. I hope you'll pursue this more fully.
[Counsel for Respondent]: That's what I'm trying to obtain from the Defendant (sic).
[Counsel for Respondent]: You say you got two judgments against Mr. Schwartz in California?
A: That's right. As far as I know. If that's called judgment.
Q: And what did you do with those judgments?
A: What'd I do with the judgments?
Q: Did you collect any money on the judgments?
A: Not a bit.
Q: How much were those judgments for?
A: Exactly what was entered in the judgment.
Q: For the full amount your (sic) claiming today?
A: Yes.
The Court: what was that answer, please?
A: I don't remember the figures, but the figures I added entered in alimony and child support, this is what Mr.
Schwartz owes me.
. . .
Q: Was there anything ever done? Did Mr. Schwartz ever go to Court, you and Mr. Schwartz ever go to Court
after your divorce other than those two times you just mentioned?
A: Oh, yes, we went to Court more than once.
Q: What happened in those Court proceedings?
[Counsel for Appellant]: I think I'm going to have to object unless there is some record of that. There were so
many times that we're talking about, it's kind of confusing. I think the witness has already answered that the only
judgments or stipulations she's mentioned are the ones that's already been offered into evidence. And besides the
divorce decree, interlocutory and the final decree, that's it.
[Counsel for Respondent]: Your Honor, if this matter has already been litigated, which is something that I've
just found out about, it seems to me we've got a res judicata problem and we've got an action that should have
been brought on a judgment rather than on the basis of a new action for arrearages.
The Court: I agree. Most thoroughly. The objection is overruled.
Hom, 80 Nev. 39, 389 P.2d 76 (1964) (statute of frauds); Second Baptist Ch. v. First Nat'l
Bank, 89 Nev. 217, 510 P.2d 630 (1973) (election of remedies).
In certain circumstances, however, the Nevada Rules of Civil Procedure do permit an
affirmative defense to be considered, even though it has not been raised by the pleadings. See
NRCP 15. As has been noted of the Federal Rules of Civil Procedure, Doubtless, when there
is no prejudice and when fairness dictates, the strictures of this rule [8(c)] may be relaxed.
Under Rule 15 the district court may and should liberally allow an amendment to the
pleadings if prejudice does not result. Jakobsen v. Massachusetts Port Authority, 520 F.2d
810, 813 (1st Cir. 1975). See, e.g., Marschall v. City of Carson, 86 Nev. 107, 464 P.2d 494
(1970). In the case at hand, respondent made no application to the court for permission to
amend, and none was granted.
[Headnote 2]
Rule 15(b) does provide that [w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Failure to amend does not, in such circumstances, affect the
result of the trial of these issues. United Tungsten v. Corp. Svc., 76 Nev. 329, 353 P.2d 452
(1960); Gershenhorn v. Stutz, 72 Nev. 293, 304 P.2d 395 (1956).
In Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960), for instance, this court
found that the defense of fraud in the application for an insurance policy had been tried by
implied consent. The court noted that counsel for the defendant had raised the issue in his
opening argument, that counsel for plaintiff had specifically referred to the matter as an issue
in the case, that the factual issue had been explored in discovery, that no objection had been
raised at trial to the admission of evidence relevant to the issue. See also Young Elec. v. Last
Frontier, 78 Nev. 457, 375 P.2d 859 (1962) (issue virtually the sole subject of testimony);
Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468 (1962) (evidence received without
objection); United Tungsten v. Corp. Svc., supra (appellant's counsel agreed with court's
characterization of the matter as the major issue in the case); Choate v. Ransom, 74 Nev. 100,
323 P.2d 700 (1958) (no objection raised to evidence or request for opportunity to refute).
Not so in the instant case. In contrast to Poe, there was no reference to res judicata as a
defense, or to the factual issues involved, during pre-trial discovery, opening remarks of
counsel, or at any time prior to the cross-examination of appellant. When the issue did arise,
counsel for appellant was surprised, and understandably unprepared.
and understandably unprepared. He objected to the pursuit of the issue, once its import
became clear; he specifically argued, in opposition to respondent's motion immediately
following appellant's testimony, on the ground that the issue had not been raised in the
pleadings. His requests to reopen for further testimony by his client, and for reservation of the
court's ruling until records could be secured, merely underscored the difficulties occasioned
by his lack of prior notice of the issue.
[Headnote 3]
As the court said in Jakobsen v. Massachusetts Port Authority, supra, 520 F.2d at 815,
[w]hile the Federal Rules reflect a universal trend away from stereotyped pleading, they do
not presage abandonment of the requirements that parties be given reasonable advance notice
of the major issues to be raised. See F. James & G. Hazard, Civil Procedure 5.5 (2d ed
1977). The concomitant of such a requirement, and of the mandate of NRCP 1, that the rules
be interpreted so as to provide for a just determination of every action, is the requirement that
the party surprised by such a development be given a reasonable opportunity to respond. See
Parks v. Quintana, 86 Nev. 847, 477 P.2d 869 (1970). See also MBI Motor Company, Inc. v.
Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974); United States v. 47 Bottles, More or Less,
Etc., 320 F.2d 564 (3d Cir. 1963). In this case, appellant was provided with neither
reasonable notice of the issue nor an opportunity to respond.
[Headnotes 4-7]
We conclude, therefore, that the issue of res judicata was not properly before the trial court
and the judgment of dismissal predicated thereon may not be upheld. We reverse and remand
for a new hearing.
2

____________________

2
Even if we were to rule that the issue of res judicata had been properly raised, the evidence before the court
below did not conclusively establish this defense.
As has been observed, [a]pplication of the doctrine of res judicata requires a showing that there has been a
previous action between the same parties involving the same subject matter in which a final judgment on the
merits has been rendered with respect to the same cause of action. Bryson v. Guarantee Reserve Life Insurance
Company, 520 F.2d 563, 566 (8th Cir. 1975). Since the averments of an affirmative defense are taken as denied
avoided (Jones v. Barnhart, 89 Nev. 74, 506 P.2d 430 (1973); NRCP 8(d)), each element of the defense must be
affirmatively proved. United States v. Truckee-Carson Irrigation Dist., 71 F.R.D. 10 (D.Nev. 1975). The burden
of proof clearly rests with the defendant. See, e.g., Rosenbaum v. Rosenbaum, 86 Nev. 550, 471 P.2d 254
(1970).
The equivocal and limited testimony of appellant, which was the only evidence upon which the order of
dismissal was predicated, does not meet these standards. (The court on remand may permit either party to file an
amended pleading, pursuant to the guidelines of NRCP 15(a).)
____________
95 Nev. 207, 207 (1979) Parsons v. Stardust Gardens No. 1
STANLEY PARSONS and NORMA J. PARSONS, Appellants, v. STARDUST GARDENS
No. 1, aka Stardust Gardens Condominium Association, Respondent.
No. 10155
March 15, 1979 591 P.2d 1141
Appeal from default judgment; Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
The Supreme Court held that where, although default judgment was set aside at
defendants' request and they were given 20 days within which to answer complaint,
defendants once again failed to respond and their default was entered, district court did not
abuse its discretion when it refused to find defendants' conduct excusable and denied their
motion to set aside second default.
Affirmed.
Eck & Harkins, Ltd., and Riley M. Beckett, of Carson City, for Appellants.
Jack A. Alian, of Reno, for Respondent.
1. Judgment.
Though motions to set aside default judgments on grounds of inadvertence or excusable neglect are
treated with liberality in interests of securing a consideration upon merits, some showing must be made that
inadvertence or neglect was excusable.
2. Judgment.
Where, although default judgment was set aside at defendants' request and they were given 20 days
within which to answer complaint, defendants once again failed to respond and their default was entered,
district court did not abuse its discretion when it refused to find defendants' conduct excusable and denied
their motion to set aside second default.
OPINION
Per Curiam:
On June 26, 1976, respondent obtained a default judgment against appellants. On March
23, 1977, that judgment was set aside at the appellants' request, and they were given twenty
days within which to answer the complaint. Once again the appellants failed to respond and
their default was entered. Thereafter, the court denied their motion to set aside the default,
and granted respondent's motion for default judgment. It is now asserted that the district court
abused its discretion when it refused to excuse the second dereliction of the appellants.
95 Nev. 207, 208 (1979) Parsons v. Stardust Gardens No. 1
[Headnotes 1, 2]
Though motions to set aside default judgments on grounds of inadvertence or excusable
neglect are treated with liberality in the interests of securing a consideration upon the merits,
some showing must be made that the inadvertence or neglect was excusable. Bryant v. Gibbs,
69 Nev. 167, 243 P.2d 1050 (1952). Based upon the record before us, we are unable to
conclude that the district court should necessarily have found appellants' conduct excusable.
See Galardi v. Jonco Corporation, 92 Nev. 194, 547 P.2d 667 (1976); Gemini, Inc. v. Fertil,
92 Nev. 183, 547 P.2d 687 (1976).
Affirmed.
____________
95 Nev. 208, 208 (1979) State v. Breen
THE STATE OF NEVADA, Petitioner, v. THE HONORABLE PETER I. BREEN, Assigned
District Judge, in and for Carson City, Respondent.
No. 11188
March 15, 1979 591 P.2d 1141
On petition by State for peremptory writ of mandamus to compel correction of sentence
imposed on defendant convicted of escape from state prison, the Supreme Court held that
requirement of imposition of consecutive sentence was implicit in language of statute
governing situation where person under sentence of imprisonment committed another crime
constituting a felony and was sentenced to another term of imprisonment for such felony.
Petition granted.
Richard H. Bryan, Attorney General, and Robert A. Bork, Deputy Attorney General,
Carson City, for Petitioner.
Norman Y. Herring, State Public Defender, and Will G. Crocket, Deputy Public Defender,
Carson City, for Respondent.
Criminal Law.
Requirement of imposition of consecutive sentence was implicit in language of statute governing situation
where person under sentence of imprisonment committed another crime constituting a felony and was
sentenced to another term of imprisonment for such felony. NRS 176.035, subd. 2.
OPINION
Per Curiam:
John R. Thomas was convicted of escaping from the Nevada State Prison.
95 Nev. 208, 209 (1979) State v. Breen
State Prison. At the sentencing hearing on September 11, 1978, respondent Peter I. Breen, a
judge of the Second Judicial District Court under temporary assignment to the First Judicial
District Court, adjudicated Thomas to be an habitual criminal and imposed a sentence of life
with the possibility of parole. The sentence for being an habitual criminal was suspended
and Thomas was granted probation for five years concurrent to his existing sentence.
(Emphasis added.)
The state has petitioned for a peremptory writ of mandamus to compel correction of the
sentence, contending that respondent exceeded his authority in imposing a concurrent
rather than a consecutive sentence because NRS 176.035(2) requires that where, as here, a
person under sentence of imprisonment commits another crime constituting a felony and is
sentenced to another term of imprisonment for such felony, such latter term shall not begin
until the expiration of all prior terms. We agree. Although the statute does not expressly
require the imposition of a consecutive sentence, such a requirement is implicit in its
language.
Accordingly, the peremptory writ of mandamus shall issue, forthwith, compelling
respondent to vacate the sentence imposed September 11, 1978, and to resentence John R.
Thomas in accordance with the statutory mandate of NRS 176.035(2). See State v. District
Court, 85 Nev. 485, 457 P.2d 217 (1969).
____________
95 Nev. 209, 209 (1979) Woodall v. Sheriff
FREDERICK LAFFEYETTE WOODALL, Appellant, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 11453
March 15, 1979 591 P.2d 1142
District Court, Clark County; James A. Brennan, Judge.
Defendant, who was scheduled to stand trial for robbery and being an ex-felon in
possession of a firearm, filed a pretrial petition for a writ of habeas corpus to challenge the
quantum of the evidence. The district court denied relief, and defendant appealed. The
Supreme Court held that: (1) the evidence presented at the preliminary examination was not
sufficient to support an inference that the robbery was probably committed by defendant and,
therefore, defendant was entitled to habeas corpus relief from the order that he stand trial for
robbery and for having used a deadly weapon in the commission of that offense, and {2)
evidence that a nine millimeter handgun was seized from the vehicle in which defendant
was riding at the time he was arrested and that defendant had been convicted of
burglary, a felony, was sufficient for the district court to require defendant to stand trial
on the charge of being an ex-felon in possession of a firearm.
offense, and (2) evidence that a nine millimeter handgun was seized from the vehicle in
which defendant was riding at the time he was arrested and that defendant had been convicted
of burglary, a felony, was sufficient for the district court to require defendant to stand trial on
the charge of being an ex-felon in possession of a firearm.
Affirmed in part, reversed in part.
Redmon & McGimsey, Las Vegas, for Appellant.
1. Habeas Corpus.
Evidence that defendant was physically present with person who was identified as having perpetrated a
robbery when that person was arrested several miles from the scene of the robbery and some two hours
after the alleged offense occurred did not tend to support the inference that the robbery was probably
committed by defendant and, therefore, defendant was entitled to habeas corpus relief from district court's
order that he stand trial for the robbery. NRS 200.380.
2. Criminal Law.
Evidence that a nine millimeter handgun was seized from the vehicle in which defendant was riding at the
time he was arrested and that defendant had been convicted of a felony was sufficient to make it probable
that defendant was guilty of being an ex-felon in possession of a firearm and, therefore, defendant was
properly ordered to stand trial on the charge. NRS 202.360.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Frederick Laffeyette Woodall was ordered
to stand trial for (1) robbery (NRS 200.380) and having used a deadly weapon in the
commission of that offense (NRS 193.165); and, (2) being an ex-felon in possession of a
firearm (NRS 202.360). A pretrial petition for a writ of habeas corpus which challenged the
quantum of the evidence was considered and denied by the district court and Woodall has
appealed.
1. The only evidence recorded in the transcript of the preliminary examination that would
connect Woodall with the alleged robbery is that he was physically present with the person
who was identified as having perpetrated the robbery of a 7-11 Store in Las Vegas when that
person was arrested several miles from the store and some two hours after the alleged offense
occurred.
[Headnote 1]
In order to sustain the robbery charge it was incumbent upon the state to produce some
evidence that supports an inference that the robbery was probably committed by the accused.
See Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971). Here, there is no such evidence and
our prior decisions have held that mere presence with the alleged perpetrator after the time of
the robbery, and at a different place, is insufficient to establish probable cause of participation
in the robbery. Franklin v. Sheriff, 94 Nev. 676, 585 P.2d 1336 (1978). Accordingly, the
order of the district court is reversed as to the charge of robbery and having used a deadly
weapon in the commission of that offense.
[Headnote 2]
2. There is testimony recorded in the transcript of the preliminary examination that a nine
(9) millimeter hand gun was seized from the vehicle in which Woodall was riding at the time
he was arrested. The record also contains evidence that Woodall had been convicted of
burglary, a felony, in 1976. This evidence, if true, supports the district court's determination
on the possession of a firearm by an ex-felon charge and we affirm that portion of the district
court's order.
____________
95 Nev. 211, 211 (1979) Grant v. Sheriff
SANDRA JEAN GRANT, Appellant, v. SHERIFF,
No. 11498
March 15, 1979 591 P.2d 1145
Defendant appealed from order of the district court denying pretrial habeas corpus
challenge to portion of indictment charging defendant with swindling and conspiracy to
swindle. The Supreme Court held that evidence of date or dates of alleged offenses was
essential in order to apprise defendant of facts surrounding alleged events, and absence of
such evidence was fatal to indictment.
Reversed.
Morgan D. Harris, Public Defender, and Robert B. Amundson, Deputy Public Defender,
95 Nev. 211, 212 (1979) Grant v. Sheriff
Nikolas L. Mastrangelo, Deputy District Attorney, Clark County, for Respondent.
Although evidence in support of indictment need only be slight, it remains incumbent upon prosecution to
produce some evidence which supports the accusation.
Evidence of date or dates of alleged offenses was essential in order to apprise defendant of facts
surrounding alleged offenses, and absence of such evidence was fatal to indictment charging defendant
with swindling and conspiracy to swindle. NRS 199.480, 465.070.
OPINION
Per Curiam:
This appeal is from an order which denied a pretrial habeas corpus challenge to the portion
of an indictment charging that Sandra Jean Grant committed the crimes of (1) swindling
(NRS 465.070), a felony; and, (2) conspiracy to swindle (NRS 199.480; and NRS 465.070), a
gross misdemeanor. The offenses were alleged to have occurred June 24, 1977, in a scheme
designed to defraud the Churchill Downs Race and Sports Book in Las Vegas.
[Headnote 1]
Grant contends we are compelled to reverse because there is no evidence in the transcript
of the grand jury proceedings of when or on what date the alleged offenses might have
occurred. Although we have consistently held that the evidence in support of an indictment
need only be slight, it remains incumbent upon the prosecution to produce some evidence that
supports the accusation. See Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973).
[Headnote 2]
Here, evidence of the date or dates of the alleged offenses would be essential in order to
apprise appellant of the facts surrounding the alleged events. The absence of such evidence is
fatal to the indictment. See Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972). Cf.
Adler v. Sheriff, 92 Nev. 436, 552 P.2d 334 (1976). Accordingly, we reverse without
prejudice to the right of the prosecuting attorney to initiate new charges within 15 days after
remittitur issues. Cf. McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970).
____________
95 Nev. 213, 213 (1979) Hampton v. Sheriff
SIDNEY JAMES HAMPTON, and OCIE FRANKLIN, Appellants, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 11513
March 15, 1979 591 P.2d 1146
Appeal from an order denying pretrial petitions for writs of habeas corpus, Eighth Judicial
Petitioners who were charged with robbery and kidnapping, petitioned for writs of habeas
corpus. The district court denied petitions, and petitioners appealed. The Supreme Court held
that kidnapping charge would not lie against petitioners, in light of fact that the movement in
question was incidental to the robbery and did not increase the risk to the victim beyond that
inherently present in the robbery.
Reversed.
Morgan D. Harris, Public Defender, Michael L. Miller, Deputy Public Defender, Clark
County, for Appellant Hampton.
Cremen & Sattler, Las Vegas, for Appellant Franklin.
L. J. O'Neale, Deputy District Attorney, Clark County, for Respondent.
Kidnapping.
Kidnapping charge would not lie against defendants, who were charged with robbery and who were
alleged to have moved paraplegic victim about for purpose of coercing him to relinquish money, in light of
fact that such movement of victim was incidental to the robbery and did not increase the risk to victim
beyond that inherently present in the robbery.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, an information was filed charging both
appellants with robbery and kidnapping. It was also alleged that both the crimes had been
committed with the use of a deadly weapon. Both appellants timely petitioned for writs of
habeas corpus and have appealed from the order which denied their habeas petitions.
Neither appellant challenged the robbery charge; however, they both vigorously contend
that our decision in Wright v. State, 94 Nev. 415
95 Nev. 213, 214 (1979) Hampton v. Sheriff
State, 94 Nev. 415, 581 P.2d 442 (1978), precludes the kidnapping charge. We agree.
In Wright we held that where facts allegedly constituting kidnapping and robbery are
contemporaneous, the kidnapping charge would only lie if the movement of the victim
results in increased danger over and above that present in the crime of robbery. . . . Id. at
418, 581 P.2d at 444.
Here, the victim, a paraplegic, was placed in his wheelchair and moved about the area for
the stated purpose of coercing him to relinquish additional sums of money. The movement
was a part of the general criminal scheme in furtherance of the robbery. Within the context of
this scheme, as in Wright, such movement was incidental to the robbery, and did not increase
the risk to the victim beyond that inherently present in the robbery. Therefore, the district
court should have granted the habeas challenges to the kidnapping charges. Accordingly, we
reverse.
____________
95 Nev. 214, 214 (1979) Harris v. Harris
ALICE HARRIS, Appellant, v. MELVIN
HARRIS, Jr., Respondent.
No. 9957
March 15, 1979 591 P.2d 1147
Appeal from order modifying divorce decree, Eighth Judicial District Court, Clark County;
Keith C. Hayes, Judge.
Husband filed motion for modification of divorce decree on ground that he was not father
of divorced wife's child. The district court entered order determining that child was not
husband's child and setting aside all prior orders in regard to support, care, custody and
control of the child, and divorced wife appealed. The Supreme Court, Manoukian, J., held
that: (1) statute authorizing retention of jurisdiction to modify or vacate child support and
custody awards may not be used as a vehicle for an attack on status of parties to the action,
and (2) as between divorced spouses, divorce decree specifically establishing that husband
was father of child was res judicata on the issue of paternity.
Reversed.
Joseph H. Williams, Las Vegas, for Appellant.
George E. Franklin, Las Vegas, for Respondent.
1. Divorce.
District court's statutory authority to retain jurisdiction to modify or vacate child support and
custody award is limited to modification of such awards for purpose of meeting
changing circumstances occurring after entry of the divorce decree; such statute may
not be used as a vehicle for an attack on status of parties to the action.
vacate child support and custody award is limited to modification of such awards for purpose of meeting
changing circumstances occurring after entry of the divorce decree; such statute may not be used as a
vehicle for an attack on status of parties to the action. NRS 125.140, subd. 2.
2. Illegitimate Children.
Generally, an adjudication incident to divorce decree concerning paternity of a child is res judicata as to
the husband or wife in any subsequent proceeding.
3. Illegitimate Children.
As between divorced spouses, divorce decree specifically establishing that husband was father of wife's
child was res judicata precluding relitigation of the question of paternity in proceeding on husband's motion
for modification of divorce decree.
OPINION
This is an appeal from a post-judgment determination that the minor child, Ahmad Jamale
Harris, previously adjudged to be the issue of the marriage of appellant and respondent, is not
respondent's child, and setting aside all prior orders respecting the support, care, custody and
control of the child.
Appellant and respondent were divorced in 1975. During the pendency of the original
divorce proceedings, respondent denied that he was the father of appellant's child. Blood tests
revealed only that respondent was not excluded as being the natural father of the child.
Respondent was adjudged the natural father of Ahmad Jamale, and he was ordered to pay
monthly child support in the sum of seventy-five dollars, and to provide medical and dental
care during the child's minority subject to reasonable visitation rights. No appeal was taken
from the judgment.
Approximately one year later respondent filed a motion to modify the decree requesting a
reduction in child support. That motion was denied. Two years subsequent to the entry of the
decree, respondent moved the district court to modify its decree on the ground that Ahmad
Jamale is not his natural child. Over appellant's objections that the paternity issue is res
judicata,
1
the district court granted the motion and ordered: That Ahmad Jamale Harris is
not the child of Plaintiff Melvin Harris, Jr.; and
____________________

1
Precisely stated, appellant's contention is that respondent was precluded from relitigating the paternity issue
by the principle of collateral estoppel. That doctrine is as follows:
An issue essential to the judgment rendered, which was actually litigated and determined by a court
having jurisdiction of subject matter and over the person of the parties, may not be re-litigated by the
same parties or those in privity with them.
See Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
That Ahmad Jamale Harris is not the child of Plaintiff Melvin Harris, Jr.; and
That any prior orders with reference to the support, care, custody and control of said
Ahmad Jamale Harris are hereby set aside and held for naught.
It is from this order that Alice Harris has appealed.
Respondent relies upon NRS 125.140(2) which gives the trial court authority to revise or
modify judgments of divorce concerning the custody, care, education, maintenance and
support of the minor children. Respondent asserts that the trial court's determination was
made within statutory limits. Appellant contends that the district court was without authority
to modify the divorce decree, claiming that the doctrine of res judicata barred such action.
We are constrained to agree with appellant's contention.
[Headnote 1]
While it is true that our district courts retain jurisdiction to modify or vacate child support
and custody awards, NRS 125.140(2);
2
Edwards v. Edwards, 82 Nev. 392, 419 P.2d 637
(1966), the language of the statute is clear that the purpose of this continuing jurisdiction is to
enable the court to modify custody and child support provisions to meet changing
circumstances which occur after the entry of the decree. The statute presumes that the
children referred to are the children of the parties. It is on the basis of a material change in
conditions from those existing at the time of the original order that modifications are made.
McInnis v. McInnis, 94 Nev. 532, 582 P.2d 802 (1978); Goodman v. Goodman, 68 Nev. 484,
236 P.2d 305 (1951). The statutory purposes being plain, NRS 125.140(2) may not be used as
a vehicle for an attack upon the status of the parties to the action.
In the instant case, the modification of the original child support award is not based on any
change in conditions. In essence, respondent sought to relitigate an issue adjudicated in the
original proceedings, namely, the paternity of the minor child.
____________________

2
In actions for divorce the court may, during the pendency of the action or at the final hearing or at any
time thereafter during the minority of any of the children of the marriage, make such order for the
custody, care, education, maintenance and support of such minor children as may seem necessary or
proper, and may at any time modify or vacate the same, even if the divorce was obtained by default
without an appearance in the action by one of the parties. The party seeking such order shall submit to the
jurisdiction of the court for the purposes of this subsection. The court may make such an order upon the
application of one of the parties or the legal guardian of the minor. (Emphasis added.)
the original proceedings, namely, the paternity of the minor child.
[Headnotes 2, 3]
It is generally held that an adjudication incident to a divorce decree concerning the
paternity of a child is res judicata as to the husband or wife in any subsequent proceeding.
For a collection of cases on the subject, see Annot., 78 ALR3d 846 (1977). Here the paternity
issue was pleaded, litigated, and determined in the district court at the original proceedings in
1975. The issue was not novel to these proceedings. Respondent was provided the
opportunity at that time to present his evidence, and the decision was against him. He did not
appeal the paternity order. His action in subsequently moving for a reduction in child support
constituted more of an acquiescence in rather than disavowment of parenthood. We hold that
as between the parties a divorce decree establishing the paternity of a child is a final
determination which precludes relitigation of the question of paternity. That being the case,
we conclude that the district court erred in readjudicating the issue.
The order is reversed.
____________
95 Nev. 217, 217 (1979) Apodaca v. State
ANTHONY APODACA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10353
March 15, 1979 591 P.2d 1133
Appeal from order denying probationer credit for jail time served, Seventh Judicial District
Court, White Pine County; Merlyn A. Hoyt, Judge.
The Supreme Court held that probationer was entitled to credit against his original
sentence for time spent in jail as a condition of probation but was not entitled to credit for
time spent in jail awaiting his revocation hearing.
Horace R. Goff, State Public Defender, and J. Gregory Damm Chief Trial Deputy, Carson
City, for Appellant.
95 Nev. 217, 218 (1979) Apodaca v. State
Richard Bryan, Attorney General, Carson City; and Robert J. Johnston, District Attorney,
White Pine County, for Respondent.
Criminal Law.
Probationer was entitled to credit against his original sentence for time spent in jail as a condition of
probation but was not entitled to credit for time spent in jail awaiting his revocation hearing.
OPINION
Per Curiam:
This is an appeal from an order denying credit against an original sentence for (1) time
spent in jail as a condition of a probation; and (2) time spent in jail awaiting a revocation
hearing.
For the same reasons expressed in Merna v. State, 95 Nev. 144, 591 P.2d 252 (1979), we
reverse that portion of the order denying credit for time served as a condition of probation,
and remand the case to the district court with instructions to credit appellant with the time he
served as a condition of his probation.
That portion of the order denying appellant credit for the jail time spent awaiting his
revocation hearing, however, is affirmed. Ward v. State, 93 Nev. 501, 569 P.2d 399 (1977).
Affirmed in part, reversed in part, and remanded with instructions.
____________
FREDERICK LAFFEYETTE WOODALL, Appellant, v.
No. 11454
March 15, 1979 591 P.2d 1144
Defendant, who had been ordered to stand trial for robbery and having used a deadly
weapon in the commission of that offense, filed a pretrial petition for a writ of habeas corpus
to challenge the quantum of the evidence to support the charges. The district court denied
relief, and defendant appealed. The Supreme Court held that where defendant's only
connection with the robbery was that defendant had been apprehended in the presence of
the alleged perpetrator of the robbery, the circumstances were insufficient to establish
probable cause to believe that defendant participated in the robbery.
Supreme Court held that where defendant's only connection with the robbery was that
defendant had been apprehended in the presence of the alleged perpetrator of the robbery, the
circumstances were insufficient to establish probable cause to believe that defendant
participated in the robbery.
Reversed.
Redmon & McGimsey, Las Vegas, for Appellant.
1. Criminal Law.
Although the state's burden at a preliminary examination is slight, it remains incumbent on the state to
produce some evidence that the offense charged was committed by the accused.
2. Criminal Law.
Evidence that defendant was apprehended in the presence of the alleged perpetrator of a robbery, in a
different vehicle from the vehicle in which the alleged perpetrator had been seen before the robbery, was
insufficient to establish probable cause that defendant participated in the robbery and thus did not warrant
ordering defendant stand trial for the robbery. NRS 193.165, 200.380.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Frederick Laffeyette Woodall was ordered
to stand trial for robbery (NRS 200.380) and having used a deadly weapon in the commission
of that offense (NRS 193.165). A pretrial petition for a writ of habeas corpus, which
challenged the quantum of the evidence to support the charges, was denied and Woodall has
appealed.
Testimony recorded in the transcript of the preliminary examination identifies a person by
the name of John Meador as having allegedly robbed a Stop N Go Market located on
Atlantic Avenue, in Las Vegas. Meador was said to have used a .45 caliber automatic hand
gun to obtain money, a pack of Camel cigarettes and a six-pack of Michelob beer. Prior to the
robbery, Meador allegedly had been observed exiting from a 67 or 69 GMC or Chevy
pickup truck which was driven by some person who could not be identified by sex or race.
Meador's method of departure from the Stop N Go Market was not related.
Sometime (20 to 30 minutes) after the alleged robbery, a 76 Dodge pickup truck was
stopped by police approximately five (5) miles from the Stop N Go Market. Woodall and
Meador were in the cab of the Dodge pickup and were arrested. A six-pack of Michelob
beer, some change and a nine (9) millimeter pistol were among the items in the truck which
were seized by the arresting officer.
[Headnotes 1, 2]
In support of the claim of reversible error, it is contended that the recited evidence was
insufficient to support a finding of probable cause that Woodall committed the robbery. We
agree. Although the state's burden at the preliminary examination is slight, it remains
incumbent upon the state to produce some evidence that the offense charged was committed
by the accused. See Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971). Here, the only
evidence produced against Woodall was that after the alleged robbery, he was apprehended in
the presence of Meador, the alleged perpetrator, in a different vehicle from the one in which
Meador had allegedly been seen before the robbery. Under analogous facts, we have
previously held that mere presence with the alleged perpetrator after the time of the robbery,
and at a different place, is insufficient to establish probable cause of participation in the
robbery. See Franklin v. Sheriff, 94 Nev. 676, 585 P.2d 1336 (1978). Accordingly, the order
of the district court is reversed.
____________
95 Nev. 220, 220 (1979) Brinkman v. State
PAUL JOSEPH BRINKMAN, Appellant, v. THE
No. 10300
March 15, 1979 592 P.2d 163
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Defendant was convicted before the district court of burglary and robbery, and he
appealed. The Supreme Court, Manoukian, J., held that: (1) fact that present but not then
member of county district attorney's office had defended defendant in 1971 on unrelated
criminal offense to which he pleaded guilty did not require that district attorney's office be
disqualified from prosecuting instant case; (2) defendant was not denied his right to speedy
trial, and (3) defendant would not now be heard to complain that jury, which found there
existed sufficient evidence to sustain conviction of charged offense but for whatever
reason convicted him of lesser included offense, saw fit to relieve him of enhanced
penalty.
existed sufficient evidence to sustain conviction of charged offense but for whatever reason
convicted him of lesser included offense, saw fit to relieve him of enhanced penalty.
Affirmed.
Swanson & Momot, Ltd., Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
1. Criminal Law.
Although generally a prosecutor is disqualified from personally acting in a criminal case if he has
previously represented the accused in the same or similar matter, where six years had elapsed since prior
case, charges were completely unrelated, there was no threat of destruction or impairment of privileged
relationship, and prior counsel played no part in prosecution of subsequent case, fact that present but not
then member of district attorney's office had defended defendant in 1971 on unrelated criminal offense to
which he pleaded guilty did not require disqualification of district attorney's office.
2. Criminal Law.
Factors to be considered in assessing defendant's speedy trial claim were length of delay, reason for
delay, assertion of right and prejudice to defendant.
3. Criminal Law.
Delay of 161 days between time information was filed and trial, most of which was occasioned by actions
of defendant or his attorney and no part of which was attributable to any action or inaction of the
prosecutor did not deny speedy trial rights of defendant, who neither alleged that delay prejudiced his
presentation of case nor showed how delay might have been avoided.
4. Criminal Law.
Where jury found adequate evidence to convict defendant of charged offense of robbery with use of
deadly weapon in commission of a crime but for whatever reason convicted him only of lesser included
offense of robbery without the use of a deadly weapon, defendant could not complain that the jury saw fit
to relieve him of enhanced penalty. NRS 193.165.
5. Burglary.
Specific intent in a burglary may be presumed from unlawful entry. NRS 205.060.
6. Burglary.
In prosecution for burglary and robbery there was evidence of defendant's intent, aside from presumption
of specific intent in a burglary that arises from unlawful entry, from which jury could have inferred
defendant's guilt of burglary.
OPINION
By jury verdict appellant was convicted of burglary find robbery and sentenced to
concurrent terms of ten years for each offense with a credit of 264 days for time served.
offense with a credit of 264 days for time served. He now urges us to reverse, contending that
(1) the district attorney's office should have been disqualified from prosecuting this case, (2)
he was denied his statutory and constitutional rights to a speedy trial, (3) the verdict of guilty
of robbery without the use of a deadly weapon is fatally inconsistent with the charged offense,
and (4) a remark by the prosecutor made during sentencing was so prejudicial as to require
resentencing.
1. Prosecutorial disqualification.
[Headnote 1]
Brinkman contends that because a present but not then member of the Clark County
District Attorney's office had defended him in 1971 on an unrelated criminal offense to which
he plead guilty and was sentenced to five years in the state prison, the district attorney's office
should have been disqualified from prosecuting this case. The attorney prosecuting the case
stated that he had no contact or communication with appellant's prior counsel regarding the
merits of the present matter.
Generally, a prosecutor is disqualified from personally acting in a criminal case if he has
previously represented the accused in the same or a similar matter. See Annot., 31 A.L.R.3rd
953 (1970). Here, six years had elapsed since the prior case, the charges were completely
unrelated, there was no threat of the destruction or impairment of a privileged relationship,
and his prior counsel played no part in the prosecution of the subsequent case. Compare State
v. Chambers, 524 P.2d 999 (N.M.App. 1974), cert. denied, 524 P.2d 988; State v. Latigue,
502 P.2d 1340 (Ariz. 1972). Accordingly, appellant's contention that the trial court erred in its
refusal to recuse the entire district attorney's office is meritless. Accord People v. Wright, 318
N.E.2d 102 (Ill.App. 1974).
2. Speedy trial.
[Headnote 2]
Although the information was filed December 6, 1976, trial was not had until June 6,
1977. Accordingly, appellant complains that he has been denied his right to a speedy trial.
NRS 178.556; Klopfer v. North Carolina, 386 U.S. 213 (1967). The factors to be considered
in assessing appellant's claim are: the length of the delay, the reason for the delay, the
assertion of the right, and prejudice to the accused. Barker v. Wingo, 407 U.S. 514 (1972);
Larsgaard v. Sheriff, 95 Nev. 171, 591 P.2d 256 (1979). Brinkman was arraigned initially on
January 4, 1977. He then successfully requested a continuance in order to file a petition for a
writ of habeas corpus challenging probable cause.
cause. The petition, filed February 1, 1977, was heard on February 25, and denied March 1,
1977. His appeal to this court was dismissed on March 14, 1977.
Brinkman also filed a motion for bail reduction which, following hearing, was denied on
March 18, 1977. Thereafter, appellant entered his plea of not guilty. He was advised of his
right to speedy trial and the trial date was set for May 2, 1977, the earliest available date.
Sometime later appellant filed his motion to disqualify the district attorney's office. The
motion was heard on the date set for trial and subsequently was denied. Again, the matter was
set for the earliest available trial date. On the date set for the continued trial, appellant
renewed his motion for reduction of bail, which motion was denied. Trial was then continued
to June 6, 1977. A more immediate trial date was not possible due in part to the court's
crowded calendar and in part to the defense counsel's other commitments.
[Headnote 3]
Three days prior to trial, appellant filed his motion to dismiss on speedy trial grounds. The
motion was denied and the trial was conducted as scheduled. In all, 161 days elapsed between
the time the information was filed and trial. Most of the delays were occasioned by the
actions of appellant or his attorney. Hardison v. State, 93 Nev. 551, 571 P.2d 107 (1977). No
part of the delay is attributable to any action or inaction of the prosecutor and it would appear
manifestly improper to penalize the state for a delay caused mainly by the accused.
Larsgaard v. State, supra. Appellant has neither alleged that the delay prejudiced his
presentation of the case nor shown how the delay might have been avoided. Sondergaard v.
Sheriff, 91 Nev. 93, 531 P.2d 474 (1975). We decline to reverse the conviction on this
ground.
3. Inconsistent verdicts.
[Headnote 4]
Although appellant was charged with the crime of robbery with the use of a deadly weapon
in the commission of a crime, the jury returned a verdict of robbery without the use of a
deadly weapon. The jury found there existed sufficient evidence to sustain a conviction of the
charged offense. The uncontroverted testimony of the victim was that appellant entered her
motel room and when she screamed, appellant drew a knife. Brinkman then took the victim's
handbag from the table near where she was sitting and effected his escape.
For whatever reason, the jury saw fit to convict appellant of the lesser included offense.
the lesser included offense. In State v. McCorgary, 543 P.2d 952 (Kan. 1975) cert. denied,
429 U.S. 867, the Kansas court held that:
where a jury relieves a defendant of punishment for a greater offense . . . and convicts
him of a lesser included offense . . . the jury may have adopted its conclusion as an act of
clemency. In such a case, the defendant cannot complain because the error does him no
harm. [Citations omitted.]
Id. at 960. Here, there was adequate evidence to convict appellant of the charged offense. He
should not now be heard to complain that the jury saw fit to relieve him of the enhanced
penalty provided by NRS 193.165.
4. Prosecutorial misconduct.
During the sentencing hearing before the same judge that tried the case, the prosecutor
made the statement that appellant was convicted of robbery without. Appellant
complains the uncompleted remark unduly prejudiced his sentencing and requests that the
case be remanded for resentencing. Appellant cites no authority in support of this assignment
of error. We therefore decline consideration of the issue. Franklin v. State, 89 Nev. 382, 513
P.2d 1252 (1973); Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972).
[Headnotes 5, 6]
Finally, appellant argues that the trial judge improperly instructed the jury that the specific
intent in a burglary may be presumed from an unlawful entry. The instruction was an accurate
statement of the law. NRS 205.060; Arnold v. State, 94 Nev. 742, 587 P.2d 423 (1978);
Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977). In addition, there was evidence of
appellant's intent aside from the presumption from which the jury could have inferred
appellant's guilt.
The remaining assignments of error being without merit, are rejected.
Affirmed.
____________
95 Nev. 225, 225 (1979) In re Two Minor Children
In the Matter of TWO MINOR CHILDREN,
No. 9918
DR. CHARLES R. DICKSON, Administrator of the Division of Mental Hygiene and Mental
Retardation of the Department of Human Resources of the State of Nevada; and the
DIVISION OF MENTAL HYGIENE AND MENTAL RETARDATION of the Department
of Human Resources of the State of Nevada, Petitioners, v. THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, In and For the County of Washoe,
Department J, and THE HONORABLE PETER I. BREEN, Judge Thereof, Respondents.
No. 10127
DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF NEVADA, DIVISION
OF MENTAL HYGIENE AND MENTAL RETARDATION, Appellant, v. MINORS
UNDER THE AGE OF EIGHTEEN YEARS, Respondents.
No. 10132
March 16, 1979 592 P.2d 166
Consolidated petition for writ of prohibition and appeals from orders. Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
From orders of the district court requiring Division of Mental Health and Mental
Retardation to place two juveniles in out-of-state facility after it was determined that they
were not competent to assist in defending against delinquency allegations, and requiring
Division to pay cost of such care, appeals were taken. After consolidation of such appeals and
Division,s and its administrator's petition for writ of prohibition prohibiting judge from
holding a show cause hearing on issue whether administrator should be held in contempt for
failure to comply with the order directing Division to pay cost of confinement, the Supreme
Court, Manoukian, J., held that: (1) writ of prohibition was the proper remedy; (2) where
district court was in possession of psychiatric evaluations indicating that neither juvenile
could competently assist legal counsel in preparing defenses to the delinquency charges, court
could go no further with the proceedings without violating juveniles' due process rights; {3)
such court had authority to place the juveniles in out-of-state facilities, but {4) court did
not have authority to order Division to pay cost of care associated with confinement.
process rights; (3) such court had authority to place the juveniles in out-of-state facilities, but
(4) court did not have authority to order Division to pay cost of care associated with
confinement.
Affirmed in part, reversed in part.
Batjer and Gunderson, JJ., concurred in part, dissented in part.
Richard Bryan, Attorney General, and Emmagene Sansing, Deputy Attorney General,
Carson City, for Petitioners.
Calvin R. X. Dunlap, District Attorney; Don Nomura and A. Stanyan Peck, Deputy District
Attorneys, Washoe County, 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 where there is not a plain, speedy and adequate remedy in the ordinary
course of law. NRS 34.320, 34.330.
2. Prohibition.
Writ of prohibition prohibiting judge from holding show cause hearing was proper remedy to be sought
by division of Mental Health and Mental Retardation and its administrator after he had been ordered to
appear and show cause why he should not be held in contempt for failure to comply with order directing
Division to pay costs of confinement juveniles in out-of-state facility, in light of fact that main substantive
issue raised by division and administrator was whether court's action exceeded court's jurisdiction and that
administrator and Division had no plain, speedy and adequate remedy in ordinary course of law. NRS
34.320, 34.330.
Due process mandates that accused child be afforded a right to counsel and reasonable opportunity to
prepare a defense to the charges. U.S.C.A.Const. Amends. 5, 14.
Concept of due process and fairness mandates permitting juveniles to plead, and have tried, the defense
of insanity. U.S.C.A.Const. Amends. 5, 14.
Mentally incompetent adult defendant cannot be convicted without a violation of due process until he
regains competency to stand trial. U.S.C.A.Const. Amends. 5, 14; NRS 178.400.
Where juvenile court was in possession of psychiatric evaluations indicating that neither juvenile
involved in delinquency proceeding could competently assist legal counsel in preparing defenses to the
delinquency charges, court could go no further with the proceedings without violating juveniles' due
process rights. NRS 62.010 et seq., 62.030, 62.040, subd., 1(c), 62.193, 62.193, subds. 2, 4, 62.195,
subd. 2, 169.025, 178.400; U.S.C.A.Const. Amends. 5, 14.
7. Infants.
In delinquency proceeding in which psychiatric evaluations indicated that the juveniles in question where
incompetent to assist counsel and posed a threat to society and in which it was claimed that there were no
available facilities within state for treatment of the juveniles but that residential treatment in secure facility
away from parents was required, juvenile court had authority to place juveniles in out-of-state facility.
NRS 62.040, subd. 1(c), (d), 62.130, 62.200, 62.200, subd. 1(c), 62.240, 62.240, subd. 1, 62.290,
62.300, 433.104, 433.194, 433A.500 et seq., 433A.540-433A.560.
8. Counties.
Juvenile court judge, who, in delinquency proceeding, placed juveniles in out-of-state facility after
psychiatric evaluations indicated that they were not competent to assist in defending against delinquency
allegations and that they posed potential threat to community, did not have authority to order Division of
Mental Health and Mental Retardation to pay cost of care associated with such confinement, absent any
indication that division was a person responsible for care of the juveniles; if juveniles' parents were
indigents, cost of care and treatment of juveniles would be a charge on county. NRS 62.230, 62.230,
subds. 1, 2, 62.240, 62.640, subd. 2, 62.260, 62.300, 433.001 et seq., 433.374, 4331.430, subd. 2; Const.
art. 4, 19.
OPINION
The district attorney of Washoe County filed a petition in the juvenile court alleging two
minors had committed delinquent acts. Upon motion by public defender, counsel for the
minors, the court ordered psychiatric evaluations. The psychiatric evaluations indicated that
neither was sufficiently competent to assist counsel in defending against the delinquency
allegations.
Because the court could not proceed with the delinquency charges, a problem arose as to
where the juveniles might be detained until their competence was regained. Hearings were
held and testimony received which indicated that due to the absence of available space for the
minors in Nevada facilities, an out-of-state confinement was necessary. On April 13, 1977,
the court ordered the Division of Mental Hygiene and Mental Retardation of the Nevada
Department of Human Resources (Division) to place the juveniles in an out-of-state
facility. That order has been appealed to this Court.
Neither the cost of care nor the financial responsibility for the confinement of the juveniles
was addressed in the court order. No agency appeared willing to absorb the cost and
consequently the out-of-state facility, the Western Institute for Human Resources in San
Rafael, California, has not received payment. On August 12, 1977, the Court ordered the
Division to pay the cost of care.
to pay the cost of care. That order is also the subject of an appeal. On September 16, 1977,
the court ordered Dr. Dickson to appear and show cause why he should not be held in
contempt of court for failure to comply with the prior court order directing the Division to
pay the cost of confinement. Petitioners now pursue this proceeding for a writ of prohibition
prohibiting respondent judge from holding a show cause hearing.
Four issues confront us: (1) Is a writ of prohibition the proper remedy? (2) Are
incompetent juvenile accuseds entitled to due process protections before standing trial in
delinquency proceedings? (3) May a district court confine incompetent juvenile accuseds in
an out-of-state facility? (4) May a district court order a state agency to pay the cost of care
associated with this confinement?
(1) Writ of Prohibition.
[Headnotes 1, 2]
Regarding the threshold issue of jurisdiction, 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, Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949); cf. Maheu
v. District Court, 88 Nev. 26, 493 P.2d 709 (1972), and where there is not a plain, speedy
and adequate remedy in the ordinary course of law pursuant to NRS 34.330. Heilig v.
Christensen, 91 Nev. 120, 532 P.2d 267 (1975). Preliminarily, confronted with the potential
of a contempt order, it is evident that petitioners have no plain, speedy and adequate remedy
in the ordinary course of law. The question of whether the respondent court's action
exceeded its jurisdiction is truly the main substantive issue raised in these proceedings. Our
discussion of issue three is dispositive of the question of excess of jurisdiction. Because we
conclude that an arguable issue of jurisdiction is presented, we turn now to address the merits
of these proceedings.
(2) Juvenile Due Process.
The district court acquired jurisdiction as a juvenile court by the filing of the delinquency
petition. NRS 62.030, 62.040(1)(c). Petitioners argue that the youths' present competency is
not a prerequisite to the juvenile court's determination of the delinquency charges and that
even if the court could postpone the hearings pending a regaining of competency, it cannot
order the Division to place the child in an out-of-state facility. They concede that while such a
procedure would be permissible if the defendant were an adult, NRS 178.400, the statutes do
not apply to children, NRS 169.025, whose cases are governed by the Juvenile Court Act,
NRS Chapter 62. That Chapter defines such proceedings as non-criminal in nature.
NRS 62.193 concerns the procedures applicable in hearings on alleged juvenile offenses.
Petitioners contend that subsection 4 thereof authorized the court to determine whether in fact
a juvenile offense has been committed and to dispose of the matter irrespective of the child's
capacity to stand trial. They argue that no prejudice will result to the minors by proceeding
with delinquency hearings, even though the children are unable to cooperate with their
counsel. Respondent, however, argues that subsection 2 mandates that the child be competent
to assist counsel in presenting a defense. Those subsections read as follows:
2. The parties shall be advised of their rights under law in their first appearance at intake
and before the court. They shall be informed of the specific allegations in the petition and
given an opportunity to admit or deny such allegations.
. . .
4. If the court finds on the basis of an admission or a finding on proof beyond a
reasonable doubt, based upon competent, material and relevant evidence, that a child
committed the acts by reason of which he is alleged to be delinquent, it may, in the
absence of objection, proceed immediately to make a proper disposition of the case.
[Headnote 3]
The United States Supreme Court has held that children standing accused in a juvenile
court must be accorded due process protections in adjudication of those charges. In re Gault,
387 U.S. 1 (1967). Due process mandates that an accused child be afforded a right to counsel
and reasonable opportunity to prepare a defense to the charges. In re Arthur N., 545 P.2d
1345 (Cal. 1976); United States v. Watts, 513 F.2d 5 (10th Cir. 1975); In re F., 520 P.2d 986
(Cal. 1974). Nevada law requires no less.
1
The Supreme Court stated in Gault:
There is no material difference in this respect between adult and juvenile proceedings of
the sort here involved. In adult proceedings, this contention has been foreclosed by
decisions of this Court. A proceeding where the issue is whether the child will be found a
delinquent and subjected to the loss of his liberty for years is comparable in
seriousness to a felony prosecution.
____________________

1
NRS 62.195(2) states in part that: If a child is alleged to be delinquent . . . the child and his parents,
guardian or custodian shall be advised by the court or its representative that the child is entitled to be represented
by counsel at all stages of the proceedings. If counsel is not retained for the child, or if it does not appear that
council will be retained, counsel shall be appointed for the child, unless waived. . . .
seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope
with problems of law, to make skilled inquiry into the facts, to insist upon regularity of
the proceedings, and to ascertain whether he has a defense and to prepare and submit it.
The child requires the guiding hand of counsel, at every step in the proceedings against
him.' 387 U.S. at 36. (Emphasis added. Footnotes deleted.)
[Headnote 4]
Several jurisdictions have permitted juveniles the right to plead and assert the defense of
insanity at the adjudicatory stage in juvenile delinquency proceedings. Matter of
Stapelkemper, 562 P.2d 815 (Mont. 1977); In re Winburn, 145 N.W.2d 178 (Wis. 1966). Our
reading of Kent v. United States, 383 U.S. 541 (1969) and Gault lead us to the conclusion
that the concept of due process and fairness mandates permitting juveniles to plead and have
tried the defense of insanity. Surely, the right to counsel is meaningless unless that right is
interpreted to mean effective counsel, Kent, and counsel cannot be effective, particularly with
reference to the merits of a case, without the competent cooperation of his client.
[Headnote 5]
There is an absence of statutory procedure regarding a juvenile court's authority to
determine a minor's competence to understand the nature of proceedings pending and to
effectively confer with his counsel. A mentally incompetent adult defendant cannot be
convicted without a violation of due process until he regains competency to stand trial. Pate
v. Robinson, 383 U.S. 375 (1966); NRS 178.400. The fitting words of Justice Black
transcend the interface of juvenile and adult criminal law:
Where a person, infant, or adult, can be seized by the State, charged and convicted for
violating a state criminal law, and then ordered by the State to be confined . . ., I think the
Constitution requires that he be tried in accordance with the guarantees of all of the
provisions of the Bill of Rights made applicable to the States by the Fourteenth
Amendment. Undoubtedly this would be true of an adult defendant, and it would be a
plain denial of equal protection of the lawsan invidious discriminationto hold that
others subject to heavier punishments could, because they are children, be denied these
same constitutional safeguards. In re Gault, supra, at 61 (concurring opinion).
[Headnote 6]
Here, the juvenile court had psychiatric evaluations indicating that neither minor could
competently assist legal counsel in preparing defenses to the delinquency charges. As a matter
of constitutional law, the trial court could go no further with the proceedings. Compare James
Paul H. v. Super.Ct. of Riverside County, 143 Cal.Rptr. 398 (Cal.App. 1978).
(3) Confinement in Out-of-State Facility.
[Headnote 7]
Petitioners next contend that even if not precluded from continuing the delinquency
proceedings, the court could not order the Division to confine the minors in an out-of-state
facility. We disagree. The psychiatric evaluations, in addition to indicating that the children
were incompetent to assist counsel, recommended that the minors, as dangers to society, be
confined to a residential treatment facility. NRS 62.240(1) provides:
The court may cause any child adjudged to be within its jurisdiction to be examined by a
physician, psychiatrist, psychologist or other qualified person.
See also NRS 62.200(1). Here, the parties acknowledge that jurisdiction of the juvenile court
was obtained by the filing of the petitions pursuant to NRS 62.040(1)(c). Dr. Richard Weiher,
a psychiatrist who testified for the Division below, stated that the minors are mentally ill
within the meaning of NRS 433.194 and emotionally disturbed as defined in NRS 433.104.
He represented that the children pose a potential threat to the community. Dr. Charles Kuhn,
also testifying for the Division, concurred in Weiher's diagnosis. The psychiatrists and other
representatives of the state claimed that there are no available facilities within the state for
the treatment of the minors but that some sort of residential treatment in a secure facility
away from the parents was required. Dr. Weiher recommended the Western Institute for
Human Resources in San Rafael, California. Accordingly, the district judge ordered the
Division to place the minors in the out-of-state facility, and further ordered that a formal
review of the children's progress be made 90 days from the date of placement.
Petitioners argue that the court exceeded its power by placing the juveniles in an
out-of-state facility. We disagree and hold that where, as here, a juvenile is found to be
incompetent to proceed in an adjudication hearing, and the court finds that the youth poses a
potential threat to society, the juvenile court can consider a request for an examination to
establish whether the youth is competent to proceed. Here the court considered the request
as a petition under NRS 62.040{1){d) {see also NRS 62.130), and NRS 62.240 provides
sufficient authority for a court to order such psychiatric treatment and care as it deems in
the best interests of the child.
the request as a petition under NRS 62.040(1)(d) (see also NRS 62.130), and NRS 62.240
provides sufficient authority for a court to order such psychiatric treatment and care as it
deems in the best interests of the child. See also NRS 62.200(1)(c). Essentially that is what
was done here. In the absence of some express statutory provision for dealing with minors
determined incompetent to stand trial, our interpretation of the Juvenile Court Act is not
inconsistent with its legislative intendment. NRS 62.290, NRS 62.300.
The problems involved in these cases result from the absence of legislation. NRS 178.400
et seq. would adequately deal with an adult charged with a crime, but found incompetent to
proceed, but no provision is made for a juvenile in a similar situation. See NRS 169.025. On
the other hand, if the minors had not been charged with delinquent acts, civil commitment
pursuant to NRS 433A.500 et seq. might have been an available recourse. See NRS
433A.540, 433A.550, 433A.560. The New York Supreme Court has held:
It is inconceivable that the Legislature intended that a juvenile charged with a serious
crime, ascertained to be a threat to himself and to society, and found incompetent to
proceed, should be returned to his community without some procedure established for his
care and treatment. It is hoped that this oversight will soon be corrected by legislative
action. In the meantime, the procedures here outlined adequately provide for the
protection of the juveniles' rights while upholding the jurisdiction of the Family Court to
adequately deal with these circumstances.
People ex rel. Thorpe, etc. v. Clark, 403 N.Y.S.2d 910, 918 (N.Y.A.D. 1978). Likewise, it is
hoped that our Nevada Legislature will respond to the problem. Until it does, we decline to
reverse the order of the district court directing the Division to place the juveniles in an
out-of-state facility.
Finally, we turn again to the question of jurisdiction and conclude that the court possessed
the authority to place the juvenile incompetents in out-of-state facilities.
(4) The Placement Costs.
[Headnote 8]
Petitioners claim that the court was without authority to order the Division to pay the cost
of treatment because no monies were ever appropriated by the Legislature for this purpose.
NRS 433A.430(2), 433.374; Nev. Const. Art. 4, 19; State v. District Court, 85 Nev. 241,
453 P.2d 421 (1969). We are constrained to agree. Chapter 433, NRS, vests broad discretion
in the administrator of the Division regarding expenditures for costs of care and treatment
of mentally and emotionally disturbed persons.
for costs of care and treatment of mentally and emotionally disturbed persons. See NRS
433.374.
Whenever a child concerning whom a petition has been filed appears to be in need of
nursing, medical, surgical or other care, the court may order the parent or other person
responsible for the care and support of the child to provide such care. If the parent or
other person fails to provide such care, the court may, after due notice, enter an order
therefor, and the expense thereof, when approved by the court, shall be a charge upon
the county; but the court may adjudge that the person having the duty under the law to
support the child pay part or all of the expenses of such case in the manner provided in
NRS 62.230. (Emphasis added.)
See also NRS 62.230(1). Although we find no abuse of discretion in the district court's order
directing the Division to place the minors in the out-of-state treatment facility, there is clearly
no justification for the district court's order holding the Division liable for the payment of
costs thereof. NRS 433.374. Compare NRS 62.260; NRS 62.300. There is no evidence that
the Division was a person responsible for the care of the minors. Assuming that the parents
are indigents, the costs of care and treatment of the minor children shall be a charge upon the
county. NRS 62.230, 62.240, 62.260.
Accordingly, the order directing the Division to pay the costs of treatment is reversed and
the writ of prohibition prohibiting the respondent judge from holding a show cause hearing is
granted. The placement order is affirmed, and the county ordered to pay the costs of care and
treatment.
2
The trial court's orders are in all other respects affirmed.
Mowbray, C. J., and Thompson, J., concur.
Batjer, J., with whom Gunderson, J. agrees, concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which appears to hold
1
that
the district court could order the
____________________

2
Our holding is not intended to foreclose the county from proceeding under NRS 62.230(2) or NRS
62.240(2) for a court order for partial or total reimbursement.

1
In the majority opinion it is written:
Petitioners next contend that even if not precluded from continuing the delinquency proceedings, the court
could not order the Division to confine the minors in an out-of-state facility. We disagree.
Division of Mental Hygiene and Mental Retardation of the Nevada Department of Human
Resources to confine the minors in an out-of-state facility had the minors first been
committed to or placed in the custody of the Division.
The order of the district court, if read in isolation, seems to order the Division to confine
the minors in an out-of-state facility; however, when read together with the entire record, it
is clear that the only duty to be performed by the Division was to physically transport the
minors to that facility. NRS 62.300. They were not committed to or placed in the custody of
the Division, but were placed directly by the court in the out-of-state facility.
Jurisdiction of the district court does not extend to the function of determining what course
of action should be taken nor should it assume the latitude to substitute its appraisals and
conclusions for those of the Division.
The decisions to provide mental health service, which and how many services to provide
and where and how to provide them, are legislative and executive decisions requiring a
balancing of public interests which the courts are neither authorized nor suited to direct. In
Galloway v. Truesdall, 83 Nev. 13, 31, 442 P.2d 237, 249 (Nev. 1967), this Court said:
The courts must be wary not to tread upon the prerogatives of other departments of
government or to assume or utilize any undue powers. If this is not done, the balance of
powers will be disturbed and that cannot be tolerated for the strength of our system of
government and the judiciary itself is based upon that theory.
Cf. Jones v. Beame, 380 N.E.2d 277 (N.Y. 1978); Blaney v. Commissioner of Correction,
372 N.E.2d 770 (Mass. 1978).
It is not to be inferred that Division action could ever be above judicial review or beyond
the scope of the extraordinary writs, NRS ch. 34. Our courts will always possess the authority
to set aside decisions of the Division if they are arbitrary or illegal.
I agree with the majority that the juvenile division of the district court had the power to
directly place the minors in the out-of-state facility, NRS 62.040; NRS 62.240; NRS
62.200(1)(c); that the cost was a proper charge against the county of their legal residence,
NRS 62.240(2), and that the district court was without authority to order the Division to pay
the cost of treatment at the out-of-state facility. I concur in the remainder of the majority
opinion.
____________
95 Nev. 235, 235 (1979) Faust v. Donrey Media Group
MAHLON FAUST, Doing Business as FAUST AND HARPER ADVERTISING
COMPANY, Appellant and Cross-Respondent, v. DONREY MEDIA GROUP, Doing
Business as DONREY OUTDOOR ADVERTISING, INC., Respondent and Cross-Appellant.
No. 9671
March 16, 1979 591 P.2d 1152
Appeal from order denying writ of mandamus and vacating contract award, Eighth Judicial
Unsuccessful bidder for contract to install and operate an outdoor billboard sign sought
writ of mandamus to compel board to award it the contract. The district court entered order
denying writ of mandamus and vacating contract award, and defendant appealed and plaintiff
cross-appealed. The Supreme Court, Gunderson, J., held that: (1) county board had no
discretion to award contract to install and operate an outdoor billboard sign if bid varied
materially from invitation requirements, and issue of variance could properly be raised by
petition for writ of mandamus; (2) order vacating award but denying writ of mandamus was
not objectionable as not within the issues or violative of Rule 54(c) requiring a final judgment
to grant relief to which party in whose favor it is rendered is entitled even though not
demanded; (3) court, even though it vacated contract awarded, properly refused to award
contract to plaintiff, inasmuch as court found an ambiguity in the bid invitation, and (4)
county board properly viewed bids, not as for a construction project per se but for a land lease
requiring lessee to erect a billboard through a licensed contractor, and thus board could
proceed and make award to bidder who had no contractor's license provided bid invitation
were clear and unambiguous.
Affirmed.
George E. Franklin, Las Vegas, for Appellant and Cross-Respondent.
Goodman, Oshins, Brown & Singer, Chartered, and Kirby R. Wells, Las Vegas, for
Respondent and Cross-Appellant.
1. Counties; Mandamus.
County board of commissioners had no discretion to award contract to install and operate an outdoor
billboard sign if bid varied materially from invitation requirements, and issue of variance could properly be
raised by petition for writ of mandamus, notwithstanding claim that board's decision was
discretionary, inasmuch as board did not question bidders' responsibility and sole
inquiry involved a legal interpretation of bidder qualifications as established by bid
invitation.
board's decision was discretionary, inasmuch as board did not question bidders' responsibility and sole
inquiry involved a legal interpretation of bidder qualifications as established by bid invitation. NRS
332.065-332.085.
2. Mandamus.
In mandamus by unsuccessful bidder to compel county board of commissioners to award contract to
plaintiff, order vacating award but denying writ of mandamus was not objectionable as not within the issues
or violative of Rule 54(c) requiring a final judgment to grant relief to which party in whose favor it is
rendered is entitled even though not demanded, since decision whether award had been valid necessarily
underlay determination of whether plaintiff should receive relief sought and order did favor plaintiff thus
satisfying Rule 54(c), inasmuch as plaintiff could obtain the contract through rebidding if board decided to
readvertise. NRCP 54(c).
3. Mandamus.
In mandamus by unsuccessful bidder to compel county board of commissioners to award contract to
plaintiff, court, even though it vacated contract awarded, properly refused to award contract to plaintiff,
inasmuch as court found an ambiguity in the bid invitation.
4. Counties.
County board of commissioners properly viewed bids, received in response to invitation for bids for
contract to install and operate an outdoor billboard sign conditioned that each bidder hold any and all
legally required contractors and business licenses or permits necessary, not as for a construction project per
se but for a land lease requiring lessee to erect a billboard through a licensed contractor, and thus board
could proceed and make award to bidder who had no contractor's license provided bid invitation were clear
and unambiguous.
5. Counties.
Where county board of commissioners was advised of bid invitation's material ambiguity board should
not have proceeded to award contract to bidder for contract to install and operate an outdoor billboard sign
and, before awarding contract, board had duty to clarify bidder qualifications, concerning necessity of
contractor's license, by readvertising.
OPINION
This case involves a contract to install and operate an outdoor billboard sign at McCarran
International Airport, which the Clark County Board of Commissioners awarded to appellant
Mahlon Faust. The bid invitation contained a special condition that, Each bidder must hold
(and provide evidence thereof to the county at the time of submission of his bid) any and all
legally required contractors and/or business licenses or permits necessary for the work,
installation maintenance and operation of the outdoor billboard sign(s). The specified bid
forms required bidders to provide the sign construction.
Faust, the high bidder, is licensed in advertising, but apparently did not himself hold the state
contractor's license required for billboard construction. Respondent and cross-appellant,
Donrey Media Group, was the highest bidder holding such a license. Uncertain whether Faust
could be considered a qualified bidder, the Board sought the opinion of its attorney, who
advised that although the Bid Invitation probably required a state contractor's license, a
contrary legal argument could be formulated. On this advice, the Board awarded Faust the
contract.
Donrey petitioned the district court for a writ of mandamus compelling the Board to award
it the contract. After a hearing, the court vacated the contract award to Faust, but refused to
order the contract awarded to Donrey. Faust appeals, claiming the mandamus is an improper
remedy, and that the order vacating the contract award is outside the pleadings and therefore
erroneous. Donrey cross-appeals, asserting the district court erred by not compelling the
Board to award it the contract. We perceive no error, and affirm.
1. Faust first contends the availability of injunction to restrain execution of the contract
provides Donrey another adequate legal remedy, thus precluding mandamus. Because Faust
cites no authority for this contention, we need not consider it. McKinney v. Sheriff, Clark
County, 93 Nev. 70, 560 P.2d 151 (1977). Moreover, such an injunction would not obtain the
contract award for Donrey, the relief sought by petition.
(Headnote 1]
Faust also asserts mandamus is unavailable because the Board's decision was
discretionary. It is well settled in public contract award procedure that a Board determination
of a bidder's responsibleness is discretionary. At least in the absence of fraud or abuse of
discretion, that determination cannot be challenged by mandamus. Douglas Co. Board v.
Pederson, 78 Nev. 106, 369 P.2d 669 (1962); Hoole v. Kinkead, 16 Nev. 217 (1881). We note
responsibility is a factual question involving various considerations evaluated conjunctively.
See NRS 332.065-332.085. However, the Board in this case did not question either party's
responsibility. The sole inquiry involved a legal interpretation of bidder qualifications, as
established by the Bid Invitation.
An awarding board has a duty to reject any bid materially varying from bid specifications.
See Parks v. City of Pocatello, 419 P.2d 683 (Idaho 1966); Smith Tug & Barge Co. v.
Columbia-Pacific Towing Corp., 443 P.2d 205 (Or. 1968); Centric Corporation v.
Barbarossa & Sons, Inc.,
Corporation v. Barbarossa & Sons, Inc., 521 P.2d 874 (Wyo. 1974); City of Opa-Locka v.
Trustees of Plumbing Ind. Pro. F., 193 So.2d 29 (Fla.App. 1966); J. Turco Paving Contr., Inc.
v. City Council of Orange, 213 A.2d 865 (N.J. Super.Ct.App.Div. 1965).
1
Thus, the Board
had no discretion to award Faust the contract if his bid varied materially from invitation
requirements, and the issue of variance may properly be raised by petition for writ of
mandamus.
[Headnote 2]
2. Faust also contends that the order vacating the contract award was outside the issues
raised by the pleadings, and reasons further that the order cannot be justified pursuant to
NRCP Rule 54(c)
2
because Donrey is not a party in whose favor the judgment is rendered.
This contention lacks merit.
Deciding whether the Faust award is valid necessarily underlies determination of whether
Donrey should receive the relief sought in its petition. The order vacating the award was thus
within the issues raised. Similarly, the order clearly favored Donrey, satisfying NRCP Rule
54(c). Although it does not grant the precise relief requested, the order allows Donrey to
obtain the contract through re-bidding if the Board decides to re-advertise.
[Headnote 3]
3. On cross-appeal, Donrey seeks reversal of the district court's refusal to compel award of
the contract to it. Donrey argues that the bidding requirements are unambiguous, and that
Faust clearly failed to satisfy the mandatory requirement of holding a contractor's license.
Hence, Donrey contends, once the Board determined to award the contract to the highest
qualified and responsible bidder, it had fully exercised its discretion, and Donrey was entitled
to the award. Of course, if the Bid Invitation were free of ambiguity, this argument might be
persuasive. See Hillside TWP v. Sternin, 136 A.2d 265 (N.J. 1957); City of Phoenix v.
Wittman Contracting Co., 509 P.2d 103S {Ariz.App.
____________________

1
The rationale of this rule is to preserve the competitive nature of bidding by preventing unfair advantage to
any bidder, or other conditions undermining the necessary common standard of competition. See also Township
of River Vale v. R.J. Longo Const. Co., Inc., 316 A.2d 737 (N.J.Super.Ct.LawDiv.1974); National Engineering
& Cont. Co. v. City of Cleveland, 146 N.E.2d 340 (Ohio Ct. C.P. 1957).

2
NRCP Rule 54(c) provides in pertinent part:
Except as to a party against whom a judgment is entered by default, every final judgment shall grant the
relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such
relief in his pleadings.
1038 (Ariz.App. 1973). However, the district court based its order upon a finding of
ambiguity in the bid invitation.
[Headnotes 4, 5]
The Board chose to view the bids not as for a construction project per se, but for a land
lease requiring the lessee to erect a billboard through a licensed contractor. In our opinion, the
court did not err in determining this construction to be consistent with the language and
purpose of the bids. Unlike usual construction contracts, the County's purpose in this case is
to produce revenue. The proposed structure is not intended for public use, but will serve the
private interests of the awardee. In the case of public works, requiring bidders themselves to
hold the appropriate state contractor's license may relate to assuring conformity with
contemplated quality standards. Here, however, the County's interests may be equally
protected if the billboard operator is allowed to subcontract the actual construction to a
licensed contractor, and the less restrictive bid standard may produce a greater number of
bidders. Thus, it appears proper for the Board to proceed as it evidently intended. However,
the bid invitations should be clear and unambiguous. 10 E. McQuillan, Municipal
Corporations, p. 371, 29.52 (3rd ed. 1968); Smith Tug & Barge Co. v. Columbia-Pacific
Towing Corp., supra. Advised of the invitation's material ambiguity, the Board should not
have proceeded. Before awarding the contract, the Board had a duty to clarify bidder
qualifications by readvertising. This conclusion, we believe, follows from the same
considerations of fairness and preservation of competitive bidding that prohibit acceptance of
bids materially varying from specifications. See footnote 1 of this opinion.
Affirmed.
____________
95 Nev. 240, 240 (1979) Wolfe v. State
RANDALL WOLFE, Appellant, v. THE
No. 10700
March 16, 1979 591 P.2d 1155
Appeal from judgment of conviction, First Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
Defendant was convicted before the district court of prisoner escape, and he appealed. The
Supreme Court, Thompson, J., held that constitutional violation occurring when defendant,
charged with crime of prisoner escape, was denied access to prison law library, did not
require reversal of conviction, where denial of access to prison law library did not affect
result, all evidence relevant to escape had been presented to jury, law on defense of limited
necessity had been properly presented to jury and it was not claimed that integrity of
fact-finding process was impaired or that reliability of evidence received was rendered
suspect by reason of defendant's exclusion from prison law library.
Affirmed.
Norman Y. Herring, Nevada State Public Defender, and J. Gregory Damm, Chief Deputy
Public Defender, for Appellant.
Steven D. McMorris, District Attorney, and Brent Kolvet, Deputy District Attorney,
Douglas County, for Respondent.
Criminal Law.
Constitutional violation occurring when defendant, charged with crime of prisoner escape, was denied
access to prison law library, did not require reversal of conviction, where denial of access to prison law
library did not affect result, all evidence relevant to escape had been presented to jury, law on defense of
limited necessity had been properly presented to jury and it was not claimed that integrity of fact-finding
process was impaired or that reliability of evidence received was rendered suspect by reason by defendant's
exclusion from prison law library. U.S.C.A.Const.Amends. 6, 14.
OPINION
A jury convicted Randall Wolfe of the crime of prisoner escape. He had elected to
represent himself with the aid of the public defender as his advisor. At arraignment the
district court ordered that Wolfe be allowed to use the law library at the prison to prepare
for trial.
95 Nev. 240, 241 (1979) Wolfe v. State
court ordered that Wolfe be allowed to use the law library at the prison to prepare for trial.
Should he not be permitted to do so the court was to be advised. On the day trial was to
commence Wolfe moved to dismiss asserting that he had been denied access to the library,
and to a telephone. The court denied that motion, and trial occurred.
His defense was that of limited necessity, and the court instructed the jury regarding the
elements of that defense. The instruction was based upon the California Court of Appeals
decision, People v. Lovercamp, 43 Cal.App.3rd 823, 118 Cal.Rptr. 110 (1975), allowing the
defense when: (1) the prisoner is faced with a specific threat of death, forcible sexual attack
or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the
authorities or there exists a history of futile complaints which make any result from such
complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no
evidence of force or violence used towards prison personnel or other innocent persons in
the escape; and (5) the prisoner immediately reports to the proper authorities when he has
attained a position of safety from the immediate threat.
1

Capsulized, it was Wolfe's testimony at trial that sometime before his escape he had been
knifed by a black prisoner and hospitalized for his wounds; that thereafter he was in fear for
his life and that while on a work crew for the division of forestry he was threatened by a
friend of the black inmate who had stabbed him, prompting his decision to escape. When he
had obtained a position of safety from the threat he did not immediately notify the authorities
of his whereabouts. Sometime later he voluntarily surrendered himself to custody.
His testimony was corroborated to some extent by other evidence, particularly with
reference to the stabbing and his consequent hospitalization.
On this appeal he does not contend that he was somehow precluded from securing and
submitting all evidence relevant to his defense, or that his legal advisor was inattentive or
ineffective. He asserts simply that his lack of access to the prison library denied him a fair
trial and requires an automatic reversal of his conviction and a remand for another trial.
1. The Sixth Amendment, applicable to the states by the Fourteenth Amendment,
guarantees that a defendant in a state criminal trial has the constitutional right to defend
himself without counsel when he voluntarily and intelligently elects to do so.
____________________

1
People v. Lovercamp, supra, is the lead case for the Annot. 69 ALR3d 678 (1976) entitled, Duress,
Necessity, or Conditions of Confinement as Justification for Escape from Prison.
95 Nev. 240, 242 (1979) Wolfe v. State
without counsel when he voluntarily and intelligently elects to do so. Faretta v. California,
422 U.S. 806 (1975). Moreover, due process demands that prisoners have access to the
courts, which requires prison authorities to assist in the preparation and filing of meaningful
legal papers by providing them with adequate law libraries or adequate assistance from
persons trained in the law. Bounds v. Smith, 430 U.S. 817 (1977); Craig v. Hocker, 405
F.Supp. 656 (D. Nev. 1975).
Wolfe's assertion that he was denied access to the prison law library has not been
controverted by the state. Therefore, we accept that assertion of fact as true. Whether such
constitutional violation compels this court to annul his conviction is the issue to which we
now direct our attention.
2. Not every constitutional violation requires that the conviction be set aside. Some
violations may occur without necessarily affecting the fundamental fairness of the trial.
2
If
we are convinced beyond a reasonable doubt that the error did not affect the result of the trial
(Fahy v. Connecticut, 375 U.S. 85 (1963); Chapman v. California, 386 U.S. 18 (1967)) we
may deem the error harmless and sustain the jury verdict and judgment entered thereon.
3

ln the factual setting of this case, we are convinced beyond a reasonable doubt that denial
of access to the prison law library could not have affected the result of the trial. All evidence
relevant to his escape from custody was presented to the jury for its evaluation. The appellant
does not contend otherwise. The law bearing upon his defense to the charge of escape, and
stated in jury instruction, is not challenged as incorrect. It is not claimed that the integrity of
the fact finding process was impaired, or the reliability of the evidence received rendered
suspect by reason of his exclusion from the prison law library.
Affirmed.
____________________

2
This problem was discussed in Guyette v. State, 84 Nev. 160, 166, 167, 168, 483 P.2d 244 (1968).

3
In Chapman v. California, supra, the court wrote:
We conclude that there may be some constitutional errors which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed
harmless, not requiring the automatic reversal of the conviction.
386 U.S. at 22.
____________
95 Nev. 243, 243 (1979) Gunlord Corp. v. Bozzano
GUNLORD CORPORATION, a Nevada Corporation, d.b.a. Mobile World, Appellant, v.
SILVIO BOZZANO and BERNICE BOZZANO, Respondents.
No. 11099
March 16, 1979 591 P.2d 1149
Appeal from an order affirming a previously entered summary judgment; Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
Purchasers brought action against seller to rescind a contract to purchase a mobile home.
The district court entered order affirming a previously entered summary judgment, and seller
appealed. The Supreme Court, Thompson, J., held that plaintiff's were entitled to rescission of
contract to purchase a mobile home, where plaintiff had entered into a contract to purchase a
24-foot by 60-foot, two-bedroom mobile home but a three-bedroom mobile home had been
delivered and it was defective in several specified particulars, notwithstanding that plaintiffs
had not examined home before signing the contract.
Affirmed.
James L. Buchanan II, of Las Vegas, and Robert A. Grayson, of Carson City, for
Appellant.
Albert G. Marquis, of Las Vegas, for Respondents.
Where motion for rehearing was made and an order granting rehearing entered within 30 days following
notice of entry of summary judgment and, after hearing was held, court ruled that summary judgment was
proper, final judgment was judgment entered after rehearing, and in such case general proposition that
motion for rehearing does not toll the running of the 30-day period within which to appeal was inapplicable
and appeal lodged following ruling that summary judgment previously entered was proper was timely.
2. Sales.
Plaintiffs were entitled to rescission of contract to purchase a mobile home, where plaintiff had entered
into a contract to purchase a 24-foot by 60-foot, two-bedroom mobile home but a three-bedroom mobile
home had been delivered and it was defective in several specified particulars, notwithstanding that
plaintiffs had not examined home before signing the contract.
3. Judgment.
Affidavit of president of defendant corporation to which was attached an authenticated invoice pertaining
to a three-bedroom mobile home allegedly delivered to plaintiff purchasers did not comply with Rule
56{e) concurring summary judgments and affidavit was otherwise inadequate in that
it was conclusory rather than factual and did not reflect that president had personal
knowledge of transaction with purchasers and was competent to testify regarding it.
56(e) concurring summary judgments and affidavit was otherwise inadequate in that it was conclusory
rather than factual and did not reflect that president had personal knowledge of transaction with purchasers
and was competent to testify regarding it. NRCP 56(e).
4. Judgment.
Affidavit of employee of defendant corporation was deficient for summary judgment purposes as being
conclusory and not founded upon personal knowledge, where employee, in attempt to controvert statement
that mobile home had been defective in many respects, stated that two unnamed persons had examined
home and found defects to be minor in character but affidavits of those two persons had not been obtained.
NRCP 56(e).
OPINION
This action by Silvio and Bernice Bozzano against Gunlord Corporation, d.b.a. Mobile
World, is to rescind a contract to purchase a mobile home. The Bozzanos moved for summary
judgment and since their motion was not opposed the court entered summary judgment in
their favor. Notice of entry was acknowledged by counsel for Gunlord Corporation on June
21, 1978. Gunlord then moved for a rehearing and on July 14, 1978, the court ordered a
rehearing. A rehearing occurred and on July 27, 1978, the court ruled that the summary
judgment previously entered was to remain in effect. The following day Gunlord Corporation
filed its notice of appeal.
We are asked to dismiss the appeal as not timely. Alternatively, the Bozzanos assert that
summary judgment was proper. The appellant Gunlord Corporation contends that its notice of
appeal was timely filed and that the summary judgment should be set aside since genuine
issues as to material facts are disclosed by the record.
[Headnote 1]
1. In urging the dismissal of this appeal the respondents rely upon the general proposition
that a motion for rehearing does not toll the running of the 30-day period within which to
appeal. Arrate v. Nevada National Bank, 89 Nev. 55, 506 P.2d 86 (1973); Whitehead v.
Norman Kaye Real Estate, 80 Nev. 383, 395 P.2d 329 (1964). Neither of those cases control,
since here the motion for rehearing was made and an order granting rehearing entered within
30 days following notice of entry of summary judgment.
1
The district court apparently
wished to have an adversary hearing on the motion for summary judgment which
previously had been unopposed, and retained jurisdiction for that purpose.
____________________

1
An order granting a rehearing is a special order after final judgment and itself appealable by the aggrieved
party. Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 456 P.2d 450 (1969). In the case at hand the
Bozzanos chose not to appeal from that order.
have an adversary hearing on the motion for summary judgment which previously had been
unopposed, and retained jurisdiction for that purpose. That hearing was held and the court
then ruled that summary judgment for the Bozzanos was proper. In these circumstances the
final judgment is the judgment entered after rehearing. This appeal is timely.
2. Upon rehearing the motion for summary judgment the district court concluded that the
affidavits and documents filed in opposition were legally insufficient. For this reason the
court found no issue of material fact and reaffirmed the judgment entered earlier.
NRCP 56(e) requires that supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. Moreover,
sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto and served therewith. When the mandate of this rule is not met the court will
regard the papers as legally insufficient. Saka v. Sahara-Nevada Corp., 92 Nev. 703, 558 P.2d
535 (1976); Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966).
[Headnote 2]
The affidavit of Bernice Bozzano in support of the motion for summary judgment reflected
that she and her husband had entered into a contract to purchase a 24-foot by 60-foot,
two-bedroom mobile home; that a three-bedroom mobile home was delivered and that it was
defective in several specified particulars, and that she and her husband had not examined the
home before signing the contract. Moreover, that the Bozzanos did not wish to own a
three-bedroom mobile home.
[Headnote 3]
Her affidavit was not controverted in any permissible way. The affidavit of the president of
the defendant corporation to which was attached an unauthenticated invoice pertaining to a
three-bedroom mobile home does not comply with the rule and, in any event, confirms the
plaintiff's complaint that a three-bedroom home was delivered rather than the two-bedroom
home which they had ordered. The president's affidavit in other respects is conclusory rather
than factual and does not reflect that he had personal knowledge of the transaction with the
Bozzanos and was competent to testify regarding it.
[Headnote 4]
The affidavit of an employee of the defendant is similarly deficient.
deficient. In an attempt to controvert Mrs. Bozzano's statement that the mobile home was
defective in many respects, the employee stated that two unnamed persons had examined the
home and found the defects to be minor in character. The affidavits of those two persons were
not obtained. In other respects the affidavit is conclusory and obviously not founded upon
personal knowledge.
For the reasons expressed we affirm the judgment entered below.
____________
95 Nev. 246, 246 (1979) Jewett v. Patt
ROY JEWETT and LORENE JEWETT, Appellants, v. SEYMOUR H. PATT, aka SY
PATT, and STEVIE PATT, Respondents.
No. 9341
March 16, 1979 591 P.2d 1151
Appeal from order dismissing action against Seymour Patt without prejudice, and against
Stevie Patt with prejudice; Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Clients commenced action for professional malpractice against attorney and joined his
wife as defendant alleging that his negligence occurred while he was acting on behalf of the
community. The district court dismissed action against attorney without prejudice and against
attorney's wife with prejudice and clients appealed. The Supreme Court, Thompson, J., held
that: (1) the action was premature where it was too early to know whether clients had
sustained damage by reason of attorney's delay in bringing suit, and (2) marriage to attorney
was not basis to hold wife liable for any professional malpractice of attorney.
Affirmed.
Fray and Benson, Reno, for Appellants.
David Dean, Reno, for Respondents.
Action for professional malpractice does not accrue until plaintiff knows, or should know, all
facts material to elements of cause of action and damage has been sustained.
95 Nev. 246, 247 (1979) Jewett v. Patt
knows, or should know, all facts material to elements of cause of action and damage has been sustained.
NRS 11.190, subd. 4(e), 11.250.
Professional malpractice action was premature where it was too early to know whether clients had
sustained damage by reason of attorney's delay in bringing suit. NRS 11.190, subd. 4(e), 11.250.
3. Husband and Wife.
Marriage to attorney was not basis to hold wife liable for any professional malpractice of attorney.
OPINION
Roy and Lorene Jewett commenced this action for professional malpractice against
attorney Seymour Patt. They joined his wife, Stevie, as a defendant alleging that Seymour's
negligence occurred while he was acting on behalf of the community. The district court
dismissed the action without prejudice as to Seymour, but with prejudice as to Stevie. We
affirm.
1. On March 10, 1972, The Jewetts retained attorney Patt to recover damages sustained in
an automobile accident on August 13, 1971. The adverse driver was Fred Marquardson. That
action was not commenced until August 13, 1975. The record does not disclose whether the
defendant or defendants therein named were served with process and filed responsive
pleadings. Perhaps the two year statute of limitations bars that action if properly interposed as
a defense. NRS 11.190(4)(e). However, limitations is not an automatic bar. For example,
certain disabilities prevent the running of the statute. NRS 11.250. Consequently, we do not
know whether limitations bars the Jewetts' action against Marquardson. Neither do we know
whether the Jewetts have sustained damages by reason of attorney Patt's delay in bringing suit
against Marquardson.
[Headnotes 1, 2]
An action for professional malpractice does not accrue until the plaintiffs know, or should
know, all facts material to the elements of the cause of action and damage has been sustained.
Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d 851 (1978); Neel v. Magana, Olney, Levy,
Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971); Budd v. Nixen, 491 P.2d 433 (Cal. 1971). The
district court did not err in dismissing this action without prejudice against attorney Patt on
the ground that it was premature.
[Headnote 3]
2. The district court ruled that Stevie Patt could not be liable for the professional
malpractice, if any, of her husband Seymour.
95 Nev. 246, 248 (1979) Jewett v. Patt
liable for the professional malpractice, if any, of her husband Seymour. The claimed predicate
for her liability was simply the fact of her marriage to Seymour. This is not enough. Whether
community property is subject to a judgment against Seymour, if one is obtained, is another
matter. Randono v. Turk, 86 Nev. 123, 466 P.2d 218 (1970). The district court did not err in
dismissing the action against Stevie with prejudice.
Affirmed.
Mowbray, C. J, and Gunderson, Manoukian, and Batjer, JJ., concur.
____________
95 Nev. 248, 248 (1979) A Minor v. Mineral Co. Juv. Dep't
A MINOR, Appellant, v. MINERAL COUNTY
JUVENILE DEPARTMENT, Respondent.
Nos. 10264 and 10265
March 22, 1979 592 P.2d 172
Consolidated appeals from orders declaring juveniles to be delinquent; Fifth Judicial
District Court, Mineral County; William P. Beko, Judge.
The Supreme Court, Thompson, J., held that: (1) it is not necessary first to prove guilt of
principal in order to find one guilty of aiding and abetting a crime, but (2) where parties'
agreed statement did not touch upon contention that convictions were obtained through
uncorroborated accomplice testimony and county juvenile department's brief did not answer
this assignment of error, failure to respond would be treated as confession of error.
Norman Y. Herring, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy
Attorney General, Carson City, for Appellant.
Larry Bettis, District Attorney, and John S. Hill, Deputy District Attorney, Mineral
1. Criminal Law.
It is not necessary first to prove guilt of principal before one may be found guilty of aiding and abetting a
crime. NRS 195.020.
2. Criminal Law.
Where juvenile hearing was not reported and parties in lieu thereof prepared and signed agreed statement,
but agreed statement did not touch upon contention that juveniles' convictions were
obtained through uncorroborated accomplice testimony, and county juvenile
department's brief did not answer this assignment of error, failure to respond was
treated as confession of error, and accordingly orders declaring juveniles to be
delinquent were set aside and cases remanded.
upon contention that juveniles' convictions were obtained through uncorroborated accomplice testimony,
and county juvenile department's brief did not answer this assignment of error, failure to respond was
treated as confession of error, and accordingly orders declaring juveniles to be delinquent were set aside
and cases remanded. NRS 175.291, subd. 1; NRAP 10(e), 31(c).
OPINION
Two errors are assigned. First, that one may not be found guilty of aiding and abetting a
crime without his principal first being convicted. Second, that their convictions were obtained
through uncorroborated accomplice testimony in violation of NRS 175.291(1).
[Headnote 1]
It is not necessary first to prove guilt of the principal. State v. Cushing, 61 Nev. 132, 120
P.2d 208 (1941). The common law which required the prior conviction of the principal has
been abrogated, and the common law distinctions between principals of the first and second
degree and accessories before the fact abolished by statute. NRS 195.020. The first claim of
error is without substance.
[Headnote 2]
The juvenile hearing apparently was not reported, and the parties, in lieu thereof, have
prepared and signed an agreed statement. NRAP 10(e). Unfortunately, the agreed statement
does not touch upon the second assignment of errorwhether their convictions were
obtained through uncorroborated accomplice testimony. The evidence, if any, in regard to
corroboration, is not therein contained. Consequently, we are unable to evaluate this claim of
error from the record tendered to us.
Moreover, we note that the respondent's brief does not answer this assignment of error. It
is silent on the point. We elect to treat this failure to respond as a confession of error. NRAP
31(c); Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977). Accordingly, the orders declaring
the appellants to be delinquent are set aside, and the cases are remanded to the district court.
Gunderson and Batjer, JJ., concur.
Manoukian, J., with whom MowbrAy, C. J., concurs: I agree with the majority's holding
that "it is not necessary first to prove guilt of the principal" to convict for aiding and
abetting.
I agree with the majority's holding that it is not necessary first to prove guilt of the
principal to convict for aiding and abetting. State v. Cushing, 61 Nev. 132, 120 P.2d 208
(1941).
However, because the proceedings below were not reported, the court is unable to
determine whether the convictions were obtained through uncorroborated accomplice
testimony. NRS 175.291(1). Accordingly, the majority finds it necessary to vacate the
delinquency adjudications and remand to district court for an amendment or supplementation
of the agreed statement, a partial rehearing on the merits, or a hearing de novo.
In my view, the majority does not go far enough concerning the exercise of the trial judge's
discretion to record juvenile court proceedings given this opportunity to provide such
guidance and rectify a situation which occurs in our juvenile courts more frequently that my
brethren are aware. If the arguments against having a record are that it increases the formality
of the proceedings, adds personnel and calls for an incremental increase in the local
judiciary's budget (Note, Juvenile Delinquents: The Police, State Courts, and Individualized
Justice, 79 Harv.L.Rev. 775 (1966)), the contentions can in large part be met by the
recommendation in the Standard Court Act that mechanical recordings be used. Although
NRS 62.193(1) provides that juvenile court proceedings are not criminal in nature, that the
hearing may be conducted in an informal manner, and that stenographic notes or other
transcript of the hearing shall be required only if the court so orders, if the charged juvenile
has a significant prior history or delinquency, or the petition charges a serious act of
delinquency, or protracted detention or confinement might probably follow a finding of
delinquency, then it should be incumbent on the judicial officer to order that the adjudicatory
and dispositional proceedings be stenographically or mechanically reported. In our larger
judicial districts court stenographers are invariably available for such purposes and in most of
our rural districts, calendar management can often operate to have a reporter present.
In re Gault, 387 U.S. 1 (1967), and its progeny, have clothed juvenile offenders with a
panoply of legal and constitutional rights to which adult accuseds are entitled. In addition, our
legislature has enacted many laws which have the effect of placing those charged in juvenile
court on more of a parity with adult accuseds. See, for example, NRS 62.193(2), requiring
that juveniles be advised of their rights at their initial appearance and be provided an
opportunity to answer the charges; NRS 62.193(4), providing that the standard of proof is
beyond a reasonable doubt; NRS 62.193{5), providing for confrontation of witnesses; NRS
62.195, extending the right to counsel, the power to subpoena witnesses, and the
prohibition against double jeopardy; NRS 62.2S0 creating the right of appeal to the state
supreme court.
a reasonable doubt; NRS 62.193(5), providing for confrontation of witnesses; NRS 62.195,
extending the right to counsel, the power to subpoena witnesses, and the prohibition against
double jeopardy; NRS 62.280 creating the right of appeal to the state supreme court. Given
this plethora of procedural safeguards and the possibility of what amount to criminal
sanctions which may be imposed on juvenile offenders, the view that procedural rights need
not be provided to juveniles because the proceedings are not criminal, is merely a legal
fiction. See In re Holmes, 109 A.2d 523 (Pa. 1954), cert. denied, 348 U.S. 973; In re
Contreras, 241 P.2d 631 (Cal.App. 1952).
While appellate review of juvenile court decisions is not constitutionally mandated, see,
for example, McKane v. Durston, 153 U.S. 684 (1893), the legislature in NRS 62.280 has
provided the right of appeal to this court in the same manner as appeals in civil cases. Since
appellate review is authorized, in order for that review to be meaningful, there should be a
record. A record insures a healthy atmosphere of accountability. As the present case
illustrates, the consequence of a failure to report the proceedings may result in a duplicity of
proceedings, including a possible second appeal, and the inevitable increase in judicial
expenditures.
I would not hold that a stenographer's transcript is required in every case. A particular case
may not justify the expense, or another means of insuring adequate appellate review might be
utilized. See NRAP 10(e). Subject to the guidelines herein proposed, the decision whether to
make a transcript or other recording would continue to be a matter committed to the sound
discretion of the juvenile court.
I concur in the vacation of judgments and remand.
____________
95 Nev. 251, 251 (1979) Ramos v. State
WILLIAM JAMES RAMOS, Jr., Appellant, v. THE
No. 9701
April 6, 1979 592 P.2d 950
Appeal from judgment, Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
The district court convicted defendant of attempted murder in the second degree, and
defendant appealed. The Supreme Court held that trial court committed reversible error in
instructing jury that defendant could be found guilty of attempted murder in the second
degree in the absence of an intent to kill.
95 Nev. 251, 252 (1979) Ramos v. State
Court held that trial court committed reversible error in instructing jury that defendant could
be found guilty of attempted murder in the second degree in the absence of an intent to kill.
Reversed and remanded with instructions.
1. Criminal Law.
An attempt requires that an act be done with intent to commit a crime. NRS 208.070.
2. Homicide.
In prosecution for attempted murder in the second degree, trial court committed reversible error in
instructing jury that defendant could be found guilty if he committed an act which evidences an
abandoned and malignant heart and yet did not premeditate and did not intend to kill, in view of fact that
attempt requires that act be done with intent to kill and in view of fact that instruction told jury that
defendant could be found guilty of attempting to murder victim if jury believed that defendant merely
committed aggravated battery upon her.
OPINION
Per Curiam:
After a domestic quarrel with the victim, appellant followed her to her place of
employment and shot her in the chest at point blank range. The victim survived and appellant
was indicted for attempted murder, tried by a jury and convicted of attempted murder in the
second degree. NRS 200.030; NRS 208.070. Appellant contends that his conviction is fatally
defective because the trial court gave an erroneous jury instruction. We agree.
[Headnote 1]
The defective instruction reads in pertinent part: Attempted Murder in the Second Degree
occurs when the Defendant committed [sic] an act which evidences an abandoned and
malignant heart and yet did not premeditate and did not intend to kill (emphasis added). The
instruction is a misstatement of the law. An attempt requires that an act be done with intent
to commit a crime.
95 Nev. 251, 253 (1979) Ramos v. State
with intent to commit a crime. NRS 208.070; Stephens v. Sheriff, 93 Nev. 338, 565 P.2d
1007 (1977).
[Headnote 2]
The last paragraph of the erroneous instruction tells the jury that the appellant may be
found guilty of attempting to murder the victim if they believe that he merely committed an
aggravated battery upon her. In People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975), it was
pointed out that, [t]here is no such criminal offense as an attempt to achieve an unintended
result. It was error to instruct the jury that the defendant could be found guilty of attempted
murder in the second degree in the absence of an intent to kill.
This case is remanded to the district court with instructions to vacate the judgment of
conviction of attempted second degree murder and grant appellant a new trial.
____________
95 Nev. 253, 253 (1979) All Amer. Van v. DeLuca Realty
ALL AMERICAN VAN AND STORAGE, INC., a Nevada Corporation, Appellant, v.
DeLUCA REALTY, INC., a Nevada Corporation, Respondent.
No. 9842
April 6, 1979 592 P.2d 951
Appeal from judgment granting a permanent injunction; Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Action was commenced to enjoin interference with an easement. The district court granted
plaintiff relief, and defendant appealed. The Supreme Court held that evidence regarding
grant of easement by predecessors of defendant was sufficient to show existence of easement.
Affirmed.
John Peter Lee, Ltd., and Richard McKnight, of Las Vegas, for Appellant.
Nitz, Schofield & Nitz, of Las Vegas, for Respondent.
Easements.
In action to enjoin interference with easement, evidence regarding grant of easement by
predecessors of defendant was sufficient to show existence of easement.
95 Nev. 253, 254 (1979) All Amer. Van v. DeLuca Realty
grant of easement by predecessors of defendant was sufficient to show existence of easement.
OPINION
Per Curiam:
This action was commenced by DeLuca against All American to enjoin interference with
an easement. Following trial, the court found that DeLuca owned a parcel of land commonly
known as 723 N. Main St., Las Vegas, and as well, an easement for road purposes 60 feet
wide over adjoining property owned by All American; that All American had interfered with
DeLuca's use thereof and should be permanently enjoined. Judgment, accordingly, was
entered.
All American contends that the evidence was insufficient to show the existence of an
easement since nothing was introduced regarding the grant of such an easement by the
predecessors of All American. This contention is without substance.
It is apparent from the evidence received that Carl and Julia Huffey, predecessors of All
American, had granted the easement by deed to DeLuca dated November 7, 1945, recorded
November 14, 1945. All American, by reason of the knowledge imputed to it pursuant to the
recording statutes, must be deemed to have had notice of the recorded encumbrance. NRS
111.320; White v. Moore, 84 Nev. 708, 448 P.2d 35 (1968).
1

Affirmed.
2

____________________

1
Although the President of All American was not aware of that easement when his company purchased the
property over which the easement was given, he later learned of it and has obtained a summary judgment fixing
the liability of First American Title Insurance & Trust Company for its failure to show the easement as a defect
in title when issuing its policy of title insurance to All American.

2
The Governor designated Michael R. Griffin, Judge of the First Judicial District, to sit in the place of the
Honorable John Mowbray, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 255, 255 (1979) Miller v. Sheriff
MICHAEL MILLER, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 11594
April 6, 1979 592 P.2d 952
Appeal from order denying a pretrial petition for a writ of habeas corpus, First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
The district court denied pretrial petition for.writ of habeas corpus, challenging sufficiency
of evidence adduced at preliminary examination, and correctional center inmate appealed.
The Supreme Court, Manoukian, J., held that totality of circumstances, including inmate's
being alone in restroom, his crouching and ducking, contemporaneous noise heard by
corrections officer, inmate's hasty exit from restroom, and finding of similar bottle among
inmate's property unlike any other observed by officer in his five years at institution,
demonstrated probable cause to warrant inmate's trial for felonious possession of marijuana
found in bottle in trash can.
Affirmed.
[Rehearing denied June 14, 1979]
Norman Y. Herring, Nevada State Public Defender, and Michael Ross, Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Edwin E. Taylor, Jr., Deputy Attorney General,
Criminal Law.
Totality of circumstances, including correctional center inmate's being alone in restroom, his crouching
and ducking, contemporaneous noise heard by corrections officer, inmate's hasty exit from restroom, and
finding of similar bottle among inmate's property unlike any other observed by officer in his five years at
institution, sufficiently demonstrated probable cause to meet degree of proof required to bind inmate over
for trial for felonious possession of marijuana found in bottle in trash can. NRS 171.206, 453.336.
OPINION
Michael Miller, an inmate at the Northern Nevada Correctional Center, was charged, and
ordered to stand trial for the felonious possession of marijuana {NRS 453.336).
felonious possession of marijuana (NRS 453.336). Thereafter, he filed a petition for a writ of
habeas corpus, challenging the sufficiency of the evidence adduced at the preliminary
examination. Habeas was denied and on appeal Miller contends we are compelled to reverse.
We disagree.
A correctional officer at the institution testified that, inter alia, while on duty on August 8,
1978, he observed appellant ducking down in a dormitory restroom and contemporaneously
heard a noise which sounded like something being thrown in a garbage can. The officer
further testified that he immediately opened the restroom door, observed appellant rising from
a crouched position next to the garbage can whereupon Miller hurriedly exited down the
hallway. Noting that no one else was in the bathroom, the officer searched a galvanized steel
30-gallon garbage can and retrieved a vitamin bottle which was located on top of the
assorted trash. The contents of the bottle included assorted pills, hand rolled cigarettes and a
balloon. A chemist's report subsequently confirmed that there were 21 cigarettes containing
marijuana, and that the balloon contained marijuana as well.
The officer later confronted Miller in appellant's dormitory. The dormitory is accessible
only through the restroom in which the marijuana was found. His suspicion was further
aroused when he asked appellant for his identification card, and he denied knowing where it
was, although the officer observed it lying on his locker, in plain open view. Miller's locker
was later inventoried, and a bottle identical to that found in the restroom trash can was found
among his property. In five years, the officer had never seen a bottle of that type at the
correctional facility.
Although entry to and exit from the restroom was through a connecting door to one of the
facility's dormitories which housed numerous inmates, here, the totality of the circumstances,
including appellant's being alone in the restroom, his crouching and ducking, the
contemporaneous noise heard by the officer, appellant's hasty exit from the restroom, the
finding of the similar bottle unlike any other observed by the officer in his five years at the
institution, in our view, satisfies the requisite probable cause test delineated in NRS 171.206.
Cf. Glispy v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973) where, in a similar institutional
setting, we held that appellant's access to a common area alleged crime scene was not
exclusive and the evidence did not meet the probable cause test to warrant a trial on the basis
of constructive possession. Here, unlike Glispy, the magistrate was entitled to conclude that
Miller exercised dominion and control over the contraband.
dominion and control over the contraband. See Alsup v. State, 87 Nev. 500, 489 P.2d 679
(1971).
The evidence presented meets the degree of proof required for binding a defendant over
for trial. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). [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, 512 P.2d 774 (1973).
The order of the trial court is affirmed.
My colleague Batjer and I respectfully adhere to the result reached by the court's original
opinion, which was recalled on three signatures, by sua sponte order. That opinion declared:
Our opinion in Glispy is controlling here. As Justice Batjer and I said in LaPena v. State, 92
Nev. 1, 14, 544 P.2d 1187, 1195 (1976): [N]othing plus nothing plus nothing is nothing.
Assuming appellant made a noise throwing something into the restroom garbage can, we
do not find this at all inculpatory; for trash receptacles are provided so that unwanted items
may be thrown into them. As the majority opinion shows, the vitamin bottle was not alone
in the trash receptacle, but reposed there amidst other trash. Indeed, if appellant threw
something away, as the noise arguably suggested he did, this seems exculpatory rather than
inculpatory. The noisy act does not suggest the surreptitious hiding of a stash. Rather, it
suggests casual disposal of trash.
Nor can we see how any reasonable inference of guilt follows from the supposed fact that
appellant crouched near the trash can, following the noise just discussed. So far as we
know, one does not crouch either to throw or place something inside a trash can. In any event,
it certainly does not require a more pronounced crouch to throw marijuana into a trash can
than to dispose of other material in like manner. If appellant crouched, it seems to us a more
likely inference that he had been tying his shoes, as appellant's counsel suggested.
Next, we do not see how an inference of guilt can be based On appellant being alone in the
dormitory restroom. To us, the reasonable inference is that his fellow prisoners did not feel
nature's call when he did.
Again, we have difficulty seeing how guilt may be inferred from the fact that appellant
hurriedly exited down the hallway. As the majority note, that was the only way to get back
to appellant's dormitory. The supposed fact that appellant walked "hurriedly" does not
impress us as inculpatory.
walked hurriedly does not impress us as inculpatory. In the first place, to stigmatize his
walking as hurried strikes us to be as conclusory as saying he walked furtively. Still,
assuming arguendo that appellant hurried, what does this prove? The record does not indicate
the restroom is a pleasant place to loiter. For any number of plausible reasons which may be
imaginedone of which appellant undoubtedly will proffer, if forced to trialappellant may
have desired to hurry back to his dormitory.
Next, we do not understand how appellant's ownership of the marijuana is proved by
showing that, later in the day, he denied knowing his identification card's whereabouts.
Confined as he was, appellant obviously could not hope to conceal his identity from an
officer who had served at the facility for five years. At most, appellant's statement suggests he
was being surlybut hardly evidences possession of marijuana.
Finally, we have inspected the vitamin bottle which contained the marijuana in question.
It is a white plastic bottle with a white top. There may be millions of identical bottles. The
majority do not explain how, merely because the correction officer had not previously seen
one, ownership of such a bottle may be considered admissible and probative of guilt. This
court heretofore held owning a car of a particular make and color constitutes no inculpatory
evidence whatever that the owner committed a burglary in which such a car was used.
O'Donnell v. Sheriff, 91 Nev. 754, 542 P.2d 733 (1975). How, then, may it be said that
owning one plastic vitamin bottle proves criminal possession of another and different one?
1

We respectfully submit public money should not be expended on a prosecution which is
foredoomed to failure, through a clear lack of evidence.
____________________

1
Furthermore, from the record, it cannot be determined whether the bottle taken from appellant's locker is, in
fact, even similar to the one discovered in the trash can. The second bottle was neither admitted into evidence,
nor is it in the possession of the prison's evidence officer. If the second bottle still exists, the prosecution advises,
it may be possessed by a correctional officer who is no longer in state employ, having recently pleaded guilty to
making a false report to a public officer.
____________
95 Nev. 259, 259 (1979) Carter v. State
RAYMOND EUGENE CARTER, Appellant, v. THE
No. 10337
April 6, 1979 592 P.2d 955
Appeal from judgment and sentence upon jury verdict of guilty for selling a controlled
substance; First Judicial District Court, Carson City; Howard D. McKibben, Judge.
Defendant was convicted in the district court of selling a controlled substance and he
appealed. The Supreme Court held that defendant was intitled [entitled] to benefit of statutory
amendment permitting a trial court to impose a sentence of less than life imprisonment on
one convicted of sale of a controlled substance which became effective after the commission
of the crime but prior to sentencing.
Affirmed in part; reversed in part with instructions.
Public Defender, Carson City, for Appellant.
David B. Small, District Attorney, and William Maddox, Deputy District Attorney, Carson
Drugs and Narcotics.
Where penalty for sale of a controlled substance was reduced, after the commission of the offense but
before defendant was sentenced, so as to permit trial court to impose either life imprisonment or a term of
one to 20 years, defendant was entitled to the benefit of the statutory amendment. NRS 453.321,
453.341.
OPINION
Per Curiam:
The offense for which Raymond Eugene Carter stands convicted, selling a controlled
substance in violation of NRS 453.321, was committed in March 1977, his trial was
completed September 1, 1977, and he was sentenced on October 7, 1977, to life in prison
with the possibility of parole consideration after serving a minimum of seven years.
After commission of the crime but before sentencing, the penalty provisions of NRS
453.321 were amended so as to subject Carter to the possibility of life imprisonment or a
definite term of not less than one year nor more than twenty years, together with a
discretionary fine not to exceed $5000.
95 Nev. 259, 260 (1979) Carter v. State
together with a discretionary fine not to exceed $5000. The district judge was not advised by
counsel of the amendment granting authority to impose a less severe sentence than life
imprisonment.
1

Although it is the general rule that the proper penalty is that in effect at the time of the
commission of the offense, Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968), a statute
relating solely to drug convictions, NRS 453.341 mandates that penalties under NRS 453.321
to NRS 453.551 inclusive apply if less than under prior law. Sparkman v. State, 95 Nev. 76,
590 P.2d 151 (1979). Accordingly, the sentence imposed is set aside and this case is
remanded to the district court to resentence ln accordance with applicable law. Other assigned
errors are without merit.
____________________

1
The Nevada State Public Defender was appointed to represent Carter on appeal. Privately retained counsel
represented him through trial and sentencing.
____________
95 Nev. 260, 260 (1979) Biffath v. Warden
RONALD BIFFATH, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 10973
April 6, 1979 593 P.2d 51
Appeal from order denying a post-conviction petition for a writ of habeas corpus, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant, under sentence for armed robbery, filed post-conviction petition for writ of
habeas corpus. The district court denied relief, and appeal was taken. The Supreme Court
held that: (1) for purpose of computing good time credits, any enhanced penalty imposed for
use of a firearm in the commission of a crime should be combined with the term of
imprisonment imposed for the primary offense, and (2) where defendant had been sentenced
to a nine-year term for robbery and to an additional consecutive nine-year term for use of a
firearm in the robbery, the term of defendant's sentence for purpose of good time credits was
18 years.
Reversed and remanded, with instructions.
Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
1. Prisons.
Under the statute which provides that credits on a sentence are to be computed based on the term of the
sentence and that the credits shall be deducted from the maximum term imposed by the sentence,
expressions term of the sentence and term imposed by the sentence convey the concept of one
continuous term of imprisonment and, therefore, an enhanced penalty imposed for use of a firearm in the
commission of a crime should be combined with the term of imprisonment imposed for the primary offense
for purpose of computing credits. NRS 193. 165, 209.443.
2. Criminal Law.
The statute which provides in pertinent part that any person who uses a firearm or other deadly weapon in
the commission of a crime shall be punished by imprisonment for a term equal to and in addition to the
term of imprisonment prescribed for the primary crime does not prescribe two penalties for one offense in
contravention of fundamental double jeopardy guarantees. U.S.C.A.Const. Amend. 5; NRS 193.165,
193.165, subd. 1.
3. Prisons.
Where defendant was sentenced to a nine-year term for armed robbery and to an additional, consecutive
nine-year term for having used a firearm in the commission of the robbery, the term of the sentence for
purposes of the statute relating to good time credits was 18 years, NRS 193.165, 209.443.
OPINION
Per Curiam:
Appellant pleaded guilty to armed robbery, a felony under NRS 200.380. He was
subsequently sentenced to a nine-year term in the Nevada State Prison for the robbery and to
an additional, consecutive nine-year term for having used a firearm in the commission of the
crime. NRS 193.165.
1

Appellant, presently serving the first of his two terms, petitioned the district court for
post-conviction relief contending that his two consecutive nine-year terms should be totaled
for the purpose of awarding credits on his sentence. See NRS 209.++3.2 The district court
denied his petition and this appeal followed.
____________________

1
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.
offense, whose imposition is contingent upon the finding of the prescribed fact. (Emphasis added.)
209.443.
2
The district court denied his petition and this appeal followed.
Courts considering this issue have uniformly concluded the award of credits is not a
federal constitutional right, but rather, is purely a statutory privilege extended to prisoners by
individual state legislatures and may be awarded only in the manner provided by statute. See
Wolff v. McDonnell, 418 U.S. 539 (1974); Woodring v. Whyte, 242 S.E.2d 238 (W.Va.
1978); Burns v. Page, 446 P.2d 622 (Okla.Crim.App. 1968).
Our statute, NRS 209.443, provides that credits shall be computed based upon the term of
the sentence, and shall be deducted from the maximum term imposed by the sentence.
[Headnote 1]
We believe, and so hold, that the expressions term of the sentence and term imposed by
the sentence convey the concept of one continuous term of imprisonment and, therefore, the
enhanced penalty imposed pursuant to NRS 193.165 should be combined with the term of
imprisonment imposed for the primary offense for purposes of computing credits pursuant
to NRS 209.443. Cf. Ex Parte Albori, 21 P.2d 423 {Cal.
____________________

2
1. Every offender who is sentenced to an institution of the department after June 30, 1969, who has no
serious infraction of the regulations of the institution, or laws of the state, recorded against him, and who
performs in a faithful, orderly and peaceable manner the duties assigned to him, shall be allowed for the period
he is actually incarcerated under sentence a deduction of 2 months for each of the first 2 years, 4 months for each
of the next 2 years, and 5 months for each of the remaining years of the term, and pro rata for any part of a year
where the actual term served is for more or less than a year. Credit shall be recorded on a monthly basis as
earned for actual time served.
2. The mode of reckoning credits shall be as shown in the following table:
SCHEDULE OF CREDITS
Number of Good time Total good
years served. granted. time made.
1 year......................................................2 months 2 months
2 years....................................................2 months 4 months
3 years....................................................4 months 8 months
4 years....................................................4 months 1 year
5 years....................................................5 months 1 year, 5 months
6 years....................................................5 months 1 year, 10 months
7 years....................................................5 months 2 years, 3 months
and so on through as many years as may be the term of the sentence. The total good time made' shall be
deducted from the maximum term imposed by the sentence and shall apply to parole eligibility as provided by
law. (Emphasis added.)
for the primary offense for purposes of computing credits pursuant to NRS 209.443. Cf. Ex
Parte Albori, 21 P.2d 423 (Cal. 1933); St. Peter v. Rhay, 352 P.2d 806 (Wash. 1960). To hold
otherwise would frustrate the purpose of the statute.
[Headnote 2]
This result is consistent with our holding in Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d
1396 (1975), where we held that NRS 193.165 does not prescribe two penalties for one
offense, but rather, provides an additional penalty for the primary offense. Id. at 762, 542
P.2d at 1400.
3
NRS 193.165(2).
[Headnote 3]
Thus, in appellant's case, the term of the sentence, for purposes of NRS 209.443, would be
eighteen (18) years, representing the total of (1) the nine-year term imposed for commission
of the robbery and (2) the nine-year term imposed for having used a firearm in the
commission of the crime.
The district court order is reversed and the case remanded with instructions to grant the
requested relief.
____________________

3
Although NRS 193.165(1) purports to prescribe a separate sentence for use of a firearm in the commission
of a crime (see note 1, supra), if literally construed, such provision would contravene fundamental double
jeopardy guarantees against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711,
717 (1969); Merna v. State, 95 Nev. 144, 591 P.2d 252, (1979).
____________
95 Nev. 263, 263 (1979) Frick v. Nevada Indus. Comm'n
ERNA FRICK, Appellant, v. NEVADA INDUSTRIAL
COMMISSION, Respondent.
No. 10408
April 6, 1979 592 P.2d 948
Appeal from order affirming decision of Nevada Industrial Commission; Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
Injured worker appealed from judgment of the district court which affirmed decision of the
Nevada Industrial Commission. The Supreme Court held that worker who was injured on the
job on August 18, 1970, and suffered permanent and total disability was entitled to benefits in
the amount of 65 percent of $320 per month and was not entitled to increased benefits under
subsequently amended statute.
Affirmed.
[Rehearing denied June 28, 1979] Stanley W.
95 Nev. 263, 264 (1979) Frick v. Nevada Indus. Comm'n
Stanley W. Pierce, of Las Vegas, for Appellant.
Frank A. King, of Las Vegas, for Respondent.
Workers' Compensation.
Worker who was injured on the job on August 18, 1970, and suffered permanent and total disability was
entitled to benefits only in the amount of 65 percent of $320 per month and was not entitled to the
increased benefits of a subsequent statutory amendment. NRS 616.625, 616.580.
OPINION
Per Curiam:
Erna Frick was injured on the job on August 18, 1970. She earned $747.45 per month. The
Commission declared her to be permanently and totally disabled on October 1, 1974, and has
paid her permanent total disability benefits since that date.
NRS 616.625 fixes benefits as of the date of injury. On that date NRS 616.580 provided
that in cases of permanent total disability, compensation shall be 65 percent of the average
monthly wage and that any excess of wages over $320 per month shall not be taken into
account in computing such compensation. The Commission has paid her $208.80 per month,
that is, 65 percent of $320 per month, pursuant to NRS 616.580 as it existed on the date of
injury. She receives an additional $41.60 per month under NRS 616.626.
Contrary to appellant's contention, the current version of NRS 616.580 does not apply. In
the absence of a legislative intent to give an amendment retroactive effect, a compensation act
increasing benefits is not retroactive. Virden v. Smith, 46 Nev. 208, 210 P. 129 (1922). There
is no suggestion of retroactivity in the statute we are dealing with.
Affirmed.
____________
95 Nev. 265, 265 (1979) Reid v. Scheffler
HARRY REID, Administrator of the Estate of LYNN E. ANDRIST, Deceased, Appellant, v.
ROBERTA SCHEFFLER, CAROL TANNER, BOBBY PICKETT and CHARLENE M.
PICKETT, Respondents.
No. 9894
April 6, 1979 592 P.2d 948
Appeal from order reopening estate, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
The Supreme Court, Manoukian, J., held that trial judge did not abuse his discretion in
reopening estate to allow claims for personal injuries arising out of automobile accident in
which decedent was killed where recovery sought was limited to automobile liability
insurance policy covering car decedent was driving at time of accident, insurance policy was
not subject to administration in probate proceedings and administrator was apparently
unaware of existence of coverage and failure to file creditor's claims in probate proceedings
was not the result of lack of diligence.
Affirmed.
Reid & Alverson, Las Vegas, for Appellant.
Galatz, Earl & Biggar, Las Vegas, and Albright & McGimsey, Las Vegas, for
Respondents.
Executors and Administrators.
Trial judge did not abuse his discretion in reopening estate to allow claims for personal injuries arising
out of automobile accident in which decedent was killed where recovery sought was limited to automobile
liability insurance policy covering car decedent was driving at time of accident, insurance policy was not
subject to administration in probate proceedings and administrator was apparently unaware of existence of
coverage and failure to file creditor's claims in probate proceedings was not the result of lack of diligence.
NRS 151.240.
OPINION
This is an appeal from an order of the district court reopening the decedent's estate and
granting respondents leave to file claims for personal injuries arising out of a 1975
automobile accident in which Andrist was killed. The claims were not barred by the statute of
limitations, and the estate was reopened only to the extent that automobile liability
insurance coverage was available to satisfy claims against the decedent.
reopened only to the extent that automobile liability insurance coverage was available to
satisfy claims against the decedent. In fact, the trial judge specifically ordered that there could
be no recovery from any other assets of the estate.
The object of respondents' motion to reopen the estate was to secure a defendant upon
whom process could be served. Kotecki v. Augusztiny, 87 Nev. 393, 482 P.2d 925 (1971);
Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868 (1969). The recovery sought was limited to the
automobile liability insurance policy covering the car decedent was driving at the time of the
accident. The insurance policy was not subject to administration in the probate proceedings
and the administrator was apparently unaware of the existence of the coverage. Insofar as the
insurance policy provided for indemnity against judgments and protected other assets of the
decedent, it was a unique asset. Schloegl v. Nardi, 234 N.E.2d 558 (Ill.App. 1968); In re
Estate of McDonald, 239 N.E.2d 277 (Ohio Prob. 1966).
NRS 151.240 provides the trial judge with authority to issue subsequent letters of
administration should it become necessary or proper from any cause. Respondent's failure
to file creditor's claims in the probate proceedings was not the result of a lack of diligence.
Gardner Hotel Sup. v. Estate of Clark, 83 Nev. 388, 432 P.2d 495 (1967). Indeed, they
received no notice of the opening or closing of the estate. The asset they sought to reach was
not included in the decedent's probate estate and was therefore not subjected to administration
and distribution. Under the circumstances, the trial judge acted within the permissible bounds
of his discretion in granting respondent's motion to reopen. See Ford v. Banks, 222 P.2d 744
(Okl. 1950). Accordingly, the order is affirmed.
Respondents filed a motion to dismiss the appeal on the grounds that it was not timely
filed. However, because notice of entry of judgment was not filed with the clerk of the district
court, and is not included in the record on appeal, we are unable to determine when the time
within which to appeal commenced to run. Accordingly, we deny their motion. NRCP 5(d);
NRAP 4(a).
Affirmed.
With all due respect, however, I do not agree that respondent's motion to dismiss should be
denied because notice of entry of judgment was not filed with the clerk of the district court,
and is not included in the record on appeal."
court, and is not included in the record on appeal. This suggests the record is inadequate to
decide the issue raised, which is whether informal notice of entry of judgment, by letter, is
legally sufficient.
1
In my view, formal notice is required.
2
We can and should resolve this
issue.
Looking to the merits, I note that, under our established practice, a personal injury action
to reach policy proceeds must name the tortfeasor or the tortfeasor's personal representative as
the party defendantrather than proceeding as a direct action against the insurance carrier,
commenced by the injured party as a creditor beneficiary. This is purely a procedural
concession to insurance companies, to lessen the prospect of jury prejudice.
[W]here the reason for a rule stops, there stops the rule. Ewing v. Sargent, 87 Nev. 74,
80, 482 P.2d 819, 823 (1971). There is, of course, no reason whatever for this court to allow
insurance companies to defeat coverage that has been paid for, through technical application
of our probate statutes. Where insurance proceeds have not been exhausted by prior suits,
nothing but the statute of limitations should bar recovery upon a liability insurance policy.
Thus, I respectfully decline to join in language suggesting that, in some future case, lack of
diligence in following probate code proceduresor listing the policy as an asset in the
probate estatemight preclude an action brought to reach policy proceeds.
____________________

1
Respondents contend, and appellant concedes, that an informal, letter notice was given.

2
[A] regular, formal written notice must be given. . . . This is much the best rule. D'Errico v. D'Errico, 51
Nev. 76, 81, 269 P.26, 27 (1928).
____________
95 Nev. 267, 267 (1979) Gaessler v. Sheriff
JOHN GAESSLER, Appellant, v. SHERIFF, CARSON
CITY, NEVADA, Respondent.
No. 11568
April 9, 1979 592 P.2d 955
Appeal from order denying pretrial petition for a writ of habeas corpus, First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Defendant ordered to stand trial for engaging in business or acting without a license filed
petition for writ of habeas corpus, contending that statutes governing licensing of real estate
brokers, as applied to his business activities, were unconstitutional. The district court denied
defendant's petition, and defendant appealed.
defendant appealed. The Supreme Court held that: (1) defendant's solicitation and receipt of
advertising fee for listing a business for sale was type of conduct which real estate licensing
statutes were designed to regulate and, therefore, defendant was required to have a real estate
license; (2) statute defining advance fee for purposes of statutory definition of real estate
broker and statute prohibiting acting as a real estate broker without a license did not violate
equal protection due to its exemption for newspapers of general circulation, and (3) statutes
governing licensing of real estate brokers did not violate due process clause of Constitution.
Affirmed.
Chubb & Silverman, Sparks, for Appellant.
Richard H. Bryan, Attorney General, Carson City; David B. Small, District Attorney, and
William A. Maddox, Deputy District Attorney, Carson City, for Respondent.
1. Brokers.
Defendant's solicitation and receipt of advertising fee for listing a business for sale was type of conduct
which real estate licensing statutes were designed to regulate and, therefore, defendant was required to have
a real estate license. NRS 645.002, 645.030, 645.035, 645.230.
2. Brokers.
Manifest purpose of Legislature in enacting statute defining advance fee for purposes of statutory
definition of real estate broker and statute prohibiting acting as a real estate broker without a license was to
permit newspapers, publications that merely accept advance fees for advertising space, to be exempt from
real estate licensing requirements. NRS 645.002.
3. Brokers; Constitutional Law.
Statute defining advance fee for purposes of statutory definition of real estate broker and statute
prohibiting acting as a real estate broker without a license did not violate equal protection due to its
exemption for newspapers of general circulation, since statutory scheme imposed licensing requirements
when advertiser's activities went beyond the letter and purpose of the exemption, and it was those activities
beyond mere advertising which licensing laws were calculated to minimize; thus, statutory licensing
scheme was rationally related to legitimate state interest. NRS 645.002, 645.030, 645.035, 645.230;
U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
Statutes relating to licensing of real estate brokers did not violate due process clause of Constitution.
NRS 645.002, 645.030, 645.035, 645.230, 645.850; U.S.C.A.Const. Amend. 14; Const. art. 1,
8.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, John Gaessler was ordered to stand trial
for engaging in business or acting without a license, a gross misdemeanor pursuant to NRS
645.230 and NRS 645.S50.
without a license, a gross misdemeanor pursuant to NRS 645.230 and NRS 645.850. Gaessler
subsequently petitioned the district court for a writ of habeas corpus, contending NRS
645.002, NRS 645.030, NRS 645.035 and NRS 645.230, as applied to his business activities,
violate the due process and equal protection clauses of the Fourteenth Amendment of the
United States Constitution and Art. I, 8 of the Nevada Constitution.
1
Habeas was denied
and Gaessler has appealed.
The evidence presented at the preliminary examination indicates that on October 5, 1978,
Gaessler, who was not licensed in Nevada as either a real estate broker or broker-salesman,
met with Gerald A. Wilcox, owner of the Top Shop, a formica and cabinet business located
in Carson City. Gaessler represented that he was employed by Huff & Sons, also known as
Interstate Business Marketing, Inc. (Interstate), of Pueblo, Colorado, and offered to help
Wilcox sell his business. Wilcox accepted Gaessler's offer and signed an instrument
denominated advertising agreement which required Wilcox to pay Interstate an "initial
deposit" of $1,600.00.2 Wilcox subsequently contacted the Nevada Real Estate Division
regarding Gaessler's activities and, shortly thereafter, a complaint was issued.
____________________

1
As used in this chapter, advance fee' means a fee contracted for, claimed demanded, charged, received or
collected for an advance fee listing, advertisement or offer to sell or lease property, issued for the purpose of
promoting the sale or lease of business opportunities or real estate or for referral to business opportunity or real
estate brokers or salesmen or both, prior to the last printing or other last issuance thereof, other than by a
newspaper of general circulation.
1. Within the meaning of this chapter, a real estate broker' is any person, copartnership, association or
corporation:
. . . .
(b) Who engages in or offers to engage in the business of claiming, demanding, charging, receiving,
collecting or contracting for the collection of an advance fee in connection with any employment undertaken to
promote the sale or lease of business opportunities or real estate by advance fee listing advertising or other
offerings to sell, lease, exchange or rent property.
1. Within the meaning of this chapter, a real estate broker-salesman' is any person who holds a real estate
broker's license, or who has passed the real estate broker's examination pursuant to the provisions of NRS
645.475, but who, as an employee or as an independent contractor, for compensation or otherwise, is associated
with a licensed real estate broker in the capacity of a salesman, to do or to deal in any act, acts or transactions
included within the definition of a real estate broker in NRS 645.030.
1. After June 1, 1947, it shall be unlawful for any person, copartnership, association or corporation to
engage in the business of, act in the capacity of, advertise or assume to act as, a real estate broker or real estate
salesman within the State of Nevada without first obtaining a license as a real estate broker or real estate
salesman from the real estate division as provided for in this chapter.
Interstate an initial deposit of $1,600.00.
2
Wilcox subsequently contacted the Nevada Real
Estate Division regarding Gaessler's activities and, shortly thereafter, a complaint was issued.
[Headnote 1]
1. Gaessler first contends that in listing the business he was merely acting as an advertiser
rather than as a real estate broker or salesman and, therefore, he was not required to obtain a
license. We do not agree.
The recited conduct is more akin to that of a real estate broker. Gaessler's solicitation and
receipt of an advertising fee for listing Wilcox's business for sale is the type of conduct
which our real estate licensing statutes were designed to regulate and, therefore, Gaessler was
required to have a real estate license.
[Headnotes 2, 3]
2. Gaessler next contends that NRS 645.002 violates the equal protection clause of the
Constitution because it allows newspapers of general circulation to receive fees for listing
offers to sell without requiring them to obtain a real estate license, but denies this same
privilege to Interstate. Although the statute may discriminate in favor of newspapers of
general circulation, such discrimination will not violate the equal protection clause if it bears
a rational relation to the purpose of the legislation. Talk of the Town v. City of Las Vegas, 92
Nev. 466, 553 P.2d 959 (1976). Here, the legislature's manifest purpose was to permit
newspapers, publications that merely accept advance fees for advertising space, to be exempt
from the real estate licensing requirements.
However, where, as here, the advertiser not only accepts an advance fee for the listing, but
also has a pecuniary interest in the sale of the property, the advertiser's activities are beyond
the letter and purpose of the exemption and the licensing requirements may be imposed.
Indeed, it is just such activities, with their concomitant opportunities for abuse which the
licensing laws are calculated to minimize. Whitaker v. Arizona Real Estate Board, 548 P.2d
841, 844 (Ariz.App. 1976). Accordingly, we conclude that the statutory licensing scheme is
rationally related to a legitimate state interest and is not violative of equal protection
guarantees.
____________________

2
The agreement also provided that if the business were sold as a result of Interstate's services, the $1,600.00
deposit would be refunded to Wilcox and be would be required to pay Interstate $3,200.00. If the business were
not sold, or alternatively, if it were sold to a person not solicited by Interstate, Wilcox would forfeit his
$1,600.00 deposit.
[Headnote 4]
Gaessler's final contention is that NRS 645.002, NRS 645.030, NRS 645.035 and NRS
645.230 violate the due process clause of the Constitution. This contention is without merit
and is summarily rejected.
Affirmed.
____________
95 Nev. 271, 271 (1979) Gardner v. American Ins. Co.
JAMES H. GARDNER, Appellant, v. THE AMERICAN
INSURANCE COMPANY, Respondent.
No. 9942
April 11, 1979 593 P.2d 465
Appeal from summary judgment of dismissal. Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Injured insured brought action on automobile policy against his insurer to recover amount
of noneconomic detriment he had been adjudged entitled to in excess of his share of personal
injury liability coverage of tort-feasor driver. The district court entered summary judgment in
favor of the insurer, and the insured appealed. The Supreme Court held that under statute
governing obligation of automobile insurers to provide uninsured motorist protection, injured
insured was not entitled to recover, pursuant to uninsured motorist provision, from his insurer
amount of noneconomic detriment he had been adjudged entitled to in excess of his share of
personal injury liability coverage of tort-feasor driver's insurance where the insured was
injured by motorist who had in effect policy which fully complied with statutory minimum
personal injury liability requirements, and tort-feasor driver's insurer made available full
amount required.
Affirmed.
Fray and Benson, Reno, for Appellant.
Leggett & Hamilton, Reno, for Respondent.
1. Insurance.
Automobile insurance company may not limit uninsured motorist coverage if it contravenes public policy
reflected in uninsured motorist statute. NRS 690B.020, subds. 1, 3.
2. Insurance.
Under statute governing obligation of automobile insurers to provide motorist protection, injured insured
was not entitled to uninsured recover, pursuant to uninsured motorist provision, from his insurer amount of
noneconomic detriment he had been adjudged entitled to in excess of his share of
personal injury liability coverage of tort-feasor driver's insurance where the insured
was injured by motorist who had in effect policy which fully complied with statutory
minimum personal injury liability requirements, and tort-feasor driver's insurer made
available full amount required. NRS 4S5.010 et seq., 690B.020, subds.
noneconomic detriment he had been adjudged entitled to in excess of his share of personal injury liability
coverage of tort-feasor driver's insurance where the insured was injured by motorist who had in effect
policy which fully complied with statutory minimum personal injury liability requirements, and tort-feasor
driver's insurer made available full amount required. NRS 485.010 et seq., 690B.020, subds. 1, 3.
OPINION
Per Curiam:
This is an appeal by an insured, appellant James H. Gardner, from a summary judgment in
favor of his insurer, The American Insurance Company (American), dismissing his
complaint. Gardner seeks recovery from American, pursuant to the uninsured motorist
provision of his insurance policy, on the ground that his recovery from the statutory per
accident limit made available by a tortfeasor's insurer, when divided among five claimants
injured in the same accident, will be inadequate to compensate him for damages he is entitled
to recover from the tortfeasor.
THE FACTS
Gardner was injured on February 22, 1975, when his automobile was struck by a vehicle
operated by Ian McFarlane. Three passengers in McFarlane's car were also injured, and a
fourth was killed. Gardner subsequently collected benefits pursuant to the personal injury
(no-fault) provisions of his insurance policy with American. He has, in addition, been
adjudged entitled to recover $13,000 from McFarlane, as noneconomic detriment. See NRS
698.120.
1
Gardner's policy with American provides that, to a limit of $15,000 per person or
$30,000 per accident, American will pay all sums which the insured or his legal
representative shall be legally entitled to recover as [personal injury] damages from the owner
or operator of an uninsured automobile, which is further defined as one with respect to
which there is in at least the amounts specified by the financial responsibility law of the state
in which the insured automobile is principally garaged, no bodily injury liability bond or
insurance policy applicable at the time of the accident. . . . McFarlane was insured, at the
time of the accident, for personal injury liability in the minimum amounts required by
Nevada's financial responsibility statute, i.e.,
____________________

1
Noneconomic detriment' means pain, suffering, inconvenience, physical impairment and other
nonpecuniary damage recoverable under the tort law of this state.
Nevada's financial responsibility statute, i.e., $15,000 per person or $30,000 per accident.
2
At the time this appeal was filed, McFarlane's insurer had filed an interpleader action, and
had placed $30,000 on deposit with the court, for division among Gardner and the four other
claimants.
3
It is Gardner's position that because he will be unable to collect, as his share of
the $30,000 available, the full $13,000 to which he is entitled, the difference should be made
up by American, under the uninsured motorist provision of his policy.
THE ISSUE
[Headnote 1]
This case turns upon a question of statutory interpretation. We have previously held that
The expressed public policy of Nevada is that an insurance company may not issue an
automobile or motor vehicle liability policy which does not protect the insured from owners
or operators of uninsured motor vehicles, unless the named insured rejects such coverage.
State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 481, 488 P.2d 1151 (1971). See NRS
690B.020(1). Further, an insurance company may not limit such protection if it contravenes
the public policy reflected in Nevada's uninsured motorist statute. Allstate Ins. Co. v.
Maglish, 94 Nev. 699, 586 P.2d 313 (1978). We cannot agree, however, with appellant's
contention that the public policy of this state, as expressed in the uninsured motorist statute,
requires appellant's insurer to provide him with uninsured motor vehicle coverage when, as
here, he is injured by a motorist who was in fact insured to the statutory minimum required by
Nevada's financial responsibility laws.
Unlike the uninsured motorist statutes of many other states, Nevada's statutory scheme
contains a comprehensive definition of an uninsured motor vehicle.
4
The uninsured
motorist statute specifically provides, for example, that a vehicle which is insured, but to
limits less than required by the financial responsibility laws of this state {NRS chapter
4S5), will to that extent be deemed "uninsured".
____________________

2
NRS 485.210(1) requires a policy or bond to a limit, exclusive of interest and costs, of not less than
$15,000 because of bodily injury to or death of one person in any one accident and, subject to the limit for one
person,
to a limit of not less than $30,000 because of bodily injury to or death of two or more persons in any one
accident. . . .

3
It has subsequently been determined that Gardner's share will be approximately $3,300.

4
For the purposes of this section the term uninsured motor vehicle' means a motor vehicle:
(a) With respect to which there is not available at the department of motor vehicles evidence of financial
responsibility as required by chapter 485 of NRS;
(b) With respect to the ownership, maintenance or use of which there is no bodily injury liability insurance or
bond applicable at the time of the accident,
statute specifically provides, for example, that a vehicle which is insured, but to limits less
than required by the financial responsibility laws of this state (NRS chapter 485), will to that
extent be deemed uninsured. NRS 690B.020(3)(b). The statute further provides for those
instances in which a policy is in effect, but the insurer denies coverage or is insolvent. NRS
690B.020(3)(c).
[Headnote 2]
None of these circumstances is presented here. Appellant was injured by a motorist who
had in effect, at the time of the accident, a policy which fully complied with NRS chapter
485. The tortfeasor's insurer made available the full amount required. We are compelled, by
the plain terms of the statute, to find that the legislature did not intend to preclude insurers
from contracting, as respondent did in this case, to deny coverage in situations where their
insureds cannot collect from a tortfeasor's insurer the full compensation to which they are
entitled, solely because of the number of claimants seeking recovery from a fund which meets
the statutory limit.
In so doing, we note that we are in accord with the majority of jurisdictions which have
been called upon to interpret the applicability of uninsured motorist statutes in similar
multiple-claimant situations. E.g., Chafin v. Aetna Ins. Co., 550 F.2d 575 (10th Cir. 1976)
(applying New Mexico law); Criterion Ins. Co. v. Anderson, 347 So.2d 384 (Ala. 1977);
Travelers Insurance Company v. Bouzer, 114 Cal.Rptr. 651 (Cal.App. 1974); Simonette v.
Great American Insurance Company, 338 A.2d 453 (Conn. 1973); Golphin v. Home
Indemnity Company, 284 So.2d 442 (Fla.App. 1973); Brake v. MFA Mutual Insurance
Company, 525 S.W.2d 109 (Mo.App.), cert. denied, 423 U.S. 894 (1975); Gorton v. Reliance
Ins. Co., 391 A.2d 1219 (N.J.
____________________
or, to the extent of such deficiency, any bodily injury liability insurance or bond in force is less than the amount
required by NRS 485.210;
(c) With respect to the ownership, maintenance or use of which the company writing any applicable bodily
injury liability insurance or bond denies coverage or is insolvent;
(d) Used without the permission of its owner if there is no bodily injury liability insurance or bond applicable
to the operator; or
(e) The owner or operator of which is unknown or after reasonable diligence cannot be found if:
(1) The bodily injury or death has resulted from physical contact of such automobile with the named
insured or the person claiming under him or with an automobile which the named insured or such person is
occupying; and
(2) The named insured or someone on his behalf has reported the accident within the time required by
NRS 484.223 to 484.227, inclusive, to the police department of the city where it occurred, or if it occurred in an
unincorporated area, to the sheriff of the county or to the Nevada highway patrol.
1978); Shelby Mutual Insurance Co. v. Smith, 341 N.E.2d 597 (Ohio 1976); Simmons v.
Hartford Accident & Indemnity Company, 543 P.2d 1384 (Okla. 1975); Lund v. Mission
Insurance Company, 528 P.2d 78 (Or. 1974); Kemp v. Fidelity & Casualty Co. of New York,
504 S.W.2d 633 (Tex.Civ.App. 1973); Tudor v. Allstate Ins. Co., 224 S.E.2d 156 (Va. 1976);
Strunk v. State Farm Mut. Auto. Ins. Co., 580 P.2d 622 (Wash. 1978).
Appellant has asked this court to follow the minority of jurisdictions which have held that
their uninsured motorist statutes require coverage by a claimant's own insurer whenever the
full per person minimum required by their state's financial responsibility laws is unavailable
from the tortfeasor's insurer because of the number of claimants seeking recovery. E.g., Porter
v. Empire Fire and Marine Insurance Company, 475 P.2d 258 (Ariz. 1970); Palisbo v.
Hawaiian Insurance & Guaranty Co., Ltd., 547 P.2d 1350 (Hawaii 1976); American Mut. Ins.
Co. v. Commercial U. Ins. Co., 357 A.2d 873 (N.H. 1976). We note that these jurisdictions
are among those in which the legislature has left the task of defining an uninsured motorist
or motor vehicle to the courts. Such is not the case here. The legislature of this state has
provided us with a definition of the term uninsured motor vehicle, without reaching the
situation in which appellant has found himself, and has left no room for this court to find
otherwise.
5

In conclusion, we note that the plaintiff in the case before us did not elect to pay an
additional premium for UM coverage beyond the statutory minimum, pursuant to the option
mandated by NRS 690B.020(2).
6
Had plaintiff done so, this case would present an entirely
different issue, requiring us to consider both the legislative intent in regard to that specific
section, and this court's determinations of public policy as expressed in cases like Allstate Ins.
Co. v. Maglish, 94 Nev. 699, 586 P.2d 313 (1978).
The judgment is affirmed.
____________________

5
We note that the anomaly presented by these circumstances, i.e., that appellant would have been entitled to
recovery from his insurer if McFarlane had had no insurance at all, results from the legislative policy of tying the
uninsured motorist statute directly to the financial responsibility law, which provides for a per accident limit.
Accordingly, it is in the legislature, and not before this court, that redress must be sought.

6
NRS 690B.020(2) provides: The amount of coverage to be provided shall be not less than the minimum
limits for bodily injury liability insurance provided for under the Motor Vehicle Safety Responsibility Act
(chapter 485 of NRS), but may be in an amount not to exceed the bodily injury coverage purchased by the
policyholder. (Emphasis added.)
____________
95 Nev. 276, 276 (1979) Luciano v. Marshall
ANTHONY P. LUCIANO, Petitioner, v. HONORABLE GEORGE E. MARSHALL, Senior
Judge of the Eighth Judicial District Court of the State of Nevada, in and for the County of
Clark; WILLIAM C. DIERCKS and VIRGINIA DIERCKS, His Wife; IAMA
CORPORATION, a Nevada Corporation; RALPH LAMB, Sheriff of Clark County, Nevada,
Respondents.
No. 10902
April 11, 1979 593 P.2d 751
Original proceeding on application for writ of mandate.
Petitioner brought original proceeding to obtain a writ of mandate directing the Eighth
Judicial District Court to vacate a money judgment. Petitioner also sought an order directing a
sheriff to return certain personal property that had been seized under a search order. The
Supreme Court held that: (1) petitioner was not entitled to an extraordinary writ of mandate
vacating the money judgment, and (2) where petitioner's property had been seized under a
search order that was not authorized by statute, the seizure violated petitioner's constitutional
right to be free from unreasonable searches and seizures and petitioner was entitled to an
order requiring the return of his property.
Granted in part, denied in part.
Clark and Zubel, Las Vegas, for Petitioner.
Albert G. Marquis, Las Vegas, for Respondents.
1. Mandamus.
Where order which became predicate for money judgment on counterclaim was drafted by counsel for
defendant counter-claimants and approved by plaintiff's counsel who initialed the order and where trial
court had jurisdiction to enter the judgment, plaintiff was not entitled to extraordinary writ of mandate
vacating the judgment.
2. Execution.
In view of fact that statutory procedures supplementary to execution nowhere authorize issuance of a
search order to enforce a money judgment and that search warrants may be issued only to obtain the fruits,
instrumentalities and evidence of criminal activity, judgment debtor whose property was seized by sheriff
pursuant to a search order entered in pursuance of execution of a civil money judgment was entitled to
return of property seized under the order. NRS 21.050, 21.270-21.340, 179.035, 179.085, subd.
1(c); Const. art. 1, 18; U.S.C.A.Const. Amend 4.
Even if there were a statutory basis for issuing a search order to execute a civil money judgment, search
of the judgment debtor's residence pursuant to such order and wholesale seizure of judgment debtor's
personal property violated constitutional prohibitions against unreasonable searches and seizures. Const.
art. 1, 18, U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
In this original proceeding, petitioner, Anthony P. Luciano, seeks a writ of mandate
directing the respondent Judge to vacate a money judgment
1
entered below, and to permit
petitioner to proceed to trial on an amended complaint.
Petitioner also seeks an order directing respondent sheriff to return certain personal
property seized pursuant to a search order entered in pursuance of execution of the civil
judgment.
Petitioner Anthony P. Luciano commenced this action against defendants William C. and
Virginia Diercks and IAMA Corporation (hereafter Diercks), seeking specific performance,
or, alternatively, reformation of a sub-lease agreement claiming that the Diercks had failed to
secure their landlord's consent to the full term contemplated by the agreement.
The Diercks filed a counterclaim for restitution of the premises predicated upon alleged
breaches of the sub-lease agreement. The case came on for trial, at which time the Diercks
produced their landlord's written stipulation extending the full term of the lease as sought in
the complaint. Luciano's then counsel of record moved for a continuance claiming surprise.
2

[Headnote 1]
Then followed a conference between the court and counsel, culminating in the entry of an
order dated May 5, 1978, drafted by counsel for the Diercks and approved by Luciano's
counsel who initialed the order. This order became the predicate for the very judgment,
entered May 26, 1978, which petitioner now seeks to vacate by this extraordinary writ
proceeding.
____________________

1
Petitioner has abandoned his request for relief from that part of the judgment awarding possession of the
property to respondents Diercks.

2
MR. KEEFER: Your Honor, in the light of the situation developed, we claim surprise as a result of this
stipulation. We're going to move the Court for a continuance of this matter for the purpose of moving to modify
the complaint to include a cause for rescission.
And that's based upon these two grounds: First, surprise as a result of the stipulation and the order granting the
term of the lease that was prayed for in the first cause of action; second, upon the ground that the equipment is
not available that was sold with the lease.
seeks to vacate by this extraordinary writ proceeding. Clearly, the court below had
jurisdiction to enter the judgment, and that part of the instant petition seeking relief therefrom
is manifestly meritless.
[Headnote 2]
As regards the seizing of petitioner's property, we reach a different conclusion. The
procedure was not authorized by statute, and it constituted a violation of petitioner's
constitutional right to be free from unreasonable search and seizure.
NRS 21.050 provides that a money judgment shall be enforced by execution. Statutory
procedures supplementary to execution are spelled out at NRS 21.270-21.340, and nowhere
do they authorize such an order. The statutory grounds upon which a search warrant may be
issued are set forth in NRS 179.035, and are limited to searches for the fruits,
instrumentalities and evidence of criminal activity. Petitioner was clearly entitled to return of
his property under the statute, and his motion therefor should have been granted. NRS
179.085(1)(c).
[Headnote 3]
Even could a statutory basis for the procedure have been found, the search of petitioner's
residence, and wholesale seizure of his personal property therein, in aid of civil process,
would have been precluded by the constitutional prohibitions against unreasonable searches
and seizures found in the United States and Nevada constitutions. U.S. Const., Amend. IV.
Nev. Const., Art. 1, 18. As has been recognized, Allen v. Trueman, 110 P.2d 355, 360
(Utah 1941):
Since the purpose of the interdiction against unreasonable searches and seizures appears
to be primarily the protection of the individual against oppressive invasion of his
personal rights, it has long been recognized that the use of such warrants should be
carefully limited and controlled to attain the objects sought by the constitutional
guaranties. Thus Judge Cooley in his Constitutional Limitations has said: Search
warrants are a species of process exceedingly arbitrary in character and which ought not
to be resorted to except for very urgent and satisfactory reasons.
Moreover, it has generally been recognized that the legitimate use of the search warrant
is restricted to public prosecutions, and that in no event may such proceeding be invoked
for the protection of any mere private right. . . .
The Supreme Court of Utah concluded that the plaintiff, who sought return of property
seized pursuant to statute, but who was neither arrested nor criminally charged with any
crime, was entitled to restitution of his property, since the search and seizure was
"unreasonable" under the state constitution.
sought return of property seized pursuant to statute, but who was neither arrested nor
criminally charged with any crime, was entitled to restitution of his property, since the search
and seizure was unreasonable under the state constitution. Similar conclusions are reached
or reflected in State v. Derry, 85 N.E. 765 (Ind. 1908); Robinson v. Richardson, 79 Mass. (13
Gray) 454 (1859); State v. Dillon, 281 P. 474 (N.M. 1929); and People v. Kempner, 101 N.E.
794 (N.Y. 1913).
It is ordered that a peremptory writ of mandate issue commanding the respondent Sheriff
of Clark County to return the property of petitioner. Petitioner's application for a writ of
mandate commanding respondent court to vacate its money judgment entered against
petitioner May 26, 1978, and further commanding the district court to proceed to trial upon
his amended complaint is denied.
____________
95 Nev. 279, 279 (1979) R & S Investments v. Howard
R & S INVESTMENTS, a Partnership, Appellant and Cross-Respondent, v. MAX L.
HOWARD and GERALDINE K. HOWARD, Respondents and Cross-Appellants.
No. 9655
April 16, 1979 593 P.2d 53
Appeal from judgment in favor of defendants on plaintiff's action for breach of contract,
and cross-appeal from the court's failure to award defendants forfeiture of plaintiff's earnest
money or attorney's fees. Eighth Judicial District, Clark County; Howard W. Babcock, Judge.
Purchaser brought action for damages for vendors' alleged breach of contract to sell certain
property. Vendors counter-claimed for forfeiture of $3,000 earnest money deposit and
attorney fees. The district court entered judgment from which purchaser appealed and vendors
cross-appealed. The Supreme Court, Mowbray, C. J., held that: (1) since escrow instructions
unambiguously made time of the essence of contract, there was no basis for purchaser's
argument that by terms of contract he had a reasonable time, or until receipt of notice of
cancellation of escrow, in which to make payment after close of escrow on certain date so as
to avoid default; (2) vendors did not waive their right to insist upon compliance with closing
date deadline by their conduct either before or after such date; (3) under circumstances,
vendors were precluded from raising on appeal issue of forfeiture of earnest money, and
{4) trial court erred in denying, without stating its reasons, vendors' prayer for allowance
of attorney fees, where offer and acceptance agreement provided for payment of
reasonable attorney fees.
from raising on appeal issue of forfeiture of earnest money, and (4) trial court erred in
denying, without stating its reasons, vendors' prayer for allowance of attorney fees, where
offer and acceptance agreement provided for payment of reasonable attorney fees.
Affirmed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellant and Cross-Respondent.
Jerry J. Kaufman, Chartered, Las Vegas, for Respondents and Cross-Appellants.
In order for a purchaser to successfully sue a vendor for damages for breach of a contract for sale of land,
purchaser must show that he has performed all of conditions precedent or concurrent, or that such
performance has been excused.
Since escrow instructions unambiguously made time of the essence of contract to sell certain property,
there was no basis for purchaser's argument that by terms of contract he had a reasonable time, or until
receipt of notice of cancellation of escrow, in which to make payment after close of escrow on certain date
so as to avoid default.
Vendors, by their conduct, had not waived any right to insist upon strict compliance with terms of
contract to sell certain property; rather, their conduct evidenced a clear and unwavering intent to insist
upon strict compliance with closing date deadline, where vendors consistently denied purchaser's repeated
requests for an extension prior to deadline, and vendors gave notice of cancellation of escrow as soon as
they learned that purchaser's check on deadline had not cleared.
Vendors had not waived any right to insist upon strict compliance with terms of contract to sell certain
property because of their failure to object to deposit of check, rather than cash, on closing date deadline,
and their subsequent delay in doing so until check had been returned for insufficient funds, since fact that
vendors could not know whether purchaser had complied with terms of contract until they learned whether
check had been honored meant that failure to act prior to that time could not be construed as a waiver of a
known right.
5. Payment.
Payment by check, without objection, does not discharge a debt until check is honored; once honored,
time of payment relates back to time check was delivered; if check is not honored, however, payment is not
deemed made until cash is actually received or a subsequent check honored.
Where, in action in which purchaser sought damages for vendors' alleged breach of contract to sell
certain property, and in which vendors counterclaimed for forfeiture of $3,000 earnest money deposit, issue
of forfeiture was neither argued not briefed before court below, and vendors explicitly denied any
intent to pursue their counterclaims for relief at trial, vendors were precluded from
raising issue on appeal.
explicitly denied any intent to pursue their counterclaims for relief at trial, vendors were precluded from
raising issue on appeal.
7. Costs
In action in which purchaser unsuccessfully sought damages for vendors' alleged breach of contract to
sell certain property, trial court erred in denying, without stating its reasons, vendors' prayer for attorney
fees, where offer and acceptance agreement provided for payment of reasonable attorney fees.
OPINION
The appellant brought this action seeking specific performance, or in the alternative
damages, predicated upon a contract with respondents to purchase a parcel of real estate in
Clark County.
1
The court below denied appellant any relief and this appeal followed.
Respondents have also cross-appealed from the court's refusal to award them attorney's fees.
We affirm the judgment in all respects.
THE FACTS
On April 9, 1973, an Offer and Acceptance Agreement and Earnest Money Receipt was
signed by A. D. Rosenzweig, acting for appellant, and by respondents. Respondents agreed to
sell, and appellant agreed to buy, certain unimproved land for a total purchase price of
$240,000, with a down payment of $69,900. The parties agreed to a 90 day escrow period, to
open June 5, 1973. Escrow instructions, dated June 6, 1973, and signed by the same parties,
acknowledged deposit of the $3,000 in escrow, and provided for the remainder of the down
payment to be deposited with the escrow holder. The escrow instructions specifically
provided that Time is the essence of this agreement, and appellant was required to comply
with all the requirements hereof necessary to place this escrow in condition to close on or
before September 5, 1973. The instructions also provided: Either party claiming right of
cancellation shall file notice for cancellation in the office of your [escrow] company, in
writing, in duplicate.
During the escrow period, appellant made several requests for extension of the closing
date, which were denied by respondents. On the evening of September 5, Rosenzweig
deposited in escrow a check for $66,600. Approximately ten days later, the check was
returned to the escrow holder, marked "insufficient funds".
____________________

1
Appellant thereafter abandoned its claim for specific performance.
marked insufficient funds. After learning of the return of the check, on or about September
17, respondents verbally notified the escrow holder that they were cancelling the escrow.
Written notification of the cancellation was received by the escrow holder on September 19.
On September 18, Rosenzweig attempted to deposit certified checks totalling $66,600, but
was informed by the escrow holder that respondents had cancelled the escrow. The checks
were returned to appellant.
On February 27, 1974, appellant instituted the present action, claiming that respondents
had breached their agreement to sell the property. Respondents answered, denying breach and
alleging that the contract was no longer in force as a result of appellant's failure to meet the
September 5 deadline. Respondents also counterclaimed for damages, and for forfeiture of the
$3,000 earnest money deposit. These counterclaims were not addressed in the trial briefs.
Counsel for respondents represented to the court below, at trial, that he was pursuing the
counterclaims only to the point of attorney's fees and costs.
The trial court found in favor of respondents. Appellant contends that the court erred by
refusing to find that appellant had a reasonable time, or until receipt of notice of
cancellation of the escrow, in which to make payment after the close of escrow on September
5. Respondents and cross-appellants contend that the court erred by failing to award them the
$3,000 deposit and their attorney's fees.
THE BREACH OF THE CONTRACT
The judgment of the trial court, denying appellant's claim for damages, was predicated
upon its finding that Plaintiff did not make legal tender on or before September 5 1973, and
its conclusion that the contract therefore expired as a matter of law, at midnight, September
5, 1973, because of Plaintiff's failure to comply with the time of the essence provision.
[Headnotes 1, 2]
The rule is well established that in order for a purchaser to successfully sue a vendor for
damages for breach of a contract for the sale of land, the purchaser must show that he has
performed all conditions precedent or concurrent, or that such performance has been excused.
Hillman v. Busselle, 185 P.2d 311 (Ariz. 1947); Cook v. Nordstrand, 188 P.2d 282 (Cal.App.
1948). See Laand Corp. v. Firsching, 91 Nev. 271, 534 P.2d 916 (1975). As has been noted,
3A Corbin, Contracts 634, at 36 (1960): In the case of an ordinary bilateral contract for
the exchange of property for money, the duty of immediate performance by either party is
generally conditional on a tender of the exchange performance by the other.
In the case of an ordinary bilateral contract for the exchange of property for money, the
duty of immediate performance by either party is generally conditional on a tender of the
exchange performance by the other. If neither one makes such a tender neither one is
guilty of a breach of legal duty (in the absence of a repudiation). If time of performance
was expressly made of the essence, failure to make tender within that time operates as
a discharge of the other party. . . .
In the case at hand, appellant's tender of a subsequently dishonored check did not constitute
payment of the amount required by the contract on September 5, 1973, which expressly
provided that time is of the essence. See Ruppert v. Edwards, 67 Nev. 200, 216 P.2d 616
(1950).
Appellant counters, however, with the suggestion that the terms of the contract were
ambiguous, and that they negated any clear intention to make time of the essence of the
agreement. Appellant relies on the provision of the escrow instructions authorizing the
escrow holder to take any administrative steps necessary, after the closing date, to complete
the escrow. This provision, however, may not be read to affect the clear and unambiguous
requirement that the purchaser comply with all the requirements . . . on or before September
5, 1973. Compare Katemis v. Westerlind, 261 P.2d 553 (Cal.App. 1953) (agent authorized
to allow thirty day extension to principals after closing of escrow). Appellant also attempts to
rely upon the provision for cancellation only upon written notice. However, this provision
makes no reference to the obligations of the parties to comply with the closing date specified,
and therefore may not be read to affect those requirements. Compare McCown v. Spencer, 87
Cal.Rptr. 213 (Cal.App. 1970) (provision specifically authorizing escrow holder to accept late
compliance by principals prior to notification of cancellation.)
Since the escrow instructions clearly and unambiguously made time of the essence of the
agreement, there is no basis for appellant's argument that by the terms of the contract he was
entitled to tender payment within a reasonable time, or prior to receipt of notice of
cancellation, in order to avoid default.
[Headnote 3]
Appellant also argues that respondents, by their conduct, waived any right to insist upon
strict compliance with the terms of the contract. This contention is meritless. Respondents'
conduct evidenced a clear and unwavering intent to insist upon strict compliance with the
September 5 deadline.
strict compliance with the September 5 deadline. Appellant's repeated requests for an
extension prior to September 5 were consistently denied by respondents. Respondents gave
notice of cancellation as soon as they learned that appellant's check of September 5 had not
cleared. Appellant had no reason to believe that they would do otherwise.
[Headnotes 4, 5]
Finally, we reject as spurious appellant's attempt to construe as a waiver respondents'
failure to object to the deposit of the check, rather than cash, on September 5, and their
subsequent delay in doing so until the check had been returned. The law regarding payment
by check has been set forth by this court in Ruppert v. Edwards, supra, 67 Nev. at 215-20,
216 P.2d at 623-26. In sum, payment by check, without objection, does not discharge a debt
until the check is honored. Once honored, the time of payment relates back to the time the
check was delivered. If the check is not honored, however, the payment is not deemed made
until cash is actually received or a subsequent check honored. The respondents in this case,
having made no objection to the tender of the check on September 5, could not know whether
appellant had complied with the terms of the contract until they learned whether the check
had been honored. Failure to act prior to that time, therefore, may not be construed as a
waiver of a known right.
We conclude that the trial court was correct in granting judgment for respondents. The
contract clearly and unambiguously provided that time was the essence of the agreement.
When appellant's September 5 check failed to clear, appellant had irrevocably breached its
agreement to make payment of the balance of the down payment on or before that date.
Respondents did not waive their right to insist upon compliance with the closing date
deadline by their conduct either before or after September 5. Appellant does not contend that
as of that date his performance was otherwise excused. Therefore, respondents' duty to
comply with the contract was discharged, and appellant was not entitled to damages for
breach of contract.
THE FORFEITURE OF THE EARNEST MONEY
[Headnote 6]
The issue of forfeiture was neither argued nor briefed before the court below. Respondents
explicitly denied any intent to pursue their counterclaims for relief at trial. They are therefore
precluded from raising the issue on appeal. Cottonwood Cove Corp. v. Bates, 86 Nev. 751,
476 P.2d 171 (1970).
THE ATTORNEY'S FEES
[Headnote 7]
Although the Offer and Acceptance Agreement provided for the payment of reasonable
attorney's fees, the court below, without stating its reasons, denied respondents' prayer for
such an allowance. We believe, under the facts presented, that this was error and, therefore,
we must remand the case for the sole purpose of making such a determination.
Otherwise, we affirm the judgment of the district court in all respects.
____________
95 Nev. 285, 285 (1979) Kleeman v. Zigtema
HANS KLEEMAN, Appellant, v.
H. D. ZIGTEMA, Respondent.
No. 9476
April 18, 1979 593 P.2d 468
Appeal from judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Buyer of motor boat brought action against seller who took possession of boat alleging
breach by seller of oral agreement, fraud and conversion. The district court entered judgment
that buyer was entitled to no relief other than $2,600 unjust enrichment difference between
what he owed seller and what seller received in sale of boat to third party and awarded seller
his attorney fees, and buyer appealed. The Supreme Court held that: (1) judgment of trial
court as to relief to which buyer was entitled was supported by substantial evidence, and (2)
award to seller of attorney fees was not authorized by statute governing award of attorney
fees.
Nitz, Schofield & Nitz, Las Vegas, for Appellant.
Harvey Dickerson, Las Vegas, for Respondent.
Where evidence was conflicting, trial court can best evaluate credibility of parties offering different
versions of facts and such determination by lower court will not be disturbed on appeal. NRCP 52(a).
2. Shipping.
In action by buyer of boat against seller alleging breach of oral agreement, fraud and conversion,
judgment that buyer was entitled to no relief other than $2,600 unjust enrichment difference
between what buyer owed seller and what seller received in sale of boat to third
party was supported by substantial evidence.
other than $2,600 unjust enrichment difference between what buyer owed seller and what seller received in
sale of boat to third party was supported by substantial evidence.
3. Costs.
In action by buyer of boat against seller who took possession of boat alleging breach by seller of oral
agreement, fraud and conversion, award to seller of attorney fees was not authorized by statute governing
award of attorney fees. NRS 18.010, subd. 2
OPINION
Per Curiam:
On May 25, 1969 appellant and respondent entered into an oral agreement for the purchase
and sale of respondent's 36 foot motor boat for $4,000 down and $4,000 to be paid within 30
days.
Kleeman paid the initial $4,000 by check and took possession of the boat, although it is
disputed whether immediate possession was contemplated by the parties. Zigtema contends
that possession was unauthorized, and that Kleeman secretly boarded the boat, removed
hidden keys and possessed the vessel, while Kleeman maintains that Zigtema handed him the
keys when the parties satisfactorily concluded their negotiations.
Kleeman, on the reverse side of the check tendered as the down payment, typed the
purported terms of the oral agreement including a warranty provision covering the boat's
motors and gear boxes. The check was deposited by Zigtema, but the trial court, over
objection, permitted him to testify that he complained to Kleeman that the warranty terms
were not part of the original agreement. Zigtema further testified that Kleeman then orally
withdrew the warranty provision and authorized Zigtema to deposit the check.
Kleeman, while in possession of the boat, expended substantial sums for repairs which in
part included the motors and gear boxes. He did not, however, timely tender the remaining
balance of the purchase price, claiming that Zigtema failed to comply with a condition
precedent to furnish sufficient documentation to enable registration of the vessel in
California. Zigtema contends that any condition pertaining to title documents and California
registration was a condition subsequent or concurrent but not precedent.
Accordingly, Zigtema filed a breach of contract suit for the remaining balance and attached
the boat. Apparently, process was not served as the parties attempted negotiation.
Subsequently, nearly a year and a half after the remaining balance was due, Kleeman
tendered that amount plus interest and costs of suit, but Zigtema refused to accept the
tender.
was due, Kleeman tendered that amount plus interest and costs of suit, but Zigtema refused to
accept the tender.
Zigtema subsequently dismissed the suit, discharged the attachment, took possession of the
boat and sold it to a third party for $6,600. Kleeman then brought the instant action in June,
1974 for breach of the oral agreement, fraud and conversion.
The trial court adjudged that Kleeman was entitled to no relief other than a $2,600 unjust
enrichment difference between what he owed Zigtema and what Zigtema received from the
sale to the third party purchaser although Kleeman alleged that the actual market value of the
boat was considerably above the sum received by Zigtema from the third party. In addition,
the lower court awarded Zigtema his attorney's fees. Kleeman now challenges the judgment
on appeal.
The principal issue before us is whether there is substantial evidence to support the
judgment of the lower court. In its amended judgment and decree, the trial court found that
possession and title did not transfer on the date of the oral agreement and that the purported
terms on the reverse side of the $4,000 down payment check were not part of the contract.
Further, the trial court found that time was of the essence, thus permitting Zigtema to reject
Kleeman's late tender of the balance and resell the boat to a third party.
[Headnote 1]
Although the evidence is conflicting, in these matters the trial court can best evaluate the
credibility of the parties offering different versions of the facts and such determination by the
lower court will not be disturbed on appeal. NRCP 52(a); General Elec. Supply v. Mt.
Wheeler Power, 94 Nev. 766, 587 P.2d 1312 (1978); Simons v. Donrey, Inc., 94 Nev. 696,
582 P.2d 795 (1978); Clifmar, Inc. v. Lee, 94 Nev. 594, 584 P.2d 157 (1978).
[Headnotes 2, 3]
The judgment of the trial court is supported by substantial evidence and is affirmed.
However, the trial court's award to Zigtema of attorney's fees, being unauthorized by statute,
is reversed. See NRS 18.010(2).
Where not inconsistent herewith, the lower court's findings are affirmed but its award of
attorney's fees is reversed.
____________
95 Nev. 288, 288 (1979) Roberts v. State
JOHN MICHAEL ROBERTS, Also Known As John Michael Riggs, Appellant, v. THE
No. 10423
April 18, 1979 593 P.2d 57
Mendoza, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court held that status of defendant to complain of allegedly unlawful search by which police
recovered robbery victim's property did not otherwise appear where apartment into which
defendant fled following crime, and in which police found property, was rented to another.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Sylvia G. Gross, Deputy District Attorney, Clark County, for Respondent.
Searches and Seizures.
Status of defendant to complain of allegedly unlawful search by which police recovered robbery victim's
property did not otherwise appear where apartment into which defendant fled following crime, and in
which police found property, was rented to another.
OPINION
Per Curiam:
In the instant case, appellant contends that because police recovered a robbery victim's
property through an unlawful search, the district court erred by admitting the same into
evidence. This contention clearly lacks merit. The apartment into which appellant fled
following the crime, and in which police found the stolen property, was rented to another.
Appellant's status to complain of the allegedly unlawful search does not otherwise appear. Cf.
Jones v. United States, 362 U. S. 257 (1960).
Other assignments of error also are without merit.
____________
95 Nev. 289, 289 (1979) Skyland Water v. Tahoe Douglas Dist.
SKYLAND WATER CO., a Nevada Corporation, Appellant and Cross-Respondent, v.
TAHOE-DOUGLAS DISTRICT, Respondent and Cross-Appellant.
No. 8995
April 26, 1979 593 P.2d 1066
Appeal from judgment, Ninth Judicial District Court, Douglas County; Noel E.
Manoukian, Judge.
In eminent domain proceeding, the district court entered judgment from which condemnee
appealed and condemnor cross-appealed. The Supreme Court, Batjer, J., held that: (1) trial
court properly considered legal restrictions imposed on lakefront lots by deed in determining
value of such lots for condemnation purposes, and (2) trial court erroneously considered
extrinsic evidence in determining geographic extent of restrictions, because trial court was
obliged to consider deed restrictions as written, where deed clearly indicated that geographic
extent of rights for access to waters of Lake Tahoe, and for beach and recreational purposes,
as well as building prohibitions, pertained to whole of lots.
Guild, Hagen & Clark, and Thomas J. Hall, Reno, for Appellant and Cross-Respondent.
Lester H. Berkson, Stateline, for Respondent and Cross-Appellant.
1. Eminent Domain.
Private property may not be taken by eminent domain without just compensation, which requires that
property be valued in light of its highest and best use, and, in determining this value, finder of fact may
consider such factors as would be considered by a prudent businessperson before purchasing such property.
Const. art. 1, 8.
2. Eminent Domain.
One of factors to be considered in determining value of property for condemnation purposes was
property's possible legal uses and thus trial court properly considered legal restrictions imposed on
lakefront lots by deed in determining value of such lots for condemnation purposes.
3. Evidence.
In eminent domain proceeding, trial court erroneously considered extrinsic evidence in determining
geographic extent of legal restrictions imposed on lakefront lots by deed, because trial court was obliged to
consider deed restrictions as written, where deed clearly indicated that geographic extent of rights for
access to waters of Lake Tahoe, and for beach and recreational purposes, as well as building
prohibitions, pertained to whole of lots.
and recreational purposes, as well as building prohibitions, pertained to whole of lots.
OPINION
Appellant is the owner of lakefront lots 32 and 33 in Skyland Subdivision at Lake Tahoe.
The instrument vesting appellant with title to these lots is a 1960 deed executed by appellant
and Stockton Garden Homes. The lots are encumbered by deed reservations and restrictions
which provided that they could be used by present and future owners of lots within Skyland
Subdivisions No. 1 and 2 for beach and recreational purposes and for access to the waters of
Lake Tahoe. The deed also provided that beach and recreational use was not to interfere with
appellant's then existing or future water pumping operations on lots 32 and 33. Finally, the
deed stated that no right hereby reserved shall authorize [Stockton Garden Homes] or any lot
owner in any of said subdivision to erect or maintain any structure on [lots 32 and 33]. The
district court's interpretation of these reservations and restrictions constitutes the central issue
in this appeal.
In January of 1974, respondent commenced eminent domain proceedings to take a portion
of lot 33 for construction of a sewer pump. In July of 1975, a trial by court was held to
determine the amount of compensation appellant was to receive as a result of the taking. At
the conclusion of trial, the court found that: (1) for purposes of eminent domain, lots 32 and
33 should be considered one parcel of land; and, (2) the deed created an easement granting lot
owners in Skyland Subdivisions No. 1 and 2 affirmative rights of access and beach use, and
created a restriction that prohibited building on lots 32 and 33 by any lot owner, including the
owners of lots 32 and 33. Although there was no finding that the deed was ambiguous as to
the geographic extent of the restrictions, the district court, based upon extrinsic evidence,
interpreted the deed to provide that the right of beach use and, therefore, the building
restriction, applied only to that portion of lots 32 and 33 physically adapted to beach use. The
court concluded that the portion of lot 33 taken by respondent was not physically adapted to
beach use and therefore, was not restricted as to building.
Accordingly, the district court awarded appellant $34,500 for the land taken by respondent,
that sum being the fair market value of the land for its highest and best use, which the district
court determined was unrestricted residential property.
district court determined was unrestricted residential property. In addition, the trial court
awarded $1,500 as severance damages for the diminution of value of the portion of lots 32
and 33 not taken. The court reasoned that because the entirety of this remainder was restricted
by the right of beach use and the prohibition against building, the diminution in value was
insubstantial. The court made a further award of $1,000 as consequential damages caused by
noise and odor emanating from the sewer pump.
Whether the district court erred in its determination that legal restrictions on the use of
land (1) should be considered in fixing the value of land for condemnation purposes, and (2)
were applicable only to a portion of lots 32 and 33, are the issues before us on this appeal and
cross-appeal.
[Headnotes 1, 2]
1. Appellant contends the trial court erred by giving consideration to legal restrictions
imposed on lots 32 and 33 by the 1960 deed in determining the value of the property for
condemnation purposes. We disagree.
Private property may not be taken by eminent domain without just compensation. Nev.
Const. art. 1, 8. We have previously interpreted just compensation to require that property
be valued in light of its highest and best use. Sorenson v. State ex rel. Dep't of Hwys., 92
Nev. 445, 552 P.2d 487 (1976). In determining this value, the finder of fact may consider
such factors as would be considered by a prudent businessperson before purchasing such
property. State v. Shaddock, 75 Nev. 392, 344 P.2d 191 (1959). One of the factors to be
considered in determining the value of property for condemnation purposes is the property's
possible legal uses and, therefore, the district court could properly consider the restrictions on
lots 32 and 33 in determining the value of the properly. See Staninger v. Jacksonville
Expressway Authority, 182 So.2d 483 (Fla.App. 1966); State v. Reece, 374 S.W.2d 686
(Tex.Civ.App. 1964).
[Headnote 3]
2. Respondent, on cross-appeal, argues that the district court erred in its determination
that the restrictions found in the 1960 deed were applicable to only a portion of lots 32 and
33. We agree.
This court has previously held that where language in a deed creating an easement is clear
and unambiguous, the language is not subject to judicial interpretation and should be
enforced as written. Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962). This is in
accord with the weight of authority which dictates that construction of the terms of a deed
is predicated upon a finding of ambiguity in the deed. See, e.g., Gardner v. Fliegel, 450
P.2d 990 {Idaho 1969); Kelly v.
dictates that construction of the terms of a deed is predicated upon a finding of ambiguity in
the deed. See, e.g., Gardner v. Fliegel, 450 P.2d 990 (Idaho 1969); Kelly v. Lovejoy, 565 P.2d
321 (Mont. 1977). In the instant case, the deed clearly indicates that the geographic extent of
the rights for access to the waters of Lake Tahoe, and for beach and recreational purposes, as
well as the building prohibitions, pertain to the whole of lots 32 and 33.
1
Thus, it was error
for the district court to consider extrinsic evidence in determining the geographic extent of
the restrictions. The district court was obliged to consider the deed restrictions as written. Cf.
Kelly v. Lovejoy, supra.
Accordingly, we order the judgment reversed and the case remanded to the district court
for a new trial. At the new trial, the damages, if any, to which appellant may be entitled
should be limited by the legal restrictions set forth in the deed. Thus, the appellant may
demonstrate the effect of the taking on the continuation and expansion of its pumping
operation, as well as any damage appellant suffers as a lot owner to its rights of access to
the waters of Lake Tahoe and for beach and recreational purposes.
____________________

1
The deed provided, in pertinent part:
That the said party of the first part [Stockton-Garden Homes], in consideration of the sum of Ten Dollars
($10.00), lawful money of the United States of America, to it in hand paid by the said party of the second part,
the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell unto the said party of
the second part [Skyland Water Co., appellant herein], and to its successors and assigns assigns forever, those
certain lots or parcels of land situate in the County of Douglas, State of Nevada, described as follows:
Lots 32 and 33, as shown on the map of SKYLAND SUBDIVISION NO. 1, filed in the office of the
County Recorder of Douglas County, Nevada, on February 27, 1958
TOGETHER with the tenements, hereditaments and appurtenances thereunto belonging or appertaining, and
the reversion and reversions, remainder and remainders, rents, issues and profits thereof
TO HAVE AND TO HOLD the said premises, together with the appurtenances, unto the party of the second
part, and to its successors and assigns forever. RESERVING, however, to the party of the first part the perpetual
right to use in common with all other present and future owners of lots within SKYLAND SUBDIVISION NO.
1, as shown on the map thereof filed in the office of the Recorder of Douglas County, Nevada, on February 27,
1958, and within SKYLAND SUBDIVISION NO. 2, as shown on the map thereof filed in the office of the
Recorder of Douglas County, Nevada, on July 22, 1959, for access to the waters of Lake Tahoe and for beach
and recreational purposes. Such uses are to be enjoyed by such lot owners, their families, lessees, tenants and his
or their guests, with due regard to the rights of others entitled to such privileges, and under such regulations as
may from time to time be reasonably established by second party, or its successors, for the use or enjoyment of
said property; provided, however, that no right hereby reserved shall in any interfere with the pumping plant now
installed on the property hereby conveyed nor shall any right hereby reserved in any way restrict the rights of
second party to enlarge, repair or replace said pumping plant or anything appurtenant thereto, or to construct, or
enlarge any building or structure used in connection therewith, and provided further that no right hereby reserved
shall authorize first party or any lot owner in any of said subdivision to erect or maintain any structure on the
premises hereby conveyed.
the appellant may demonstrate the effect of the taking on the continuation and expansion of
its pumping operation, as well as any damage appellant suffers as a lot owner to its rights of
access to the waters of Lake Tahoe and for beach and recreational purposes. In view of our
disposition of this case, we deem it inappropriate to express an opinion with regard to any
other issues raised by the appeal, and cross-appeal, herein.
Mowbray, C. J., and Gunderson, J., and Babcock, D. J.
2
, and Breen, D. J.
3
, concur.
____________________

2
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable W. Babcock, Judge of the
Eighth Judicial District, to sit in place of The Honorable Gordon Thompson, Justice, who was disabled.

3
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Peter I. Breen, Judge of the
Second Judicial District, to sit in place of The Honorable Noel E. Manoukian, Justice, who was disqualified.
____________
95 Nev. 293, 293 (1979) Mid-Century Ins. Co. v. Cherubini
MID-CENTURY INSURANCE COMPANY, a California Corporation and a Member of the
Farmers Insurance Group, Appellant, v. VINCENT J. CHERUBINI and ANNA J.
CHERUBINI, Respondents.
No. 10885
May 1, 1979 593 P.2d 1068
Appeal from partial summary judgment; Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Action was instituted on fire policy. The district court entered partial summary judgment
for insureds, and insurer appealed. The Supreme Court, Thompson, J., held that appeal taken
prior to entry of final judgment concerning one claim for relief under fire policy was
premature, but since counsel for parties requested and expression from Supreme Court
regarding propriety of interlocutory summary judgment on issue of liability alone, and since
Supreme Court by a prior opinion in case may have been responsible for premature appeal,
district court would be asked to consider whether affirmative defense of arson was subject to
doctrine of waiver before receiving evidence relevant solely to question of damages.
Appeal dismissed as premature.
Thorndal, Gentner, Backus, Lyles & Maupin, Ltd., of Las Vegas, for Appellant.
James L. Buchanan, II, of Las Vegas, for Respondents.
Assertion of one legal right to policy proceeds growing out of a single transaction or a series of related
transactions stated a single claim for relief that was not amenable to certification, but even assuming
violation of two legal rights, a breach of contract as to fire proceeds and a separate breach of contract as to
theft proceeds, separate breaches would have given rise to but one claim for relief that was not amenable to
certification. NRCP 54(b).
A single claim for relief is not amenable to certification and is not appealable even though district court
has erroneously issued a certificate. NRCP 54(b).
Although a complaint which asserts only one claim for relief is not amenable to certification as to finality,
it is permissible for district court to enter an interlocutory summary judgment on issue of liability alone, a
determination which may not be reviewed until a final judgment concerning that one claim for relief is
entered. NRCP 56(c).
Appeal taken prior to entry of final judgment concerning one claim for relief under fire policy was
premature, but since counsel for parties requested an expression from Supreme Court regarding propriety
of interlocutory summary judgment on issue of liability alone, and since Supreme Court by a prior opinion
in case may have been responsible for premature appeal, district court would be asked to consider whether
affirmative defense of arson was subject to doctrine of waiver before receiving evidence relevant solely to
question of damages.
OPINION
This action was commenced by Vincent and Anna Cherubini against Mid-Century
Insurance Company for losses caused by a fire to their home. Mid-Century contended that the
Cherubinis had not complied with the terms and conditions of the insurance policy and that,
in any event, it was not liable since the loss resulted from an act of arson by the claimants.
The Cherubinis moved for partial summary Judgment on the issue of liability contending
that Mid-Century's payment of certain benefits under the policy operated as a waiver of
defenses making all policy proceeds due and payable. That motion was granted by the district
court leaving only the amount of damages for jury determination.
Mid-Century challenged that ruling by a proceeding in certiorari which we dismissed.
Mid-Century Ins. Co. v. Pavlikowski, 94 Nev. 162, 576 P 2d 748 (1978). We there suggested
that Mid-Century's remedy was by permissive appeal pursuant to NRCP 54{b).
that Mid-Century's remedy was by permissive appeal pursuant to NRCP 54(b). That
suggestion apparently caused Mid-Century to secure a Rule 54(b) certification from the
district court and, thereafter, to docket the instant appeal. For reasons hereafter expressed,
that suggestion was in error and, in the interest of justice, we hasten to correct our mistake.
Cf. Dickerson v. District Court, 82 Nev. 234, 414 P.2d 946 (1966).
The Cherubinis sought to recover damages for the loss of their house due to fire and for
the theft of various items of personal properly from the premises subsequent to the fire. These
losses, each insured against under the policy, were pleaded in separate counts. A Rule 54(b)
certification is available when more than one claim for relief is presented.
1
The issue, then,
is whether the complaint pleads more than one claim for relief.
[Headnotes 1, 2]
The assertion of one legal right to policy proceeds growing out of a single transaction or a
series of related transactions states a single claim for relief. Acha v. Beame, 570 F.2d 57 (2nd
Cir. 1978). Indeed, even if we assume the violation of two legal rights (a breach of contract as
to the fire proceeds, and a separate breach of contract as to the theft proceeds) the separate
breaches would give rise to but one claim for relief. 11 Williston on Contracts 1294 (3rd
Ed. 1968); Restatement of Contracts 327 comment b (1932). Such a claim is not amenable
to certification, Acha v. Beame, supra, and not appealable even though the district court has
erroneously issued a Rule 54(b) certificate. Aetna Casualty & Surety Company v. Giesow,
412 F.2d 468 (2nd Cir. 1969); United States v. Burnett, 262 F.2d 55 (9th Cir. 1958).
[Headnote 3]
Although a complaint which asserts only one claim for relief is not amenable to
certification as to finality, it is permissible for a district court to enter an interlocutory
summary judgment on the issue of liability alone, NRCP 56(c),
2
which determination may
not be reviewed until a final judgment concerning that one claim for relief is entered.
____________________

1
NRCP 54(b): When more than one claim for relief is presented . . . the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is
no just reason for delay and upon an express direction for the entry of judgment.

2
NRCP 56(c): . . . . A summary judgment, interlocutory in character, may be rendered on the issue of liability
alone although there is a genuine issue as to the amount of damages.
[Headnote 4]
This appeal is premature. However, since counsel for the parties have requested an
expression from this court regarding the propriety of the interlocutory summary judgment on
the issue of liability alone, and since this court by its prior opinion in this case may be
responsible for this premature appeal, we would ask the district court to consider whether the
affirmative defense of arson is subject to the doctrine of waiver before receiving evidence
relevant solely to the question of damages. Lawndale Nat. Bk., Tr. 4846 v. American Cas. Co.
489 F.2d 1384 (7th Cir. 1973); Blackwell v. American Southern Insurance Company, 175
S.E.2d 160 (Ga.App. 1970); Raphtis v. St. Paul Fire & Marine Insurance Company, 198
N.W.2d 505 (S.D. 1972).
Appeal dismissed as premature.
____________
95 Nev. 296, 296 (1979) Gilbert v. Warren
HOWARD M. GILBERT, Appellant, v. MARVEL
M. WARREN, Respondent.
No. 9800
May 8, 1979 594 P.2d 696
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Divorced husband appealed from judgment of district court which dismissed with
prejudice all his causes of action for relief from prior judgment of divorce. The Supreme
Court, Wendell, D. J., held that: (1) husband failed to establish findings and judgment of trial
court were in error; (2) property settlement, which was entered into between time of filing of
complaint and entry of divorce decree, was not merged into divorce decree and was not
subject to modification by trial court in absence of a stipulation by the parties, and (3) where
cause of action to establish parentage of child of divorced wife was not before trial court in
divorce action or in husband's action to set aside divorce decree, res judicata did not apply
and dismissal of husband's latter action should have been without prejudice.
Affirmed, as modified.
Charlotte Hunter Arley, Reno, for Appellant.
Smith & Gamble, Ltd., Carson City, for Respondent.
1. Judgment.
Type of fraud contemplated by rule allowing party to obtain relief from final judgment within six months
after its entry is intrinsic fraud. NRCP 6O(b).
Where a question of fact has been determined by district court, Supreme Court will not reverse unless the
judgment is clearly erroneous.
3. Divorce.
Record did not establish that divorce decree was based upon extrinsic fraud and husband, who brought
action to set aside decree 15 months after its entry failed to demonstrate that findings and judgment of trial
court were in error. NRCP 60(b).
4. Divorce.
Trial court has broad discretionary powers in determining questions of custody and support of minor
children in divorce proceedings and such determinations will not be disturbed on appeal in absence of an
abuse of discretion; it is best interests and welfare of child that governs exercise of that judicial discretion.
NRS 125.140.
5. Divorce.
Trial court did not abuse its discretion in dismissing husband's motion to consider his petition to set aside
divorce decree as an action to modify the decree to provide for a child of the marriage. NRS 125.140,
subd. 2, 125.150, subd. 5.
6. Divorce; Husband and Wife.
Property settlement, which was entered into between time of filing of complaint and entry of divorce
decree, was not merged into divorce decree and was not subject to modification by trial court in absence of
a stipulation by the parties. NRS 125.150, subd. 5.
7. Judgment.
Doctrine of res judicata bars subsequent litigation between the parties or their privies involving
identical causes of action.
8. Divorce.
Where cause of action to establish parentage of child of divorced wife was not before trial court in
divorce action or in husband's action to set aside divorce decree, res judicata did not apply and dismissal of
husband's latter action should have been without prejudice. NRS 41.530.
OPINION
By the Court, Wendell D.J.:
1

This is an appeal from a district court judgment dismissing with prejudice all causes of
action brought by appellant against respondent.
____________________

1
The Governor designated the Honorable Michael J. Wendell, Judge of the Eighth Judicial District, to sit in
the place of The Honorable Cameron M. Batjer, Justice, who was disqualified. Nev. Const. art. 6, 4.
The parties to this appeal were married in Kentucky on September 29, 1969, at a time
when respondent was pregnant. A child, Andrea, was born on November 14, 1969, in
Springfield, Illinois. Her birth certificate names no father. The child's name as it appears on
the birth certificate is Andrea Nicole Sigler. Thereafter, the couple, with Andrea, made their
home in Ohio.
In May of 1970, the appellant entered into a land installment contract to sell a bowling
alley and lounge which is conceded to have been properly belonging to him prior to the
marriage. Payments amount to $825 a month and will continue through 1985.
In early 1971, the couple moved to Reno, Nevada. The respondent, on April 5, 1973, filed
a divorce action wherein it was alleged that there were no children of the marriage and that
there were community rights and debts to be adjudicated by the court. Thereafter, on April 6,
1973, after reading the complaint, appellant executed a form of appearance and waiver
together with a letter of instructions to respondent's attorney. That letter set forth certain
terms upon which appellant conditioned his appearance, one of which being that the
respondent pay the costs of Andrea's schooling. There is no evidence that respondent failed to
comply with the conditions.
On April 24, 1973, the parties executed an agreement in contemplation of divorce to
settle the property rights between them. Under the provisions of the agreement, respondent
received one-half of the proceeds of the sale of the bowling alley amounting to $412.50 per
month, and assumed certain debts.
Appellant's appearance and waiver was filed April 27, 1973. His default was entered the
same day. The divorce was heard on May 3, 1973. Respondent testified that there were no
children of the marriage and that there were no community property rights or debts to be
adjudicated. The agreement of April 24, 1973, was never before the district court. At that
time, the court entered its judgment dissolving the marriage. The court found that there were
no children of the marriage nor any properly rights to be adjudicated.
Appellant brought this independent action on September 9, 1974, under NRCP 60(b) to set
aside the divorce decree on the basis of fraud.
2
After judgment was entered on May 3,
1976, dismissing with prejudice all claims and causes of action of appellant against
respondent, appellant moved to re-open the trial to take additional evidence concerning
the property agreement; to amend the complaint to seek reformation of the contract; and,
to reconsider the question of extrinsic fraud.
____________________

2
NRCP 60(b) provides in part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a
final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would have theretofore
justified a court in sustaining a collateral attack upon the judgment. . . .
After judgment was entered on May 3, 1976, dismissing with prejudice all claims and
causes of action of appellant against respondent, appellant moved to re-open the trial to take
additional evidence concerning the property agreement; to amend the complaint to seek
reformation of the contract; and, to reconsider the question of extrinsic fraud. The motion was
denied and judgment was entered on February 1, 1977, in favor of the respondent on her
counterclaim. All causes of action brought by appellant were dismissed with prejudice;
respondent was awarded judgment for arrearages under the agreement and it was ordered that
the agreement be specifically enforced with costs to respondent. This appeal followed.
1. Appellant first contends the district court erred in dismissing the independent action to
set aside the divorce decree under NRCP 60(b).
[Headnote 1]
Relief from a final judgment on the ground of fraud must be brought within six months
after the entry of the judgment. NRCP 60(b). In addition, the type of fraud contemplated
under the six-month rule is intrinsic fraud. Manville v. Manville, 79 Nev. 487, 387 P.2d 661
(1963). Here, the relief sought in the district court was commenced more than fifteen (15)
months after judgment was entered and was based upon extrinsic fraud. See Murphy v.
Murphy, 65 Nev. 264, 193 P.2d 850 (1948).
[Headnotes 2, 3]
Since at trial, appellant's counsel conceded that extrinsic fraud did not exist, and the record
is devoid of any evidence to establish fraud, appellant has failed to demonstrate that the
findings and judgment of the district court were in error. Where a question of fact has been
determined by the district court, this court will not reverse unless the judgment is clearly
erroneous. Kockos v. Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 (1974); Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
2. Appellant next argues that it was error for the district court to dismiss his motion to
consider the action as one to modify a divorce decree under NRS 125.140(2) to provide for a
child of the marriage.
3
[Headnote 4]
[Headnote 4]
____________________

3
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, even of the divorce was obtained by default without an appearance in the action
by one of the parties.
[Headnote 4]
NRS 125.140 confers broad discretionary powers upon the district court in determining
questions of custody and support of minor children in divorce proceedings. Such
determinations will not be disturbed on appeal in the absence of an abuse of discretion.
Nichols v. Nichols, 91 Nev. 479, 537 P.2d 1196 (1975); Culbertson v. Culbertson, 91 Nev.
230, 533 P.2d 768 (1975); Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974); Noble v.
Noble, 86 Nev. 459, 470 P.2d 430 (1970); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701
(1970). It is the best interest and welfare of the child that governs the exercise of that judicial
discretion. Fenkell v. Fenkell, supra.
[Headnote 5]
Since nothing in the record reflects an abuse of judicial discretion, the district court's
denial of the motion to modify the decree under NRS 125.140(2) will not be disturbed on
appeal.
3. Appellant also contends the district court erred in dismissing his claim to modify or
cancel the property settlement agreement.
[Headnote 6]
In the divorce proceedings, the district court found that there were no property rights or
debts to be adjudicated. Between the time of filing the complaint and the entry of the divorce
decree, the parties entered into a property settlement agreement. However, that agreement
was not merged into the divorce decree and, therefore, was not subject to modification by the
district court in the absence of a stipulation by the parties. See Lam v. Lam, 86 Nev. 908, 478
P.2d 146 (1970). Cf. NRS 125.150(5).
4

Appellant has raised other arguments to set aside the agreement. However, the arguments
are not supported by authority and, therefore, we need not consider them. Humane Society v.
First Nat'l Bk. of Nev., 92 Nev. 474, 553 P.2d 963 (1976).
4. The final argument advanced by appellant concerns the doctrine of res judicata.
Appellant contends that dismissal of all causes of action should not act as res judicata on the
matter of parentage.
____________________
The party seeking such order shall submit to the jurisdiction of the court for the purposes of this subsection. The
court may make such an order upon the application of one of the parties or the legal guardian of the minor.

4
5. If the court adjudicates the property rights of the parties, or an agreement by the parties settling their
property rights has been approved by the court, whether or not the court has retained jurisdiction to modify the
same, such adjudication of property rights, and such agreements settling property rights, may nevertheless at any
time thereafter be modified by the court upon written stipulation duly signed and acknowledged by the parties to
such action, and in accordance with the terms thereof.
[Headnotes 7, 8]
The doctrine of res judicata bars subsequent litigation between the parties or their privies
involving identical causes of action. Estate of Firsching v. Ferrara, 94 Nev. 252, 254, 578
P.2d 321, 322 (1978). See Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). In the present case,
a cause of action to establish Andrea's parentage was not before the district court.
5
Accordingly, res judicata does not apply and that cause of action should have been dismissed
without prejudice. To that extent, the district court's judgment is modified. In all other
respects, the judgment is affirmed.
____________________

5
In order for the district court to have considered the matter of parentage, a cause of action would have to
have been instituted pursuant to NRS 41.530, which provides:
1. An action may be brought for the purpose of having declared the existence or nonexistence between the
parties of the relation of parent and child, by birth or adoption.
2. Any such action shall be entitled In the Matter of the Parental Relation of.......... and .............' Notice of
the bringing of the action shall be served, in the manner provided by law and the Nevada Rules of Civil
Procedure for the service of process, upon each of the following persons if living:
(a) The child whose parentage it is sought to establish; and
(b) Each known or alleged parent, except a parent who has brought the action.
____________
95 Nev. 301, 301 (1979) G. & M. Properties v. District Court
G. AND M. PROPERTIES, MICHAEL DERMODY, GORDON R. THOMPSON, and
KATHLEEN THOMPSON, Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE, and THE
HONORABLE JOHN W. BARRETT, JUDGE OF THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE,
Respondents.
No. 10957
May 9, 1979 594 P.2d 714
Petition for writ of prohibition, Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
On petition for writ of prohibition to restrain the district court from hearing late filed water
rights exceptions of two individuals in the matter of the state water engineer's final
determination of the relative rights in and to the waters of Ophir Creek and its tributaries,
the Supreme Court, Manoukian, J., held that the district court was without jurisdiction to
consider the late filed water rights exceptions, since the statutory notice requirements
are mandatory, requiring strict compliance.
determination of the relative rights in and to the waters of Ophir Creek and its tributaries, the
Supreme Court, Manoukian, J., held that the district court was without jurisdiction to
consider the late filed water rights exceptions, since the statutory notice requirements are
mandatory, requiring strict compliance.
Petition granted.
Gunderson, J., dissented.
Hill, Cassas, de Lipkau & Erwin, Reno, and Johnson, Belaustegui & Robison, Reno, for
Petitioners.
Edward A. Hollingsworth, Reno, for Respondents.
1. Prohibition.
Prohibition will 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 not a plain, speedy and adequate remedy in the ordinary course of law. NRS
34.320, 34.330.
2. Prohibition.
Fact that an appeal is available from the final judgment does not preclude issuance of a writ of
prohibition, particularly in circumstances where the trial court is alleged to have exceeded its jurisdiction
and the challenged order is not appealable. NRS 34.320, 34.330.
3. Waters and Water Courses.
District court was without jurisdiction to consider the late filed water rights exceptions of two individuals
in the matter of the state water engineer's final determination of the relative rights in and to the waters of
Ophir Creek and its tributaries, since the statutory notice requirements are mandatory, requiring strict
compliance. NRS 533. 170.
4. Prohibition.
Where a trial court misconceives the meaning of a mandatory statute and as a consequence acts when the
law expressly enjoins it from acting, relief through an extraordinary writ is mandated. NRS 533.170.
Statute providing that The court may, if necessary, refer the case or any part thereof for such further
evidence to be taken by the state engineer as it may direct, and may require a further determination by him,
subject to the court's instructions cannot be used to enlarge upon the court's jurisdiction in a water rights
case. NRS 533.180.
OPINION
This is an original proceeding wherein petitioners seek by prohibition to restrain
respondent court from hearing the late filed water rights exceptions of Stanley E. Bailey and
Justin W.
Livingston in the matter of the stale water engineer's final determination of the relative rights
in and to the waters of Ophir Creek and its tributaries in Washoe County, Nevada.
Following the filing of a petition in the office of the state engineer requesting a
determination of the rights of the various claimants to the above mentioned waters, the
petition was granted, and the state engineer filed his preliminary order of determination
pursuant to NRS 533.090. Although a number of parties filed objections to the preliminary
order pursuant to NRS 533.145, neither Bailey nor Livingston did so as to petitioners herein.
The state engineer determined that petitioners were entitled to 85 acre feet of water per
year and that respondents were entitled to 1800 acre feet, all incident to a decree establishing
1856 priority rights.
Following hearing on the objections, the state engineer on December 23, 1976, filed his
final order of determination pursuant to NRS 533.165 and 533.450, after which he twice in
writing notified all interested parties, including claimants Bailey and Livingston, that the
hearing on the objections was scheduled in the district court March 31, 1977, and that all
notices of exceptions must be filed five days prior thereto, pursuant to NRS 533.170.
Several claimants timely filed notices of exception but the record is devoid of any written
notice by Bailey or Livingston challenging the correctness of the state engineer's final
determination as to the water rights of the petitioners. Although the record is not clear in
some particulars, it is evident that Bailey and Livingston were represented by counsel at the
March 31, 1977 hearing, where it appears that petitioners were either not present or
unrepresented by counsel. Although the hearing commenced as scheduled, it was by
stipulation continued without date. Thereafter the attorney general re-noticed the district court
hearing on objections and the hearing was set for July 10, 1978. On October 21, 1977, the
State Engineer again notified all interested parties of the new hearing date. On the morning of
July 10, 1978, claimants Bailey and Livingston, for the first time in these proceedings, filed
with the court clerk exceptions to that part of the final order of determination granting
petitioners water rights.
Over petitioners' objections that the court was without jurisdiction to consider the tardy
claims, the respondent court asserted its authority to proceed, granting petitioners four days to
pursue discovery. On July 11, 1978, petitioners filed the instant petition for prohibition and
on motion we stayed the trial court's order relating to the claims of Bailey and Livingston
pending resolution of the propriety of the respondent judge's action in permitting the
belated exceptions to be heard.
trial court's order relating to the claims of Bailey and Livingston pending resolution of the
propriety of the respondent judge's action in permitting the belated exceptions to be heard.
[Headnote 1]
The threshold question is one of jurisdiction. We are asked to decide whether or not
prohibition is the proper remedy with which to test the propriety of the district court's action.
Prohibition will 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 not a plain, speedy and adequate remedy in the
ordinary course of law. NRS 34.320, NRS 34.330; Ham v. District Court, 93 Nev. 409, 566
P.2d 420 (1977), and cases therein cited. In Culinary Workers v. Court, 66 Nev. 166, 170,
207 P.2d 990, 992 (1949), we stated, [t]he Writ of Prohibition is unquestionably appropriate
as a remedy to hold proceedings in an inferior court which are not within the jurisdiction of
such court. [Citations omitted.]
[Headnote 2]
Furthermore, the fact that an appeal is available from the final judgment does not preclude
issuance of the writ, Public Service Comm. v. Court, 61 Nev. 245, 123 P.2d 237 (1942),
particularly in circumstances where, as here, the trial court is alleged to have exceeded its
jurisdiction and the challenged order is not appealable. NRAP 3A(b); Clack v. Jones, 62 Nev.
72, 140 P.2d 580 (1943).
[Headnote 3]
Petitioners contend that the district court is without jurisdiction to consider the late filed
exceptions of Bailey and Livingston, relying on NRS 533.170. Arguing for respondent court,
Bailey and Livingston contend they have substantially complied with the law and that it was
within the district court's equitable authority to permit the tardy exceptions, citing State
Engineer v. American Nat'l Ins. Co., 88 Nev. 424, 498 P.2d 1329 (1972). We are constrained
to agree with petitioners. NRS 533.170 in relevant part provides:
1. At least 5 days prior to the date set for hearing, all parties in interest who are
aggrieved or dissatisfied with the order of determination of the state engineer shall file
with the clerk of the court notice of exceptions to the order of determination of the state
engineer. The notice shall state briefly the exceptions taken and the prayer for relief. A
copy thereof shall be served upon or transmitted to the state engineer by registered or
certified mail.
2. The order of determination by the state engineer and the statements or claims of
claimant and exceptions made to the order of determination shall constitute the
pleadings, and there shall be no other pleadings in the cause. (Emphasis added.)
We find the language in NRS 533.170 plain and unambiguous (compare State ex rel. PSC v.
District Court, 94 Nev. 42, 574 P.2d 272 (1978), and interpret the statutory notice
requirements as mandatory, requiring strict compliance. Carpenter v. District Court, 59 Nev.
42, 73 P.2d 1310 (1937); see also Jahn v. District Court, 58 Nev. 204, 73 P.2d 499 (1937); In
re Silver Creek, 57 Nev. 232, 61 P.2d 987 (1936). In Carpenter, we held that the requirement
of filing exceptions to the order of determination is mandatory and jurisdictional. We deem
Carpenter controlling here. In the instant case, the relevant exceptions were first filed some
fifteen months after the required date. While as a general rule our trial courts are afforded
reasonable discretion in controlling the conduct of proceedings pending before them, see,
Iveson v. District Court, 66 Nev. 145, 206 P.2d 755 (1949), the error complained of here is
the trial judge's exercise of jurisdiction where none was legally available. In Application of
Filippini, 66 Nev. 17, 27, 202 P.2d 535, 540 (1949), this Court stated: It is . . . settled in this
state that the water law and all proceedings thereunder are special in character and the
provisions of such law not only lay down the method of procedure, but strictly limit it to that
provided. See also Ruddell v. District Court, 54 Nev. 363, 17 P.2d 693 (1933); and In re
Water Rights in Humboldt River, 49 Nev. 357, 246 P. 692 (1926).
[Headnote 4]
Where, as here, a trial court misconceives the meaning of a mandatory statute and as a
consequence acts when the law expressly enjoins it from acting, relief through an
extraordinary writ is mandated. NRS 533.170; Carpenter v. District Court, supra.
Respondents' reliance on American National is misplaced. That case involved a substantial
user of water who failed to timely file proof of the application of water to beneficial use. The
state engineer cancelled the permit to appropriate water pursuant to NRS 533.450. The
district court reversed the action of the engineer and we affirmed holding the statute
providing that in such circumstances the permit shall be cancelled was a legislative
directive which did not affect the district court's power to grant equitable relief when
warranted. See also Donoghue v. T.O.M. Co., 45 Nev. 110, 198 Pac. 553 (1921). In American
National, unlike the instant case, the district court had jurisdiction over the subject
matter and the parties.
American National, unlike the instant case, the district court had jurisdiction over the subject
matter and the parties. Here, the district court was without subject matter jurisdiction to act
on the late filed claims. NRS 533.170.
[Headnote 5]
Finally, Bailey and Livingston further argue that NRS 533.180
1
supports the trial court's
action since as the district court had the authority to remand the case to the state engineer, it
could avoid the harsh consequence of the application of NRS 533.170 and proceed as it did.
This contention is without merit, as NRS 533.180 cannot be used to enlarge upon the court's
jurisdiction, which jurisdiction has been well defined by our legislature. See Carpenter,
supra.
The writ will issue to prohibit the district court from assuming jurisdiction and from
hearing the untimely exceptions of water rights claimants Bailey and Livingston.
Mowbray, C. J., and McKibben, D. J.,
2
concur.
Batjer, J., concurring:
I agree that the district court should be prohibited from considering the untimely written
water rights exceptions filed by Stanley E. Bailey and Justin W. Livingston on July 10, 1978.
Carpenter v. District Court, 59 Nev. 42, 73 P.2d 1310 (1937). This opinion should not be
construed as prohibiting the district judge from taking testimony pursuant to NRS 533.170(3).
1
The latitude of that subsection is not now before us. Carpenter v. District Court, supra (on
rehearing).
2

Gunderson, J., dissenting:
I respectfully dissent from the majority's holding that the district court exceeded its
jurisdiction to hear respondent's exceptions on the technical ground that they were tardily
filed.
____________________

1
The court may, if necessary, refer the case or any part thereof for such further evidence to be taken by the
state engineer as it may direct, and may require a further determination by him, subject to the court's
instructions.

2
The Governor designated Howard D. McKibben, Judge of the Ninth Judicial District Court, to sit in the
place of the Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.

1
If no exceptions shall have been filed with the clerk of the court as provided in subsection 1, then on the day
set for hearing the court may take further testimony if deemed proper, and shall then enter its findings of fact and
judgment and decree.

2
On rehearing this Court in Carpenter seems to have made an attempt to limit the latitude of (sec. 7922
N.C.L.), now NRS 533.170(3).
Petitioner G. & M. Properties had not filed a claim or proof of claim in the original
proceedings, and apparently the exact situs of petitioner's land was not known to either the
State Engineer or respondents at the time the preliminary determination was made. From the
record, it appears this uncertainty resulted in petitioners being awarded a priority to which
they were not entitled. Respondents Bailey and Livingston did file timely objections to the
preliminary order which, although not directed particularly to petitioners, asserted that no one
claiming interest in certain property was entitled to an 1856 or earlier priority.
Bailey and Livingston requested their then attorney to protest all conflicting priorities.
However, he did not do so, and withdrew from the case because of conflict of interest. Upon
reviewing the record and observing that the State Engineer had erroneously allowed
petitioner, G. & M. Properties, a 1856 priority, respondents and their substituted attorney held
a conference on June 26, 1978, with personnel of the State Engineer's office, and attempted to
have the State Engineer correct his error. At that time the State Engineer pointed out no
exception to the final order of determination had been filed. The State Engineer declined the
request to change his determination at that stage of the proceedings, but agreed that he would
not oppose respondents' appearance at time of trial for the purpose of presenting their
argument to the court.
On June 28, 1978, written notice of objections to the final determination was served on the
State Engineer. Respondent's attorney also served a copy on the attorney who he was
informed represented G. & M. Properties. The principals of G. & M. Properties were also
given notice of respondents' intent to protest said priority by letter and petitioners, Gordon R.
Thompson and Kathleen M. Thompson, were notified by a Deputy Attorney General of said
respondents' intent to protest said priority.
NRS 533.240.1 provides:
In any suit brought in the district court for the determination of a right or rights to the use
of water of any stream, all persons who claim the right to use the waters of such stream
and the stream system of which it is a part shall be made parties.
NRS 533.165 provides for the filing of the State Engineer's order of determination with the
clerk of the district court. NRS 533.160.1 declares that when filed, the order of determination
shall have the effect of a complaint in a civil action. NRS 533.170.1 provides for the filing
of exceptions to the order of determination with the clerk of the court and NRS 533.170.2
states that:
determination with the clerk of the court and NRS 533.170.2 states that:
The order of determination by the state engineer and the statements or claims of
claimants and exceptions made to the order of determination shall constitute the
pleadings, and there shall be no other pleadings in the cause.
In addition to having authority to hear and resolve exceptions as provided by NRS
533.170.4, the court may take testimony at the time set for trial even in absence of exceptions,
NRS 533.170.3, employ experts to investigate and report on controversies, NRS 533.175, and
may refer the case or any part thereof to the State Engineer for further evidence or
determination. NRS 533.180.
The Legislature, by enacting NRS 533.170.2, obviously intended that no rights would be
overlooked in the adjudication process, and that the district court in effecting a final decree
would have available to it all the claims and statements of all claimants, including those who
did not file exceptions. It would appear from NRS 533.170.3, NRS 533.170.4 and NRS
533.175 that in affirming or modifying the order of the State Engineer, the district court has
the power to entertain any matter previously considered by the State Engineer, as well as the
evidence introduced by reason of exceptions to the final order of determination.
If the district court has jurisdiction to evaluate the parties' rights de novo, I see no reason it
should lack the power to allow an exception to be filed late in order to bring the matter before
the court, particularly where, as here, the hearing had not yet been conducted and adequate
time for discovery was allowed. In such a situation, I can perceive no prejudice or irreparable
harm to be suffered by the opposing party.
The majority rely on Carpenter v. District Court, 59 Nev. 42, 73 P.2d 1310 (1937).
However, in that case, we prohibited the district court from conducting new trials on an issue
not previously raised in any manner by the parties filing exceptions. We noted that a new trial
is a re-examination of an issue of fact and the issue to which the ordered new trials were
limited had never been examined. In the case at bar, the court did not act beyond the
pleadings. The priority issue had been raised before the State Engineer. The court merely
extended the time within which respondents were allowed to satisfy the technical requirement
of filing exceptions with the court. It should be noted that at the same time, the court did not
allow respondents to file exceptions raising new issues.
Respondents were party to the proceeding and petitioners concede that, pursuant to NRS
553.240.1, the court had jurisdiction over the parties and subject matter involved. In my view,
the equities of this case are analagous to those in State Engineer v. American Nat'l Ins. Co.,
88 Nev. 424, 498 P.2d 1329 (1972), and that case should control. I would deny the requested
relief.
____________
95 Nev. 309, 309 (1979) Barker v. State
ANTHONY TONY BARKER, Appellant, v. THE
No. 9879
May 9, 1979 594 P.2d 719
Appeal from a judgment of conviction, upon a jury verdict, of murder in the first degree.
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of murder in the first degree, and he
appealed. The Supreme Court, Mowbray, C. J., held that: (1) trial court did not abuse its
discretion in finding that there had been jury misconduct but that error was harmless; (2) trial
court did not abuse discretion in permitting special prosecutor to endorse the name of
additional witness upon information during course of trial, and (3) trial court did not abuse
discretion in admitting testimony of one witness regarding statements allegedly made to
witness by co-conspirator, which implicated co-conspirator and defendant in the murder.
Affirmed.
Mills, Galliher, Lukens, Gibson & Schwartzer, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; George E. Holt, District Attorney, and
Alan R. Jones, Special Prosecutor, Clark County, for Respondent.
1. Criminal Law.
Where court excluded from its consideration of jury misconduct those portions of affidavit which did
deal with mental processes or effect upon jurors of alleged misconduct, and only relied upon those portions
of affidavits of testimony dealing with the conduct and the statements to the jury of the foreman, these were
objective facts over and capable of ascertainment by any observer and the court, therefore, proceeded
properly under applicable rule. NRS 50.065, subd. 2.
2. Criminal Law.
Unsworn testimony of a juror as to a fact which is relevant to determination of issue before the jury
constitutes misconduct in itself and even more is there misconduct when juror has researched such facts,
even though not directly related to specific circumstances which are subject matter of the trial. NRS
50.065, subd. 2.
3. Criminal Law.
Presentation of facts by juror to jury must always raise constitutional issue of right of a defendant to be
present and confront the witnesses against him. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Not every incident of jury misconduct requires granting of a motion for new trial.
5. Criminal Law.
In prosecution for murder in the first degree, trial court properly found that statement made by jury
foreman regarding effect of heroin upon the human mind was jury misconduct, but, inasmuch as statement
had little direct bearing on issue of general credibility of narcotics user, the relevant issue, error was
harmless beyond a reasonable doubt. NRS 48.025, 50.065, subd. 2.
6. Criminal Law.
In prosecution for murder in the first degree, trial court did not abuse discretion in admitting preliminary
hearing testimony of prosecution witness, notwithstanding claim that testimony should have been excluded
on ground that its prejudicial effect outweighed its relevance. NRS 171.198, subd. 7(b).
7. Criminal Law.
In prosecution for murder in the first degree, trial court did not commit reversible error by permitting
special prosecutor to endorse the name of an additional witness upon information during course of trial.
8. Criminal Law.
Parameters of hearsay rule are not to be equated with requirements of confrontation clause.
9. Criminal Law.
In prosecution for murder in the first degree, admission of testimony of witness, regarding statements
allegedly made to witness by co-conspirator, which implicated co-conspirator and defendant in the murder
of defendant's wife, was proper, notwithstanding objection that defendant's Sixth Amendment right to
confront witnesses was violated. U.S.C.A.Const. Amend. 6.
OPINION
A jury found the appellant, Anthony Tony Barker, guilty of murder in the first degree.
He seeks a new trial on the grounds that the court below erred: in denying his motion for a
new trial grounded on juror misconduct; in ruling on the admissibility of the prior testimony
of an unavailable witness; in permitting the state to endorse an additional witness named in
the deposition; and in admitting the out-of-court statements of a co-conspirator, Jerry
Bishop, in violation of Barker's Sixth Amendment right of confrontation.
in the deposition; and in admitting the out-of-court statements of a co-conspirator, Jerry
Bishop, in violation of Barker's Sixth Amendment right of confrontation.
Barker has not challenged the sufficiency of the evidence. Therefore, a detailed
presentation of the evidence is not set forth. In brief, the state sought to prove a conspiracy,
involving Barker and a Jerry Bishop, to murder Barker's wife and share the proceeds of her
insurance policies.
1

THE MOTION FOR A NEW TRIAL
Appellant's motion for a new trial was predicated upon the affidavits of seven jurors. They
averred that the jury foreman had told them of certain research, conducted by him during the
course of the trial, regarding the effect of heroin upon the human mind. The court struck those
portions of the affidavits dealing with the effect of the statements upon the deliberations. The
court took the testimony of the foreman, who admitted reading such material during the trial,
and reporting to the jury:
that opiates in and of themselves are non-toxic to the human body. That there is no
long-lasting physiological or psychological effect resulting from their use in and of
themselves. That oftentimes there are other factors associated with it that result from
other things or that precipitate the use in the first place, but in and of themselves they are
non-toxic.
In a carefully reasoned decision, the court concluded that the statement was made as reported
by the foreman, that there had been juror misconduct, but that the error was harmless beyond
a reasonable doubt. We agree.
1. Competence of Jurors' Evidence.
[Headnote 1]
The state first contends that the order of the trial court should be upheld on the ground that
there was no competent evidence of juror misconduct, relying on the proposition firmly
established in Nevada law . . . prohibiting jurors from impeaching their verdict. This
contention is meritless.
All of the Nevada authority cited by the state precedes the adoption by the legislature, in
1971, of NRS 50.065, subd. 2, which provides: Upon an inquiry into the validity of a verdict
or indictment:
____________________

1
Bishop stands convicted of murder. See Bishop v. State, 91 Nev. 465, 537 P.2d 1202 (1975), and the state
in the instant case presented evidence to show that Barker had hired Bishop to participate in the killing.
Upon an inquiry into the validity of a verdict or indictment:
(a) A juror shall not testify concerning the effect of anything upon his or any other
juror's mind or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith.
Read together with NRS 48.025, adopted at the same time, which provides that all relevant
evidence is admissible unless excluded by statute or by the Constitution, the statute does
allow juror testimony regarding objective facts, or overt conduct, which constitutes juror
misconduct.
The rule is substantially the same as that proposed by the Federal Advisory Committee in
1969. 46 F.R.D. 161, at 289-90. In its published notes, the Committee observed: The
familiar rubric that a juror may not impeach his verdict, dating from Lord Mansfield's time, is
a gross oversimplification. Id. at 290. (See McNally v. Walkowski, 85 Nev. 696, 462 P.2d
1016 (1969)). The Committee continued The jurors are the persons who know what really
happened. Allowing them to testify as to matters other than their own inner reactions involves
no particular hazard to the values sought to be protected [by the prohibition of juror
testimony]. The rule is based upon this conclusion. 46 F.R.D. at 291. (Emphasis added.)
In this case, the court excluded from its consideration those portions of the affidavits
which did deal with mental processes or the effect upon jurors of the alleged misconduct.
The court did rely upon those portions of the affidavits and the testimony dealing with the
conduct, and the statements to the jury, of the foreman. These were objective facts, overt and
capable of ascertainment by any observer, without regard to the state of mind of any juror.
The court, therefore, proceeded properly under the rule. See Gardner v. Malone, 376 P.2d 651
(Wash. 1962). See generally, Mattox v. United States, 146 U.S. 140, 148-49 (1892).
2. Misconduct.
[Headnote 2]
The state next contends that the juror's conduct in this case was not improper. We do not
agree. The unsworn testimony of a juror as to a fact which is relevant to the determination of
an issue before the jury constitutes misconduct in itself. Halverson v. Anderson, 513 P.2d 827
(Wash. 1973). Even more is there misconduct when the juror has researched such facts,
even though not directly related to the specific circumstances which are the subject matter of
the trial. See Thomas v. Kansas Power and Light Company, 340 P.2d 379 {Kan.
and Light Company, 340 P.2d 379 (Kan. 1959) (reading general information on electricity);
Walter v. Ayvazian, 25 P.2d 526 (Cal.App. 1933) (asking general questions of a physician).
[Headnote 3]
The reasons for such a rule are clear. [F]or a jury to consider independent facts, unsifted
as to their accuracy by cross-examination, and unsupported by the solemnity attending their
presentation on oath, before a judge, jury, parties and bystanders, and without an opportunity
to contradict or explain them can never be countenanced. Thomas v. Kansas Power and
Light Company, supra, 340 P.2d at 385. Moreover, presentation of facts by a juror must
always raise the constitutional issue of the right of a defendant to be present and confront the
witnesses against him. See State v. Arney, 544 P.2d 334 (Kan. 1975).
3. Prejudice.
The court's decision to deny appellant's motion for a new trial turned upon the court's
determination, after careful consideration of the evidence regarding the misconduct, in light
of the whole of the evidence produced at trial, that there was, beyond a reasonable doubt, no
prejudice to the appellant as a result of the misconduct.
[Headnote 4]
Not every incidence of juror misconduct requires the granting of a motion for new trial.
Courts which have considered the issue in light of Chapman v. California, 386 U.S. 18
(1967), have held that the proper standard to be appliedin light of the confrontation clause
and due process implications of juror misconductis that a new trial must be granted unless
it appears, beyond a reasonable doubt, that no prejudice has resulted. E.g., United States v.
Welch, 496 F.2d 861 (4th Cir.), cert. denied, 419 U.S. 857 (1974); State v. Arney, supra;
People v. Phillips, 384 N.Y.S.2d 906 (N.Y.Sup. Ct. 1975).
In the case at hand, the court below applied the Chapman standard, and concluded that no
prejudice had resulted. Such a determination is ultimately a question of fact. It is for the trial
court to determine in the first instance whether misconduct on the part of the jury has resulted
in prejudice to a litigant, and its judgment thereon will not be overturned unless abuse of
discretion is manifest. Geo. C. Christopher & Sons, Inc. v. Kansas P. & C. Co., Inc., 523
P.2d 709, 720 (Kan. 1974). See Ryan v. Westgard, 530 P.2d 687 (Wash.App. 1975).
[Headnote 5]
Here the conduct related to the issue of the credibility of a prosecution witness.
prosecution witness. The defense had developed, during cross-examination, that the witness
had been addicted to heroin, on and off for some twenty years. Further defense questions,
however, went to the economic or physical effect of such addiction upon the motives of the
witness for lying, rather than to any direct psychological or physiological effect upon the
mind of an addict. The statement made (which the trial court found to be that contained in the
foreman's testimony) had little direct bearing on the issue of general credibility of a narcotics
user. In considering the potential effect of the statement, in relation to the mass of evidence
produced at trial, the court was justified in concluding that it could not have affected the
juror's verdict. The court did not err in denying the motion for a new trial.
THE ADMISSIBILITY OF THE UNAVAILABLE
WITNESS' TESTIMONY
1. Preliminary Hearing Testimony.
[Headnote 6]
After a hearing the trial court determined to admit the testimony of prosecution witness
Keeler, given at the preliminary examination. The court concluded that (a) the defendant had
been present and represented by counsel, (b) the witness had been cross-examined by
defendant's counsel, and (c) the witness was actually unavailable, despite the state's pre-trial
efforts to locate her. Appellant does not challenge the court's determination in this regard. See
NRS 171.198(7)(b); Drummond v. State, 86 Nev. 4, 462 P.2d 1012 (1970). Instead, appellant
contends that the testimony should have been excluded on the ground that its prejudicial
effect outweighed its relevance. Appellant has not demonstrated any abuse of discretion in
this regard (see Bishop v. State, 92 Nev. 510, 521, 554 P.2d 266 (1976)), and we therefore
refuse to entertain this challenge, unsupported by any relevant authority. Leaders v. State, 92
Nev. 250, 548 P.2d 1374 (1976); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971).
2. Prior Trial Testimony.
Upon the court's ruling that it would admit Keeler's preliminary hearing testimony, defense
counsel indicated their intent to move for the admission of the witness' testimony from the
prior trial of Bishop regarding her use of drugs.
The court below denied the motion which appellant now claims was prejudicial error. The
transcript of the testimony of witness Keeler given at the earlier Bishop trial is not included in
the record on this appeal; neither was a previous offer of proof submitted.
submitted. Therefore, we are unable to evaluate the significance of her earlier Bishop trial
testimony when compared to the preliminary hearing testimony given by Keeler in the instant
case. For this reason, we find the assignment of error meritless since we are not in a position
to review it.
THE ENDORSEMENT OF THE WITNESS'
NAME ON THE INFORMATION
[Headnote 7]
Appellant suggests that the trial court committed reversible error by permitting the special
prosecutor to endorse the name of an additional witness, Victor Trapani, upon the information
during the course of the trial.
The court found, based on substantial evidence, that the special prosecutor did not know of
the witness' testimony prior to trial. The prosecutor did not learn of the testimony until the
evening before the motion was presented to the court. The court simultaneously granted
defense counsels' motion for a continuance, of the duration they requested, and further
required the district attorney's office to make available to the defense any information
regarding the witness in their files. Under these circumstances, we find no abuse of discretion
on the part of the trial court. NRS 173.045(2). Hess v. State, 73 Nev. 175, 313 P.2d 432
(1957); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948); State v. Monahan, 50 Nev. 27, 249
P. 566 (1926).
THE OUT-OF-COURT STATEMENTS
Appellant challenges the admission of the testimony of one Delmer Allen, regarding
statements allegedly made to Allen by Bishop, which implicated Bishop and appellant in the
murder of appellant's wife, on the ground that his Sixth Amendment right to confront the
witnesses against him was violated.
2
Appellant does not challenge the trial court's
determination that sufficient substantial evidence of a conspiracy between Barker and Bishop
existed to allow admission of the statements under NRS 51.035(3)(e). See Goldsmith v.
Sheriff, 85 Nev. 295, 454 P.2d 86 (1969); United States v. Nixon, 418 U.S. 683, 701 (1974).
____________________

2
Bishop refused to testify at trial, all parties acknowledging the futility of pursuing the issue of a contempt
citation with a man serving sentence under conviction of murder. The validity of his refusal, as opposed to the
fact, does not in any case affect the issue presented here. See Douglas v. Alabama, 380 U.S. 415, 420 (1965).
[Headnote 8]
In response to appellant's argument, respondent claims that this issue was disposed of by
the denial of appellant's pre-trial petition for habeas corpus. Barker v. Sheriff, 90 Nev. 460,
529 P.2d 204 (1974). Not so. The only reference in that opinion to the issue now presented is
a citation to Goldsmith v. Sheriff, supra. That case focused on the issue of the requirements
of the (then) hearsay exception (now deemed non-hearsay), and not with the mandates of the
confrontation clause. As the high court made clear in Dutton v. Evans, 400 U.S. 74 (1970),
decided the following year, the parameters of the hearsay rule are not to be equated with the
requirements of the confrontation clause. 400 U.S. at 81-82, 86. The instant issue raised by
appellant was not decided on the habeas appeal.
In Dutton, the Supreme Court upheld the conviction of the defendant, over a challenge to
the admission of a statement allegedly made by a co-conspirator, on Sixth Amendment
grounds.
[Headnote 9]
The court stressed (a) the full opportunity of the defendant to cross-examine the testifying
witness regarding whether the statement had been made by the declarant, and (b) the indicia
of reliability of the statement itself, i.e., it was spontaneous and a declaration against penal
interest. 400 U.S. at 88-89. Both of these criteria were met in the case at hand. Defense
counsel ably cross-examined Allen at length. The statements made were clearly against
declarant's penal interests, and they were not induced by a coercive situation or atmosphere.
We conclude, therefore, that the order of the trial court denying appellant's motion for a
new trial must be affirmed; that the trial court properly received evidence of the juror's
misconduct from the jurors themselves, and concluded that misconduct had occurred, but that
there was no abuse of discretion in the court's determination that the appellant had not been
prejudiced thereby. The rulings of the trial court on the admission of prior testimony of the
unavailable witness must be upheld, including its discretionary determination to permit the
prosecutor to endorse the name of a recently-discovered witness upon the information (with
allowance for a continuance on behalf of the defense). The admission of the statement by
Bishop to Allen was proper. Therefore, we affirm.
____________
95 Nev. 317, 317 (1979) Van Valkenberg v. State
RALPH VAN VALKENBERG, Appellant, v. THE
No. 10257
May 9, 1979 594 P.2d 707
Mendoza, Judge.
Defendant was convicted in the district court of sale of controlled substance, and
defendant appealed. The Supreme Court held that evidence was sufficient to support guilty
verdict.
Affirmed.
William F. Hess, Las Vegas, for Appellant.
In prosecution for sale of controlled substance, evidence was sufficient to support guilty verdict.
2. Criminal Law.
Absent offer of proof, in prosecution for sale of controlled substance, it could not be determined whether
defendant's substantial rights were prejudiced by refusal of trial court to allow witness to respond to inquiry
concerning prior prosecution for drug-related offenses. NRS 47.040, subd. 1(b), 177.255.
3. Criminal Law.
In view of agreement by defense counsel at trial to instruction alleged on appeal to have been misleading,
Supreme Court would decline to review propriety of such instruction. NRS 47.040, subd. 1(b), 177.255.
OPINION
Per Curiam:
Ralph Van Valkenberg appeals his conviction of sale of a controlled substance (morphine),
claiming (1) the evidence was insufficient to support the verdict, and (2) the trial court
committed prejudicial error by restricting cross-examination of a witness, and in the giving of
a certain instruction. We disagree.
[Headnote 1]
1. The record contains the following evidence. Appellant had indicated to one Peter Kobal
his desire for assistance in selling some morphine. The day before the offense, Peter Kobal
called appellant to arrange a meeting for the sale of the morphine to a friend of his brother,
Mike Kobal.
95 Nev. 317, 318 (1979) Van Valkenberg v. State
morphine to a friend of his brother, Mike Kobal. Without Peter's knowledge, his brother was
an informant, and the friend was police detective Kent Clifford.
In an automobile on the evening of the offense, Peter Kobal directed Mike Kobal and
officer Clifford to the place they were to meet appellant. Peter exited the automobile, went to
a nearby apartment, and returned shortly thereafter with appellant, who asked to see Detective
Clifford's money. After the officer showed him approximately three hundred dollars,
appellant and Peter Kobal went back to the apartment for a short time, then returned to the
vehicle. Appellant told officer Clifford that Peter had the morphine. Peter then handed a vial
of morphine to Clifford in exchange for two hundred dollars, of which Peter took ten dollars
and gave the rest to appellant. In light of this evidence, the jury could reasonably find
appellant was a principal to the transaction, and guilty of the crime charged. See Sheriff v.
Hodges, 90 Nev. 3, 517 P.2d 1006 (1974); see also People v. Taylor, 338 P.2d 377 (Cal.
1959). The evidence is thus sufficient to support the verdict. Wheeler v. State, 91 Nev. 119,
531 P.2d 1358 (1975).
[Headnote 2]
2. On cross-examination of Peter Kobal, the trial court refused to allow inquiry into
whether the witness had ever been prosecuted for a drug-related offense. Appellant argues
this was reversible error. However, appellant's trial counsel made no offer of proof. Thus,
even assuming the inquiry should have been allowed, we have no way of determining
whether appellant's substantial rights were prejudiced by the trial court's refusal to allow the
witness to respond, We therefore disregard this contention. NRS 47.040(1)(b); NRS 177.255.
[Headnote 3]
Similarly, we decline to review the propriety of the instruction appellant now asserts to be
misleading because the record indicates appellant's trial counsel not only failed to object to
the instruction, but agreed to it. See Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976);
McCall v. State, 91 Nev. 556, 540 P.2d 95 (1975).
Affirmed.
____________
95 Nev. 319, 319 (1979) Gunter v. State
DWAYNE LEE GUNTER, Appellant, v. THE
No. 10351
May 9, 1979 594 P.2d 708
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant appealed from an order denying his petition for post-conviction relief entered in
the district court. The Supreme Court held that where, although defendant made known his
desire to do so, he was not afforded opportunity to present complaint to Supreme Court,
through counsel, on direct appeal and a belated notice of appeal was dismissed for want of
jurisdiction following appointment of counsel, defendant, alleging such circumstances,
alleged denial of constitutional right justifying post-conviction relief, even though a direct
appeal was not pending nor any longer available, and denial of right to counsel until after
expiration of time to appeal established a categorical excuse under statute which elevated to
constitutional dimension effect of any error which might have occurred and would have been
grounds for relief on appeal.
Reversed.
Jaquette & Kilpatrick, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
1. Criminal Law.
Even if defendant had, through his own omission, failed to raise issue of claimed incompetency of his
trial counsel on direct appeal, district court would have had jurisdiction to consider it on petition for
post-conviction relief, in the exercise of its discretion. NRS 177.315 et seq., 177.315, subd. 1, 177.375,
subd. 2(b).
2. Criminal Law.
Where, although defendant made known his desire to do so, he was not afforded opportunity to present
complaints to Supreme Court, through counsel, on direct appeal and a belated notice of appeal was
dismissed for want of jurisdiction following appointment of counsel, defendant, alleging such
circumstances, alleged denial of constitutional right justifying post-conviction relief, even though a direct
appeal was not pending nor any longer available, and denial of right to counsel until after expiration of
time to appeal established a categorical excuse under statute which elevated to constitutional dimension
effect of any error which might have occurred and would have been grounds for relief on
appeal. NRS 177.315 et seq., 177.315, subds.
have occurred and would have been grounds for relief on appeal. NRS 177.315 et seq., 177.315, subds.
1, 2, 177.320, 177.375, subds. 2, 2(b).
OPINION
Per Curiam:
Appellant stands convicted of perjury. Appellant's direct appeal from such conviction was
dismissed, because notice of appeal was not timely filed. By petition for post-conviction
relief, NRS 177.315, et seq., appellant contends his constitutional rights have been violated,
NRS 177.315(1), because his request for counsel to prosecute his appeal was not honored,
and that therefore, also, there was good cause for his failure to present three significant issues
by direct appeal. See NRS 177.375(2)(b).
[Headnotes 1, 2]
The district court erroneously held it lacked jurisdiction to consider appellant's petition for
post-conviction relief. One issue appellant sought to raise was incompetency of his trial
counsel. Even had appellant failed, through his own omission, to raise this issue on direct
appeal, the district court would have had jurisdiction to consider it, in the exercise of its
discretion. Warden v. Lischko, 90 Nev. 221, 222-223, 523 P.2d 6, 7 (1974). Here, however, it
conclusively appears that, although appellant made known his desire to do so, he was not
afforded an opportunity to present his various complaints to this court, through counsel, on
direct appeal. Although counsel ultimately was appointed, and filed a belated notice of
appeal, this court dismissed such appeal for want of jurisdiction.
In these circumstances, we consider that appellant has alleged the denial of a constitutional
right, pursuant to NRS 177.315 and 177.320. Cf. Warden v. Lischko, supra. Post-conviction
relief in this case is not premature since a direct appeal is not pending nor any longer
available. See Wehrheim v. State, 84 Nev. 477, 443 P.2d 607 (1968); NRS 177.315(2).
Moreover, because he was denied right to counsel until after expiration of time to appeal,
appellant has established a categorical excuse, under NRS 177.375(2), which also elevates to
constitutional dimension the effect of any error which might have occurred and would have
been grounds for relief on appeal.
The judgment of the district court, denying appellant's petition for post-conviction relief, is
therefore reversed, with instructions to examine the merits of all issues to which
appellant's petition alludes, and which might have been raised by direct appeal, if
appellate counsel had been timely appointed.
instructions to examine the merits of all issues to which appellant's petition alludes, and
which might have been raised by direct appeal, if appellate counsel had been timely
appointed.
____________
95 Nev. 321, 321 (1979) Walker v. State
BERNARD THOMAS WALKER, Appellant, v. THE
No. 10439
May 9, 1979 594 P.2d 710
Mendoza, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court held that: (1) circumstances surrounding event, in addition to mere presence at scene,
were sufficient to support an inference that defendant was party to offense and, hence, to
support conviction, and (2) denying motion for new trial based on juror misconduct was not
error, notwithstanding that juror remarked during deliberations that he had been involved in a
situation where robbers had ordered him to lie on floor, where juror had not intentionally
concealed a material fact relating to his qualifications, but had given truthful responses on
voir dire, and where statement attributed to juror during deliberations did not improperly
influence jury or taint its verdict.
Affirmed.
Michael A. Cherry, Las Vegas, for Appellant.
1. Robbery.
Circumstances indicating that one or two seconds after victim's feet were bound by an assailant, security
officers discovered defendant standing over victim, that no other persons were present in area, and that
defendant wore shoes of an unusual style, matching victim's description of those worn by one of two
assailants, were sufficient, in addition to mere presence at scene, to support an inference that defendant was
party to offense and, hence, to support conviction of robbery. NRS 200.380.
2. Criminal Law.
Where it is claimed that a juror has answered falsely on voir dire about a matter of potential bias or
prejudice, an exception is made to general rule that a juror's statements will not be received to impeach the
verdict.
3. Criminal Law.
Determination of what result should follow failure of a juror to answer fully a question touching upon his
qualifications turns upon whether he was guilty of an intentional concealment.
4. Criminal Law.
Denying motion for new trial based on juror misconduct was not error, notwithstanding that juror
remarked during deliberations that he had been involved in a situation where robbers had ordered him to lie
on floor, where juror had not intentionally concealed a material fact relating to his qualifications, but had
given truthful responses on voir dire, and where statement attributed to juror during deliberations did not
improperly influence jury or taint its verdict.
OPINION
Per Curiam:
A jury convicted Bernard Thomas Walker of robbery, a violation of NRS 200.380.
1
Walker appeals, claiming: (1) insufficiency of the evidence to support the verdict; and (2) the
trial court erred in denying his motion for new trial based on alleged juror misconduct. We
affirm the judgment.
1. Appellant contends his presence at the crime scene was the only substantial evidence
linking him to the offense and the evidence is thus insufficient to support an inference that he
was party to the robbery. Appellant's premise is belied by the record which contains the
following evidence:
One or two seconds after the victim's feet were bound by an assailant, security officers
discovered appellant standing over the victim, but no other persons were present in the area.
Appellant wore shoes of an unusual style, matching the victim's description of those worn by
one of the two black assailants. A few minutes before the incident, appellant was seen
entering the casino, accompanied by another black male. This person was seen leaving the
area immediately after scuffling noises alerted security officers, but before they discovered
what had occurred. When he saw a security officer follow him, appellant's companion ran,
indicating consciousness of guilt.
[Headnote 1]
These circumstances, in addition to mere presence at the scene, clearly support an
inference that appellant was party to the offense. Winston v. Sheriff, 92 Nev. 616, 555 P.2d
1234 (1976). The evidence is sufficient to support the verdict.
____________________

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. . . .
2. Appellant also claims the trial court erred in denying his motion for new trial based on
juror misconduct. On voir dire by the court, juror No. 1 indicated he had never been a victim
of a crime. During deliberations, this same juror remarked that he had been involved in a
situation where robbers had ordered him to lie on the floor. This remark was reported by
another juror to appellant's counsel two days after the verdict was rendered. At a hearing on
the matter, the complaining juror, and a third juror who heard the remark during
deliberations, both testified that it did not in any way influence their verdict. Juror No. 1
explained to the court that he had not been a victim, but had been present at a pool hall
robbery ten years earlier.
[Headnotes 2, 3]
Where it is claimed that a juror has answered falsely on voir dire about a matter of
potential bias or prejudice, an exception is made to the general rule that jurors' statements will
not be received to impeach the jury's verdict. McNally v. Walkowski, 85 Nev. 696, 462 P.2d
1016 (1969). In the final analysis, the determination of what result should follow the failure
of a juror to answer fully a question touching upon his qualification turns upon whether or not
he was guilty of an intentional concealment. The determination of that question must be left
with the sound discretion of the trial court. Id. at 701.
[Headnote 4]
The trial court in this case considered the jurors' statements and determined a new trial was
not warranted. In his decision denying the motion, the judge determined that juror No. 1 had
not intentionally concealed a material fact relating to his juror qualifications, but had given
truthful responses on voir dire. The court also decided the statements attributed to juror No. 1
during deliberations had not improperly influenced the jury or tainted its verdict. Appellant
urges us to extend the McNally rule and require a new trial if juror information is
unintentionally concealed. We decline to do so. We have reviewed the record thoroughly, and
for the reasons stated by the trial court in its decision below, affirm the denial of appellant's
motion for new trial.
____________
95 Nev. 324, 324 (1979) Henderson v. State
WILLIE SULTON HENDERSON, Appellant, v. THE
No. 10306
May 9, 1979 594 P.2d 712
Appeal from conviction upon a jury verdict, Eighth Judicial District Court, Clark County;
Defendant was convicted by a jury in the district court of burglary, rape, robbery and
infamous crime against nature, all committed with use of deadly weapon, and defendant
appealed. The Supreme Court, Mowbray, C. J., held that: (1) there was sufficient evidence to
support jury's guilty verdict; (2) under circumstances, issue as to whether trial court erred in
admitting in-court identification of witness had not been properly preserved for review, and
(3) defendant's newly appointed counsel's contention, at oral argument, that such issue should
be addressed indirectly through consideration of competence of defendant's trial counsel
provided no basis for relief, and, in any event, had not been timely raised.
Affirmed.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
1. Rape.
In a rape case, a jury may convict upon the uncorroborated testimony of the victim.
2. Burglary; Criminal Law; Rape; Robbery.
In prosecution for burglary, rape, robbery and the infamous crime against nature, all committed with use
of deadly weapon, there was sufficient evidence to support defendant's conviction, since jury was entitled
to believe victim's testimony that she saw defendant face-to-face before he put on mask and after he
removed it and testimony of witness who positively identified defendant at trial, and jury was at liberty to
disbelieve testimony of defendant and his family that on day in question, he and his wife and daughter went
for an outing at Lake Mead and did not return until long after crimes had been committed.
3. Criminal Law.
When there is conflicting testimony presented, it is for jury to determine what weight and credibility to
give to testimony.
4. Criminal Law.
Where there is substantial evidence to support a verdict in a criminal case, the reviewing court will not
disturb the verdict nor set aside the judgment.
5. Criminal Law.
Where witness' in-court identification of defendant was received without objection by defendant's trial
counsel, nor was there any subsequent motion to strike testimony, issue as to whether trial court erred in
admitting such identification had not been properly preserved for review.
6. Criminal Law.
Defendant's newly appointed counsel's contention, at oral argument, that waived issue as to whether trial
court erred in admitting in-court identification of witness should be addressed indirectly through
consideration of competence of defendant's trial counsel provided no basis for relief, and, in any event, had
not been timely raised. NRAP 31(d).
OPINION
A jury found Willie Sulton Henderson guilty of the crimes of burglary and of rape, robbery
and the infamous crime against nature, all committed with the use of a deadly weapon.
Henderson seeks reversal on two grounds: (1) that the trial court erred in admitting the
in-court identification of witness Helms, and (2) that the evidence presented was insufficient
to support the guilty verdict. We disagree and affirm.
THE FACTS
The victim of the crimes testified in substance as follows: that she had been gardening in
her yard, and went into her home to check on her napping three year old son. There she was
accosted by Henderson, who grabbed her from behind and stuck a knife in her back. He took
her into her bedroom, and forced her to disrobe while putting a nylon stocking over his head
and face. The victim testified that Henderson then, and at knife point, forced her to have oral
sex and intercourse with him. He bound and gagged her and then left. Thereafter, the victim
was able to free herself and called for help. The victim identified Henderson from a group of
photos shown her by the police, and later did so at a physical lineup at police headquarters.
A neighbor, Leslie Helms, testified that he had seen a black man at the time the offenses
were committed, walking down the alley near the victim's house. He identified Henderson
from a group of police photos, and again at a lineup. Henderson claims this lineup was tainted
because a representative from the Public Defender's Office testified before the jury that he
was present when Helms made his identification of Henderson, and that prior thereto, the
victim had said words audible to Helms that she could identify "number four" as her
assailant.
that she could identify number four as her assailant. Helms testified that he never heard the
victim's statement.
Henderson's defense was that on the day in question, he and his wife and daughter went for
an outing at Lake Mead, and that they did not return until long after the crimes had been
committed. Henderson's wife and mother-in-law corroborated his statement.
THE SUBSTANTIAL EVIDENCE
[Headnotes 1, 2]
Appellant's claim that there was insufficient evidence to support his conviction is
meritless. It is the law of this state that in a rape case, a jury may convict upon the
uncorroborated testimony of the victim. May v. State, 89 Nev. 277, 510 P.2d 1368 (1973);
Bennett v. Leypoldt, 77 Nev. 429, 366 P.2d 343 (1961). See also, Stalley v. State, 91 Nev.
671, 541 P.2d 658 (1975). Here the victim testified that she saw Henderson face to face
before he put on the mask and after he removed it. The jury was entitled to believe such
testimony, and also the testimony of witness Helms who positively identified Henderson at
trial. The jury was at liberty to disbelieve the testimony of Henderson and his family.
[Headnotes 3, 4]
As we have noted, [w]hen there is conflicting testimony presented, it is for the jury to
determine what weight and credibility to give to the testimony. Where there is substantial
evidence to support a verdict in a criminal case, as the record indicates [exists] in this case,
the reviewing court will not disturb the verdict nor set aside the judgment.' Hankins v. State,
91 Nev. 477, 477-78, 538 P.2d 167 (1975), quoting Sanders v. State, 90 Nev. 433, 434, 529
P.2d 206 (1974).
THE IN-COURT IDENTIFICATION
[Headnotes 5, 6]
Witness Helms' in-court identification of appellant was received without objection by
Henderson's counsel, nor was there any subsequent motion to strike the testimony. The issue
has, therefore, not been properly preserved for review. Septer v. Warden, 91 Nev. 84, 530
P.2d 1390 (1975). See Mathews v. State, 94 Nev. 179, 576 P.2d 1125 (1978); Thomas v.
State, 93 Nev. 565, 571 P.2d 113 (1977). At oral argument, newly appointed counsel for
Henderson impliedly conceded this point.
point. He argued, however, that this issue should be addressed indirectly through
consideration of the competence of Henderson's trial counsel.
This argument is, upon the record presented, meritless and in any event, has not been
timely raised. NRAP 31(d). See White v. State, 95 Nev. 159, 591 P.2d 266 (1979).
Therefore, we affirm the jury verdict.
____________
95 Nev. 327, 327 (1979) Hill v. State
THOMAS EDWARD HILL, Appellant, v. THE
No. 10294
May 9, 1979 594 P.2d 699
Appeal from a judgment of conviction upon a jury verdict, Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of supplying marijuana on two occasions to
undercover narcotics agents. Defendant appealed, and the Supreme Court, Batjer, J., held
that; (1) evidence that defendant had previously sold marijuana to a minor was relevant in
establishing defendant's state of mind while supplying marijuana to the undercover agents
and, therefore, the evidence was properly admitted in rebuttal to entrapment defense; (2)
evidence concerning defendant's prior marijuana transaction was admissible to rebut
defendant's claim that he procured the controlled substance not for any personal benefit but
only because of the narcotics agents' imploring and insistence, and (3) the trial court's
instruction on entrapment was not error.
Affirmed.
Thompson, J., dissented.
Norman Y. Herring, Nevada State Public Defender, for Appellant.
Thomas L. Stringfield, *District Attorney, Elko County, and Robert C. Manley, of
Winnemucca, for Respondent.
____________________
* This case was tried by Robert C. Manley, who was then the Elko County District Attorney.
95 Nev. 327, 328 (1979) Hill v. State
1. Criminal Law.
Evidence of other offenses is subject to exclusion as prejudicial unless such evidence is relevant to prove
the commission of the crime charged with respect to motive, intent, identity, the absence of mistake or
accident or a common scheme or plan.
2. Criminal Law.
Where the charge is a narcotics offense, other similar offenses may be received to show the accused's
knowledge of the narcotic nature of the substance involved.
3. Criminal Law.
In prosecution for supplying marijuana on two occasions to undercover agents wherein defendant claimed
entrapment, evidence that defendant had previously sold marijuana to a minor was relevant to establish
defendant's state of mind while supplying marijuana to the undercover agents and, therefore, the evidence
was admissible as proper rebuttal to the defense of entrapment.
4. Criminal Law.
Defense of entrapment focuses on a defendant's predisposition to commit the crime as charged.
5. Criminal Law.
In prosecution for supplying marijuana on two occasions to undercover law enforcement agents wherein
defendant claimed that he was simply the procurer for the agents, evidence that defendant had previously
sold marijuana to a minor tended to rebut defendant's testimony that he procured the controlled substance
not for any benefit to him but only because of the agent's imploring and insistence and, therefore, the
evidence was properly admitted in rebuttal.
6. Criminal Law.
Decision to admit or exclude evidence of separate and independent offenses rests within the trial court's
sound discretion and the court's ruling will not be disturbed unless manifestly wrong. NRS 48.045, subd.
2.
7. Criminal Law.
Whenever the state induces a person to pursue a course of conduct upon which he would not otherwise
have embarked and the person then commits a criminal act which he would not have committed but for the
action of the state's agent, conviction for such a crime is against public policy; however, where the criminal
intent originates in the mind of the accused and the offense is completed, the mere fact that the as accused
was furnished an opportunity to commit a crime or was aided in the commission thereof by an agent of the
state should constitute no defense.
8. Criminal Law.
In prosecution for supplying marijuana to an undercover agent wherein defendant asserted that he was
entrapped, it was not error to instruct jury that there was no entrapment if defendant had the requisite
criminal intent and the officers and their agent, in good faith and solely for the purpose of detecting or
discovering crime, furnished an opportunity or aided or encouraged the commission of crime.
OPINION
Appellant was convicted by a jury of supplying a controlled substance, marijuana, on
two separate occasions, to undercover agents from the Nevada Department of
Investigations and Narcotics.
95 Nev. 327, 329 (1979) Hill v. State
substance, marijuana, on two separate occasions, to undercover agents from the Nevada
Department of Investigations and Narcotics. His defense was that of entrapment, and his
primary claim of error is that the trial court improperly instructed the jury concerning that
defense. He also contends that the trial court erred in admitting evidence of a prior sale of
marijuana.
[Headnotes 1, 2]
1. Appellant's defense was (1) entrapment and (2) that he was simply the procurer for the
undercover agents, see Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). In rebuttal of these
defenses, the prosecution was permitted to call a minor, who testified that he had purchased a
marijuana cigarette from Hill a few weeks before the date upon which he furnished the
controlled substance to the undercover agents. We regard evidence of other offenses as being
prejudicial and therefore follow the rule of exclusion, unless such evidence is relevant to
prove the commission of the crime charged with respect to motive,
1
intent,
2
identity,
3
the
absence of mistake or accident,
4
or a common scheme or plan.
5
Tucker v. State, 82 Nev.
127, 412 P.2d 970 (1966). Additionally, where the charge is a narcotic offense, other similar
offenses may be received to show the accused's knowledge of the narcotic nature of the
involved substance.
6
Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971).
____________________

1
State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102 (1923); Richardson v. State, 91 Nev. 266, 534 P.2d
913 (1975); Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979).

2
State v. Vertrees, 33 Nev. 509, 112 P. 42 (1910); State v. McMahon, 17 Nev. 365, 30 P. 1000 (1883); State
v. Elges, 69 Nev. 330, 251 P.2d 590 (1952); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961); Wyatt v.
State, 77 Nev. 490, 367 P.2d 104 (1961); Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965); Richardson v.
State, supra; Wallin v. State, 93 Nev. 10, 558 P.2d 1143 (1977); Findley v. State, 94 Nev. 212, 577 P.2d 867
(1978); McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978).

3
State v. Roberts, 28 Nev. 350, 82 P. 100 (1905); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959); Junior v.
State, 89 Nev. 121, 507 P.2d 1037 (1973); Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976); Green v. State, 94
Nev. 731, 587 P.2d 38 (1978); Mayes v. State, 95 Nev. 140, 591 P.2d 250 (1979); Reed v. State, 95 Nev. 190,
591 P.2d 274 (1979).

4
State v. McMahon, supra; Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965); McMichael v. State, supra.

5
Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Mayer v. State, 86 Nev. 466, 470 P.2d 420 (1970);
Willett v. State, 94 Nev. 620, 584 P.2d 684 (1978); Simpson v. State, 94 Nev. 760, 587 P.2d 1319 (1978); Seim
v. State, supra.

6
Mayer v. State, supra; Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969); Fairman v. Warden, Nevada
State Prison, 83 Nev. 332, 431 P.2d 660
95 Nev. 327, 330 (1979) Hill v. State
The trial court, prior to admitting evidence of the sale of marijuana to the minor, excused
the jury, heard an offer of proof by the prosecution, and then ruled that the evidence would be
admitted for the limited purpose of showing intent and motive. NRS 48.045(2).
7
Upon the
conclusion of the minor's testimony, the trial court admonished the jury and later in the trial,
by way of an instruction, made it clear that all evidence of other crimes or offenses was not to
be considered to show the bad character of Hill, but only for the limited purpose of showing
his intent and motive to commit the crimes with which he was charged. State v. McFarlin, 41
Nev. 486, 172 P. 371 (1918); Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965).
[Headnote 3-5]
Since the defense of entrapment focuses on an appellant's predisposition to commit the
crime as charged, evidence that he previously supplied marijuana was relevant in establishing
his state of mind while supplying marijuana to the undercover agents. People v. Foster, 111
Cal.Rptr. 666 (Cal.App. 1974); People v. Mora, 117 Cal.Rptr. 262 (Cal.App. 1974).
8
The
evidence also rebuts Hill's testimony that he procured the controlled substance not for any
benefit to him, but only because of the agent's imploring and insistence. See Roy v. State,
supra; Brown v. State, supra.
[Headnote 6]
The trial court recognized the prejudicial effect the testimony might have on appellant, but
nevertheless admitted it, pursuant to NRS 48.045(2), as proper rebuttal to the defenses which
had been raised. The decision to admit or exclude evidence of separate and independent
offenses rests within the sound discretion of the trial court, Elsbury v. State, 90 Nev. 50, 518
P.2d 599 (1974), and will not be disturbed unless it is manifestly wrong. Brown v. State,
supra. We find no error in the trial court's ruling.
2. Appellant also urges reversal upon the ground that the trial court erroneously
instructed the jury on his defense of entrapment, with particular exception taken to that
portion of the instruction reading:
____________________
(1967); Fairman v. State, supra; Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962); Wallace v. State, supra;
Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970); Fox v. State, 87 Nev. 591, 491 P.2d 721 (1971).

7
NRS 48.045(2) Provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.

8
See People v. Barraza, 591 P.2d 947 (Cal. 1979), where the subjective or origin-of-intent test for
entrapment was abandoned and the objective theory of entrapment was adopted.
95 Nev. 327, 331 (1979) Hill v. State
trial court erroneously instructed the jury on his defense of entrapment, with particular
exception taken to that portion of the instruction reading:
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 the Defendant, and that the Defendant had the requisite
criminal intent to commit the crime, then there is no entrapment.
We have not discovered, nor has appellant directed our attention to, any authority which
would support his contention that the use of the words aid or encouraged in an instruction
on entrapment renders the verdict of guilty fatally defective and mandates reversal.
In Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977), we treated the prosecution's failure
to brief the issue of entrapment as a confession of error. Accordingly, the case was reversed
and remanded for a new trial. The remaining pronouncements in that opinion were dicta.
In re Wright, 68 Nev. 324, 232 P.2d 398 (1951), was a disciplinary proceedings against an
attorney in which this Court reviewed, de novo, the record established before an
administrative committee of the Nevada State Bar and the board of governors of the Nevada
State Bar. There was no jury involved in that case and consequently no jury instructions to be
considered.
In State v. Busscher, 81 Nev. 587, 407 P.2d 715 (1965), the only question before this
Court was whether or not entrapment had been established as a matter of law. The defendant
Busscher did not testify nor produce any witnesses; and all relevant evidence offered by the
State stood unrefuted. Accordingly, this Court held that entrapment had not been established
as a matter of law. Nowhere in the case was the propriety of the use of the words aid or
encouraged in an instruction on entrapment considered.
In Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961), defendant Wyatt testified at trial and
denied any attempt to commit an abortion on the alleged victim, yet on appeal he asserted the
defense of entrapment and raised the question whether a requested instruction on entrapment
must be given in light of the evidence in that case. This Court held that Wyatt had expressly
repudiated the defense of entrapment, thus the trial court was not required to instruct on the
subject of entrapment. The use of the words aid or encouraged or any other wording in a
jury instruction was not an issue at that trial or on appeal.
95 Nev. 327, 332 (1979) Hill v. State
appeal. In Wyatt, this Court quoted with approval from People v. Cummings, 296 P.2d 610,
615 (Cal.App. 1956), and People v. Lindsey, 205 P.2d 1114 (Cal.App. 1949):
Where the doing of an act is a crime, regardless of the consent of anyone, the courts are
agreed that if the criminal intent originates in the mind of the accused and the offense is
completed, the fact that an opportunity was furnished, or that the accused is aided in the
commission of the crime in order to secure the evidence necessary to prosecute him
therefor, constitutes no defense. 77 Nev. at 496-497.
In People v. Strohl, 129 Cal.Rptr. 224 (Cal.App. 1976), the claim of entrapment was
rejected and the judgment of conviction was affirmed. In that case, an instruction was given
which was similar to that found in the instruction challenged by appellant. In People v.
Jackson, 268 P.2d 6 (Cal. 1954), the Supreme Court of California held that an instruction
using the words aids or encourages was a correct pronouncement of the law.
9
Cf. State
v. Gellers, 282 A.2d 173 (Me. 1971); State v. McCrillis, 376 A.2d 95 (Me. 1977).
The Oklahoma Court of Criminal Appeals has also approved of an entrapment instruction
which uses the words aid or encourages. Wixon v. State, 527 P.2d 333, 336 (Okla. Crim.
1974).
[Headnotes 7, 8]
Whenever the state induces a person to pursue a course of conduct upon which he would
not otherwise have embarked and he commits a criminal act which he would not have
committed but for the action of the state's agent, conviction for such a crime is against public
policy. However, where the criminal intent originates in the mind of the accused and the
offense is completed, the mere fact that the accused is furnished an opportunity to commit a
crime or was aided in the commission thereof by an agent of the state should constitute no
defense.
This seems to be in accord with the position taken by the Supreme Court of the United
States in Sorrells v. United States, 287 U.S. 435 (1932), and Sherman v. United States, 356
U.S. 369 (1958). In United States v. Russell,
10
411 U.S. 423, 434-436, {1973), the High
Court refused to overrule Sorrells and Sherman and said:
____________________

8
See footnote 8.

10
The facts of the Russell case clearly evidences a situation where an officer aided and encouraged the
commission of the crime. The undercover narcotics agent supplied defendant with an essential and difficult to
obtain ingredient needed for the manufacture of a proscribed narcotic. After the narcotic was produced the agent
purchased a share of the finished product. Defendant was
95 Nev. 327, 333 (1979) Hill v. State
434-436, (1973), the High Court refused to overrule Sorrells and Sherman and said:
Nor does it seem particularly desirable for the law to grant complete immunity from
prosecution to one who himself planned to commit a crime, and then committed it,
simply because government undercover agents subjected him to inducements which
might have seduced a hypothetical individual who was not so predisposed. We are
content to leave the matter where it was left by the Court in Sherman:
The function of law enforcement is the prevention of crime and the apprehension of
criminals. Manifestly, that function does not include the manufacturing of crime.
Criminal activity is such that stealth and strategy are necessary weapons in the arsenal
of the police officer. However, A different question is presented when the criminal
design originates with the officials of the Government, and they implant in the mind
of an innocent person the disposition to commit the alleged offense and induce its
commission in order that they may prosecute'.
Id., at 372, quoting Sorrells v. United States, 287 U.S., at 442.
. . . .
Sorrells and Sherman both recognize that the fact that officers or employees of the
Government merely afford opportunities or facilities for the commission of the offense
does not defeat the prosecution,' 287 U.S., at 441; 356 U.S., at 372. Nor will the mere
fact of deceit defeat a prosecution, see, e.g., Lewis v. United States, 385 U.S. 206,
208-209 (1966), for there are circumstances when the use of deceit is the only practicable
law enforcement technique available. It is only when the Government's deception
actually implants the criminal design in the mind of the defendant that the defense of
entrapment comes into play.
We find no error in the instruction as given by the district court and affirm the judgment.
Mowbray, C. J., and Gunderson and Manoukian, JJ., concur.
____________________
found guilty of unlawful manufacturing and sale of the drug. Defendant's conviction was affirmed by the High
Court.
95 Nev. 327, 334 (1979) Hill v. State
Thompson, J., dissenting:
I dissent.
An accurate instruction upon the basic elements of the offense charged is essential, and the
failure to so instruct is reversible error. Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212
(1970); Harvey v. State, 78 Nev. 417, 421, 375 P.2d 225 (1962). The same principle applies
with equal force to an affirmative defense which, if established, would mandate an acquittal.
In my opinion the instruction, to which objection was interposed, is incorrect since it
advised the jury that there is no entrapment if the officers aided or encouraged the
commission of a crime. The Nevada cases, Moore v. State, 93 Nev. 645, 646, 572 P.2d 216
(1977); State v. Busscher, 81 Nev. 587, 590, 407 P.2d 715 (1965); Wyatt v. State, 77 Nev.
490, 494, 367 P.2d 104 (1961); In re Wright, 68 Nev. 324, 329, 232 P.2d 398 (1951),
although not concerned with a jury instruction, each recognizes the distinction between
furnishing an opportunity to commit a crime and urging or persuading one to do so. The
criminal intent must originate in the mind of the defendant without urging or persuasion by
the undercover agent. State v. Busscher, supra. If such urging or persuasion is established, the
affirmative defense of entrapment likewise is established. The apparent flaw in the challenged
instruction is its declaration that there is no entrapment if the officers aided or encouraged the
commission of a crime.
The California Supreme Court recently has restated the proper test of entrapment in order
to retain the deterrent effect of the entrapment defense on impermissible police conduct.
People v. Barraza, 591 P.2d 947 (Cal. 1979). This, I think, is the direction our court should
take. Surely, it is not sound policy to allow government agents to aid or encourage one to
commit a crime.
____________
95 Nev. 334, 334 (1979) United Services Auto. v. Crandall
UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. MILFORD N.
CRANDALL, et al., Respondents.
No. 10124
May 9, 1979 594 P.2d 704
Appeal from declaratory judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Insurer brought action for declaratory judgment that it was not liable under provisions of
automobile insurance policy issued to insured.
not liable under provisions of automobile insurance policy issued to insured. The district
court ruled against insurer, and insurer appealed. The Supreme Court, Thompson, J., held
that: (1) where imputed liability statute placed a legal liability upon insured father for
damages caused by negligence or willful misconduct of his daughter in driving a motor
vehicle, and words of policy required insurer to pay all sums which insured shall become
legally obligated to pay as damages arising out of use of any non-owned automobile, such
language afforded coverage to insured for his daughter's negligent use of a non-owned
automobile, even though insurer contended that the term use applied only to insured's use
of automobile, and since he was not using it, coverage did not exist, and (2) insurer's
contention that coverage was not afforded to insured because he was not insured by reason of
policy section governing persons insured where his daughter was driving a non-owned
vehicle without permission of owner, provided no basis for relief.
Affirmed.
Rose, Edwards, Hunt & Pearson, Ltd., of Las Vegas, for Appellant.
Cromer, Barker & Michaelson, of Las Vegas, for Intervenor Pacific Insurance Co.
Galatz, Earl & Biggar, of Las Vegas, for some Respondents.
Steffen & Simmons and Robert D. Vannah, of Las Vegas, for some Respondents.
1. Insurance.
Where imputed liability statute placed a legal liability upon insured father for damages caused by
negligence or willful misconduct of his daughter in driving a motor vehicle, and words of automobile
insurance policy required insurer to pay all sums which insured shall become legally obligated to pay as
damages arising out of use of any non-owned automobile, such language afforded coverage to insured for
his daughter's negligent use of a non-owned automobile, even though insurer contended that the term use
applied only to insured's use of automobile, and since he was not using it, coverage did not exist. NRS
483.300, subd. 2.
2. Insurance.
If meaning of an insurance policy provision is uncertain, the provision will be construed against insurer
and in favor of insured.
3. Insurance.
The omnibus clause of an automobile insurance policy is usually viewed as extending coverage
to additional insureds, that is, to any relative, rather than as limiting the coverage
afforded to named insured.
viewed as extending coverage to additional insureds, that is, to any relative, rather than as limiting the
coverage afforded to named insured.
4. Insurance.
In automobile insurance policy section, which states that the following are insureds with respect to a
non.owned automobile: the named insured, and any relative, provided actual operation is with permission,
or reasonably believed to be with permission, of owner and is within scope of such permission, the words
regarding permissive use applied only to any relative, and did not limit coverage afforded to named
insured, and thus insurer's contention that coverage was not afforded to insured, because he was not an
insured by reason of such section, where his daughter was driving a non-owned vehicle without permission
of owner, provided no basis for relief.
OPINION
This action for declaratory judgment was commenced by United Services Automobile
Association against its insured, Milford Crandall and others. U.S.A.A. desired a court
declaration that it is not liable under the provisions of an automobile insurance policy issued
to Crandall. The facts are not in dispute. The meaning of the insurance policy is.
The district court ruled that U.S.A.A. was obliged to defend Crandall and, to the extent of
policy limits, pay any judgment rendered against him. This appeal followed.
Cheryl Crandall, age 16, the daughter of the insured, Milford Crandall, drove an
automobile owned by Robert and Phyllis Sherwood without their express permission and,
while doing so, was involved in an accident which caused the death of three boys. Before the
accident, Milford Crandall had signed as sponsor for Cheryl to obtain a learner's permit. That
permit was obtained and was in effect when the accident occurred.
Two policy provisions, the first concerning the scope of the term use in Part 1 relating to
coverage, and the second regarding permissive use in Part 1 designating the persons insured,
present the principal questions for our resolution. We turn to consider them.
[Headnote 1]
1. The policy obligated U.S.A.A. to pay on behalf of the insured all sums which the
insured shall become legally obligated to pay as damages . . . arising out of the . . . use of . . .
any non-owned automobile. . . .
It is the position of U.S.A.A. that the term use applies only to Mr. Crandall's use of the
automobile, and since he was not using it coverage does not exist.
not using it coverage does not exist. On the other hand, the respondents contend that coverage
is provided for any use which would place a legal obligation on Mr. Crandall, the insured, to
pay damages, and that the imputed liability provision of NRS 483.300(2) imposes such an
obligation.
1

Authority elsewhere is split. The cases of Wisdom v. Eagle Star Insurance Co., 27
Cal.Rptr. 599 (Cal.App. 1963), and Osborne v. Security Insurance Company, 318 P.2d 94
(Cal.App. 1957), may be read to support the appellant's contention, while Fazzino v.
Insurance Company of North America, 313 P.2d 178 (Cal.App. 1957), and Klatt v. Zera, 105
N.W.2d 776(Wis. 1960), hold otherwise.
NRS 483.300(2) quoted in footnote 1 places a legal liability upon the insured father,
Milford Crandall, for damages caused by the negligence or willful misconduct of his
daughter, Cheryl, in driving a motor vehicle. The words of the insurance policy require
U.S.A.A. to pay all sums which the insured shall become legally obligated to pay as damages
arising out of the use of any non-owned automobile. It is clear to us that such language
affords coverage to the insured Milford Crandall for his daughter's negligent use of a
non-owned automobile. As to this issue, we are persuaded that Klatt v. Zera, supra, is correct.
[Headnotes 2-4]
2. It is the alternative contention of U.S.A.A. that coverage is not afforded to Milford
Crandall since his daughter, Cheryl, was driving a non-owned vehicle without the permission
of the owner. In such circumstances, it is asserted that Milford Crandall is not an insured by
reason of the section of the policy which states:
Persons Insured: The following are insureds under Part 1:
. . . .
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer,
provided his actual operation or (if he is not operating) the other actual use thereof is
with the permission, or reasonably believed to be with the permission, of the owner and
is within the scope of such permission, and. . . .
____________________

1
NRS 483.300(2): Any negligence or willful misconduct of a minor under the age of 18 years when driving a
motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a
permit or license, which person shall be jointly and severally liable with such minor for any damages caused by
such negligence or willful misconduct.
permission, of the owner and is within the scope of such permission, and. . . .
If the meaning of that policy provision is uncertain, the provision will be construed against
the insurer and in favor of the insured. North American Life & Cas. v. Gingrich, 91 Nev. 491,
538 P.2d 163 (1975); Harleysville Mut. Cas. Co. v. Nationwide Mut. Ins. Co., 150 S.E.2d 233
(S.C. 1966). Indeed, the omnibus clause of the policy usually is viewed as extending coverage
to additional insureds (that is, to any relative) rather than as limiting the coverage afforded to
the named insured. Harleysville Mut. Cas. Co. v. Nationwide Mut. Ins. Co., supra.
With these principles in mind, it is apparent that the words of clause (b)(2) regarding
permissive use apply only to any relative, and do not in any manner limit the coverage
afforded the named insured. McMichael v. American Insurance Company, 351 F.2d 665 (8th
Cir. 1965); Harleysville Mut. Cas. Co. v. Nationwide Mut. Ins. Co., supra. The district court
properly ruled that U.S.A.A. is obliged to defend Milford Crandall, and, to the extent of
policy limits, pay any judgment entered against him.
3. Other assigned errors need not be considered.
Affirmed.
____________
95 Nev. 338, 338 (1979) Church v. State
TRUSTEES OF THE CHURCH OF UNIVERSOLOGY, INC., BERNADEAN
UNIVERSITY, and JOSEPH M. KADANS, Appellants, v. STATE OF NEVADA, ex rel.
Commission on Postsecondary Institutional Authorization, Respondent.
No. 9688
May 9, 1979 594 P.2d 706
Appeal from judgment sustaining decision of Commission of Postsecondary Institutional
Authorization, and enjoining appellants from issuing degrees until qualified as a degree
granting institution; Eighth Judicial District Court, Clark County, John E. Mendoza, Judge.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellants.
95 Nev. 338, 339 (1979) Church v. State
Richard H. Bryan, Attorney General, and Harry W. Swainston, Deputy Attorney General,
for Respondent.
Injunction.
Evidence supported decision of Commission on Postsecondary Institution Authorization enjoining
appellants from issuing degrees until qualified as a degree-granting institution.
OPINION
Per Curiam:
Joseph M. Kadans, found to be the alter ego of the Trustees of the Church of
Universology, Inc., Bernadean University, claims to have been unfairly treated by the
Commission on Postsecondary Institutional Authorization when the Commission denied him
a license to operate a postsecondary educational institution in the State of Nevada.
The district court sustained the Commission's action, and also enjoined the Trustees of the
Church of Universology, Inc., Bernadean University, and Kadans from issuing degrees until
qualified as a degree granting institution. This appeal followed.
The court has reviewed the proceedings, briefs and record and after hearing oral argument
has determined that there is no merit to this appeal. Bradley v. Bradley, 95 Nev. 201, 591
P.2d 663 (1979).
Affirmed.
____________
95 Nev. 339, 339 (1979) Adler v. State
NAT ADLER, Appellant, v. THE STATE
No. 9744
May 10, 1979 594 P.2d 725
County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of a felonious attempt to obtain money
by false pretenses, arising out of a petition for compensation defendant filed in the estate
proceeding of a decedent, claiming $11,340 for transfer and storage of personal property in a
warehouse owned by defendant. Upon defendant's appeal, the Supreme Court, Manoukian, J.,
held inter alia, that: (1) there was substantial evidence, albeit circumstantial, of defendant's
guilt; (2) defendant's requested instruction relating to reliance on advice of counsel was
properly refused by the trial court, since defendant's claimed reliance on advice of counsel
was not a complete defense, since, moreover, defendant did not seek legal advice
respecting the lawfulness of his future conduct but, rather, merely presented the facts to
his attorney who commented that the requested compensation sounded excessive and
advised that the petition could be amended if the figures were later determined
erroneous, and {3) a grand jury selected exclusively from those indicating a willingness to
serve does not unconstitutionally limit the jury to a special group.
95 Nev. 339, 340 (1979) Adler v. State
instruction relating to reliance on advice of counsel was properly refused by the trial court,
since defendant's claimed reliance on advice of counsel was not a complete defense, since,
moreover, defendant did not seek legal advice respecting the lawfulness of his future conduct
but, rather, merely presented the facts to his attorney who commented that the requested
compensation sounded excessive and advised that the petition could be amended if the figures
were later determined erroneous, and (3) a grand jury selected exclusively from those
indicating a willingness to serve does not unconstitutionally limit the jury to a special group.
Affirmed.
Annette R. Quintana,* Las Vegas, for Appellant.
1. False Pretenses.
Defendant's conviction of a felonious attempt to obtain money by false pretenses was supported by
substantial evidence, albeit circumstantial, including evidence upon which the jury could have concluded
that defendant knew or should have known the customary rates as well as the actual square or cubic footage
required for storage of the decedent's property in defendant's warehouse were remarkably less than that
alleged in his petition for compensation; additionally, it was significant that defendant refused to admit
decedent's son to inspect the stored property, and both his attorney and secretary were doubtful of the
quantitative validity of the claim. NRS 205.380, 208.070.
2. Criminal Law.
Jury has the prerogative to make logical inferences which flow from the evidence.
3. False Pretenses.
Although defendant, charged with a felonious attempt to obtain money by false pretenses, attempted to
explain his actions and denied any culpable intent, the jury was free to accord to his testimony the weight to
which it was entitled. NRS 205.380, 208.070.
4. Criminal Law.
In prosecution for a felonious attempt to obtain money by false pretenses, defendant's request to add a
third paragraph to the instruction on intent and good faith was properly refused on the basis that it was
covered in other instructions given. NRS 205.380, 208.070.
____________________
* Ms. Quintana was not appellant's counsel at the time the petition for compensation was filed in the probate
proceedings.
95 Nev. 339, 341 (1979) Adler v. State
5. Criminal Law.
Defendant in a criminal case is entitled to have the jury instructed on his theory of the case as disclosed
by the evidence, no matter how weak or incredible that evidence may appear to be.
6. Criminal Law.
Reliance on advice of counsel is not regarded as a separate and distinct defense but rather as a
circumstance indicating good faith which the trier of fact is entitled to consider on the issue of fraudulent
intent.
7. Criminal Law.
In prosecution of warehouse owner for a felonious attempt to obtain money by false pretenses, arising out
of a petition for compensation filed in the estate of a decedent, defendant's requested instruction relating to
reliance on advice of counsel was properly refused by the trial court, since defendant's claimed reliance on
advice of counsel was not a complete defense, since, moreover, defendant did not seek legal advice
respecting the lawfulness of his future conduct but, rather, merely presented the facts to his attorney who
commented that the requested compensation sounded excessive and advised that the petition could be
amended if the figures were later determined erroneous. NRS 205.380, 208.070.
8. Criminal Law.
No one can willfully and knowingly violate the law and be insulated from the consequences by claiming
that he followed the advice of counsel.
9. False Pretenses.
Filing of false claim in a judicial proceeding can constitute a basis for prosecution for an attempt to
obtain money under false pretenses. NRS 205.380.
10. Grand Jury.
A grand jury must be drawn from a cross section of the community, and there must be no systematic and
purposeful exclusion of an identifiable class of persons, but a grand jury selected exclusively from those
indicating a willingness to serve does not unconstitutionally limit the jury to a special group. NRS 6.110.
11. Grand Jury.
Inclusion of a racial indicator on a random sampling of the venire did not impugn the racial neutrality of
the grand jury selection procedure, as it was uncontroverted that the entire grand jury selection process was
racially neutral. NRS 6.110.
OPINION
Appellant, while serving as public administrator of Clark County, was indicted for a
felonious attempt to obtain money by false pretenses. NRS 205.380, 208.070.
1
The charge
arose out of a petition for compensation Adler filed in the estate proceeding of James H.
____________________

1
Every person who knowingly and designedly by any false pretense obtains from any other person any . . .
money, . . . with intent to cheat or defraud the other person, is a cheat, and unless otherwise prescribed by
law, shall be punished. . . .
NRS 208.070 provides punishment for attempts.
95 Nev. 339, 342 (1979) Adler v. State
out of a petition for compensation Adler filed in the estate proceeding of James H. Gillespie,
deceased, claiming $11,340.00 for transfer and storage of personal property in a warehouse
Adler owned. The indictment alleged that the 1400 square feet represented in the petition
exceeded the space required to store the property, and that the ten cent per square foot per day
rate was far in excess of the normal and customary charge. The indictment further alleged that
appellant had knowledge of the falsity of his claim.
2

Testifying in his own behalf, Adler defended essentially on the ground that he lacked any
culpable intent. He stated that the rates and figures used in his petition for compensation were
supplied by his employees. He presented the petition to his attorney who advised him that the
charges were rather high but that the filed petition could always be amended if errors were
subsequently discovered.
The jury returned a verdict of guilty and Adler was sentenced to three years in the Nevada
State Prison, suspended, and placed on probation for an indeterminate period not to exceed
five years. From the judgment of conviction and sentence Adler appeals,
3
contending: (1) the
evidence was insufficient to support the verdict; (2) it was reversible error to refuse
appellant's proffered jury instructions; (3) the conviction for attempting to obtain money
under false pretenses is violative of due process; and (4) the grand jury selection process was
fatally defective. We turn now to consider these questions.
1. Sufficiency of the Evidence.
Appellant questions the sufficiency of the evidence to support the verdict. The test for
sufficiency of the evidence on appeal is not whether this court is convinced of the guilt of
the defendant beyond a reasonable doubt, but whether this court can conclude the trier of
facts could, acting reasonably, be convinced to the degree of certitude by the evidence which
it had a right to believe and accept as true. Crowe v. State, 84 Nev. 358, 366-367, 441 P.2d
90, 95 (1968). Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974). Here, there was evidence
that appellant, while public administrator of Clark County, filed a petition for compensation
claiming transfer and storage charges for an 81 day period amounting to $11,340.00. There
was testimony that at the time of the decedent's death he occupied a two bedroom, two
bath furnished apartment and had the use of an additional storage locker {measuring
approximately 4{ x 4{ x 9{).
____________________

2
Adler filed a habeas proceeding in district court challenging the sufficiency of the indictment to allege a
public offense. We affirmed the denial of the petition in Adler v. Sheriff, 92 Nev. 436, 552 P.2d 334 (1976).

3
Adler's motion for a stay pending appeal was denied by the district court on May 3, 1977 and by this Court
on October 5, 1977. Adler v. State, 93 Nev. 521, 569 P.2d 403 (1977).
95 Nev. 339, 343 (1979) Adler v. State
was testimony that at the time of the decedent's death he occupied a two bedroom, two bath
furnished apartment and had the use of an additional storage locker (measuring approximately
4 x 4 x 9). The total living space of the apartment was estimated at 880 to 890 square feet
and aside from a refrigerator, two televisions, and possibly a bureau, he owned no furniture.
Indeed, Adler's employee in charge of the transfer of the decedent's property testified that he
did not remove any large items of furniture from the premises and that the decedent's personal
effects occupied a space in Adler's warehouse measuring 4 feet wide, 18 to 20 feet long and
averaging 3 to 5 feet in height. Moreover, there was testimony from three moving and storage
experts in the area that the prevailing storage rate at that time was five cents per cubic foot
per month and that a reasonable charge for goods occupying a space of 540 cubic feet (4 x 5
x 20) would be approximately $30.00 per month.
Adler personally sealed off the apartment the day after the decedent's death. His most
casual observation should have revealed that the unit did not contain 1400 square feet. The
apartment manager told him that the unit was furnished and testified that he pointed out his
furniture to Adler's employees.
Paul Meade, a trust officer of Valley Bank of Nevada, appointed to succeed as
administrator of the estate, testified that he visited appellant's warehouse to inventory the
decedent's property. Adler pointed out the property, including several items of furniture, as
belonging to the estate. Meade noted that there were large discrepancies between his
inventory and that taken by the prior special administrator. When Meade later returned with
the decedent's son to inspect the items, Adler denied them entry, purportedly on advice of
counsel.
Adler presented the testimony of his secretary who prepared a draft of the petition for
compensation. She testified that although she thought the ten cent per square foot per day rate
was rather high at the time, Adler nevertheless instructed her to prepare the petition on that
basis. According to her, she determined the rate after talking with other transfer and storage
companies in Las Vegas. However, cross-examination revealed that only one company, Las
Vegas Transfer and Storage, gave her an estimate. A representative of that company testified
that his company charged 4.5 cents per cubic foot per month in 1975.
Adler's attorney testified that the requested compensation sounded like a lot of money to
him, but he filed the petition anyway when Adler stated that he would recheck the figures.
95 Nev. 339, 344 (1979) Adler v. State
anyway when Adler stated that he would recheck the figures. The attorney advised Adler that
the petition could always be amended if the figures were subsequently found erroneous.
[Headnote 1]
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). Here, there was ample evidence upon
which the jury could have concluded that Adler knew or should have known the customary
rates as well as the actual square or cubic footage required for storage of the decedent's
property were remarkably less than that alleged in his petition for compensation.
Additionally, we find it significant that appellant refused to admit the decedent's son to
inspect the stored property, and both his attorney and secretary were doubtful of the
quantitative validity of the claim.
[Headnotes 2, 3]
The jury has the prerogative to make logical inferences which flow from the evidence.
Moreover, 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, 679-680, 462
P.2d 526, 527 (1969). Although appellant attempted to explain his actions and denied any
culpable intent, the jury was free to accord to his testimony the weight to which it was
entitled. There was substantial evidence, albeit circumstantial, of appellant's guilt.
Accordingly, we affirm on the issue of sufficiency of the evidence.
2. The Proffered Instructions.
[Headnote 4]
Adler next complains of the trial judge's failure to give two proffered jury instructions.
First, he contends the court erred in refusing to add a third paragraph to Instruction No. 4 on
intent and good faith.
4
The additional paragraph was refused on the basis that it was
covered in other instructions given.5 Beets v. State, 94 Nev. S9
____________________

4
As given, Instruction No. 4 reads as follows:
The question of intent is a matter for you, as Jurors, to determine. Intent is a state of mind and it is not
possible to look into a man's mind to see what went on. The only way you have of arriving at the intent of
the defendant in this case is for you to consider all the facts and circumstances in evidence to determine
whether, as to the statements charged to have been falsely made by the defendant, the defendant knew
and specifically intended the statements to be false when he made them.
Thus, evidence of the presence or absence of facts tending to show that the defendant did or did not
act in good faith, or that he did or did not conceal or attempt to conceal the true facts and circumstances,
may be considered by you as bearing on the question of intent.
95 Nev. 339, 345 (1979) Adler v. State
basis that it was covered in other instructions given.
5
Beets v. State, 94 Nev. 89, 575 P.2d
591 (1978). We find no error in that determination.
[Headnote 5]
We turn to consider Adler's requested instruction relating to reliance on advice of counsel.
6
In effect, Adler's contention is that he should have been acquitted of willful wrongdoing
because he acted on the basis of advice from his attorney. He insists the trial court's refusal to
give the proffered instruction was reversible error. Of course, a defendant in a criminal case
is entitled to have the jury instructed on his theory of the case as disclosed by the evidence,
no matter how weak or incredible that evidence may appear to be."
____________________
The proffered third paragraph reads:
Stated another way, evidence which tends to establish that the defendant's representations regarding
the storage and storage fees for the property of the decedent's estate, were openly and publicly conducted
and revealed, and evidence tending to establish that the defendant acted in good faith may be sufficient to
raise in your minds a reasonable doubt as to the presence or absence of a specific intent on the part of the
defendant to commit the crime of attempting to obtain property by false pretenses. If so, it is your duty to
acquit the defendant.

5
In summary, the jury was instructed that to find the defendant guilty it must find the defendant intentionally
misrepresented the amount of space required to store the personal property of the estate and substantially
misrepresented the storage cost, with intent to deceive the court, that good faith constituted a complete
defense, that a mistake in judgment or error in knowledge or carelessness does not establish fraudulent intent,
and finally, that persons who commit an act or make an omission charged under an ignorance or mistake of fact,
which disproved any criminal intent are not held criminally responsible.

6
Defendant unsuccessfully requested Instruction No. 2 which reads as follow:
The defendant claims that he is not guilty of willful wrongdoing because he acted on the basis of
advice from his attorney.
If the defendant before taking any action sought the advice of an attorney whom he considered
competent, in good faith and for the purpose of securing advice on the lawfulness of his possible future
conduct, and made a full and accurate report to his attorney of all material facts of which he has the
means of knowledge, and acted strictly in accordance with the advice of his attorney given following his
full report, then the defendant would not be willfully doing wrong in doing (omitting) something the law
forbids (requires), as that term is used in these instructions.
Whether the defendant acted in good faith for the purpose of seeking guidance as to questions about
which he was in doubt, and whether he made a full and complete report to his attorney, and whether he
acted strictly in accordance with the advice received, are questions for you to determine. (Emphasis
added.)
From Devitt and Blackman, Federal Jury Practice & Instructions, 16.15.
The judge rejected this proposed instruction since the evidence admitted in this case will not justify the
giving of this broad instruction. Issue covered in other instructions given.
95 Nev. 339, 346 (1979) Adler v. State
as disclosed by the evidence, no matter how weak or incredible that evidence may appear to
be. Barger v. State, 81 Nev. 548, 552, 407 P.2d 584, 586 (1965).
[Headnotes 6, 7]
However, we note that contrary to appellant's suggestion, reliance on advice of counsel is
not regarded as a separate and distinct defense, but rather as a circumstance indicating good
faith which the trier of fact is entitled to consider on the issue of fraudulent intent. Bisno v.
United States, 299 F.2d 711, 719 (9th Cir. 1961); United States v. Powell, 513 F.2d 1249 (8th
Cir. 1975); cf. Barger v. State, supra. In Barger we held that the trial court's refusal to instruct
on the defense of entrapment was prejudicial error. Here, in contrast to Barger, Adler's
claimed reliance on advice of counsel is not a complete defense.
Moreover, appellant did not seek legal advice respecting the lawfulness of his future
conduct. Rather, he merely presented the facts to his attorney who commented that the
requested compensation sounded excessive. His attorney advised that if the figures were later
determined erroneous, the petition could be amended. Thereafter, the petition was filed and
Adler confirmed its accuracy. There was no proof that Adler relied upon his attorney's advice
with respect to the petition.
[Headnote 8]
No one can wilfully and knowingly violate the law and be insulated from the consequences
by claiming that he followed the advice of counsel. See Williamson v. United States, 207 U.
S. 425 (1908). Accordingly, we uphold the trial judge's refusal to give the instruction.
3. Due Process.
Appellant's third argument is summarized as follows:
The decision in Adler v. Sheriff [92 Nev. 436, 552 P.2d 334 (1976)] represented a
judicial enlargement of the scope of the statute on obtaining money or property by false
pretenses [NRS 205.380], and that the application of this enlarged construction to the
defendant constitutes a violation of due process as being tantamount to the imposition
of a law, ex post facto [sic].
[Headnote 9]
Essentially, Adler asserts that the application of NRS 205.380 to the acts he allegedly
committed was unforeseeable. The state contends, and we agree, that this issue was decided
in Adler's habeas proceeding wherein we held:
We reject Adler's contention that the filing of a false claim in a judicial proceeding
cannot constitute a basis for a prosecution for an attempt to obtain money under
false pretenses.
95 Nev. 339, 347 (1979) Adler v. State
in a judicial proceeding cannot constitute a basis for a prosecution for an attempt to
obtain money under false pretenses. [Citations omitted.] Adler v. Sheriff, supra, at 440,
552 P.2d at 336.
Adler v. Sheriff, supra, established the law of the case, Theriault v. State, 92 Nev. 185, 547
P.2d 668 (1976); Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975), and we observe no reason
for reconsideration of the issue.
4. The Grand Jury.
Appellant's objection to our statutory grand jury selection procedure is twofold: First, he
argues that a grand jury composed only of those indicating a willingness to serve (NRS
6.110) is unconstitutionally restrictive. Secondly, be contends that the inclusion of a racial
indicator on a random sampling of the venire renders the selection procedure not racially
neutral.
The Volunteer Grand Jury. NRS 6.110 establishes the procedure for selection of the grand
jury in counties having a population of 15,000 or more. The county clerk under the
supervision of the district judge, is required to randomly select the names of 100 qualified
persons to serve as prospective grand jurors. Each person selected is sent a questionnaire to
fill in and return indicating thereon his willingness to serve. Additional names are selected
and questionnaires sent until a panel of 100 persons willing to serve is established. The
sheriff summons the 100 person venire to court where the district judge selects 17 jurors and
12 alternates.
[Headnote 10]
Appellant maintains a grand jury selected exclusively from those indicating a willingness
to serve unconstitutionally limits the jury to a special group. In People v. Goodspeed, 99 Cal.
Rptr. 696 (Cal.App. 1972), a similar claim was made. The court there held that the exclusion
from a proposed grand jury list of persons unwilling to serve . . . does not violate
constitutional requirements. Id. at 705. While it is settled that a grand jury must be drawn
from a cross-section of the community, and there must be no systematic and purposeful
exclusion of an identifiable class of persons, People v. Goodspeed, supra; Alexander v.
Louisiana, 405 U.S 625 (1972); Whitus v. Georgia, 385 U.S. 545 (1967), it is clear that the
exclusion of persons not willing to serve operates without regard to race, sex, status or ethnic
background. Appellant has failed to show purposeful or systematic discrimination against any
group or class (Thiel v. Southern Pacific Co., 328 U.S. 217 (1945)); and, he has failed to
demonstrate that the persons unwilling to serve on a grand jury constitute a sufficiently
identifiable class.
95 Nev. 339, 348 (1979) Adler v. State
on a grand jury constitute a sufficiently identifiable class. Duren v. Missouri, 439 U.S. 357,
99 S.Ct. 664, 58 L.Ed.2d 579 (1978); Taylor v. Louisiana, 419 U.S. 522 (1975); People v.
Goodspeed, supra.
[Headnote 11]
The Racial Indicator. Appellant's objection to the use of racial indicators on scope sheets
is wholly without merit. Duren v. Missouri, supra; Taylor v. Louisiana, supra. Here, it was
uncontroverted that the entire grand jury selection process was racially neutral. Cf. Alexander
v. Louisiana, supra; Whitus v. Georgia, supra; Avery v. Georgia, 345 U.S. 559 (1953), where
names of prospective jurors were drawn from sources which designated race.
The conviction is affirmed.
I respectfully dissent.
Reduced to its essence, the testimony shows without dispute that, when appellant's petition
for compensation was filed, his attorney advised him to proceedtelling him that the figures
could than be checked and, if need be, corrected later. Thus, in my view, although the record
may show poor office procedures, it does not show criminal intent.
Moreover, assuming a factual question remained after the attorney's advice to appellant
was unequivocally established, then I think the jury should have been specifically instructed
to consider that appellant acted in accordance with a licensed attorney's advice, when
considering the issue of his intent.
____________
95 Nev. 348, 348 (1979) Harris v. Shell Dev. Corp.
RUSSELL C. HARRlS, Trustee of the Estate of A. DEAN McKEE, Appellant, v. SHELL
DEVELOPMENT CORPORATION, NEVADA, INC., an Illinois Corporation, Respondent.
No. 10050
May 10, 1979 594 P.2d 731
Appeal from judgment, Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Vendor of apartments brought action against claimed purchaser and escrow agent for
alleged breach of contract; purchaser cross-claimed against escrow agent for escrow deposit.
The district court dismissed escrow agent as a party defendant and entered judgment adverse
to purchaser, and purchaser appealed. The Supreme Court held that: (1) dismissal, upon
stipulation in which cross complainant did not join, of cross defendant as a party defendant
could not affect cross complaint; (2) purchaser's offer to purchase apartments at $1,020,000,
which was sale price designated in vendor's counteroffer, provided current MAI appraisal is
minimum of $1,050,000, was accepted when vendor obtained the required appraisal, and (3)
vendor was entitled to recover its out-of-pocket expenses including an appraisal requested by
purchaser and other miscellaneous items foreseeable at inception of contract.
Affirmed.
Perry & Clary, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent.
Dismissal, upon stipulation in which cross complainant did not join, of cross defendant as a party
defendant could not affect cross complaint, and thus cross complainant was not prejudiced and could not
complain of dismissal. NRCP 41(a)(1), (2).
Purchaser's offer to purchase apartments at $1,020,000, which was sale price designated in vendor's
counteroffer, provided current MAI appraisal is minimum of $1,050,000, was accepted when vendor
obtained the required appraisal.
Where market value of land at time of purchaser's breach was higher than purchase price, vendor was
entitled to only nominal damages plus proved consequential damages, and thus vendor was entitled to
recover its out-of-pocket expenses including an appraisal requested by purchaser and other miscellaneous
items foreseeable at inception of contract.
OPINION
Per Curiam:
On March 15, 1973, Dr. A. Dean McKee executed an offer to purchase the Embassy
Apartments in Las Vegas for $950,000 from Shell Development. Five thousand dollars was
placed in escrow with Bar-K Realty until such time as Buyer and Seller have reached an
agreement on purchase price, and enter into a contract of sale. The balance of the purchase
price was to be paid at closing. The offer was expressly contingent upon Buyer's qualifying
for adequate mortgage funds . . . By separate letter Dr. McKee informed Bar-K that he
believed he could obtain the necessary mortgage funds from a private source in order to
effect a cash sale.
obtain the necessary mortgage funds from a private source in order to effect a cash sale.
McKee's offer was rejected by Sheldon Ginsburg, a principal in Shell Development. On
March 19, 1973, Ginsburg forwarded a counter-offer to the Danmar Company, his Las Vegas
real estate broker, advising it to inform McKee that the sales price was $1,020,000 and that
[w]e will not accept any contingencies of refinancing after the consummation of the sale.
On March 23, 1973, McKee telegraphed Ginsburg RE EMBASSY APARTMENTS,
COUNTER OFER [sic] OF MARCH 19, 1973, SALE PRICE $1,020,000.00 ACCEPTED,
PROVIDED CURRENT MAI APPRAISAL IS MINIMUM OF $1,050,000.
On April 5, 1973 Ginsburg obtained the required appraisal. An escrow was opened at
Stewart Title in Las Vegas, however, McKee refused to consummate the transaction and, on
May 16, 1973, Ginsburg cancelled the escrow.
On February 5, 1974, Dr. McKee wrote Bar-K Realty requesting the return of the $5,000
escrow deposit. Settlement negotiations were unproductive, and on April 12, 1974, Shell
Development filed suit against McKee and Bar-K for breach of contract, seeking damages in
excess of $5,000.
McKee answered denying the existence of a contract, and cross-claimed against Bar-K for
the $5,000 escrow deposit. When Bar-K failed to answer, a default was taken by Shell
Development.
Without notice, and pursuant to a stipulation between Shell Development and Bar-K, the
district court entered an order dismissing Bar-K as a party defendant conditioned upon its
deposit of $5,000 with the clerk of the court. McKee was neither party to the stipulation nor
notified prior to the entry of the order. Subsequently, Dr. McKee noticed his application for
entry of default judgment on the cross-claim, and moved to vacate the order dismissing
Bar-K.
Trial was had on February 2, 1973. On April 27, 1977 the trial court filed its findings of
fact, conclusions of law, together with a Judgment and Order to the effect that Dr. McKee
breached the agreement to purchase the Embassy Apartments, and awarding Shell
Development $4,903.35 in damages, attorney's fees and costs. Following denial of his motion
for new trial, Dr. McKee noticed this appeal.
Three issues confront us: (1) Did the district court err in dismissing Bar-K as a party
defendant? (2) Did the trial court erroneously conclude that a contract existed and that
appellant was guilty of a breach? (3) Was the award of damages erroneous? [Headnote 1]
[Headnote 1]
1. The dismissal. Appellant contends the court erred by dismissing Bar-K as a party
defendant.
1
Our Rules of Civil Procedure provide three separate methods for effecting a
voluntary dismissal. The first and second methods, contained in Rule 41(a)(1), provide for
dismissal by notice, and by stipulation of the parties. The third method, set out in Rule
41(a)(2), provides for dismissal by order of court upon such terms and conditions as the
court deems proper. NRCP 41(a)(2); 9 Wright & Miller, Federal Practice and Procedure:
Civil 2362 (1971). Here, the dismissal of Bar-K was without prior notice to McKee, as
cross-complainant. And, since Dr. McKee did not join in the stipulation, the efficacy of the
dismissal rests upon the validity of the order.
While we believe the court acted within its discretion in dismissing the complaint as
against Bar-K, the dismissal could not and did not purport to dismiss appellant's cross-claim.
See Slotkin v. Brookdale Hospital Center, 377 F.Supp. 275 (D.C.N.Y. 1974); Plains Growers,
Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250 (5th Cir. 1973). Indeed, appellant,
recognizing the viability of his cross-claim, proceeded to take a default against Bar-K, after
notice that the complaint against Bar-K had been dismissed. We note, however, no hearing on
damages was held and no default judgment entered. Appellant has failed to demonstrate that
the dismissal of the complaint against Bar-K constituted an abuse of the trial court's
discretion or prejudiced his rights in any way. The cross-claim remained unaffected and
appellant therefore has no grounds to complain.
[Headnote 2]
2. The contract. Next, appellant argues the district court erred in its determination that a
contract existed. We do not agree. Appellant's March 23 offer to purchase at $1,020,000 was
accepted when respondent obtained the required appraisal. Where the trial court, sitting
without a jury, makes factual determinations from conflicting evidence, those determinations
will not be disturbed where, as here, they are supported by substantial evidence. General Elec.
Supply v. Mt. Wheeler Power, 94 Nev. 766, 587 P.2d 1312 (1978); La Grange Construction,
Inc. v. Kent Corp., 88 Nev. 271, 496 P.2d 766 (1972).
[Headnote 3]
3. The damages. Finally, appellant contends that even if the trial court was correct in its
determination that a contract existed, no damages should have been awarded since the
fair market value of the property exceeded its market price on the date of sale.
____________________

1
While appellant does not complain of the deposit of money by Bar-K, he does claim that the dismissal was
ineffective with respect to his cross-claim. See NRCP 67.
the trial court was correct in its determination that a contract existed, no damages should have
been awarded since the fair market value of the property exceeded its market price on the date
of sale. Respondent, on the other hand, argues that it was properly held entitled to recover its
out-of-pocket expenses and damages incurred on account of appellant's breach. We agree
with respondent.
Generally, where the purchaser breaches an executory real estate contract the vendor is
entitled to recover damages measured by the difference between the contract price and the
market value of the land on the date of the breach. Annot., 52 A.L.R. 1511 (1928). Where, as
here, the market value of the land at the time of the breach is higher than the purchase price,
the vendor is entitled to only nominal damages plus proved consequential damages. The court
below found specifically that respondent incurred consequential damages in the sum of
$4,368.34 plus $535.00 as attorney's fees and costs of suit. The consequential damages
consisted of the preparation of the MAI appraisal requested by appellant and other
miscellaneous items, foreseeable at the inception of the contract. The trial court properly held
appellant liable for respondent's out-of-pocket expenses.
We affirm.
____________
95 Nev. 352, 352 (1979) Abram v. State
STEVEN C. ABRAM, Appellant, v. THE
No. 10151
May 10, 1979 594 P.2d 1143
County; Paul S. Goldman, Judge.
Defendant was convicted before the district court of first-degree murder, and he appealed.
The Supreme Court, Manoukian, J., held that: (1) testimony of detective that defendant's girl
friend was afraid of defendant was erroneously admitted but error was harmless beyond a
reasonable doubt, in view of overwhelming evidence of guilt, and (2) testimony of
defendant's fellow inmate that defendant had stated that he was going to get to his girl
friend and her child for turning State's evidence against him was admissible as relevant to
question of guilt.
Affirmed.
95 Nev. 352, 353 (1979) Abram v. State
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
Nickolas Mastrangelo, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Evidence as to nature and extent of homicide victim's wounds and physician's testimony that none of
them were defensive in nature permitted jury to reject claim of self-defense.
2. Criminal Law.
Testimony of detective, in homicide prosecution, that defendant's girl friend was afraid of defendant was
erroneously admitted but error was harmless beyond a reasonable doubt, in view of overwhelming evidence
of guilt. NRS 47.040, subd. 1(a), (b), 48.025, subd. 2, 177.255, 179.598.
3. Homicide.
Testimony of defendant's fellow inmate, in homicide prosecution, that defendant had stated that he was
going to get to his girl friend and her child for turning State's evidence against him was admissible as
relevant to question of guilt.
Denial of mistrial for admission of highly inflammatory testimony in homicide prosecution was not,
under circumstances, violative of defendant's due process rights. U.S.C.A.Const. Amends. 5, 14.
OPINION
Appellant Steven C. Abram, 21, was charged, tried by a jury and convicted of the first
degree murder of Jean Douat, a man in his late sixties. From the judgment and sentence
fixing his punishment at life imprisonment, Abram appeals.
1. The facts. On July 24, 1976, appellant became acquainted with Mr. Douat and was
hired as a manager-bodyguard at Douat's apartment complex in Las Vegas. Appellant, his
sister JoAnn, and his girlfriend Rosemary, had the previous day arrived in Las Vegas en route
from Massachusetts.
The following morning, July 25, appellant was doing some work outside one of the
apartments, and Douat was inside the unit removing a telephone left by a former tenant.
When appellant finished what he had been doing, he entered the apartment. Douat was very
upset because the tenant had vacated without notice. He became further enraged and started
yelling when appellant questioned him as to whether he had made any sexual advances
toward appellant's sister. An altercation ensued, resulting in the brutal killing of Douat.
Appellant told JoAnn and Rosemary that he had killed the old man and said they would all
have to leave town immediately.
95 Nev. 352, 354 (1979) Abram v. State
would all have to leave town immediately. Unable to start his car, appellant went to a tenant
for assistance. The tenant testified appellant told him he had done the old man in, that he
had taken his throat out, and that he had been trained to do it. The tenant helped Abram
start his car and appellant took flight to California.
An autopsy revealed the victim's death was the result of numerous cutting and stabbing
wounds inflicted on the throat and chest. It further revealed that the larynx had been
disrupted, that several rings of the trachea were fractured, and that other serious injuries were
inflicted on the victim's head, scalp, chest and thighs. The examining physician testified that
in his opinion none of the death causing injuries could be classified as defensive. Abram was
for the most part uninjured.
[Headnote 1]
Appellant, claiming self-defense, testified that the mortal wounds were inflicted during the
course of a fight with the deceased. However, in light of the nature and extent of the wounds
and the doctor's testimony that none of them were defensive in nature, it was permissible for
the jury to reject appellant's claim of self-defense. See Porter v. State, 94 Nev. 142, 576 P.2d
275 (1978).
During trial, appellant objected to the testimony of Detective Maddock, the Las Vegas
Metropolitan Police Department Officer who apprehended appellant and his companions in
Barstow, California and returned them to Las Vegas for questioning. On re-direct
examination, in response to the prosecutor's question: Detective Maddock, when you say she
[Rosemary] was involved, can you explain the meaning of your statement. . ., Maddock
answered: In talking with her, she appeared to be afraid of Steven Abram and that. At
that point, defense counsel objected on the grounds that the answer was not responsive and
that the testimony was unduly prejudicial. While the trial judge agreed that the answer was
not responsive, he denied appellant's motion for mistrial. Appellant ignored the prosecutor's
suggestion of a motion to strike, and no cautionary or limiting instruction was given.
Abram subsequently renewed his motion for mistrial when inmate Victor Janway, who
met appellant in the Clark County Jail in August, 1976, testified that [a]t the time, you
know, when he [Abram] was upset he found out she [Rosemary] was turning State's evidence
against him. He complained he was going to get her too. He said he was going to get to her
somehow. And he said everything would have been all right if she would have kept her
mouth shut. With regard to Rosemary's child, Janway testified: "He said she would never
see the child again."
95 Nev. 352, 355 (1979) Abram v. State
child, Janway testified: He said she would never see the child again. Appellant objected and
moved for a mistrial on the basis that the testimony was unduly prejudicial. The trial court,
concluding the evidence was relevant to the issue of the consciousness of guilt, denied
appellant's motion for mistrial.
2. The issue. On this appeal, Abram does not challenge the sufficiency of the evidence.
Rather, he complains the trial court's refusal to grant his motions for mistrial was reversible
error. The broad issue before us is whether the trial court properly denied appellant's motions.
Appellant contends that the testimonial evidence of Maddock and Janway was inadmissible
and so prejudicial as to dictate a new trial.
Appellant complains the objected to testimony of detective Maddock (that Rosemary was
afraid of appellant) and Victor Janway (that appellant said he would get to Rosemary and
her child) was unduly prejudicial and irrelevant to any issue in the case. NRS 48.015;
48.025(2); 48.035(1).
The state argues that the evidence tends to show a consciousness of guilt on the part of the
appellant and that in any event, any prejudice could have been cured by means less drastic
than the declaration of a mistrial, namely, by a motion to strike and cautionary instruction to
the jury. Cf. Lingo v. State, 94 Nev. 615, 584 P.2d 681 (1978).
The granting or denial of a motion for mistrial lies within the sound discretion of the trial
court and its determination will not be disturbed on appeal in the absence of a clear showing
of abuse. See Leaders v. State, 92 Nev. 250, 548 P.2d 1374(1976); People v. Lankford, 524
P.2d 1382 (Colo. 1974). Normally, error may not be predicated upon a ruling admitting
evidence unless a substantial right of the accused is affected and a timely objection or motion
to strike stating the specific ground of objection appears of record. NRS 47.040(1)(a). Here,
the objections were sufficient to preserve the issues raised on appeal.
[Headnote 2]
3. The officer's statement. Detective Maddock's comment was not relevant to any issue in
the case. Maddock's testimony implied that appellant had done something to cause Rosemary
to be apprehensive of him. Thus, the detective's testimony was highly prejudicial. Absent
some substantial connection between the detective's comments and the state's theory of the
case, the trial judge should have excluded the evidence. NRS 48.025(2); see State v. Sanders,
489 P.2d 371 (Mont. 1971); State v. Flett, 380 P.2d 634 (Ore. 1963). Police officers, in
particular, should be instructed as to what is, and what is not, competent evidence and be
forbidden by their superiors from injecting incompetent and prejudicial testimony into
evidence which results in reversals of convictions and defeats the ends of justice.
95 Nev. 352, 356 (1979) Abram v. State
should be instructed as to what is, and what is not, competent evidence and be
forbidden by their superiors from injecting incompetent and prejudicial testimony into
evidence which results in reversals of convictions and defeats the ends of justice.
[Citations omitted.]
Sandersfield v. State, 461 P.2d 1019, 1020 (Okla.Crim.App. 1969). Although the trial judge
recognized that evidence of appellant's character was simply not appropriate in the state's case
in chief, he denied appellant's motion for mistrial.
We must now determine whether admission of the evidence was so prejudicial that it
requires reversal. NRS 177.255 and 178.598 refer to errors which do not affect the substantial
rights of the accused. See also NRS 47.040(1)(b). We query whether exclusion of the
prejudicial testimony would have changed the result of the trial. In our view of the record,
had the comment not been made, it is apparent that the same result would have been reached.
Elsbury v. State, 90 Nev. 50, 518 P.2d 599 (1974). It gives us solace that this was not a case
in which the question of guilt or innocence is a close one. Indeed, the evidence is truly
overwhelming. See Arndt v. State, 93 Nev. 671, 572 P.2d 538 (1977); Coffman v. State, 93
Nev. 32, 559 P.2d 828 (1977).
Our examination of the record to determine the probable impact of the testimony on the
minds of the jury, Harrington v. California, 395 U.S. 250 (1969), leads us to the inescapable
conclusion that the error in admitting detective Maddock's testimony was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 20 (1967).
[Headnote 3]
4. The inmate's testimony. Victor Janway's testimony that appellant told him that he was
going to get to Rosemary and her child for turning state's evidence against him, was
objected to as irrelevant and unduly prejudicial. The objection was overruled.
It is sometimes relevant to show that an accused has threatened a witness with violence. 1
Wharton's Criminal Evidence, 13th ed. 217 (1972); and see State v. Hill, 221 A.2d 725
(N.J. 1966). Although the evidence of appellant's threats against the witness and her child
were highly inflammatory, and were not communicated to her, the trial admitted the evidence
as relevant to Abram's consciousness of guilt.
Declarations made after the commission of the crime which indicate consciousness of
guilt, or are inconsistent with innocence, or tend to establish intent may be admissible. See
State v. Rechtschaffer, 360 A.2d 362 (N.J. 1976). Here, Abram's statements to his fellow
inmate were clearly relevant to the question of guilt.
95 Nev. 352, 357 (1979) Abram v. State
statements to his fellow inmate were clearly relevant to the question of guilt. See State v.
Mason, 394 S.W.2d 343 (Mo. 1965); People v. Bloom, 18 N.E.2d 197 (1938). The trial
judge, fully cognizant of the prejudicial impact, nevertheless denied Abram's motion for a
mistrial. We decline to overrule that discretionary ruling.
[Headnote 4]
Appellant was entitled to a fair trial, but not a perfect one. Revuelta v. State, 86 Nev. 587,
472 P.2d 343 (1970). Here, there is nothing to suggest that appellant's due process rights were
violated.
I respectfully dissent.
My colleagues note that the detective's testimony was highly prejudicial. However, they
say: It gives us solace that this was not a case in which the question of guilt or innocence is a
close one. Of course, this is quite true, in the sense that appellant may clearly have been
guilty of something. Still, it remains unclear whether appellant committed first-degree
murder, second-degree murder, or manslaughter. Because of highly prejudicial testimony
elicited from Detective Maddockand, I believe, other inflammatory evidence improperly
elicited from Victor Janwayappellant was deprived of a fair trial concerning the degree of
guilt.
As a reading of the majority opinion will show, conflicting inferences might well be drawn
from the proper and probative evidence, regarding appellant's state of mind at the time of the
killing. From the testimony legitimately before the court, issues such as premeditation, or heat
of passion, could be seriously debated. Thus, it seems to me quite possibleindeed
probablethat the improper, admittedly highly prejudicial evidence colored the jury's
determination of these central issues.
____________
95 Nev. 358, 358 (1979) State v. Benigas
THE STATE OF NEVADA, Appellant, v.
BENNETT BENIGAS, Respondent.
No. 10958
ROBERT ALLEN PAQUIN, Respondent.
No. 10959
NORMAN G. SOLOMON, Respondent.
No. 11003
CHARLES D. CASTLE, Respondent.
No. 11004
May 10, 1979 594 P.2d 724
Consolidated appeals from orders dismissing indictments, Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
The district court dismissed embezzlement indictments, and appeals were taken. The
Supreme Court, Manoukian, J., held that embezzlement indictments charging that defendants
did appropriate and use [gaming] chips for purposes other than that for which the same was
entrusted with intent to steal the same and defraud the owner thereof were constitutionally
sufficient.
Reversed.
Raymond Jeffers, Chief Deputy District Attorney, Clark County, for Appellant.
Heaton & Wright, Las Vegas, Skupa, Mainor & Sullivan, Las Vegas, William B. Terry, Las
Vegas, and George D. Frame, Ltd., Las Vegas, for Respondents.
1. Embezzlement.
Embezzlement indictments charging that defendants did appropriate and use [gaming] chips for
purposes other than that for which the same was entrusted with intent to steal the same and defraud the
owner thereof were constitutionally sufficient. NRS 205.300.
Indictments which set out statements of acts constituting the offenses in such a manner as to
inform the accused with reasonable certainty of the specific offense with which he is
charged are sufficient.
in such a manner as to inform the accused with reasonable certainty of the specific offense with which he is
charged are sufficient.
OPINION
In these appeals, we are asked to determine whether the district court erred in dismissing
indictments which alleged elements of two types of embezzlement in a single count. We think
it did and reverse the judgment. Respondents were charged by indictments with
embezzlement (NRS 205.300
1
) and conspiracy to commit embezzlement (NRS 199.480).
Count one of the challenged indictments charged embezzlement as follows:
[Defendants] did then and there wilfully, unlawfully and feloniously embezzle $100.00,
or more, lawful money of the United States, or the equivalent thereof, to-wit: gaming
chips, the property of . . . Hotel . . . in the following manner . . . Defendants, as agents
and employees of . . . Hotel, being entrusted with gaming chips for the purpose of
conducting gaming activities, to-wit: baccarat, did appropriate and use said chips for
purposes other than that for which the same was entrusted with intent to steal the same
and defraud the owner thereof. (Emphasis added.)
Below, respondents successfully moved to dismiss the indictments on the ground that the
pleadings failed to adequately inform them of the nature and cause of the accusations against
them in violation of the Sixth Amendment to the United States Constitution. See generally
NRS 173.075;
2
Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).
____________________

1
1. Any bailee of any money, goods or property, who shall convert the same to his own use, with the
intent to steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any
person, corporation, association or partnership; or any person with when any money, property or effects
shall have been deposited or entrusted, who shall use or appropriate such money, property or effects or
any part thereof in any manner or for any other purpose than that for which the same was deposited or
entrusted, shall be guilty of embezzlement. . . .

2
1. The indictment or the information shall be a plain, concise and definite written statement o;f the
essential facts constituting the offense
[Headnote 1]
Appellant contends the allegation that respondents acted with the intent to steal and
defraud the owner of his property is neither misleading, nor prejudicial, and may be stricken
as surplusage. NRS 173.085.
3
Cf. Luckett v. Warden, 91 Nev. 541, 539 P.2d 1219 (1975),
negotiable describing gaming chips; Hulett v. Sheriff, 91 Nev. 139, 532 P.2d 607 (1975),
extorting information in counts charging murder and kidnapping; Carson v. Sheriff, 87
Nev. 357, 487 P.2d 334 (1971), failure to report automobile accident to sheriff; Graves v.
Young, 82 Nev. 433, 420 P.2d 618 (1966), indictment for murder in first degree. We agree;
the indictments are not constitutionally infirm. See United States v. Agone, 302 F.Supp. 1258
(S.D.N.Y. 1969), cited in Simpson v. District Court, supra, fn. 2 at 657, 503 P.2d 1227. On
remand, respondents may seek relief under NRS 173.085.
[Headnote 2]
But for the additional allegation, appellant properly charged the respondents with all
essential elements of one of the forms of embezzlement as set forth in the statute. NRS
205.300. In Rose v. State, 86 Nev. 555, 471 P.2d 262 (1970), we stated that NRS 205.300
sets forth two particular kinds of embezzlement. The second kind, with which respondents
herein are charged, does not require an intent to steal. That type of embezzlement is complete
whenever an appropriation is made by one entrusted with property. Indictments, as these
before us, which set out statements of the acts constituting the offenses in such a manner as to
inform the accused with reasonable certainty of the specific offense with which he is charged
are sufficient.
____________________
charged. It shall be signed by the district attorney or by the attorney general acting pursuant to NRS
228.170. It need not contain a formal commencement, a formal conclusion or any other matter not
Siriani v.necessary to such statement.
2. Allegations made in one count may be incorporated by reference in another count. It may be
alleged in a single court that the means by which the defendant committed the offense are unknown or
that he committed it by one or more specified means.
3. The indictment or information shall state for each count the official or customary citation of the
statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.
Error in the citation or its omission shall not be ground for dismissal of the indictment or information or
for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
(Emphasis added).

3
The court on motion of the defendant may strike surplusage from the indictment or information.
Siriani v. Sheriff, 93 Nev. 559, 571 P.2d 111 (1977). See Russell v. United States, 369 U.S.
749 (1962).
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
____________
95 Nev. 361, 361 (1979) Battiato v. Sheriff
SALVATORE CHARLES BATTIATO, Appellant, v.
No. 11715
May 16, 1979 594 P.2d 1152
Defendant who was charged with committing offense of battery on police officer appealed
from order of the district court denying his pretrial petition for writ of habeas corpus. The
Supreme Court held that: (1) original jurisdiction of offense of misdemeanor battery on police
officer lies with district court, and (2) where prosecutor proceeded by complaint rather than
by indictment or information, district court was without jurisdiction to proceed.
Reversed.
Patrick R. Doyle, Las Vegas, for Appellant.
Steven J. Parsons, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
District courts have original jurisdiction of all criminal cases except as otherwise provided by law;
jurisdiction of justices' courts, however, is fixed by legislature. Const. art. 6, 6, 8; NRS 3.190,
subd. 1(g).
2. Criminal law.
Original jurisdiction of offense of misdemeanor battery on police officer lies in the district court. Const.
art. 6, 6, 8; NRS 3.190, subd. 1(g) 4.370, subd. 3(b), 41.0307, 169.015 et seq., 169.125, 169.154,
193.010, subd. 16.
Where prosecutor proceeded by complaint, rather than by statutorily required indictment or information,
in case of offense of misdemeanor battery of police officer, the district court was without
jurisdiction to proceed in such matter.
battery of police officer, the district court was without jurisdiction to proceed in such matter. NRS
172.015, 200.481.
OPINION
Per Curiam:
A criminal complaint was filed in the district court alleging that on April 4, 1978,
appellant committed the offense of battery on a police officer, a misdemeanor (NRS
200.481). Appellant petitioned the district court for a pretrial writ of habeas corpus
contending that the district court was without jurisdiction to try the charges because (1)
jurisdiction of misdemeanor offenses is vested in the justice's court, and (2) even if the
district court had jurisdiction of the offense, the prosecutor could not proceed by complaint.
The writ was denied and appellant perfected this appeal.
[Headnotes 1, 2]
1. The district courts of the State of Nevada have original jurisdiction of all criminal cases
except as otherwise provided by law. See Nev. Const. art. 6, 6; NRS 3.190(1)(g). The
jurisdiction of the justices' courts, however, is fixed by the legislature. See Nev. Const. art. 6,
8. The legislature has fixed the jurisdiction of the justices' courts as extending to cases of
[a]ssault and battery, not charged to have been committed upon a public officer in the
discharge of his duties. . . . NRS 4.370(3)(b). (Emphasis added.) Since jurisdiction over the
offense of battery on a public officer has not been vested in the justice's court, by necessary
implication such jurisdiction must lie in the district court. Accordingly, we now hold that
original jurisdiction of the offense of misdemeanor battery on a police officer lies in the
district court.
1
[Headnote 3]
____________________

1
We believe that in enacting NRS 4.370(3)(b), the legislature intended that a police officer be included
within the term public officer. we acknowledge that in some areas of legislation, distinctions are made between
peace officers and public officers. See NRS 41.0307 (defining public officer for actions against the state);
NRS 169. 125 and NRS 169.164 (defining peace officers and public officers for purposes of the Nevada
Criminal Procedure Law). In other statutes, however, the distinction is not made. NRS 193.010(16) defines both
officers and public officers as employees of any political subdivision or public corporation of this state. We
also note that California courts, in construing provisions of their penal code that are similar to NRS 4.370(3)(b),
have held that the term public officer includes a peace officer. See, e.g., People v. Gonzalez, 124 P.2d 44
(Cal. 1942), overruled on other grounds by People v. Cahan, 282 P.2d 905 (Cal. 1955); People v. Hiser, 72 Cal.
Rptr. 906 (Cal.App. 1968); In re Bacon, 49 Cal.Rptr. 322 (Cal.App. 1966); People v. Powell, 221 P.2d 117
(Cal.App. 1950).
[Headnote 3]
2. Although we hold that jurisdiction of the offense was properly in the district court, we
agree with appellant's contention that it is impermissible to proceed in the district court by
complaint. NRS 172.015 provides that [e]very public offense must be prosecuted by
indictment or information. . . . Thus, the district court was without jurisdiction to proceed by
complaint in this matter. Accordingly, we reverse and remand this case to the district court
with instructions to grant the petition for a writ of habeas corpus. This reversal and remand
shall be without prejudice to the state's right to institute charges within 15 days after
remittitur issues.
____________
95 Nev. 363, 363 (1979) Sheriff v. Chandler
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. WILLIAM W. CHANDLER, aka
Jeffrey John Vanderlinden, Respondent.
No. 11774
May 16, 1979 594 P.2d 1154
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
Defendant charged with grand larceny filed pretrial petition for writ of habeas corpus. The
district court granted the petition and the sheriff appealed. The Supreme Court held that it
was permissible for magistrate to infer that value of eight-year-old Mercedes-Benz, in good
operating condition, exceeded $100; thus, evidence was sufficient to establish probable cause
to support charge of grand larceny, despite defendant's contention that no evidence was
presented to establish that the value of car was $100 or more.
Nikolas Mastrangelo, Deputy District Attorney, Clark County, for Appellant.
Bell, Leavitt & Green, Chartered, Las Vegas, for Respondent.
Criminal Law.
It was permissible for magistrate to infer that value of eight-year-old Mercedes-Benz, in good
operating condition, exceeded $100; thus, evidence was sufficient to establish
probable cause to support charge of grand larceny, despite defendant's contention
that no evidence was presented to establish that value of car was $100 or more.
95 Nev. 363, 364 (1979) Sheriff v. Chandler
Mercedes-Benz, in good operating condition, exceeded $100; thus, evidence was sufficient to establish
probable cause to support charge of grand larceny, despite defendant's contention that no evidence was
presented to establish that value of car was $100 or more. NRS 205.220.
OPINION
Per Curiam:
Respondent was charged by information with grand larceny, a felony pursuant to NRS
205.220. The property allegedly stolen was a 1971 Mercedes-Benz automobile. Thereafter,
respondent filed a timely pretrial petition for a writ of habeas corpus, alleging the evidence
adduced at the preliminary examination was insufficient to establish probable cause to
support the charge because no evidence was presented to establish that the value of the stolen
automobile was $100 or more. The district court ordered the writ to issue, and from that
order, this appeal has been perfected.
At the preliminary examination, the owner of the automobile testified that the automobile
was in good running condition when it was stolen. We believe it was permissible for the
magistrate to infer that the value of an eight-year-old Mercedes- Benz, in good operating
condition, exceeded $100. See Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977).
Therefore, the district court erred by granting the writ of habeas corpus.
Accordingly, we reverse and remand this case to the district court with instructions to
quash the writ of habeas corpus.
____________
95 Nev. 364, 364 (1979) Ransey v. State
ANTHONY RANSEY, Appellant, v. THE STATE
No. 10064
May 16, 1979 594 P.2d 1157
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court, Batjer, J., held that it was prejudicial error for the trial court to give an Allen charge
during jury deliberations which in essence told the lone dissenting juror that he should be
open-minded and not obstinate and which did not state that jurors should not surrender
conscientiously formed opinions.
during jury deliberations which in essence told the lone dissenting juror that he should be
open-minded and not obstinate and which did not state that jurors should not surrender
Morgan D. Harris, Public Defender, and Thomas R. Jarrett, Deputy Public Defender,
Robert J. Miller, District Attorney, and Stanley Parry, Deputy District Attorney, Clark
Criminal Law.
Under circumstances including the fact that the trial judge had inquired as to the numerical division of the
jury and thus knew that there was only one dissenting juror, it was prejudicial error for the trial judge to
proceed to give an Allen charge which, in essence, told the lone dissenting juror that he should be
open-minded and not obstinate and which did not contain any mention that jurors should not surrender
OPINION
Appellant was convicted by a jury of burglary and sentenced to serve ten years in the
Nevada State Prison, his sentence was then suspended and he was placed on probation. He
now contends that the district court erred (1) by inquiring into the numerical division of the
jury and (2) by giving a coercive jury instruction commonly known as the Allen
1
charge.
During the course of the jury's deliberation, the foreman reported to the court that it was
unable to reach a verdict. The jury returned to the courtroom, where the trial judge instructed
the foreman to reveal the numerical division of the vote, but not to state in which direction
the vote was divided. The foreman replied the vote was divided 11 to 1. Immediately
thereafter, the judge gave the following charge:
I see no reason why you jurors are not as competent nor as able nor as likely to
decide the issues of fact in this case and decide them right as any other jury that might
be impanelled to decide the same issues based upon the same evidence.
____________________

1
The Allen charge derived its name from an instruction approved by the United States Supreme Court in
Allen v. United States, 164 U.S. 492 (1896). For a summary of the dubious history of the charge see People v.
Gainer, 566 P.2d 997, 1000-1003 (Cal. 1977).
impanelled to decide the same issues based upon the same evidence.
I don't wish to say that you are going to be made to agree or that you are going to be
kept out until you agree. I do want you to understand, however, that you have a duty to
make an honest and a sincere attempt to arrive at a verdict.
Now, jurors shouldn't be obstinate. They should be open-minded. They should listen
to the arguments of others, talk things over freely, and make an honest effort as
fair-minded men and women to reach a conclusion on all the issues presented to them.
. . . .
Now, I don't want you to believe that you are going to be made to agree, but I do
think that you should attempt to agree if all possible.
The jury then retired for further deliberation and later returned with a verdict of guilty. The
Allen charge given in this case was of a type used in Wisconsin. See Kelley v. State, 187
N.W.2d 810 (Wisc. 1971); Madison v. State, 212 N.W.2d 150 (Wisc. 1973); Quarles v. State,
233 N.W.2d 401 (Wisc. 1975).
Allen charges have been condemned because they (1) coerce the minority juror or jurors to
acquiesce to the will of the majority by encouraging the minority to reconsider their position
in light of the fact that the majority disagrees with them; and (2) coerce a verdict by implying
that a costly new trial will be necessitated should the jury not reach a unanimous decision. For
these reasons, some jurisdictions have held that such charges may no longer be given.
2

In the past this Court has reviewed the propriety of the Allen charge and has reluctantly
approved it if it clearly informs the jury that each member has a duty to conscientiously
adhere to his own honest opinion and the charge avoids creating the impression that there is
anything improper, questionable or contrary to good conscience for a juror to create a
mistrial.
____________________

2
E.g., United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971), United States v. Fioravanti, 412 F.2d 407
(3rd Cir. 1969, cert. denied, sub nom. Panaccione v. United States, 396 U. S. 837 (1969); United States v.
Silvern, 484 F.2d 879 (7th Cir. 1973) and United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied,
396 U.S. 1017 (1970); State v. Thomas, 342 P.2d 197 (Ariz. 1959); People v. Gainer, supra, n. 1; People v.
Prim, 289 N.E.2d 601 (Ill. 1972), cert. denied, 412 U.S. 918 (1973) and People v. Pankey, 374 N.E.2d 1114
(Ill.App. 1978); State v. Nicholson, 315 So.2d. 639 (La. 1975); Pinder v. State, 355 A.2d 489 (Md.App. 1976);
and Kersey v. State, 525 S.W.2d 139 (Tenn. 1975).
Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970); Azbill v. State, 88 Nev. 240, 495 P.2d
1064 (1972); Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976); State v. Hall, 54 Nev. 213,
13 P.2d 624 (1932). In Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977), we found that
the Allen charge given in that case was unduly coercive and constituted reversible error
because the charge did not remind the individual jurors not to surrender conscientiously held
opinions for the sake of judicial economy. Cf. State v. Clark, 38 Nev. 304, 149 P. 185 (1915).
Because of the numerical division inquiry, the trial judge in this case knew that there was
only one dissenting juror. Nevertheless, he proceeded to give the jury a charge which in
essence told the lone dissenting juror that he should be open-minded and not obstinate. No
mention was made that jurors should not surrender conscientiously formed opinions. It is not
always true that the one obstinate juryman' is wrong and the other eleven are right, . . . .
State v. Clark, 38 Nev. at 310, 149 P. at 187.
Upon the authority of Redeford v. State, supra, we conclude that it was error to give the
charge in the form used.
3
From the record it is impossible to ascertain how long the jury
deliberated before the charge was given, nor do we know the time lapse between the giving of
the charge and the return of the guilty verdict. The record also fails to reveal what evidence
and testimony was presented at the trial. We are therefore constrained to find the error
prejudicial and not merely harmless.
____________________

3
In People v. Prim, supra, n. 2, the Illinois Supreme Court composed the following deadlocked jury
instruction:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is
necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an
agreement, if you can do so without violence to individual judgment. Each of you must decide the case
for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to reexamine your own views and change your opinion if
convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of
evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a
verdict.
You are not partisans. You are judgesjudges of the facts. Your sole interest is to ascertain the truth
from the evidence in the case. Id. at 609.
See also United States v. Thomas, supra, n. 2; United States v. Fioravanti, supra, n. 2; United States v. Silvern,
supra, n. 2; People v. Gainer, supra, n. 1; Kelly v. State, 310 A.2d 538 (Md. 1973); Commonwealth v.
Rodriquez, 300 N.E.2d 192 (Mass. 1973); Kersey v. State, supra, n. 2.
This instruction, which embraces the standards formulated by the ABA regarding jury instructions, is an
example of a permissible charge when the jury has become deadlocked. Cf. Basurto v. State, 86 Nev. 567, 571,
472 P.2d 399, 341, n. 2 (1970).
Accordingly, appellant's conviction is reversed and the case remanded for a new trial.
Because we reverse we need not determine whether the trial court erred by inquiring into the
numerical division of the jury.
____________
95 Nev. 368, 368 (1979) Newburn v. Howard Hughes Med. Inst.
DAN ROBERT NEWBURN, Appellant, v. HOWARD
HUGHES MEDICAL INSTITUTE, Respondent.
No. 11231
May 16, 1979 594 P.2d 1146
Appeal from contempt of court judgment; Eighth Judicial District Court, Clark County; J.
The district court entered judgment finding news reporter in contempt of court, and
reporter appealed. The Supreme Court, Thompson, J., held that if information disclosed by
news reporter was not of a confidential character, he had no privilege to assert, and, on other
hand, if it was of a confidential character, it was evident that he did not consider it to have
been received by him in confidence since he voluntarily disclosed that information and must
be deemed to have waived any privilege conferred.
Affirmed.
Mowbray, C. J., and Gunderson, J., dissented.
Beckley, Singleton, DeLanoy & Jemison, Chartered, and Denton and Denton, of Las
Vegas, for Appellant.
Fahrenkopf, Mortimer, Sourwine, Mousel & Pinkerton, of Reno, and Hogan & Hartson, of
Washington, D.C., for Respondent.
1. Pretrial Procedure.
Where documents delivered to one are no longer in one's possession or control, one may not be held in
contempt for failure to produce such documents.
2. Witnesses.
Absent a statute, communications to a news reporter do not enjoy a privilege against use as evidence, and
reporter may be compelled to reveal information given to him in his professional capacity, since sound
policy requires full disclosure of information in order that justice may prevail, and
public interest in administration of justice is deemed superior to any private
considerations that may exist between a reporter and his informant.
requires full disclosure of information in order that justice may prevail, and public interest in
administration of justice is deemed superior to any private considerations that may exist between a reporter
and his informant. NRS 49.275, 49.385.
3. Witnesses.
Statutory privilege from disclosure for a news reporter is not absolute and is subject to waiver within
intendment of applicable statute. NRS 49.275, 49.385, 49.385, subds. 1, 2.
4. Witnesses.
If information disclosed by news reporter was not of a confidential character, he had no privilege to
assert, and, on other hand, if it was of a confidential character, it was evident that he did not consider it to
have been received by him in confidence since he voluntarily disclosed that information and must be
deemed to have waived any privilege conferred. NRS 49.275, 49.385, 49.385, subds. 1, 2.
OPINION
Dan Robert Newburn, a reporter for the Las Vegas Sun, appeals from a judgment of the
district court finding him in contempt of court. The court had ordered him to appear for
deposition to answer all questions relating to matters which he had disclosed during an
interview on April 6, 1978, with Richard Gano, Robert Herring, and Martin Cook, including
(a) facts concerning his conversations with Terry Moore, Linda Hollings and Richard Gray
regarding Howard R. Hughes, Jr., his will, his testamentary intent, and related matters, and
(b) facts concerning documents relating to Howard R. Hughes, Jr., which Newburn observed
or took possession of in his meetings with Terry Moore, Linda Hollings and Richard Gray.
Newburn also had been ordered to produce all documents in his possession, custody or
control described in a subpoena served upon him which documents had been delivered to him
by Linda Hollings.
Howard Hughes Medical Institute (HHMI) is a nonprofit corporation established by
Howard R. Hughes, Jr., in 1953 and actively engaged in medical research. It is the plaintiff in
an action wherein it is alleged that it is the beneficiary of the Last Will and Testament of
Hughes and requests an opportunity to discover such will or to prove the contents thereof if it
cannot be found.
In March 1978 Newburn approached Judge Hayes, who had been handling certain matters
pertaining to the Hughes Estate, and requested his advice regarding materials he, Newburn,
had observed suggesting the existence of a valid Hughes will. The Judge recommended that
he contact representatives of the Hughes Estate.
Judge recommended that he contact representatives of the Hughes Estate. He met with those
representatives on April 6, 1978, to answer questions with respect to his knowledge of the
Hughes will. Present were Richard Gano, the California special administrator of the Estate of
Howard R. Hughes, Jr., Robert Herring, an attorney for persons asserting claims as intestate
heirs of Hughes, Martin Cook, counsel for HHMI, and Newburn. The interview was tape
recorded with the consent of all present.
Newburn revealed conversations he had engaged in with Richard Gray, an attorney who
had represented Hughes during the 1950-60's, with Linda Hollings, the widow of Richard
Gray, and with Terry Moore. His conversations with Gray were about discussions between
Gray and Hughes concerning Hughes' testamentary intent. He disclosed that Linda Hollings
had delivered to him memos between Hughes and Gray which may have pertained to matters
that might be included in a will.
Newburn also discussed documents he had witnessed at the home of Terry Moore. One of
those documents appeared to be a will. Regarding that document, Newburn described the
contents of several provisions, the number of pages, the color of the backing to which it was
affixed, and stated that it had been signed in ink, apparently by Hughes, and witnessed by
Frank Lloyd Wright, Vern or Vernon Mason, and Nadine Henley. This document left the bulk
of the Hughes Estate to HHMI.
When Newburn appeared for deposition to give sworn testimony regarding matters
disclosed during the interview of April 6, 1978, he declined to answer any questions claiming
the news media privilege contained in NRS 49.275. Thereafter, HHMI moved for an order
compelling discovery which the court granted. Newburn, however, persisted in his refusal to
answer questions or produce documents, and was, therefore, adjudged in contempt of court.
[Headnote 1]
Since the entry of the contempt judgment Newburn has agreed to answer questions
regarding conversations between himself and Dick Gray. Therefore, we are not concerned
with that area of discovery. Moreover, the documents delivered to Newburn by Linda
Hollings apparently are not in his possession or control. In such circumstances one may not
be held in contempt for the failure to produce such documents. McPhaul v. United States, 364
U.S. 372 (1960). Consequently, this opinion concerns only the discovery of his conversations
with Terry Moore and the story of his observations of documents while in her home.
[Headnote 2]
1. Absent a statute, communications to a news reporter do not enjoy a privilege against
use as evidence, and the reporter may be compelled to reveal information given to him in his
professional capacity. Brewster v. Boston Herald-Traveler Corporation, 20 F.R.D.416 (D.
Mass. 1957); Clein v. State, 52 So.2d 117 (Fla. 1950); In Re Goodfader's Appeal, 367 P.2d
472 (Hawaii 1961); People v. Sheriff of New York County, 199 N.E. 415 (N.Y. 1936). Sound
policy requires the full disclosure of information in order that justice may prevail. The public
interest in the administration of justice is deemed superior to any private considerations that
may exist between a reporter and his informant.
Consequently, if the legislature has not enacted a shield law the tendency of the courts is
not to extend the classes to whom the privilege from disclosure is granted, but to restrict that
privilege. People v. Sheriff of New York County, supra.
Of course, the Nevada Legislature has created a privilege from disclosure for a news
reporter. It is embodied in NRS Chapter 49 along with other recognized privileges. The
general statutory scheme is that no person has a privilege to refuse to be a witness, disclose
any matter or produce any object or writing unless granted a privilege to do so [NRS 49.015],
which privilege may be waived by voluntary disclosure [NRS 49.385].
[Headnotes 3, 4]
2. In the matter at hand the district court ruled that there was no basis upon which to
construe Newburn's April 6, 1978, disclosures as investigative reporting since he was not
receiving information, but, rather, was voluntarily disclosing information. Accordingly, that
court found that any claim of privilege was waived.
Newburn challenges that finding. It is his contention that the privilege created by NRS
49.275 is absolute and not subject to waiver within the intendment of NRS 49.385.
1
We
summarily reject this contention. All privileges recognized by NRS Chapter 49 are explicitly
subject to the waiver provisions of NRS 49.385.
____________________

1
NRS 49.275: No reporter . . . of any newspaper, . . . may be required to disclose any published or
unpublished information obtained or prepared by such person in such person's professional capacity in gathering,
receiving or processing information for communication to the public, or the source of any information procured
or obtained by such person, in any legal proceedings, trial or investigation: . . . .
NRS 49.385: 1. A person upon whom these rules confer a privilege against disclosure of a confidential
matter waives the privilege if he . . . voluntarily discloses or consents to disclosure of any significant part of the
matter.
2. This section does not apply if the disclosure is itself a privileged communication.
Subordinately, the appellant asserts that his voluntary disclosure of information on April 6
was itself a privileged communication within NRS 49.385(2) since he was engaged in
investigative reporting the purpose of which was to seek information and to verify
information he possessed regarding Mr. Hughes. The record fully supports the finding of the
district court to the contrary.
The privilege against disclosure of a confidential matter is waived by a voluntary
disclosure of any significant part. NRS 49.385(1). If the information disclosed by Newburn
during the April 6 interview was not of a confidential character, he has no privilege to assert.
On the other hand, if it was of a confidential character, it is evident that he did not consider it
to have been received by him in confidence since he voluntarily disclosed that information
and must be deemed to have waived any privilege conferred. In Re Dan, 363 N.Y.S.2d 493
(Sup.Ct. 1975).
Affirmed.
Batjer, J., concurs.
Manoukian, J., concurring:
I agree with the majority's holding respecting the issue of waiver. Absent the plenary
waiver, the court would have been more sensitive in addressing the scope of the news
reporter's privilege.
In view of Newburn's voluntary disclosures, we need not involve ourselves in the
balancing of the newsman's First Amendment rights against societal interests. See
Application of Caldwell, 311 F.Supp. 358 (D.C.N.D. Cal. 1970); see also Silkwood v.
Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977).
Mowbray, C. J., dissenting:
Respectfully, I dissent.
Nevada has a strong shield law. NRS 49.275 provides:
No reporter, former reporter or editorial employee of any newspaper, periodical or
press association or employee of any radio or television station may be required to
disclose any published or unpublished information obtained or prepared by such person
in such person's professional capacity in gathering, receiving or processing information
for communication to the public, or the source of any information procured or obtained
by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner's inquest, jury or any officer thereof.
2. Before the legislature or any committee thereof.
3. Before any department, agency or commission of the state.
4. Before any local governing body or committee thereof, or any officer of a local
government.
It is true that one who enjoys a news reporter privilege may waive it by voluntarily
disclosing any significant part of the matter. The waiver does not apply if the disclosure is a
privileged communication.
1

In the case at hand, Newburn voluntarily disclosed conversations he had with Terry Moore
in her home and his observation of certain documents located therein. The effect of our order
today requires Newburn to testify under oath not only to those aforementioned matters but to
all other matters relating thereto. This, I believe, goes too far and is in contravention of the
shield law. The courts must, in such cases, be cautious and enter only those orders that are
firmly predicated upon a strict interpretation of the shield law. The reasons are obvious. As
Mr. Justice Douglas said in Branzburg v. Hayes, 408 U.S. 665 (1972) at 721:
Fear of exposure will cause dissidents to communicate less openly to trusted reporters.
And, fear of accountability will cause editors and critics to write with more restrained
pens.
I see no way of making mandatory the disclosure of a reporter's confidential source
of the information on which he bases his news story.
The press has a preferred position in our constitutional scheme, not to enable it to
make money, not to set newsmen apart as a favored class, but to bring fulfillment to the
public's right to know. The right to know is crucial to the governing powers of the
people, to paraphrase Alexander Meiklejohn. Knowledge is essential to informed
decisions.
As Mr. Justice Black said in New York Times Co. v. United States, 403 U.S. 713,
717 (concurring opinion), The press was to serve the governed, not the governors. . . .
The press was protected so that it could bare the secrets of government and inform the
people.
____________________

1
NRS 49.385:
1. A person upon whom these rules confer a privilege against disclosure of a confidential matter waives the
privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of
any significant part of the matter.
2. This section does not apply if the disclosure is itself a privileged communication.
From the majority opinion as written, I respectfully dissent.
The majority do not confine respondent to interrogating appellant Newburn on the precise
matters he heretofore disclosed. I could accept a ruling thus limited, on the premise that
Newburn, by his own conduct, demonstrated he did not consider the disclosed information
confidential. I cannot, however, agree that Newburn may properly be ordered to answer all
questions relating to matters which he had disclosed. . . . (Emphasis added.)
The majority opinion may be read to destroy the shield law totally, through a mechanical
application of NRS 49.385(1). In my view, merely because a newsman reveals a significant
part of a conversation does not, either logically or legally, establish that he has revealed a
significant part of a confidential matter he learned during that conversation. Such is the test
by which NRS 49.385(1) requires waiver to be measured.
Sometimes, within a lengthy conversation, there may be only one item which the
newsperson and the source consider a confidential matter. Commonly, this is the source's
name; however, it could also be the identity of some other source, or the whereabouts of other
evidence. Obviously, such secrets relate to the rest of the conversation. Still, neither party
anticipates a waiver, and NRS 49.385(1) raises none, when the newsman discloses portions of
the parties' discussion which were not intended to remain secret.
In my view, under a correct interpretation of our statutes, one claiming a waiver of the
shield law must prove, not merely that a significant part of a conversation has been
disclosed, but that there has been disclosure of some part of the conversation which the
parties intended to treat as confidential. In my view, therefore, the majority opinion
incorrectly implies that whenever news personnel relate something they have discovered, in
or out of print, a waiver results, thereby subjecting such personnel to interrogation upon
related matters. I am confident our Legislature never intended such a result.
____________
95 Nev. 375, 375 (1979) Squyres v. Zions First Nat'l Bank
GLEN H. SQUYRES and FAYE SQUYRES, Appellants, v.
ZIONS FIRST NATIONAL BANK, Respondent.
No. 10548
May 16, 1979 594 P.2d 1150
Appeal from judgment, Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Debtor appealed from judgment of the district court entered in favor of bank in action for
judgment on debt. The Supreme Court held that: (1) debtor had been in default, and (2) bank
acted in a commercially reasonable manner in its handling of the collateral.
Affirmed.
Robert E. Jones, Las Vegas, for Respondent.
1. Secured Transactions.
Where security agreement defined default as any sale of all or substantially all of the debtor's assets other
than in the due course of business and cessation of business by the debtor, where the debtor and his wife
packed up all of their furniture and belongings, withdrew their children from school and left town, leaving
enough money at the office to meet two weeks payroll for the employees, and where the debtor thereafter
signed a document purporting to sell his business to another for $10, the debtor was in default.
Bank which, as it was entitled to do, proceeded to collect on the account receivables pledged to secure
the loan and credited the amounts which it collected to the debtor's account handled the collateral in a
commercially reasonable manner. NRS 104.9501, subd. 1.
Evidence sustained finding that bank, after collecting accounts receivable pledged to secure a loan,
credited those amounts against the debtor's account.
OPINION
Per Curiam:
In 1971 appellant Glen H. Squyres commenced doing business as a sole proprietor under
the name Duchesne Equipment Company in Duchesne, Utah, a town of approximately 2,000
people. The business originally consisted of steam cleaning, mostly in connection with oil
drilling and exploration enterprises near Duchesne. Gradually, the business expanded to the
sale, rental and servicing of various equipment incidental to the oil industry and
eventually included sales and servicing of fire extinguishers.
sale, rental and servicing of various equipment incidental to the oil industry and eventually
included sales and servicing of fire extinguishers.
As the business expanded, Squyres applied to respondent bank for financing. Beginning in
early 1974, the bank extended Squyres a series of loans secured by accounts receivable which
the debtor pledged. In this manner, the bank followed the practice of loaning appellant 80%
of the face amount of his pledged receivables. By September, 1974, Squyres' indebtedness to
the bank reached a high of nearly $160,000. When it became apparent that some of the
accounts were not being realized, the bank decided to curtail appellant's borrowing.
Accordingly, Mr. Ferron Peterson, respondent's Duchesne branch manager, advised the debtor
that the bank wished to reduce his indebtedness to around $50,000. The bank also requested
an audited financial statement for calendar year 1974. On February 18, 1975, Squyres
supplied Mr. Peterson with an unaudited, uncertified financial statement.
Sometime around March 1, 1975, there were rumors in Duchesne that the Squyres were
planning to move away. Mr. Peterson visited Mr. Squyres outside appellants' home on
Saturday, March 8, 1975, at which time appellant advised him that he intended to cut his
inventory in an effort to comply with the bank's request to curtail his borrowing. He also said
that he was planning a business trip to Las Vegas and would be away for a week or two.
About a week later, appellants packed up all their furniture and belongings, withdrew their
children from school and left Duchesne. Squyres allegedly left enough money at his office to
meet two weeks' payroll for his employees, but there is no showing that he notified his
creditors of his intentions.
Soon thereafter, his creditors became aware of the situation and began looking for security.
One creditor, Mr. Guy Taylor, learned appellants had gone to Las Vegas and went there
himself to meet them. At that meeting, Mr. Squyres signed a document purporting to sell the
equipment company to Mr. Taylor for $10. Mr. Taylor recorded the bill of sale in Utah, but
the equipment company never again commenced doing business.
On March 13, 1975, Mr. Peterson and another bank official flew to Las Vegas to discuss
appellant's future with Duchesne Equipment Company. Squyres explained his move to Las
Vegas as an attempt to escape the mounting business pressures in Duchesne. The bank took
an assignment of a contract Squyres had not completed, and applied the proceeds of a
subsequent sale to his account.
On March 17, 1975 respondent filed suit in the district court in Las Vegas for judgment on
the debt.
1
By its amended complaint of August 21, 1975, the bank sought judgment for
$93,027.14, together with interest, attorney's fees and costs, and the foreclosure of its security
interest in the accounts.
2
Following a three day trial the court, sitting without a jury, entered
judgment for the bank as prayed in the complaint.
In this appeal, appellants contend the bank acted in a commercially unreasonable manner
and that the judgment of the trial court is not supported by the evidence. We disagree and
affirm the judgment in all respects.
[Headnote 1]
The security agreement defined default, inter alia, as any sale of all or substantially all of
the debtor's assets other than in the due course of business, cessation of business by the
debtor, or reasonable insecurity on the part of the bank. The evidence of appellant's default is
overwhelming. Indeed, during oral argument, appellants admitted being in default.
[Headnote 2]
On default, a secured creditor has all the rights outlined in Part Five of Article Nine of the
Uniform Commercial Code. NRS 104.9501 et seq. He may reduce his claim to judgment,
foreclose or otherwise enforce the security interest by any available judicial procedure. NRS
104.9501 (1). Here, as it was entitled to do, the bank proceeded to collect on the account
receivables pledged. The money thusly collected was credited to the debtor's account. The
trial court found, and we agree, that in its handling of the collateral, the bank acted in a
commercially reasonable manner.
[Headnote 3]
Although Squyres contends the bank failed to credit certain amounts against his
indebtedness, the trial court found otherwise, and there is substantial evidence to support that
finding. Jones v. Bank of Nevada, 91 Nev. 368, 535 P.2d 1279 (1975). We find no error.
____________________

1
This procedure is expressly authorized by NRS 104.9501(1).

2
The bank also sought to foreclose its purchase money security interest in a 1975 Pontiac automobile
appellants had purchased under a conditional sales contract. The trial court granted respondent the relief
requested; however, that portion of the judgment is not the subject of this appeal.
____________
95 Nev. 378, 378 (1979) Bailey v. State of Nevada
PATRICIA M. BAILEY, Appellant, v. STATE OF NEVADA; ROLAND D.
WESTERGARD, STATE ENGINEER; JOHN DOES 1 through 5, Respondents.
No. 9579
May 16, 1979 594 P.2d 734
Appeal from judgment, Sixth Judicial District Court, Pershing County; Joseph O.
McDaniel, Judge.
Action was brought challenging state engineer's cancellation of permit to appropriate
underground water and engineer's denial of reapplication for the same water rights. The
district court disallowed plaintiff's challenge to dismissal of original permit, but directed state
engineer to grant, in part, new application by appropriating water for cultivation of 80 acres
and plaintiff appealed. The Supreme Court, Mowbray, C. J., held that: (1) under
circumstances, state engineer's cancellation of permit did not violate permittee's due process
rights, although she did not receive notice, and (2) underground water permittee was entitled
to equitable relief as to 160 acres under cultivation at time of cancellation of permit, where
permittee had spent substantial sums in drilling wells and improving land, water had been
applied to some of acres under cultivation, permittee had worked on land continuously from
granting of permit until cancellation, and state engineer testified that extensions of time for
filing proof of beneficial use were given as matter of general procedure.
Reversed and Remanded.
Ed. A. Hollingsworth, Reno, for Appellant.
Richard H. Bryan, Attorney General, and Harry Wright Swainston, Deputy Attorney
General, Carson City, for Respondents.
State engineer's cancellation of permit appropriating underground water did not violate permittee's due
process rights, although she did not receive notice, where permittee had been notified at outset that permit
was conditioned upon meeting deadlines in state engineer's endorsement of application for permit, state
engineer complied with statutory directive, that, after deadline, additional notice be sent, by certified or
registered mail, to effect that failure to submit proof of beneficial use or request an extension would result
in cancellation, and such means of notice was reasonably calculated, under the circumstances, to reach
permittee. NRS 533.410.
That state engineer correctly cancelled permit appropriating underground water for failure of permittee to
provide proof of beneficial use did not preclude judicial review of cancellation, where
permittee did not know that her permit was being held for cancellation, unless proof
was received within 30 days, until after expiration of the 30-day period.
not preclude judicial review of cancellation, where permittee did not know that her permit was being held
for cancellation, unless proof was received within 30 days, until after expiration of the 30-day period.
NRS 533.410.
Trial court was not precluded from considering appeal from cancellation of permit appropriating
underground water, where there was no attempt to inform permittee of cancellation for failure to file proof
of beneficial use until about two months later when permittee's husband was informed by representative of
state engineer that permittee's only recourse was to apply for new permit, even though representative knew
such permits were not being favorably considered, and permittee filed new application which was denied.
NRS 233B.020, subds. 1, 2, 233B.125, 533.410.
Underground water permittee was entitled to equitable relief as to 160 acres under cultivation at time of
cancellation of permit, where permittee had spent substantial sums in drilling wells and improving land,
water had been applied to some of acres under cultivation, permittee had worked on land continuously from
granting of permit until cancellation, and state engineer testified that extensions of time for filing proof of
beneficial use were given as matter of general procedure. NRS 533.380, subds. 1(c), 3.
OPINION
Appellant, Patricia M. Bailey, challenged, in district court, the State Engineer's
cancellation of a permit appropriating underground water (No. 22532), and the Engineer's
denial of Bailey's reapplication for the same water right (No. 25905).
The district court disallowed Bailey's challenge to the dismissal of the original permit, No.
22532, but the court did direct the State Engineer to grant, in part, her new application, No.
25905, by appropriating water for the cultivation of 80 acres.
Bailey has appealed, claiming that the court erred in (1) denying her challenge to the
dismissal of permit No. 22532, because Bailey claims she had no notice of the cancellation of
the original permit, and (2) failing to grant Bailey, under her new permit No. 25905,
appropriate water for the cultivation of 160 acres in addition to the 80 acres allowed by the
court.
We agree that under the circumstances presented, permit No. 22532 should not have been
cancelled, and we hold that Bailey is entitled to an appropriate award covering the 160 acres.
We reverse and remand for that purpose.
THE FACTS
The Division of Water Resources issued Patricia M. Bailey No. 22532 on February 22,
1966. The permit provided for the appropriation of underground water for use on Bailey's
Desert Land Entry Acreage in Hualapai Flat, Nevada.
appropriation of underground water for use on Bailey's Desert Land Entry Acreage in
Hualapai Flat, Nevada. As a condition of the granting of the permit, Bailey was required to
begin work on or before August 22, 1966, complete work on or before August 22, 1967, and
apply the water to beneficial use on or before August 22, 1970. She was further required to
submit proof of compliance with each condition within 30 days after each due date.
Bailey and her husband had difficulty locating a productive well, drilling three dry holes.
She was granted a one year extension for completion of work, to August 22, 1968. The 200
foot well was completed during that year, and the water applied to the irrigation of some 80
of appellant's 311 acres. A year later the depth of the well was deepened to 400 feet. By the
fall of 1970, Bailey and her husband had cleared and cultivated an additional 160 acres and
they had planted a crop in anticipation of irrigating the following spring. While the Baileys
were working on the land, the State Engineer attempted to notify Bailey at her residential
address in Sparks, Nevada, that as no proof of beneficial use had been filed by September 22,
1970, her permit was being held for cancellation unless such proof was received within 30
days.
The trial court found that:
On September 22, 1970, a Notice was mailed by Certified Mail to Appellant [Bailey] at
her correct address, pursuant to NRS 533.410. The envelope containing the Notice was
received in the Sparks, Nevada[,] Post Office and Appellant was sent two notices of its
arrival. It was returned by the Sparks Post Office marked Unclaimed and received in
Respondent's [State Engineer's] office on October 12, 1970. Appellant did not actually
receive it. On October 28, 1970[,] the permit was cancelled. No notice of cancellation
was sent to Appellant. Appellant, through her husband, learned of the cancellation
shortly before January 11, 1971. Appellant's husband inquired of personnel in
Respondent's office as to what could be done about the cancellation. Appellant's
husband was told that a new application could be filed. Appellant chose to accept this
advice, and filed a new application No. 25905 on January 11, 1971, for the same
water rights as applied for under the previous permit. On April 22, 1971, the
Respondent denied said application 25905.
The reason given for the denial of Bailey's new application was that the proposed point of
diversion was within an area of concentrated development in the Hualapai Flat area, where
water levels had been lowering within the past three years, and that the granting of the
permit would "tend to impair the value of existing rights."
water levels had been lowering within the past three years, and that the granting of the permit
would tend to impair the value of existing rights. The office engineer who advised Bailey's
husband to file a new application testified that when he did so, he was aware that no new
permits were being issued in that area.
The district court dismissed Bailey's appeal of the cancellation of permit No. 22532;
however, the court honored her subsequent application by granting her equitable relief to the
extent of three acre feet per year for the 80 acres to which the water had previously been
applied. The court concluded that there had been a lack of diligence in developing and
applying water to the additional 160 acres, and denied equitable relief as to that portion of the
application.
APPEAL OF CANCELLATION OF PERMIT NO. 22532
[Headnote 1]
Bailey suggests that the State Engineer's cancellation of permit No. 22532, in the absence
of actual receipt of the notice sent by certified mail, constituted a violation of her due process
rights. We disagree. Bailey was notified at the outset that her permit was conditioned upon
compliance with the deadlines set out in the State Engineer's endorsement of her application.
The State Engineer fully complied with the directive of NRS 533.410 that an additional
notice be sent by certified or registered mail, after expiration of the deadline, to the effect that
failure to submit proof of beneficial use or request an extension within 30 days would result
in cancellation. Such means of notice is reasonably calculated, under the circumstances, to
reach the permittee. That at failed to do so in the case at hand cannot be attributed to any
neglect of duty on the part of the State Engineer. See Mullane v. Central Hanover Tr. Co., 339
U.S. 306, 318-20 (1950); compare Schroeder v. City of New York, 371 U.S. 208 (1962)
(water rights; publication and posting in vicinity of property inadequate notice). We note that
the supreme courts of Oregon and Utah have reached the same conclusion with regard to
similar due process claims by water appropriation permittees who failed to receive actual
notice through certified or registered mail of their failure to comply with the conditions of
their permits. Green v. Wheeler, 458 P.2d 938 (Or. 1969), cert. denied 397 U.S. 990 (1970);
Mosbey Irrigation Company v. Criddle, 354 P.2d 848 (Utah 1960).
[Headnote 2]
However, we have also ruled that a determination that the State Engineer has correctly
cancelled a permit, under his statutory mandate, "does not affect the power of the district
court to grant equitable relief to the permittee when warranted."
State Engineer has correctly cancelled a permit, under his statutory mandate, does not affect
the power of the district court to grant equitable relief to the permittee when warranted. State
Engineer v. American Nat'l Ins. Co., 88 Nev. 424, 426, 498 P.2d 1329, 1330 (1972). We do
not believe that it was the intent of the Legislature to preclude judicial review of an order or
decision of which the aggrieved party had no actual knowledge until after expiration of the 30
day period, such as in the instant case.
We also note that, although the state water law does not specifically require the State
Engineer to serve notice of a final decision or order, the Administrative Procedure Act does
so require. NRS 233B.125.
1
That Act, by its very terms, is designed to establish minimum
procedural requirements for the regulation-making and adjudication procedure of all agencies
of the executive department of the state government unless expressly exempted, and is
intended to supplement statutes applicable to specific agencies. NRS 233B.020 (1) and (2).
In the instant case, it is undisputed that there was no attempt to inform Bailey of the final
decision cancelling her permit, and that she had no actual knowledge of the cancellation until
shortly before January 11, 1971. At that time, her husband was informed by the representative
of the State Engineer that his only recourse was to apply for a new permit. This action was
followed, even though the representative knew such permits were not being favorably
considered.
[Headnote 3]
In Donoghue v. Tonopah Oriental Mining Co., 45 Nev. 110, 198 P. 553 (1921), we refused
to enforce literal compliance with the terms of a statute regulating certain mining claims
where the claimant, through his representatives, had relied in good faith upon the advice of
local government officials as to the proper procedures to follow in order to maintain a claim
in good standing. Here, the office of the State Engineer has been charged with the statutory
duty of administering the complex system of water rights within the state. We believe that lay
members of the public are entitled to rely upon its advice as to the procedures to be followed
under the state water law. As we concluded in Donoghue, we believe that the legislative
intent would not be served by rigid application of the terms of the statute to the
appellant. Cf. Rosenbloom v. United States, 355 U.S. S0 {1957); Fallen v. United States,
37S U.S. 139 {1964); Carter v. United States, 16S F.2d 310 {10th Cir. 194S); Commercial
Credit Corp. v.
____________________

1
NRS 233B.125, in pertinent part, reads:
A decision or order adverse to a party in a contested case shall be in writing or stated in the
record. . . . Parties shall be notified either personally or by certified mail of any decision or order. Upon
request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his
attorney of record. (Emphasis added.)
concluded in Donoghue, we believe that the legislative intent would not be served by rigid
application of the terms of the statute to the appellant. Cf. Rosenbloom v. United States, 355
U.S. 80 (1957); Fallen v. United States, 378 U.S. 139 (1964); Carter v. United States, 168
F.2d 310 (10th Cir. 1948); Commercial Credit Corp. v. United States, 175 F.2d 905, 906-7
(8th Cir. 1949); State v. Delaney, 540 P.2d 61 (Haw. 1975).
We conclude that the trial court erred in its holding that it was precluded from considering
Bailey's appeal of the cancellation of permit No. 22532, and we hold that under the principles
of American National Insurance appropriate equitable relief should have been granted with
respect to that permit.
EQUITABLE RELIEF
Bailey also suggests that the court erred in limiting the equitable relief granted, predicated
on the new permit, to the 80 acres already under cultivation.
In State Engineer v. American Nat'l Ins. Co., supra, we upheld the granting of equitable
relief to a permittee who had not timely filed proof of beneficial use. In that case, the parties
agreed that the well had been completed, the pump installed and the water used to cultivate
the land before the time for filing proof of beneficial use had passed. The district court had
found that considerable sums had been spent improving the land; that no other person would
be damaged if the permittee were allowed to use the water appropriated under the permit.
[Headnote 4]
In this case, the court found that Bailey and her husband had also spent substantial sums in
drilling for water and improving the land, and that water had been applied to some of the
acres under cultivation. The court also found that the granting of a permit, at least as to the 80
acres, would constitute an insignificant impairment of the existing water rights when
compared to the damage that Appellant [Bailey] would sustain resulting from total denial of
[the] application, noting that the statute contemplates that any appropriation of ground water
must allow for a reasonable lowering of the static water level at the appropriator's point of
diversion. NRS 534.110(4). The court found, however, that Bailey had failed to show
diligence in developing and applying water to a beneficial use on the remaining acreage,
and for that reason, denied relief to that extent. This conclusion appears to be predicated
solely on the finding that the Baileys had not in fact met the 1970 deadline for filing proof of
beneficial use established by the State Engineer in 1966.
Bailey now challenges the trial court's finding that she had failed to show sufficient
diligence in applying water to the 160 additional acres which had been cleared and cultivated
at the time the permit was cancelled.
2

The concept of diligence in the application of water to beneficial use has its origins in the
early development of the principles of prior appropriation in the water law of the Western
states. See 1 S. Wiel, Water Rights in the Western States, 382 (3d ed. 1911). Under the
doctrine of relation, it was recognized that realities faced by settlers of semi-arid lands
required accommodation to be made for gradual expansion of water use beyond the initially
appropriated amounts. In Ophir Mining Co. v. Carpenter, 4 Nev. 534, 543-44 (1869), the
court explained:
Where the right to the use of running water is based upon appropriation, and not
upon an ownership of the soil, it is the generally recognized rule here that priority of
appropriation gives the superior right. When any work is necessary to be done to
complete the appropriation, the law gives the claimant a reasonable time within which
to do it, and although the appropriation is not deemed complete until the actual
diversion or use of the water, still if such work be prosecuted with reasonable
diligence, the right relates to the time when the first step was taken to secure it. If,
however, the work be not prosecuted with diligence, the right does not so relate, but
generally dates from the time when the work is completed or the appropriation is fully
perfected. (Emphasis added.)
The court further noted that diligence had been defined as the steady application to business
of any kind, constant effort to accomplish an undertaking, and that in the context of water
appropriation this meant proceeding with all practical expedition, with no delay, except such
as may be incident to the work itself. Id. at 546.
In Ophir, the claimant in question was attempting to establish that the priority of his
increased use of water to supply the village of Dayton should relate back to his first
construction of a ditch for that purpose. The court concluded, however, that in view of an 18
month suspension of work upon the enlargement of the ditch, apparently related to the
pecuniary circumstances of the claimant rather than to factors such as weather or the
nature of the work itself, the claimant had not shown the requisite diligence to entitle him
to the earlier priority.
____________________

2
Bailey also challenges, without supporting argument or authority, the limitation of three acre feet per year.
Under these circumstances, we find no basis to question the determination that such should be their
appropriation under NRS 533.035, which provides that [b]eneficial use shall be the basis, the measure and the
limit of the right to the use of water.
of the claimant rather than to factors such as weather or the nature of the work itself, the
claimant had not shown the requisite diligence to entitle him to the earlier priority. Other
court decisions applying this principle make it clear that the facts and circumstances of each
case are to be considered on an individual basis, taking into account the nature of the task and
the difficulties encountered in the project. See esp. In re Hood River, 227 P. 1065 (Or. 1924)
(diligence shown when project not completed within two decades, under the particular
circumstances).
This principle has been incorporated into the state water law, and is reflected in NRS
533.380(1)(a) which requires that in his endorsement of approval upon an application for the
appropriation of water the State Engineer shall [s]et a time prior to which actual construction
work shall begin . . . and order that the work shall be prosecuted diligently and
uninterruptedly to completion unless temporarily interrupted by the elements.
In this case, the record shows that the Baileys worked on their land continuously from the
time the original permit was granted until it was cancelled in the fall of 1970. After the well
was initially completed, it was deepened in order to obtain adequate water for the irrigation of
the additional acreage. Pipes were obtained and a right-of-way arranged. The 160 acres had
been cleared and a crop planted. But for the cancellation, the water would have been applied
to the additional 160 acres by the following spring. The State Engineer testified that one or
two year extensions on the time for filing proof of beneficial use were given as a matter of
general procedure, unless precluded by extenuating circumstances, and that he knew of
no such circumstances in the case of the Baileys. In fact, he had previously granted Mrs.
Bailey a one year extension for the filing of proof of completion of work after they had had
difficulty locating a productive well. Granting a similar extension on the time for filing proof
of beneficial use would simply appear to have given recognition to the delay necessarily
occasioned by this problem. We note that the portion of the statute which gives the State
Engineer the authority to set deadlines and grant such extensions contemplates a maximum of
ten years from the permit approval date for filing proof of beneficial use. NRS 533.380(1)(c)
and (3).
Under the circumstances here presented, we believe, and so hold, that Bailey is entitled to
equitable relief as to the 160 acres.
We therefore conclude that the order of the district court dismissing appellant's challenge
to the cancellation of permit No.
No. 22532 must be reversed, and that relief should be granted, under that permit, as to the 160
acres under cultivation at the time the permit was cancelled, as well as the 80 acres already
granted. We remand to the district court for further proceedings in accordance with this
opinion.
____________
95 Nev. 386, 386 (1979) O'Bryan v. District Court
DR. GWEN O'BRYAN, Administrator of the Division of Mental Hygiene and Mental
Retardation of the Department of Human Resources of the State of Nevada, and the
DIVISION OF MENTAL HYGIENE AND MENTAL RETARDATION of the Department
of Human Resources of the State of Nevada, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Clark,
Department XI; and The Honorable ADDELIAR D. GUY, Judge Thereof, Respondents.
No. 11201
May 16, 1979 594 P.2d 739
Original proceeding by the State of Nevada seeking to prohibit the enforcement of an order
by the juvenile division of the district court, Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Original proceeding was brought by the State seeking to prohibit enforcement of an order
by the juvenile division of the district court. The Supreme Court, Batjer, J., held that juvenile
court had no authority to make order placing custody of juvenile in the Administrator of the
Division of Mental Hygiene and Mental Retardation and at the same time order that the
juvenile be placed in an out-of-state facility.
Writ granted.
Richard Bryan, Attorney General, and Emmagene Sansing, Deputy Attorney General,
Carson City, for Petitioners.
Thomas W. Biggar, Las Vegas, for Respondents.
1. Infants.
Juvenile court had no authority to make order placing custody of juvenile in the Administrator of
the Division of Mental Hygiene and Mental Retardation and at the same time order
that the juvenile be placed in an out-of-state facility.
juvenile in the Administrator of the Division of Mental Hygiene and Mental Retardation and at the same
time order that the juvenile be placed in an out-of-state facility. NRS 62.040, 62.040, subd. 1(a),
62.200, subd. 1(c), 62.240, 62.300.
2. Infants.
Though juvenile division of district court possesses independent authority to place minors in an
out-of-state facility, once the court grants custody of the child to the Division of Mental Hygiene and
Mental Retardation, court loses jurisdiction to substitute its determinations, appraisals and conclusions for
those of the Division, though the courts always possess authority to set aside decisions of the Division if
they are arbitrary or illegal. NRS 34.010 et seq., 62.040, 62.200, subd. 1(c), 62.240.
3. Counties.
If district court removes custody of juvenile from the Division of Mental Hygiene and Mental Retardation
and directly places the juvenile in an out-of-state facility, the cost of such care will be a proper charge
against the county of the juvenile's legal residence. NRS 62.240, subd. 2.
OPINION
The minor (the Juvenile) here involved is a 16 year old female who exhibits antisocial and
destructive behavior; is subject to severe depression; and has a history of illegal drug use.
Some of her depressions have resulted in her cutting her skin until she draws blood. Her
psychiatric diagnosis is adjustment reaction of adolescence associated with depression. On
February 23, 1978, she was declared to be a neglected child, made a ward of the juvenile
court, pursuant to NRS 62.040(1)(a), and ordered placed in the Las Vegas Comprehensive
Mental Health Center until she reached the statutory age. Subsequently, she was ordered
placed in the Nevada Mental Health Institute in Sparks, Nevada. These institutions were
unable to beneficially treat her because she continually ran away.
[Headnote 1]
On September 28, 1978, a hearing was held in juvenile court to determine the future
course of treatment for the Juvenile. At the outset of the hearing, the district judge indicated
that he was predisposed to place her in the Ingleside Mental Health Center in Rosemead,
California.
1
Dr. O'Bryan testified that she believed the Juvenile should remain in Nevada
because (1) even if she was placed in California, there was nothing to prevent her from
again running away, therefore, it was better to leave her in Nevada where the authorities
were familiar with her problems; {2) the long-term forced confinement envisioned by the
district judge could be counterproductive; and {3) adequate facilities for treatment of her
problems exist in Nevada.
____________________

1
This California facility was one of five institutions recommended by psychiatrists employed by the
petitioners. The other four facilities were: (1) Good Shepard Home, Las vegas; (2) Caliente School for Girls; (3)
Reno Mental Health Center; and (4) Las Vegas Mental Health Center.
even if she was placed in California, there was nothing to prevent her from again running
away, therefore, it was better to leave her in Nevada where the authorities were familiar with
her problems; (2) the long-term forced confinement envisioned by the district judge could be
counterproductive; and (3) adequate facilities for treatment of her problems exist in Nevada.
Even though Dr. O'Bryan opposed the placing of the Juvenile in a facility outside of Nevada,
the district court ordered (1) her placed in the custody of the Administrator of the Division of
Mental Hygiene and Mental Retardation (2) for placement at the Rosemead, California,
facility (3) with cost of such treatment to be paid by the Division. Petitioners argue that the
juvenile court had no authority to make such an order. We agree.
This case is distinguishable from In re Two Minor Children v. Second Judicial District
Court, 95 Nev. 225, 592 P.2d 166 (1979), because there the district court directly placed the
custody of the minor children in the out-of-state facility and the only duty that was left to the
Administrator of the Division was to transport the minors to the facility. See NRS 62.300
2
.
Here, on the other hand, the custody of the Juvenile was given to the Administrator. After
imposing that responsibility upon the Administrator, the district judge then ordered the
Juvenile to be placed at the Rosemead facility.
[Headnote 2]
Although the juvenile division of the district court possesses independent authority to
directly place minors in an out-of-state facility, NRS 62.040; NRS 62.240; NRS 62.200( l)(c),
once the court grants custody of the child to the Division, the court loses jurisdiction to
substitute its determinations, appraisals and conclusions for those of the Division. In
Galloway v. Truesdall, 83 Nev. 13, 31, 422 P.2d 237, 249 (Nev. 1967), this Court said:
The courts must be wary not to tread upon the prerogatives of other departments of
government or to assume or utilize any undue powers. If this is not done, the balance of
powers will be disturbed and that cannot be tolerated for the strength of our system of
government and the judiciary itself is based upon that theory.
Cf. Jones v. Beame, 380 N.E.2d 277 (N.Y. 1978); Blaney v. Commissioner of Correction,
372 N.E.2d 770 (Mass. 1978).
____________________

2
It is hereby made the duty of every public official and department to render all assistance and
cooperation within his or its jurisdictional power which may further the objects of this chapter.
We do not imply that the Division's action could ever be above judicial review or beyond
the scope of the extraordinary writs, NRS ch. 34. Our courts will always possess the authority
to set aside decisions of the Division if they are arbitrary or illegal.
[Headnote 3]
As long as custody and disposition remain with the Administrator of the Division, it will
be responsible for consequential expenses. If the district court removes custody from the
Division and directly places the Juvenile in an out-of-state facility, the cost of such care will
be a proper charge against the county of the Juvenile's legal residence. NRS 62.240(2); In re
Two Minor Children, supra.
The juvenile division of the district court is prohibited from seeking to enforce its order
entered on September 28, 1978, in District Court Case No. J 16882, Eighth Judicial District
Court, Clark County, State of Nevada.
____________
95 Nev. 389, 389 (1979) University of Nevada v. Tarkanian
UNIVERSITY OF NEVADA, UNIVERSITY OF NEVADA, LAS VEGAS, DONALD H.
BAEPLER, as President of the University of Nevada, Las Vegas, and An Officer of the
University of Nevada, and JAMES BUCHANAN, II, DR. FRED ANDERSON, JOHN
BUCHANAN, LILLY FONG, CHRIS KARAMANOS, MOLLY KNUDTSEN, DR. LOUIS
LOMBARDI, BRENDA MASON, JOHN TOM ROSS, as Members of the Board of Regents
of the University of Nevada, Appellants, v. JERRY TARKANIAN, Respondent.
No. 10425
May 17, 1979 594 P.2d 1159
Appeal from judgment granting declaratory and injunctive relief, Eighth Judicial District
Court, Clark County; James A. Brennan, Judge.
Basketball coach brought suit against his university, its president and the regents, seeking
declaratory and injunctive relief from a severance order barring him from association with the
university's athletic program. The district court rendered judgment in favor of plaintiff, and
defendants appealed. The Supreme Court, Mowbray, C. J., held that: {1) the case presented
an actual controversy, but {2) the National Collegiate Athletic Association was a
necessary party and should have been joined in the action.
Supreme Court, Mowbray, C. J., held that: (1) the case presented an actual controversy, but
(2) the National Collegiate Athletic Association was a necessary party and should have been
joined in the action.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Appellants.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
Wiener, Goldwater & Waldman, Las Vegas, for Amicus Curiae National Collegiate
Athletic Association.
1. Declaratory Judgment.
An actual controversy was presented in suit brought by basketball coach against his university, and
others, seeking declaratory and injunctive relief from a severance order barring him from association with
the university's athletic program, since the purpose of the university's suspension of plaintiff was to carry
out the mandate of the National Collegiate Athletic Association, and not merely to create a cause of action
for litigation, and since there was no evidence whatever to suggest that, had the university prevailed, it
would then have reinstated plaintiff, in defiance of what it had determined were its contractual obligations
to the NCAA and in the face of prospective sanctions by the NCAA.
2. Declaratory Judgment.
In action brought by basketball coach against his university, its president and the regents, seeking
declaratory and injunctive relief from a severance order barring him from association with the university's
athletic program, the National Collegiate Athletic Association was a necessary party and should have been
joined in the action, since the interest of the NCAA was such that either the university would be affected,
or the NCAA's ability to protect its interest would be impaired, and in either case further litigation of the
controversy would be likely, should it proceed without joinder of the NCAA, and since complete relief
could not be accorded the parties in the NCAA's absence. NRCP 19(a).
OPINION
The respondent, Jerry Tarkanian, commenced this action in the district court seeking
declaratory and injunctive relief from a severance order barring Tarkanian from association
with the athletic program of the University of Nevada, Las Vegas (UNLV).
UNLV, its president and regents have appealed. The National Collegiate Athletic
Association (NCAA), whose report of Tarkanian's activities was the predicate for UNLV's
order of suspension, is not a party to this action.
order of suspension, is not a party to this action. The NCAA has filed an amicus curiae brief
with this court.
THE BACKGROUND OF THE LITIGATION
UNLV is a public institution of higher learning which is financed by the State of Nevada.
It is a member of the NCAA, an unincorporated association of approximately 830 members,
including virtually all four year colleges and universities in the United States with major
intercollegiate athletic programs. As a member of the NCAA, UNLV contractually agrees to
administer its athletic program in accordance with NCAA legislation. The NCAA
Constitution provides that Legislation governing the conduct of intercollegiate athletic
programs of member institutions shall apply to basic athletic issues such as admissions,
financial aid, eligibility and recruiting; member institutions shall be obligated to apply and
enforce this legislation, and the enforcement program of the Association shall be applied to
an institution when it fails to fulfill this obligation. Primary responsibility for administering
the NCAA enforcement program has been delegated to the Committee on Infractions.
February 26, 1976, the NCAA Committee on Infractions initiated enforcement
proceedings involving UNLV by submitting an Official Inquiry to its president, respondent
Dr. Baepler. The Official Inquiry was the result of a preliminary investigation conducted over
a period of approximately three years by the NCAA investigative staff. The Official Inquiry
included, inter alia, allegations that Tarkanian had violated NCAA legislation. Upon receipt
of the letter of inquiry, UNLV enlisted the aid of the Attorney General of the State of Nevada
to conduct a cooperative investigation.
Hearings before the Committee on Infractions were conducted on November 14, 1976;
December 13 and 14, 1976; and March 13, 1977. The record contains the following
description of the nature of these proceedings by an NCAA official:
Once the institution has collected all available information, it then meets with the
Committee on Infractions to discuss the information which it has obtained and
previously submitted to the Committee in writing. The purpose of this hearing before
the Committee on Infractions is for both the institution and the NCAA investigative
staff, for the first time, to present specific information to the Committee concerning
alleged violations of NCAA legislation. This procedure provides an adequate
opportunity for the institutional representatives to debate any of the information
presented to the Committee by the investigative staff or the institution, and to be
advised of the source of the information upon which each allegation is based.
the information presented to the Committee by the investigative staff or the institution,
and to be advised of the source of the information upon which each allegation is based.
Both the Committee on Infractions and the University will be informed at the hearing of
the identity of the source of evidence upon which an allegation is based as well as any
actual details or evidence reported by individuals interviewed.
The requests of UNLV for prior disclosure of the factual bases or sources of the
allegations contained in the letter of inquiry had been denied. Shortly before the first hearing
was scheduled, the NCAA notified the university that it had changed its prior position and
would allow counsel representing university employees named in the allegations to be
present. Tarkanian was present at all of the hearings and was represented by counsel at the
second and third. According to the record herein, the charges and allegations against Jerry
Tarkanian were presented by the sole means of having either of two NCAA staff investigators
. . . orally relate what each of them recalled of conversations he purportedly had with certain
individuals concerning their knowledge of purported violations of NCAA legislation by Jerry
Tarkanian. The sources of the information reported to the investigators were not present to
give testimony or be cross-examined. A tape recording of the proceedings was made by the
NCAA, but no other reporting was allowed, and the tape was not made available for later
transcription by the NCAA, although university attorneys were allowed to travel to Kansas
City to listen to it.
On April 26, 1977, the Committee on Infractions issued Confidential Report No. 123(47)
containing the Committee's findings of violations of NCAA legislation and recommending
penalties to be imposed on UNLV for such violations. Among the Committee's findings was a
charge that Tarkanian had either contacted or arranged for others to contact principals
involved in the infractions investigation in an effort to discourage them from reporting
violations to the NCAA or to cause them to give untruthful information to the university's
investigators. Included in the penalty section was an order directing UNLV to show cause
why additional penalties should not be imposed if it did not take disciplinary action with
regard to Head Basketball Coach Jerry Tarkanian which, in the Committee's present view,
should be complete severance of any and all relations Tarkanian may have, formally or
informally, with the University's intercollegiate athletic program during the period of the
University's probation including, but not limited to, activities associated with administration,
supervision coaching, recruiting, athletic booster groups and public relations or
fund-raising activities related to the University's athletic program."
coaching, recruiting, athletic booster groups and public relations or fund-raising activities
related to the University's athletic program. The university's attention was drawn to the
responsibilities of the institution under NCAA legislation to provide due notice and
hearing to the involved individual before taking any disciplinary or corrective action.
UNLV appealed the findings and penalty provisions of the report to the NCAA Council. In
its written memorandum the university contested the factual bases for twenty-seven of the
Committee's findings, including some twenty which directly or indirectly involved Tarkanian,
contending that evidence obtained in its own investigation demonstrated that no violations
had occurred. The university was critical of the procedures employed by the NCAA, and
attacked the credibility of the two NCAA investigators who had presented information to the
Committee on Infractions. Tarkanian and the university were allowed twenty and thirty
minutes, respectively, for oral presentation of information to the Council. On August 25,
1977, the NCAA Council accepted the findings and recommended penalty of the Committee
on Infractions.
On September 6, 1977, pursuant to notice, Tarkanian was given a hearing before a hearing
officer appointed by the university. Tarkanian was advised that the charges were as specified
in the NCAA Confidential Report, that he could have assistance of counsel, that he could call
witnesses in his behalf, and that he could have a transcript of the hearing made. Though the
evidence before the NCAA was discussed, no witnesses were presented. Counsel for
Tarkanian took the position that the university's own evidence established that no violations
had occurred, while counsel for the university argued that the university was bound by the
findings of the NCAA. In a written decision, the hearing officer concluded that counsel for
the university was correct in his argument that by joining the NCAA we delegated to that
organization the establishment of governing standards and their enforcement as well. We are
allowed and encouraged to make our own investigations, but this is in no way a substitute for
the investigative functions of the NCAA itself. . . . We must accept their findings of fact as in
some way superior to our own. He also found that in this instance the NCAA's standards of
proof and due process were inferior to what we might reasonably expect. . . . He
recommended executing the proposed NCAA sanctions. Dr. Baepler notified Tarkanian the
following day that he had decided to follow the hearing officer's recommendation, effective
September 9, 1977, noting the University is simply left without alternatives.
THE PRESENT LITIGATION
On September 8, 1977, Tarkanian filed suit against UNLV, President Baepler, and the
university's regents, seeking an injunction restraining enforcement of the NCAA sanction by
the university, and a declaration that he had been denied procedural and substantive due
process of law. A major portion of the complaint was directed to the procedures, findings and
penalty of the NCAA. By its answer, the university put Tarkanian's allegations concerning the
NCAA's activities and procedures at issue. The university also alleged, as an affirmative
defense, that it was a mere extension of the NCAA and, therefore, plaintiff has been afforded
not only the due process hearing provided by the University of Nevada, Las Vegas, but also
prior hearings conducted by the NCAA, all in compliance with the traditional notions of due
process of law.
Prior to trial, an extensive Stipulation of Facts was filed by the parties. Some 30 of the
37 stipulations concerned the structure and procedures of the NCAA in general, or its actions
in this case in particular. Accompanying the stipulated facts were ten exhibits, including
correspondence between the university's investigator and the NCAA staff regarding problems
encountered by the university related to NCAA procedures.
At trial, Tarkanian and two other witnesses testified as to the effect of a suspension upon
Tarkanian's reputation and career. Tarkanian also called the two attorney-investigators for the
university, who detailed their problems with NCAA staff and procedure. The only witness
questioned as to the evidence for the underlying charges against Tarkanian was the deputy
attorney general who had acted for the university during its investigation; he testified that he
had found no factual basis for the charges. No witnesses were presented for the defense.
AN ACTUAL CONTROVERSY IS PRESENTED
As a threshold issue, amicus curiae suggests that the case should be dismissed as not
presenting an actual controversy. As this court has recognized, The duty of this court, as of
every other judicial tribunal, is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions or abstract propositions, or
to declare principles or rules of law which cannot affect the matter in issue in the case before
it.' State v. Teeter, 65 Nev. 584, 654, 200 P.2d 657 (1948). The principle requires that a
court act only to redress injury that fairly can be traced to the challenged action of the
defendant, and not injury that results from the action of some third party not before the
court. Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
Accord, National Collegiate Athletic Ass'n v. Califano, 444 F.Supp. 425 (D.Kan. 1978). In
State v. McCullough, 20 Nev. 154, 156, 18 P. 756 (1888), the court observed that Courts
uniformly refuse to consider cases brought upon pretended controversies, when the object of
the suit is to get the opinion of the court for the benefit of the parties themselves, or to affect
the interest of third persons.
[Headnote 1]
In the instant case, it is clear that the purpose of the university's suspension of Tarkanian
was to carry out the mandate of the NCAA, and not merely to create a cause of action for
litigation. There is no evidence whatever to suggest that had the university prevailed it would
then have reinstated Tarkanian, in defiance of what it had determined were its contractual
obligations to the NCAA and in the face of prospective sanctions by the NCAA.
This case does present an actual controversy, and therefore shall not be dismissed.
THE JOINDER OF THE NCAA AS
A NECESSARY PARTY
Rule 19 of the Nevada Rules of Civil Procedure provides for the joinder of persons needed
for just adjudication. It provides:
(a) 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.
(Emphasis added.)
This provision of the rules of civil procedure reflects certain long-standing policies
prevailing in equitable actions, such as the one now before the court, as described in
Robinson v. Kind, 23 Nev. 330, 47 P. 1, 47 P. 977 (1896). In such cases all persons with an
interest in the subject matter of the suit are to be made parties "so that there may be a
complete decree which shall bind them all."
be made parties so that there may be a complete decree which shall bind them all. 23 Nev.
at 335. If the interest of the absent parties may be affected or bound by the decree, they must
be brought before the court, or it will not proceed to a decree. Id. If a defendant before the
court may be subjected to future litigation, or danger of loss, under the decree, the absent
person must be made a party. Id. at 335-36.
As is shown by the mandatory language of Rule 19(a), the enforcement of the rule is not
left to the parties themselves. As was said of the prior statute dealing with equitable actions,
If there are other persons, not parties, whose rights must be ascertained and settled
before the rights of the parties to the suit can be determined, then the statute is
peremptory; the court must cause such persons to be brought in; it is not a matter of
discretion, but of absolute judicial duty. The enforcement of this duty does not rest
entirely upon the parties to the record. If they should neglect to raise the question and to
apply for the proper order, the court, upon its own motion, will supply the omission,
and will either directly bring in the new parties, or remand the cause in order that the
plaintiff may bring them in.
Robinson v. Kind, 23 Nev. at 338. Thus the question of waiver is not appropriate to the
determination of this issue, and the trial court or the appellate court may raise the issue sua
sponte. Johnson v. Johnson, 93 Nev. 655, 572 P.2d 925 (1977). This is sound policy, for the
rule thus protects the interest of the courts themselves in the efficacy and integrity of their
own proceedings, as well as the interests of the parties.
[Headnote 2]
In the case at hand, it is clear from the pleadings, the evidence presented at trial, and the
judgment, that the NCAA should have been joined in this action. First, the interest of the
NCAA in the subject matter of this litigation was such that either the university would be
affected, or the NCAA's ability to protect its interests would be impaired, and in either case
further litigation of the controversy would be likely, should it proceed without joinder of the
NCAA.
As the situation now stands, regardless of the outcome of this litigation, the NCAA may
claim a contractual right to bind the university to enforce the NCAA's decision by sanctions it
deems appropriate. This is illustrated in the factual background of Regents of University of
Minnesota v. National Collegiate Athletic Association, 560 F.2d 352 (8th Cir.), cert.
dismissed 434 U.S. 978 (1977), in which the university sought injunctive relief against NCAA
sanctions.
injunctive relief against NCAA sanctions. In that case, the university had been enjoined by a
state court from declaring certain students ineligible, pursuant to an NCAA determination,
without a prior university hearing comporting with due process. As a result of such hearings,
the university refused to suspend the students. The NCAA then placed the university on
indefinite suspension, including a ban on post-season play or television appearances for all
sports, until the university complied with its directive to declare the students ineligible. The
NCAA took the position that it could not permit an individual institution to retain either
interpretive or enforcement authority over NCAA legislation. Id. at 360.
1

Respondent argues that the court need not be concerned with the university's position on
this account, since the university will be insulated by the terms of the lower court's decree
from compliance with the NCAA decision. If the university would be so protected, the
NCAA would, to that extent, be unable to protect its interests in its enforcement proceedings.
See Ky. H.S. Athl. Ass'n v. Hopkins Cty. Bd. of Ed., 552 S.W.2d 685 (Ky.App. 1977).
An independent ground for requiring joinder in this case is provided by the directive of
Rule 19(a) that a person be joined when complete relief cannot be accorded the parties
before the court in his absence. A major objective of this provision is to have a final and
complete determination of the controversy, not to determine issues piecemeal. . . .
Investment Co. v. Reno Club, 66 Nev. 216, 222, 208 P.2d 297 (1949). In this case, the
controversy presented involves the NCAA directly, and cannot be completely and justly
determined in its absence. The NCAA initiated and controlled the proceedings against UNLV
which led to Tarkanian's suspension. The NCAA made the factual findings upon which
Tarkanian's suspension was based. To consider the case as if it involved solely the
relationship of the university and Tarkanian, or began with the university's notification to
Tarkanian of its intent to hold a hearing regarding his proposed suspension, would require the
plaintiff to forego constitutional claims to which he may well be entitled.
Plaintiff's fundamental claim in this case is that he was denied his constitutional right to
due process of law. The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 3S0 U.S
545, 552 {1965)." Mathews v. Eldridge, 424 U.S. 319, 333 {1976).
____________________

1
The NCAA's right to impose these sanctions upon the university was upheld by the Court of Appeals, on the
ground that the court order, and due process, were complied with when the university hearings were held,
affording procedural due process, and determining that the underlying facts found by the NCAA were essentially
correct.
heard at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S 545,
552 (1965). Mathews v. Eldridge, 424 U.S. 319, 333 (1976). It is clear that the meaningful
factual determinations in this case, as well as the decision as to the penalty to be imposed, had
been made by the NCAA before Tarkanian was afforded a hearing by UNLV. A court of
equity, in particular, should not be foreclosed from recognizing this reality, and affording
plaintiff the relief to which it may entitle him.
As was observed by the Supreme Court of Oklahoma of a similar attempt by the NCAA to
insulate from judicial scrutiny actions it had taken which affected, through a member
university, certain coaching employees:
Courts are normally reluctant to interfere with the internal affairs of voluntary
membership associations. However, in particular situations, where the considerations of
public policy and justice are sufficiently compelling judicial scrutiny and relief are
available. In dealing with an organization in which membership is an economic
necessity, the courts must be particularly alert to the need for protecting the public
welfare and advancing the interests of justice by reasonably safeguarding the
individual's opportunity to earn a livelihood while not impairing the proper standards
and objectives of the organization. The necessity of court action is apparent when the
position of a voluntary association is so dominant in its field that membership in a
practical sense is not voluntary but economically necessary.
Bd. of Regents v. Nat. Collegiate Ath. Ass'n, 561 P.2d 499, 504 (Okla. 1977) (footnotes
omitted).
It is therefore clear that the instant case falls squarely within the mandate of NRCP 19(a).
We note that the briefs of the parties have cited a number of cases from the federal
jurisdictions discussing Fed. R.Civ.Proc. 19(b), which addresses the situation in which a party
cannot be joined. In such a situation, considerable weight is given the positions taken during
litigation by the parties themselves, and to the fact that reversal will require dismissal of the
entire action. See, esp., Provident Bank v. Patterson, 390 U.S. 102 (1968). In this case,
however, there is no contention that the NCAA is not amenable to service of process or that
its joinder would affect the jurisdiction of the court below.
2
In such circumstances,
consideration of the issues raised by NRCP 19(b) is not warranted. See Robinson v. Kind,
supra, 23 Nev. 330, 47 P. 977 (petition for rehearing).
____________________

2
To the contrary, see Corresp. File, affidavit of M. Soloman, 5/8/78; and Amicus Curiae Opposition to
Motion to Strike Brief, 5/16/78.
Tarkanian, UNLV and the NCAA, each for its own reasons, preferred the trial to proceed
without the joinder of the NCAA. This course did not serve the interest of justice or comply
with the requirement of NRCP 19(a). Remand of the action will, in this case, serve the
interest of judicial efficiency by precluding subsequent litigation of the very issues now
presented.
We therefore reverse and remand for joinder of the NCAA and further proceedings.
Thompson, Manoukian, and Bather, JJ., concur.
As my colleagues hold, the NCAA is a necessary party to this litigation. Therefore, I agree
it was improper for the district court to act in these premises, without requiring the NCAA's
joinder. In the absence of such a joinder, however, I also believe there would be no bona fide,
justiciable controversy.
____________
95 Nev. 399, 399 (1979) Summa Corp. v. Richardson
SUMMA CORPORATION, a Delaware Corporation, Appellant, v. T. W. RICHARDSON,
MAURICE H. FRIEDMAN, JACK BARENFELD, BELDON R. KATLEMAN and IRVING
J. LEFF, Respondents.
No 10767
May 17, 1979 596 P.2d 208
Appeal and cross-appeal from decree of specific performance, Eighth Judicial District
Action was brought for specific performance of an option provision of a lease. A summary
judgment granted to the defendant lessors was reversed and remanded, 93 Nev. 228, 564 P.2d
181 (1977). A decree of specific performance was then granted by the district court and an
appeal and cross-appeal were taken. The Supreme Court, Gunderson, J., held that: (1) in view
of definition of word premises, in the lease, as including any improvements and all personal
property, the option provision of the lease did not exclude personal property, and (2) where
the option agreement did not specify length of time within which escrow should close, it was
within discretion of district court to set reasonable time within which escrow should have
closed, and, under circumstances of case, six-month escrow for conveyance of magnitude of
conveyance involved in case was not unreasonable, and monthly payments toward
purchase price made prior to date set for closing of escrow were properly applied toward
rent due for such months.
involved in case was not unreasonable, and monthly payments toward purchase price made
prior to date set for closing of escrow were properly applied toward rent due for such months.
Manoukian, J., dissented in part.
Morse-Foley, Las Vegas, for Appellant and Cross-Respondent.
John Peter Lee, Ltd., and James C. Mahan, Las Vegas, for Respondents and
Cross-Appellants.
1. Landlord and Tenant.
Primary object of construction of option provision of lease was to discover intention of parties and in
order to effectuate that objective, contract was to be considered as a whole and considered in its entirety.
In view of definition of work Premises, in lease, as including any improvements and all personal
property, option provision of lease agreement did not exclude personal property.
Where option agreement did not specify length of time within which escrow should close, it was within
discretion of district court to set reasonable time within which escrow should have closed, and, under
circumstances of case, six-month escrow for conveyance of magnitude of conveyance involved in case was
not unreasonable, and monthly payments toward purchase price made prior to date set for closing of escrow
were properly applied toward rent due for such months.
OPINION
On June 15, 1965, respondents and Summa's predecessor in interest entered into a lease
agreement by which respondents agreed to let two adjacent parcels of land, including
improvements and personal property located thereon.
1
The lease also provided that the lessee
had the option to purchase the parcels. Thereafter, on June 1, 1973, Summa, as lessee,
commenced an action against respondents seeking specific performance of the option
provision.
____________________

1
The improvements on the parcels included the buildings housing the Silver Slipper Casino. The personal
property included the slot machines, bar fixtures, equipment, furniture, and thirty-three (33) oil paintings by
Julian Ritter, allegedly valued at approximately $300,000.
option provision. On cross-motions for summary judgment, the district court entered
judgment for respondents. That judgment was reversed by this court and remanded to the
district court with instructions to enter judgment for Summa. Summa Corp. v. Richardson, 93
Nev. 228, 564 P.2d 181 (1977).
On remand, the district court entered a decree of specific performance. Both respondents
and Summa moved to amend the decree. After a hearing on the matter, the district court
entered an amended decree which provided: (1) the option to purchase included only the real
property, and excluded the personal property; and (2) escrow was deemed to have closed on
October 1, 1973, and the monthly payments made by Summa toward the purchase price prior
to October 1, 1973, were to be considered as rental payments. Summa appealed from both of
these provisions of the amended decree.
Respondents cross-appealed contending the district court erred in refusing to conduct a
hearing regarding the fair rental value of the personal property after closing of escrow.
[Headnotes 1, 2]
1. The option to purchase is contained in Paragraph XXII of the lease agreement and
provides that: The Lessee shall have the option of purchasing both Parcel A' and Parcel B' .
. . . Paragraph XXII is referred to in Paragraph XXXVII(C)(5) of the agreement wherein it is
stated: If the option to purchase the subject real properly contained in Paragraph XXII is
exercised by the Lessee . . . this lease shall cease. . . . Respondents submit that these
paragraphs of the lease clearly limit the option to purchase to the real property.
In construing the option provision of the lease,[w]e recognize that the primary object of
construction of a contract is to discover the intention of the parties and in order to effectuate
that objective the contract must be construed as a whole and considered in its entirety. West
v. Brenner, 396 P.2d 115, 122 (Idaho 1964). See Coles v. Sommerville, 47 Nev. 306, 220 P.
550 (1923); Hamberlin v. Townsend, 261 P.2d 1003 (Ariz. 1953); Rodriguez v. Barnett, 338
P.2d 907 (Cal. 1959); Hung Wo Ching v. Hawaiian Restaurants, Ltd., 445 P.2d 370 (Hawaii
1968). In our view, the agreement, when read in its entirety, manifests an intent that the
option provision include both the real and the personal property.
Indeed, in order to place the paragraphs relied upon by respondents in proper context,
those paragraphs must be read in conjunction with Paragraph I of the Agreement which
describes the subject matter of the lease. That paragraph provides, in pertinent part: A.
A. Description of Parcel A and Parcel B Premises
Lessor hereby lets and demises to Lessee . . . Parcel A (which will include Parcel
A-1 and Parcel B, more particularly described in Exhibit 1 hereof, entitled Legal
Description of Premises (all of which is herein referred to as the Premises). The
word Premises shall also include any improvements now situated on Parcel A and
which may be made thereon by Lessee and all of the personal property set forth in
Exhibits 2 and 2-A herein, and each and every part thereof, whenever the context
so requires.
Accordingly, the district court erred, as a matter of law in concluding that the option
provision of the agreement excluded the personal property and, thus, that portion of the
decree must be reversed and the case remanded with instructions to amend the decree
consistent with this opinion.
[Headnote 3]
2. Summa also contends that the district court erred in holding that escrow closed on
October 1, 1973, and that monthly payments made by Summa toward the purchase price prior
to that time should be treated as rent payments. We disagree. The option agreement does not
specify the length of time within which escrow should close. It was thus within the discretion
of the district court to set a reasonable time within which escrow should have closed. See
Bradshaw v. Superior Oil Co., 164 F.2d 165 (10th Cir. 1947); Melfi v. Goodman, 388 P.2d
50 (N.M. 1963); Gunderson v. Burbidge, 75 N.W.2d 757 (N.D. 1956). The period between
March 29, the date the option was exercised, and October 1, the date set for close of escrow,
is approximately six months. Under the circumstances here involved, we believe that a
six-month escrow for a conveyance of this magnitude is not unreasonable.
2
Because the
closing of escrow was properly set for October 1, 1973, the district court correctly ruled that
monthly payments toward the purchase price made prior to October 1 should be applied
toward the rent due for those months. Accordingly, this portion of the decree is affirmed.
Other issues raised by Summa are without merit.
Because of our disposition of these issues, we need not consider respondents' cross-appeal.
____________________

2
In its findings, the district court specifically addressed this issue, stating: . . . The Court finds that six
months is a reasonable elapsed time from Plaintiff's exercise of its options (March 29, 1973) within which an
escrow of this nature and complexity should have closed.
Thompson and Batjer, JJ., and Fondi, D.J.,
3
concur.
Manoukian, J., concurring in part, dissenting in part:
I concur in that part of the majority opinion reversing the trial court's order that the option
excluded the personal property.
However, I respectfully dissent from the affirmance of the trial court's determination that
the escrow shall be deemed to be closed on October 1, 1973. In my view of the case, the
court's imposition of a six-month escrow was unreasonable and constitutes an abuse of
discretion. Appellant timely exercised its option to purchase in March, 1973, and by June 1,
deposited money, obtained insurance and performed all the other conditions precedent to its
exercise of the option. Summa Corp. v. Richardson, 93 Nev. 228, 564 F.2d 181 (1977). Thus,
by the time appellant filed this action, all that remained was the execution of the usual
documents of conveyance and the issuance of a title policy. Notwithstanding, the court below
extended the close of escrow from June 1, 1973 to October 1, 1973 and continued Summa's
rent obligation under the lease in the amount of $32,000 per month or a total of $128,000. In
this, I believe the court erred.
Admittedly, the option agreement is silent as to the length of the escrow. In these
circumstances, the escrow should close at the expiration of a reasonable period of time. Tavel
v. Olsson, 91 Nev. 359, 535 P.2d 1287 (1975). In my opinion, the trial court erred in
determining that a six-month escrow was reasonable. This is especially true in that
respondents' conduct had the effect of delaying consummation of the contract. Compare
Cladianos v. Friedhoff, 69 Nev. 41, 240 P.2d 208 (1952). Even giving due consideration to
the complexity of the escrow, it should have been closed within two to three months of
Summa's exercise of the option. Under the circumstances, the trial court's order that appellant
pay rent through the extended escrow period constitutes a clear abuse of discretion.
____________________

3
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Michael E. Fondi, Judge of the
First Judicial District, to sit in place of The Honorable John Mowbray, Chief Justice, who was disqualified.
____________
95 Nev. 404, 404 (1979) Simpson's Colony Reclamation v. Hutzler
SIMPSON'S COLONY RECLAMATION CANAL COMPANY, a Nevada Corporation,
JOHN SQUIRE DRENDEL and FRED SCHWAKE, Appellants, v. JAMES HUTZLER and
ORA HUTZLER, Respondents.
No. 9499
May 24, 1979 595 P.2d 383
Appeal from judgment, Ninth Judicial District Court, Lyon County; Llewellyn Young,
Judge.
Suit was instituted for an injunction to restrain defendants from interfering with plaintiffs'
right to receive water for irrigation through a ditch. The district court entered judgment for
plaintiff, and defendants appealed. The Supreme Court, Batjer, J., held that although
defendant board of directors of canal company in which plaintiffs were stockholders enjoyed
rather broad powers in administration of an irrigation ditch, board was nevertheless precluded
from taking unreasonable or arbitrary action, and while it could require plaintiffs to put
measuring flumes in ditch or, after notice and hearing and on good cause, refuse to deliver
water to plaintiffs from main canal through ditch until compliance was achieved, board did
not have right to simply deny plaintiffs water through ditch.
Affirmed.
Guild, Hagen & Clark, Ltd., and James W. Johnson, Reno, for Appellants.
Robert E. Rose, Las Vegas, for Respondents.
Waters And Water Courses.
Although defendant board of directors of canal company in which plaintiffs were stockholders enjoyed
rather broad powers in administration of an irrigation ditch, board was nevertheless precluded from taking
unreasonable or arbitrary action, and while it could require plaintiff's to put measuring flumes in ditch or,
after notice and hearing and on good cause, refuse to deliver water to plaintiffs from main canal through
ditch until compliance was achieved, board did not have right to simply deny plaintiffs water through ditch.
NRS 111.210, 111.220.
OPINION
Respondents sought an injunction to restrain appellants from interfering with respondents'
right to receive water for the irrigation of 16 acres of land along the northern boundary of
respondents' property through an irrigation lateral referred to as the "Strieby Ditch".
the irrigation of 16 acres of land along the northern boundary of respondents' property
through an irrigation lateral referred to as the Strieby Ditch. In their answer, appellants
contended that respondents had failed to comply with decisions restricting respondents' right
to use the Strieby Ditch made by the board of directors of the Simpson's Colony
Reclamation Canal Company, referred to as the Canal Company.
(Map) See book.
The trial court found there was insufficient evidence of an agreement relating to the
abandonment of the use of the Strieby Ditch by the respondents and their predecessor in
interest. That court further found ditch rights to be interests in land and any agreement
affecting those rights must be in writing
1
to satisfy NRS 111.210 and 111.220, and that the
Canal Company had no right to deny respondents water through the "Strieby Ditch".
____________________

1
See Tusi v. Jacobsen, 293 P. 587, reh. den. 293 P. 939 (Or. 1930); Annot., 71 A.L.R. 1364 (1931).
Strieby Ditch. Judgment, from which this appeal has been taken, was entered confirming
respondents' right to irrigate the northern portion of their ranch through the Strieby Ditch.
The Canal Company transports water from the Walker River to diversion points selected
by shareholders and approved by the board of directors. Respondents and their predecessors
in interest possess a right to appropriate certain waters from the Walker River pursuant to
State application No. 2620 A D. 1913. Respondents received title to their property in 1971.
The property carries with it shares in the Canal Company and entitles the owner to the
delivery of water.
On April 15, 1920, respondents' predecessor in interest, W. V. Newell, entered into an
agreement with the Canal Company for issuance to him of shares of stock in the Company
and for granting to the Company the right to enter upon his lands and to construct and
maintain thereon any and all laterals, sublaterals, ditches or flumes which in the judgment of
the board of directors of the Canal Company would be necessary or useful in conducting
water from the main canal to other lands (Drendel-Bacon Properties). The covenants
contained in that agreement extended to and were binding on the heirs, executors,
administrators, successors and assigns of the parties forever. This same agreement is carried
forward on the reverse side of each stock certificate issued to and accepted by the successive
owners of the property, including the respondents.
Immediately after the execution of the agreement between Newell and the Canal
Company, Louis Olds, who was then the owner of the Drendel-Bacon property, constructed
the Strieby Ditch across the Newell (now Hutzler) property in order to irrigate his property.
Sometime before the year 1955, John and Nancy Roberts acquired title to the entire
Drendel-Bacon and Hutzler properties; therefore, the easement for the lateral constructed by
Olds (Strieby Ditch) merged into the Roberts' ownership and was extinguished. Capital
Candy Company v. Savard, 369 A.2d 1363 (Vt. 1976); Roberts v. Monroe, 75 So.2d 492
(Ala. 1954); Village of Lake Bluff v. Dalitsch, 114 N.E.2d 654 (Ill. 1953); Restatement
(First) of Property 497-499 ( 1944). During their ownership the Roberts used the Strieby
Ditch to irrigate the Drendel-Bacon property as well as the northern 16 acres of the Hutzler
property.
Drendel's predecessor, Sam Strieby, acquired the dominant estate (the Olds property) from
John and Nancy Roberts on October 10, 1955. Anything occurring prior to that date is merely
historical. The Drendel-Bacon right to use the Strieby Ditch" originates in the deed from
Roberts to Strieby, dated October 10, 1955.
Ditch originates in the deed from Roberts to Strieby, dated October 10, 1955. Included in the
conveyance were rights of ways to use ditches on the property owned by Roberts. They were
not exclusive rights of way, but were available for use and were jointly used by Roberts and
Strieby and their successors in title until on or about May 30, 1976, when appellants refused
to allow respondents to use the Strieby Ditch and respondents filed this action.
In 1960, as part of an improvement program, the Canal Company required measuring
devices on all takeouts (diversion points). Construction of ditches from the diversion point to
his place of use was established as the shareholder's responsibility. Although much emphasis
has been placed on the scope of the easement, the most important issue is whether the
directors of the Canal Company could categorically require respondents to irrigate all of their
land from a watergate at takeout a near the center of their property and refuse to deliver any
water to them from the watergate at takeout c (see illustration).
The record reveals that the Canal Company had advised respondents and their
predecessors in title of its desire to have the Hutzler property irrigated entirely from the
watergate situated at takeout a. However, it appears that such a request was unreasonable in
light of the fact that it is much more geographically practical and economical to irrigate via
c rather than a.
Although a board of directors enjoys rather broad powers in the administration of an
irrigation ditch, it is nevertheless precluded from taking unreasonable or arbitrary action.
Gasser v. Garden Water Co., 346 P.2d 592 (Idaho 1959). See Wilterding v. Green, 45 P. 134
(Idaho 1896); Fuller v. Azusa Irrigating Co., 71 P. 98 (Cal. 1902). Here, the directors of the
Canal Company are not without a remedy. The respondents, as stockholders in the Canal
Company and as the successors in title to W. V. Newell, have become contractually bound to
allow the Canal Company to go on their property and construct and maintain laterals, ditches
and flumes which in the judgment of the board of directors may be necessary and useful, and
to pay any assessment levied by the board for such construction or maintenance. The directors
could, on proper notice to the respondents, allow them to irrigate from the Strieby Ditch
only when it was not being used by the dominant property. If this proved unworkable, then
the Canal Company could either require the respondents to put a measuring flume or
measuring flumes in the Strieby Ditch, or the directors of the Canal Company could have
these measuring flumes placed in the Strieby Ditch and assess the respondents for the costs.
If these or other reasonable steps fail, then after notice and an opportunity to be heard,
the board of directors, on good cause shown, could refuse to deliver water to the
respondents from the main canal through the "Strieby Ditch" until compliance was
achieved.
these or other reasonable steps fail, then after notice and an opportunity to be heard, the board
of directors, on good cause shown, could refuse to deliver water to the respondents from the
main canal through the Strieby Ditch until compliance was achieved.
The judgment of the district court is affirmed.
Mowbray, C. J., and Thompson and Gunderson, JJ., and Breen, D. J.,
2
concur.
____________________

2
Mr. Justice Noel E. Manoukian, voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to Art. VI, 4 of the Constitution, designated Judge Peter I. Breen of the Second Judicial
District to sit in his stead.
____________
95 Nev. 408, 408 (1979) Orcutt v. Miller
TERRY ORCUTT, Appellant, v. RUSSELL F. MILLER, M.D., LTD., a Nevada Corporation,
and RUSSELL F. MILLER, Individually and as Agent, Servant
and/or Employee of RUSSELL F. MILLER, M.D., LTD., Respondents.
No. 9931
June 7, 1979 595 P.2d 1191
County; Thomas J. O'Donnell, Judge.
Patient brought malpractice action against physician. The district court granted physician's
motion for summary judgment and patient appealed. The Supreme Court, Manoukian, J., held
that: (1) in order to recover under medical malpractice case, plaintiff must demonstrate that
the defendant specialist failed to meet the standard of skill and care expected of a reasonably
competent practitioner in the same specialty, wherever practicing, and (2) amended affidavits
submitted by patient in opposition to motion for summary judgment raised genuine issue of
fact as to the negligence of the defendant physician.
Reversed.
C. A. Jack Nelson, Chartered, Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Respondents.
1. Judgment.
In a medical malpractice action, plaintiff confronted with a motion tor summary judgment has the
obligation to establish the accepted standard of medical care or practice, that the doctor's conduct departed
from the standard, and that his conduct was the legal cause of the injuries suffered.
On appeal, court must use the facts and inferences arising therefrom in the light most favorable to the
party against whom the motion for summary judgment was granted. NRCP 56(c).
Although amended affidavit submitted in opposition to motion for summary judgment was late, where the
mover's own procedural derelictions during discovery may have contributed to the inability of the opponent
to timely submit the amended affidavit, the moving party was estopped to assert the untimeliness of the
affidavit as a reason to deny consideration of it. Eighth Judicial District Court Special Rules, pt. B, Rule
XXI.
4. Judgment.
Affidavit in which physician stated that the defendant physician's treatment probably precipitated the
patient's ultimate conditions was sufficient to raise the genuine issue as to the physician's negligence.
5. Physicians and Surgeons.
Policy behind the strict locality rule was to prevent the small town practitioner from being held to the
standard of practice of the more sophisticated urban areas.
Locality rule is not the standard to be applied to board certified specialists in malpractice actions; Lockart
v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961).
7. Evidence.
As a medical expert specializing in the same area as defendant physician, witness was competent to
testify as to the standard of care of internal specialists in circumstances similar to those in the case in
question, even though the witness resided in another state; overruling Lockart v. Maclean, 77 Nev. 210,
361 P.2d 670 (1961), NRS 41A.100.
In order to recover in a medical malpractice case against a board certified specialist, patient must
demonstrate that the defendant specialist failed to meet the standard of skill and care expected of a
reasonably competent practitioner in the same specialty, wherever practicing; Lockart v. Maclean, 77
Nev. 210, 361 P.2d 670 (1961).
OPINION
In 1969 appellant, Terry Orcutt, consulted respondent, Dr. Miller, complaining of nausea,
vomiting, diarrhea and dizziness. Orcutt remained under Dr. Miller's care for a period of
nineteen months, during which time he was admitted for treatment on three occasions to
Sunrise Hospital in Las Vegas.
Appellant's condition progressively worsened, and, on July 8, 1971, the patient traveled by air
ambulance to Santa Barbara, California where, immediately upon his arrival, the diagnosis of
toxic megacolon was made, and within two hours thereafter, a colectomy performed.
Subsequently, on June 26, 1973, appellant filed suit in the district court for compensatory
and punitive damages alleging respondent was guilty of malpractice. Respondent, by answer,
denied all of the material allegations of the complaint. Following two unsuccessful efforts to
depose respondent (the result of respondent's failure to appear), appellant took Dr. Miller's
deposition pursuant to a court order, and secured the records of Sunrise Hospital pertaining to
the treatment appellant received while a patient there.
On June 3, 1976, respondent filed a motion for summary judgment pursuant to NRCP
56(b), on the grounds that there was no genuine issue as to any material fact in the action, and
that respondent was entitled to judgment as a matter of law. In support of his motion, Dr.
Miller relied upon his own deposition and that of Dr. Kenneth Smith of Las Vegas, an
American board certified specialist in surgery, now retired. In opposition to respondent's
motion, appellant proffered the affidavit of Dr. Thomas J. Imperato, an American board
certified specialist in internal medicine and the then acting chief, section of gastroenterology
at the University of California, Davis, School of Medicine, wherein Dr. Imperato stated that
in his opinion appellant's condition may have been precipitated by (1) poor medical care and
(2) the injudicious use of opiates during an acute flare up of the patient's colitis. Appellant's
expert concluded that Orcutt had not been given optimal therapy.
1
Dr. Imperato later
sought leave to amend his affidavit to reflect his opinion that appellant's condition was
probably precipitated by Dr. Miller's poor medical care. Appellant offered the amended
affidavit but the trial judge summarily refused to consider it. Accordingly, the court granted
Dr. Miller's motion for summary judgment, finding specifically that appellant had failed to
establish a breach of the accepted standard of care.
____________________

1
The last paragraph of Dr. Imperato's affidavit reads as follows:
However, on the last hospital admission, I feel that the medical management may have precipitated toxic
megacolon. It was well known before 1970 (i.e. 1967) that opiates administered during an acute
exacerbation of ulcerative colitis can precipitate toxic megacolon. In fact, In Harrison's Textbook of
Medicine, 6th edition, 1970, Chapter 32, page 1509, the admonition of not attempting to use opiates to
control diarrhea in severely ill patients is made. The hospital records of Mr. Orcutt's last admission
Alleging the trial court erred in granting respondent summary judgment and in refusing to
allow the amended affidavit of Dr. Imperato, Orcutt appealed. In ruling on the propriety of the
summary judgment, two issues confront us: (1) whether the trial court abused its discretion in
refusing to consider the amended affidavit of appellant's medical expert; and (2) whether the
locality rule should apply when the defendant doctor is a board certified specialist.
1. The amended affidavit.
Appellant contends that because the amended affidavit of Dr. Imperato raises a genuine
issue concerning respondent's negligence, it should have been considered by the trial court,
and respondent's motion for summary judgment should have been denied. We agree.
[Headnote 1]
In a medical malpractice action a plaintiff confronted with a motion for summary
judgment has the obligation to establish (1) the accepted standard of medical care or practice,
(2) that the doctor's conduct departed from the standard, and (3) that his conduct was the legal
cause of the injuries suffered. Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961).
[Headnote 2]
Summary judgment is proper when it appears that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law. NRCP
56(c). On appeal, we must view the facts and the inferences arising therefrom in the light
most favorable to the party against whom the motion was granted. Potter v. Mutual Benefit
Life Ins. Co., 93 Nev. 90, 560 P.2d 914 (1977); United States v. Diebold, Inc., 369 U.S. 654
(1962).
[Headnotes 3, 4]
The amended affidavit of appellant's expert, submitted on the date set for hearing of
respondent's motion for summary judgment,2 contains persuasive allegations to the effect
that Dr.
____________________
show that he was given large doses of opiates during the entire admission. Additionally, the chest x-ray of
July 5, 1971 showed air fluid levels which may have indicated ileus or obstruction. There is no mention
in Mr. Orcutt's record of this having been followed up. I can only conclude that although toxic megacolon
is a known and feared complication of severe ulcerative colitis[,] in this particular case, it may have been
precipitated by (1) poor medical care and (2) the injudicious use of opiates during an acute flare up of the
patient's colitis.
judgment,
2
contains persuasive allegations to the effect that Dr. Miller's treatment
probably precipitated appellant's ultimate condition. Even if the original affidavit was
insufficient to raise a genuine issue as to respondent's negligence, the amended affidavit
certainly did, and in our view, the trial judge committed reversible error by failing to consider
it, notwithstanding appellant's procedural derelictions in presenting the affidavit. A claimant's
day in court and right to a trial on the merits are too vital to be lost the result of circumstances
such as those presently before us, especially in light of the preliminary, yet harsh, nature of
the summary judgment herein imposed and the failure on the part of respondent to
demonstrate any prejudice.
NRCP 56(e) authorizes the trial court to permit amendment or supplementation of
affidavits, and on this record, we hold that respondent waived the perceived untimeliness of
the proffered amended affidavit, and that the trial judge erred in refusing to consider it. We
turn now to consider the applicable standard of care.
2. The standard of care.
We are asked to reconsider the applicable standard of care in medical malpractice cases. In
granting summary judgment for respondent, the lower court relied on the strict locality rule,
announced in Lockart v. Maclean, supra, and followed in Foreman v. Ver Brugghen, 81 Nev.
86, 398 P.2d 993 (1965). See Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 581
P.2d 9(1978). Appellant questions whether the locality rule should continue as the rule of law
applicable in this case.
In Lockart v. Maclean, supra, the locality rule was said to require that a medical witness
seeking to give opinion evidence in a malpractice action must first show his knowledge of the
standards prevailing in the particular locality. Id. 77 Nev. at 215, 361 P.2d 673.
3
Since
Lockart, most modern courts have abandoned the strict locality rule, at least with respect to
American Medical Board certified specialists. See, for example, Shilkret v. Annapolis
Emergency Hospital Ass'n, 349 A.2d 245 {Md.
____________________

2
Procedurally, the amended affidavit was late. Then Rules of Practice for the Eighth Judicial District Court,
Rule XXI; cf. EDCR 2.3(b) effective April 3, 1978. However, because respondent's own procedural derelictions
during discovery may have contributed to appellant's inability to timely submit the amended affidavit, we hold
that respondent is estopped to assert untimeliness as a reason to deny consideration of the amended affidavit.

3
In Lockart, supra, this court adhered to the strict locality rule and held that a physician who had received
none of his training in Nevada and had conducted his practice solely in California was not competent to give his
medical opinion as to the standard of practice in Reno.
(Md. App. 1975); Kronke v. Danielson, 499 P.2d 156 (Ariz. 1972); Naccarato v. Grob, 180
N.W.2d 788 (Minn. 1970); Belk v. Schweizer, 149 S.E.2d 565 (N.C. 1966); Shier v.
Freedman, 206 N.W.2d 166 (Wis. 1973); Blair v. Eblen, 461 S.W.2d 370 (Ky. App. 1970);
Pederson v. Dumouchel, 431 P.2d 973 (Wash. 1967).
[Headnote 5]
Historically, the strict locality rule is based on the rationale that there exists gross
inequality between physicians practicing in large urban areas and those practicing in more
remote rural communities. The policy behind the rule was to prevent the small town
practitioner from being held to the standard of practice of the more sophisticated urban areas.
See Smothers v. Hanks, 34 Iowa 286 (1872); Tefft v. Wolcox, 6 Kan. 46 (1870); see also
Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18
DePaul L. Rev. 408 (1969). The rule has been sharply criticized by modern courts as
insulating from malpractice liability any physician who is the sole practitioner in a
community, Waltz, supra, at 411, and as engendering a conspiracy of silence which
effectively precludes the possibility of obtaining expert medical testimony by one doctor
against another in a given medical community. Note, 40 Fordham L. Rev. 435, 438 (1971);
Shilkret v. Annapolis Emergency Hospital Ass'n, supra. The reasons underlying the strict
locality rule a century ago simply do not justify its continued existence today, see Note, An
Evaluation of Changes in the Medical Standard of Care, 23 Vand. L. Rev. 729 ( 1970).
[Headnote 6]
Whatever the continuing validity of the locality rule in cases involving general
practitioners, a question we find unnecessary to here decide (since respondent and appellant's
expert are both board certified specialists), we hold that it is not the standard to be applied to
board certified specialists. In this age of ubiquitous national communication networks and
increasing standardization of medical training, the underpinnings of the locality rule are
extremely doubtful. Board certified specialists should be held to national standards of the
specialty. Some nineteen medical specialties have been recognized and national requirements
for certification are imposed. Additionally, a national accrediting system contributes to the
standardization of medical schools throughout the nation. Id. Moreover, the duration of the
residency training, curriculum requirements and examinations are established by the national
boards. Kronke v. Danielson, supra. New techniques, data and medical literature are
immediately available to doctors through medical journals, other periodicals, and
correspondence courses.
literature are immediately available to doctors through medical journals, other periodicals,
and correspondence courses. It is clear to us that the locality rule is no longer the favored rule,
in great part due to the improvement of medical standards and the enhancement of
communications systems among the medical profession.
[Headnote 7]
With respect to general practitioners, the American Law Institute proposes the similar
communities standard. Restatement (Second) of Torts 299A (1965). That section provides:
Unless he represents that he has greater or less skill or knowledge, one who undertakes
to render services in the practice of a profession or trade is required to exercise the skill
and knowledge normally possessed by members of that profession or trade in good
standing in similar communities. (Emphasis added.)
Id. The exception concerns board certified specialists. According to the Restatement,
specialists are to be judged on a standard measured by the skill and knowledge common to
other specialists. Restatement (Second) of Torts 299A, comment (d) (1965). As a medical
expert specializing in the same area as Dr. Miller, Dr. Imperato is competent to testify as to
the standard of care of internal specialists in circumstances similar to those here involved. See
NRS 41A.100. The expert's opinion that Dr. Miller's treatment of appellant departed from
accepted standards of the specialty and probably caused appellant's ultimate condition was
sufficient to overcome respondent's motion for summary judgment.
[Headnote 8]
We are in agreement with the position of the Restatement and the substantial line of cases
which have overruled their prior decisions relying on the locality rule, as applied to
specialists. Kronke v. Danielson, supra; Christy v. Saliterman, 179 N.W.2d 288 (Minn.
1970); Naccarato v. Grob, supra; Shilkret v. Annapolis Emergency Hospital Ass'n, supra;
and see Annot., 37 ALR 3d 420, 432 (1971). We expressly overrule Lockart v. Maclean,
supra, insofar as it may be read to have application to board certified specialists, and hold that
in order to recover in a medical malpractice case, a plaintiff must demonstrate that the
defendant specialist failed to meet the standard of skill and care expected of a reasonably
competent practitioner in the same specialty wherever practicing. Robbins v. Footer, 553 F.2d
123, 129 (D.C. Cir. 1977). We express no opinion regarding the standard of care required
of general practitioners.
opinion regarding the standard of care required of general practitioners.
We reverse the order of the district court granting respondent summary judgment.
Gunderson, concurring:
____________
95 Nev. 415, 415 (1979) Havas v. Atlantic Insurance Co.
VICTOR HAVAS and ARLENE HAVAS, Appellants, v. ATLANTIC INSURANCE
COMPANY, a Foreign Corporation, Respondent.
No. 9797
June 14, 1979 596 P.2d 246
Appeal from judgment; Eighth Judicial District Court, Clark County; William P. Beko,
Judge.
Insureds brought action to collect under insurance policy. The district court refused to
award them money damages sustained as result of theft of personal property from their home,
and appeal was taken. The Supreme Court held that there was no error in court's
determination of damages.
Affirmed.
Paul V. Carelli, III, of Las Vegas, for Appellants.
Rose, Edwards, Hunt & Pearson, of Las Vegas, for Respondent.
Insurance.
In action to collect under insurance policy for damages sustained as result of theft of personal property
from insureds' home, trial court's determination of damages was not erroneous.
OPINION
Per Curiam:
On this appeal the appellants claim that the district court failed to award them money
damages proven to have been sustained as a result of a theft of personal property from their
home. The insurance policy limited liability to an amount not exceeding what it would cost to
repair or replace the property with material of like kind and quality.
95 Nev. 415, 416 (1979) Havas v. Atlantic Insurance Co.
with material of like kind and quality. The stolen items were replaced. With this limitation in
mind the court based its damage award upon the value of the replaced items for which the
appellants had documentary proof. We find no error in the court's determination of damages.
Roswell Trailers, Inc. v. Potomac Ins. Co., 576 P.2d 1133 (N.M. 1978).
Affirmed.
1

____________________

1
The Governor designated the Honorable Michael Fondi, Judge of the First Judicial District, to sit in the
place of the Honorable John Mowbray, Chief Justice, who was disqualified. Nev. Const. art. 6 4.
____________
95 Nev. 416, 416 (1979) Spears v. Spears
DAVID KENDRIC SPEARS, Appellant, v. FRANCES
BIRD SPEARS, Respondent.
No. 9981
June 14, 1979 596 P.2d 210
Appeal from order denying motion for modification of a divorce decree. Second Judicial
District Court, Washoe County; Peter I. Breen, District Judge.
Husband filed motion to modify divorce decree by reducing his alimony payments because
of changed circumstances. The district court entered order denying husband's motion, and
husband appealed. The Supreme Court held that: (1) husband sought only reduction of his
alimony payments to wife, and although he contended, in his trial statement, that
constitutionality of alimony statute was at issue, record did not show that he moved for relief
from such obligation as required by applicable rule, and (2) even if, as contended by husband,
challenged portion of alimony statute were unconstitutional because it provided that a
husband may qualify for alimony if he is disabled or unable to provide for himself, while
no such qualification was required of wife, such a determination would be of no avail to
husband since such a determination would not require striking of alimony statute in its
entirety.
Affirmed.
Sinai, Ohlson & Schroeder, Reno, for Appellant.
LeRoy Arrascada, Reno, for Respondent.
Supreme Court will not consider constitutional issues which are not necessary to determination of appeal.
One who is not prejudiced by operation of a statute cannot question its validity.
In proceeding on husband's motion to modify divorce decree by reducing his alimony payments because
of changed circumstances, husband sought only reduction of his alimony payments to wife, and although he
contended, in his trial statement, that constitutionality of alimony statute was at issue, record did not show
that he moved for relief from such obligation as required by applicable rule. NRS 125.150, subd. 1;
NRCP 7(b)(1).
4. Statutes.
If a law is constitutional in part, but unconstitutional as to some of its provisions, that which is
constitutional will be sustained, unless whole scope and object of law is defeated by rejecting objectionable
features.
5. Statutes.
Even if, as contended by husband, who filed motion to modify divorce decree by reducing his alimony
payments because of changed circumstances, the challenged portion of alimony statute was
unconstitutional because it provided that a husband may qualify for alimony if he is disabled or unable to
provide for himself, while no such qualification was required of wife, such a determination would be of no
avail to husband, since such a determination would not require striking of alimony statute in its entirety.
NRS 125.150, subd. 1.
OPINION
Per Curiam:
David Kendric Spears, who lost his motion to reduce his alimony payments, has appealed,
challenging the constitutionality of Nevada's alimony statute NRS 125 150(1).
1

David and respondent, Frances Bird Spears, were divorced on December 16, 1975. David
filed on April 15, 1976, the instant motion to modify the divorce decree by reducing his
alimony payments from $900 per month to $450 per month. He predicated his motion upon a
change in the parties' circumstances, namely, that David's expenses had increased, while his
income had decreased, and that Frances' living expenses had likewise decreased.
On September 7, 1976, David filed a trial statement wherein he, for the first time,
contended that NRS 125.
____________________

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.
he, for the first time, contended that NRS 125. 150(1) was unconstitutional. No transcript of
the evidentiary hearing is contained in the record submitted on this appeal. The court below
ruled that David had no standing to raise the constitutional issue. The court also found that
there had not been a showing of changed circumstances sufficient to justify a reduction of the
alimony award.
David, on appeal, challenges only that part of the decision dealing with the issue of the
constitutionality of NRS 125.150(1).
[Headnotes 1, 2]
This court will not consider constitutional issues which are not necessary to the
determination of an appeal. Union Pacific R.R. Co. v. Adams, 77 Nev. 282, 362 P.2d 450
(1961). Appellant is entitled only to a decision on issues properly raised by the facts presented
in this case. We are not authorized to enter into a determination of the constitutionality of [a]
statute on a supposed or hypothetical case which might arise thereunder. Magee v. Whitacre,
60 Nev. 202, 212, 106 P.2d 751,752 (1940). The rule is well established that one who is not
prejudiced by the operation of a statute cannot question its validity. Jones v. State, 85 Nev.
411, 456 P.2d 429 (1969).
[Headnote 3]
In the case at hand, David sought only the reduction of his alimony payments to Frances.
Although he contended, in his trial statement, that the constitutionality of NRS 125.150(1)
was at issue, the record does not show that he moved for relief from such obligation as
required by NRCP 7(b)(1). Cf. Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970).
[Headnotes 4, 5]
Furthermore, David's challenge to the constitutionality of the alimony statute is based
solely on its provision that a husband may qualify for alimony if he is disabled or unable to
provide for himself, while no such qualification is required of a wife. David relies on Orr v.
Orr, 440 U.S 268, 47 U.S.L.W., 4224 (March 5, 1979), which recently granted standing to a
husband to challenge the constitutionality of an Alabama alimony statute, even though he,
like David, did not seek alimony for himself. Alabama's statute, however, unlike Nevada's,
made no provision for granting alimony to husbands. In Orr, the court's only recourse, upon
the determination that the differential treatment of husbands and wives was unconstitutional,
was to strike the alimony statute in its entirety.
We are not faced with the necessity of such a draconian solution, for if a law is
constitutional in part, but unconstitutional as to some of its provisions, that which is
constitutional will be sustained, unless the whole scope and object of the law is defeated by
rejecting the objectionable features. Jones v. State, supra, 85 Nev. at 415, 456 P.2d at 431,
quoting State v. Westerfield, 23 Nev. 468, 49 P. 119 (1897). See also Saraceno v. Saraceno,
341 N.E.2d 261 (Mass. 1976). Therefore, even if the challenged portion of the statute were
unconstitutional, such a determination would be of no avail to David.
Accordingly, we affirm.
____________
95 Nev. 419, 419 (1979) Reese v. State
JAMES MARTIN REESE, Appellant, v. THE STATE
No. 10750
June 14, 1979 596 P.2d 212
Appeal from judgment of conviction, upon a jury verdict. Eighth Judicial District Court;
Carl J. Christensen, Judge.
Defendant was convicted in district court of rape and robbery with use of a deadly weapon,
and he appealed. The Supreme Court, Mowbray, C. J., held that: (1) evidence supported
determination that search of defendant's room was conducted with voluntary consent of his
parents; (2) evidence of previous contacts with a detective or an attempt to bribe witness in
case were not unduly prejudicial to defendant, and (3) no good cause existed justifying
acceptance of defendant's last minute alibi defense.
Affirmed.
Robert E. Wolf, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; George E. Holt, District Attorney, and
Daniel Bowman, Deputy District Attorney, Clark County, for Respondent.
Test for determining validity of a consent to search is whether such consent was in fact voluntary or was
product of duress or coercion, express or implied. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Voluntariness of a consent to search is a question of fact to be determined from all circumstances.
95 Nev. 419, 420 (1979) Reese v. State
3. Criminal Law.
Any conflicts in evidence relating to voluntariness of a consent to search are properly resolved by trier of
fact.
Evidence, which indicated that defendant's parents allowed police officer to search room which defendant
occupied in parents' home after discussion of nature of accusations against their son, supported trial court's
determination that parents' consent was voluntary. U.S.C.A. Const. Amend. 4.
5. Criminal Law.
Determination as to whether probative value of relevant evidence is substantially outweighed by danger
of unfair prejudice, confusion of issues or misleading jury rests in sound discretion of trial court and will
not be disturbed unless manifestly wrong. NRS 48.035, subd. 1.
6. Criminal Law.
In rape and robbery prosecution, trial court did not err in admitting statement of police officer to effect
that he had previous contacts with defendant and his brother; reference to defendant did not indicate that
he had been charged or suspected of committing any crime and was therefore too tenuous to have been
prejudicial to him. NRS 48.035, subd. 1.
7. Criminal Law.
Conduct of a defendant which shows consciousness of guilt is admissible, even though it may in itself be
criminal. NRS 48.035, subd. 1.
8. Criminal Law.
In rape and robbery prosecution, trial court did not err in admitting testimony to effect that defendant had
offered a witness a bribe in return for favorable testimony. NRS 48.035, subd. 1.
9. Criminal Law.
Where defendant did not give notice of intent to present an alibi defense within ten days prior to his rape
and robbery trial, trial court did not abuse its discretion in determining that no good cause existed for
presentation of alibi testimony of defendant's parents, notwithstanding contention of defense counsel that
he did not learn until day set for trial that defendant's parents wished to testify that defendant had been
home with them when crimes were committed. NRS 174.087, subd. 1, 4.
10. Criminal Law.
While even casual conversation between a witness and a member of jury is disapproved, when it is shown
to be unrelated to matters pending before jury, a court does not abuse its discretion by refusing to declare a
mistrial and dismiss a jury panel.
11. Criminal Law.
In rape and robbery prosecution, trial court did not abuse its discretion in refusing to declare a mistrial
upon learning that State's witness was seen conversing with a member of jury during a recess where witness
stated that he had cautioned juror that they could not discuss trial or persons involved and that only
unrelated topics had been discussed.
OPINION
A jury found the appellant, James Martin Reese, guilty of rape and robbery with use of a
deadly weapon.
95 Nev. 419, 421 (1979) Reese v. State
He seeks reversal on several grounds that the trial judge erred in (1) admitting a jacket into
evidence, (2) receiving evidence of other crimes, (3) rejecting Reese's alibi, and (4) not
declaring a mistrial because a witness spoke to a juror. We deny all specifications of error and
affirm.
THE FACTS
The victim of the crime testified that Reese knocked on her front door. When she
answered, he asked if David were home. Then he pushed the victim back into the house at
knife point and proceeded to rape and rob her.
The victim gave the police a description of Reese and described his clothing including a
jacket later found at his mother's home.
Two of Reese's acquaintances were standing outside next door when the crime occurred.
They testified that they saw Reese leave the victim's house, and each described his clothing
including the jacket.
Reese denied the commission of the crime and claimed that at the time in question he was
on his way to visit his friend David.
THE JACKET
Appellant claims that the judge erred in not granting his motion to suppress the admission
of the jacket seized during the course of a police search of the room he occupied in his
parents' home, on the ground that his parents did not willingly and knowingly consent to
the search. He argues that the state failed to show that appellant's parents were aware they had
a right to refuse entry. This contention is meritless.
[Headnote 1]
The United States Supreme Court has rejected the requirement that the state show that a
person giving consent to a search has knowledge of his right to refuse. Schneckloth v.
Bustamonte, 412 U.S. 218, 223-226 (1973). The test is rather whether a consent to a search
was in fact voluntary' or was the product of duress or coercion, express or implied. Id. at
227.
[Headnote 2]
This court has never indicated that a different standard should apply in this state, but is in
accord with the rule that voluntariness is a question of fact to be determined from all the
circumstances. Varner v. State, 90 Nev. 6, 518 P.2d 43 (1974). Compare, State v. Johnson,
346 A.2d 66 (N.J. 1975).
95 Nev. 419, 422 (1979) Reese v. State
[Headnotes 3, 4]
In this case, there was conflicting evidence as to the circumstances of the search presented
by an officer and appellant's parents. The judge accepted the officer's testimony that, after
several minutes' discussion of the nature of the accusations against their son, the parents
consented to a search of their home. Any conflicts in such evidence are properly resolved by
the trier of fact. See People v. James, 561 P.2d 1135 (Cal. 1977); Pickens v. State, 372 P.2d
618 (Okla.Crim.App. 1962). The record supports the trial court's determination that, under
the circumstances, appellant's parents voluntarily consented to the search of their home, and,
therefore, the determination is upheld. State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964);
Varner v. State, supra; Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979).
THE OTHER CRIMES
[Headnote 5]
Reese argues that the trial court should have granted two motions for mistrial, on the
ground that the probative value of certain evidence received relating to other crimes was
out-weighed by its prejudicial effect. Appellant relies upon the provision of NRS 48.035(1)
that Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the
jury. This determination 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
(1976). Accord, Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959).
[Headnote 6]
The court did not err in admitting the evidence. State's witness Smith of the Las Vegas
police testified that he had had previous contacts with the appellant and his brother.
Appellant contends that this reference resulted in unfair prejudice because it suggested that he
had committed other crimes. Not so. There was no description of or further reference to these
contacts, or any indication that appellant had been charged with or suspected of committing
any crime at all. The reference is too tenuous to have occasioned any prejudice to appellant.
See Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); Founts v. State, 87 Nev. 165, 483 P.2d
654 (1971).
The second instance cited by Reese is the testimony by state's witness Saunders to the
effect that appellant had offered him a bribe for favorable testimony.
95 Nev. 419, 423 (1979) Reese v. State
[Headnotes 7, 8]
The conduct of an accused which shows consciousness of guilt is admissible, even though
it may in itself be criminal. Williams v. State, 85 Nev. 169, 451 P.2d 848, cert. denied 396
U.S. 916 (1969) (flight and wounding of police officer in gun fight). An attempt to bribe a
witness or otherwise procure or fabricate false testimony is clearly within this category. See
e.g., People v. Moore, 160 P.2d 857 (Cal. 1945); State v. Rolfe, 444 P.2d 428 (Ida. 1968);
State v. Ancheta, 145 P. 1086 (N.M. 1915); State v. Russell, 384 P.2d 334 (Wash. 1963). See
also II Wigmore, Evidence 278(2), at 123 (3d ed. 1940). Cf. Abram v. State, 95 Nev. 352,
594 P.2d 1143 (1979) (threat to witness). The testimony was admissible.
THE ALIBI
Reese concedes that since he did not give notice of his intent to present an alibi defense at
least ten days prior to trial, the trial court acted within its discretion in refusing to allow his
alibi defense. NRS 174.087 (1) and (4).
1
Nevertheless he contends that the trial court abused
its discretion, since the witnesses offeredappellant's parentswere known to the
prosecution. Under the facts here presented, we find the contention meritless.
Appellant's counsel argued before the district court, as he does here, that, although he had
been representing appellant for some months (including a previous mistrial on the instant
case), he had good cause for not presenting his notice earlier because he did not learn until
the day set for trial that appellant's parents wished to testify that appellant had been at home
with them when the crimes were committed. Neither Reese nor Reese's parents had ever
offered this information before, nor did it conform with the testimony actually given by
appellant.
____________________

1
NRS 174.087.
1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than
10 days before trial or at such other time as the court may direct, file and serve upon the district attorney a
written notice of his intention to claim such alibi, which notice shall contain specific information as to the place
at which the defendant claims to have been at the time of the alleged offense and, as particularly as are known to
defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi.
. . . .
4. If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude
evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant
himself. If such notice is given by a defendant, the court may exclude the testimony of any witness offered by the
defendant for the purpose of proving an alibi if the name and address of such witness, as particularly as is known
to the defendant or his attorney, is not stated in such notice.
95 Nev. 419, 424 (1979) Reese v. State
Reese's parents had ever offered this information before, nor did it conform with the
testimony actually given by appellant.
[Headnote 9]
As the United States Supreme Court has observed in upholding statutes allowing courts to
prohibit such last minute alibi testimony by witnesses: Given the ease with which an alibi
can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is
both obvious and legitimate. Williams v. Florida, 399 U.S. 78, 81 (1970). This court has
held that refusing to allow such testimony may constitute an abuse of discretion where on
the facts presented, requiring strict compliance with the statute would defeat the ends of
justice and fair play which is the policy underlying the statute. Founts v. State, supra, 87
Nev. at 170, 483 P.2d at 657. This is not such a case, and the trial court's determination that
no good cause existed for the last minute presentation of the alibi witnesses must be
upheld.
THE MISTRIAL
During a recess in the trial, it was called to the court's attention that state's witness Smith
was seen conversing with a member of the jury. The judge then observed the situation himself
and instructed the witness to sit elsewhere. Upon questioning, the witness stated that he had
cautioned the juror that they could not discuss the trial or the persons involved, and that only
unrelated topics had been discussed. Counsel for appellant elected not to have the court
question the jurors. He moved for a mistrial upon the ground that such conversation was
prejudicial per se, regardless of the issue discussed.
[Headnotes 10, 11]
Reese s contention that the trial court's denial of his motion constituted reversible error is
without merit. While even such casual conversation is disapproved, the rule is that when it is
shown to be unrelated to matters pending before the jury, a court does not abuse its discretion
by refusing to declare a mistrial and dismiss a jury panel. See, e.g., United States v. Khoury,
539 F.2d 441 (5th Cir. 1976), cert. denied 429 U.S. 1040 (1977); Parrott v. State of Arkansas,
497 F.2d 1123 (8th Cir. 1974); State v. Johnson, 396 P.2d 392 (Ariz. 1964); People v.
Aguirre, 322 P.2d 478 (Cal.App. 1958); State v. Miles, 364 S.W.2d 532, 9 ALR3d 1266 (Mo.
1963); State v. McFerran, 459 P.2d 148 (N.M.App. 1969); Hayes v. State, 397 P.2d 524
(Okla.Crim.App. 1964); State v. Roden, 339 P.2d 438 (Or. 1959); Annot., 9 ALR3d 1275
(1966).
95 Nev. 419, 425 (1979) Reese v. State
Appellant's conviction must be affirmed. No reversible error has been demonstrated with
regard to the trial court's determination that the search of appellant's room was conducted
with the voluntary consent of his parents; that evidence of previous contacts with a
detective or an attempt to bribe a witness in the case were not unduly prejudicial to defendant;
that no good cause existed justifying acceptance of appellant's last minute alibi defense; or
that a conversation between a juror and a witness required a new trial.
Affirmed.
Thompson, Gunderson, Manoukian, and Batjer, J J., concur.
____________
95 Nev. 425, 425 (1979) Nordine v. State
DONALD BURKETT NORDINE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 10555
June 14, 1979 596 P.2d 245
Appeal from judgment of conviction for sexual assault; Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
The Supreme Court, Thompson, J., held that: (1) uncorroborated testimony of victim was
sufficient to sustain conviction, and (2) trial court's refusal to permit defendant to introduce
evidence that victim first had sexual relations when she was 15 years old fell within its
discretion.
Affirmed.
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender,
Robert J. Miller, District Attorney, and H. Douglas Clark, Deputy District Attorney, Clark
Evidence was sufficient to support conviction of sexual assault.
2. Assault And Battery.
Testimony of victim need not be corroborated in order for conviction for sexual assault to stand.
Trial court's refusal to permit defendant to introduce evidence that victim of sexual assault first
had sexual relations when she was 15 years old fell within its discretion.
victim of sexual assault first had sexual relations when she was 15 years old fell within its discretion. NRS
48.035, subd. 1, 48.069.
OPINION
Two errors are assigned. First, that the evidence is insufficient to support a conviction for
sexual assault. Second, that the trial court should have permitted the defendant to introduce
evidence that the victim first had sexual relations when she was 15 years old.
[Headnotes 1, 2]
1. The testimony of the victim, if believed by the jury, would establish a sexual assault.
Her testimony need not be corroborated in order for the conviction to stand. Henderson v.
State, 95 Nev. 324, 594 P.2d 712 (1979). Thus, the first claim of error is without merit.
2. NRS 48.069 specifies the method to be utilized by an accused who desires to present
evidence of previous sexual conduct of the victim to prove her consent to the sex act for
which he is on trial, and grants to the trial court a discretion as to whether such evidence
should be received.
1
At trial, an issue was whether the victim had consented to sexual
relations with the accused. Relying upon NRS 48.069 an affidavit was submitted to the court
to establish that the victim first had sexual relations when 15 years old. Nothing more was
related with regard to that episode, nor did the affidavit relate any information covering the
following two years until the incident in issue which happened when the victim was 17 years
old.
____________________

1
NRS 48.069: In any prosecution for sexual assault or for assault with intent to commit, attempt to commit
or conspiracy to commit a sexual assault, if the accused desires to present evidence of any previous sexual
conduct of the victim of the crime to prove the victim's consent:
1. The accused shall first submit to the court a written offer of proof, accompanied by a sworn statement of
the specific facts that he expects to prove and pointing out the relevance of the facts to the issue of the victim's
consent.
2. If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of
the jury, if any, and at the hearing allow the questioning of the victim regarding the offer of proof.
3. At the conclusion of the hearing, if the court determines that the offered evidence:
(a) Is relevant to the issue of consent; and
(b) Is not required to be excluded under NRS 48.035, the court shall make an order stating what evidence may
be introduced by the accused and the nature of the questions which he is permitted to ask. The accused may then
present evidence or question the victim pursuant to the order.
[Headnote 3]
The accused apparently contends that the district court was compelled to allow the jury the
opportunity to infer from that single episode that the victim was sexually submissive and
probably consented to the sex act in issue. It is apparent that the proffered evidence possessed
only marginal relevance to the issue of consent and may, in the discretion of the court, have
been viewed as substantially outweighed by the danger of prejudice, confusion of issues or of
misleading the jury. NRS 48.035(1).
2
The rejection of such evidence fell well within the
discretion of the judge.
Affirmed.
____________________

2
NRS 48.035(1): Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
____________
95 Nev. 427, 427 (1979) Cutler v. State
TERRY LEE CUTLER, Appellant, v. THE STATE
No. 10471
June 14, 1979 596 P.2d 216
Appeal from an order denying motion for new trial, Seventh Judicial District Court, White
Pine County; Merlyn H. Hoyt, Judge.
Following conviction for first-degree murder, defendant moved for new trial based on
newly discovered evidence. The district court entered order denying defendant's motion, and
defendant appealed. The Supreme Court, Gunderson, J., held that testimony of defendant's
companion was cumulative, partially inculpatory, and would not cause jury to reach different
result, and thus it was not abuse of discretion to deny the motion.
Affirmed.
Norman Y. Herring, Public Defender, Carson City; and Gary D. Woodbury, Deputy Public
Defender, White Pine County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Robert Johnston, District Attorney,
White Pine County, for Respondent.
Criminal Law.
Testimony of defendant's companion was cumulative, partially inculpatory, and would not cause jury to
reach different result, and thus it was not abuse of discretion following conviction for first-degree murder
to deny defendant's motion for new trial based on alleged newly discovered evidence.
OPINION
In Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977), this Court affirmed Terry Lee
Cutler's conviction of first-degree murder, for killing Dale Kaze. Subsequently, Cutler moved
for a new trial based on newly discovered evidence, i.e. testimony by Michael Bowman. At
trial, Cutler had requested Bowman to testify, but Bowman, charged with the same crime,
declined to testify on advice of counsel. After Cutler's conviction, however, Bowman pleaded
guilty to second-degree murder, and, thereupon, testified at the hearing of Cutler's motion. In
a carefully reasoned order, the district court concluded this new evidence was mostly
cumulative, partially inculpatory, and would not, in any event, cause a jury to reach a
different result. Accordingly, the court having denied his motion, Cutler appeals.
According to Bowman's testimony, on the day of the killing, Bowman, Cutler and two
minor females were guests at Kaze's residence. Bowman and Cutler had purchased and
ingested drugs and alcohol. Heavily under the influence of drugs, they were discussing
strangleholds when Kaze entered the room. Thereupon, Bowman demonstrated a stranglehold
on Kaze, while Culter, intoxicated, simply sat staring at the wall. Although present, the two
girls also omitted to watch the event. When Cutler later inquired about what had happened to
Kaze, Bowman said he was knocked out, but would be all right in a few minutes. On
Bowman's instructions, Cutler went outside and turned Kaze's car around. By the time Cutler
returned, Bowman had lied up the victim, and hidden him under a bed. Bowman then
informed Cutler that Kaze, on regaining consciousness, had departedbut not before giving
them permission to use his car. Thereupon, Bowman's story concluded, he and Cutler, with
the two girls, left for Las Vegas.
On a motion for new trial, we have urged caution in considering testimony of a
co-defendant or accomplice who, following his own conviction, attempts to exculpate another
by accepting the responsibility for a common criminal act. Oliver v. State, 85 Nev. 418, 456
P.2d 431 (1969); Burton v. State, 84 Nev. 191, 437 P.2d 861 (1968). The granting of a new
trial in criminal cases on the ground of newly discovered evidence is largely discretionary
with the trial court, and that court's determination will not be reversed on appeal unless abuse
of discretion is clearly shown. Lightford v. State, 91 Nev. 482, 483, 538 P.2d 585, 586
(1975).
Here, we perceive no abuse of discretion. Even isolated from other evidence of record,
Bowman's testimony lacks credibility. Considered in conjunction with the trial transcript, it is
cumulative, contradicted, and, in part, inculpatory.
1
The order denying Cutler's motion for
new trial clearly shows the trial judge applied the proper legal standards, see Lightford v.
State, supra; he reviewed the case in light of all circumstances, State v. Crockett, 84 Nev.
516, 444 P.2d 896 (1968); and he properly concluded the new evidence would not change the
result of the trial.
Affirmed.
____________________

1
Bowman's testimony regarding events preceding the strangulation corroborates that given by Cutler on his
own behalf at trial, i.e. both men went to a bank, purchased drugs, and ingested large quantities of alcohol and
drugs during the day. This new evidence is thus cumulative.
Bowman's story with respect to the crime itself is directly contradicted by testimony of the minor females,
eyewitnesses to the attack, who testified Culter responded to Bowman's call to hold Kaze down, while Bowman
smoked a cigarette.
Expert medical testimony established the presence of both cuticle and bootlace marks on the victim's neck,
indicating Kaze was strangled both by hand and by instrument. Bowman denied using either his hands or
bootlaces.
____________
95 Nev. 430, 430 (1979) Ecklund v. Nev. Wholesale Lumber Co.
JERRY D. ECKLUND, Appellant, v. NEVADA WHOLESALE LUMBER CO., a Nevada
Corporation, Respondent.
No. 9975
June 14, 1979 596 P.2d 218
Appeal from final order denying attorney's fees; Second Judicial District Court, Washoe
County; John E. Gabrielli. Judge.
After defendant prevailed on appeal from judgment holding him personally liable for debt
admittedly owed by corporation which defendant influenced and governed, defendant moved
for an award of attorney fees. The district court denied defendant's motion, and appeal was
taken. The Supreme Court held that under the circumstances, it was well within the bounds of
judicial discretion to deny the motion.
Affirmed.
Hale, Lane, Peek, Dennison and Howard, and Gregg W. Zive, of Reno, for Appellant.
A. D. Jensen and Allen D. Jensen, of Reno, for Respondent.
1. Costs.
Although the district court has discretionary authority to allow attorney fees to a defendant as prevailing
party when the plaintiff has not sought recovery in excess of $10,000, the court is not required to do so.
NRS 18.010, subd. 2(c).
2. Costs.
It was well within the bounds of judicial discretion for district court to deny attorney fees to defendant
who prevailed on appeal where circumstances, including the existence of an unsatisfied judgment against
corporation that was influenced and governed by defendant, made it inequitable to further penalize
plaintiff. NRS 18.010, subd. 2(c).
OPINION
Per Curiam:
Ecklund v. Nevada Wholesale Lumber Co., 93 Nev. 196, 562 P.2d 479 (1977), reversed a
judgment of the district court holding Ecklund personally liable for a debt in the amount of
$9,633.63 admittedly owed by Ecklund Insulation Inc. to Nevada Wholesale Lumber Co. We
there noted that although Ecklund influenced and governed Ecklund Insulation Inc., the
evidence otherwise was insufficient to permit utilization of the alter ego doctrine.
95 Nev. 430, 431 (1979) Ecklund v. Nev. Wholesale Lumber Co.
Following that decision Ecklund filed a motion in the district court for an award of
attorney's fees. His motion was denied and this appeal followed. We affirm.
[Headnotes 1, 2]
The district court has the discretionary authority to allow attorney's fees to a defendant as
prevailing party when the plaintiff has not sought recovery in excess of $10,000. NRS
18.010(2)(c); Casey v. Williams, 87 Nev. 137, 482 P.2d 824 (1971). The court is not required
to do so. Here, the court evidently considered all the circumstances existing between the
parties including the unsatisfied judgment against Ecklund Insulation, and concluded that it
would be inequitable to further penalize Nevada Wholesale Lumber. This determination was
well within the bounds of judicial discretion.
Affirmed.
____________
95 Nev. 431, 431 (1979) Ward v. State
ROY DEAN WARD, Appellant v. THE STATE
No. 10815
June 14, 1979 596 P.2d 219
Appeal from judgment upon jury verdict of guilty of robbery and the use of a deadly
weapon in the commission of a crime; Eighth Judicial District Court, Clark County; Michael
J. Wendell, Judge.
The Supreme Court held that: (1) discrepancies between prosecution witnesses' testimony
at a preliminary hearing and testimony at trial were relevant to the credibility of those
witnesses and were matters for jury determination, and (2) the trial court did not err in
instructing the jury.
Affirmed.
Robert W. Lueck, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, and James N. Tufteland, Deputy District Attorney,
1. Criminal Law.
Discrepancies between testimony of prosecution witnesses at preliminary hearing and testimony at trial
were relevant to credibility of those witnesses and were matters for jury determination.
95 Nev. 431, 432 (1979) Ward v. State
2. Criminal Law.
On appeal, Supreme Court will not invalidate verdict because of inconsistencies between witnesses'
testimony at preliminary hearing and trial, since jury has already resolved them as finder of fact.
3. Weapons.
Proof of deadly capability of firearm was not required for conviction of use of deadly weapon in
commission of crime.
4. Criminal Law.
Allen charge, advising jurors not to surrender conscientiously held opinions, was not reversibly
erroneous, even though it was given by trial judge without request from either party or indication that jury
was deadlocked, where after instruction had been given jury returned for readback of testimony and
deliberated for approximately five and one-half hours longer.
5. Criminal Law.
Where subject matter of requested instructions was covered by other instructions given by court, refusal
of proffered instructions was proper.
OPINION
Per Curiam:
Roy Dean Ward, who stands convicted of robbery and of the use of a deadly weapon in the
commission of that crime, asks that we annul those convictions, claiming that they were
procured through perjured testimony, and that the jury was improperly instructed. For reasons
hereafter stated, we perceive no error and affirm the convictions.
[Headnotes 1, 2]
1. The perjury claim rests upon discrepancies in the testimony of two prosecution
witnesses. More particularly, it is asserted that those witnesses committed perjury because of
differences between their testimony at preliminary hearing and their testimony at trial. Of
course, the discrepancies in their testimony were relevant to the credibility of those witnesses,
a matter for jury determination. Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). The jury
apparently considered the inconsistencies to be insignificant. On appeal, we will not
invalidate a verdict because of such inconsistencies since the jury has already resolved them
as the fact finder. Watkins v. State, 93 Nev. 100, 560 P.2d 921 (1977); Hampton v. State, 85
Nev. 720, 462 P.2d 760 (1969).
[Headnote 3]
2. The court instructed the jury that proof of the deadly capabilities of a firearm is not
required. Ward claims that the instruction was error mandating reversal. Heretofore, we have
ruled otherwise. Woods v. State, 95 Nev. 29, 588 P.2d 1030 (1979); Stalley v. State, 91 Nev.
671, 541 P.2d 658 (1975).
95 Nev. 431, 433 (1979) Ward v. State
[Headnote 4]
After the jury had deliberated for about 24 hours, the court gave an Allen charge. The
instruction was not coercive. Cf. Ransey v. State, 95 Nev. 364, 594 P.2d 1157 (1979);
Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977). It advised the jurors not to surrender
conscientiously held opinions and was identical in wording to the instruction we upheld in
Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976).
However, appellant maintains that the instruction, given by the trial judge without a
request from either party or an indication that the jury was deadlocked, was improvidently
given thereby requiring reversal. After the instruction had been given the jury returned for a
readback of testimony and deliberated for approximately five and one-half hours longer.
Under these circumstances we perceive no error. See United States v. DeStefano, 476 F.2d
324 (7th Cir. 1973); United States v. Martinez, 446 F.2d 118 (2nd Cir. 1971).
[Headnote 5]
Counsel for Ward offered several instructions which the court refused to give. In most
instances, the subject matter was covered by other instructions given by the court, and court
refusal was proper. Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (1979); Beets v. State, 94 Nev.
89, 575 P.2d 591 (1978). As to the others, none was necessary.
3. Other assigned errors have been considered and are found to be without merit.
Affirmed.
____________
95 Nev. 433, 433 (1979) Culverson v. State
SAMUEL CULVERSON, Appellant, v. THE STATE
No. 10410
June 14, 1979 596 P.2d 220
Appeal from judgment of conviction entered upon a jury verdict, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted in the district court of robbery and use of a deadly weapon in the
commission of the offense and he appealed. The Supreme Court held that: (1) identification
was not insufficient as a matter of law; (2) evidence sustained finding that defendant used
the weapon in the commission of offense, and (3) consecutive 12-year sentences did not
impose cruel and unusual punishment.
Affirmed.
Greenman & Goldberg, and Paul E. Raby, Las Vegas, for Appellant.
1. Robbery.
Fact that victim had described perpetrator of the robbery as being five feet, eleven inches tall or six feet
tall while defendant was in fact six feet, two inches tall did not render the identification insufficient as a
matter of law.
2. Criminal Law.
It is the function of the jury to weigh the credibility of the identifying witness.
3. Robbery.
Testimony that, at the inception of the robbery, defendant opened a bag and displayed a handgun and
that, during the course of the robbery, defendant's hand remained on the weapon was sufficient to show that
defendant used a deadly weapon in the commission of the robbery. NRS 193.165.
4. Criminal Law.
Sentence does not constitute cruel and unusual punishment unless the statute fixing the punishment is
unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the
conscience.
5. Criminal Law.
Consecutive 12-year sentences imposed upon defendant for his convictions for robbery and use of a
deadly weapon in the commission of the offense were within the statutory limits and did not constitute cruel
and unusual punishment.
OPINION
Per Curiam:
Appellant was convicted, by jury verdict, of robbery and use of a deadly weapon in the
commission of that offense. Thereafter, he was given a 12-year sentence in the Nevada State
Prison for the robbery, and an additional, consecutive 12-year sentence for his use of a deadly
weapon. See NRS 193.165. On this appeal appellant contends (1) the evidence identifying
him as the perpetrator of the offense was insufficient to support a conviction; (2) the evidence
was insufficient to support a finding that a deadly weapon had been used in the commission
of the offense; and (3) the sentence imposed violates the constitutional prohibition of cruel
and unusual punishment. We find these contentions to be without merit.
[Headnotes 1, 2]
1. At trial, the victim identified appellant as the perpetrator of the offense.
of the offense. Appellant contends that because the victim had described the perpetrator to the
police as being five feet, eleven inches or six feet tall, while the defendant is in fact six feet,
two inches tall, the identification was as a matter of law insufficient. It is well established in
this state that it is the function of the jury to weigh the credibility of the identifying witness.
See Wise v. State, 92 Nev. 181, 547 P.2d 314 (1976); Collins v. State, 88 Nev. Nev. 9, 492
P.2d 991 (1972). Where, as here, there was substantial evidence to support the jury's verdict,
the verdict will not be overturned by the appellate court. See Williams v. State, 87 Nev. 230,
484 P.2d 1088 (1971); Tellis v. State, 85 Nev. 679, 462 P.2d 526 (1969).
[Headnote 3]
2. Appellant further argues that the evidence produced at trial failed to demonstrate that
appellant used a deadly weapon in the commission of the offense. In order to use a deadly
weapon for purposes of NRS 193.165, there need not be conduct which actually produces
harm but only conduct which produces a fear of harm or force by means or display of a
[deadly weapon] in aiding the commission of [a crime]. People v. Chambers, 498 P.2d 1024,
1027 (Cal. 1972). In the instant case, the victim testified that at the inception of the robbery
the appellant opened a bag and displayed a handgun, and that during the course of the robbery
appellant's hand remained on the weapon. Based on these facts, we hold that it was
permissible for the jury to conclude that the appellant used a deadly weapon in the
commission of the robbery. See People v. Najera, 503 P.2d 1353 (Cal. 1972).
[Headnotes 4, 5]
3. Appellant's final assignment of error is that the sentence imposed by the district court
constitutes cruel and unusual punishment. A sentence does not constitute cruel and unusual
punishment unless the statute fixing punishment is unconstitutional or the sentence is so
unreasonably disportionate to the offense as to shock the conscience. Lloyd v. State, 94 Nev.
167, 576 P.2d 740 (1978). Here, appellant does not challenge the constitutionality of the
statutes and the sentence imposed is well within statutory limits; and therefore, this argument
is without merit. Id.
Accordingly, the judgment is affirmed.
____________
95 Nev. 436, 436 (1979) Sheriff v. Levinson
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
MARK ALLEN LEVINSON, Respondent.
No. 11850
June 14, 1979 596 P.2d 232
After being held to answer on two counts of involuntary manslaughter, defendant filed a
pretrial petition for a writ of habeas corpus, contending that the information failed adequately
to state the offenses charged. The district court found the information insufficient and granted
the writ. The county sheriff appealed, and the Supreme Court held that the information
contained a sufficiently clear statement of the facts surrounding the alleged offenses to
apprise defendant of the charges against him.
Reversed.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
Steven J. Parsons, Deputy District Attorney, Clark County, for Appellant.
Goodman, Oshins, Brown & Singer, Chtd., and William B. Terry, Las Vegas, for
Respondent.
In the information, the prosecution is required to make a definite statement of facts constituting the
offense in order adequately to notify the accused of the charges and to prevent the prosecution from
circumventing the notice requirement by changing theories of the case. NRS 173.015, 173.075, subd.
1.
Where each count of information charging two counts of involuntary manslaughter provided a definite
date and location for the offense, stated that the offense occurred while defendant was engaged in the
lawful act of driving a car and alleged that the offense occurred because defendant was driving unlawfully
in excess of 100 miles per hour, information contained a sufficiently clear statement of the facts to apprise
defendant of the charges against him. NRS 200.070.
In reviewing sufficiency of information, court is not concerned with whether the information could have
been more artfully drafted but only with whether, as a practical matter, the information provided adequate
notice to the accused. NRS 173.015, 173.075, subd. 1.
OPINION
Per Curiam:
At the conclusion of a preliminary examination respondent was held to answer on two
counts of involuntary manslaughter {NRS 200.070).
was held to answer on two counts of involuntary manslaughter (NRS 200.070). Thereafter,
respondent filed a pretrial petition for a writ of habeas corpus, contending his restraint was
illegal because the information failed to adequately state the offenses charged. The district
court found the information to be insufficient, and ordered the writ granted. From the order of
the district court, this appeal has been perfected.
[Headnote 1]
In reviewing the sufficiency of the information before us, we are mindful of established
principles regarding the function and requisites of the information. The information is the
first pleading by the state in a criminal action (see NRS 173.015) and must contain a plain,
concise and definite written statement of the essential facts constituting the offense charged.
NRS 173.075(1). In the information, the prosecution is required to make a definite statement
of facts constituting the offense in order to adequately notify the accused of the charges and to
prevent the prosecution from circumventing the notice requirement by changing theories of
the case. See Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972). In accord with
these principles, we have held that an information which alleges the commission of the
offense solely in the conclusory language of the statute is insufficient. See Earlywine v.
Sheriff, 94 Nev. 100, 575 P.2d 599 (1978).
[Headnotes 2, 3]
In the instant case, both counts of the information are identical in all pertinent respects.
1
Each count provides a definite date and location for the commission of the offense, states that
the offense occurred while respondent was engaged in a lawful act (driving a car), and alleges
that the offense occurred because respondent was driving in an unlawful manner (in excess of
100 miles per hour). We are not concerned with whether the information could have been
more artfully drafted, but only whether as a practical matter, the information provides
adequate notice to the accused. See Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970).
____________________

1
In pertinent part, the information provides:
That Mark Allen Levinson, the Defendant above named, on or about the 4th day of June, 1978, at and
within the County of Clark, State of Nevada, contrary to the form, force and effect of statutes in such cases made
and provided, and against the peace and dignity of the State of Nevada,
COUNT I
did then and there unlawfully and feloniously kill WAYNE MORRIS BRUNKHARDT, a human being,
without any intent so to do, in the commission of a lawful act, to-wit: by operating a 1978 Cadillac, four-door
automobile, bearing 1978 California License No. IMBOB3, on Interstate 15,
In our opinion, the information in this case contains a sufficiently clear statement of the
facts surrounding the alleged commission of the offense to apprise the respondent of the
charges against him. Accordingly, the order of the district court granting the petition for a
writ of habeas corpus is reversed.
____________________
approximately 2,640 feet North of Mile Marker CL26, Clark County, Nevada, in an unlawful and criminally
negligent manner, to-wit: by operating said vehicle at a high rate of speed, to-wit: speeds in excess of 100 mph,
causing Defendant to drive with wilful or wanton disregard for the safety of persons or property in that
Defendant did strike and collide with another vehicle, to-wit: a 1977 Fiat, two-door automobile, bearing 1978
Nevada License No. CRE582, driven by the said WAYNE MORRIS BRUNKHARDT, resulting in injury to and
the death of the said WAYNE MORRIS BRUNKHARDT.
COUNT II
did then and there unlawfully and feloniously kill KAREN KAY BRUNKHARDT, a human being, without
any intent so to do, in the commission of a lawfuly [sic] act, to-wit: by operating a 1978 Cadillac, four-door
automobile, bearing 1978 California License No.IMBOB3, on Interstate 15, approximately 2,640 feet North of
Mile Marker CL26, Clark County, Nevada, in an unlawful and criminally negligent manner, to-wit: by operating
said vehicle at a high rate of speed, to-wit: speeds in excess of 100 mph, causing Defendant to drive with wilful
or wanton disregard for the safety of persons or property in that Defendant did strike and collide with another
vehicle, to-wit: a 1977 Fiat, two-door automobile, bearing 1978 Nevada License No. CRE582, driven by
WAYNE MORRIS BRUNKHARDT, resulting in injury to and the death of the said KAREN KAY
BRUNKHARDT, a passenger in the vehicle driven by WAYNE MORRIS BRUNKHARDT.
____________
95 Nev. 438, 438 (1979) Hill v. Sheriff
LARRY HILL, Appellant, v. SHERIFF, CLARK COUNTY,
NEVADA, Respondent.
No. 11799
June 14, 1979 596 P.2d 234
District Court, Clark County; J. Charles Thompson, Judge.
Defendant, who had been held to answer on charges of forgery and possession of stolen
property, filed pretrial petition for writ of habeas corpus. The district court denied the
petition, and appeal was taken. The Supreme Court held that: (1) defendant's exclusive
possession of ten $100 traveler's checks, considered in light of circumstances surrounding
their disappearance from a bank shortly before defendant attempted to cash them, gave rise to
a reasonable inference that defendant possessed stolen property with the requisite guilty
knowledge; {2) the information charging possession of stolen property was not defective,
and {3) defendant's conduct amounted to an alteration of an instrument within the
meaning of the forgery statute.
possessed stolen property with the requisite guilty knowledge; (2) the information charging
possession of stolen property was not defective, and (3) defendant's conduct amounted to an
alteration of an instrument within the meaning of the forgery statute.
Affirmed.
Morgan D. Harris, Public Defender, and Martin H. Wiener, Deputy Public Defender,
Steven J. Parsons, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Preliminary examination evidence that defendant had exclusive possession of ten $100 traveler's checks,
considered in light of evidence that checks had disappeared from bank under mysterious circumstances
shortly before defendant attempted to cash the checks, gave rise to a reasonable inference that defendant
possessed stolen property with the requisite guilty knowledge and warranted charging defendant with
possession of stolen property. NRS 205.275.
2. Habeas Corpus.
Allegation that information charging possession of stolen property was defective because it did not
properly allege ownership of the property or possession with felonious intent did not entitle defendant to
pretrial writ of habeas corpus. NRS 205.275.
3. Forgery.
Where a person signs his true name on a traveler's check that has never been issued and that he has no
authority to sign, such conduct amounts to an alteration of the instrument within the meaning of the
forgery statute. NRS 205.090.
OPINION
Per Curiam:
Following a preliminary examination, Larry Hill was held to answer upon charges of
forgery, a felony under NRS 205.090, and possession of stolen property, a felony under NRS
205.275. Hill thereafter filed a pretrial petition for a writ of habeas corpus in the district court
contending there was insufficient evidence produced at the preliminary examination to
establish probable cause to believe he committed the charged offenses. The petition was
denied and Hill has appealed.
Evidence presented at the preliminary examination established that Hill signed his name
on ten $100 American Express traveler's checks in the presence of an employee of a Las
Vegas casino and presented the checks to the employee for payment. While attempting to
verify the checks through a credit agency, the employee learned that the checks had been
"reported missing under mysterious circumstances."
the employee learned that the checks had been reported missing under mysterious
circumstances. Hill was then detained for questioning and was subsequently arrested.
After his arrest, Hill stated to a police officer that he had bought the checks in L.A. in the
Wells Fargo, and that a teller had kept the money and had reported them stolen. An
employee of Wells Fargo Bank in Los Angeles testified that the traveler's checks which Hill
attempted to cash had disappeared from the bank three days earlier, and that the bank had not
sold any $100 traveler's checks that day. Based upon this evidence, Hill was ordered to stand
trial.
[Headnote 1]
1. Hill contends that the charge of possession of stolen property cannot stand because the
prosecution did not establish that the checks were stolen or that Hill knew or should have
known they were stolen. We disagree.
Hill's exclusive possession of the ten traveler's checks, when considered with the
circumstances surrounding their disappearance from the bank shortly before he attempted to
cash them, gives rise to a reasonable inference that Hill possessed stolen property with the
requisite guilty knowledge. See Bernier v. Sheriff, 93 Nev. 528, 569 P.2d 406 (1977). We are
not now concerned with the prospect that the evidence presently in the record may be
insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
[Headnote 2]
Hill's ancillary contention that the information is defective because it does not properly
allege ownership of the checks or possession with felonious intent is without merit. See
People v. Silvola, 547 P.2d 1283 (Colo. 1976).
2. Hill also contends that our ruling in Winston v. Warden, 86 Nev. 33, 464 P.2d 30
(1970), requires a dismissal of the charge of forgery. In Winston we stated that one who signs
his true name to a check upon a bank in which he has no checking account is not guilty of
forgery, but has committed an offense within NRS 205.130 (issuance of check upon bank
without an account).
[Headnote 3]
Hill's reliance on Winston is misplaced; the rule announced there does not apply where, as
here, a defendant signs his true name on a traveler's check which has never been issued and
which he has no authority to sign. Such conduct amounts to an alteration of the instrument
within the meaning of the forgery statute. See People v. Pool, 522 P.2d 102 (Colo. 1974);
People v. Susalla, 220 N.W.2d 405 (Mich. 1974). This is because a traveler's check is
cashed on the credit of the issuer.
traveler's check is cashed on the credit of the issuer. Since American Express had never
issued these traveler's checks to anyone, the first person to fill them in, even if he used his
own signature, necessarily created forged securities. . . . United States v. Franco, 413 F.2d
282, 283 (5th Cir. 1969), cert. denied, 396 U.S. 836 (1969).
Affirmed.
____________
95 Nev. 441, 441 (1979) Callahan v. First Commercial Title
HARRY CALLAHAN; ELIZABETH G. CALLAHAN; ANN C. LYONS; LYLA C.
SULLIVAN; ETHEL C. HANNA;, JACK CALLAHAN; JESSIE C. BOWDEN; GEORGE
CALLAHAN; EDWARD PECKHAM; DONALD PECKHAM; MARY P. VAN SLYCK;
BARBARA DAVIS and GLORIA MILLEROV, Appellants, v. FIRST COMMERCIAL
TITLE, INC., a Corporation; DENNIS E. MALONEY; REALTY ASSETS, INC., a Nevada
Corporation, Respondents.
No. 9958
June 14, 1979 596 P.2d 236
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Beneficiaries of deed of trust brought suit for impairment of security. The district court
granted summary judgment for defendants, and plaintiffs appealed. The Supreme Court held
that where beneficiaries bid the full amount of the balance due on note at foreclosure sale,
thereby extinguishing debt, they could have suffered no damages as result of any impairment
of security that may have been caused by prior release of acreage by trustee.
Affirmed.
Vargas, Bartlett & Dixon, Reno, for Appellants.
Streeter, Sala & McAuliffe, Reno, for Respondent First Commercial Title, Inc.
Erickson, Thorpe & Swainston, Ltd., Reno, for Respondents Dennis E. Maloney and
Realty Assets, Inc.
1. Mortgages.
Though extinguishment of deed of trust by sale of the property at foreclosure not necessarily
extinguish the underlying debt, the debt remains only to the extent that it is unpaid.
foreclosure not necessarily extinguish the underlying debt, the debt remains only to the extent that it is
unpaid. NRS 40.459.
2. Mortgages.
Where beneficiaries of deed of trust bid the full amount of the balance due on note at foreclosure sale,
thereby extinguishing debt, they could have suffered no damages as result of any impairment of security
that may have been caused by prior release of acreage by trustee.
OPINION
Per Curiam:
On December 23, 1970, appellants sold 32 acres of real property located in Washoe
County to the predecessor in interest of respondents Maloney and Realty Assets, Inc., taking
back a note secured by a deed of trust on the property. Respondent First Commercial Title,
Inc., was subsequently appointed trustee.
On April 27, 1973, respondent title company released, by deed of partial reconveyance,
3.897 acres to the buyers. Appellants, as beneficiaries of the deed of trust, brought suit against
respondents for impairment of security alleging that respondents negligently released the
acreage because they had not, in releasing the property, complied with the terms of the release
clause in the deed of trust. Appellants subsequently foreclosed on the property and, at the
trustee's sale on February 19, 1975, bid the full amount of the balance due on the promissory
note.
Each party filed a motion for summary judgment, pursuant to NRCP 56. The district court
granted respondents' motions and this appeal followed.
[Headnotes 1, 2]
Respondents contend that appellants were not damaged by the release since their bid at the
trustee's sale constituted full satisfaction of the indebtedness. We agree.
Although the extinguishment of a deed of trust by sale of the property at foreclosure does
not necessarily extinguish the underlying debt, Rosenbaum v. Funcannon, 308 F.2d 680 (9th
Cir. 1962), the debt remains only to the extent that it is unpaid. Cf. NRS 40.459. Here,
appellants bid the full amount of the balance due on the note at the foreclosure sale, thus
leaving no portion of the note unpaid and thereby extinguishing the debt. See Hellman v.
Capurro, 92 Nev. 314, 549 P.2d 750 (1976). Accordingly, appellants have neither money due
them on the note, nor any further security interest in the property and, therefore, they could
suffer no damages as a result of any impairment of security that may have been caused by
the release of acreage by respondent title company.
impairment of security that may have been caused by the release of acreage by respondent
title company.
Affirmed.
____________
95 Nev. 443, 443 (1979) Gojack v. District Court
JOHN T. GOJACK, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent,
MARY LEE GOJACK, Real Party in Interest.
No. 11682
June 14, 1979 596 P.2d 237
Original proceeding in prohibition, Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Husband in divorce action filed petition in prohibition challenging a sua sponte order of
the district court bifurcating hearing on divorce and trial on determination of property rights.
The Supreme Court, Manoukian, J., held that the trial court was without jurisdiction to enter
final decree of divorce without contemporaneously disposing of community property of
parties.
Petition granted.
White & Spaulding, Ltd., Reno, for Petitioner.
Guild, Hagen & Clark, Ltd., Reno, for Real Party in Interest.
1. Prohibition.
Writ of prohibition is proper in all cases to arrest proceedings of an inferior tribunal when such
proceedings are without or in excess of its jurisdiction and there is no plain, speedy and adequate remedy in
ordinary course of law. NRS 34.320, 34.330; Const. art. 6, 4.
2. Courts.
Issue whether lower court acted in excess of its jurisdiction in ordering bifurcation of divorce trial was
properly before Supreme Court by proceeding in prohibition in that order was not appealable and there
existed no plain, speedy and adequate legal remedy in ordinary course of law. NRS 34.320, 34.330;
Const. art. 6, 4; NRAP 3A(b).
3. Divorce.
Although trial court is authorized to conduct separate evidentiary hearings on any issue, court is without
jurisdiction to enter final decree of divorce without contemporaneously disposing of community property
of parties. NRCP 42(b); NRS 50.115, 50.115, subd. 1, 125.130, subds. 1, 2, 125.150, subd. 1.
4. Divorce.
Order of trial court bifurcating hearing on issues of divorce and property rights was beyond court's power
to extent that order could be read to permit trial court to enter final divorce decree without
contemporaneously determining property and related rights and responsibilities of parties; however, court
was not precluded from hearing, at separate times, evidence relevant to issues of divorce and property
distribution. NRS 125.150, subd. 1.
OPINION
John T. and Mary Lee Gojack were married in May, 1969. In August, 1978, Mary filed her
complaint for divorce alleging incompatibility as the ground, NRS 125.010(3), and requesting
that the community property of the parties be determined by the court. John answered the
complaint denying incompatibility and asked that the complaint be dismissed. Absent
dismissal, he seeks an equitable distribution of the property.
Trial was originally set for three days, to commence on July 30, 1979. On February 13,
1979, Mary moved the court for summary judgment on the divorce. John opposed the motion,
and summary judgment was denied. Thereafter, on March 16, 1979, the district court, sua
sponte, ordered a bifurcated trial with the hearing on the divorce set for March 21, 1979, and
trial on the determination of the property rights scheduled for the original trial date, July 30,
1979.
On March 20, 1979, John filed the instant petition in prohibition challenging the
jurisdiction of the trial court to determine the issues of divorce and property at different times.
All proceedings in the lower court have been stayed pending our review.
[Headnotes 1, 2]
1. The writ of prohibition, NRS 34.320, is proper in all cases to arrest the proceedings of
an inferior tribunal when such proceedings are without or in excess of its jurisdiction and
there is no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.330;
Nev. Const. art. 6, sec. 4. Since an order bifurcating trial is not appealable, NRAP 3A(b), and
there exists no plain, speedy and adequate legal remedy, in the ordinary course of law, we
turn to consider whether the lower court acted in excess of its jurisdiction.
[Headnote 3]
2. Petitioner contends that irrespective of the authority of the district court to control the
course and conduct of the proceedings before it, NRCP 42{b),1 NRS 50.115{1),2 in the
context of an action for divorce there can be but one final judgment or decree which
disposes of all the issues properly before the court.
the district court to control the course and conduct of the proceedings before it, NRCP 42(b),
1
NRS 50.115(1),
2
in the context of an action for divorce there can be but one final judgment
or decree which disposes of all the issues properly before the court. NRS 125.150(1).
Respondent answers, contending that NRCP 42(b), which provides for separate trials, gives
the trial court discretion to proceed as it did here. Although a trial court is authorized to
conduct separate evidentiary hearings on any issue, that court is without jurisdiction to enter a
final decree of divorce without contemporaneously disposing of the community property of
the parties.
3

NRS 125.150(1) provides that [i]n granting a divorce, the court may award alimony . . .
and shall make [a] disposition of the community properly of the parties. . . . (Emphasis
added.) The statute is clear that when a trial court proceeds to enter a judgment or decree of
divorce, it shall contemporaneously dispose of the community property of the parties. Plain
and unambiguous in its terms, the statute needs no interpretation. State ex rel. P.S.C. v.
District Court, Etc., 94 Nev. 42, 574 P.2d 272 (1978). Petitioner's argument is further
supported by NRS 125.130(1), which provides the judgment of divorce shall be a final
decree, and NRS 125.130(2), which states that the decree shall fully and completely dissolve
the marriage contract as to both parties.
We here perceive no reason for a departure from the statutory mandates. Indeed, such a
departure would lead to numerous problems inevitably flowing from an interim divorce
decree, including the effect of such a decree upon the character of the property of the parties
and whether following entry of the decree, the property is thereafter held by the parties
as tenants in common.
____________________

1
NRCP 42(b) provides:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to
expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party
claims, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or
issues, always preserving inviolate the right of trial by jury.

2
NRS 50.115 provides, in relevant part:
1. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence:
(a) To make the interrogation and presentation effective for the ascertainment of the truth;
(b) To avoid needless consumption of time; and
(c) To protect witnesses from undue harassment or embarrassment.

3
In so holding, we emphasize that here the order bifurcating trial of the issues was not entered pursuant to a
stipulation between the parties, a proper and timely objection to the order was made and there exists a genuine
controversy as to the issues. Cf. Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978), where the parties stipulated
to separate trials on the issues but no final judgment was entered until the close of all the proceedings.
of the property of the parties and whether following entry of the decree, the property is
thereafter held by the parties as tenants in common. See Ellett v. Ellett, supra; Bank v. Wolff,
66 Nev. 51, 202 P.2d 878 (1949). Questions relating to the allocation of rents, profits and
taxes, as well as the effect of the subsequent death or remarriage of one or both of the parties
prior to the distribution hearing, Bank v. Wolff, supra, not to mention the adverse effect of
such a decree on property settlement or reconciliation possibilities, are concerns our
legislature may have had in providing that the issues of divorce and property are to be
contemporaneously determined.
[Headnote 4]
On the basis of what we find to be a rather clear statutory mandate, we conclude that in the
context of this divorce proceeding, respondent is without legal authority to enter divisible
judgments. To the extent that the March 16, 1979 order bifurcating trial can be read to permit
the trial court to enter a final divorce decree without contemporaneously determining property
and related rights and responsibilities of the parties, such order is beyond the court's power to
enter. NRS 125.150(1). However, this opinion does not preclude the lower court from
hearing, at separate times, evidence relevant to the issue of divorce and evidence relevant to
the issue of the property distribution.
Let the writ issue.
____________
95 Nev. 446, 446 (1979) Yates v. State
BUDDY L. YATES, Appellant, v. THE STATE
No. 10402
June 14, 1979 596 P.2d 239
Appeal from conviction, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Defendant was convicted in the district court of robbery and use of a deadly weapon in
commission of a crime, and he appealed. The Supreme Court, Manoukian, J., held that: (1)
defendant could not claim that he was prejudiced by trial court's questioning of child witness
as to whether witness recognized defendant as a perpetrator, which question produced a
negative response, and (2) trial court did not abuse its discretion in permitting impeachment
by use of defendant's 1969 robbery and 1977 larceny convictions, notwithstanding fact
that such ruling, which occurred in context of hearing on motion in limine, allegedly
compelled defendant's refusal to testify.
95 Nev. 446, 447 (1979) Yates v. State
robbery and 1977 larceny convictions, notwithstanding fact that such ruling, which occurred
in context of hearing on motion in limine, allegedly compelled defendant's refusal to testify.
Affirmed.
Howard Ecker, Chartered, Las Vegas, for Appellant.
Roberta O'Neale, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant, who was charged with robbery-related offenses, could not claim that he was prejudiced by
trial court's questioning of child witness as to whether witness recognized defendant as a perpetrator, where
question produced a negative response.
2. Witnesses.
Impeachment by proof of prior felony convictions which are not too remote is permitted; there is no
requirement that use of prior felony convictions for impeachment be limited to only those felonies
specifically determined relevant to truthfulness or veracity of witnesses. NRS 50.095.
3. Criminal Law.
Evidence of specific instances of prior unconvicted bad acts of a defendant are not relevant unless his
character is in issue or evidence is relevant to some issue other than his character. NRS 48.045.
4. Witnesses.
A balancing process is employed to determine whether evidentiary usefulness of a proposed impeachment
by prior felony conviction is substantially outweighed by danger of unfair prejudice or by considerations of
undue delay and cumulativeness. NRS 48.035, subds. 1, 2, 50.095.
5. Criminal Law.
While nature of underlying felony conviction by which impeachment is sought may affect trial court's
determination as to relevance, and hence admissibility of such impeachment, that determination will be
reversed only upon a clear showing of abuse. NRS 50.095.
6. Witnesses.
In prosecution for robbery-related offenses, trial court did not abuse its discretion in permitting
impeachment by use of defendant's 1969 robbery and 1977 larceny convictions, notwithstanding fact that
such ruling, which occurred in context of hearing on motion in limine, allegedly compelled defendant's
refusal to testify. NRS 48.035, 50.095.
OPINION
A jury found appellant guilty of robbery (NRS 200.380) and the use of a deadly weapon
in the commission of a crime {NRS 193.165), and the trial court sentenced him to
consecutive terms of fifteen years in state prison, the sentences to run consecutively to
any prior sentences.
95 Nev. 446, 448 (1979) Yates v. State
the use of a deadly weapon in the commission of a crime (NRS 193.165), and the trial court
sentenced him to consecutive terms of fifteen years in state prison, the sentences to run
consecutively to any prior sentences.
Wanda Newman, age 12, reported to the Las Vegas Metropolitan Police Department
(LVMPD) that on May 29, 1977, she and her three younger brothers, James, Shaun and
Terrill, were at home in Las Vegas when, at approximately 11:00 p.m., two black men
entered her family's apartment, subsequently pulled a gun and stated their intention to search
the premises for money. Shaun and Terrill were locked inside the bathroom while the
intruders ransacked the house. Finding no money, the men took two leather coats and various
other items of clothing belonging to Wanda's mother, Gloria McFirrin.
Subsequently, on June 3, 1977, at police headquarters, Wanda looked through a
photographic lineup of black males. After viewing a number of pictures, she identified
appellant as a suspect, resulting in appellant's being charged.
At trial, appellant refused to take the stand. His defense consisted of testimony from two
police officers who investigated the crime and stated that the single fingerprint taken from the
scene was definitely not his. Appellant now seeks a reversal, claiming that certain
irregularities during the course of his trial tainted his conviction.
Only two of the proffered issues warrant our consideration: (1) whether the court's
examination of a child witness prejudiced appellant's case to such an extent that his motion
for mistrial should have been granted; and (2) whether the trial court erred by failing to
exclude evidence of appellant's prior felony convictions.
1. The court's examination of a child witness.
[Headnote 1]
Wanda positively identified appellant as one of the perpetrators, both from her pretrial
identification and from her recollection of his face at the time. Wanda's mother testified that
her house had been ransacked and her two leather coats stolen. Wanda's youngest brother,
Shaun, aged 9, testified that he saw the gun and that the intruders put him and Terrill in the
bathroom. However, Shaun did not participate in any pretrial identification procedures and
was unable to identify. appellant at trial. The prosecutor asked Shaun:
Q. If one of the men who were in your house that day walked by you on the street,
would you be able to identify him? Defense counsel objected to the question as
calling for speculation by the witness.
95 Nev. 446, 449 (1979) Yates v. State
Defense counsel objected to the question as calling for speculation by the witness. The
objection was sustained but the court then inquired of the witness whether he recognized
appellant. Shaun testified that he could not recognize Yates as one of the perpetrators.
Consequently, Yates cannot claim prejudice.
2. The prior convictions.
Appellant next contends that his motions in limine to exclude, for purposes of impeaching
his testimony, evidence of his 1969 robbery conviction and his 1977 larceny conviction, both
felonies, were improperly denied. He alleges the trial court's denial of his motions prompted
his decision not to take the stand. He therefore submits the trial court abused its discretion in
finding the probative value of the prior convictions for impeachment outweighed their
prejudicial effect. NRS 48.035.
[Headnotes 2-5]
Our statutes and case authority permit impeachment by proof of prior felony convictions
which are not too remote. NRS 50.095;
1
Edwards v. State, 90 Nev. 255, 524 P.2d 328
(1974); Anglin v. State, 86 Nev. 70, 464 P.2d 504 (1970); Plunkett v. State, 84 Nev. 145, 437
P.2d 92 (1968). Beyond the contemplation of our legislature, appellant urges the use of prior
felony convictions for impeachment should further be limited to only those felonies
specifically determined relevant to the truthfulness or veracity of the witness. See People v.
Beagle, 492 P.2d 1 (Cal. 1972); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967);
Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965). NRS 50.095 imposes no such
requirement, nor have any of the prior decisions of this court.
2
However, our legislation
contemplates a balancing process to determine whether the evidentiary usefulness of the
proposed impeachment by prior felony convictions, is substantially outweighed by the
danger of unfair prejudice, NRS 4S.035{1), or by considerations of undue delay and
cumulativeness.
____________________

1
1. For the purpose of attacking the credibility of a witness, evidence that be has been convicted of a crime is
admissible but only if the crime was punished by death or imprisonment in excess of 1 year under the law under
which he was convicted.
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed
since:
(a) The date of the release of the witness from confinement or
(b) The expiration of the period of his parole, probation or sentence, whichever is the later date.

2
We must remember that impeachment by the use of prior felony convictions is quite different from the use
of evidence of prior unconvicted bad acts offered to prove subsequent conduct in conformity therewith. Prior
felony convictions which are not too remote are deemed relevant to the credibility of any witness. NRS 50.095.
Evidence of specific instances of prior unconvicted bad acts of an accused, however, is not relevant unless his
character is in issue or the evidence is relevant to some issue other than his character. NRS 48.045.
95 Nev. 446, 450 (1979) Yates v. State
felony convictions, is substantially outweighed by the danger of unfair prejudice, NRS
48.035(1), or by considerations of undue delay and cumulativeness. NRS 48.035(2). While
the nature of the underlying offense by which impeachment is sought may affect the trial
court's determination as to the relevance, and hence admissibility of the impeachment, that
determination will be reversed only upon a clear showing of abuse. Jones v. State, 93 Nev.
287, 564 P.2d 605 (1977).
[Headnote 6]
Even in those jurisdictions which adhere to the rule appellant espouses, since robbery and
larceny involve dishonesty, convictions for such offenses are often held admissible for
purposes of impeachment. See United States v. Wilson, 536 F.2d 883 (9th Cir. 1976), cert.
denied, 429 U.S. 982; People v. Beagle, supra; United States v. Simpson, 445 F.2d 735 (D.C.
Cir. 1970). Further, appellant's 1969 conviction was not too remote, NRS 50.095(2);
Anderson v. State, 92 Nev. 21, 544 P.2d 1200 (1976), and although similar to the charge for
which appellant was on trial, cf. People v. Beagle, supra, we have not excluded such evidence
in our prior cases. See, for example, Anderson v. State, supra.
Finally, we turn again to appellant's claim that the trial court's denial of his motion in
limine compelled him to remain silent out of fear of impeachment. The record reveals that
this potential was a weighty factor considered by the trial court in passing on the admissibility
of the evidence. People v. Rist, 545 P.2d 833 (Cal. 1976). Appellant made an offer of proof of
an alibi defense. He claims that he was at a concert at the time of the robbery. To this end he
submitted two cancelled concert tickets. His alibi witness, however, was unavailable to testify
at trial. This would have been his primary defense. He represented to the trial court that his
testimony would be limited to his whereabouts at the approximate time of the alleged offense.
While appellant's anticipation of the state's use of his prior felony convictions may have
been a strong factor affecting his decision not to testify, cf. Gibson v. State, 83 Nev. 42, 422
P.2d 543 (1967), there are a myriad of other cogent reasons why an accused might elect not to
take the stand, including his desire to exercise his Fifth Amendment rights, reliance on the
presumption of innocence, or the avoidance of proof of other bad acts not resulting in
convictions which may be provable through him pursuant to NRS 48.045(1). Thus, there are a
number of compelling reasons, in addition to general trial tactics that affect an accused's
decision to forego testifying. We are impressed with the rationale of the D.C. Circuit Court in
a similar setting: A rule disallowing such conviction evidence would enable an accused to
appear as a person whose character entitled him to complete credence, when the facts of
his life are to the contrary.
95 Nev. 446, 451 (1979) Yates v. State
A rule disallowing such conviction evidence would enable an accused to appear as a
person whose character entitled him to complete credence, when the facts of his life are
to the contrary. Excluding such evidence would also deny a valuable argument to the
witness accused who has no prior record.
United States v. Simpson, supra, 445 F.2d at 737. We reiterate that we find no abuse in the
trial court's discretion.
The remaining issues, involving alleged prosecutorial misconduct, and claimed
insubstantiality of the identification and firearm evidence, are without merit. See Bonnenfant
v. State, 86 Nev. 393, 469 P.2d 401 (1970); Azbill v. State, supra; Stalley v. State, 91 Nev.
671, 541 P.2d 658 (1975).
Mowbray, C. J., and Thompson and Batjer, J J., concur.
The prosecutor asked a minor witness, Shaun, the following question:
Q. If one of the men who were in your house that day walked by you on the street,
would you be able to identify him?
The Court sustained an objection to this question, on the ground that it called for
speculation. Then, the Court initiated the following line of questioning on its own:
THE COURT: Shaun, will you look at the gentleman who is seated at the table right
here by Mr. Ecker, the other lawyer, are you looking at him?
THE WITNESS: Yes.
THE COURT: Do you know whether you have ever seen that man before?
Now, I want you to think and I want you to zero in on him and I just want to know if
you remember ever seeing him before?
MR. ECKER: Your Honor, I object for the record, I think the question was asked
and answered.
THE COURT: You may make your objection on the record. Does he look familiar to
you?
THE WITNESS: Yeah.
THE COURT: Now, then, because you can't remember who was in your house that
night, when you look at that man in the courtroom you can't say whether he was there or
whether he was not there; is that right?
THE WITNESS: Yeah.
95 Nev. 446, 452 (1979) Yates v. State
THE COURT: Because you just don't remember him; is that right?
THE WITNESS: Yes.
THE COURT: You are sure of that, Shaun?
THE WITNESS: Yes.
THE COURT: Okay. That is all I wanted to get out is that the man looks familiar to
you; is that correct?
THE WITNESS: Yes.
THE COURT: All right, Mr. Freedman.
MR. FREEDMAN: Yes.
Q. Where does he look familiar from?
A. The face.
Q. I mean, do you have any idea where you might have seen that man before?
A. No.
My colleagues say this line of questioning was not prejudicial, because Shaun testified he
could not identify Yates. Still, with all respect to my brethren, I suggest that is just the point.
Although Shaun admittedly could not identify Yates, the judge interjected himself into the
case to emphasize the prejudicial but legally non-probative point that Yates looked
familiar.
____________
95 Nev. 452, 452 (1979) Fleming v. Sheriff
MARVIN DEAN FLEMING, Appellant, v. SHERIFF,
No. 11689
June 14, 1979 596 P.2d 243
District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that: (1) where preliminary examination was waived as a
condition of an aborted plea bargain, there was good cause for accused's withdrawal of his
waiver of preliminary examination, and (2) where the trial court improperly denied the
accused's motion to remand him to a magistrate for a preliminary examination, the accused's
subsequent plea upon arraignment did not operate as waiver of his right to preliminary
examination.
Henry R. Gordon, Las Vegas, for Appellant.
Nikolas Mastrangelo, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Absence of preliminary examination or absence of intelligent waiver of preliminary examination may be
called to attention of district court at any time prior to entry of plea. NRS 171.208.
2. Criminal Law.
Where trial court improperly denied defendant's motion to remand defendant to magistrate for
preliminary examination, defendant's subsequent plea upon arraignment did not operate as waiver of his
right to preliminary examination. NRS 171.208.
3. Criminal Law.
Where preliminary examination was waived by defendant as condition of aborted plea bargain, defendant
had good cause to withdraw his waiver of preliminary examination. NRS 171.208.
OPINION
Per Curiam:
A criminal complaint was filed on November 28, 1978, charging Marvin Dean Fleming
with two counts of sexual assault (NRS 200.364, NRS 200.366) and one count of lewdness
with a child under 14 years (NRS 201.230). At a scheduled preliminary examination held on
December 14, 1978, the deputy public defender representing Fleming told the magistrate that
pursuant to negotiations between Fleming and the district attorney's office, Fleming had
agreed to waive the preliminary examination and plead guilty to one count of sexual assault.
In exchange, the State was to dismiss the other two counts. The magistrate permitted the
waiver and ordered Fleming to be bound over to the district court to answer the charge.
Prior to arraignment, the public defender withdrew as Fleming's counsel and Henry R.
Gordon undertook representation of Fleming. Fleming was informed by Gordon that he could
not be assured of receiving probation as a result of the plea negotiation. Thereafter, at the
commencement of the arraignment, Fleming made an oral motion to withdraw his waiver of
the preliminary examination. The district court refused to rule on the motion at that time and
asked Fleming to enter a plea. Fleming plead not guilty to all three counts. After setting a date
for trial, the judge stated that the motion could be argued at a subsequent calendar call.
On January 3, 1979, Fleming filed a motion to set aside the waiver of the preliminary
examination. Attached to the motion was an affidavit stating that at the time he agreed to the
waiver, Fleming "was under the impression that by waiving his preliminary hearing and
pleading guilty to one charge he would be given probation."
Fleming was under the impression that by waiving his preliminary hearing and pleading
guilty to one charge he would be given probation. The affidavit added that Fleming was led
to believe there was legal evidence upon which he could have been convicted on two charges
of sexual assault on one victim on one occasion, whereas . . . he now believes he could not
have been convicted of such two charges. . . . The motion was denied.
Fleming then filed a petition for a writ of habeas corpus in district court. The writ, which
contained the same arguments delineated in the aforementioned motion, was denied.
Thereafter, Fleming perfected this appeal.
Pursuant to NRS 171.208, [w]henever a preliminary examination has not been had, the
district court may for good cause shown at any time before a plea has been entered or an
indictment found remand the defendant for preliminary examination. . . . (Emphasis added.)
We believe that the court erred in failing to rule on Fleming's motion to withdraw his
waiver before requiring Fleming to enter a plea because, pursuant to NRS 171.208, such a
requirement would preclude Fleming from being remanded to the justice's court even if he
showed good cause for the remand.
[Headnotes 1, 2]
The absence of a preliminary examination or the absence of an intelligent waiver of a
preliminary examination may be called to the attention of the district court at any time prior
to the entry of a plea. NRS 171.208; see State v. Vaughn, 393 P.2d 711 (N.M. 1964). When a
trial court improperly denies or refuses to consider a defendant's motion to remand the
defendant to a magistrate for a preliminary examination, the defendant's subsequent plea upon
arraignment will not operate as a waiver of his right to a preliminary examination. See State
v. Vega, 433 P.2d 504 (N.M. 1967). Therefore, by entering three pleas of not guilty, Fleming
did not waive his right to a preliminary examination, and he may be remanded to the justice's
court upon a showing of good cause.
[Headnote 3]
Furthermore, we believe that where, as here, preliminary examination is waived as a
condition of an aborted plea bargain, good cause as contemplated by NRS 171.208 exists.
Cf. Santobello v. New York, 404 U.S. 257 (1971).
Accordingly, we reverse and remand this case to the district court with instructions to,
forthwith, remand appellant for a preliminary examination. If the preliminary examination is
not held within 30 days after remittitur issues, the district court shall grant appellant's
petition for a writ of habeas corpus.
held within 30 days after remittitur issues, the district court shall grant appellant's petition for
a writ of habeas corpus.
____________
95 Nev. 455, 455 (1979) Ellis v. McDaniel
CHARLES T. ELLIS, M.D., Petitioner, v. HONORABLE JOSEPH O. McDANIEL,
FOURTH JUDICIAL DISTRICT COURT IN AND FOR THE COUNTY OF ELKO,
Respondent.
No. 11622
June 14, 1979 596 P.2d 222
Original proceeding in prohibition, treated as an appeal, Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Orthopedic surgeon filed petition seeking writ prohibiting the district court, from
enforcing preliminary injunction granted at request of surgeon's former employer pursuant to
post employment restrictive covenant contained in employment agreement. The Supreme
Court, Manoukian, J., held that where none of the doctors at clinic which had employed
orthopedic surgeon were orthopedic specialists, patients in need of orthopedic services would
be forced to travel great distances at considerable risk and expense in order to avail
themselves of such services if surgeon were not permitted to practice in community where
clinic of his former employer was located, restraint upon surgeon's practice of his specialty in
clinic community pursuant to restrictive covenant in surgeon's employment agreement with
clinic, was unreasonable and beyond scope of any legitimate protectible interest of clinic,
even though territorial limitation in covenant to five-mile area around clinic and time
limitation of two years were reasonable and enforceable as to surgeon's engaging in general
practice of medicine.
Order granting preliminary injunction is modified.
Bradley and Drendel, Reno, for Petitioner.
Stewart R. Wilson, Elko, for Respondent.
Evans & Bilyeu, and Zane S. Miles, Elko, for Amicus Curiae.
Since order granting preliminary injunction was appealable, surgeon's petition for writ prohibiting district
court from granting injunction enforcing restrictive covenant in employment agreement was procedurally
incorrect; but where the Supreme Court allowed filing of petition for writ of prohibition, ordered employer
to answer, and thereafter set matter for briefing and oral argument thereby lulling surgeon into feeling of
procedural security, the Supreme Court treated application for writ of prohibition as an appeal. NRAP
3A(b)(2); NRS 34.330.
2. Contracts.
Because loss of person's livelihood is very serious matter, post employment anti-competitive covenants
are scrutinized with greater care than are similar covenants incident to sale of business.
3. Contracts.
Where none of the doctors at clinic which had employed orthopedic surgeon were orthopedic specialists,
patients in need of orthopedic services would be forced to travel great distances at considerable risk and
expense in order to avail themselves of such services if surgeon were not permitted to practice in
community where clinic of his former employer was located, restraint upon surgeon's practice of his
specialty in clinic community pursuant to restrictive covenant in surgeon's employment agreement with
clinic was unreasonable and beyond scope of any legitimate protectible interest of clinic, even though
territorial limitation in covenant of five-mile area around clinic and time limitation of two years, were
reasonable and enforceable as to surgeon's engaging in general practice of medicine.
OPINION
On December 18, 1977 appellant Dr. Charles T. Ellis, a duly licensed and certified
specialist in orthopedic surgery, negotiated a contract of employment with Collett, Hood,
Moren and Read, Ltd., a professional medical corporation, doing business as the Elko Clinic,
for a six-month period beginning September 1, 1978.
At the time the contract was entered, the parties contemplated that at the end of six months
Dr. Ellis would be extended the option to either become a stockholder in the corporation or to
continue his employment without buying stock. Further, the contract provided that upon the
termination of his employment, and for a period of two years thereafter, Dr. Ellis would not
compete with the Clinic within a radius of five miles from the city of Elko. Specifically, the
restrictive covenant provides:
In the event that [Dr. Ellis'] employment by [the Elko Clinic] terminates for any
reason, [Dr. Ellis] shall not undertake to practice medicine within a distance of five
miles from the city limits of Elko, Nevada for a period of two years from the
termination date of his employment by the [Elko Clinic]. It is understood that in the
event [Dr.
Ellis] violates the foregoing provision of this Contract, [the Elko Clinic] may obtain an
injunction in the Fourth Judicial District Court of the State of Nevada to insure [his]
compliance with this provision. This remedy is in addition to any other remedies which
[the Elko Clinic] may have against [Dr. Ellis] in law or equity for his violation of this
provision. (Emphasis added.)
In September, 1978, Dr. Ellis began performance under the contract. He saw patients in
need of orthopedic services who, prior to his employment would have been referred to
specialists in Reno, Salt Lake City, or elsewhere beyond the State's territorial boundaries. In
January, 1979, Dr. Ellis informed principals of the Clinic that on the expiration of his
contract, he intended to establish his own office in Elko for the practice of his specialty.
Pursuant to the terms of the contract, the Clinic filed its complaint and motion for a
preliminary injunction against Dr. Ellis' threatened action, alleging Dr. Ellis had violated his
covenant not to compete by taking steps (including the rental of office space, copying of files,
and attempting to persuade other Clinic employees to join him) to enter private practice in
Elko. Dr. Ellis answered, claiming the post employment restrictive covenant was
unenforceable, and counterclaimed for damages.
Following hearing, the district court on February 26, 1979 entered an order granting the
preliminary injunction.
On March 1, 1979 Dr. Ellis filed the instant petition seeking to prohibit Judge McDaniel
from enforcing the preliminary injunction on the ground that he had exceeded his jurisdiction
in granting the preliminary relief. On March 2, 1979, we noted that: [Dr. Ellis] has set forth
jurisdictional and procedural issues, which may be arguable, and that petitioner may have no
plain, speedy and adequate remedy in the ordinary course of law . . . and ordered respondent
to answer.
[Headnote 1]
1. Since an order granting a preliminary injunction is appealable, NRAP 3A(b) (2), Dr.
Ellis' petition for a writ of prohibition is procedurally incorrect. NRS 34.330. However, in
view of our own action, allowing the filing of the petition, ordering respondent to answer, and
thereafter setting the matter for briefing and oral argument, thereby lulling petitioner into a
feeling of procedural security, Dickerson v. District Court, 82 Nev. 234, 414 P.2d 946 (1966),
we opt to treat the application as an appeal. State v. District Court, 85 Nev. 381, 455 P.2d 923
(1969); Dickerson v. State, supra.
2. In Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792 (1967), we considered an appeal
from an order granting an injunction enforcing a post employment covenant not to compete.
The covenant, silent as to its duration, provided that Dr. Hansen was not to engage in the
practice of surgical chiropody within a radius of 100 miles of Reno upon the termination of
his employment. The agreement was executed in 1959 and re-executed in 1966. When, in
1966, Dr. Hansen terminated the contract and opened his own office for the practice of
podiatry near Dr. Edwards' Reno office, Edwards sued to enforce the covenant. The trial court
granted Dr. Edwards a preliminary injunction pending trial on the merits. Hansen appealed
claiming the injunction was invalid as against public policy. This court disagreed, saying:
An agreement on the part of an employee not to compete with his employer after
termination of the employment is in restraint of trade and will not be enforced in
accordance with its terms unless the same are reasonable. Where the public interest is
not directly involved, the test usually stated for determining the validity of the covenant
as written is whether it imposes upon the employee a greater restraint than is reasonably
necessary to protect the business and goodwill of the employer. A restraint of trade is
unreasonable, in the absence of statutory authorization or dominant social or economic
justification, if it is greater than is required for the protection of the person for whose
benefit the restraint is imposed or imposes undue hardship upon the person restricted.
The period of time during which the restraint is to last and the territory that is included
are important factors to be considered in determining the reasonableness of the
agreement. [Citations.]
The medical profession is not exempt from a restrictive covenant provided the
covenant meets the tests of reasonableness. [Citations.] The public has an interest in
seeing that competition is not unreasonably limited or restricted, but it also has an
interest in protecting the freedom of persons to contract, and enforcing contractual
rights and obligations.
Id., at 191-192, 426 P.2d at 793. Finding the covenant otherwise reasonable, we limited the
duration of the covenant to one year, and as modified, affirmed the order of the district court.
Id.
[Headnote 2]
There is no inflexible formula for deciding the ubiquitous question of reasonableness.
question of reasonableness. However, because the loss of a person's livelihood is a very
serious matter, post employment anticompetitive covenants are scrutinized with greater care
than are similar covenants incident to the sale of a business. See, for example, Golden State
Linen Service, Inc. v. Vidalin, 137 Cal. Rptr. 807, 813 (Cal. App. 1977); Purchasing
Associates, Inc. v. Weitz, 196 N.E.2d 245 (N.Y. 1963); Crowell v. Woodruff, 245 S.W.2d
447 (Ky. 1952).
[Headnote 3]
Here, as the covenant is territorially limited to the geographic area serviced by the Clinic,
and durationally limited to a reasonable length of time, the preliminary considerations of
reasonableness are satisfied. Hansen v. Edwards, supra; Marshall v. Covington, 339 P.2d 504
(Idaho 1959); Granger v. Craven, 199 N.W. 10 (Minn. 1924). Recognizing that the good will
and reputation of the Clinic are valuable assets and that certain of its orthopedic patients are
likely to follow Dr. Ellis on his departure, we are nonetheless constrained to agree with
appellant that since none of the doctors at the Elko Clinic are orthopedic specialists, a
restraint on Dr. Ellis' practice of his specialty in the Elko area is unreasonable and beyond the
scope of any legitimate protectible interest of the Clinic. Karpinski v. Ingrasci, 268 N.E.2d
751 (N.Y. 1971). Although an injunction against Dr. Ellis' practice as a general practitioner is
a reasonable restraint in order to protect the good will of the Elko Clinic, a prohibition against
his practice as an orthopedic surgeon, a specialty in which none of the doctors at the Clinic is
engaged, is not justified.
Moreover, Elko General Hospital is the only hospital between Reno and Salt Lake City
equipped to perform major surgical procedures. If Dr. Ellis is not permitted to practice his
specialty there, patients in need of orthopedic services will be forced to travel great distances
at considerable risk and expense in order to avail themselves of such services. Thus, in the
instant case, the public interest in retaining the services of the specialist is greater than the
interest in protecting the integrity of the contract provision to its outer limits.
Finally, assessing the relative hardships, we conclude that the loss to Dr. Ellis and the
public by enforcing the covenant is far in excess of the threatened danger to the Clinic
resulting from a limited enforcement of the restriction to permit Dr. Ellis to practice his
specialty. We therefore exercise our equitable power by denying enforcement of the covenant
to the extent that it purports to prohibit Dr. Ellis from practicing orthopedic surgery.
Concurrently, we will enforce the covenant by prohibiting Dr. Ellis from engaging in the
general practice of medicine within the time and space limitations set out in the contract.
within the time and space limitations set out in the contract. Hansen v. Edwards, supra;
Karpinski v. Ingrasci, supra; Haig v. Gittings, 260 S.W.2d 311 (Tex. Civ. App. 1953); and
see Annot., 61 A.L.R.3d 397, 404 (1975).
The order granting the preliminary injunction is modified.
We respectfully dissent.
Dickerson v. District Court, 82 Nev. 234, 414 P.2d 946 (1966), did not hold that a petition
for extraordinary relief could be considered an appeal. Dickerson held, rather, that if this
court lulled the petitioner into believing a petition for extraordinary relief would be
considered, then this court would excuse consequent failure to appeal, and would consider
jurisdictional issues proffered by the petition. The distinction is significant.
1

Here, whether the scope of the preliminary injunction was erroneous in light of the
evidence is surely not a jurisdictional issue. It is one addressed to the district court's sound
discretion, and is reviewable only by appeal. By law, such issues are outside the ambit of
prohibition. NRS 34.320.
Moreover, even on an appeal, it would be incumbent on Dr. Ellis to bring this court a
proper record of the proceedings. Again, heretofore, it has never been this court's practice to
review the actions of trial courts, without transcripts, on the basis of whatever can be gleaned
from argument of counsel. See, for example, Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239
(1952).
Thus, this court is certainly breaking new ground. Without reviewing the record before the
district courtin a case over which that court clearly had jurisdictionthis court is here
intervening through extraordinary proceedings to review and restructure a routine preliminary
injunction. In our view, rather than second-guessing the district court, in the absence of the
evidence upon which that court acted, we should dismiss these proceedings, and allow the
district court to proceed to a trial on the merits.
____________________

1
The distinction was ignored in State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). There was no
need to consider those certiorari proceedings as an appeal. They might better have been considered as in
mandamus to require a proper exercise of jurisdiction.
____________
95 Nev. 461, 461 (1979) Rezin v. State
DANIEL ROY REZIN, Appellant, v. THE STATE
No. 10407
June 14, 1979 596 P.2d 226
Appeal from judgment of conviction for possession of a controlled substance and sentence
to life as habitual criminal, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
The Supreme Court, Manoukian, J., held that: (1) trial court erred in treating defendant's
prior rape and robbery convictions, which were prosecuted under two-count indictment, as
two convictions for purposes of applying habitual criminal statute, and (2) defendant's prior
conviction for attempted burglary could not be utilized for purposes of applying habitual
criminal statute without State's affirmative proof that defendant was either represented by
counsel or voluntarily waived that right in his burglary trial.
Remanded for further hearing and resentencing.
Norman Y. Herring, State Public Defender, and J. Gregory Damm, Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Robert A. Bork, Deputy Attorney General,
1. Criminal Law.
Where two or more convictions grow out of same act, transaction or occurrence, and are prosecuted in
same indictment or information, those several convictions may be utilized only as a single private
conviction for purposes of applying habitual criminal statute. NRS 207.010.
2. Criminal Law.
In sentencing defendant-prisoner for felony possession of marijuana, trial court erred in treating
defendant's prior rape and robbery convictions, which were prosecuted under two-count indictment, as two
convictions for purposes of applying habitual criminal statute. NRS 207.010.
3. Criminal Law.
By enacting habitual criminal statute, Legislature sought to discourage repeat offenders and to afford
them an opportunity to reform. NRS 207.010.
4. Criminal Law.
Defendant's prior conviction for attempted burglary could not be utilized for purposes of applying
habitual criminal statute without State's affirmative proof that defendant was either represented by counsel
or voluntarily waived that right in his burglary trial. NRS 207.010.
OPINION
A jury found appellant, a prisoner at the Northern Nevada Correctional Center, guilty of
felony possession of several hand rolled cigarettes containing marijuana {NRS 453.336),
and pursuant to the habitual criminal statute,1 the district judge sentenced him to a life
term as an habitual offender, the sentence to run consecutively to the terms appellant is
presently serving.
95 Nev. 461, 462 (1979) Rezin v. State
Correctional Center, guilty of felony possession of several hand rolled cigarettes containing
marijuana (NRS 453.336), and pursuant to the habitual criminal statute,
1
the district judge
sentenced him to a life term as an habitual offender, the sentence to run consecutively to the
terms appellant is presently serving. In this appeal, Rezin contends his penalty as enhanced is
improper and that the trial court erred in treating his 1975 conviction of rape and robbery
under a two count indictment as two convictions for purposes of applying the recidivist
statute.
[Headnotes 1, 2]
Although we have not previously had occasion to rule on the matter, we are persuaded that
the better rule, followed in a majority of jurisdictions which have considered the issue, is to
the effect that where two or more convictions grow out of the same act, transaction or
occurrence, and are prosecuted in the same indictment or information, those several
convictions may be utilized only as a single prior conviction for purposes of applying the
habitual criminal statute. State v. Sanchez, 531 P.2d 1229 (N.Mex. App. 1975); State v.
Murray, 437 P.2d 816 (Kan. 1968); Ex Parte Huff, 316 S.W.2d 896 (Tex. Crim. App. 1958);
and see Annot., 24 A.L.R.2d 1247 (1952) for a collection of cases on the subject.
[Headnote 3]
Our holding is consistent with the policy and purpose of the recidivist statute.
____________________

1
NRS 207.010 provides in relevant part:
1. Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of
petit larceny, or of any felony, who has previously been twice convicted, whether in this state or elsewhere, of
any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has
previously been three times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor
or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to be an habitual
criminal and shall be punished by imprisonment in the state prison for not less than 10 years nor more than 20
years.
2. Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of
petit larceny, or of any felony, who has previously been three times convicted, whether in this state or elsewhere,
of any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has
previously been five times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor
or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in
the state prison for life with or without possibility of parole. If the penalty fixed by the court is life imprisonment
with the possibility of parole, eligibility for parole begins when a minimum of 10 years has been served.
* * *
8. Presentation of an exemplified copy of a felony conviction is prima facie evidence of conviction of a prior
felony.
95 Nev. 461, 463 (1979) Rezin v. State
recidivist statute. By enacting the habitual criminal statute, the legislature sought to
discourage repeat offenders and to afford them an opportunity to reform. The statute provides
a special, as well as general, deterrent to recidivism.
[Headnote 4]
Appellant also challenges the use of his 1973 conviction for attempted burglary on the
grounds that the State failed to affirmatively demonstrate that he either was represented by
counsel or voluntarily waived that right in those proceedings. Hamlet v. State, 85 Nev. 385,
455 P.2d 915 (1969). Indeed, the certified copy of the judgment of conviction does not
indicate whether appellant was in fact represented. Accordingly, a hearing on the issue of
representation at the 1973 proceedings is required. Id.
We therefore remand the case for hearing to determine whether Rezin was represented by
counsel in the 1973 proceedings and for resentencing consistent with this opinion.
The remaining issues are without merit.
____________
95 Nev. 463, 463 (1979) Bonanza Hotel v. Bonanza No. 2
BONANZA HOTEL GIFT SHOP, INC., a Nevada Corporation, and RON MARKIN and
BONANZA HOTEL MEN'S SHOP, INC., Appellants, v. BONANZA NO. 2, a Nevada
Corporation, LEVIN-TOWNSEND COMPUTER CORPORATION, a New Jersey
Corporation, and J. J. ENTERPRISES OF NEVADA, a Nevada Corporation, Respondents.
No. 9921
June 14, 1979 596 P.2d 227
Appeal from judgment in favor of defendants. Eighth Judicial District Court, Clark
In action seeking to hold parent corporations liable for obligations of subsidiary, the
district court entered judgment in favor of defendants, and plaintiffs appealed. The Supreme
Court, Mowbray, C. J. held that doctrine of alter ego was not applicable to hold corporations
liable for obligations of their subsidiary where separate corporate books and accounts were
kept, separate directors' meetings were held with full corporate formalities observed,
corporations had independent headquarters and separate business responsibilities and
operations, and there was no showing that the parent companies had in any way impaired
the assets of the subsidiary.
formalities observed, corporations had independent headquarters and separate business
responsibilities and operations, and there was no showing that the parent companies had in
any way impaired the assets of the subsidiary.
Affirmed.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Appellants.
Dickerson, Miles & Pico, Las Vegas, for Respondents.
1. Corporations.
The basic requisites for the application of the doctrine of alter ego and disregard of the fiction of separate
corporate entities are that: (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 a separate entity would, under the
circumstances, sanction a fraud or promote injustice.
2. Corporations.
Mere showing that one corporation is owned by another, or that the two share interlocking officers or
directors, is insufficient to support a finding of alter ego; it must further be shown that the subsidiary
corporation is so organized and controlled and its affairs are so conducted that it is in fact a mere
instrumentality or adjunct of another corporation; nor is mere mutuality of interests sufficient to make such
a showing without evidence of a commingling of funds or property interests, or of prejudice to creditors.
3. Corporations.
Doctrine of alter ego was not applicable to hold corporations liable for obligations of their subsidiary
where separate corporate books and accounts were kept, separate directors' meetings were held with full
corporate formalities observed, corporations had independent headquarters and separate business
responsibilities and operations, and there was no showing that the parent companies had in any way
impaired the assets of the subsidiary.
OPINION
The principal issue presented is whether respondents Levin-Townsend Computer
Corporation and J. J. Enterprises of Nevada, of which respondent Bonanza No. 2 is a
subsidiary, should be held liable for obligations due appellants from Bonanza No. 2.
The appellant Ron Markin and the two appellant corporations formed by Markin originally
operated the Bonanza Hotel Gift Shop, Inc. and the Bonanza Hotel Men's Shop, Inc.
under two leases with Bonanza No. 2, a Nevada corporation which later went through
bankruptcy proceedings.
1

After the hotel and shops had been closed, Markin entered into a new lease with Nathan
Jacobson, the new president of Bonanza No. 2. A new ten year lease for the gift shop space
was entered into between Bonanza Hotel Gift Shop, Inc. and Bonanza No. 2. The lease
provided, inter alia, that the gift shop was to pay $50,000 key money upon execution of the
lease, and an additional $50,000 [a]t such time as Landlord shall make room additions to
Hotel Bonanza and open the same for public occupancy. Jacobson testified that their
understanding was that when a proposed new 1000-room complex was completed, leases for
the men's shop and gift shop would be executed without further consideration. Later, the hotel
again ceased operation and the gift shop was closed. Bonanza No. 2 defaulted on its trust
deed obligations, and the underlying property was sold.
Much of the testimony at trial focused on the question of the potential liability of
defendants J. J. Enterprises, a Nevada corporation, and Levin-Townsend Computer
Corporation (now known as Rockwood Computer Corporation), a New Jersey corporation,
through their ownership and alleged domination of Bonanza No. 2 during the period in
question.
2
Markin claimed that 30 to 45 days after negotiation of the lease Jacobson
introduced Howard Levin and James Townsend to him as owners of the hotel. Other
evidence revealed that at various times Levin and Townsend were members of the boards and
executive officers of Levin-Townsend Computer Corporation, Levin-Townsend Enterprises,
J. J. Enterprises, and Bonanza No. 2.
The trial court found that At the time that the lease was entered into, Markin was dealing
with Jacobson, the then President of Bonanza. The evidence does not establish that Jacobson
was a tool of the other corporate defendants. To the contrary, he was the chief executive
officer of Bonanza and in control of the everyday operations of Bonanza No. 2. There is no
evidence that at the time the $50,000 was paid over, that Jacobson, or anyone else, made
misrepresentations concerning the construction of the new hotel complex."
____________________

1
For the prior history of the luckless Bonanza No. 2, see Lipshie v. Tracy Investment Co., 93 Nev. 370, 566
P.2d 819 (1977).

2
The evidence relative to ownership revealed that J. J. Enterprises purchased 100% of the stock of Bonanza
in 1969 for approximately $3 million. J.J. Enterprises had been formed in 1969, and received capital from the
sale of stock to Jacobson (15%) and Levin-Townsend Enterprises (85%). In September, 1969, Jacobson's shares
were sold to Levin-Townsend Enterprises. Levin-Townsend Enterprises, in turn, was owned by Levin-Townsend
Computer Corporation (Rockwood). At the time of the lease, Levin-Townsend Computer Corporation was a
publicly held company, listed on the American Stock Exchange.
no evidence that at the time the $50,000 was paid over, that Jacobson, or anyone else, made
misrepresentations concerning the construction of the new hotel complex. The court found
no basis for the application of the alter ego doctrine, and determined that judgment should be
entered in favor of all defendants.
3

THE ALTER EGO
Appellants contend that the facts of this case call for the application of the doctrine of alter
ego; that the interests of justice mandate that the fiction of separate corporate entities be
ignored, and respondents J. J. Enterprises and Levin-Townsend Computer Corporation be
held liable for the obligations of their subsidiary, Bonanza No. 2. We do not agree.
[Headnotes 1, 2]
The basic requisites for the application of the doctrine of alter ego have been well
established.
(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 a separate
entity would, under the circumstances, sanction a fraud or promote injustice.
McCleary Cattle Co. v. Sewell, 73 Nev. 279, 282, 317 P.2d 957, 959 (1957), as quoted in
Mosa v. Wilson-Bates Furniture Co., 94 Nev. 521, 583 P.2d 453, 454 (1978). A mere
showing that one corporation is owned by another, or that the two share interlocking officers
or directors is insufficient to support a finding of alter ego. Lipshie v. Tracy Investment Co.,
93 Nev. 370, 566 P.2d 819 (1977). It must further be shown that the subsidiary corporation
is so organized and controlled, and its affairs are so conducted that it is, in fact, a mere
instrumentality or adjunct of another corporation. Savage v. Royal Properties, Inc., 417 P.2d
925, 927 (Ariz.App. 1966). See also Pittsburgh Reflector Co. v. Dwyer & Rhodes Co., 23
P.2d 1114 (Wash. 1933); Markow v. Alcock, 356 F.2d 194(5th Cir. 1966). Nor is mere
mutuality of interest sufficient to make such a showing, without evidence of a commingling
of funds or property interests, or of prejudice to creditors. First Nat. Bank v. Walton, 262 P.
984 (Wash. 1928).
____________________

3
None of the parties has addressed the implications of the trial court's decision to enter judgment in favor of
all defendants, including Bonanza No. 2. It appears that as a practical matter the court below and the parties
have treated the issue of alter ego as a threshold issue in recognition of the futility of proceeding solely against
Bonanza No. 2.
[Headnote 3]
In the case at hand, the evidence showed that separate corporate books and accounts were
kept. Separate directors' meetings were held, and minutes recorded, with full corporate
formalities observed. The corporations had independent headquarters, separate business
responsibilities and operations. There was no showing that the parent companies had in any
way impaired the assets of the company with which appellants had dealt. Indeed the evidence
is that the parent companies poured some $10 million into Bonanza No. 2 before deciding to
cut further losses.
The trial court's determination that the doctrine of alter ego was not applicable to the
respondent corporations is fully supported by the evidence and must be upheld. We therefore
affirm.
____________
95 Nev. 467, 467 (1979) Husney v. O'Donnell
SEYMOUR HUSNEY, Petitioner, v. HONORABLE THOMAS J.
O'DONNELL, District Judge, Respondent.
No. 10785
SEYMOUR HUSNEY, Appellant, v. SHERIFF, CLARK
Nos. 10940, 11105
June 14, 1979 596 P.2d 230
Consolidated hearing of petition for writ of prohibition, and appeals from orders denying
habeas corpus; Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge,
case No. 10785; Carl J. Christensen, Judge, case No. 10940; Joseph S. Pavlikowski, Judge,
case No. 11105.
Defendant who was charged with various sexual offenses sought prohibition challenging
the jurisdiction of the district court to proceed on one indictment and appealed from orders of
the district court which denied pretrial habeas corpus relief. The Supreme Court, Thompson,
J., held that: (1) indictment which charged defendant with statutory sexual seduction was
sufficient to state a public offense, even though it also referred to a sexual assault; (2) habeas
corpus petition in which the defendant did not consent to postponement of the trial date was
not cognizable, but (3) defendant could not legally be charged with aiding and abetting the
commission of the crime against nature by two minor females.
Case No. 10785petition for prohibition dismissed.
Case No. 10940remanded with instructions.
Case No. 11105affirmed in part; reversed in part.
Gunderson and Batjer, JJ., concurred in part, dissented in part.
Alan B. Andrews, of Las Vegas, and David E. Sher, of Arlington, Virginia, for
Petitioner-Appellant.
County, for Respondents.
1. Prohibition.
The remedy of prohibition is available to resolve a contention that an indictment does not charge a public
offense.
Indictment must be definite enough to prevent the prosecutor from changing the theory of the case and it
must inform the accused of the charge he is required to meet. NRS 173.075.
3. Indictment and Information; Sodomy.
Indictment which alleged that, on five separate occasions, defendant, a man over the age of 21 years,
unlawfully caused a female under the age of 16 years to engage in fellatio and to submit to cunnilingus and
which stated that it was an indictment for statutory sexual seduction charged a public offense despite other
language indicating that defendant had sexually assaulted the victim; because the indictment did not
contain an allegation that the acts were against the victim's will, an essential allegation for a charge of
sexual assault, the indictment could not be interpreted as charging sexual assault and the words sexually
assault could be deemed surplusage and disregarded. NRS 173.075, 200.364, 200.368.
4. Constitutional Law; Rape; Sodomy.
Statute defining statutory sexual seduction as sexual intercourse, cunnilingus, or fellatio committed by a
person 18 years of age or over with a consenting person under the age of 16 years does not deny equal
protection because the penalty differs according to the age of the offender. NRS 200.364, 200.368.
5. Habeas Corpus.
Petition for pretrial habeas corpus which did not state that the defendant consented to postponement of
trial pending consideration was not cognizable in the trial court nor susceptible to review on appeal. NRS
34.375, subd. 1(b)(3).
6. Sodomy.
Since minors are not within the infamous crime against nature statute, defendant could not be charged
with aiding and abetting the commission of that crime by two minor females. NRS 201.190.
OPINION
Three separate cases regarding sex offenses allegedly committed by Seymour Husney were
consolidated for hearing before this court.
before this court. By petition for writ of prohibition he challenges the jurisdiction of the
district court to proceed upon one of the indictments, and by appeal from orders denying
habeas relief, he asserts additional claims of error with regard to the other two indictments.
We turn to consider each in order.
Case No. 50785.
The grand jury directed the district attorney to prepare an indictment charging Husney with
statutory sexual seduction.
1
The indictment so prepared alleged five separate occasions when
Husney, a man over the age of 21 years, unlawfully caused a female under the age of 16 years
to engage in fellatio and submit to cunnilingus. Each of the five counts also alleged that
Husney did sexually assault the victim. The crime of sexual assault is different than the
crime of statutory sexual seduction and carries a different penalty.
2

[Headnote 1]
The remedy of prohibition is available to resolve a contention that an indictment does not
charge a public offense. Sardis v. District Court, 85 Nev. 585, 460 P.2d 163 (1969); Garnick
v. District Court, 81 Nev. 531, 407 P.2d 163 (1965); Houser v. Dist. Ct., 75 Nev. 465, 345
P.2d 766 (1959). It apparently is the contention of Husney that since the indictment may be
read to charge either sexual seduction or sexual assault, in legal effect it charges neither.
[Headnote 2]
Statute commands that an indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. NRS 173.075. It must be
definite enough to prevent the prosecutor from changing the theory of the case, and it must
inform the accused of the charge he is required to meet. Adler v. Sheriff, 92 Nev. 436, 552
P.2d 334 (1976); Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).
[Headnotes 3, 4]
The indictment here in issue listed the relevant statutes regarding sexual seduction, NRS
200.364, NRS 200.368, stated that it was an indictment for statutory sexual seduction, and
alleged the specific instances of fellatio and cunnilingus.
____________________

1
NRS 200.364(3): Statutory sexual seduction means ordinary sexual intercourse, and intercourse,
cunnilingus or fellatio committed by a person 18 years of age or older with a consenting person under the age of
16 years.

2
NRS 200.366(1): A person who subjects another person to sexual penetration, or who forces another person
to make a sexual penetration on himself or another, or on a beast, against the victim's will or under conditions in
which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or
understanding the nature of his conduct, is guilty of sexual assault.
that it was an indictment for statutory sexual seduction, and alleged the specific instances of
fellatio and cunnilingus. The indictment did not contain an allegation that the acts were
against the victim's will, an essential allegation for a charge of sexual assault. In these
circumstances the standards expressed by statute and case law above mentioned are satisfied.
The words sexually assault may be deemed surplusage and disregarded. State v. Benigas,
95 Nev. 358, 594 P.2d 724 (1979).
3

Case No. 10940.
[Headnote 5]
The record submitted with this appeal from an order denying Husney's pretrial petition for
a writ of habeas corpus reveals that the petition fails to contain the mandatory statement
required by NRS 34.375(1)(b)(3). Accordingly, the petition was not cognizable below, nor
susceptible to our review. We remand with direction to dismiss the petition for habeas relief.
Sheriff v. Toston, 93 Nev. 394, 566 P.2d 411 (1971).
Case No. 11105.
The indictment in this case alleged that Husney committed the infamous crime against
nature on three occasions (Count I, II, and X), and aided and abetted two minor females to
commit that crime (Count V).
(Headnote 6]
His pretrial petition for habeas corpus, inter alia, challenged Count V on the ground that
since minors are not within the infamous crime against nature statute, NRS 201.190, Husney
could not legally be charged with aiding and abetting the commission of that crime. This
contention is correct. Lucas v. Sheriff, 95 Nev. 61, 589 P.2d 176 (1979). The district court
should have granted relief as to Count V. In all other respects, the order denying habeas
corpus is affirmed.
Mowbray, C. J., and Manoukian, J., concur.
Gunderson, J., with whom Batjer, J., agrees, concurring and dissenting:
We agree with the above opinion, except as it adheres to this court's ruling in Lucas v.
Sheriff, 95 Nev. 61, 589 P.2d 176 (1979). We continue to believe that it is, and always has
been, a crime to cause children to perform cunnilingus, fellatio or anal intercourse upon
each other.
____________________

3
Husney asserts that NRS 200.364 violates the equal protection clause of the United States Constitution since
the penalty specified in NRS 200.368 differs according to the age of the offender. The same argument was
proffered with regard to the now repealed statutory rape statute, and by this court rejected. Olson v. State, 95
Nev. 1, 588 P.2d 1018 (1979). The rationale of Olson is dispositive of this assertion.
crime to cause children to perform cunnilingus, fellatio or anal intercourse upon each other.
Accordingly, we adhere to the views expressed in the dissent we filed in the Lucas matter.
____________
95 Nev. 471, 471 (1979) Cranford v. State
BONNIE FRED CRANFORD, Appellant, v. THE STATE
No. 10187
June 20, 1979 596 P.2d 489
Defendant was convicted in the district court of first-degree murder and he appealed. The
Supreme Court held that: (1) where car owner's body was discovered on day after witness
sold car to police sergeant engaged in undercover fencing operation, existence of defendant's
fingerprints on car and defendant's presence and companionship with witness and another
shortly after the transaction was completed were prima facie evidence that defendant was
involved in conspiracy to steal the car; thus sufficient foundation existed for admitting
witness' statements, which were recorded on video tape of the fencing operation and which
implicated defendant in the murder, and (2) arresting officer, who had been informed that
three robbery suspects had been loitering around a bar, who investigated and found gun in
possession of one of them, and who believed that the three suspects matched descriptions of
men who had committed robbery, had probable cause to arrest the suspects for that robbery.
Affirmed.
Gerald F. Neal, Las Vegas, for Appellant.
1. Criminal Law.
Application of coconspirator exception to hearsay rule is contingent upon showing, by independent
evidence, that a conspiracy existed, but amount of independent evidence necessary to prove existence of
conspiracy may be slight and it is enough that only prima facie evidence of the fact is produced.
2. Criminal Law.
In prosecution for first-degree murder of car owner, whose body was discovered on day after witness sold
car to police sergeant engaged in undercover fencing operation, existence of defendant's fingerprints on car
and defendant's presence and companionship with witness and another shortly after the transaction was
completed were prima facie evidence that defendant was involved in conspiracy to steal the car; thus
sufficient foundation existed for admitting witness' statements which were recorded on video tape of the
fencing operation and which implicated defendant in the murder.
3. Arrest.
Constitutionality of arrest depends upon whether facts and circumstances known to arresting officer at
moment of arrest were sufficient to warrant prudent man in believing that accused committed an offense.
4. Arrest.
Probable cause to arrest may exist when officer believes that suspect matches physical description of
person who allegedly committed an offense.
5. Arrest.
Arresting officer who had been informed that three robbery suspects had been loitering around a bar, who
investigated and found gun in possession of one of them, and who believed that the three suspects matched
descriptions of men who had committed robbery had probable cause to arrest the men for that robbery.
OPINION
Per Curiam:
Convicted by jury verdict of first degree murder, Bonnie Fred Cranford contends we must
reverse because, among other things, (1) the trial court improperly admitted into evidence a
videotape and testimony regarding its contents and (2) he was illegally arrested.
At 5:15 p.m. on November 11, 1976, Montena Smith entered a storefront where the Las
Vegas Metropolitan Police Department was conducting a videotaped undercover fencing
operation. Smith sold a late model Cadillac Seville automobile to a police sergeant for $600.
The vehicle was traced to Lloyd Brooker, controller of Cashman Cadillac. Brooker's body
was discovered in the desert on the following day.
During the course of the fencing transaction, the undercover officer engaged Smith in
conversation to learn the circumstances of the theft and the existence of any cohorts involved
in its commission. Smith informed the officer that the owner of the car was in the desert
where Smith had knocked him out and that the other parties to the theft and assault of
Brooker were waiting at a liquor store down the street. The entire transaction, including the
conversation, was recorded on videotape.
Shortly after the conversation was recorded, Smith, Cranford and James Lewis were
arrested on an unrelated charge at a bar located near the undercover fencing operation.
Subsequently, Cranford's fingerprints were lifted from the trunk lid and a door of the Cadillac
which had allegedly been stolen from Brooker by Smith and his cohorts, and blood matching
the type of Brooker's was found on Lewis's pants. Certain items of personal property
belonging to the victim were later discovered in the possession of Lewis.
Cranford filed a pretrial motion in limine seeking to exclude the videotape and related
testimony as inadmissible hearsay. The district judge denied the motion on the ground that
the coconspirator exception to the hearsay rule might apply; but, he expressly conditioned
admission of the evidence upon a showing, at trial, that a conspiracy in fact existed.
1

[Headnote 1]
1. Courts have consistently held that the admissibility of a coconspirator's statements is
not predicated on a conspiracy charge. See, e.g., Dutton v. Evans, 400 U.S. 74(1970); Jasch v.
State, 563 P.2d 1327 (Wyo. 1977). However, the district court properly concluded that
application of the coconspirator exception is contingent upon a showing, by independent
evidence, that a conspiracy existed. Fish v. State, 92 Nev. 272, 549 P.2d 338 (1976). The
amount of independent evidence necessary to prove the existence of a conspiracy may be
slight, and it is enough that only prima facie evidence of the fact is produced. Id.
[Headnote 2]
Here, the existence of Cranford's fingerprints on the victim's Cadillac, which Smith sold to
the undercover police officer, as well as Cranford's presence and companionship with Smith
and Lewis shortly after the transaction was completed are prima facie evidence that Cranford
was involved in a conspiracy with Smith and Lewis to steal the car.
2
Thus, a sufficient
foundation existed for admitting the statements made by Smith which were recorded on the
videotape and which implicated Cranford in the murder of Brooker.
____________________

1
NRS 51.035(3)(e) provides, in pertinent part:
Hearsay' means a statement offered in evidence to prove the truth of the matter asserted unless: . . . [t]he
statement is offered against a party and is: . . . [a] statement by a coconspirator of a party during the course and
in furtherance of the conspiracy.

2
We have previously held that presence, companionship and conduct after an offense are circumstances from
which one's participation in the crime may be inferred. Archie v. Sheriff, 92 Nev. 613, 555 P.2d 1233 (1976).
[Headnotes 3, 4]
2. Cranford further contends that there was no constitutional basis for his initial arrest for
the unrelated charge. The constitutionality of an arrest depends upon whether the facts and
circumstances known to the arresting police officer at the moment of arrest were sufficient to
warrant a prudent man in believing that the accused committed an offense. Beck v. Ohio, 379
U.S. 89 (1964); Gordon v. State, 83 Nev. 177, 426 P.2d 424 (1967). Probable cause to arrest
may exist when an officer believes that a suspect matches the physical description of the
person who allegedly committed an offense. Nootenboom v. State, 82 Nev. 329, 418 P.2d
490 (1966). See Singleton v. State, 87 Nev. 53, 482 P.2d 288 (1971).
[Headnote 5]
The record establishes that the arresting officer, having been informed that three suspects
(Cranford, Smith and Lewis) had been loitering around a bar, investigated and found a gun in
the possession of Lewis. Believing that the three suspects matched descriptions of men who
had robbed a liquor store, the officer had probable cause to arrest Cranford for that robbery.
True, the officers were not certain that he was the man they were looking for, but certainty is
not requiredonly probable cause. Nootenboom v. State, supra, at 336, 418 P.2d at 493.
Appellant's remaining contentions are without merit.
Affirmed.
3

____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable E. M. (Al) Gunderson, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR
243.
____________
95 Nev. 474, 474 (1979) Gladstone v. Gregory
SCOTTY GLADSTONE and LORRAINE GLADSTONE, Appellants, v. STEPHEN D.
GREGORY and CHARLENE A. GREGORY, Respondents.
No. 9940
June 25, 1979 596 P.2d 491
Appeal from order denying motions for preliminary and permanent injunction, Eighth
Judicial District Court, Clark County; James A. Brennan, District Judge.
Action was brought to restrain neighbors from constructing second-story addition to their
home. The district court denied injunctive relief and plaintiffs appealed.
injunctive relief and plaintiffs appealed. The Supreme Court held that: (1) defendants had
burden to show changed conditions had so thwarted purpose of one-story building limitation
that it was of no appreciable value to other property owners and it would have been
inequitable or oppressive to enforce restriction; (2) evidence of changed conditions failed to
show purpose of restriction had been thwarted in any manner; (3) trial court had no basis for
finding purpose of one-story limitation was frustrated by community violations of other
restrictions; (4) homeowners' petition expressing desire to remove one-story building
limitation was ineffective to do so since it did not comply with amendment procedure
specified in declaration of restrictions, and (5) defendants assumed risk of increased damages
when they continued construction of second-story addition to their residence after notice of
plaintiff's objections and where they had constructive notice of building limitation.
Reversed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellants.
Houston & Moran, Las Vegas, for Respondents.
1. Covenants.
Changed conditions sufficient to justify nonenforcement of an otherwise valid restrictive covenant must
be so fundamental as to thwart original purpose of restriction.
2. Covenants.
Defendants, who had commenced construction of second-story addition to their home, had burden to
show changed conditions had so thwarted purpose of one-story limitation contained in declaration of tract
restrictions that it was of no appreciable value to other property owners and it would have been inequitable
or oppressive to enforce restriction.
3. Covenants.
Whether building height restriction was intended to protect privacy or view, evidence of changed
conditions failed to show purpose of restriction had been thwarted; neither increased monetary value of
properties without building height limitation nor less stringent zoning regulations justified removal of
restriction.
4. Covenants.
As with changed conditions outside restricted area, in order for community violations to constitute
abandonment of restrictive covenant, they must be so general and substantial as to frustrate original
purpose.
5. Covenants.
Trial court had no basis for finding purpose of one-story building limitation to be frustrated by
community violations of other restrictions where none of violations interfered with any other property
owner's privacy or view.
6. Trial.
Findings of fact can be no more definite than evidence justifies 7.
7. Covenants.
Homeowners' petition expressing their desire to remove one-story building limitation was ineffective to
do so since it did not comply with amendment procedure specified in declaration of restrictions.
8. Estoppel.
Equitable principle of relative hardship is available only to innocent parties who proceed without
knowledge or warning that they are acting contrary to others' vested property rights.
9. Covenants.
Defendants assumed risk of increased damages where they continued construction of second-story
addition to their residence after notice of neighbor's objections and where they had constructive notice of
one-story building limitation.
10. Covenants; Injunction
Where one takes land with notice of restrictions, equity and good conscience will not permit that person
to act in violation thereof, and one seeking to enjoin such a violation is entitled to relief regardless of
relative damage.
11. Covenants.
Generally, restrictive covenants may be enforced irrespective of amount of damages which will result
from breach; actual damages need not be shown.
OPINION
Per Curiam:
The parties in this action own adjacent residential properties located within a Las Vegas
subdivision referred to as Moore's Addition #1. The property owned by appellants Scotty
and Lorraine Gladstone is somewhat higher in elevation than that of respondents, providing
appellants with a view over the Gregory home toward Sunrise Mountain. In 1960, a document
entitled Declaration of Restrictions was filed in the Clark County Clerk's Office,
establishing several restrictions to run with the land, including a one-story height limitation
on buildings within Moore's Addition #1.
1
The Gregorys' title deed reflected the existence of
the restrictive covenants.
____________________

1
The Declaration of Tract Restrictions provides in pertinent part: Moore, Inc. . . . does hereby establish the
following restrictions, covenants and conditions subject to which said parcels of land, lots and portions thereof
shall be held, used, leased, sold and conveyed, each of which is for the benefit of said property and shall apply to
and bind the respective successors in interest and assigns of Declarant and their heirs, administrators, as follows:
1. No building other than one detached single family, one story, private residence, a private garage for the
use of the occupants of such residence and other usual and appropriate outbuildings, strictly incident to any
appurtenant to a private residence, shall be erected or maintained on any lot or plot in said subdivision. . . .
The document sets forth further various restrictions including: a minimum
On May 16,1977, the Gregorys commenced construction of a second-story addition to
their home. Appellant Scotty Gladstone noticed his neighbors' construction, contacted the
Clark County Building Department and on May 18, 1977, was informed that the Gregorys
were indeed adding a second story to their residence. On May 20, 1977, Gladstone sent Mr.
Gregory a notice objecting to the addition as contrary to recorded restrictions. The following
day, the men conversed twice regarding the addition, but Gladstone adhered to his objection.
On May 23, 1977, when construction continued, Gladstone initiated legal action in the district
court, seeking a temporary and permanent injunction to restrain the proposed addition. After
trial on June 15, 1977, the court concluded the Gregorys were charged with constructive
notice of the restrictive covenants contained in the recorded declaration, and further
concluded the construction violated the recorded restrictions. However, the court denied
injunctive relief based on changed conditions in the neighborhood and abandonment of the
restrictions by the homeowners within Moore's Addition #1.
The Gladstones appeal from the order denying injunctive relief, claiming there was no
substantial evidence supporting the district court's conclusions that: 1) changes in the area
were so great as to nullify the benefits of the restrictions, rendering their enforcement
inequitable; and 2) past violations of the restrictions by homeowners constituted an
abandonment of the restrictions.
____________________
floor area; set back requirements; prohibition of use of any outbuildings as a residence; a procedure requiring
approval by an architectural committee of plans for erecting any permanent structure as conforming,
harmonizing and not interfering with the reasonable enjoyment of any other lot; and utility and drainage
easements.
The document also provides:
13. The various restrictive measures and provisions of this declaration are declared to constitute actual
equitable covenants and servitudes for the protection and benefit of the lots or parcels in said subdivision and
failure by the declarant or any other person or persons entitled so to do to enforce any measure or provision upon
violation thereof shall not stop or prevent enforcement thereafter or be deemed a waiver of the right so to do.
14. These covenants, restrictions and agreements shall run with the land and shall continue in full force and
effect until nineteen ninety (1990), at which time same shall be automatically extended for successive periods of
ten (10) years, unless by a duly executed and recorded statement the then owners of fifty (50) percent or more of
said lots in said lots in said subdivision shown on the recorded map thereof elect to terminate or amend said
restrictions in whole or in part.
15. Each grantee of a conveyance or purchaser under a contract of agreement of sale by accepting a deed or
a contract of sale or agreement of purchase, accepts the same subject to all of the covenants[,] restrictions,
easements and agreements set forth in this Declaration and agrees to be bound by the same.
Damages for any breach of the terms, restrictions and provisions of this Declaration are hereby declared not
to be adequate compensation, but such breach and/or continuance thereof may be enjoined or abated by
appropriate proceedings of this Declarant, or by an owner or owners of any lot or lots adjoining said parcel or
lot.
so great as to nullify the benefits of the restrictions, rendering their enforcement inequitable;
and 2) past violations of the restrictions by homeowners constituted an abandonment of the
restrictions. We agree.
Viewed most favorably to respondents, the evidence establishes the following. Eighteen
years have passed since the restrictions were initially imposed. The restricted homes are
small, measured by current standards and would by enhanced in value by removal of the
one-story limitation. Zoning regulations permit two-story residences and such structures do
exist in the surrounding area. Several Moore's Addition #1 homeowners have enclosed their
garagesviolating another restriction
2
and have constructed porches and swimming pools,
all without submitting plans to an architectural committee, as required by the declaration. A
petition was introduced into evidence, purportedly signed by 85 of the 99 homeowners within
the subdivision, indicating their desire to relieve their property of the one-story limitation.
[Headnote 1]
1. Changed conditions
Changed conditions sufficient to justify nonenforcement of an otherwise valid restrictive
covenant must be so fundamental as to thwart the original purpose of the restriction. Western
Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624 (1972); Murphey v. Gray, 327 P.2d 751
(Ariz. 1958); Sandstrom v. Larsen, 583 P.2d 971 (Hawaii 1978); South Shore Homes Ass'n v.
Holland Holiday's, 549 P.2d 1035 (Kan. 1976).
[Headnote 2]
The respondents had the burden to show the changed conditions have so thwarted the
purpose of the one-story limitation that it is of no appreciable value to other property owners
and it would be inequitable or oppressive to enforce the restriction. Exchange Nat. Bank of
Chicago v. City of Des Plaines, 336 N.E.2d 8 (Ill.App. 1975). The purpose of the one-story
limitation is not stated in the declaration. The trial court found the height restriction
evidenced an intent to prevent observation from a higher elevation to the dwelling and
surrounding areas of adjoining property. In so finding, the court apparently rejected
appellants' theory that the purpose also included preservation of any view enjoyed by
adjoining property owners. Although the purpose of the height restriction involves a question
of fact, we doubt the reasonableness of the trial court's finding that view preservation
comprised no part of that purpose.
____________________

2
The court found the garage enclosures violated the restriction against using a garage or any other
outbuilding as a residence.
finding that view preservation comprised no part of that purpose. See Dickstein v. Williams,
93 Nev. 605, 571 P.2d 1169 (1977); King v. Kugler, 17 Cal. Rptr. 504 (Cal.App. 1961);
Foster v. Nehls, 551 P.2d 768 (Wash.App. 1976). Appellants' view over respondents' home is
neither panoramic nor of the highest quality, but it nevertheless exists, is of value to him, and
should be protected. Cf. Sandstrom v. Larson, supra (where view was diminished by matter
not within homeowner's control, remaining view was all the more valuable and worthy of
protection).
[Headnote 3]
Even assuming the height restriction was intended only to protect privacy and not view,
the foregoing evidence of changed conditions utterly fails to show that purpose has been
thwarted in any manner. The privacy benefits exist just as when the declaration was recorded.
See Murphey v. Gray, supra. Neither the increased monetary value of the properties without
the building height limitation nor the less stringent zoning regulations justify removal of the
restriction. Western Land Co. v. Truskolaski, supra; Murphey v. Gray, supra.
2. Abandonment
[Headnote 4]
As with changed conditions outside the restricted area, in order for community violations
to constitute an abandonment of a restrictive covenant they must be so general and substantial
as to frustrate the original purpose. Western Land Co. v. Truskolaski, supra; Holmquist v.
D-V, Inc., 563 P.2d 1112 (Kan.App. 1977).
[Headnotes 5, 6]
Other than the Gregory residence, all homes within Moore's Addition #1 remain one-story.
It may be questioned whether the few garage conversions and other continuous violations
of the declaration of restrictions by the homeowners were sufficiently general and substantial
to evidence an abandonment of the specific restrictions they violate.
3
However, even that
assumed, the violations would not amount to an abandonment of the building height
restriction since it has never been violated. Cf. Swaggerty v. Petersen, 572 P.2d 1309 (Or.
1977); 5 Powell on Real Property, 683 (right to enforce one restrictive covenant is not lost
by acquiescence in the violation of another). None of the violations interfered with any other
property owner's privacy (or view). Thus, the trial court had no basis for finding the purpose
of the one-story limitation was frustrated by community violations.
____________________

3
I.e. restriction against use of garage as a residence; restriction requiring submission of plans to and approval
thereof by an architectural committee prior to erecting any permanent structure. See n. 1., supra.
finding the purpose of the one-story limitation was frustrated by community violations.
Findings of fact can be no more definite than the evidence justifies. Robison v. Bate, 78 Nev.
501, 376 P.2d 763 (1962). Accordingly, the court erred in concluding the restriction was
abandoned.
[Headnote 7]
The homeowners' petition expressing their desire to remove the one-story limitation was
ineffective to do so since it did not comply with the amendment procedure specified in the
declaration. See n. 1, 14, supra. See also Ridge Park Home Owners v. Pena, 544 P.2d 278
(N.M. 1975); Hein v. Lee, 549 P.2d 286 (Wyo. 1976).
[Headnotes 8-10]
Respondents contend the trial court properly denied injunctive relief because the injury
they would incur if relief were granted is greatly disproportionate to the benefits which would
inure to appellants. We reject this contention. The equitable principle of relative hardship is
available only to innocent parties who proceed without knowledge or warning that they are
acting contrary to others' vested property rights. Foster v. Nehls, supra. Respondents clearly
assumed the risk of increased damages when they continued construction after notice of
Gladstone's objections. Id. Moreover, respondents had constructive notice of the building
limitation. Where one takes land with notice of restrictions, equity and good conscience will
not permit that person to act in violation thereof, and one seeking to enjoin such a violation is
entitled to relief regardless of relative damage. Sandstrom v. Larsen, supra; Swaggerty v.
Petersen, supra; McDonough v. W. W. Snow Construction Co., Inc., 306 A.2d 119 (Vt.
1973); Holmquist v. D-V, Inc., supra.
In these circumstances, the court would balance equities only if appellant Gladstone had
engaged in some inequitable conduct. Welshire, Inc. v. Harbison, 91 A.2d 404 (Del. 1952);
Evangelical Lutheran Church v. Sahlem, 172 N.E. 455 (N.Y. 1930); 5 Powell on Real
Property 685. Respondents do not contend appellants have acted inequitably.
[Headnote 11]
Finally, respondents argue appellants are not entitled to an injunction because they have
shown no irreparable harm and money damages are an adequate remedy. Generally,
restrictive covenants may be enforced irrespective of the amount of damages which will result
from a breach. Payette Lakes Protective Ass'n v. Lake Reservoir Co., 189 P.2d 1009 (Idaho
1948).
Actual damages need not be shown. Reetz v. Ellis, 186 So.2d 915 (Ala. 1966); 7 Thompson
on Real Properly 187 3171. See Robison v. Bate, supra. See also n. 1, final , supra.
Respondents' reliance on Merideth v. Washoe Co. Sch. Dist., 84 Nev. 15, 435 P.2d 750 (
1968) is misplaced. Merideth recognized restrictive covenants as interests in property or
property rights to be accorded full legal recognition and protection. In that case, we held that
extinguishment of such a right by public authority for public use is compensable. We did not
hold money damages an adequate remedy where a restrictive covenant is violated by a private
individual charged with notice of the restriction.
The order denying appellants' motions for temporary and permanent injunction is reversed
and the cause remanded with instructions to enter the appropriate order.
____________
95 Nev. 481, 481 (1979) Golden v. State
MAX MORTON GOLDEN, Appellant, v. THE STATE
No. 8650
June 26, 1979 596 P.2d 495
Appeal from judgment of conviction, Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
Defendant was convicted in the district court of possession of a controlled substance and
conspiracy to violate the Controlled Substances Act. Defendant appealed. The Supreme
Court, Merlyn M. Hoyt, D. J., held that search of an air freight shipment conducted by an
airline employee was a private search and lacked the significant state involvement required to
place it within the purview of the Fourth Amendment.
Affirmed.
William N. Dunseath, Public Defender, Laurence W. McNabney, and Michael B.
McDonald, Deputy Public Defenders, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R.X. Dunlap, District Attorney,
Kathleen M. Wall, and John L. Conner, Deputy District Attorneys, Washoe County, for
Respondent.
Searches and Seizures.
Search of air freight shipment conducted by airline employee was private search and lacked significant
state involvement required to place it within purview of Fourth Amendment, U.S.C.A.Const. Amend. 4.
OPINION
By the Court, Hoyt D J.
1

Appellant was charged by indictment with possession of a controlled substance and
conspiracy to violate the controlled substances act (NRS 453.336; NRS 453.401). Prior to
trial, he brought a motion to suppress evidence, which was denied by the district court.
Subsequently, the evidence was introduced at trial, and appellant was convicted by jury
verdict. In this appeal appellant contends his conviction should be reversed because the
district court erroneously denied the motion to suppress. We disagree.
During the early morning of August 3, 1973, appellant delivered a large black suitcase to
Bernard Bork, a United Airlines customer service agent at the Los Angeles Air Freight
Terminal. Appellant advised Bork that the suitcase had been left behind and he was shipping
it to a friend in Reno. Thereafter, Bork's suspicion was aroused because of the appellant's
reluctance and apparent failure to accurately fill out the shipper's form; his suspicious dress;
the fact that he paid cash for the shipment; and, his generally evasive and apprehensive
manner. Based on his suspicion, Bork opened the suitcase, and among its contents found two
plastic bags filled with a large quantity of white pills. These pills were later identified as
amphetamine tablets.
The only cognizable issue in this appeal is whether there was sufficient government
involvement in Bork's search of appellant's air freight shipment to invoke constitutional
protection under the Fourth Amendment.
In our view, a search of an air freight shipment conducted by an airline employee is a
private search and lacks the significant state involvement required to place it within the
purview of the Fourth Amendment. See United States v. Gumerlock, 590 F.2d 794 (9th Cir.
1979); United States v. Pryba, 502 F.2d 391 (D.C.Cir. 1974).
____________________

1
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Merlyn H. Hoyt, Judge of the
Seventh Judicial District, to sit in place of The Honorable Gordon Thompson, Justice, who was disqualified.
Accordingly, the district court properly denied the motion to suppress and the judgment of
conviction is affirmed.
____________
95 Nev. 483, 483 (1979) McAffee v. Garrett Freightlines, Inc.
DALE O. McAFFEE, Appellant, v. GARRETT
FREIGHTLINES, INC., Respondent.
No. 9814
June 28, 1979 596 P.2d 851
Appeal from an order granting Judgment Notwithstanding the Verdict, Eighth Judicial
Employee brought negligence action against employer for injuries sustained in accident
occurring during course of employment. The district court entered judgment notwithstanding
verdict in favor of the employer, and the employee appealed. The Supreme Court held that:
(1) where the employer carried private worker's compensation insurance pursuant to provision
of Nevada Industrial Insurance Act excluding from coverage employments covered by certain
private disability and death benefit plans, rights and obligations of the parties were
determined from the policy and the Act had no governing effect even though amounts of
compensation and other benefits were measured by the law, and thus employee could
maintain common-law action for damages, and (2) record did not establish that the employee
was estopped from maintaining the action while retaining benefits received under the private
worker's compensation insurance policy even though such policy included endorsement that
Payment shall be made only on condition that the employee . . . shall execute a full legal
release of all claims against the insured as may be required by the Exchange. . . .
Reversed.
Steffen & Simmons, Las Vegas, for Appellant.
Beckley, Singteton, DeLanoy & Jemison, Chartered, Las Vegas, for Respondent.
Where employer is subject to provisions of Nevada Industrial Insurance Act, either through compulsion
or election, and employee suffers injury by accident arising out of and in course of
employment, the Act provides employee's exclusive remedy and relieves complying
employer from common-law liability; however, where the Act is not applicable,
because either the injury or the employment is not within its coverage formula, the
Act does not disturb any existing remedy.
injury by accident arising out of and in course of employment, the Act provides employee's exclusive
remedy and relieves complying employer from common-law liability; however, where the Act is not
applicable, because either the injury or the employment is not within its coverage formula, the Act does not
disturb any existing remedy. NRS 616.270, 616.370.
Where employer carried private worker's compensation insurance pursuant to provision of Nevada
Industrial Insurance Act excluding from coverage employments covered by certain private disability and
death benefit plans, rights and obligations of the parties were determined from the policy and the Act had
no governing effect even though amounts of compensation and other benefits were measured by the law,
and thus the employee could maintain common-law action for damages alleging negligence against
employer in connection with injury sustained in accident during course of employment. NRS 616.255,
subd. 2, 616.270, 616.370.
In employee's negligence action against employer for injuries sustained during course of employment,
record did not establish that the employee was estopped from maintaining the action while retaining
benefits received under private worker's compensation insurance policy even though such policy included
endorsement that Payment shall be made only on condition that the employee . . . shall execute a full legal
release of all claims against the insured as may be required by the Exchange . . . NRS 616.255, subd. 2.
OPINION
Per Curiam:
In August, 1970, Dale O. McAffee was injured in the course of his employment when a
heavy crate fell on him, crushing his leg. His employer, respondent Garrett Freightlines, Inc.,
carried private worker's compensation insurance, pursuant to NRS 616.255(2), which
provides:
[the Nevada Industrial Insurance Act] shall not be construed to apply to: . . .
(2) Employments covered by private disability and death benefit plans which
comprehend payments of compensation of equal or greater amounts for the purposes
covered in this chapter, and which have been in effect for 1 year prior to July 2, 1947.
The parties stipulate that the policy in this case was timely reviewed by the Nevada Industrial
Commission and determined to be in conformity with the specifications of NRS 616.255(2).
Appellant McAffee collected compensation benefits under the policy for medical
expenses and loss of income.1 He then brought this common law action for damages
alleging negligence against Garrett Freightlines.
the policy for medical expenses and loss of income.
1
He then brought this common law
action for damages alleging negligence against Garrett Freightlines. Prior to trial respondent
moved for summary judgment and was denied. Respondent also made a motion for directed
verdict which the court likewise denied. At conclusion of trial, the jury found against Garrett
Freightlines, awarding McAffee $25,000. Garrett then moved for Judgment Notwithstanding
the Verdict on the ground that the Workmen's Compensation Act provides the exclusive
remedy for McAffee's injuries. The motion was granted. McAffee appeals from the order
granting judgment n.o.v., claiming the Nevada Industrial Insurance Act is inapplicable to the
employment and thus does not preclude his maintenance of the negligence action against
Garrett. We agree.
[Headnote 1]
Where an employer is subject to the provisions of the N.I.I.A., either through compulsion
or election, and the employee suffers injury by accident sustained arising out of and in the
course of employment, the Act provides the employee's exclusive remedy and relieves the
complying employer from common law liability. NRS 616.270, 616.370
2
; 2A Larson,
Workmen's Compensation Law 65.10. However, where the Act is not applicable, because
either the injury or the employment is not within its coverage formula, the Act does not
disturb any existing remedy. See Larson, supra; 81 AmJur2d, Workmens Compensation 53.
____________________

1
Appellant collected $4,810.21 for medical expenses and $4,772.80 for loss of income. It is not disputed that
these amounts are at least as great as NIC payments would have been for the same losses had Garrett carried
State Worker's Compensation Insurance.

2
1. Every employer within the provisions of this chapter, and those employers who shall accept the terms of
this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure
compensation according to the terms, conditions and provisions of this chapter for any and all personal injuries
by accident sustained by an employee arising out of and in the course of the employment.
. . .
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.
1. The rights and remedies provided in this chapter for an employee on account of an injury by accident
sustained arising out of and in the course of the employment shall be exclusive, except as otherwise provided in
this chapter, of all other rights and remedies of the employee, his personal or legal representatives, dependents or
next of kin, at common law or otherwise, on account of such injury.
The NIC determined Garrett Freightlines' private policy as conforming with NRS 616.255,
which expressly precludes application of the Act to employers carrying private insurance
meeting that section's requirements. We think the legislature, in enacting NRS 616.255,
intended that so long as employees were already adequately protected by employer's private
plans, the State would not interfere with employer-employee rights, leaving those employers
the option to continue using private liability protection. Prior to the Act, employers could
protect themselves against common law liability either by the terms of a private Worker's
Compensation Policy itself, or through other third-party liability insurance. Employers opting
to continue private coverage pursuant to NRS 616.255 are left in the same legal position; they
must secure adequate private protection or be subject to common law suits and stand liable
for damages assessed against them.
[Headnote 2]
Private plans covering NRS 616.255 employments are thus comparable to voluntary
Worker's Compensation, which is purely a matter of contract. The rights and obligations of
the parties are determined from the policy and the Worker's Compensation Law has no
governing effect, even though the amounts of compensation and other benefits are measured
by the law. United States Fidelity & Guaranty Co. v. Valdez, 390 S.W.2d 485 (Tex.Civ.App.
1965). But see Lowe v. Socony Mobil Oil Company, 222 F. Supp. 624 (D.Ore. 1963) (where
private contract incorporated by reference all provisions of the state worker's Compensation
Act, the Act's exclusive remedy provision precluded employee's suit except for benefits under
contract).
[Headnote 3]
The Nevada Voluntary Endorsement in the policy states: Payment Shall be made only on
condition that the employee . . . shall execute a full legal release of all claims against the
insured as may be required by the Exchange. . . . Relying on this language, respondent
Garrett Freightlines argues appellant McAffee is estopped from maintaining the negligence
action while retaining benefits received under the policy. However, respondent never raised
this issue by answer nor stated it as a ground for the motion for summary judgment, directed
verdict, or judgment n.o.v., and we note that NRCP Rule 7(b) contemplates that grounds for
motions shall be stated with particularity. Even had the issue been properly pleaded and stated
as a ground for the post-judgment motion, we would nevertheless reject respondent's
assertion that the order granting judgment n.o.v. can be affirmed on the basis of estoppel.
judgment n.o.v. can be affirmed on the basis of estoppel.
Employees claiming under the N.I.I.A. are not required to execute a blanket legal release.
Thus, we question whether a private plan can include such a condition precedent to collection
of benefits and still satisfy the NRS 616.255 requirement that it comprehend payment of
equal or greater benefits than contemplated by the N.I.I.A. We need not reach that issue,
however, since the record is barren of evidence that the Exchange ever requested a release.
Neither does there appear any explanation of why no release was obtained. Respondent cites
no apposite authority for implying or compelling a release under these circumstances. There
is no indication that McAffee was ever notified that his acceptance of benefits would be
treated by the Exchange as a release. The record is insufficient even to determine if that was
the intent of the Exchange in making initial payments. For all that appears of record,
appellant might reasonably have anticipated that such payments were merely an advance on
whatever monies might be found owing to him.
Absent pertinent authority and adequate evidence of circumstances under which the
payments were made, the trial court could not properly have found that appellant accepted the
payments with knowledge that they were tendered with the expectation that appellant would
give up his common law right of action.
The order granting judgment n.o.v. is reversed with instructions to enter judgment for
appellant in the sum of $25,000, with a set-off of $9,583.01, the amount of compensation
benefits appellant previously collected, interest to run on $15,416.99 from the date of verdict,
and lawful costs of suit.
____________
95 Nev. 487, 487 (1979) Lewis v. State
JAMES HENRY LEWIS, Appellant, v. THE STATE
No. 10215
June 28, 1979 596 P.2d 854
Defendant was convicted in district court of first-degree murder, and he appealed. The
Supreme Court held that it was not error to deny new trial on the basis of alleged newly
discovered evidence.
95 Nev. 487, 488 (1979) Lewis v. State
error to deny new trial on the basis of alleged newly discovered evidence.
Affirmed.
Manos & Cherry, Las Vegas, for Appellant.
Criminal Law.
Trial Court did not err in denying new trial in murder prosecution on basis of allegedly newly discovered
evidence contained in affidavit executed by co-defendant exculpating defendant from any participation in
the crime.
OPINION
Per Curiam:
James Henry Lewis and his co-defendant, Bonnie Fred Cranford, were convicted, by jury
verdict, of murder in the first degree. Appellant Lewis maintains that we must reverse his
conviction because (1) the trial court improperly admitted into evidence a videotape and
testimony regarding its contents, (2) he was illegally arrested, (3) he was denied the effective
assistance of counsel due to the trial court's refusal to appoint co-counsel, and (4) certain
comments in the prosecution's closing arguments constituted misconduct. Upon the authority
of and for the reasons stated in Cranford v. State, 95 Nev. 471, 596 P.2d 489 (1979), we
reject appellant's arguments.
Lewis additionally contends that the trial court erred in not granting a new trial in the basis
of newly discovered evidence, specifically, an affidavit executed by a co-defendant
exculpating Lewis from any participation in the crime. This contention also rejected as
meritless. See McLemore v. State, 94 Nev. 237, 577 P.2d 871 (1978).
Affirmed.
____________
95 Nev. 489, 489 (1979) Gur-Kovic v. State Contractors Bd.
GEORGE GUR-KOVIC, VERA GUR-KOVIC, LEE JOSEPH COMPANY, SKY LAKE
POOLS, INC., and SKY LAKE POOL CENTER, Appellants, v. STATE CONTRACTORS
BOARD, WAYNE T. DONNELS, M. D. HANCOCK, A. B. SOLARI, R. L.
MENDENHALL, LUTHER KITCHEN, JOHN J. ROSE, STUART MASON,
ROBERT L. STOKER, Respondents
No. 9858
June 28, 1979 596 P.2d 850
Appeal from judgment, First Judicial District Court, Carson City; Peter I. Breen, Judge.
Appeal was taken from judgment of the district court upholding order of official reprimand
entered by the State Contractors Board. The Supreme Court held that the Board's decision
reprimanding contractor for acting beyond the scope of its license by bidding on contract in
excess of monetary limit placed on its license by the Board was proper.
Affirmed.
David Dean, Reno, for Appellants.
Cooke, Roberts & Reese, Reno, for Respondents.
1. Licenses.
In reviewing decision of State Contractors Board reprimanding contractor for acting beyond the scope of
his license, function of courts was to review evidence presented at hearing to determine whether the
Board's decision was based on substantial evidence and to ascertain whether the Board in fact acted
arbitrarily, capriciously, or contrary to law. NRS 624.3015.
2. Licenses.
Record supported decision of the State Contractors Board to reprimand contractor for acting beyond the
scope of its license by submitting bid for a contract in excess of monetary limit placed on its license by the
Board, despite contention that owners of contracting companies, one of which was licensed swimming pool
contractor and one of which was a seller of swimming pool equipment, had mistakenly bid for their two
companies in one document resulting in bid exceeding contractor's limit. NRS 624.220, 624.3015.
OPINION
Per Curiam:
Appellants George and Vera Gur-Kovic are the owners and operators of two companies:
Sky Lake Pools, Inc., a corporation engaged in the business of constructing swimming pools;
and Sky Lake Pool Center, a seller of swimming pool supplies, equipment and
merchandise.
and Sky Lake Pool Center, a seller of swimming pool supplies, equipment and merchandise.
Both companies have the same address, but use different stationery. Vera Gur-Kovic serves
as secretary and bookkeeper for both companies.
Sky Lake Pools, Inc. is a swimming pool contractor licensed by the State of Nevada under
NRS ch. 624. Pursuant to NRS 624.220, Sky Lake was limited in its operation to $75,000 for
any one project.
1
On July 7, 1975, Vera Gur-Kovic, as secretary of Sky Lake Pools, Inc.,
prepared and signed written bids to subcontract for construction of the swimming pool for the
planned Northwest Park Swimming Pool Complex in Reno, Nevada. These bids were
submitted to a number of general contractors interested in submitting their own bids to the
City of Reno. Sky Lake Pools, Inc., submitted a bid of $128,533.48, which included labor,
materials and equipment.
On July 17, 1975, after the deadline for submitting bids had passed, Sky Lake Pools, Inc.,
submitted a new bid of $74,000, not including equipment, to Johnson and Johnson
Development Company, a general contractor bidding on the entire project. Sky Lake Pool
Center also submitted a bid, on the same day and to the same company, offering to furnish the
equipment for the pool for $48,080.
Subsequently, the State Contractor's Board charged Sky Lake Pools, Inc., with acting
beyond [the] scope of [its] license in violation of NRS 624.3015, [by] contracting for a sum
for one construction contract or project in excess of the limit placed on the license by the
board.
2

At a hearing on the matter, conducted by the Board on July 31, 1975, appellants contended
they had mistakenly bid for their two companies in one document, but admitted that the bid
submitted was in excess of their limit. At the conclusion of the hearing, the Board found that
Sky Lake had violated NRS 624.3015 and entered an order of official reprimand. The Board's
decision was upheld by the First Judicial District Court, and this appeal followed.
____________________

1
2. The board may limit the field and scope of the operations of a licensed contractor by establishing a
monetary limit on a contractor's license, and such limit shall be the maximum contract a licensed contractor shall
undertake under a specific contract on a single construction site or subdivision site for a single client.

2
The following acts, among others, constitute cause for disciplinary action under NRS 624.300:
1. Acting in the capacity of a contractor beyond the scope of the license, or contracting for a sum for one
construction contract or project in excess of the limit placed on the license by the board.
[Headnote 1]
In reviewing the Board's decision, the function of this court, and the district court, is to
review the evidence presented at the hearing to determine whether the Board's decision was
based upon substantial evidence, and to ascertain whether the Board in fact acted arbitrarily,
capriciously, or contrary to the law. Turk v. Nevada State Prison, 94 Nev. 101, 575 P.2d 599
(1978); Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).
[Headnote 2]
We have reviewed the record and we conclude that the Board's decision was proper.
____________
95 Nev. 491, 491 (1979) Shere v. Davis
HAROLD E. SHERE, Appellant, v. LEON D.
DAVIS, Jr., Respondent.
No. 10126
June 28, 1979 596 P.2d 499
Appeal from an order granting a motion for new trial, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Action was brought to recover for injuries sustained in rear-end motor vehicle collision.
The district court granted a new trial, and defendant appealed. The Supreme Court held that
where properly instructed on measure of damages the jury failed to award any medical costs
other than emergency room charge, although there was undisputed evidence that plaintiff
suffered injuries for which he incurred further medical bills, case was proper one for a new
trial, and because of inter-relationship of liability and damage issues case was not a proper
one for a new trial on damages issue only or mere additur, notwithstanding that motion
requested only additur or a new trial limited to damages issue.
Affirmed.
Cromer, Barker & Michaelson, and Henry H. Rawlings, Jr., Las Vegas, for Appellant.
Pomeranz & Crockett, Las Vegas, for Respondent.
1. Damages.
Injured motorist was entitled to recover from tort-feasor for past and future medical expenses as
well as past and future pain and suffering endured as a result of the accident.
95 Nev. 491, 492 (1979) Shere v. Davis
future medical expenses as well as past and future pain and suffering endured as a result of the accident.
2. New Trial.
Where jury rendered a verdict for plaintiff but although properly instructed as to measure of damages,
failed to award plaintiff any medical costs other than the emergency room charges and there was unrefuted
evidence that plaintiff suffered injuries for which he incurred further medical bills, the case was a proper
one for a new trial; however, due to interrelationship of liability and damage issues the case was not a
proper one for a new trial limited to damages or mere additur, and trial court had power to grant a new trial
on all issues, notwithstanding that plaintiff's motion requested only additur or a new trial limited to
damages issued. NRCP 59(a)(5).
OPINION
Per Curiam:
Leon Davis, Jr. brought an action against appellant Harold Shere to recover damages for
personal injuries suffered as a result of an automobile accident that occurred when a vehicle
driven by Shere struck the rear of Davis's automobile. Davis alleged the accident caused
injury to his knee, neck and lower back, and sought recovery of medical expenses incurred for
past treatment of those injuries as well as future expenses for prescribed physical therapy.
[Headnote 1]
The court properly instructed the jury that if their verdict was for Davis, they should award
past and future medical expenses as well as past and future pain and suffering endured as a
result of the accident. The jury returned a verdict for Davis, but awarded him only $89.00, the
cost of the initial emergency room visit. No damages were given for stipulated medical bills
incurred for later treatment of any of the injuries, nor for pain and suffering or permanent
disability. Davis then made a motion for additur, or in the alternative, a new trial limited to
the issue of damages. The court granted Davis a new trial on all issues. Shere appeals
claiming the trial court erred in so doing. We disagree.
Appellant Shere strenuously argues there was substantial conflicting evidence as to
whether the accident caused the lower back injury,
1
and thus the verdict should not be
disturbed.
____________________

1
We question the substantiality of such evidence. Fox v. Cusick, 91 Nev. 218, 533 P.2d 466 (1975), and
McKenna v. Ingersoll, 76 Nev. 169, 350 P.2d 725 (1960), cited by appellant, are inapposite to the case at bar. In
both cases the jury rendered a verdict for the defendant. In Fox, the lower court granted a new trial on the basis
that the verdict was against the weight of evidence. Sufficiency of the evidence was no longer a ground for new
trial under NRCP
95 Nev. 491, 493 (1979) Shere v. Davis
However, even assuming no liability for the back injury, Shere presented no evidence refuting
causation of the knee and neck injuries, for which part of the medical bills are attributed.
[Headnote 2]
The jury rendered a verdict for Davis, but although properly instructed on the measure of
damages, failed to award him any medical costs other than the emergency room charge. Since
there was unrefuted evidence that as a result of the accident, Davis suffered injuries for which
he incurred further medical bills, the jury, in failing to award Davis any of those costs,
disregarded the court's instructions and damages were clearly inadequate. Cf. Drummond v.
Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975). Because of the jury's disregard for
instructions, the case was a proper one for new trial. NRCP Rule 59(a)(5); Price v. Sinnott, 85
Nev. 600, 460 P.2d 837 (1967). However, due to the interrelationship of the liability and
damage issues, the case was not a proper one for a new trial limited to damages. See Myers v.
Smith, 321 P.2d 551 (Wash. 1958); Keogh v. Maulding, 125 P.2d 858 (Cal.App. 1942). Thus,
additur was also inappropriate. See Drummond v. Mid-West Growers, supra.
2
Although the
motion requested only additur or a new trial limited to the issue of damages, the trial court
had the power to grant a new trial on all issues. See Flores v. Brown, 248 P.2d 922 (Cal.
1952); Toshio Hamasaki v. Flotho, 248 P.2d 910 (Cal. 1952). It properly did so.
Affirmed.
____________________
Rule 59. We perceived no plain error or manifest injustice. Because evidence showed plaintiff had injured his
back long before the accident, had recurring back problems, and had again injured his back after the accident but
before trial, we held it was within the province of the jury to decide that an accident occurred without
compensable injury. Thus, we were unable to find the jury had disregarded the court's instructions. In McKenna,
the facts indicated the accident involved only a slight tap of defendant's vehicle, and an expert testified, based
on x-rays, that he had no doubt plaintiff's condition existed prior to the accident. Thus, there was substantial
conflicting evidence as to whether or not the accident was the cause of plaintiff's injury or of the aggravation of
any pre-existing condition. In this case, however, the collision created considerable impact, causing substantial
damage to both vehicles. The only conflicting evidence of causation of the injuries was the defense doctor's
testimony that, years after the accident, he could not positively say whether Davis's back disability was caused
by the accident as opposed to natural causes.

2
In Drummond we held additur may be appropriate where the trial court determines: (1) that damages are
clearly inadequate; and (2) that the case would be a proper one for granting a new trial limited to the issue of
damages.
____________
95 Nev. 494, 494 (1979) McKinney v. State
WILLIAM McKINNEY, Appellant, v. THE STATE
No. 10368
June 28, 1979 596 P.2d 503
Appeal from conviction of first degree murder by jury verdict, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
The Supreme Court held that there was sufficient evidence to support jury's verdict.
Affirmed.
James O. Porter, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, H.
Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Homicide.
Defendant was criminally liable for acts of his cohorts for killing of victim, although not intended by
defendant, where killing was natural and probable consequences of planned robbery.
2. Criminal Law.
Where there is substantial evidence to support jury's verdict, Supreme Court will not disturb verdict nor
set aside judgment.
OPINION
Per Curiam:
Appellant was convicted of first degree murder by jury verdict and sentenced to life with
the possibility of parole. On appeal appellant claims that there was insufficient evidence to
support the jury's verdict. We disagree.
[Headnote 1]
The victim of this crime was killed during the theft of an automobile which had been
loaned to him by his employer. During a video-taped conversation with undercover officers
working Operation Switch, a decoy fence business operated by law enforcement
agencies, McKinney admitted that he had planned the theft and had driven his accomplices to
the location where they stole the car. Other evidence substantiates the conclusion that
appellant participated in a common scheme to steal the car. The killing of the victim,
although not intended by the appellant, was a natural and probable consequence of the
planned robbery. Cf. State v. Cushing, 61 Nev. 132, 14S
95 Nev. 494, 495 (1979) McKinney v. State
the planned robbery. Cf. State v. Cushing, 61 Nev. 132, 148-149, 120 P.2d 208, 216 (1941).
Therefore, McKinney is criminally liable for the acts of his cohorts. McKinney v. Sheriff, 93
Nev. 70, 560 P.2d 151 (1977); Commonwealth v. DeMoss, 165 A.2d 14 (Pa. 1960), cert.
denied, 365 U. S. 822 (1961).
[Headnote 2]
Where, as here, there is substantial evidence to support the jury's verdict, this court will
not disturb the verdict nor set aside the judgment. Stewart v. State, 94 Nev. 378, 580 P.2d 473
(1978); Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
Affirmed.
____________
95 Nev. 495, 495 (1979) Watson v. Watson
JOHN M. WATSON, Appellant, v. MARGARET
WATSON, Respondent.
No. 10511
June 28, 1979 596 P.2d 507
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Ex-wife brought action seeking to enforce property settlement agreement against
ex-husband. The district court awarded ex-wife relief sought, and ex-husband appealed. The
Supreme Court, Batjer, J., held that ex-wife's cohabitational relationship would not be
defense to her action to enforce property settlement agreement which provided in part that
husband would pay wife sum of $600 per month until her death or remarriage.
Affirmed.
McDonald, Carano, Wilson, Bergin & Bible, and Samuel P. McMullen, Reno, for
Appellant.
Gordon W. Rice, Reno, for Respondent.
1. Husband and Wife.
Ex-wife's cohabitational relationship would not be defense to ex-wife's action against ex-husband seeking
to enforce property settlement agreement which provided that [t]he Husband agrees to pay the Wife the
sum of $600.00 per month until her death or remarriage. NRS 122.010, subd. 1.
2. Contracts.
Courts are bound by language which is clear and free from ambiguity and cannot, using guise of
interpretation, distort plain meaning of agreement.
OPINION
The parties were married in 1955 and divorced in 1970. Shortly before the judgment of
divorce was granted, the parties entered into a property settlement agreement. In granting the
divorce the district court ordered that the agreement should survive as an independent
document and not merge into the judgment of divorce.
(Headnote 1]
The agreement provides in part that [t]he Husband agrees to pay the Wife the sum of
$600.00 per month until her death or remarriage. Appellant complied with the agreement
until June, 1976, when payments ceased. In October, 1976, respondent filed suit seeking the
money due. Appellant defended by alleging that respondent had remarried since she was
cohabiting with another man outside of wedlock. Although the district court found that the
alleged cohabitational relationship had existed for several years, it held that such relationship
was not a defense to the action. We agree.
Appellant contends that respondent's living arrangement constitutes a de facto marriage,
thereby relieving him of his obligation under the agreement. Such an interpretation cannot be
sustained in a state which does not recognize common law marriages. NRS 122.010(1);
McAnerney v. McAnerney, 334 A.2d 437 (Conn. 1973).
1
See also Riddle v. Riddle, 230
S.E.2d 809 (N.C.App. 1977).
[Headnote 2]
The word remarriage is readily understood and is not ambiguous. Courts are bound by
language which is clear and free from ambiguity and cannot, using the guise of interpretation,
distort the plain meaning of an agreement. Reno Club v. Young Investment Co.,
____________________

1
Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties
capable in law of contracting is essential. Consent alone will not constitute marriage; it must be following by
solemnization as authorized and provided by this chapter.
See also Powell v. Rogers, 496 F.2d 1248 (9th Cir. 1974) cert. denied 419 U.S. 1032 (1974).
Club v. Young Investment Co., 64 Nev. 312, 323-324, 182 P.2d 1011, 1016-1017 (1947);
Talbot v. Nevada Fire Ins. Co., 52 Nev. 145, 149, 283 P. 404, 405 (1930).
Appellant's remaining contentions are either unsupported by the evidence or fail to be
supported by any relevant authority.
2
Holland Livestock v. B & C Enterprises, 92 Nev. 473,
553 P.2d 950 (1976).
The judgment of the district court awarding respondent the relief sought is affirmed.
3

____________________

2
Appellant relies on cases dealing with modifiable alimony decrees. Such cases are inapposite to the case at
hand. Cf. Jones v. Jones, 86 Nev. 879, 478 P.2d 148 (1970); Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962).

3
Compare Jones v. Jones, 93 Nev. 545, 571 P.2d 103 (1977).
____________
95 Nev. 497, 497 (1979) King v. State
DONNA CLAIRE KING, Appellant, v. THE STATE
Nos. 10169 and 10577
June 28, 1979 596 P.2d 501
Consolidated appeals from a judgment of conviction and from an order denying a motion
for new trial, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of murder, and she appealed. The Supreme
Court, Batjer, J., held that: (1) the evidence was sufficient to establish that defendant
participated in the premeditated murder of her husband; (2) in absence of any proof of
perjury, the fact that a detective working for the defense had recorded a conversation with
defendant's 15-year-old stepdaughter wherein the stepdaughter stated that she had lied at
defendant's trial did not require a new trial, and (3) where the stepdaughter's testimony was
not so crucial that a different result would be required if she were impeached, the district
court did not abuse discretion when it refused to grant a new trial.
Affirmed.
William S. Skupa and John P. Lukens, Las Vegas, for Appellant.
95 Nev. 497, 498 (1979) King v. State
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, H.
Leon Simon, Chief Appellate Deputy District Attorney, L. J. O'Neale, Deputy District
Attorney, Clark County, for Respondent.
1. Homicide.
Evidence that defendant was not only present when her husband was murdered by a hatchet blow to the
head but had induced her husband into a prone position and was massaging him when the fatal blow was
struck by coconspirator with whom defendant was apparently in love and that, after the murder, defendant
washed the hatchet, dressed the victim and began to clean up the blood-stained residence while her
coconspirator attempted to make it appear that the victim had died in an auto accident was sufficient to
establish that defendant participated in the premeditated murder of her husband.
In absence of any proof that defendant's 15-year-old stepdaughter committed perjury at defendant's
murder trial and where the setting in which the recorded conversation took place was not such as to ensure
truthfulness, the fact that a detective working for the defense had secretly recorded a conversation wherein
the stepdaughter stated that she lied at the trial was not sufficient to create a due process requirement that
defendant be given a new trial. U.S.C.A.Const. Amends. 5, 14.
3. Criminal Law.
Newly discovered impeachment evidence may be sufficient to justify granting a new trial if the witness
impeached is so important that impeachment would necessitate a different verdict.
4. Criminal Law.
Where review of the evidence at murder trial revealed that testimony of defendant's 15-year-old
stepdaughter was not so crucial that a different result would be required if the stepdaughter were
impeached and where, at hearing on defendant's motion for a new trial based on alleged newly discovered
evidence consisting of stepdaughter's statement that she had lied at the trial, the stepdaughter affirmed her
original trial testimony and denied having told a private investigator that she had lied at the trial, the district
court did not abuse discretion in denying the new trial motion.
OPINION
Appellant was convicted by jury verdict of the murder of her husband and sentenced to life
in prison without the possibility of parole. She claims on appeal No. 10169 that there was
insufficient evidence to support the verdict and on appeal No. 10577 that the district court
erred in denying her motion for a new trial. We disagree.
[Headnote 1]
No. 10169. During the early months of 1975 the victim, appellant and one Gary Krueger
all resided in a trailer in the Las Vegas area.
95 Nev. 497, 499 (1979) King v. State
appellant and one Gary Krueger all resided in a trailer in the Las Vegas area. On the night of
March 4, 1975, the victim was murdered by a hatchet blow to the head. Appellant and
Krueger were indicted for the murder. In a separate trial Krueger was convicted of first degree
murder. See Krueger v. State, 92 Nev. 749, 557 P.2d 717 (1976).
The evidence adduced at trial was sufficient to justify the jury's conclusion that appellant
participated in the premeditated murder of James King. She was not only present in the trailer
during the murder, but she had also induced the deceased into a prone position and was
massaging him when Krueger struck the fatal blow. After the murder, appellant washed the
hatchet, dressed the deceased, and began to clean up the blood-stained residence. Krueger
placed the body in the victim's car and drove to a remote area where Krueger ran the car down
an embankment in order to make the cause of death appear to be an auto accident. Evidence
was also presented which tended to prove that appellant had planned to have the King
children away from the home at the time of the murder. Other evidence established that the
motive for the murder was her dislike for her husband and her love for Krueger.
Disregarding the irrelevant evidence admitted by the trial court, we conclude that there is
sufficient evidence to support the jury's verdict. This court will not disturb such a verdict.
Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978); Sanders v. State, 90 Nev. 433, 529 P.2d
206 (1974).
[Headnote 2]
No. 10577. Shortly after the appellant's trial, a detective working for the defense secretly
recorded a conversation with Debbie King, the fifteen-year-old stepdaughter of the appellant.
On tape Debbie stated that she had lied at the trial. Appellant moved for a new trial based
upon this newly discovered evidence. At the hearing, Debbie, under oath, denied making the
statement to the detective and affirmed her original trial testimony. The district court denied
the motion.
Appellant, relying on Riley v. State, 93 Nev. 461, 567 P.2d 475 (1977), argues that due
process considerations require a new trial because of Debbie's perjury. Appellant's reliance on
Riley is misplaced. In that case we ordered a new trial because the prosecution admitted that a
majority of witnesses had committed perjury. Here, there is no proof that Debbie committed
perjury. Although the recorded conversation contained a statement that she lied at trial, the
setting in which the conversation took place was not of a nature which would insure
truthfulness. Furthermore, during the conversation Debbie did not contradict any of her trial
testimony; indeed, at one point she confirmed a statement made at trial.
95 Nev. 497, 500 (1979) King v. State
contradict any of her trial testimony; indeed, at one point she confirmed a statement made at
trial. Since no perjury has been proven, due process does not require a new trial.
[Headnotes 3, 4]
Appellant next contends that the district court abused its discretion when it refused to
grant the new trial. Although the newly discovered evidence could only be used to impeach
the witness, such evidence may be sufficient to justify the granting of a new trial if the
witness impeached is so important that a different result must follow. Oliver v. State, 85 Nev.
418, 424, 456 P.2d 431, 435 (1969). Despite the district court's failure to determine if the
impeachment of Debbie King would result in a different verdict, it did find that there was
sufficient evidence to convict the appellant regardless of Debbie's testimony. A review of the
evidence reveals that Debbie's testimony was not so crucial that a different result would be
required if she were impeached. The district court did not abuse its discretion. Cf. McLemore
v. State, 94 Nev. 237, 577 P.2d 871 (1978); Porter v. State, 94 Nev. 142, 576 P.2d 275
(1978).
Appellant's conviction and the order denying a new trial are affirmed.
____________
95 Nev. 500, 500 (1979) State v. Thacker
THE STATE OF NEVADA, Appellant, v. JOHN THACKER, JOHN WELCH and
RUSSELL HOLT, Respondents.
No. 10519
June 28, 1979 596 P.2d 508
Appeal from order granting new trial, Sixth Judicial District Court, Pershing County;
Llewellyn A. Young, Judge.
The State appealed from an order of the district court which granted a new trial in a grand
larceny prosecution. The Supreme Court held that where it was clear that the verdict finding
defendants guilty of grand larceny of two calves had been influenced by a juror's use of his
special knowledge to present unauthorized evidence to the jury, the verdict was tainted with
such impropriety as to warrant a new trial.
Affirmed.
Richard A. Wagner, District Attorney, Pershing County, for Appellant.
Evans & Bilyeu, Elko; Richard Legarza, Winnemucca; and J. Rayner Kjeldsen, Lovelock,
for Respondents.
1. Criminal Law.
A motion for new trial may be premised on juror misconduct where such misconduct is readily
ascertainable from objective facts and overt conduct without regard to the state of mind and mental
processes of any juror.
2. Criminal Law.
In reaching their verdict, jurors are confined to the facts and evidence regularly elicited in the course of
the trial.
3. Criminal Law.
Where it was clear that verdict finding defendants guilty of grand larceny of two calves was influenced by
the unsworn opinion of a juror who, during deliberations, drew on his special knowledge as a cattleman to
compute an estimate of what he thought certain calves weighed at the time they were impounded, the
verdict was tainted with such impropriety as to warrant a new trial. NRS 175.121, 205.225.
OPINION
Per Curiam:
Following their conviction by jury verdict of grand larceny of two calves, NRS 205.225,
respondents successfully moved the district court for a new trial on the ground that one of the
jurors used his special knowledge as a cattleman to present unauthorized evidence to the jury.
Contending the trial court abused its discretion in granting the new trial, the state appeals.
[Headnotes 1, 2]
It is now settled that a motion for new trial may be premised upon juror misconduct where
such misconduct is readily ascertainable from objective facts and overt conduct without
regard to the state of mind and mental processes of any juror. Barker v. State, 95 Nev. 309,
594 P.2d 719 (1979). It is likewise a fundamental principle that in reaching their verdict,
jurors are confined to the facts and evidence regularly elicited in the course of the trial
proceedings. Id.
[Headnote 3]
At the hearing on respondents' motion for new trial, juror Martin Morris, employed as
superintendent in charge of cattle operations at Nevada Nile Ranch, where the cattle were
impounded, testified that during the deliberations of the jury, a question arose as to the
weight and age of the cattle at the time they were seized and impounded by the
authorities.
question arose as to the weight and age of the cattle at the time they were seized and
impounded by the authorities. Although no evidence was presented at trial concerning the
weight of the cattle or what the animals had been fed during the impound, juror Morris,
drawing on his special knowledge of cattle and feed, computed an estimate of what he
thought the calves weighed at the time they were impounded and gave his information to the
other jurors.
1

The size of the calves at the time of the impound was a fact critical to respondents' case.
During trial, respondents took the position that the calves seized and impounded were not the
animals that had been stolen since they were larger than the ones allegedly taken. The jury
was allowed to view the impounded animals and several pictures were admitted into
evidence.
Although no other jurors testified or offered affidavits, the trial judge concluded that some
members of the jury may have been influenced by Morris' comments, and we concur in that
determination.
The unsworn testimony of a juror as to a fact which is relevant to the determination of an
issue before the jury constitutes misconduct in itself. (Citation omitted.) Barker v. State,
supra, at 312, 594 P.2d at 721. Here, we can neither say that the prejudice to respondents was
harmless beyond a reasonable doubt, nor that in granting respondents' motion, the trial judge
erred as a matter of law. Id.; Lewis v. State, 94 Nev. 722, 588 P.2d 541 (1978); Porter v.
State, 94 Nev. 142, 576 P.2d 275 (1978). See also NRS 175.121.
2
Morris' testimony in the
jury room rebutted respondents' theory of the case. The verdict was tainted with such
impropriety as to warrant a new trial, and the district judge acted within his discretion in so
ruling.
We affirm the order granting a new trial.
____________________

1
It is clear to us that Morris' unsworn opinion, founded on his special knowledge, influenced the verdict.
Prior to the presentation of his computations, the vote of the jury was nine to three, the majority favoring
acquittal. Thereafter, Morris replaced the previously appointed foreman (who allegedly asserted thai he could
not sign his name to a guilty verdict, after which the jury unanimously favored returning a guilty verdict.

2
1. The judge shall then admonish the jury that
(a) No juror may declare to his fellow jurors any fact relating to the case as of his own knowledge. . . .
. . .
4. If it appears that the juror has declared any fact relating to the case to his fellow jurors as of his own
knowledge, or that his vote was influenced by such knowledge undisclosed, the judge shall declare a mistrial.
____________
95 Nev. 503, 503 (1979) Hicks v. State
ERNEST HICKS, Appellant, v. THE STATE
No. 10478
June 28, 1979 596 P.2d 505
Appeal from judgments of conviction of three counts of armed robbery, Eighth Judicial
The Supreme Court held that: (1) trial court did not abuse discretion in admitting proof of
defendant's 1975 robbery conviction for impeachment purposes, and (2) evidence supported
convictions.
Affirmed.
Howard Ecker, Las Vegas, for Appellant.
Where defendant who claimed that search of apartment in which he was found and search of car he had
been perpetrating the offenses in were improper did not allege nor prove proprietary or other interest in car,
apartment or any of items searched and seized, he was without standing to challenge legality of warrantless
searches which led to discovery of damaging evidence used to convict him.
2. Criminal Law.
Even if defendant's mere presence on premises searched was sufficient to confer standing upon him to
challenge search, tenant to whom premises were let consented to search of her apartment and owner of
automobile whose search was also challenged also consented to search of his vehicle and, thus, evidence
seized from apartment and automobile was properly admitted into evidence.
3. Witnesses.
Trial court, in prosecution for armed robbery, did not abuse discretion in denying defendant's pretrial
motion in limine to exclude proof of his 1975 robbery conviction which was admitted for purposes of
impeaching his testimony. NRS 50.095, subd. 1, 193. 165, 200.380.
4. Robbery.
Evidence, in prosecution for armed robbery, was sufficient to support convictions. NRS 193. 165,
200.380.
OPINION
Per Curiam:
Appellant Ernest Hicks was charged, tried by jury and convicted of three counts of armed
robbery (NRS 193.165, 200.380), and sentenced to concurrent terms of 30 years for each
offense, the maximum allowable sentences.
95 Nev. 503, 504 (1979) Hicks v. State
200.380), and sentenced to concurrent terms of 30 years for each offense, the maximum
allowable sentences. On appeal, Hicks urges a reversal of his convictions, contending the trial
court erred in denying his pretrial motions to suppress certain evidence procured as a result of
the search of the apartment in which he was found and the car he used in perpetrating the
offenses. He also claims the denial of his pretrial motion in limine to exclude proof of his
1975 robbery conviction was error. Finally, he challenges the sufficiency of the evidence to
support the verdicts.
[Headnotes 1, 2]
1. Because appellant neither alleged nor proved a proprietary or other interest in the car,
the apartment or any of the items searched and seized, he is without standing to challenge the
legality of the warrantless searches which led to the discovery of the damaging evidence used
to convict him.
1
Roberts v. State, 95 Nev. 288, 593 P.2d 57 (1979); Rakas v. Illinois, 439
U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (No. 77-5781, December 5, 1978).
[Headnote 3]
2. Subject to certain exceptions not relevant to this appeal, NRS 50.095(1) permits the use
of prior felony convictions for the purpose of impeaching the credibility of any witness. Prior
to trial, appellant moved the district court to preclude the use of his 1975 Las Vegas robbery
conviction for purposes of impeaching his testimony in the event he took the stand. Although
Hicks made no offer of proof as to what his testimony might be, the trial judge balanced the
potential for prejudice against the usefulness of the prior conviction for the purpose of
impeachment and concluded the probative value of the proposed impeachment was not
substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of
misleading the jury. NRS 48.035(1). We have often demonstrated our reluctance to disturb
such discretionary evidentiary rulings, Yates v. State, 95 Nev. 446, 596 P.2d 239 (1979);
Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977); Anderson v. State, 92 Nev. 21, 544
P.2d 1200 (1976); Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974), and here, we perceive
no error.
____________________

1
Even if his mere presence on the premises were sufficient to confer standing, Mrs. Mitchell, the tenant to
whom the premises were let, consented to the search of her apartment. Sparkman v. State, 95 Nev. 76, 590 P.2d
151 (1979). Likewise, Mr. Thomas, the owner of the automobile, consented to the search of his vehicle.
95 Nev. 503, 505 (1979) Hicks v. State
[Headnote 4]
3. There is abundant evidence to support the verdicts. In addition to the firearms used, the
state offered in evidence the clothing appellant wore during the commission of the crimes.
His fingerprint was found on one of the handguns.
Moreover, each of the three victims identified Hicks as one of the perpetrators. Their
testimony was corroborated in large part by various eye witnesses. The sufficiency of the
identification testimony was within the province of the jury. Porter v. State, 94 Nev. 142, 576
P.2d 275 (1978); Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977); Wise v. State, 92 Nev.
181, 547 P.2d 314 (1976); Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975).
The convictions are affirmed.
____________
95 Nev. 505, 505 (1979) Employment Sec. Dep't v. Sahara Nev.
THE EMPLOYMENT SECURITY DEPARTMENT OF THE STATE OF NEVADA, L. O.
McCRACKEN, EXECUTIVE DIRECTOR, and THE STATE OF NEVADA, Appellants, v.
SAHARA NEVADA CORPORATION, DEWCO SERVICES, INC., SAHARA-TAHOE
CORPORATION, and CONSOLIDATED CASINOS, INC., Respondents.
No. 10391
LAWRENCE O. McCRACKEN, EXECUTIVE DIRECTOR, NEVADA EMPLOYMENT
SECURITY DEPARTMENT, and THE STATE OF NEVADA, Appellants, v.
WHITTLESEA BLUE CAB CO., Respondent.
No. 10290
June 28, 1979 596 P.2d 504
Consolidated appeals from judgments, First Judicial District Court, Carson City; Michael
E. Fondi, Judge.
Consolidated actions were brought to recover excess unemployment compensation taxes
assessed under a departmental regulation. Recovery was allowed by the district court and the
Employment Security Department appealed. The Supreme Court held that taxpayers satisfied
requirement of timely asserting their objections when they petitioned the Executive Director
of the Employment Security Department for hearing and review of the regulation, and
nothing in the Administrative Procedures Act required that objection take form of civil
action.
hearing and review of the regulation, and nothing in the Administrative Procedures Act
required that objection take form of civil action.
Affirmed.
John A. Flangas, Reno, for Appellants.
Lionel Sawyer & Collins, and Steve Morris, Las Vegas, for Respondents Sahara Nevada
Corporation, Dewco Services, Inc., Sahara-Tahoe Corporation, and Consolidated Casinos,
Inc.
Stan Lyon, Reno, for Respondent Whittlesea Blue Cab Co.
Taxation.
Taxpayers seeking refund satisfied requirement of timely asserting their objections when they petitioned
Executive Director of Employment Security Department for hearing and review of unemployment
compensation tax regulation, and nothing in Administrative Procedures Act required that objection take
form of civil action. NRS 233B.060, subd.6.
OPINION
Per Curiam:
Respondents commenced these consolidated actions on March 1, 1977 to recover excess
unemployment compensation taxes assessed against them pursuant to Employment Security
Regulation ESD-17 (Revised), which we declared invalid in Gibbens Co. v. Archie, 92 Nev.
234, 548 P.2d 1366 (1976). Although respondents were not parties to the prior action, the
district court found their objections timely and entered judgment in their favor, against the
Department. Before us, appellants contend that respondents' failure to commence a district
court action for judicial review within the prescription of NRS 233B.060(6)
1
precludes
respondents' recovery. We disagree.
1. In Gibbens Co. v. Archie, supra, we held the Department's admitted failure to comply
with the Administrative Procedures Act in promulgating ESD-17 renders the regulation
invalid as to those employers who timely asserted their objection." Id., at 236, 54S P.2d at
1367.
____________________

1
No regulation . . . is valid unless adopted in substantial compliance with this chapter but no objection to any
regulation on the ground of noncompliance with the procedural requirements of this section may be made more
than 2 years after its effective date. . . . (Emphasis added.)
objection. Id., at 236, 548 P.2d at 1367. Respondents satisfied the requirement of timely
asserting their objections when they petitioned the Executive Director for a hearing and
review of ESD-17. NRS 233B.060(6). When the hearing was denied, respondents paid the
assessments under written protest.
Nothing in the Administrative Procedures Act requires that an objection take the form of a
civil action. Compare, for example, Paul v. City of Manhattan, 511 P.2d 244 (Kan. 1973);
State, Department of Motor Vehicles v. Gober, 513 P.2d 391 (N.M. 1973). Had the
legislature intended the imposition of a requirement that a civil action be brought within two
years of the promulgation of the regulation in order to challenge its validity, it would have
been a simple matter to use the term action in the statute rather than objection.
2. As respondents were employers who timely asserted their objections, the trial court
properly held them entitled to a refund of the excess taxes collected. Peterson v. City of Reno,
84 Nev. 60, 436 P.2d 417 (1968); Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966).
Appellants do not attempt to reargue the validity of the regulation. Indeed, they concede its
invalidity. Gibbens v. Archie, supra.
The judgments of the trial court are affirmed.
____________
95 Nev. 507, 507 (1979) Casino Air v. Sierra Pac. Power Co.
CASINO AIR CHARTER, INC., GULF INSURANCE COMPANY, INC., ESTATE OF
GILBERT R. SOUZA, MARK B. RAYMOND, M.D., Appellants, v. SIERRA PACIFIC
POWER COMPANY, a Corporation, and THE HOME INSURANCE COMPANY, a New
Hampshire Corporation, Respondents.
No. 9973
June 28, 1979 596 P.2d 496
Appeal from partial summary judgment in respondents' action for declaratory relief,
Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Corporation that chartered aircraft involved in fatal crash and its liability insurer sought
declaratory judgment that excess liability policy provided no coverage to any party other than
corporation for liability arising out of wrongful death action brought by estate of passenger
killed in the crash. The district court entered partial summary judgment for corporation
and its insurer, and air charter service, its insurer, owner of airplane and estate of the
pilot appealed. The Supreme Court, Manoukian, J., held that where corporation neither
designated a particular aircraft nor took any part in preparation of flight plan, corporation
contracted with air charter service for the transportation services of an airplane and
qualified pilot rather than "hired" an aircraft, and thus neither charter service, its insurer,
owner of airplane nor estate of pilot was an "additional insured" under the corporation's
excess liability policy providing coverage with respect to any aircraft hired for use in
behalf of the named insured.
court entered partial summary judgment for corporation and its insurer, and air charter
service, its insurer, owner of airplane and estate of the pilot appealed. The Supreme Court,
Manoukian, J., held that where corporation neither designated a particular aircraft nor took
any part in preparation of flight plan, corporation contracted with air charter service for the
transportation services of an airplane and qualified pilot rather than hired an aircraft, and
thus neither charter service, its insurer, owner of airplane nor estate of pilot was an
additional insured under the corporation's excess liability policy providing coverage with
respect to any aircraft hired for use in behalf of the named insured.
Affirmed.
Erickson, Thorpe & Swainston, Ltd., and William G. Cobb, Reno; Moore, Clifford, Wolfe,
Larson & Trutner, Oakland, California, Cyril Viadro, of Counsel, San Francisco, California,
for Appellants.
Woodburn, Wedge, Blakey & Jeppson, Reno, and Johnson, Greve, Clifford &
Diepenbrock, Sacramento, California, for Respondents.
Insurance.
Where corporation neither designated a particular aircraft nor took any part in preparation of flight plan,
corporation contracted with air charter service for the transportation services of an airplane and qualified
pilot rather than hired an aircraft, and thus neither charter service, its insurer, owner of airplane nor estate
of pilot was an additional insured under the corporation's excess liability policy providing coverage with
respect to any aircraft hired for use in behalf of the named insured.
OPINION
Gilbert R. Souza, a licensed pilot employed by Casino Air Charter, and his passenger,
John H. Eichstedt, were killed in an aircraft accident shortly after takeoff on June 30, 1972.
The plane, a Cessna 206, owned by appellant, Dr. Mark B. Raymond, was leased to Casino
Air for charter flight purposes. The fatal flight had been coordinated by respondent, Sierra
Pacific Power, at the request of the federal government in order to provide federal officials,
including Eichstedt, from the Bureau of Outdoor Recreation an aerial reconnaisance survey of
proposed power line routes into Incline Village, Nevada. Federal approval of the proposed
construction was required.
On November 2, 1972, the heirs of Eichstedt brought an action for wrongful death against
Sierra Pacific, Cessna Aircraft Corporation, Casino Air and Souza's estate. Sierra filed a
motion for summary judgment on the ground that it was not negligent in its dealings with
Casino Air and therefore not liable to Eichstedt's survivors. Sierra's motion was granted
February 13, 1976, and the Eichstedts' subsequent appeal to this court was dismissed.
Notwithstanding the summary judgment, Souza's estate, Casino Air and Gulf Insurance
Company (Casino's insurer) made a demand on Sierra and its insurer (Home) for coverage
against any liability which might be imposed upon them in the wrongful death action. Casino
Air claims status as an additional insured under the excess liability insurance policy issued by
Home to Sierra.
Thereafter, Sierra and Home filed the instant action for declaratory relief, seeking a
declaration that the policy provides no coverage to any other party to the wrongful death
action. Below, in their motion for summary judgment, respondents successfully argued that
none of the appellants are insureds as defined in the policy. In this appeal, appellants seek a
reversal of the summary judgment, asserting the trial court erred in its determination that
Casino Air is not an insured within the meaning of the policy. Insured is defined in the policy
as follows:
The unqualified word insured, wherever used in this contract, includes not only the
Named Insured but also:
* * *
(e) with respect to any automobile or aircraft owned by the Named Insured or hired for
use in behalf of the Named Insured, any person while using such automobile or aircraft
and any person or organization legally responsible for the use thereof, provided the
actual use of the automobile or aircraft is with permission of the named insured. The
insurance extended by this subdivision (e), with respect to any person or organization
other than the Named Insured, shall not apply
(i) to any person or organization, or to any agent or employee thereof, operating an
automobile repair shop, public garage, sales agency, service station, or public
parking place, with respect to any occurrence arising out of the operation thereof.
(ii) to any manufacturer of aircraft, engineers or aviation accessories, or any aviation
sales or service of repair organization or airport or hangar operation or their
respective employees or agents, with respect to any occurrence arising out of the
operation thereof.
their respective employees or agents, with respect to any occurrence arising out of
the operation thereof.
(iii) with respect to any hired aircraft, to the owner thereof or any employee of such
owner. (Emphasis added.)
The issue before us is whether, for purposes of summary judgment, Casino Air is
considered an additional insured under the terms of Sierra's policy. The matter raises a
question of law, requiring an interpretation of the liability insurance policy.
Home's policy endorsement extends indemnity coverage for all sums its insured legally
may be obligated to pay. As defined in the endorsement, insured comprehends Sierra as
well as any person who uses or is responsible for the use of an aircraft hired for use in Sierra's
behalf. In this connection, the trial judge specifically found that:
[T]he accident involved in this case did not arise out of the use of any hired aircraft, or
aircraft hired for use in behalf of Sierra Pacific Power Company . . . the aircraft
involved was not used with the permission or consent of Sierra Pacific Power
Company, and therefore the insurance policy issued by the Home Insurance Company
does not afford any coverage to Casino Air Charter, Inc., or to its pilot Gilbert R.
Souza, or his estate, or to any other person, organization or entity other than Sierra
Pacific Power Company, and that there is no triable issue of fact remaining. . . .
In support of the lower court's determination, respondents maintain the policy unequivocally
forecloses an extension of coverage to Casino Air under the facts and circumstances of this
case. Gulf and the remaining appellants counter, arguing that the policy provides coverage to
a permissive user of an aircraft hired in Sierra's behalf. We are constrained to agree with
respondents.
Since it is apparent that Sierra does not own the aircraft in question, our review must focus
on whether the plane was hired. The policy does not define the term. Cf. Indemnity Ins. Co.
of No. Amer. v. Pacific Clay Products Co., 91 Cal. Rptr. 452 (Cal.App. 1970), where hired
automobile was defined in policy endorsement as automobile under contract in behalf of or
leased to the named insured. In the trial court, the controversy turned on whether control of
the aircraft by Sierra was required for a finding that the use was in its behalf. Monolith
Portland Cement Co. v. American Home Assur. Co., 78 Cal. Rptr., 113 (Cal.App. 1969).
In Fratis v. Fireman's Fund American Ins. Companies, 128 Cal.Rptr. 391 (Cal.App. 1976),
plaintiff sued and recovered judgment against McClatchy Newspapers for the wrongful death
of her husband. At the time of the accident, decedent was working under a commission
contract as a subscription solicitor for the McClatchy firm. The contract provided the
employee an automobile mileage allowance for travel away from home. Following judgment
against McClatchy, plaintiff filed suit against Fireman's Fund claiming status as an additional
insured under its policy endorsement extending coverage to any person while using an owned
or hired automobile, provided the use was with McClatchy's permission. Hired automobile
was defined in relevant part as one used under contract in behalf of . . . the named insured.
In the instant case, there was no hiring of an aircraft. Instead, Sierra contracted for the
transportation services of an airplane and a qualified pilot. Sierra neither designated a
particular aircraft nor took any part in the preparation of a flight plan. Indeed, Sierra has been
judicially exonerated from tort liability arising from its conduct. Clearly, Home's excess
liability contract provides no coverage to appellants.
We hold as a matter of law that in the instant factual context, the indemnity contract does
not include insurance protection to Casino Air Charter as an additional insured since charter
service rather than an aircraft was provided by Casino Air.
We therefore affirm the order granting respondents' summary judgment.
____________
95 Nev. 511, 511 (1979) Bishop v. State
JESSE WALTER BISHOP, Appellant, v. THE STATE
No. 10701
July 2, 1979 597 P.2d 273
Appeal from sentence of death; Eighth Judicial District Court, Clark County; William N.
Forman, Paul S. Goldman, Merlyn H. Hoyt, Judges.
Defendant pled guilty to charge of first degree murder brought against him in connection
with shooting during robbery of casino cashier. The district court entered death sentence, and
defendant appealed. The Supreme Court, Batjer, J., held that: (1) where defendant had ample
opportunity in sentencing proceedings to present evidence of mitigating circumstances
but defendant made it clear he did not want to present such evidence or have standby
counsels present such evidence, it was not error for the sentencing tribunal not to delve
into mitigating evidence alluded to by standby counsels before imposing sentence, and
{2) record indicated that death sentence was not imposed under influence of passion,
prejudice or any arbitrary factor, that evidence was sufficient to support finding by
sentencing court of five aggravating circumstances, and that death penalty was not
excessive or disproportionate to penalty imposed in similar cases, upon consideration
both of crime and defendant.
sentencing proceedings to present evidence of mitigating circumstances but defendant made it
clear he did not want to present such evidence or have standby counsels present such
evidence, it was not error for the sentencing tribunal not to delve into mitigating evidence
alluded to by standby counsels before imposing sentence, and (2) record indicated that death
sentence was not imposed under influence of passion, prejudice or any arbitrary factor, that
evidence was sufficient to support finding by sentencing court of five aggravating
circumstances, and that death penalty was not excessive or disproportionate to penalty
imposed in similar cases, upon consideration both of crime and defendant.
Affirmed.
Morgan D. Harris, Public Defender, George E. Franzen, Deputy Public Defender, Kirk B.
Lenhard, Deputy Public Defender, Clark County, for Appellant.
1. Criminal Law.
Even though offense for which defendant is being tried may carry penalty of death, defendant must be
allowed pro per representation if he so elects.
2. Criminal Law.
Where defendant knowingly and voluntarily waives his right to counsel, his refusal to present defense
does not negate his pro per election. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Where defendant had ample opportunity in sentencing proceedings to present evidence of mitigating
circumstances but defendant made it clear he did not want to present such evidence or have standby
counsels present such evidence, it was not error for the sentencing tribunal not to delve into mitigating
evidence alluded to by standby counsels before imposing death sentence. NRS 175.558, 200.033.
4. Criminal Law.
Where defendant failed to object or otherwise protest presentation of certain evidence, and on its face it
was not clear that such evidence was unconstitutionally obtained, Supreme Court did not need to consider
its admissibility on appeal from death sentence. NRS 175.552.
5. Homicide.
Imposition of death penalty, in prosecution in which defendant pled guilty to charge of first degree
murder brought in connection with shooting during attempted casino robbery, offended neither United
States Constitution nor Nevada Constitution. U.S.C.A.Const. Amend. 8; Const. art. 1, 6.
6. Homicide.
In prosecution in which defendant pled guilty to charge of first degree murder brought in connection with
shooting during attempted casino robbery, record indicated that death sentence was not imposed under
influence of passion, prejudice or any arbitrary factor, that evidence was sufficient to support finding by
sentencing court of five aggravating circumstances, and that death penalty was not excessive or
disproportionate to penalty imposed in similar cases, upon consideration both of and defendant.
OPINION
On the night of December 20, 1977, appellant robbed a cashier at a Las Vegas casino.
During the commission of the crime, David Ballard, a patron of the casino, and Larry
Thompson, an employee of the casino, were shot by the appellant when they attempted to
prevent the robbery. Ballard died as a result of the wound. The shooting was witnessed by
several persons who identified appellant as the perpetrator.
Bishop was charged with nine felony counts, including the first degree murder of David
Ballard. NRS 200.030(1)(b).
1
At all early stage in the proceedings Bishop made it known
that he wanted to represent himself and plead guilty to all charges. The public defenders
assigned to the appellant questioned his competency to make such a decision. Before the
district court would accept a plea or rule on appellant's request for pro per representation, the
court ordered a psychiatric evaluation. The three psychiatrists who examined Bishop
concluded that he was competent to enter the plea and possessed the ability to knowingly and
intelligently waive the right to counsel.
After hearing the psychiatrists' testimony, the court entered into a lengthy discussion with
the appellant. Appellant was apprised that the maximum sentence for conviction of first
degree murder was death; the court explained the various pitfalls and disadvantages of
self-representation; and the district court judge expressed his personal opinion against pro per
representation. Nevertheless, appellant insisted on dismissing the court-appointed public
defenders.2 On the basis of Faretta v. California, 422 U.S. S06 {1975), the court granted
appellant's motion for self-representation.
____________________

1
NRS 200.030(1)(b) provides in pertinent part:
1. Murder of the first degree is murder which is:
. . . .
(b) Committed in the perpetration or attempted perpetration of. . . robbery. . . .
court-appointed public defenders.
2
On the basis of Faretta v. California, 422 U.S. 806
(1975), the court granted appellant's motion for self-representation. However, the court
ordered the public defenders to remain in the court as standby counsel in the event the
appellant desired their advice or assistance.
Appellant pled guilty to all counts. Pursuant to NRS 175.558, a three-judge panel was
appointed by this Court to determine appellant's sentence for first degree murder. Prior to the
sentencing hearing, the state notified Bishop that it intended to seek the death penalty. At the
hearing the state presented evidence tending to establish the presence of five aggravating
circumstances. NRS 200.033.
3
At the stage in the proceedings when it became appellant's
opportunity to present witnesses regarding mitigating circumstances, NRS 200.035,4
appellant replied that he had no witnesses to present.
____________________

2
Appellant told the court that he did not want to contest the charge because his experience gained from past
encounters with the criminal law told him that he had no chance to beat the charge and, furthermore, he did not
want to drag his family through a lengthy and frivolous trial.

3
The only circumstances by which murder of the first degree may be aggravated are:
1. The murder was committed by a person under sentence of imprisonment.
2. The murder was committed by a person who was previously convicted of another murder or of a felony
involving the use or threat of violence to the person of another.
3. The murder was committed by a person who knowingly created a great risk of death to more than one
person by means of a weapon, device or course of action which would normally be hazardous to the lives of
more than one person.
4. The murder was committed while the person was engaged, or was an accomplice, in the commission of or
an attempt to commit or flight after committing or attempting to commit, any robbery, forcible rape, arson in the
first degree, burglary or kidnaping in the first degree.
5. The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody.
6. The murder was committed by a person, for himself or another, for the purpose of receiving money or any
other thing of monetary value.
7. The murder was committed upon a peace officer or fireman who was killed while engaged in the
performance of his official duty or because of an act performed in his official capacity, and the defendant knew
or reasonably should have known that the victim was a peace officer or fireman. For purposes of this subsection
peace officer means sheriffs of counties and their deputies, marshals and policemen of cities and towns, the
chief and agents of the investigation and narcotics division of the department of law enforcement assistance,
personnel of the Nevada highway highway patrol, and the director, deputy director, correctional officers and
other employees of the department of prisons when carrying out the duties prescribed by the director of the
department.
8. The murder involved torture, depravity of mind or the mutilation of the victim.
9. The murder was committed upon one or more persons at random and without apparent motive.
The state argued that the first five subsections all apply to the appellant.
proceedings when it became appellant's opportunity to present witnesses regarding mitigating
circumstances, NRS 200.035,
4
appellant replied that he had no witnesses to present. At that
time the panel called for a brief recess and advised Bishop to confer with the standby
counsels during the break. When the hearing was reconvened the standby counsels
informed the panel that they believed there were certain mitigating circumstances present,
but, because Bishop adamantly refused to allow the presentation of such evidence, the public
defenders did not elaborate on that evidence. When questioned by the panel appellant
admitted the truthfulness of the standby counsels' remarks, but adhered to his position not to
present any evidence. The panel then proceeded to hear closing arguments by the state.
The panel unanimously concluded that appellant's crime was aggravated by five
circumstances: (1) he was under a sentence of imprisonment in California (at the time of the
murder appellant was on parole from an armed robbery conviction); (2) he had previously
been convicted of a felony involving the use or threat of violence to the person of another; (3)
he knowingly created a great risk of death to more than one person by means of a weapon; (4)
he committed the murder while engaged in the commission of a robbery; and (5) the murder
was committed for the purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody. Furthermore, the panel concluded that there were no mitigating
circumstances because (1) the state had proven the non-existence of several of the
circumstances, and (2) appellant had failed to present evidence establishing the existence of
the remaining factors. Accordingly, he was sentenced to die by the administration of lethal
gas.5 NRS 175 554{2).6
____________________

4
Murder of the first degree may be mitigated by any of the following circumstances, even though the
mitigating circumstance is not sufficient to constitute a defense or reduce the degree of the crime:
1. The defendant has no significant history of prior criminal activity.
2. The murder was committed while the defendant was under the influence of extreme mental or emotional
disturbance.
3. The victim was a participant in the defendant's criminal conduct or consented to the act.
4. The defendant was an accomplice in a murder committed by another person and his participation in the
murder was relatively minor.
5. The defendant acted under duress or under the domination of another person.
6. The youth of the defendant at the time of the crime.
7. Any other mitigating circumstance.
was sentenced to die by the administration of lethal gas.
5
NRS 175 554(2).
6

During oral argument before this Court, appellant, who was represented by his standby
counsels, abandoned his claim concerning the legality of the guilty plea, and challenged only
the legality of the sentencing hearing. Appellant claims the tribunal erred because (1) it
should have heard evidence concerning mitigating circumstances; (2) some of the evidence
used to prove aggravating circumstances had been unconstitutionally obtained; and (3) the
death penalty constitutes cruel and unusual punishment. We disagree.
1. While a defendant must be given the opportunity to present evidence of whatever
mitigating circumstances may be relevant to either the particular offender or the particular
offense before a death penalty can be imposed, Lockett v. Ohio, 438 U.S. 586 (1978); Roberts
v. Louisiana, 431 U.S. 633 (1977); Woodson v. North Carolina, 428 U.S 280 (1976); Smith
v. State, 93 Nev. 82, 560 P.2d 158 (1977), a defendant must also be allowed to represent
himself if he so elects. Faretta v. California, supra. Cf. Ingle v. State, 92 Nev. 104, 546 P.2d
598 (1976).
[Headnote 1]
Even though the offense for which a defendant is being tried may carry a penalty of death,
the defendant must be allowed pro per representation. People v. Teron, 588 P.2d 773 (Cal.
1979);
7
Thomas v. Superior Court, 126 Cal.Rptr. 830 (Cal.App. 1976); Commonwealth v.
Davis, 388 A.2d 324 (Pa. 1978). In Commonwealth v. Davis, supra, a case which was tried
before a jury, the district court judge advised the pro per defendant, outside the presence of
the jury, that he would be entitled to the age of the offender mitigating circumstance;
nevertheless, the defendant decided not to present any argument to the jury. On appeal, the
Pennsylvania Supreme Court held, citing Faretta, that it would have been constitutional error
for the judge to have refused Davis his right to represent himself.S 3SS A.2d at 32S.
____________________

5
Subsequently, appellant was also sentenced to a total of 195 years in the Nevada State Prison on the
remaining eight felony counts.

6
The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating
circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.

7
The California Supreme Court has recognized, without resolving, the issue of a defendant's right to
self-representation in a death penalty hearing. People v. Teron, 588 P.2d 773, 779, n. 7 (Cal. 1979); Rockwell v.
Superior Court 556 P.2d 1101, 1114, n. 14 (Cal. 1976).
error for the judge to have refused Davis his right to represent himself.
8
388 A.2d at 328.
[Headnotes 2, 3]
In the case at hand, Bishop had ample opportunity to present evidence of mitigating
circumstances; however, he made it clear that he did not want to present or have standby
counsel present such evidence. He had a Sixth Amendment right not to have counsel forced
upon him. Faretta, supra. When a defendant knowingly and voluntarily waives his right to
counsel, as here, his refusal to present a defense does not negate his pro per election. People
v. Teron, supra. Under Faretta, the state may not constitutionally prevent a defendant
charged with a commission of a criminal offense from controlling his own fate by forcing on
him counsel who may present a case which is not consistent with the actual wishes of the
defendant. Curry v. Superior Court, 141 Cal.Rptr. 884, 887 (Cal.App. 1977). For this reason,
the sentencing tribunal did not err when it did not delve into the mitigating evidence referred
to by the standby counsels.
[Headnote 4]
2. NRS 175.552 provides in part that during the penalty hearing, [n]o evidence which
was secured in violation of the Constitution of the United States or the constitution of the
State of Nevada may be introduced. Appellant claims that such evidence was used to prove
aggravating circumstances. However, since the appellant failed to object or otherwise protest
the presentation of this evidence, and on its face it was not clear that the evidence was
unconstitutionally obtained, we need not consider its admissibility on appeal. Cf. Guynes v.
State, 92 Nev. 693, 558 P.2d 626 (1976); Hampton v. State, 85 Nev. 720, 462 P.2d 760
(1969).
[Headnote 5]
3. Appellant argues that the death penalty is cruel and unusual punishment and is
therefore unconstitutional. The Nevada statutes authorizing the imposition of the death
penalty are similar to the Florida statutes which were found to be constitutional in Proffit v.
Florida, 428 U.S. 242 (1976). The Nevada statutes provide for a consideration of any
mitigating factor the defendant may want to present. NRS 200.035(7). Cf.
____________________

8
The jury sentenced Davis to death. However, on appeal the court commuted the sentence to life
imprisonment because the statute under which Davis had been sentenced had been previously declared
unconstitutional.
Lockett v. Ohio, supra. The imposition of the death penalty in this case offends neither the
United States Constitution nor the Nevada Constitution.
[Headnote 6]
4. After a careful review of the record we conclude that appellant's sentence was not
imposed under the influence of passion, prejudice or any arbitrary factor. Furthermore, there
is sufficient evidence to support the finding by the sentencing panel of five aggravating
circumstances. Considering both the crime and the defendant, we conclude that the death
penalty is not excessive or disproportionate to the penalty imposed in similar cases in this
state. E.g., State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946).
Judgment affirmed. See NRS 176.505.
9

I concur fully in the views expressed by Mr. Justice Batjer; however, I wish to add one
observation.
Unless the U.S. Supreme Court limits prior declarations, I think we must assume that the
right of an accused to act as his own defense counsel carries the right to make usual choices
concerning tactics and strategy. Many trials present hard choices concerning what evidence
should be adduced on various issues. Whether particular evidence will mitigate or
aggravate the criminality of a generally known set of circumstances is, often, a question on
which reasonable minds differ. Thus, I think the majority is correct in concluding that
appellant's decision cannot be viewed as waiving evidence of mitigation. Such a
characterizationwhich assumes that counsel, rather than the appellant, necessarily knew
bestis contrary to the concept of Faretta as thus far articulated.
If the district court had permitted standby counsel to introduce evidence over the
appellant's objection, and then had sentenced appellant to death, we would now face the
contention that the court had prejudicially interfered with the accused's right to represent
himself.
____________________

9
When a remittitur showing the affirmation of a judgment of death has been filed with the clerk of the court
from which the appeal therefrom has been taken, the court in which the conviction was had must inquire into the
facts, and, if no legal reasons exist against the execution of the judgment, must make and enter an order that the
director of the department of prisons shall execute the judgment at a specified time; but the presence of the
defendant in the court at the time the order of execution is made and entered, or the warrant is issued, as in this
section provided, is not required.
Manoukian, J., dissenting in part:
Respectfully, I dissent from that part of the majority opinion which holds, the sentencing
tribunal did not err when it did not delve into the mitigating evidence referred to by the
standby counsels. Although I have no quarrel with the imposition of the death penalty per se,
the fundamental respect for humanity which underlies our system of justice demands that I
acquiesce in the imposition of the penalty only upon a procedurally clean record. My brethren
affirm the imposition of the death penalty, in disregard of the critical procedural infirmity
which infects this case, and, in my view, in violation of our own statutes and the
pronouncements of the highest Court of the land.
The majority reasons that because Faretta v. California, 422 U.S. 806 (1975), permits
self-representation and because appellant chose to proceed without counsel, he cannot now be
heard to complain of any right he waived, no matter how important the right and regardless of
the drastic consequences of the waiver. I disagree with the court's interpretation of Faretta
and submit that it is not altogether clear whether Faretta and its progeny have any
applicability in the context of a penalty hearing in a capital case.
1
Clearly, the California
Supreme Court has expressly declined to rule on the issue, People v. Teron, 588 P.2d 773,
779, fn. 7 (Cal. 1979), and the Pennsylvania case cited by the majority does not squarely
address the point.
____________________

1
In Faretta, the high Court simply held that under the circumstances there present, where the defendant was
charged with grand theft and timely asserted his right to proceed with his own defense, the California courts, by
forcing him to accept against his will a state-appointed public defender . . . deprived him of his constitutional
right to conduct his own defense. . . . Faretta v. California, supra, at 836.
In United States v. Taylor, 569 F.2d 448 (7th Cir. 1978), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, the Court
stated:
We recognize that Faretta holds that an accused has a constitutional right to dispense with the
assistance of counsel and to conduct his defense personally. It does not inevitably follow, however, that
this right of self-representation comprehends any correlative right to preclude the trial court from
appointing counsel and authorizing him to participate in the trial over the accused's objection in order to
protect the public interest in the fairness and integrity of the proceedings. [Footnote omitted.]
Id., at 452. Here, the panel apparently believed it was acting in accordance with the mandates of Faretta. In my
view, such a narrow reading of Faretta was unjustified given the circumstances of this case. Indeed, Faretta
contemplates that a state court, even over the objection of an accused, has discretion to appoint standby
counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in
the event that termination of the defendant's self-representation is necessary. Faretta v. California, supra, at
835, fn. 46. (Emphasis added.) To protect the integrity of the criminal process, the panel owed a duty to
temporarily suspend Bishop's right to proceed in his own behalf so that the sentencing proceedings could be
made more complete.
cited by the majority does not squarely address the point. Com. v. Davis, 388 A.2d 324 (Pa.
1978)
2

The United States Supreme Court has held unequivocally that a defendant must be allowed
to present mitigating circumstances before the death penalty may be imposed. Lockett v.
Ohio, 438 U.S. 586 (1978); H. Roberts v. Louisiana, 431 U.S 633 (1977); Woodson v. North
Carolina, 428 U.S. 280 (1976); and see Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977). The
question in this case is whether a defendant alone may waive that right, and whether a three
judge panel may honor that waiver even when standby counsel are present in court, ready to
present such evidence in mitigation. In my view, the answer is no. The panel, having ordered
the presence of standby counsel, and having urged Bishop to consult with them, should have
given counsel reasonable deference, notwithstanding their client's death wish.
3
Anything
less constitutes state-sanctioned suicide. Moreover, the state has an independent interest in
penalty determinations. See Com. v. McKenna, 383 A.2d 174 (Pa. 1978). Our statutes permit
sentencing a defendant to death only after the sentencing tribunal has carefully balanced the
aggravating and mitigating circumstances of the crime, the defendant, and the victim. NRS
175.588, 175.554(2), and see NRS 200.035. These statutes, as well as our prior decisions
impose an affirmative duty upon the tribunal. See Smith v. State, supra. A sentencing hearing
in a death penalty case is more of a fact-finding proceeding than a traditional adversary
hearing. As such, the panel should have had the benefit of all relevant evidence, including
that offered by standby counsel. NRS 175.552. Although the panel concluded the state had
disproven the existence of several of the mitigating circumstances specified in NRS 200.035,
subsection 7 of that statute allows proof of any other mitigating circumstance. The panel
should have permitted standby counsel to speak. See United States v. Dougherty, 473 F.2d
1113 (D.C. Cir. 1972).
In Com. v. McKenna, supra, defendant appealed his convictions of rape and first degree
murder, but refused to challenge his death sentence. The court affirmed the convictions but
remanded for resentencing on the ground that the statute under which McKenna was
sentenced was unconstitutional. Id., at 179. The Pennsylvania court held that the defendant
could not waive his right to challenge the death penalty statute, reasoning:
____________________

2
Although Davis represented himself during trial (with the assistance of standby counsel), he was represented
by counsel at the time of the formal post-verdict sentencing proceedings and in the prosecution of his appeal.
Com. v. Davis, supra, at 325, fn. 2.

3
The record in this case is replete with indications by appellant of his desire to be executed pursuant to law.
Moreover, Bishop has communicated his wish to me and the other members of this court.
waive his right to challenge the death penalty statute, reasoning:
[T]he waiver concept was never intended as a means of allowing a criminal
defendant to choose his own sentence. Especially is this so where, as here, to do so
would result in state aided suicide. The waiver rule cannot be exalted to a position so
lofty as to require this court to blind itself to the real issuethe propriety of allowing
the state to conduct an illegal execution of a citizen. [Footnote omitted.]
In short, where an overwhelming public interest is involved, but is not addressed by
the parties, this Court has a duty to transcend procedural rules which are not, in spirit,
applicable, to the end that the public interest may be vindicated. Such an overwhelming
public interestinsuring that capital punishment in this Commonwealth comports with
the Constitution of the United Statesis present here. (Emphasis added.)
Id., at 181.
Under Faretta v. California, supra, an accused's Sixth Amendment right to waive counsel
is construed as a right personal to him. However, the authority to prescribe punishment and
establish sentencing guidelines, particularly in capital cases, must be done within the
proscriptions of the Eighth Amendment and such power is vested in the State and can not be
independently exercised by the accused. See Hayes v. United States, 238 F.2d 318 (10th Cir.
1956); Commonwealth v. McKenna, supra. Specifically, the right to pro se representation in
a criminal proceeding is personal to the defendant through the Sixth Amendment, and is
separate from the Eighth Amendment objective of the State to be apprised of all relevant
circumstances of an offense, the defendant, and the victim, before imposition of the death
penalty.
The right of pro se representation is not an open invitation to evade the statutory
intendments and the pronouncements of the United States Supreme Court which mandate
meaningful and plenary bifurcated criminal proceedings. The sentencing tribunal, charged
with the duty of insuring that justice be achieved, see Brady v. Maryland, 373 U.S 83 (1963),
should have heard the mitigating circumstances Bishop's standby counsel so zealously sought
to present. Inevitably, the expense of its failure to do so, and my brethren's affirmance of that
error, will be further protracted proceedings in the federal system.
I dissent. I would reverse and remand for further sentencing proceedings before the same
panel.
____________
95 Nev. 522, 522 (1979) Peterson v. Sheriff
IRENE PETERSON and PETER BURLEIGH, Appellants,
v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 11507
August 16, 1979 598 P.2d 623
Appeals from order denying pretrial petitions for writs of habeas corpus, Eighth Judicial
Defendants, who were charged with conspiracy to commit murder and conspiracy to
commit arson, appealed from order of the district court denying their pretrial petitions for
writs of habeas corpus. The Supreme Court held that: (1) evidence that one coconspirator
gave undercover officer a diagram of intended murder victim's house which was in other
coconspirator's handwriting and that first coconspirator also arranged meeting between officer
and second coconspirator during which they discussed contract price of proposed murder
constituted prima facie evidence that defendants conspired to commit murder; accordingly,
first coconspirator's hearsay statements were properly considered, and (2) where, absent
defendant's hearsay statements that she stated to officer that she and other defendant wanted
officer to set fire to law office, there was no evidence in the record establishing conspiracy
between defendants to set fire to law office, defendants were entitled to dismissal of charge of
conspiracy to commit arson.
Greenman & Goldberg, and Aubrey Goldberg, Las Vegas, for Appellant Irene Peterson.
Goodman, Oshins, Brown & Singer, Las Vegas, for Appellant Peter Burleigh.
Raymond Jeffers, Deputy District Attorney, and Stanley W. Parry, Deputy District Attorney,
1. Criminal Law.
Hearsay statement may be admitted into evidence in conspiracy prosecution where statement is made by a
coconspirator during course and in furtherance of the conspiracy; however, application of the coconspirator
exception is contingent upon a showing, by independent evidence, that a conspiracy existed; the amount of
independent evidence necessary to prove the existence of a conspiracy may be slight, and it is enough that
only prima facie evidence of that fact is produced. NRS 51.035, 51.035, subd. 3(e).
2. Criminal Law.
Evidence that one coconspirator gave undercover officer a diagram of intended murder victim's house
which was in other coconspirator's handwriting and that first coconspirator also arranged meeting between
officer and second coconspirator during which they discussed contract price of proposed murder
constituted prima facie evidence that defendants conspired to commit murder; accordingly, first
coconspirator's hearsay statements were properly considered in conspiracy prosecution. NRS 51.035,
51.035, subd. 3(e), 199.480, 200.010, 200.030.
3. Conspiracy.
Where, absent defendant's hearsay statements that she stated to undercover officer that she and other
defendant wanted officer to set fire to law office, there was no evidence in the record establishing
conspiracy between defendants to set fire to law office, defendants were entitled to dismissal of charge of
conspiracy to commit arson. NRS 199.480, 205.010.
4. Conspiracy.
Mere association is insufficient to support a charge of conspiracy.
OPINION
Per Curiam:
Irene Peterson and Peter Burleigh were charged in an indictment by the Clark County
grand jury with conspiracy to commit murder (NRS 199.480; NRS 200.010; NRS 200.030)
and conspiracy to commit arson (NRS 199.480; NRS 205.010). Thereafter, they filed pretrial
petitions for writs of habeas corpus in the district court contending, among other things, that
there was insufficient evidence presented to the grand jury to support the charges. The district
court denied the petitions and these appeals followed.
Evidence presented to the grand jury indicates that Irene Peterson met with an undercover
police officer on several occasions in order to negotiate an agreement whereby the officer was
to commit murder and arson. Peterson informed the officer that she was acting on behalf of
Peter Burleigh and that she and Burleigh wanted the officer to murder Burleigh's former wife
and set fire to a law office which contained certain records that Burleigh felt could hurt him
heavy. At one of these meetings, Peterson gave the officer a diagram of the residence of
Burleigh's former wife, photographs of her, and a photograph of the attorney whose office
was allegedly the target of the planned arson. At the grand jury proceedings, Burleigh's
former wife testified that the handwriting on the diagram of her house was Burleigh's.
After several meetings with Peterson, the officer insisted that he personally discuss the
plan with Burleigh. Subsequently, Peterson telephoned the officer and informed him that
Burleigh would meet with him at a restaurant.
would meet with him at a restaurant. When the officer arrived at the restaurant he
encountered Peterson and Burleigh. Peterson then left the table where she and Burleigh were
seated. The officer and Burleigh thereafter discussed the murder of his former wife and it was
decided that Burleigh would pay $25,000 for the murder. Burleigh, however, did not mention,
nor did the parties discuss, anything regarding the burning of the law office.
1. Appellants argue that probable cause to believe they conspired to commit murder was
not established because the only evidence implicating Burleigh in the alleged scheme was
Peterson's hearsay statements which, they contend, should not have been considered by the
grand jury because there was no independent evidence that a conspiracy to commit murder
existed.
[Headnote 1]
In Fish v. State, 92 Nev. 272, 549 P.2d 338 (1976), we held that hearsay statements may
be admitted into evidence, pursuant to NRS 51.035(3)(e), where the statement is made by a
coconspirator of a party during the course and in furtherance of the conspiracy.
1
However,
application of the coconspirator exception is contingent upon a showing, by independent
evidence, that a conspiracy existed. Cranford v. State, 95 Nev. 471, 596 P.2d 489 (1979). The
amount of independent evidence necessary to prove the existence of a conspiracy may be
slight, and it is enough that only prima facie evidence of the fact is produced. Id.
[Headnote 2]
Here, Peterson gave the officer a diagram of the intended murder victim's house which was
in Burleigh's handwriting and Peterson also arranged a meeting between the officer and
Burleigh during which the two men discussed the contract price of the proposed murder. We
believe these facts constitute prima facie evidence that Peterson and Burleigh conspired to
commit the murder. Therefore, Peterson's hearsay statements were properly considered.
2. Appellants similarly argue that the charge of conspiracy to commit arson cannot stand
because the sole evidence supporting the charge consists of Peterson's inadmissible
hearsay statements to the officer that she and Burleigh wanted the officer to set fire to
the law office.
____________________

1
. . . .
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.
to commit arson cannot stand because the sole evidence supporting the charge consists of
Peterson's inadmissible hearsay statements to the officer that she and Burleigh wanted the
officer to set fire to the law office. Respondent, however, contends Burleigh's association
with Irene Peterson and his ratification of the murder conspiracy constitute sufficient
independent evidence of a conspiracy to commit arson, and therefore, the hearsay statements
were properly presented to the grand jury. We find appellants' contention more persuasive.
[Headnotes 3, 4]
In order to establish that Burleigh and Peterson conspired to commit arson, there must be
evidence, other than Peterson's hearsay statements, showing the conspiracy. Id. Here, absent
Peterson's hearsay statements, there is no evidence in the record establishing a conspiracy
between Burleigh and Peterson to set fire to the law office. Indeed, when the officer and
Burleigh met at the restaurant, they discussed only the murder of Burleigh's former wife.
Furthermore, there was no independent evidence connecting Burleigh with the photograph of
the attorney given to the officer by Peterson. Nor does Burleigh's association with Peterson or
his complicity in the scheme to commit murder establish that they also conspired to commit
arson. Mere association is insufficient to support a charge of conspiracy. See State v.
Sullivan, 200 P.2d 346 (Ariz. 1948). Accordingly, the charge of conspiracy to commit arson
must be dismissed.
Appellants' remaining contentions are either without merit or need not be considered in
light of our disposition of this case.
The order of the district court denying appellants' petitions is affirmed with respect to the
charge of conspiracy to commit murder and reversed with respect to the charge of conspiracy
to commit arson.
____________
95 Nev. 526, 526 (1979) Silver Dev. Corp. v. Gavin
SILVER DEVELOPMENT CORPORATION, a Nevada Corporation, Appellant, v. JAMES
W. GAVIN and MARIE S. GAVIN, Respondents.
No. 10120
August 16, 1979 598 P.2d 625
Appeal from judgment, Fifth Judicial District Court, Esmeralda County; Joseph O.
McDaniel, Judge.
1

Lessee brought action seeking to recover damages for lessors' breach of covenant of quiet
enjoyment. The district court denied recovery and lessee appealed. The Supreme Court held
that the breach did not cause damages for which lessee sought recovery.
Affirmed.
Robert F. Butler, Reno, for Appellant.
C. E. Horton and Steven G. McGuire, Ely, for Respondents.
Landlord and Tenant.
Breach of covenant of quiet enjoyment did not cause damages for which recovery was sought by lessee.
OPINION
Per Curiam:
Appellant, who had leased land from the respondents, filed suit seeking to recover
damages for respondents' breach of the covenant of quiet enjoyment. The district court denied
recovery, finding that the breach did not cause the damages for which recovery was sought.
This appeal followed.
The court has reviewed the proceedings, briefs and record, and after hearing oral
argument, has determined that there is no merit to this appeal. Trustees of the Church of
Universology v. State, 95 Nev. 338, 594 P.2d 706 (1979); Bradley v. Bradley, 95 Nev. 201,
591 P.2d 663 (1979).
Affirmed.
____________________

1
This case was tried by the late Hon. Kenneth L. Mann. However Judge Mann died before rendering an
opinion, therefore the Hon. Joseph O. McDaniel, pursuant to stipulation by the parties, decided the case on the
record.
____________
95 Nev. 527, 527 (1979) Williams v. State
EARLE SCHAFER WILLIAMS, Appellant, v. THE
No. 10741
August 16, 1979 598 P.2d 1144
Appeal from conviction upon a jury verdict of guilty for felonious drunk driving; Eighth
The Supreme Court held that record failed to indicate any wrongdoing on part of the State
or prejudice to defendant as result of destruction of decedent's bicycle, which was impounded
initially but was later discarded.
Affirmed.
Douglas R. Pike, of Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Robert J. Miller, District Attorney, and Gary
Weinberger, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A defendant seeking to have his conviction reversed for loss of evidence must show either bad faith or
connivance on part of government, or that he was prejudiced by loss of evidence.
2. Criminal Law.
Record in case in which defendant was convicted of felonious drunk driving failed to indicate any
wrongdoing on part of State or prejudice to defendant as result of destruction of decedent's bicycle, which
was impounded initially but later discarded and destruction of which defendant now maintained prevented
discovery of possible exculpatory evidence. NRS 484.3795.
OPINION
Per Curiam:
Appellant Earle Schafer Williams stands convicted by a jury for driving under the
influence of intoxicating liquor, a felony pursuant to NRS 484.3795. Williams now maintains
that the destruction of the decedent's bicycle prevented the discovery of possible exculpatory
evidence and thereby violated due process. Consequently, he argues that the conviction must
be reversed.
1. The record on appeal does not contain a full transcript of the trial proceedings. All that
exists is a partial transcript of the testimony of one Sergeant Cooper. Cooper, a Nevada State
Highway Patrolman, indicated that although the decedent's bicycle had been impounded
initially, it was later discarded.
Highway Patrolman, indicated that although the decedent's bicycle had been impounded
initially, it was later discarded.
[Headnotes 1, 2]
Williams asserts that the bicycle was material to his case. However, an appellant seeking
to have his conviction reversed for loss of evidence must show either (1) bad faith or
connivance on the part of the government or, (2) that he was prejudiced by the loss of the
evidence. United States v. Heiden, 508 F.2d 898 (9th Cir. 1974). The record fails to indicate
any wrongdoing on the part of the State or prejudice to the appellant. Accordingly, we must
affirm the conviction.
2. Other assigned errors are without merit.
Affirmed.
____________
95 Nev. 528, 528 (1979) Air Service Co. v. Sheehan
AIR SERVICE COMPANY, a Nevada Corporation, and DONALD KENNY, Appellants, v.
CORNELIUS T. SHEEHAN, Respondent.
No. 10640
August 16, 1979 594 P.2d 1155
Appeal from order denying defendants' motion for judgment notwithstanding the verdict or
new trial, and cross-appeal from order denying plaintiff's motion for attorney's fees. Second
Judicial District Court, Washoe County; William N. Forman, Judge.
Action was brought to recover damages for breach of contract of employment. The district
court entered order denying defendants' motion for judgment notwithstanding verdict or new
trial, and also entered order denying plaintiff's motion for attorney's fees, and appeal and
cross-appeal were taken. The Supreme Court held that: (1) evidence supported conclusion
that parties had reached a complete oral agreement upon terms of plaintiff's employment, and
(2) plaintiff's motion for attorney's fees was properly denied.
Affirmed.
Petersen & Petersen, Reno, for Appellants.
Wm. Patterson Cashill, Reno, for Respondent.
In reviewing a judgment n.o.v., the standard is the same as for review of a motion for a directed verdict;
reviewing court must view the evidence in light most favorable to the party against whom
the motion was made; neither credibility of witnesses nor weight of evidence may be
considered; the question is whether the evidence is such that reasonable men would
have necessarily reached a different conclusion.
evidence in light most favorable to the party against whom the motion was made; neither credibility of
witnesses nor weight of evidence may be considered; the question is whether the evidence is such that
reasonable men would have necessarily reached a different conclusion.
2. Judgment.
A motion for judgment n.o.v. is properly refused when there is evidence in the record which tends to
support the verdict, or when there is a substantial conflict in the evidence which was resolved by the trier of
fact.
3. Master and Servant.
Evidence supported conclusion that parties had reached a complete oral agreement, by which they
intended to be bound, upon terms of plaintiff's employment, which included a stock purchase agreement
and that, as contemplated by parties, plaintiff, relying upon the contract and also upon a promise that the
document would be signed, left his job in San Francisco, moved to Reno and undertook performance of the
contract, including delivery of a lucrative distributorship to defendants, only to have defendants refuse to
sign the document they had prepared and refused to perform that part of the contract which provided for
plaintiff's gradual purchase of 49% of the company.
4. New Trial.
Refusal to grant defendants' alternative motion for new trial would not be deemed erroneous where it
could not be concluded that had the jury followed the instructions as given they could not have reached the
verdict which they did.
5. Master and Servant.
Denial of motion for attorneys fees under statute authorizing award of an attorney fee in suit for wages
earned was not erroneous, where affidavit submitted in support of motion asserted only that a demand letter
had been submitted seeking recovery of certain monies then due and owing. NRS 608.140.
OPINION
Per Curiam:
Respondent and cross-appellant Cornelius Sheehan initiated this action, seeking damages
for breach of contract of employment. Defendants Air Service Company and its president,
Donald Kenny, denied the existence of an enforceable contract and counterclaimed for
damages resulting from an alleged breach of a duty of loyalty by Sheehan. Following a jury
verdict for the plaintiff Sheehan, and against the defendants on their counterclaim, defendants
moved for a judgment n.o.v., or, in the alternative, for a new trial. The defendants have
appealed the denial of this motion by the court below.
1
Sheehan has filed a cross-appeal
from the court's denial of his motion for attorney's fees.
____________________

1
Appellants have characterized this appeal as taken from the jury's verdict. The notice of appeal, however,
reveals that appeal was taken only from the denial of this motion. NRAP 3(c). See, e.g., Charmicor, Inc. v.
Bradshaw Finance Co., 92 Nev. 310, 550 P.2d 413 (1976).
[Headnotes 1, 2]
1. Appellants claim that the trial court erred when it denied their motion for judgment
n.o.v. or a new trial. We disagree.
In reviewing a judgment n.o.v., the standard is the same as for review of a motion for a
directed verdict; we must view the evidence in the light most favorable to the party against
whom the motion was made. Twardowski v. Westward Ho Motels, 86 Nev. 784, 476 P.2d
946 (1970); Kerr v. Mills, 87 Nev. 153, 483 P.2d 902 (1971). Neither the credibility of
witnesses nor the weight of the evidence may be considered. The question is whether the
evidence is such that reasonable men would have necessarily reached a different conclusion.
Drummond v. Mid-West Growers, 91 Nev. 698, 704, 542 P.2d 198 (1975). A motion for
judgment n.o.v. is properly refused when there is evidence in the record which tends to
support the verdict, or when there is a substantial conflict in the evidence which was resolved
by the trier of fact. Bradshaw v. General Electric Co., 91 Nev. 124, 531 P.2d 1358 (1975);
Shaw v. Beehive State Agric. Co-op, 92 Nev. 611, 555 P.2d 958 (1976).
[Headnote 3]
When viewed in the light most favorable to respondent, there is evidence in the record to
support the conclusion that Sheehan and the defendants had reached a complete oral
agreement, by which the parties intended to be bound, upon the terms of Sheehan's
employment, which included a stock purchase agreement, as evidenced by a written
document drafted by Kenny's representative and sent by Kenny to Sheehan. There is also
evidence to support the conclusion that, as contemplated by the parties, Sheehan, relying
upon the contract and also upon a promise that the document would be signed, left his job in
San Francisco, moved to Reno and undertook performance of the contract, including delivery
of a lucrative distributorship to defendants, only to have defendants refuse to sign the
document they had prepared and refuse to perform that part of the contract which provided
for Sheehan's gradual purchase of 49% of the company. There is, in short, substantial
evidence in the record to support Sheehan's claim that there was a contract, enforcement of
which is not precluded by the statute of frauds. Harmon v. Tanner Motor Tours, 79 Nev. 4,
377 P.2d 622 (1963). See Alaska Airlines v. Stephenson, 217 F.2d 295 (9th Cir. 1954);
McIntosh v. Murphy, 469 P.2d 177 (Hawaii 1970); Restatement (Second), Contracts 217A
(Tent. Drafts Nos. 1-7, 1973). With regard to appellants' counterclaim, the record reveals
substantial conflicts in the testimony, and it was the exclusive prerogative of the jury to weigh
and resolve these conflicts.
conflicts. Appellants' motion for a judgment notwithstanding the verdict was properly denied.
[Headnote 4]
Nor have appellants demonstrated error in the court's refusal to grant their alternative
motion for a new trial. We cannot conclude, from the record herein, that had the jury
followed the instructions as given they could not have reached the verdict which they did. No
other applicable ground for a new trial is presented on this appeal. The court's decision not to
grant the motion for a new trial, therefore, must be sustained as well. Fox v. Cusick, 91 Nev.
218, 533 P.2d 466 (1975); Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277 (1978).
[Headnote 5]
2. We also sustain the trial court's denial of Sheehan's motion for attorney's fees under
NRS 608.140.
2
The affidavit submitted in support of the motion asserted only that a demand
letter had been submitted seeking recovery of certain monies then due and owing. There
was, therefore, no basis for the required determination by the court that the demand was for
wages, in a sum which did not exceed the amount found due by the jury.
____________________

2
Whenever a mechanic, artisan, miner, laborer, servant or employee shall have cause to bring suit for wages
earned and due according to the terms of his employment, and shall establish by decision of the court or verdict
of the jury that the amount for which he has brought suit is justly due, and that a demand has been made, in
writing, at least 5 days before suit was brought, for a sum not to exceed the amount so found due, the court
before which the case shall be tried shall allow to the plaintiff a reasonable attorney fee, in addition to the
amount found due for wages and penalties, to be taxed as costs of suit.
____________
95 Nev. 532, 532 (1979) Catania v. State Farm Life Ins. Co.
FRANK CATANIA, Appellant, v. STATE FARM LIFE INSURANCE COMPANY,
INCORPORATED, an Illinois Corporation, Respondent.
No. 9743
August 16, 1979 598 P.2d 631
County; Joseph S. Pavlikowski, Judge.
Insured's father brought action against insurer seeking to recover accidental death benefits.
The district court granted insurer's motion for summary judgment, and plaintiff appealed. The
Supreme Court, Gunderson, J., held that substantial fact issue existed as to whether insured's
death was accidental within meaning of section of policy providing for double recovery if
death of insured resulted from bodily injury effected through accidental means, precluding
summary judgment.
Batjer and Manoukian, JJ., dissented.
Wiener, Goldwater & Waldman, and Gerald M. Gordon, Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondent.
1. Insurance.
Insurance clauses should be taken and understood in their plain, ordinary and popular sense, and
ambiguous insurance policy provisions will be strictly construed against insurer and in favor of insured.
2. Insurance.
Where insured dies as result of an intentional or expected act or event, but did not intend or expect death
to result, the death is accidental within contemplation of that term, as utilized in policy providing for
double recovery if death of insured results from bodily injury effected through accidental means.
3. Judgment.
In action brought against insurer to recover accidental death benefits, substantial fact issue existed as to
whether insured's death was accidental within meaning of section of life insurance policy providing for
double recovery if death of insured resulted from bodily injury effected through accidental means,
precluding summary judgment.
OPINION
Respondent State Farm issued a $10,000 life insurance policy, insuring the life of Marc
Catania, which included an "Accidental Death Section."
Accidental Death Section. With the policy in full force and effect, Marc Catania apparently
regurgitated and choked to death, a result of acute narcotism occasioned by a
self-administered heroin injection. State Farm tendered a check to Frank Catania, Marc's
father and beneficiary, for $10,361.03 in full settlement of the life portion of the policy.
However, State Farm refused payment of any accidental death benefits, and thereupon Frank
Catania brought this action for $10,000, allegedly due under the policy's Accidental Death
Section.
The Accidental Death Section provides for double recovery if the death of the insured
resulted directly, and independently of all other causes, from bodily injury effected solely
through external, violent, and accidental means. . . . The same section excludes coverage for
death resulting directly or indirectly from (1) suicide or intentional self-inflicted injury of
any kind, whether the insured be sane or insane; . . . (3) bodily or mental infirmity or illness
or disease of any kind . . .
In a motion for summary judgment, respondent State Farm claimed: (1) that since the
insured intended to inject the heroin, his death was not the result of an accidental means,
even if he did not intend or expect to die therefrom; (2) that the death resulted from a
self-inflicted injury or a disease, and, as such, was specifically excluded from coverage; and
(3) that in any event the death was not accidental. The district court granted State Farm's
motion for summary judgment.
1
Catania appeals, claiming the district court erred in granting
State Farm's motion for summary judgment. We agree.
1. A growing number of jurisdictions have refused to recognize the technical distinction
between accidental death and death by accidental means, or between accidental means
and accidental result. INA Life Insurance Company v. Brundin, 533 P.2d 236 (Alaska
1975); Gulf Life Insurance Company v. Nash, 97 So.2d 4 (Fla. 1957); Scott v. New Empire
Insurance Company, 400 P.2d 953 (N.M. 1965); Beckham v. Travelers Insurance Company,
225 A.2d 532 (Pa. 1967); Burr v. Commercial Travelers Mut. Acc. Ass'n., 67 N.E.2d 248
(N.Y.App. 1946). The rationale of these cases is to apply the controlling policy language as
the average person would understand it. INA Life Insurance Company v. Brundin, supra. As
explained by the Arizona Supreme Court:
One paying the premium for a policy which insures against death by accidental
means intends to provide benefits to his family or named beneficiary in the event he
should suffer death caused by accident as opposed to death caused by other means,
such as suicide, murder, disease or natural death.
____________________

1
Appellant Catania also made a motion for summary judgment, which the court denied.
should suffer death caused by accident as opposed to death caused by other means,
such as suicide, murder, disease or natural death. He intends to insure against the
fortuitous, the unintentional, and the unexpected, that which happens through mishap,
mischance or misjudgment. When he pays that premium month after month he does not
intend that any act committed by him, no matter how daring, reckless or foolhardy, be
adjudged by a court under reasonable man tests or natural and probable
consequence standards to deprive has beneficiary of contractual rights arising out of
his unintended and unexpected and, therefore, accidental death.
The term accidental means as used in this policy should not be construed in a
technical sense but should be given its ordinary and popular meaning according to
common speech and usage and the understanding of the average man. . . . Insurance
policies upon which the public relies for security in case of accident should be free
from fine distinctions which few can understand until pointed out by lawyers and
judges. . . . (Emphasis in original.)
Knight v. Metropolitan Life Insurance Company, 437 P.2d 416, 420 (Ariz. 1968).
A distinction between accidental means and accidental results is certainly not
understood by the average person, for whom accident policies are written. Burr v.
Commercial Travelers Mut. Acc. Ass'n., supra.
[Headnote 1]
The line of authority referred to above is consistent with the principles long recognized by
this court, i.e. that insurance clauses should be taken and understood in their plain, ordinary
and popular sense, Home Indem. Co. v. Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19 (1970);
Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969), and that
ambiguous insurance policy provisions will be strictly construed against the insurer and in
favor of the insured. Home Indem. Co. v. Desert Palace, Inc., supra; Smith v. N.A.A.I. Co.,
46 Nev. 30, 205 P. 801 (1922); Gerhauser v. N.B. & M. Ins. Co., 7 Nev. 174 (1871).
[Headnote 2]
We therefore hold that where an insured dies as the result of an intentional or expected act
or event, but did not intend or expect death to result, the death is accidental within the
contemplation of that term, as utilized in a policy such as the one before us.
before us. See Knight v. Metropolitan Life Insurance Company, supra; Miller v. Continental
Ins. Co., 358 N.E.2d 258 (N.Y.App. 1976).
[Headnote 3]
2. Applying the same principle of construction to the policy's exclusion clause, we are
constrained to reject respondent's contention that, as a matter of law, Marc Catania's injection
of heroin constituted a self-inflicted injury or disease as those terms are commonly used.
See Minton v. Stuyvesant Life Insurance Company, 373 F.Supp. 33 (D.Nev. 1974). See also
Miller v. Continental Ins. Co., supra.
3. Whether Marc Catania's death was expected or intended, and therefore not accidental,
is a question to be determined by the trier of fact. Since this material issue of fact exists, the
order granting summary judgment is reversed, and the cause is remanded for trial.
Batjer, J. dissenting:
I respectfully dissent from the holding of the majority. The insurance policy being
considered does not cover or insure against a fatality caused by an intentional self-inflicted
injury of any kind.
Here the injection of the heroin by Marc Catania was a bodily injury inflicted upon
himself. The piercing of his body with the needle was intentional and not accidental. The
resulting death was an ever present reality that should have been expected and foreseen.
In Gordon v. Metropolitan Life Ins. Co., 260 A.2d 338, 340 (Md. 1970), that court said:
. . . [w]ith the use of an illegal drug without medical authorization or supervision, a
drug with well known potential for injury, we are hard pressed to say that a great
amount of risk was not assumed, or was unforeseeable.
See Whiteside v. New York Life Ins. Company, 503 P.2d 1107 (Wash.App. 1972).
Furthermore, one of the purposes of the risks not assumed clause in the policy is to deny
additional benefit for death indirectly caused by an intentional self-inflicted injury of any kind
even if a death so caused would be within the coverage of the benefit clause. Jackson v.
Southland Life Ins. Co., 393 S.W.2d 233 (Ark. 1965); Independent Life and Accident Ins.
Co. v. Causby, 94 S.E.2d 3SS {Ga.App.
Ins. Co. v. Causby, 94 S.E.2d 388 (Ga.App. 1956); Cf. Knowlton v. John Hancock Mut. Life
Ins. Co., 79 A.2d 581 (Me. 1951).
The usual and ordinary definition of accidental does not include intentional bodily injury.
Marc Catania's intentional self-injection of heroin was not an accidental bodily injury;
therefore, appellant is not entitled to double indemnity benefits. I agree with Justice
Manoukian that no excess liability exists in this case and that the judgment of the district
court should be affirmed.
Manoukian, J., dissenting:
Respectfully, I dissent. The majority holds that where an insured dies as the result of an
intentional or expected act or event, but did not intend or expect death to result, the death is
accidental' within the contemplation of that term, as utilized in a policy such as the one
before us. [Citations omitted.]
The double indemnity section of the policy applies if the death of the insured resulted
directly, and independently of all other causes, from bodily injury effected solely through
external, violent, and accidental means as evidenced by a visible contusion or wound on the
exterior of the body. . . . The policy does not cover or insure against death resulting directly
or indirectly from (1) suicide or intentional self-inflicted injury of any kind, whether the
insured be sane or insane; . . . (3) bodily or mental infirmity or illness or disease of any
kind. . . .
Respondent argues that death in the instant case did not occur through accidental means as
required by the policy to trigger the double coverage. Appellant contends that Marc Catania
did not intend to take his life, that death was an unexpected result of his self-ingestion of
heroin and that no distinction should be made between accidental means and accidental
result.
In Gordon v. Metropolitan Life Ins. Co., 260 A.2d 338 (Md.App. 1970), involving a
self-administered injection of heroin, the court held that the double indemnity clause for death
resulting from violent, external, and accidental means excluded from coverage a situation
where an individual dies as a result of a self-administered dose of heroinan intentional
illegal act involving serious foreseeable risk. On the basis of this record and in view of the
fact that mere possession of heroin is a felony in this state (NRS 453.336), I would affirm the
judgment of the trial court and hold that no excess liability exists in this case. Here, it is
undisputed that the decedent had been using various illegal drugs, including heroin, for a
period of approximately three years preceding his death.
various illegal drugs, including heroin, for a period of approximately three years preceding
his death. His girlfriend stated that Marc enjoyed getting high, whether on liquor, pills, or
heroin, whatever it was. Marc had passed out on numerous previous occasions, and rather
recently had been hospitalized as a result of an overdose of heroin. During the last three
weeks of his life, he had developed a ready supply of heroin, ingesting a quantity two to three
times a day. On the date of his death, Thanksgiving Day, 1975, prior to dinner, Marc ingested
heroin, various other controlled substances, including tuinol and quaaludes, and had been
drinking alcohol. After dinner, Marc and several of his acquaintances, ingested more heroin,
with Marc self-administering what he was warned and should have known was
unquestionably an excessive quantity. Dr. Sheldon Green, a nationally board certified
pathologist, determined the cause of death was acute narcotism, fatal reaction in an addict.
On this record, the decedent's self-ingestion of drugs was tantamount to a suicide, and
plainly was not within the reasonable expectations of the insured for coverage. See Whiteside
v. N.Y. Life Ins. Co., 503 P.2d 1107 (Wash.App. 1972). With this intentional unlawful act,
involving the well-known poisonous nature of heroin and devastating foreseeable danger,
coupled with the overwhelming evidence that this is not the type of risk against which this
accidental death provision provides coverage, neither public policy or this Court should
reward such a flagrant violation of prevailing moral standards or criminal statutes. See
General Am. Life Ins. Co. v. Lankford, 249 P.2d 91 (Okla. 1952).
The majority improvidently establishes a dichotomy between accidental means and
accidental results. Here there is no ambiguity in the policy. Compare, Travelers Insurance
Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1977); United Services Auto. Ass'n v. Dokter, 86
Nev. 917, 478 P.2d 583 (1970). The insurer, having used the terms accidental means, is
entitled to rely on the policy provision excluding double indemnity benefits for death
resulting from self-inflicted injury. Moreover, where as here, there is no accident in the
means, there can be none in the result. See Murphy v. Travelers Ins. Co., 2 N.W.2d 576 (Neb.
1942); Provident Life & Accident Ins. Co. v. Green, 46 P.2d 372 (Okla. 1935). Again, the
lethal dosage was well in excess of the amount Marc was in the habit of ingesting, was not
inadvertently introduced into his body, cf. Dezell v. Fidelity & Casualty Co., 75 S.W. 1102
(Mo. 1903), nor is there any indication that some unforeseen or unintended condition or
combination of circumstances, external to the state of the victim's body contributed to the
accidental result. Landress v. Phoenix Mut.
Phoenix Mut. Life Ins. Co., 291 U.S. 491, 496-497 (1934). In any event, it is evident that the
means used was not accidental, and it is not enough that the result may be unusual,
unexpected, or unforeseen. Jackson v. National Life and Accidental Insurance Co., 202
S.E.2d 711 (Ga.App. 1973). In the context of this case, I would hold that as a matter of law, a
distinction does exist between accidental means and accidental results. Since death was
not caused by accidental means, I would affirm the summary judgment.
____________
95 Nev. 538, 538 (1979) Ambassador Ins. Corp. v. Feldman
AMBASSADOR INSURANCE CORPORATION, a Vermont Corporation, Appellant, v.
ROBERT B. FELDMAN and ALL-RISK INSURANCE AGENCY, INC., a Nevada
Corporation, Respondents.
No. 9972
CLOVER UNDERWRITERS GENERAL AGENCY, a Nevada Corporation, and HARRY
BRANDISE, Appellants, v. ROBERT B. FELDMAN and ALL-RISK INSURANCE
AGENCY, INC., a Nevada Corporation, Respondents.
No. 9984
August 16, 1979 598 P.2d 630
Consolidated appeal from orders dismissing actions for lack of jurisdiction, Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Insurance companies brought actions against insurance agency seeking damages for
defamation. The district court dismissed the actions for lack of jurisdiction, and appeals were
taken. The Supreme Court, Batjer, J., held that doctrine of exhaustion of administrative
remedies was inapplicable to defamation actions brought by insurance companies against
insurance agency.
Reversed.
Nitz, Schofield & Nitz, Las Vegas, for Appellants.
James R. Crockett, Jr.; and Laurence A. Speiser, Las Vegas, for Respondents.
1. Insurance.
Insurance Commissioner is without authority to award damages caused by defamation; Commissioner's
powers are limited to regulation of insurance trade practices. NRS 686A.015.
2. Insurance.
In order to enforce regulations, Insurance Commissioner may seek injunctive relief from the courts or
issue his own cease and desist orders. NRS 686A.170, 686A.183, 686A.187.
3. Administrative Law and Procedure.
Doctrine of exhaustion of administrative remedies was inapplicable to defamation actions brought by
insurance companies against insurance agency.
OPINION
Appellants filed suit against respondents seeking damages for defamation. Respondents
moved the district court to dismiss the actions for lack of subject matter jurisdiction because
(1) the insurance commissioner had exclusive jurisdiction of this matter and (2) appellants
had failed to exhaust their administrative remedies. The district court granted the motions.
We reverse.
[Headnotes 1-3]
During oral argument before this court respondents abandoned their exclusive jurisdiction
contention and argued that the appellants were precluded from filing suit in the district court
until they had exhausted their remedies before the insurance commissioner. This argument is
without merit. The insurance commissioner is without authority to award damages caused by
defamation; the commissioner's powers are limited to the regulation of insurance trade
practices. NRS 686A.015. In order to enforce regulations the commissioner may seek
injunctive relief from the courts or issue his own cease and desist orders. NRS 686A.170;
NRS 686A.183; NRS 686A.187. Since the commissioner is powerless to grant the relief
appellants seek in their suit, the doctrine of exhaustion of administrative remedies is not
applicable. Ramos v. County of Madera, 484 P.2d 93, 97 (Cal. 1971); Shernoff v. Superior
Court, 118 Cal.Rptr. 680 (Cal.App. 1975); Greenberg v. Equitable Life Assurance Society,
110 Cal.Rptr. 470, 475 (Cal.App. 1973).
All other contentions raised by the parties are without merit and need not be addressed.
and need not be addressed. The orders of the district court dismissing these actions for lack of
jurisdiction are reversed and the cases remanded for further proceedings.
____________
95 Nev. 540, 540 (1979) Anderson v. Weise
WILLIAM A. ANDERSON and JOYCE E. ANDERSON, Appellants, v. SHIRLEY WEISE
and DR. WINTHROP G. DALE, Respondents.
No. 10108
August 16, 1979 598 P.2d 1144
Appeal from judgment; Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Purchasers brought action to reform description of real property in a deed thereof, and to
recover, as damages, attorney fees and other expenses incurred in prosecuting case. The
district court entered judgment ordering reformation and assessing damages, and original
vendors appealed. The Supreme Court, Thompson, J., held that: (1) knowledge by purchasers
of erroneous description in deed between immediate vendors and original vendors before
closing escrow and accepting a transfer of title from immediate vendors through a deed
containing same error in description did not preclude equitable remedy of reformation, since
it was not unreasonable for purchasers to consummate deal after knowledge of mistake
because they had been friends with original vendors and thought they would willingly rectify
mistake, and (2) it was permissible to award purchasers attorney fees as an item of damage.
Affirmed.
Laxalt, Berry & Allison, of Carson City, for Appellants.
C. Frederick Pinkerton, of Reno, for Respondents.
1. Reformation of Instruments.
A deed will be reformed between parties to reflect their true intention when that intention has been
frustrated by mutual mistake.
Those in privity with original parties are entitled to reformation if circumstances have not intervened
rendering such relief inequitable, and thus if a mistake in a description occurs in a series of
conveyances that would entitle any one of purchasers to a reformation as against the
immediate vendor, equity will work back through all and give the last purchaser a
right of reformation against original vendor.
thus if a mistake in a description occurs in a series of conveyances that would entitle any one of purchasers
to a reformation as against the immediate vendor, equity will work back through all and give the last
purchaser a right of reformation against original vendor.
Knowledge by purchasers of erroneous description in deed between immediate vendors and original
vendors before closing escrow and accepting a transfer of title from immediate vendors through a deed
containing same error in description did not preclude equitable remedy of reformation, since it was not
unreasonable for purchasers to consummate deal after knowledge of mistake because they had been friends
with original vendors and thought they would willingly rectify mistake.
In action to reform description of real property in a deed thereof, and to recover, as damages, attorney
fees and other expenses incurred in prosecuting case, it was permissible to award purchasers attorney fees
as an item of damage.
OPINION
This is an action to reform the description of real property in a deed thereof, and to
recover, as damages, attorney's fees and other expenses incurred in prosecuting the case.
Reformation was ordered and damages assessed. This appeal followed.
Mr. and Mrs. William Anderson sold about one acre of land to Mr. and Mrs. Bartholomew
Corrie. The parcel was located near Incline Village and immediately west and sharply
downhill from a pioneer or rough road, the center of which was to be the eastern boundary
line of the parcel. The person who prepared the description used in the deed did not know the
intended eastern boundary line. The parcel was described by metes and bounds based upon a
1965 tentative subdivision map prepared by Crystal Bay Development Company. That
description placed the eastern boundary line substantially to the west of the center line of the
pioneer road and within inches of the home thereafter constructed upon the property by the
Corries.
Shirley Weise and Winthrop Dale became interested in purchasing the Corrie home and
deposited $29,000 in escrow, moved into the home, and expended about $3,900 to complete
certain portions of the home in order to satisfy financing requirements. At that time the
Corries and Weise-Dale believed that the eastern boundary line went to the middle of the
pioneer road. Thereafter, because of conduct on the part of William Anderson, Weise-Dale
decided to have a survey of their parcel. That survey revealed that the eastern boundary line,
as described in the Anderson-Corrie deed, was substantially to the west of the center of the
pioneer road and within inches of the home.
west of the center of the pioneer road and within inches of the home.
Notwithstanding this information, Weise-Dale proceeded to consummate their deal with
the Corries. They believed themselves justified in doing so because they had been friends of
the Andersons and thought it would be easy to rectify the mistake, and also because Mr.
Corrie, after the survey, had assured them that there had to have been a mistake.
Unfortunately, settlement was not possible and this litigation ensued. The judgment from
which this appeal is taken directed that the deed from the Corries to Weise-Dale be reformed
as against William A. and Joyce E. Anderson so as to correctly describe the east boundary as
agreed to by William A. Anderson and Bartholomew Corrie. Damages also were awarded to
Weise-Dale.
[Headnotes 1-3]
1. The central issue is whether knowledge by Weise-Dale of the erroneous description in
the Anderson-Corrie deed before closing escrow and accepting the transfer of title from
Corrie through a deed containing the same error in description precludes reformation.
The Andersons contend that the equitable remedy of reformation is not available in such
circumstances. On the other hand, Weise-Dale argue that since the Corries would have been
entitled to reformation for a mutual mistake, their successors (Weise-Dale), who also relied
upon the Anderson-Corrie understanding as to the location of the east boundary line instead
of the deed description, equally are entitled to that remedy.
We have found no case on point. General principles applicable to reformation in a
different factual context are established. A deed will be reformed between the parties to
reflect their true intention when that intention has been frustrated by mutual mistake. Seyden
v. Frade, 88 Nev. 174, 494 P.2d 1281 (1972). Thus, in the matter at hand, the Corries would
have been entitled to reformation as against the Andersons upon learning of the erroneous
deed description.
In litigation between the original parties it has been held that a grantee paying the balance
of the purchase price after he knew of a mistake in the deed acquiesced in the mistake and
could not urge it as a basis for reformation. Schillinger v. Huber, 320 P.2d 346 (Mont. 1958);
Burnand v. Nowell, 189 P.2d 796 (Cal.App. 1948).
Those in privity with the original parties are entitled to reformation if circumstances have
not intervened rendering such relief inequitable.
relief inequitable. Robo Sales, Inc. v. McIntosh, 495 S.W.2d 420 (Mo. 1973); cf. Adams v.
Baker, 24 Nev. 162 (1897). Thus, if a mistake in a description occurs in a series of
conveyances that would entitle any one of the vendees to a reformation as against the
immediate vendor, equity will work back through all and give the last vendee a right of
reformation against the original vendor. Heini v. Bank of Kremmling, 25 P.2d 1113 (Colo.
1933); Annot., 89 A.L.R. 1444 (1934).
Weise-Dale are in privity with the Corries. In addition to the fact of privity, however, is
their knowledge of the erroneous description in the Anderson-Corrie deed before accepting
title from Corrie containing the same error in description. As before noted, whether such
knowledge precludes reformation is the dispositive issue.
1

The appellants ask us to apply Schillinger v. Huber, supra, and rule, as a matter of law,
that payment of the balance of the purchase price after knowledge of the mistake, precludes
reformation. We do not choose to adopt such a position. Reformation is an equitable remedy
and should be available when fairness demands such relief. This, of course, essentially is a
factual determination. Had the trial court declined to accept the advisory jury's
recommendation believing that, in the circumstances present, knowledge of the mistake by
Weise-Dale should preclude reformation, we might well affirm. However, the trial court
accepted the advisory jury's recommendation, apparently believing that, in the circumstances
present, it was not unreasonable for Weise-Dale to consummate the purchase from the
Corries, and, therefore, directed reformation. Cf. Stoerger v. Ivesdale Co-Op Grain Company,
304 N.E.2d 300 (Ill.App. 1973), where the court noted that to bar reformation, the negligence
of a party must be so gross as to amount to a violation of a positive legal duty. Weise-Dale
consummated the deal after knowledge of the mistake because they had been friends with the
Andersons and thought they would willingly rectify the mistake. In our view, it was
permissible for the court below to conclude, as a matter of fact, that fairness demanded
reformation.
[Headnote 4]
2. The district court awarded Weise-Dale attorney's fees as an item of damage. The award
was permissible. City of Las Vegas v. Bailey, 92 Nev. 756, 55S P.2d 622 {1976); Pearson v.
Clucas, S9 Nev. 179, 510 P.2d 629 {1973); Artistic Hairdressers, Inc. v.
____________________

1
In the reverse situation we have allowed reformation to a grantor as against a subsequent grantee who took
possession with knowledge of a mistake made between the grantor and original grantee concerning a property
description in the deed. Lattin v. Gray 75 Nev. 128, 335 P.2d 778 (1959).
Vegas v. Bailey, 92 Nev. 756, 558 P.2d 622 (1976); Pearson v. Clucas, 89 Nev. 179, 510 P.2d
629 (1973); Artistic Hairdressers, Inc. v. Levy, 87 Nev. 313, 486 P.2d 482 (1971); American
Fed. Musicians v. Reno's Riverside, 86 Nev. 695, 475 P.2d 220 (1970); cf. City of Las Vegas
v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970).
3. Other assigned errors do not merit discussion.
Affirmed.
____________
95 Nev. 544, 544 (1979) Clark v. Truck Ins. Exchange
WILLIAM E. CLARK, Appellant, v. TRUCK INSURANCE
EXCHANGE, Respondent.
No. 9885
August 16, 1979 598 P.2d 628
County; Joseph S. Pavlikowski, Judge.
Insured brought suit against insurer seeking to recover money allegedly due under policy
for fire loss. The district court granted insurer's motion for summary judgment, and insured
appealed. The Supreme Court, Batjer, J., held that clause requiring that suits be brought
within 12 months after the inception of the loss allowed period of limitations to run from
the date of the casualty, but the period was tolled from time insured gave notice of loss until
insurer formally denied liability.
Crockett & Rickdall, Las Vegas, for Appellant.
Thorndal & Liles, Ltd., and George R. Lyles, Las Vegas, for Respondent.
1. Insurance.
When a clause in an insurance policy is ambiguous, court will interpret the language in favor of the
insured.
2. Insurance.
Clause in fire policy which required that suit be brought within 12 months after the inception of the loss
allowed period of limitations to run from the date of the casualty, but period would be
tolled from the time insured gave notice of the loss until insurer formally denied
liability.
run from the date of the casualty, but period would be tolled from the time insured gave notice of the loss
until insurer formally denied liability.
OPINION
Appellant brought suit against respondent seeking to recover money allegedly due
pursuant to an insurance policy issued to the appellant by the respondent. Respondent moved
for summary judgment contending that the suit was barred by a clause in the policy which
required that suit be brought within 12 months after the inception of the loss.
1
The district
court agreed and granted the motion. On appeal appellant contends that it was error to grant
the summary judgment because the limitation period did not begin to run until the respondent
formally denied liability and there was no evidence that such denial had ever occurred. We
agree.
The fire which gave rise to this litigation occurred on October 16, 1973. Appellant
immediately notified respondent of the incident and, at some later date which is unspecified
in the record, filed a proof of loss form. According to appellant's affidavit in opposition to the
motion for summary judgment, appellant attempted to negotiate a settlement up until
November 20, 1975, when suit was commenced.
While the twelve-month limitation period may represent a reasonable balance between the
insurer's interest in prompt commencement of action and the insured's need for adequate time
to bring suit, the insured in reality does not have the full twelve months in which to
commence the action because of substantial delays built into the insurance policy. Tom
Thomas Organization v. Reliance Ins. Co., 242 N.W.2d 396 (Mich. 1976). Here the insured
must first give written notice of the loss to the insurer. The insured then has 90 days to file a
proof of loss claim; however, the insurer may grant extensions of time beyond the ninety
days. After the proof of loss form has been filed the claim becomes payable in sixty days if
the parties have agreed to a settlement or the insured has obtained an award of judgment.
____________________

1
The clause reads:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or
equity unless all the requirements of this policy shall have been complied with, and unless commenced within
twelve months next after inception of the loss.
[Headnotes 1, 2]
When a clause in an insurance policy is ambiguous this court will interpret the language in
the favor of the insured. North American Life & Casualty Co. v. Gingrich, 91 Nev. 491, 538
P.2d 163 (1975). Cf. Continental Casualty Co. v. Summerfield, 87 Nev. 127, 131, 482 P.2d
308, 310 (1971); Home Indemnity Co. v. Desert Palace, Inc., 86 Nev. 234, 236, 468 P.2d 19,
21 (1970). If the limitation period is construed to commence to run from the date of the fire,
then the entire period could, as here, be consumed by the built-in delays of the policy and by
the time in which the parties attempt to negotiate the claim.
2
It would not be reasonable for
the insured to anticipate such construction. The limitation clause in the policy is ambiguous
and is construed against the insurer. United Services Auto. Ass'n v. Dokter, 86 Nev. 917, 920,
478 P.2d 583, 585 (1970). We construe the clause to allow the period of limitations to run
from the date of the casualty, but the period will be tolled from the time appellant gave notice
of the loss until respondent formally denies liability.
3
Tom Thomas Organization v. Reliance
Ins. Co., supra; Peloso v. Hartford Fire Ins. Co., 267 A.2d 498 (N.J. 1970). Cf. Fireman's
Fund Ins. Co. v. Sand Lake Lounge, Inc.,
____________________

2
The statutory limitation on an action upon a contract, obligation or liability founded upon an instrument in
writing is six years. NRS 11.190(1)(b).

3
In so holding we recognize the split among jurisdictions concerning this issue. Many states, relying
principally on statutory language which is by law incorporated into the insurance policy, hold that the limitation
period begins from the date of the casualty. E.g., Adams v. Northern Ins. Co. of N.Y., 493 P.2d 504 (Ariz.App.
1972); Olson Enterprises, Inc. v. Citizens Ins. Co. of N.J., 121 N.W.2d 510 (Iowa 1963); P.O.P. Constr. Co. v.
State Farm Fire & Cas. Co., 328 So.2d 105 (La. 1976); Proc v. Home Ins. Co., 270 N.Y.S.2d 412 (N.Y. 1966);
Bell v. Quaker City Fire & Marine Ins. Co., 370 P.2d 219 (Ore. 1962); United States Nat'l Bank of Ore. v.
America Home Assurance Co., 443 F.2d 844 (9th Cir. 1971) (applying Oregon law); and Ramsey v. Home Ins.
Co., 125 S.E.2d 201 (Va. 1962). Cf. Stansbury v. Smith, 424 S.W.2d 571 (Ky. 1968). Since Nevada does not
have a statute which controls this issue, we are not bound by the rules of statutory construction. Compare P.O.P.
Constr. Co. v. State Farm Fire & Cas. Co., supra.
For cases applying the rule adopted by us today, but to different factual situations, see Richards v. Am.
Fellowship Mut. Ins. Co., 270 N.W.2d 670 (Mich.App. 1978); Nat'l Newark & Essex Bank v. Am. Ins. Co., 385
A.2d 1216 (N.J. 1978); and Tell v. Cambridge Mut. Fire Ins. Co., 375 A.2d 315 (N.J. Super. 1977).
For other cases dealing with a somewhat similar issue, and reaching varied results, see Westchester Fire Ins.
Co. v. Sperling, 421 F.2d 141 (9th Cir. 1970); Sager Glove Corp. v. Aetna Ins. Co., 317 F.2d 439 (7th Cir.
1963), cert. denied 375 U.S. 921 (1963); Zurn Engineers v. Eagle Star Ins. Co., 132 Cal.Rptr. 206 (Cal.App.
1976); Lardas v. Underwriters Ins. Co., 231 A.2d 740 (Pa. 1967); and Shamrock Homebuilders, Inc. v.
Cherokee Ins. Co., 466 S.W.2d 204 (Tenn. 1971).
Lounge, Inc., 514 P.2d 223 (Alas. 1973). This construction preserves the literal language of
the limitation provision by providing that the insured will have only 12 months to institute
suit, but does not penalize the insured for the time consumed by the insurer while it pursues
contractual rights to receive a proof of loss or negotiates payment with the insured. Tom
Thomas Organization v. Reliance Ins. Co., supra; Peloso v. Hartford Fire Ins. Co., supra.
Since the appellant immediately notified his insurer of the casualty the limitation period
was tolled until such time as respondent formally denied its liability. There being no evidence
of such a formal denial, the district court erred in granting the summary judgment.
Reversed and remanded for further proceedings.
____________
95 Nev. 547, 547 (1979) Pickworth v. State
BRIAN SCOTT PICKWORTH, Appellant, v. THE STATE
No. 10404
August 16, 1979 598 P.2d 626
Defendant was convicted before the district court of first degree murder of 75-year-old
victim found in her trailer, and he appealed. The Supreme Court, Batjer, J., held that: (1)
defendant's taped confession was not rendered inadmissible on asserted ground that he had
given the confession while suffering from drug withdrawal and had been induced to confess
by the promise of medical aid; (2) evidence established that defendant had been capable of
forming the necessary intent; and (3) prosecutor's remark in closing that defendant's drug
intoxication defense to homicide was a red herring interposed only in the hope that the jury
would render compromise verdict of second degree murder was highly improper, but
defendant was not prejudiced inasmuch as evidence against defendant was substantial and
there was little evidence to support the defense theory.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk B. Lenhard, Deputy Public Defender, Clark
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, Ira
H. Hecht, Deputy District Attorney, and James V. Lavell, III, Deputy District Attorney, Clark
1. Criminal Law.
Defendant's taped confession was not rendered inadmissible on asserted ground that he had given the
confession while suffering from drug withdrawal and had been induced to confess by the promise of
medical aid, inasmuch as defendant's withdrawal symptoms had been minor and during the confession he
was coherent, able to recall facts in great detail and showed no signs of discomfort, absent any evidence
that defendant had been in any way induced to confess by alleged promise of medical aid.
2. Homicide.
In prosecution for first degree murder of 75-year-old victim found in her trailer, evidence established that
defendant had been capable of forming the necessary intent thus refuting claim that he had been so
intoxicated on drugs at time of killing that he had been incapable of forming the requisite intent.
3. Criminal Law.
Prosecutor's remark in closing that defendant's drug intoxication defense to homicide was a red herring
interposed only in the hope that the jury would render compromise verdict of second degree murder was
highly improper, but defendant was not prejudiced inasmuch as evidence against defendant was substantial
and there was little evidence to support the defense theory.
OPINION
On October 24, 1976, a 75-year-old woman was found murdered in her Las Vegas trailer.
Her hands were bound and the residence ransacked. She had been killed by numerous blows
to the head and a knife wound to the neck.
Appellant was charged with the murder. The jury found him guilty of murder in the first
degree; he was sentenced to life in prison without the possibility of parole. On appeal he
claims that the conviction must be reversed because (1) his confession should not have been
admitted into evidence; (2) there was insufficient evidence to sustain the verdict; and (3) he
was denied a fair trial because of statements made by the prosecution. We disagree.
[Headnote 1]
1. Appellant contends that his taped confession should not have been admitted into
evidence because it was involuntarily given.
have been admitted into evidence because it was involuntarily given. In support of this
contention he asserts that he gave the confession while suffering from drug withdrawal and
was induced to confess by the promise of medical aid.
A confession by a defendant suffering from drug withdrawal may be involuntary when the
withdrawal results in a confession which is not the product of a rational intellect and a free
will. United States v. Harden, 480 F.2d 649 (8th Cir. 1973). In this case appellant's
withdrawal symptoms were minor. During the confession he was coherent, able to recall facts
in great detail, and showed no signs of discomfort. Under these circumstances we are satisfied
that the appellant voluntarily made the incriminating statements. United States v. Harden,
supra. Cf. Tucker v. State, 92 Nev. 486, 553 P.2d 951 (1976); Stewart v. State, 92 Nev. 168,
547 P.2d 320 (1976). Furthermore, there is no evidence that appellant was in any way
induced to confess by the alleged promise of medical aid.
1
State v. Jones, 546 P.2d 43
(Ariz.App. 1976). The district court did not err when it admitted the confession.
[Headnote 2]
2. Appellant argues that the first degree murder conviction must be reversed because there
was insufficient evidence to prove he intended to kill or rob the victim. This argument is
premised on his contention that he was so intoxicated on drugs at the time of the killing that
he was incapable of forming the requisite intent.
This argument contains no merit. The state presented evidence which tended to prove that
appellant did not possess hard drugs at the time of the murder. In appellant's confession he
admitted that he was not on drugs; that he entered the residence in search of food and money;
and that he struck the sleeping victim with a hammer which he had carried into the trailer.
Two days before the murder appellant told a friend that he was going to the victim's home to
borrow some money and take her car. After the murder and while still in the trailer, the
appellant cooked some food and direct-dialed a long-distance phone call to a friend in
California. Appellant removed several pieces of valuable jewelry from the residence and left
behind the less valuable ones. In light of these facts, there is overwhelming evidence that
appellant was capable of forming the necessary intent Dearman v. State, 93 Nev. 364
____________________

1
The evidence is in dispute as to what promises were made. Appellant testified that the promise was made
before the taped confession began. Even if we were to accept this testimony as being true, it is clear that the
promise did not induce the confession because he did not decide to admit the crime until approximately 15
minutes after the taped confession had began.
necessary intent Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977).
[Headnote 3]
3. During closing argument, the deputy district attorney told the jury that appellant's drug
intoxication defense was a red herring interposed only in the hope that the jury would
render the compromise verdict of second degree murder. Appellant's objection to this line of
argument was sustained. After the jury retired appellant moved for a mistrial. The district
court denied the motion.
That remark was highly improper. The prosecution should not disparage legitimate defense
tactics. Commonwealth v. Gilman, 368 A.2d 253, 258 (Pa. 1977). Although such a comment
may be error, we conclude that a reversal is not mandated here because the evidence against
the appellant was substantial and there was little evidence to support the defense's theory. It is
clear that appellant was not prejudiced by the comment. People v. Shorter, 375 N.E.2d 513,
521 (Ill.App. 1978); State v. Bettin, 244 N.W.2d 652 (Minn. 1976). Cf. Dearman v. State,
supra.
4. Other contentions raised by the appellant are without merit.
Affirmed.
2

____________________

2
Respondent's attorneys on appeal were not involved in the district court proceedings.
____________
95 Nev. 550, 550 (1979) Mills v. City of Henderson
RICHARD MILLS, an Individual; and BEAM, INC., a Corporation, Appellants, v. THE
CITY OF HENDERSON, a Municipal Corporation, LOREN L. WILLIAMS, Mayor,
LORNA J. KESTERSON, Councilwoman, J. GARY PRICE, Councilman,
and PHIL STOUT, Councilman, Respondents.
No. 9493
August 17, 1979 598 P.2d 635
Appeal from order denying writ of mandamus, Eighth Judicial District Court, Clark
Applicants for pawnshop license filed suit seeking writ of mandamus ordering city council
to issue license. The district court issued alternate writ of mandate, but after showing by
respondent, denied petition for writ and discharged alternative writ, and applicants appealed.
The Supreme Court, Batjer, J., held that denial of license which was based upon majority
shareholder's lengthy criminal record was not arbitrary or oppressive exercise of discretion by
police chief or city council.
Affirmed.
[Rehearing denied October 8, 1979]
Kent J. Dawson, Las Vegas, for Respondents.
Although a legislative body cannot confer unlimited power upon an officer without designating standards
to guide his action, there are limitations on this rule.
2. Consumer Credit.
Where activity to be licensed is pawnbroking, which is proper and necessary subject of police
surveillance and regulation, grant of discretionary power to license need not be restricted by specific
standards.
3. Licenses.
It is presumed that officer or agency will not perform licensing duty in arbitrary or oppressive manner; if
an abuse is shown, relief may be obtained in the courts.
4. Consumer Credit.
Denial of pawnbroking license by city council, after police chief had made negative recommendation,
which was based on majority shareholder's lengthy criminal record, was not the result of arbitrary or
oppressive exercise of discretion by police chief or city council.
OPINION
In order to operate a pawnshop appellants applied to the City of Henderson, Nevada, for a
license. Pursuant to the City's pawnshop licensing code, such a license would not be issued if
the City's police chief disapproved the application; however, by a majority vote the city
council could grant the license despite the police chief's negative recommendation.
1
Appellants' application failed to receive approval from the police chief and, after two
hearings in which Mills and his attorney were present, the city council refused to issue the
license.
____________________

1
The pertinent code section reads:
All applications for pawnbrokers' licenses or renewals thereof shall be made by petition to the city council
at a regular meeting thereof, and shall be immediately referred to the chief of police, or acting chief, for his
approval. In
Appellants' application failed to receive approval from the police chief and, after two hearings
in which Mills and his attorney were present, the city council refused to issue the license.
Denial was based upon the majority shareholder's lengthy criminal record.
2

Subsequently, appellants filed suit in district court seeking a writ of mandamus ordering
respondents to issue the license. The court issued an alternative writ of mandate, but after a
showing by respondents, denied the petition for the writ and discharged the alternative writ.
On appeal appellants argue that the writ should issue because the City's pawnshop licensing
code is unconstitutional since it does not specify standards upon which such licenses may be
granted. We disagree.
[Headnotes 1-3]
Although a legislative body cannot confer unlimited power upon an officer without
designating standards to guide his action, there are limitations on this rule. In re Petersen, 331
P.2d 24, 28 (Cal. 1958). When, as here, the activity to be licensed is pawnbroking, which is
the proper and necessary subject of police surveillance and regulation, we think the grant of
discretionary power to license need not be restricted by specific standards. Iscoff v. Police
Comm'n, 35 Cal.Rptr. 189, 194-196 (Cal.App. 1963). Cf. Liberman v. Cervantes, 511 S.W.2d
835 (Mo. 1974). It is presumed the officer or agency will not perform the licensing duty in an
arbitrary or oppressive manner; if an abuse is shown, relief may be obtained in the courts. In
re Petersen, supra; Bell v. City of Mountain View, 136 Cal.Rptr. 8, 13 (Cal.App. 1977);
Subriar v. City of Bakersfield, 130 Cal.Rptr. 853 (Cal.App. 1976); San Francisco Street
Artists Guild v. Scott, 112 Cal.Rptr. 502 (Cal.App. 1974); Iscoff v. Police Comm'n, supra.
[Headnote 4]
Here, there is no evidence that the denial of the license was the result of the arbitrary or
oppressive exercise of discretion by the police chief or city council.
Appellants' remaining contentions are either unsupported by any evidence or without
merit.
____________________
no case shall a license be issued or renewed when his disapproval is endorsed upon the petition, except by a
majority vote of the city council. The chief of police shall return all such petitions, with his approval or rejection
endorsed thereon, to the city council for final action at the next regular meeting thereof after the receipt of such
petition by him.

2
Richard Mills owns sixty percent of the stock of Beam, Inc.; his wife, thirty-five percent; and one Jean
Beam, five percent.
any evidence or without merit. Watson v. Watson, 95 Nev. 495, 596 P.2d 507 (1979).
Affirmed.
Mowbray, C. J., and Thompson, Gunderson, and Manoukian, JJ. concur.
____________
95 Nev. 553, 553 (1979) Davies v. State
JOHN DAVIES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10390
August 17, 1979 598 P.2d 636
Appeal from judgment upon jury verdict of guilty of murder in the first degree, Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
The Supreme Court, Manoukian, J., held that defendant's constitutional right to confront
adverse witnesses was violated by a detective's testimony concerning statements and
confessions made to him by a deceased accomplice; and defense counsel's failure to object to
testimony regarding accomplice's remarks did not constitute waiver of objection.
Reversed and remanded for new trial.
William N. Dunseath, Washoe County Public Defender, and Michael B. McDonald,
Deputy, Reno, for Appellant.
1

Richard H. Bryan, Attorney General, Carson City, Calvin R. X. Dunlap, Washoe County
District Attorney, Bruce R. Laxalt, Deputy District Attorney, Reno, for Respondent.
1. Criminal Law.
In prosecution for first degree murder, defendant's constitutional right to confront adverse witnesses was
violated by detective's testimony concerning statements and confessions made to him by deceased
accomplice; and defense counsel's failure to object to testimony regarding accomplice's remarks did not
constitute waiver of that objection.
2. Criminal Law.
Not every violation of right of confrontation mandates reversal and thus, where independent evidence of
guilt is truly overwhelming and improperly admitted evidence cumulative resulting
conviction will not be reversed.
____________________

1
Appellant had other counsel below. The public defender has argued and briefed this appeal.
improperly admitted evidence cumulative resulting conviction will not be reversed.
OPINION
Upon a jury verdict, appellant John Davies, 23, was convicted of the first degree murder of
Michael Marcheschi, 19, and sentenced to life imprisonment without the possibility of parole.
For the reasons expressed in this opinion, the judgment is reversed and the case remanded for
a new trial.
On the evening of Wednesday, February 23, 1977, after a day of drinking beer and
ingesting other intoxicants, appellant and his friend, Don Smith, 20, drove to Floriston,
California to pick up a third friend, Calvin Brotzman, 17. Brotzman's parents had recently
given him a new .12 gauge shotgun and he was given permission to spend the night at Smith's
home in Reno and to go shooting with Smith and Davies the following morning.
Later that night, when the three young men returned to Smith's mobile home, Davies
decided to use Brotzman's gun to teach the victim, Marcheschi, a lesson. Marcheschi had
two weeks previously supplied Davies a quantity of marijuana, allegedly for resale, for which
Davies owed him one hundred dollars. Appellant and Marcheschi had engaged in similar
credit transactions in the past, but apparently on this occasion Marcheschi was anxious to get
his money as demands were being made on him by his own creditors. Marcheschi had not
personally threatened appellant, but it was generally known among their mutual friends that
Marcheschi was rather upset respecting Davies' nonpayment.
Davies wrapped the breech of the shotgun with rags and masking tape, and, at
approximately 2:30 a.m. Thursday morning, he and Brotzman drove to Marcheschi's home in
Sparks. Their arrival was hardly a quiet one. A neighbor testified that at around the time in
question she heard a car drive up with the stereo turned up loud and come to a stop in the
cul-de-sac where the victim lived.
Moments later, officers responded to another neighbor's call that gunshots had been fired
at 1445 Dodson Way. Appellant and Calvin Brotzman were arrested later that morning for the
murder of Michael Marcheschi. Both the suspects gave statements to the police. Brotzman
was subsequently released on bail but died prior to trial.
Davies did not testify at trial. The theory of his defense was that the killing was without
deliberation and premeditation. He thereby sought to lessen the degree of his culpability from
first degree murder to second. NRS 200.030. His statements to the police were introduced in
evidence against him. In his second statement, appellant admitted the homicide. He stated
that he and Brotzman climbed a fence into Marcheschi's backyard and proceeded to the
victim's bedroom window. Appellant aimed the gun and yelled, Surprise. When Marcheschi
awakened and came to the window to see what appellant and Brotzman wanted, appellant
motioned him to come to the backdoor. Marcheschi proceeded to do so, and as he opened the
kitchen door, he said through the screen door to appellant, You are going to get it. At that
point, Brotzman fled back to the car. As Marcheschi attempted to open the screen door and
come out of the house, Davies asserted he got spooked and attempted to level the gun. The
weapon discharged, firing at least one charge through the door and into the victim's chest and
abdominal area. The impact of the shot at such close range (6 to 10 feet) pushed the victim
backwards into the house. In a panic, appellant picked up the expended cartridge, jumped the
fence and together with Brotzman, drove away. When they returned to the scene a few hours
later, the police had already arrived and were investigating the area. Appellant did not turn
himself in at that time.
Marcheschi managed to carry himself to a neighbor's house where the police and an
ambulance were summoned. The victim retained consciousness long enough to name
appellant as his assailant.
2

Such was the nature of the evidence against Davies. Others testified concerning statements
appellant allegedly made, including a comment to Smith on the day of the shooting that he
had to shoot someone. A drawing Davies purportedly made depicting the location of the
victim's bedroom in relation to the remainder of the Marcheschi home was also discovered
and introduced at trial.
Much of the essential evidence of premeditation and deliberation, however, was supplied
by the testimony of Detective Terry Lee Rusk, a Sparks Police Officer, who took the
statement of Calvin Brotzman. Brotzman's statement, as related by Rusk, in large part
confirmed much of what Davies had said, but also contained sufficient evidence of
deliberation and premeditation which, if believed by the jury, would have overcome
appellant's contention that the shooting was accidental.
____________________

2
The neighbor testified without objection that a shot from the Marcheschi house woke him up between 2:30
and 2:40 a.m. He met the victim lying at his front door holding his side, bleeding profusely and brought him
inside. Another neighbor arrived and asked Marcheschi, What happened? Who did this? Marcheschi
replied, John Davies did it. When asked why, Marcheschi allegedly said, He owes me $100.
Rusk, in large part confirmed much of what Davies had said, but also contained sufficient
evidence of deliberation and premeditation which, if believed by the jury, would have
overcome appellant's contention that the shooting was accidental. Thus, the detective testified
without objection, He [Brotzman] stated that the plan was that he was to rap at the window;
the victim, Michael Marcheschi, was to look out the window; and John Davies was going to
shoot him. (Emphasis added.) However, according to Rusk's recollection of the statement,
when Marcheschi came to the window, the gun jammed because the safety was engaged.
Brotzman then ran back to the car. As he was climbing over the fence, he heard what must
have been the fatal shot.
[Headnote 1]
At that point in the detective's testimony, the trial judge, sua sponte, stopped the
questioning and expressed his concern over what he accurately perceived as a violation of the
rule announced in Bruton v. United States, 391 U.S. 123 (1968). Out of the jury's presence,
appellant's trial counsel agreed
3
and objected to any further testimony relating to Brotzman's
statement unless it could be shown that the statement was made under oath and recorded,
counsel apparently mistakenly believing that that would resolve the Bruton problem.
____________________

3
Counsel stated:
My understanding is [that] in the statement [Brotzman] was not under oath. So I'm going to object to
any further statements by Mr. Brotzman, whether written or oral, unless they were under oath or have
some degree of truthfulness, or otherwise bring him forth so that I can cross-examine him.
The court then said:
. . . My concern, and the reason I had the jury go out of here, is because of the potential constitutional
problems with a co-defendant's statements. . . .
Trial counsel reiterated his objection:
Your honor . . . I . . . object to any further testimony from [Detective Rusk] regarding Brotzman[s
statement] unless it can be shown that the statement is under oath.
. . . . .
. . . I'll take the brunt of what's happened so far.
. . . . .
. . . I think it's my responsibility as to making this objection before. However, there was some method
to our madness at that point. But I think we will, in order to protect his rights, the rights of this defendant,
I'm going to object to any further . . . statements made by Mr. Brotzman unless there is some degree of
trustworthiness attached to them. . . .(Emphasis added.)
The jury was returned to the courtroom. Detective Rusk was excused. No cautionary or limiting instruction was
given the jury.
believing that that would resolve the Bruton problem. The trial court sustained the objection,
but no cautionary instruction was sought, and none was given; and, in our view, such an
instruction could not, in the context of this case, have served as an adequate substitute for
[appellant's] constitutional right of cross-examination. Bruton v. United States, 391 U.S. at
137.
Urging reversal, appellant claims his constitutional right to confront adverse witnesses was
violated by Detective Rusk's testimony concerning statements and confessions made to him
by the deceased accomplice Brotzman. We are constrained to agree.
In Bruton v. United States, the Supreme Court held that the defendant's inability to
cross-examine a nontestifying co-defendant about his implicating confession violated
defendant's Sixth Amendment right of confrontation even though the jury was instructed that
the confession was only to be considered as evidence against the co-defendant. Bruton and
one Evans were charged with armed postal robbery, a federal offense. 18 U.S.C. 2114. In
their joint trials, a postal inspector testified that Evans (the co-defendant) orally confessed to
him that he and Bruton committed the crime. There, as here, no conspiracy was charged or
independently proved, cf. Dutton v. Evans, 400 U.S. 74 (1970) (conspiracy proved), and the
references to Bruton in Evans' confession were not deleted. See United States v. Roach, 590
F.2d 181, 185 (5th Cir. 1979), United States v. Gaines, 563 F.2d 1352 (9th Cir. 1977).
Neither Evans nor Bruton took the stand, and both were convicted. In reversing Bruton's
conviction, the high Court said:
Here, Evans' oral confessions were in fact testified to, and were therefore actually in
evidence. That testimony was legitimate evidence against Evans and to that extent was
properly before the jury during its deliberations. Even greater, then, was the likelihood
that the jury would believe Evans made the statements and that they were truenot just
the self-incriminating portions but those implicating petitioner as well. Plainly, the
introduction of Evans' confession added substantial, perhaps even critical, weight to
the Government's case in a form not subject to cross-examination, since Evans did not
take the stand. Petitioner was thus denied his constitutional right of confrontation.
Bruton v. United States, 391 U.S. at 127-28 (emphasis added). Quoting from Justice
Frankfurter's dissent in an earlier case, the Court went on to say, The government should not
have the windfall of having the jury be influenced by evidence against a defendant which,
as a matter of law, they should not consider but which they cannot put out of their
minds." Id. at 129, quoting Delli Paoli v. United States, 352 U.S. 232, 24S {1957)
{Frankfurter, J., dissenting).
against a defendant which, as a matter of law, they should not consider but which they cannot
put out of their minds. Id. at 129, quoting Delli Paoli v. United States, 352 U.S. 232, 248
(1957) (Frankfurter, J., dissenting). The Court found a concededly clear instruction to the jury
to disregard Evans' inadmissible hearsay confession, insofar as it implicated Bruton, to be an
inadequate substitute for Bruton's constitutional right of cross-examination.
Likewise, here, Brotzman's remarks to the police were inadmissible hearsay as against
Davies, and it is not contended that the remarks were admissible on any theory of joint
criminal venture or conspiracy. Cf. Cranford v. State, 95 Nev. 471, 596 P.2d 489 (1979).
Clearly, Brotzman's statements added substantial, perhaps critical, weight to the [state's]
case in a form not subject to cross-examination. . . . Bruton v. United States, 391 U.S. at
127-28. Davies was thus denied his constitutional right of confrontation. United States v. Di
Rodio, 565 F.2d 573, 576 (9th Cir. 1977).
[Headnote 2]
However, not every violation of the right of confrontation mandates reversal. Therefore,
where the independent evidence of guilt is truly overwhelming and the improperly admitted
evidence cumulative, the resulting conviction will not be reversed. Brown v. United States,
411 U.S. 223, 230-32 (1973); Schneble v. Florida, 405 U.S. 427, 430-32 (1972); Harrington
v. California, 395 U.S. 250, 253-54 (1969). See also United States v. Bobo, 586 F.2d 355 (5th
Cir. 1978).
The state concedes that had proper and timely objection to the detective's testimony been
made, it would have been sustained. Nevertheless, it argues that trial counsel's failure to
object earlier to Rusk's damning testimony regarding Brotzman's remarks constitutes a waiver
of the objection. We disagree. The Supreme Court did not require a proper motion to preserve
the constitutional rights involved in Bruton and neither will we. See United States v. Marks,
585 F.2d 164 (6th Cir. 1978).
4
Furthermore, in Roberts v. Russell, 392 U.S. 293 {196S), the
high court held that the Bruton doctrine was applicable to the states and was to be given
retroactive effect, thereby strongly indicating that a Bruton violation may deprive an
accused of substantive due process.
____________________

4
Because of our holding on this issue, we find it unnecessary to reach appellant's claim that his trial counsel
was inadequate and ineffective.
Even if we were to accept the state's argument that the objection was waived, we fail to perceive any possible
theory of trial strategy or tactics which would justify a knowing failure to object to the detective's testimony. See
Douglas v. Alabama, 380 U.S. 415 (1965). So far as we can discern from this record, trial counsel's supposed
decision to waive this valid evidentiary and constitutional objection, cf. Barker v. State, 95 Nev. 309, 594 P.2d
719 (1979) (on appeal, counsel did not challenge admission of testimony), was not tactically motivated and was
completely ill advised. See People v. Ibarra, 386 P.2d
(1968), the high court held that the Bruton doctrine was applicable to the states and was to be
given retroactive effect, thereby strongly indicating that a Bruton violation may deprive an
accused of substantive due process. Here, the error was both obvious and substantial, Sykes
v. United States, 373 F.2d 607, 612 (5th Cir. 1966), and we cannot say that the properly
admitted evidence of deliberation and premeditation was overwhelming or that the error was
harmless beyond a reasonable doubt. Cf. Harrington v. California, 395 U.S. at 254
(statements of co-conspirators merely cumulative and other evidence overwhelming).
Accordingly, the judgment is reversed.
____________________
487 (Cal. 1963), where the record revealed defense counsel's ignorance of fundamental evidentiary rules.
In Garner v. State, we stated:
As a general rule, the failure to object, . . . will preclude appellate consideration. . . . However, where the
errors are patently prejudicial and inevitably inflame or excite the passions of the jurors against the
accused, the general rule does not apply. . . . An accused, whether guilty or innocent, is entitled to a fair
trial, and it is the duty of the court and the prosecutor to see that he gets it.
Garner v. State, 78 Nev. 366, 372-73, 374 P.2d 525, 529 (1962) (citations omitted).
____________
95 Nev. 559, 559 (1979) Franklin v. Bartsas Realty, Inc.
ALBERT FRANKLIN, OLETA FRANKLIN and J. T. FRANKLIN, Appellants, v.
BARTSAS REALTY, INC., Respondent.
No. 10923
August 21, 1979 598 P.2d 1147
Appeal from an order denying an injunction to preclude enforcement of a default
judgment. Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
Action was brought to enjoin enforcement of default judgment for commission obtained
by real estate broker against property owners. The district court denied relief and property
owners appealed. The Supreme Court, Mowbray, C. J., held that: (1) a letter sent to
respondent's attorney by one appellant, a layman, and similar letter he sent on behalf of two
other appellants to effect that appellants had no obligation to respondent for stated
reason constituted an appearance in the action, entitling all appellants to three-day notice
prior to entry of default judgment, and {2) if proved, alleged absence of contract
employing respondent, cancellation of any such contract, or abandonment by respondent
of its efforts on appellants' behalf would tend to establish a defense to action for
commission; thus appellants presented facts which, if true, would tend to establish
complete or partial defense, for purposes of determining whether appellants were entitled
to have the default judgment set aside.
appellants to effect that appellants had no obligation to respondent for stated reason
constituted an appearance in the action, entitling all appellants to three-day notice prior to
entry of default judgment, and (2) if proved, alleged absence of contract employing
respondent, cancellation of any such contract, or abandonment by respondent of its efforts on
appellants' behalf would tend to establish a defense to action for commission; thus appellants
presented facts which, if true, would tend to establish complete or partial defense, for
purposes of determining whether appellants were entitled to have the default judgment set
aside.
L. Earl Hawley, Las Vegas, for Appellants.
Lionel Sawyer & Collins, and Andrew S. Brignone, Las Vegas, for Respondent.
1. Appeal and error; Injunction.
Whether preliminary injunction should be granted is question addressed to discretion of trial judge whose
decision will be reversed only if abuse is demonstrated.
In equitable actions, as in cases at law, Supreme Court will not disturb finding of lower court when
supported by substantial evidence.
Even within area not bound by hard and fast rules, trial court's exercise of discretion may be guided by
recognized legal principles; a clear ignoring by court of such established guides, without apparent
justification, may constitute abuse of discretion; one of proper guides to exercise of discretion is basic
underlying policy to have each case decided upon its merits.
Appellate court is more likely to affirm lower court ruling setting aside default judgment than it is to
affirm refusal to do so.
5. Appearance; Judgment; Pleading.
Letter sent to plaintiff's attorney by one defendant, a layman, and his similar letter sent on behalf of two
other defendants to effect that defendants had no obligation to plaintiff for stated reason amounted to an
answer and constituted an appearance in the action, entitling all defendants to three-day notice before entry
of default judgment. NRCP 55(b)(2).
6. Judgment.
Defendants who had appeared in action but had not received three-day notice before entry of default
judgment were not required to prove meritorious defense to obtain their day in court and they were merely
required to present facts which, if true, would tend to establish complete or partial defense to action.
NRCP 55(b)(2).
7. Judgment.
If proved alleged absence of contract employing real estate broker, cancellation of any such contract, or
abandonment by broker of its efforts on property owners' behalf would tend to establish a
defense to broker's action for commission; thus property owners presented facts
which, if true, would tend to establish complete or partial defense, for purposes of
determining whether they were entitled to have default judgment against them set
aside.
on property owners' behalf would tend to establish a defense to broker's action for commission; thus
property owners presented facts which, if true, would tend to establish complete or partial defense, for
purposes of determining whether they were entitled to have default judgment against them set aside.
NRCP 55(b)(2).
OPINION
The appellants Albert and Oleta Franklin and J. T. Franklin commenced this action against
Bartsas Realty, Inc. seeking an injunction to prevent the enforcement of an $80,000 judgment
which was predicated on an alleged real estate commission due Bartsas and entered against
each of the Franklins without notice. The court below denied the Franklins any relief and this
appeal followed. We reverse and remand.
THE FACTS
The default judgment at issue was based upon Bartsas' claim that the Franklins, then
owners of the City Center Motel in Las Vegas, had employed Bartsas, a licensed real estate
broker, to procure a buyer for the property; that Bartsas had procured a ready, willing and able
buyer; and that the Franklins had refused to pay the reasonable and agreed upon
commission of $80,000. Complaint and summons were personally served upon J. T. Franklin
on August 30, 1977, and upon Albert and Oleta Franklin on September 12, 1977. The
summons contained the usual admonition that each defendant was required to serve upon
plaintiff's attorney an answer to the Complaint which is herewith served upon you, within 20
days and that failure to comply would result in judgment by default.
On September 9, 1977, J. T. Franklin sent by registered mail the following letter to
plaintiff's attorney:
Dear Sir:
I fail to recognize any obligation to you or your client, because I had no contractual
relationship with your client.
Yours Trully (sic),
J. T. Franklin
A similar letter was later sent on behalf of Albert and Oleta. There was no further
communication between the parties.
On September 20, 1977, default was entered against J. T. Franklin, and on September 21
Bartsas applied for a judgment by default.
by default. The court was not informed of Franklin's letter, nor was Franklin given notice of
the application for judgment. Default judgment against Franklin was entered by the court on
October 7, 1977. After similar preliminaries, a default judgment was entered against Albert
and Oleta on October 17.
At the hearing on the Franklins' motion for a preliminary injunction, J. T. Franklin testified
that he had first learned of the entry of the judgment about seven months later, when the bank
notified him of the attachment of his account. This action was filed shortly thereafter. He
further testified that in reference to receiving the summons, I wrote this letter. I answered his
summons.
By their amended complaint, the Franklins sought relief on the grounds of mistake and
fraud, and also on the ground that the judgment of default was void because it was taken
without notice after an appearance by the defendants. The trial court found that appellants
failed to answer the complaint in the time allowed by law, though J. T. Franklin assumed
that because of [his] letter no further action was necessary in the case. The court also found
that no fraud was committed in connection with the entry of the default judgment, and
thereupon denied appellants' motion for a preliminary injunction.
THE PRELIMINARY INJUNCTION
1. The Standard of Review.
[Headnote 1]
Whether a preliminary injunction should be granted is a question addressed to the
discretion of the trial court, and will be reversed only if abuse is demonstrated. Berryman v.
Int'l Bhd. Elec. Workers, 82 Nev. 277, 416 P.2d 387 (1966); Nevada Escrow Service, Inc. v.
Crockett, 91 Nev. 201, 533 P.2d 471 (1975).
[Headnote 2]
The standard of review in equitable actions, as in cases at law, is that this court will not
disturb the finding of the lower court when supported by substantial evidence. Close v.
Flanary, 77 Nev. 87, 360 P.2d 259 (1961).
[Headnotes 3, 4]
However, this court has observed that:
[E]ven within the area of discretion where the court's discernment is not to be bound by
hard and fast rules, its exercise of discretion in the process of discernment may be
guided by such applicable legal principles as may have become recognized as proper in
determining the course of justice.
justice. A clear ignoring by the court of such established guides, without apparent
justification, may constitute abuse of discretion.
Goodman v. Goodman, 68 Nev. 484, 489, 236 P.2d 305, 307 (1951). One of the proper
guides to the exercise of discretion is:
the basic underlying policy to have each case decided upon its merits. In the normal
course of events, justice is best served by such a policy. Because of this policy, the
general observation may be made that an appellate court is more likely to affirm a lower
court ruling setting aside a default judgment than it is to affirm a refusal to do so.
Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963).
2. The Appearance by the Franklins.
The trial court made no finding as to whether appellants had appeared in the action. It
simply found that appellants had failed to answer the complaint in the time allowed by law,
and that no fraud had been committed. These findings do not address the issue raised in the
Franklins' complaint and addressed to the court in this appeal: Did the Franklins, although not
filing a legally sufficient answer to the complaint, nevertheless sufficiently appear in the
action so as to preclude the entry of a default judgment against them without prior notice as
required by NRCP 55(b)(2)?
1

In Christy v. Carlisle, 94 Nev. 651, 584 P.2d 687 (1978), this court addressed the issue of
the sufficiency of an appearance for purpose of requiring prior notice before entry of a default
judgment. In Christy, no answer had been filed in the action, nor had any other motion been
presented to the court by the defendant's counsel. Nevertheless, the court found that
settlement negotiations and an exchange of correspondence between plaintiff's counsel and
the defendant's insurance representative should be deemed an appearance within the
intendment of Rule 55{b){2).
____________________

1
NRCP 55(b)(2) provides:
In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no
judgment by default shall be entered against an infant or incompetent person unless represented in the action by
a general guardian, guardian ad litem, conservator, or other such representative. If the party against whom
judgment by default is sought has appeared in the action, he (or, if appearing by representative, his
representative) shall be served with written notice of the application for judgment at least 3 days prior to the
hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is
necessary to take an account or to determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may conduct such hearings or order such
references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as
required by any statute of the State.
should be deemed an appearance within the intendment of Rule 55(b)(2).
A course of negotiation among attorneys is one example of conduct which courts have
found to constitute an appearance for purposes of the rule. Another type of conduct which
courts have also found sufficient is a layman's attempt, as in the case at hand, to answer a
summons and complaint in a form legally insufficient to constitute a formal answer but
clearly indicating an attempt to respond to the allegations of the complaint so as to avoid
default judgment.
In Dalminter, Inc. v. Jessie Edwards, Inc., 27 F.R.D. 491 (S.D.Tex. 1961), the court found
that counsel for the plaintiff had a duty to give the notice contemplated by the federal
equivalent of NRCP 55(b)(2) when the president of the defendant corporation responded to
service of summons with a letter asserting that the summons was served in error since the
corporation was not chartered until after the date of the injury alleged in the complaint. Id. at
492. Other courts have agreed that such a letter, expressly or inferentially written by a layman
in response to a receipt of summons, even though not a formal answer, provides a basis for
vacating a default judgment. E.g., Kinnear Corporation v. Crawford Door Sales Company, 49
F.R.D. 3 (D.S.C. 1970) (letter of president of defendant corporation setting forth its version
of the facts and stating it considered the matter dissolved); Woods v. Severson, 9 F.R.D. 84
(D.Neb. 1948) (writing on employer's stationery with ten factual statements, unsigned and
untitled); McClintock v. Serv-Us Bakers, 436 P.2d 891 (Ariz. 1968) (letter filed with justice
of peace denying indebtedness); Maier Const., Inc. v. Ryan, 260 N.W.2d 700 (Wis. 1978)
(letter purporting to be defendant's official reply to summons and complaint).
As in the cases cited above, Franklin, in the instant case, wrote the letter to respondent's
counsel in response to the service of summons and complaint, setting forth his answer to
the claim for relief set forth by Bartsas.
Bartsas, however, urges that because Franklin was an experienced businessman, and had
been involved in prior litigation, his letter should not be held to constitute an appearance for
purposes of Rule 55(b)(2). Bartsas relies upon two cases in which the courts did stress that
the defendant involved was sophisticated or experienced in business or legal matters. See
Wilson v. Moore and Associates, Inc. 564 F.2d 366 (9th Cir. 1977); Hansher v. Kaishian, 255
N.W.2d 564 (Wis. 1977). Neither case, however, can be considered as standing for the
proposition that an experienced businessman, even one who has been involved in previous
litigation, is not entitled to the protection of Rule 55{b){2) when he believes that he has
responded to a summons and complaint as required.
been involved in previous litigation, is not entitled to the protection of Rule 55(b)(2) when he
believes that he has responded to a summons and complaint as required.
In Hansher, the court refused to find that a letter setting forth the defendant's version of the
facts constituted either an answer or an appearance in the action when the facts revealed that
the defendant had previously successfully challenged a default judgment on the basis of a
similar letter. Here, there is no evidence that Franklin had ever previously written a letter in
response to a summons, and the court below did accept Franklin's belief that such a letter
would constitute an answer. In fact, the court found that Franklin assumed nothing further
needed to be done to prevent the entry of a default judgment.
In Wilson, the court upheld the district court's determination that the defendant was not
entitled to vacate a default judgment when, in response to its president's letters setting forth
his version of the facts, plaintiff's attorney replied suggesting that he retain an attorney since
he would be in default if he did not submit a timely answer. While the court noted Moore's
sophistication and experience, it found of more significance, plaintiff counsel's two-barreled
warning to the defendant to secure counsel and to file an answer in the action in order to
avoid a default. . . . Wilson v. Moore, supra at 369. The court also noted that the
communications from Moore had been presented to the district court at the time of the
hearing on damages.
Here, however, the Franklins received no warning from plaintiff's attorney that the
informal letter was insufficient to prevent the entry of a default judgment, and indeed heard
nothing of any further action taken until J. T. Franklin was informed by his bank of the
attachment of his account, more than seven months after the entry of judgment. As suggested
by the court's analysis in Wilson, and see McClintock v. Serv-Us Bakers, supra, a party's
conduct must be considered in light of the surrounding circumstances to determine his intent.
In this case, there is nothing in those circumstances to suggest that the Franklins did not
consider themselves actively participating in the case. . . . Maier Const., Inc. v. Ryan, supra
at 703. Nor do the circumstances suggest that the Franklins had warning or notice of the legal
insufficiency of their response.
[Headnote 5]
We conclude, therefore, that Franklin's letters in response to the summons and complaints
on behalf of himself and the other appellants constituted an appearance in the action, entitling
all the appellants to the three-day notice prior to the entry of default judgment required by
NRCP 55(b)(2).
3. The Meritorious Defense.
[Headnotes 6, 7]
Respondents urge that appellants cannot present a meritorious defense to the complaint.
To the extent that appellants may be required to present a meritorious defense in order to
invoke the aid of equity, see 7 Moore's Federal Practice 60.37[1], at 608 (2d ed. 1979) and 3
Freeman on Judgments 1189, at 2465 (1925), they are not required to prove such a defense
in order to obtain the day in court of which they were deprived. Armstrong v. Manzo, 380
U.S. 545 (1965). All that is required is that they present facts which, if true, would tend to
establish a complete or partial defense to the action. Hotel Last Frontier v. Frontier Prop.,
supra. Here appellants claimed that no contract existed between the parties; that a contract, if
it existed, had been cancelled; or that respondent had abandoned its efforts on their behalf.
Such facts would, if proved, tend to establish a defense to the action. See Bartsas Realty, Inc.
v. Leverton, 82 Nev. 6, 409 P.2d 627 (1966).
THE SERVICE OF PROCESS ON ALBERT
AND OLETA FRANKLIN
Appellants also suggest that personal service of process on appellants Albert and Oleta
Franklin, effected in Decatur, Georgia, was void because it was not authorized by NRCP
4(e)(2).
2
This contention, not raised below, is meritless. Process was served in accordance
with Nevada's long-arm statute NRS 14.065, and thus is governed by NRCP 4(e)(3), and was
therefore valid.
3

In conclusion, we find that the trial court abused its discretion by permitting a default
judgment to be enforced when it had been entered without prior notice to the defendants
who had appeared in the action.
____________________

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

3
NRCP 4(e)(3) provides:
Whenever a statute provides for service, service may be made under the circumstances and in the manner
prescribed by the statute.
had been entered without prior notice to the defendants who had appeared in the action.
Consequently, we reverse, and we remand with instructions to set aside the default judgments
entered in favor of Bartsas and against the Franklins, and to proceed to trial on the merits of
the case.
Thompson, Gunderson, Manoukian, and Batjer, J.J., concur.
____________
95 Nev. 567, 567 (1979) Wheby v. Warden
EARL M. WHEBY, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 11063
August 23, 1979 598 P.2d 1152
Appeal from denial of post-conviction relief. Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Defendant was convicted in district court and, following denial of his petition for
post-conviction relief, he appealed. The Supreme Court, Mowbray, C. J., held that: (1)
defendant's constitutional right to self-representation was not abridged by refusal of trial
court, which gave defendant the option to conduct the case before the jury himself or through
his appointed counsel, to permit both defendant and his appointed counsel to address jury and
question witnesses, and (2) defendant, who was convicted of attempted second degree
murder, was not convicted of a non-existent crime.
Affirmed.
Norman Y. Herring, State Public Defender, and J. Gregory Damm, Chief Trial Deputy,
Carson City, for Appellant.
1. Criminal Law.
Defendant's constitutional right to self-representation was not abridged by refusal of trial court, which
gave defendant the option to conduct the case before the jury himself or through his appointed counsel, to
permit both defendant, who otherwise functioned as co-counsel, and his appointed counsel to address jury
and question witnesses. Const. art. 1, 8.
2. Homicide
Defendant, who was convicted of attempted second degree murder, was not convicted of a non-existent
crime.
3. Criminal Law.
Defendant, who sought a new trial based on certain communications between judge and jury during jury
deliberations and who did not include in the record on appeal a transcript of hearing at which trial judge
received evidence regarding such communications, was not entitled to consideration of such allegations on
appeal.
OPINION
Appellant Earl Wheby was convicted, upon a jury verdict, of attempted second degree
murder in the stabbing of his wife. His appeal was dismissed without prejudice to his right to
institute these proceedings for post-conviction relief. Wheby now appeals the denial of his
petition by the court below.
[Headnote 1]
1. Wheby claims that the trial court violated his constitutional right of self-representation
when it refused to grant his request that both he and his appointed counsel be allowed to
address the jury and to question witnesses during trial. The court allowed Wheby to function
as co-counsel in all other respects, but advised him that it was the court's general practice
not to allow more than one co-counsel to conduct a trial before the jury. The court advised
Wheby that he was free to conduct the case before the jury in propria persona if he chose, or
through his appointed counsel. At the conclusion of the jury selection process, Wheby elected
to have his appointed counsel perform this task. On all matters argued before the judge alone,
Wheby was permitted to address the court directly and to make ultimate decisions on matters
of trial strategy.
Appellant does not challenge the propriety of the court's rule as to co-counsel generally,
but contends that because he has a constitutional right to represent himself, the rule cannot be
applied to him. We reject this contention.
Appellant relies primarily upon the decision of the Supreme Court in Faretta v. California,
422 U.S. 806 (1975), which recognized a federal constitutional right of self-representation.
As noted in Faretta itself, however, id. at 813-14, n. 10, such a right had long been expressly
granted under the constitutions of many states, including Nevada. Nev. Const., Art. I, 8.
See, e.g., Hatten v. State, 83 Nev. 531, 435 P.2d 495 (1967); Holander v. State, 82 Nev. 345,
418 P.2d 802 (1966). We have previously determined that although a criminal defendant may
have both a right of self-representation and a right to assistance of counsel, this does not
mean that a defendant is "entitled to have his case presented in court both by himself and
by counsel acting at the same time or alternatively at the defendant's pleasure."
have both a right of self-representation and a right to assistance of counsel, this does not
mean that a defendant is entitled to have his case presented in court both by himself and by
counsel acting at the same time or alternatively at the defendant's pleasure. Miller v. State,
86 Nev. 503, 506, 471 P.2d 213 (1970). Accord, Layton v. State, 91 Nev. 363, 536 P.2d 85
(1975). We find nothing in Faretta which would require us to alter our analysis of the issue,
and we note that in so concluding we are in accord with the federal courts which have
considered the question of hybrid representation in light of Faretta. See esp. United States
v. Bennett, 539 F.2d 45 (10th Cir.), cert. denied, 429 U.S. 925 (1976); United States v.
Williams, 534 F.2d 119 (8th Cir.), cert. denied, 429 U.S. 894 (1976); United States v. Hill,
526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940 (1976); United States v. Lang, 527
F.2d 1264 (4th Cir. 1975), cert. denied, 424 U.S. 920 (1976).
Here the court in fact permitted appellant to function as co-counsel, refusing only to permit
a deviation from its rules of practice regarding the conduct of trial before the jury. We find no
constitutional error.
[Headnote 2]
2. Appellant also contends that in this jurisdiction there can be no such crime as attempted
second degree murder, and that he was therefore convicted of a non-existent crime. It is clear
from our recent decision in Ramos v. State, 95 Nev. 251, 592 P.2d 950 (1979), that under the
proper circumstances, i.e., those involving an intent to kill without premeditation, a defendant
may be convicted of attempted second degree murder. Appellant's contention is therefore
without merit.
[Headnote 3]
3. Finally, appellant asks that he be granted a new trial because of certain communications
between the judge and the jury during jury deliberations. However, appellant has not included
in the record on appeal the transcript of the hearing at which the trial judge received evidence
regarding these communications and we are therefore unable to consider appellant's
contentions. Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977); Tellis v. State, 84 Nev. 140,
437 P.2d 69 (1968).
Gunderson, Manoukian, and Batjer, JJ., and Fondi, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Michael Fondi, Judge of the First Judicial District, to sit in the
place of The Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
95 Nev. 570, 570 (1979) Bushnell v. State
RICHARD EUGENE BUSHNELL, Appellant, v. THE
No. 10136
September 12, 1979 599 P.2d 1038
Appeal from conviction for robbery, Second Judicial District Court, Washoe County; John
Gabrielli, Judge.
The Supreme Court, Zenoff, Senior Justice, held that: (1) upon alleged accomplice's
recanting his testimony against defendant on basis that he had been badly treated while in
Texas prison for earlier crime and, in exchange for his testimony against defendant, had
hoped for favorable treatment from prosecution and trial court to avoid being returned to
Texas for parole violation, it was error to restrict cross-examination of accomplice to actual
promises made by prosecution and cross-examination should have been allowed to extend to
the alleged bad treatment in Texas and accomplice's fears of what would happen to him if he
were returned, but error was harmless in view of overwhelming evidence of defendant's guilt,
and (2) where, during deliberations and in response to jurors' questions, judge sent note to
foreman explaining that jury was confined to record and instructions given and that it would
be improper for court to advise jurors on matters of evidence or testimony, if, as alleged, the
foreman read note silently and then informed other jurors that the judge's answer was that, if
defendant was present during robbery, he should be convicted, defendant would be entitled to
new trial, unless it appeared beyond reasonable doubt that no prejudice resulted.
Affirmed in part; reversed and remanded in part.
and Bruce R. Laxalt, Deputy District Attorney, Washoe County, for Respondent.
1. Witnesses.
Generally, extent of cross-examination is within discretion of trial court; the broadest discretion is
allowed when cross-examination attacks general credibility, and court may restrict inquiry to witness' prior
felony convictions, as opposed to mere arrest or extraneous circumstances of conviction, but trial court's
discretion is more narrow where bias is object to be shown and examiner must be permitted to elicit any
facts which might color witness' testimony.
2. Witnesses.
Widest latitude must be given defendants in cross-examining accomplice as to his motives for testifying
against defendant, it is immaterial whether actual promises were made to witness and only inquiries
properly restricted are those which are repetitive, irrelevant vague, speculative, or designed merely to
harass, annoy or humiliate the witness.
3. Criminal Law; Witnesses.
Upon alleged accomplice recanting his testimony against defendant on basis that he had been badly
treated while in Texas prison for earlier crime and hoped for favorable treatment from prosecution and trial
court to avoid being returned there for parole violation in exchange for his testimony against defendant, it
was error to restrict cross-examination of accomplice to actual promises made by prosecution and
cross-examination should have been allowed to extend to purported bad treatment in Texas and
accomplice's fears of what would happen to him if he were returned, but error was harmless in view of
overwhelming evidence of defendant's guilt.
4. Criminal Law.
Nevada law allows juror testimony regarding objective facts or overt conduct constituting juror
misconduct.
5. Criminal Law.
Where, during deliberations and in response to jurors' questions, judge sent note to foreman explaining
that jury was confined to record and instructions given and that it would be improper for court to advise
jurors on matters of evidence or testimony, if, as alleged, the foreman read note silently and then informed
other jurors that judge's answer was that, if defendant was present during robbery, he should be convicted,
defendant would be entitled to new trial, unless it appeared beyond reasonable doubt that no prejudice
resulted. NRS 48.025, 50.065, subd. 2.
6. Criminal Law.
Juror's affidavit to effect that jury foreman misstated to other jurors the judge's response to jurors'
questions during deliberation was competent evidence impeaching verdict, since it was testimony regarding
an objective fact constituting juror misconduct and was admissible. NRS 48.025, 50.065, subd. 2.
OPINION
By the Court, Zenoff, Sr. J.:
1

Richard Bushnell and Michael Sloan were charged with the robbery of a beauty salon in
Reno on November 4, 1976. Sloan entered a plea of guilty and Bushnell subsequently was
found guilty at a jury trial at which Sloan testified on behalf of the State that Bushnell was an
equal participant in the robbery.
After Bushnell's trial, Sloan recanted his testimony claiming that he had been motivated to
testify falsely against Bushnell. According to Sloan, he had been badly treated while in a
Texas prison for an earlier crime, and hoped for favorable treatment from the prosecution
and the trial court to avoid being returned there for parole violation in exchange for his
testimony.
____________________

1
The Chief Justice designated Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 243.
prison for an earlier crime, and hoped for favorable treatment from the prosecution and the
trial court to avoid being returned there for parole violation in exchange for his testimony.
Bushnell's principal ground for appeal centers upon the refusal of the trial court to allow
the cross-examination of Sloan to extend to the purported bad treatment in Texas and his
fears of what would happen to him if he were returned. Sloan admitted that the Nevada
authorities made no promises of favorable treatment in exchange for his testimony, but
Bushnell contends nevertheless that if the jury had been permitted to hear Sloan's concerns
about Texas, Sloan s credibility would have been materially impeached.
Bushnell and Sloan, down the block neighbors in Suisun, California, decided impulsively
to go to Reno for a day to do some gambling. They soon ran out of money. From that point
they each laid the blame on the other. It is clear that Sloan appeared at a beauty salon and told
the operator that the fellow looking in the window would shoot if she did not hand over the
cash. She saw appellant Bushnell looking in the window, handed the cashbox to Sloan who
exited and was joined by Bushnell. They left together in the vehicle that they had used to
drive to Reno; they were stopped for a traffic violation and ticketed; a radio dispatch soon
pinpointed them as targets for the robbery; they engaged in a wild police chase which ended
in a collision and their apprehension.
[Headnotes 1, 2]
1. Generally, the permissible extent of cross-examination is largely within the sound
discretion of the trial court. However, there is a variation between the latitude of that
discretion where cross-examination is utilized to attack a witness's general credibility, and
where its purpose is to expose bias. In the former situation, the broadest discretion is allowed,
and the court may properly restrict inquiry to the witness's prior felony convictions as
opposed to a mere arrest or extraneous circumstances of the conviction. Johnson v. State, 82
Nev. 338, 418 P.2d 495 (1966). However, the trial court's discretion is more narrow where
bias is the object to be shown, and an examiner must be permitted to elicit any facts which
might color a witness's testimony. Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); State
v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948). The bounds of the trial court's discretion are
limited too by the well-founded rule that the widest latitude be given a defendant in
cross-examining an accomplice as to his motives for testifying. See United States v. Bagsby,
489 F.2d 725 (9th Cir. 1973); United States v. Padgent, 432 F.2d 701 (2d Cir. 1970); United
States v. Dickens, 417 F.2d 95S {Sth Cir.
F.2d 958 (8th Cir. 1969); United States v. Masino, 275 F.2d 129 (2nd Cir. 1960); Evans v.
State, 550 P.2d 830 (Alaska 1976); People v. Baker, 158 N.E.2d 1 (Ill. 1959); State v. Brown,
321 A.2d 478 (Me. 1974); State v. Ponthier, 346 P.2d 974 (Mont. 1959); State v. Smith, 119
N.W.2d 838 (Minn. 1962); Commonwealth v. Coades, 311 A.2d 896 (Pa. 1973); Woody v.
Commonwealth, 199 S.E.2d 529 (Va. 1973); State v. Wilson, 424 P.2d 650 (Wash. 1967).
See also United States v. Harris, 501 F.2d 1 (9th Cir. 1974); State v. Little, 350 P.2d 756
(Ariz. 1960) (defendant given widest latitude in cross-examining government informant).
In this respect, the witness's hopes for lenient treatment are relevant and it is immaterial
whether actual promises were made to the witness. State v. Little, supra; State v. Brown,
supra; State v. Smith, supra. The only proper restriction should be those inquiries which are
repetitive, irrelevant, vague, speculative, or designed merely to harass, annoy or humiliate the
witness. Evans v. State, supra; see Alford v. United States. 282 U.S. 687 (1931).
[Headnote 3]
In the case at bar, appellant, in cross-examining his accomplice Sloan, attempted to elicit
the facts that Sloan was on parole in Texas, that he harbored tremendous fears of returning
there as well as hopes that the Nevada authorities might not compel his return if he testified
favorably for the prosecution against appellant. This was neither repetitive, irrelevant, vague,
speculative, nor designed to harass, annoy or humiliate, but was clearly proper inquiry on
cross-examination of an accomplice to show bias, and the record shows that counsel made
that specific purpose clear to the trial court. It was error to restrict appellant's
cross-examination of Sloan to actual promises made by the prosecution.
Without any showing at all of Sloan's motivation, the error might be perceived as
reversible. However, considering the information that was elicited from Sloan on
cross-examination, and given the physical facts and testimony of other witnesses, we find the
evidence of appellant's guilt overwhelming and the trial court's error harmless beyond a
reasonable doubt.
Sloan testified that he had already served time in prison in Texas for a felony conviction,
that he had plead guilty to this crime of robbery, and that he had not yet been sentenced for
the robbery here. Thus, although the prohibited inquiry into the Texas affair would have been
relevant to show the strength of his motivation for favorable treatment in sentencing, the
basic motivation itself was nevertheless clearly inferable by the jury.
jury. Moreover, there is overwhelming evidence of appellant's guilt.
Bushnell had several opportunities to avoid participation in the crime, and even to stop it,
yet he failed to do so. He stared into the beauty salon window for a full three minutes,
watching the robbery take place, joined Sloan at the door, left hurriedly with him, and while
they were attempting to escape the police, took the cashbox from Sloan, put the cash in his
pocket (where it was found by the police), and threw the box out the window. Appellant
testified that immediately prior to the robbery, the two men stood around and spoke to a ticket
vendor at the theater next door to the beauty salon, but that nothing was said about their
wives. Appellant was caught in a lie when the ticket vendor was called to testify on
rebuttal. She clearly indicated that appellant had explained their loitering around the theater
was because they were waiting for their wives to get their hair done next door.
These facts defy appellant's contention that he was Sloan's innocent dupe. The error in
restricting appellant's cross-examination of Sloan was harmless beyond a reasonable doubt
and does not require reversal.
2. During deliberations, the jury requested the trial judge answer certain questions. In
response, the judge sent a written note to the foreman, explaining that the jury was confined
to the record and instructions given, and that it would be improper for the court to advise
them on matters of evidence or testimony. As one basis of his motion for new trial, Bushnell
alleged the exchange of notes culminated in juror misconduct. To support this allegation,
Bushnell offered one juror's affidavit stating that the foreman, upon receiving the court's reply
note, read it silently and then informed the other jurors that the judge's answer is that if the
defendant was present during the robbery he should be convicted or words to that effect. The
court apparently rejected the juror affidavit as incompetent evidence given by juror to
impeach his own verdict.
[Headnotes 4-6]
Nevada law allows juror testimony regarding objective facts or overt conduct constituting
juror misconduct. NRS 50.065 (2); NRS 48.025; Barker v. State, 95 Nev. 309, 594 P.2d 719
(1979). Whether or not the foreman uttered the alleged words is an objective fact. If made, the
utterance clearly constituted juror misconduct. Since it obviously misrepresented the content
of the judge's communication, it effectively relayed an unauthorized and erroneous instruction
to the other jurors, under the guise of judicial sanction.
Thus, as testimony regarding an objective fact constituting juror misconduct, the affidavit
was competent evidence impeaching the verdict. We therefore order a limited reversal and
remand for further inquiry to determine if the alleged misconduct did indeed occur. If the trial
court finds that it did, a new trial must be granted unless it appears beyond a reasonable doubt
that no prejudice resulted. Barker v. State, id.
Affirmed in part; reversed and remanded in part.
Mowbray, C. J., and Gunderson, and Batjer, JJ., concur.
Manoukian, J., concurring and dissenting:
I concur in the majority's holding and its treatment of the jury misconduct issue. NRS
50.065(2); NRS 48.0125; Barker v. State, 95 Nev. 309, 594 P.2d 719 (1979). However, I
respectfully dissent from that part of the opinion which labels as harmless error the trial
court's refusal to allow the full cross-examination of Sloan, an admitted participant in the
robbery, who became a crucial witness for the state. I believe that my brethren have failed to
afford to appellant the extent of justice to which he is entitled.
As part of the state's case in chief, Sloan testified that he and Bushnell conspired to
commit the robbery. Conversely, appellant emphatically denied complicity in the offense. The
sole contested issue at trial was appellant's state of mind at the time Sloan walked into and
robbed the beauty shop. Only appellant and Sloan gave direct testimony on the issue of
Bushnell's mens rea, and since the circumstantial evidence of Bushnell's intent was rather
ambiguous, Sloan's trustworthiness was critical.
On appellant's cross-examination of Sloan, it was revealed that Sloan had previously been
convicted of robbery in Texas, that he had served eight years of the sentence, during which
confinement he was allegedly mistreated, and that he was subsequently paroled from that
sentence. Thereupon, the prosecution objected to any further questioning on the subject.
Appellant then made an offer of proof to the effect that in view of the past physical abuse
inflicted by Texas correctional authorities, Sloan entertained significant fear of being returned
to the Texas parole hold, that indeed, Sloan was hopeful that in return for his testimony, the
Texas hold might be dropped, and that he was likewise hopeful of leniency in Nevada. This,
appellant argued, evidenced Sloan's motive to color his testimony against him. Nevertheless,
the lower court sustained the state's objection to the relevancy of the examination.
Defense counsel was not attempting simply to challenge Sloan's general credibility,
Johnson v. State, S2 Nev. 33S
Sloan's general credibility, Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966), but
specifically sought to demonstrate the existence of bias. The examiner should have been
permitted to pursue his elicitation of the claimed discrediting testimony. Azbill v. State, 88
Nev. 240, 495 P.2d 1064 (1972). Although Bushnell himself testified peripherally to some of
these matters, it is obvious that his testimony did not substitute for a probing inquiry of the
witness Sloan.
In Franklin v. State, 94 Nev. 220, 557 P.2d 860 (1978), we recognized the dangers
inherent in accomplice testimony. NRS 175.291(1) requires corroboration of such testimony.
I view this as a legislative recognition of the suspect nature of accomplice testimony. See
State v. Barnett, 437 P.2d 821 (Ore. 1968); State v. Azzone, 135 N.W.2d 488 (Minn. 1965).
Surely an accomplice has a compelling motive for gaining favor with prosecuting authorities.
My colleagues state that the witness's hopes for lenient treatment are relevant and that it is
immaterial whether actual promises were made. In the context of the instant case, I agree.
Furthermore, my brethren acknowledge the settled rule that the widest latitude must be given
an accused to examine an accomplice as to his motives for testifying. See United States v.
Bagsby, 489 F.2d 725 (9th Cir. 1973); United States v. Padgent, 432 F.2d 701 (2d Cir. 1970).
The primary object of the confrontation clause embodied within the Sixth Amendment is
to assure an accused the right to a meaningful cross-examination of the witnesses against him.
Brown v. State, 94 Nev. 393, 580 P.2d 947 (1978); see also Douglas v. Alabama, 380 U.S.
415 (1965); and Green v. McElroy, 360 U.S. 474 (1959), holding the exposure of a witness's
motivation for testifying a proper and important function of the constitutionally protected
right of cross-examination.
The evidence appellant attempted to elicit through Sloan was neither confusing,
misleading nor unduly time consuming, NRS 48.035, and the prohibited examination was an
otherwise proper inquiry into matters relevant and material to the witness's credibility and
possible bias. See Cosley v. State, 93 Nev. 352, 566 P.2d 83 (1977). Thus, although I agree
that it was error to restrict appellant's cross-examination of Sloan, I disagree with that part of
the majority opinion which dismisses the error as harmless.
The error was not harmless. The evidence was admittedly close. The case was reduced to
the single issue of determining appellant's mens rea. During their deliberations, the jury asked
a question concerning witness Sloan's credibility. Eight hours were required to reach a
verdict, compare, State v. Bailey 300 P.2d 975 {Ore.
were required to reach a verdict, compare, State v. Bailey 300 P.2d 975 (Ore. 1956), and
Sloan later apparently sought to recant his testimony. The harm likely resulting from the
exclusion of what I consider rather crucial cross-examination relating to the believability of
the alleged accomplice cannot meaningfully be evaluated by this Court on appeal. See Davis
v. Alaska, 415 U.S. 308 (1974); Alford v. United States, 282 U.S. 687 (1931). On this record,
the probability that prejudice resulted is great. Compare Turner v. Louisiana, 379 U.S. 466
(1965).
In my opinion, the unwarranted limitation of appellant's examination of the state's key
witness deprived him of his right to a fair trial. The error was not harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). I would reverse the conviction
and remand for a new trial.
____________
95 Nev. 577, 577 (1979) Jefferson v. State
WILLIE LEE JEFFERSON, Appellant, v. THE
No. 10625
September 12, 1979 599 P.2d 1043
Appeal from judgment of conviction for robbery with the use of a deadly weapon and
second degree kidnaping with the use of a deadly weapon; Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
The Supreme Court, Thompson, J., held that bringing victim from counter to back room
during course of robbery did not constitute movement beyond that required in the robbery
and, thus, defendant could not be convicted for second degree kidnapping.
Robbery conviction affirmed; kidnaping conviction reversed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
1. Kidnapping.
Inasmuch as second degree kidnapping may be charged regardless of commission of an associated crime,
the test promulgated in Wright v. State for first degree kidnapping is inapposite to cases involving second
degree kidnapping. NRS 200.310, subds. 1, 2.
2. Kidnapping.
Where person has been charged with second degree kidnapping and a separate, associated crime, charge
of second degree kidnapping will lie only where movement of the victim is over and above that required to
complete the associated crime charged. NRS 200.310, subd. 2.
3. Kidnapping.
Bringing victim from counter to back room during course of robbery did not constitute movement beyond
that required in the robbery and, therefore, defendant could not be convicted for second degree kidnapping.
NRS 200.310, subd. 2.
OPINION
Jefferson entered the California Record Casino in North Las Vegas and requested the
clerk, Miss Cowens, to show him certain items which she obtained and placed on the counter.
Jefferson then pulled his gun, told the clerk that this is a stick up, went behind the counter
and took money from the cash register. He then directed Miss Cowens to go to the back room
where she was told to undress and lie on her stomach. She did so. Jefferson then covered her
eyes with a piece of cloth, tied her hands behind her back with scotch tape, and tied her
ankles. After looking through bureau drawers, Jefferson departed, warning Miss Cowens that
he would shoot if she came out. Miss Cowens managed to free herself, and reported the
robbery.
1. The question before us on this appeal is whether the legislature intended that appellant's
conduct constitute both a robbery and a second degree kidnaping, or simply a robbery.
Appellant relies on our decision in Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978) to
support his contention that the conviction for second degree kidnaping must be set aside.
Conversely, respondent argues that based on Wright, the kidnaping conviction was proper.
For reasons explained below, we hold that the second degree kidnaping conviction must be
set aside. In doing so, however, we must explain that the test announced in Wright is
inapplicable where, as here, appellant has been convicted of second degree kidnaping and an
associated crime.
[Headnote 1]
In Wright, we held that convictions for robbery and first degree kidnaping would not lie
where the movement of the victim was incidental to the robbery, and did not substantially
increase the risk of harm over and above that necessarily present in the crime of robbery.
Id. at 417, 5S1 P.2d at 443.
increase the risk of harm over and above that necessarily present in the crime of robbery. Id.
at 417, 581 P.2d at 443. Both prongs of the Wright test are analyzed in light of the associated
offense, robbery. This test is uniquely suited to factual situations such as Wright where the
accused is charged under that part of the first degree kidnaping statute that defines kidnaping
in terms of associated offenses.
1
In contrast, second degree kidnaping may be charged
regardless of the commission of an associated crime.
2
Hence, the test promulgated in Wright
for first degree kidnaping is inapposite to cases involving second degree kidnaping. See In re
Earley, 534 P.2d 721 (Cal. 1975); People v. Brown, 523 P.2d 226 (Cal. 1974); People v.
Stanworth, 522 P.2d 1058 (Cal. 1974).
[Headnote 2]
In construing the kidnaping statute, we have established that [i]t is the fact, not the
distance of forcible removal of the victim that constitutes kidnaping. Jensen v. Sheriff, 89
Nev. 123, 125-126, 508 P.2d 4, 5 (1973). Under this construction, it is apparent that an
accused charged with any criminal act that entails incidental movement of the victim could be
subjected to an additional charge of second degree kidnaping. In our opinion, the legislature
did not intend to impose such a double punishment. Cf. Wright, supra. Accordingly, we now
hold that where a person has been charged with second degree kidnaping and a separate,
associated crime, the charge of second degree kidnaping will lie only where the movement of
the victim is over and above that required to complete the associated crime charged.
____________________

1
NRS 200.310(1) defines first degree kidnaping as follows:
Every person who shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or carry
away any individual human being by any means whatsoever with the intent to hold or detain, or who holds or
detains, such individual for ransom, or reward, or for the purpose of committing extortion or robbery upon or
from such individual, or to exact from relatives, friends, or other person any money or valuable thing for the
return or disposition of such kidnaped person, and every person who or leads, takes, entices, or carries away or
detains any minor with the intent to keep, imprison, or confine from its parents, guardians, or any other person
having lawful custody of such minor, or with intent to hold such minor to unlawful service, or perpetrate upon
the person of such minor any unlawful act shall be deemed guilty of kidnaping in the first degree.

2
NRS 200.310(2) defines second degree kidnaping as follows:
Every person who shall willfully and without authority of law seize, inveigle, take, carry away or kidnap
another person with the intent to keep such person secretly imprisoned within the state, or for the purpose of
conveying such person out of the state without authority of law, or in any manner held to service or detained
against his will, shall be deemed guilty of kidnaping in the second degree.
over and above that required to complete the associated crime charged. See In re Earley 534
P.2d 721, 726 (Cal. 1975).
[Headnote 3]
Applying this test to the case at hand, we do not believe that bringing the victim from the
counter to the back room during the course of robbery constitutes movement beyond that
required in the robbery. Therefore, the conviction for second degree kidnaping must be set
aside.
2. Other assigned errors have been considered and are without merit.
____________
95 Nev. 580, 580 (1979) Howard v. State
LAWRENCE N. HOWARD, Appellant, v. THE STATE
No. 9844
September 21, 1979 600 P.2d 214
Appeal from judgment of conviction for burglary, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
The Supreme Court, Llewellyn A. Young, District Judge, sitting by designation, held that
although there was no suggestion of bad faith or connivance on part of the State as regards
loss of items of clothing taken from defendant on arrest, new trial was required where
defendant's shoes and clothing were material to identification of him as the perpetrator and
when defendant desired to introduce such evidence during trial an examination of the
property bag revealed that defendant's shoes and a blue denim item were missing.
Reversed.
[Rehearing denied October 24, 1979]
Calvin R. X. Dunlap, District Attorney, and John L. Conner, Deputy District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
A defendant seeking to have his conviction reversed for loss of evidence must show either bad faith or
connivance on part of the government or that he was prejudiced by the loss of the evidence.
2. Criminal Law.
Although there was no suggestion of bad faith or connivance on part of the State or its agents as regards
loss of shoes and clothing taken from defendant on arrest, new trial of burglary prosecution was required
where defendant's shoes and clothing were material to identification of him as the perpetrator and when
personal property bag was produced defendant's shoes and a blue denim article taken from him on arrest
were found to be missing. U.S.C.A.Const. Amend. 14.
OPINION
By the Court, Young, D. J.:
1

Convicted, by jury verdict, of burglary, appellant contends we must reverse because he
was denied due process of law.
On June 30, 1976, at approximately 3:00 a.m., Adrian Garcia, a mechanic and janitor at
the Sparks Bowlarium, a bowling alley in Sparks, Nevada, heard noises coming from the
kitchen area of the bowling alley. Garcia hastened to a counter near the kitchen and observed
a man, later identified as George Arthur Parr. Parr saw Garcia approaching and shouted to a
companion to leave the premises without undue delay. Both intruders then fled from the
scene. Garcia grabbed a butcher knife and chased the two men for several city blocks. During
the chase, Garcia slowed in front of Sambo's Restaurant to ask the waitresses to call the
police. He testified at trial that Parr's companion ran across the red gravel in front of
Sambo's. This testimony was controverted by other witnesses. Garcia also testified that he
twice lost sight of the companion during the chase between the bowling alley and Sambo's.
Garcia maintained that the companion was wearing a white T-shirt with an emblem on the
back, blue jeans and tennis shoes. The chase ended in a trailer park where police arrested
appellant, who was identified by Garcia as the companion he had been chasing.
Appellant was booked at the Sparks Police Department. His shoes and clothes were
removed and, since they were not considered by the police to be evidence, they were
purportedly placed in a personal property bag which was stored at the Washoe County
Jail.
____________________

1
The Governor, pursuant to Nev. Const. art. 6, 4, designated The Honorable Llewellyn A. Young, Judge of
the Sixth Judicial District, to sit in place or The Honorable Cameron M. Batjer, Justice, who was disqualified.
placed in a personal property bag which was stored at the Washoe County Jail.
During the subsequent trial, appellant desired to introduce into evidence his clothing,
which he contended would remove any doubts as to his identity, and his shoes, which he
claimed would establish whether he was the person who ran across the red gravel. When the
personal property bag was produced, it contained no shoes. Moreover, a sheriff's deputy
testified that he had noticed a blue denim article in the bag which was no longer present. The
T-shirt was produced, but it had an emblem on the front rather than the back.
[Headnotes 1, 2]
Appellant contends that his shoes and clothing were crucial evidence regarding the issue of
his identification as the person Garcia was chasing, and that the state's failure to produce
these articles at trial constituted a prejudicial suppression of evidence, thereby depriving him
of due process of law. We agree.
Where, as here, appellant seeks to have his conviction reversed for loss of evidence he
must show either (1) bad faith or connivance on the part of the government or, (2) that he was
prejudiced by the loss of the evidence. United States v. Heiden, 508 F.2d 898 (9th Cir. 1974);
United States v. Henry, 487 F.2d 912 (9th Cir. 1973). Although the state maintained control
over appellant's personal property and took no measures to protect it from theft or loss, there
is nothing in the record to suggest bad faith, or connivance, on the part of the state or its
agents. However, the record indicates that the loss of appellant's shoes was prejudicial to his
defense. Indeed, appellant's shoes and clothing were material to the identification of him as
the perpetrator of the offense. Accordingly, since these articles were not produced at the trial,
appellant's conviction must be reversed.
In light of our disposition of this issue, we need not consider appellant's other assignments
of error.
____________
95 Nev. 583, 583 (1979) Crucil v. Carson City
AUGUST CRUCIL and ELEANOR B. CRUCIL, Appellants, v. CARSON CITY, a
Consolidated Municipality, JOHN DOE I Through JOHN DOE V, BLACK COMPANY and
WHITE COMPANY, and XYZ GOVERNMENTAL ENTITY, a Political Subdivision of the
State of Nevada, Respondents.
No. 10046
September 21, 1979 600 P.2d 216
Appeal from an order dismissing appellants' complaint with prejudice. First Judicial
District Court, Carson City; Frank B. Gregory, Judge.
Automobile accident victims filed suit against city claiming that city was negligent in
failing to replace a downed traffic control device of which it was aware or otherwise take
precautionary measures. The district court dismissed the complaint with prejudice, and appeal
was taken. The Supreme Court held that: (1) complaint was sufficient on its face to set forth a
valid claim upon which relief could be granted, and (2) city was not immune from suit.
Reversed.
Durney and Friedman, Reno, for Appellants.
Laxalt, Berry & Allison, Carson City, for Respondents.
1. Pleading.
Pleading of conclusions, either of law or of fact, is sufficient so long as the pleading gives fair notice of
nature in basis of the claim. NRCP 8(a).
2. Automobiles.
By alleging that city had actual knowledge of the downed condition of stop sign, automobile accident
victims gave fair notice to city of nature and basis of their negligence claim, which was grounded on city's
failure to replace the traffic control device or otherwise take any precautionary steps which were
reasonably necessary for safety of the public; thus, complaint was sufficient to set forth a valid claim upon
which relief could be granted. NRCP 8(a).
3. Automobiles
City could not rely on statute granting immunity in cases where governmental entity has failed to inspect
or discover a particular hazard to defend action by automobile accident victims, which was grounded on
theory that city was negligent in failing to replace a downed traffic control device of which it was aware or
otherwise take precautionary measures. NRS 41.033.
4. Automobiles.
Statute immunizing governmental entities from suits based upon purely discretionary acts did not
bar suit by automobile accident victims, which was grounded on theory that city was
negligent in failing to replace a downed traffic control device of which it was aware
or otherwise take precautionary measures; while city's initial decision to provide
traffic control was a discretionary act, once decision to install stop sign had been
made and acted upon, city's duty to maintain that sign became an operational one.
purely discretionary acts did not bar suit by automobile accident victims, which was grounded on theory
that city was negligent in failing to replace a downed traffic control device of which it was aware or
otherwise take precautionary measures; while city's initial decision to provide traffic control was a
discretionary act, once decision to install stop sign had been made and acted upon, city's duty to maintain
that sign became an operational one. NRS 41.032, subd. 2.
OPINION
Per Curiam:
On September 4, 1976, appellants August and Eleanor Crucil were involved in a traffic
accident when their automobile was struck by another automobile at the intersection of
Edmonds Drive and Clearview Street in Carson City. Prior to the accident, a stop sign located
at the intersection had been knocked down or otherwise removed.
The appellants filed a complaint against Carson City claiming negligence. In the complaint
they alleged that, despite the actual and/or constructive knowledge that the stop sign was
down, the city had negligently failed to replace the traffic control device or otherwise take any
precautionary steps which were reasonably necessary for the safety of the public.
Pursuant to NRCP 12(b)(5), the respondent city filed a motion to dismiss the appellants'
complaint for failure to state a claim upon which relief could be granted. In its Memorandum
of Decision, the district court treated the allegation of respondent's actual knowledge of the
removal of the stop sign as a conclusion of law. The district court held that such a statement
was not a factual allegation and thus insufficient to support a claim for relief. Having
eliminated that allegation from the complaint, the district court treated the complaint as
alleging only that the respondent city failed to discover the downed stop sign. Since the
district court had perceived the complaint as stating a claim for failure to discover the downed
stop sign, the court found NRS 41.033
1
to be dispositive of the matter and dismissed the
complaint with prejudice. This was error.
____________________

1
No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction of any street, public
highway or other public work to determine any hazards, deficiencies or other matters, whether or not there is a
duty to inspect;
2. Failure to discover such hazard, deficiency or other matter, whether or not an inspection is made.
[Headnotes 1, 2]
Appellants' complaint was sufficient on its face to set forth a valid claim upon which relief
could be granted. A pleading need only contain a short and plain statement of the claim
showing that the pleader is entitled to relief, NRCP 8(a). In this regard, the pleading of
conclusions, either of law or fact, is sufficient so long as the pleading gives fair notice of the
nature and basis of the claim. Taylor v. State and Univ., 73 Nev. 151, 152, 311 P.2d 733, 734
(1957).
By alleging that the respondent city had actual knowledge of the downed condition of the
stop sign, appellants have given fair notice to the city of the nature and basis of their
negligence claim. Discovery and other pretrial procedures may disclose relevant statements
and possibly other facts which would be sufficient to support the conclusion that the city had
knowledge of the downed sign. For pleading purposes, though, appellants' complaint satisfies
the requirements of NRCP 8.
The respondent city, however, suggests that, even if the complaint may be sustained, the
city is immunized from liability by the operation of NRS 41.033 and NRS 41.032(2)
2
. We
do not agree.
[Headnote 3]
Appellants' claim alleges that the respondent city had knowledge of the hazard and failed
to act reasonably after discovering it. By contrast, NRS 41.033 grants immunity in cases
where the state, its agencies or political subdivisions has failed to inspect or to discover a
particular hazard. See Fischmann v. City of Henderson, 92 Nev. 659, 556 P.2d 923 (1976).
Accordingly, NRS 41.033 has no application to the instant case.
[Headnote 4]
Likewise, NRS 41.032(2) does not bar the instant suit. This section bars actions based
upon the purely discretionary acts of the state, its agencies or political subdivisions. See State
v. Silva, 86 Nev. 911, 478 P.2d 591 (1970); Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d
94 (1970). While the respondent city's initial decision to provide traffic control was a
discretionary act, see LaFever v. City of Sparks, 88 Nev. 282, 498 P.2d 750 {1972), once the
decision to install the stop sign had been made and acted upon, the city's duty to maintain
that sign became an operational one.
____________________

2
No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of the state or any of its agencies or political subdivisions or of any officer or employee of any
of these, whether or not the discretion involved is abused.
750 (1972), once the decision to install the stop sign had been made and acted upon, the city's
duty to maintain that sign became an operational one. Thus, NRS 41.032(2) is not applicable.
We conclude that the appellants should be given the opportunity to present their claim.
Therefore, the order granting dismissal was in error and, accordingly, we reverse.
____________
95 Nev. 586, 586 (1979) French v. State
ANTHONY RAY FRENCH, Appellant, v. THE STATE
No. 10267
September 21, 1979 600 P.2d 218
Appeal from judgment of conviction of robbery and murder in the first degree. First
Judicial District Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court, Mowbray, C. J., held, inter alia, that the trial court did not err in
finding defendant competent to stand trial despite his claimed amnesia.
Affirmed.
Norman Y. Herring, State Public Defender, and J. Gregory Damm, Chief Trial Deputy, for
Appellant.
Richard H. Bryan, Attorney General, Carson City; David B. Small, District Attorney, and
Frann Moore, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Trial court did not err in finding defendant competent to stand trial, despite his claim of amnesia, where
there was agreement among psychiatric evaluators that defendant was aware and had understanding of
nature of proceedings against him and that he was capable of consulting with his counsel regarding conduct
of his defense.
Where trial court found defendant's contention that he suffered from amnesia unsupported by record,
defendant was not denied due process when court denied his motion, at conclusion of competency hearings,
to be sent to mental institution for treatments which might rid him of such amnesia. U.S.C.A.Const.
Amend. 14.
3. Criminal Law.
Witness' identification of defendant after viewing photographic lineup was admissible in robbery
prosecution where methods followed in photographic display met judicial guidelines and where display was
available in court, was admitted into evidence, and defense counsel was able to examine police officer
who created and presented display, as well as each of the witnesses, about display
and manner of its presentation.
examine police officer who created and presented display, as well as each of the witnesses, about display
and manner of its presentation.
OPINION
Anthony Ray French was tried by a jury and convicted of the robbery and murder of a gas
station attendant. He seeks a reversal, contending the trial judge erred (1) in ruling him fit to
stand trial even though he suffered from amnesia, and (2) in admitting the identification
testimony of witnesses who had been shown a photographic lineup while French was in
custody. We reject both contentions and affirm the jury's verdict.
Appellant was held to answer to the charges of robbery and murder at the conclusion of a
preliminary hearing, during which the State produced evidence connecting appellant with the
commission of the crime.
1
After the preliminary hearing, appellant's counsel moved for a
psychiatric examination regarding appellant's competence to stand trial. Appellant was
ordered to Lake's Crossing Center for the Mentally Disordered for eleven days of observation
and evaluation by two appointed psychiatrists, with the assistance of such other professionals
as they deemed necessary.
A psychiatric hearing to determine appellant's competence to stand trial was subsequently
held. The court had before it the reports of the two appointed psychiatrists and a clinical
psychologist who had conducted certain tests. The psychiatrists agreed that appellant was able
to comprehend the nature of the charges against him and able to aid rationally in the conduct
of his defense. The clinical psychologist reported that appellant had a high average
intelligence, and that he had found no overt signs of emotional or organic disorder.
The psychologist reported that appellant's claim to periods of amnesia may be valid. The
psychiatrists both testified that if appellant did in fact commit the crime he could not recall it,
but they conceded that his account to police of his activities during the period of the
commission of the crime was inconsistent with his purported amnesia.
____________________

1
This evidence included money stained with blood of the victim's type, with which appellant paid for a car on
the day following the robbery; a knife wrapped in cloth found under the front seat of appellant's car, with blood
stains of the same type as the victim's and body hair consistent with that of the victim; a shirt with two buttons
missing found in the trunk of appellant's car, the buttons of which matched a button found beneath the victim's
legs; and the gas station key chain found at the scene of the robbery with fingerprints matching those of
appellant.
The court concluded that appellant had failed to meet his burden of proof in establishing a
condition of mental illness which would render him incompetent to stand trial, and also
denied his motions to be returned to Lake's Crossing for further tests or treatments at the
county's expense.
Pursuant to stipulation of counsel, appellant was subsequently examined further by both
the State psychologist and his own doctors.
THE CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND TO COUNSEL
The question of the legal effect of a defendant's amnesia has not previously been addressed
by this court. In 1961, when a seminal law review article on legal issues related to amnesia
appeared, Note, Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109
(1961), little had been developed in the case law beyond the conclusion that a defendant's
amnesia should not, in itself, preclude his trial on the basis of incompetence. E.g., Regina v.
Podola, [1960] 1 Q.B. 325.
Since that time, however, a number of courts have undertaken thoughtful analyses of the
issues. See United States ex rel. Parson v. Anderson, 354 F.Supp. 1060 (D.Del. 1972), aff'd
481 F.2d 94 (3d Cir. 1973), cert. denied 414 U.S. 1072 (1973); Wilson v. United States, 391
F.2d 460 (D.C.Cir. 1968); State v. McClendon, 419 P.2d 69 (Ariz. 1966).
Such cases have recognized that a defendant's amnesia may raise issues related to his
ability to assist counsel or be tried in a manner consistent with fundamental fairness.
We agree with the court in United States ex rel. Parson v. Anderson, supra, that in such
cases the issue of competence to stand trial should be determined in accordance with the test
enunciated in Dusky v. United States, 362 U.S. 402 (1960). The questions to be asked
regarding the defendant's competence to stand trial are: [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.
Doggett v. Warden, 93 Nev. 591, 593, 572 P.2d 207, 208 (1977), quoting Dusky v. United
States, supra.
[Headnote 1]
We conclude that in the instant case, since there was an agreement among the psychiatric
evaluators of the appellant that he was aware and had a full understanding of the nature of the
proceedings against him, and that he was fully capable of consulting with his counsel
regarding the conduct of his defense, the court below did not err in finding appellant
competent to stand trial.
defense, the court below did not err in finding appellant competent to stand trial.
[Headnote 2]
Appellant also suggests that, under the facts presented, the district court denied him due
process of law by denying his motion, at the conclusion of the competency hearings, to be
sent to Lake's Crossing for treatments which might rid him of his amnesia, citing State v.
McClendon, supra. We must disagree.
In McClendon, the court reversed a first degree murder conviction because the trial court
had refused counsel's request for a continuance in order to obtain such treatment. However,
while the court in McClendon held that treatment should be allowed if medical testimony
were uncertain as to the permanence of the amnesia, id. at 74, the court did not hold, as
appellant contends, that such treatment should be required if the court were not satisfied by
the evidence that the claim of amnesia was genuine. As with similar determinations related to
competency, such questions must be left to the trier of fact. See Doggett v. Warden, supra;
Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968).
Thus, McClendon is inapposite to the case at hand. Considering the testimony presented,
the trial court was not bound to conclude that appellant was in fact suffering from amnesia.
Although this finding was not explicitly entered at the time of the competency hearing, it is
clear from the record that such was the court's conclusion.
2

THE PHOTOGRAPHIC LINEUP
[Headnote 3]
Appellant contends that his conviction should be reversed because the court allowed two
witnesses, who had selected appellant's picture from a photographic lineup several days
after his arrest and incarceration, to identify appellant in court and to testify regarding
their previous identification of the photograph.
____________________

2
The court stated at sentencing:
I have heard from your counsel repeatedly throughout the trial this contention that you do not remember
what happened. An examination of the record doesn't support that claim. First I would point out that never at any
time during any of these proceedings have you ever offered any word of explanation in support of your claim
that you do not remember what happened; never presented anything to substantiate that claim.
The record shows, though, that you remembered enough of it to wrap the bloody knife in a rag and attempt
to conceal that package under the seat of your car. You remembered enough to remove your bloodstained
clothing and attempted to conceal that and you remembered enough to try to establish a fictional story which
nobody believed, for your sudden wealth, that it had been concealed in the sagebrush. That doesn't indicate to
me that you didn't remember. That indicates to me you were a very clever falsifier of fact.
appellant's picture from a photographic lineup several days after his arrest and incarceration,
to identify appellant in court and to testify regarding their previous identification of the
photograph.
In support of his contention, appellant cites Thompson v. State, 85 Nev. 134, 451 P.2d
704, cert. denied 396 U.S. 893 (1969). In that case, no one was sure that the photographs,
other than appellant's, were the same photographs which were used at the pretrial
identification. The difficulties of cross-examination and the possibilities of irreparable
suggestion [were] apparent. Id. at 139. We held in Thompson that, under such
circumstances, the absence of counsel for appellant at the photographic lineup required
exclusion of trial identification by the witnesses unless the court determined that the in-court
identification was independent of the photographic identification. Furthermore, we held that
reversal was mandated when testimony regarding the photographic identification itself was
admitted, unless such admission were determined to be error harmless beyond a reasonable
doubt.
However, the court in Thompson was careful to limit such consequences to situations such
as the one before it. In the present case, the police practices employed fully met the guidelines
established by the court in Thompson. Id. at 139. A permanent photographic display was
prepared on which eight photographs, including one of appellant, were displayed. The display
was available in court, was admitted into evidence, and defense counsel was able to
cross-examine the police officer who created and presented the display, as well as each of the
witnesses, about the display and the manner of its presentation.
3
Thus, the witnesses'
identification of appellant at trial and the initial photographic display were properly admitted.
We conclude therefore that the denial of appellant's motion for treatment of his alleged
amnesia did not constitute a violation of his right to due process of law, and the witnesses'
identification of appellant after viewing a photographic lineup was admissible. Consequently,
we affirm.
Thompson, Gunderson, Manoukian and Batjer, JJ., concur.
____________________

3
The United States Supreme Court has, since this court's decision in Thompson, refused to extend the right to
counsel principles announced in United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S.
263 (1967) to a photographic lineup. United States v. Ash, 413 U.S. 300 (1973).
____________
95 Nev. 591, 591 (1979) Fournier v. State
PAUL HENRY FOURNIER, Appellant, v. THE STATE
No. 11569
September 21, 1979 600 P.2d 213
Appeal from judgment of conviction and sentence. Eighth Judicial District Court, Clark
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court, Mowbray, C. J., held that: (1) evidence was sufficient to show that defendant
committed a burglary, and (2) record was sufficient to show that defendant had counsel at the
time of prior convictions, so those prior convictions could be used to sustain his adjudication
as an habitual criminal.
Affirmed.
Morgan D. Harris, Public Defender, and E. David Stoebling, Deputy Public Defender,
H. Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Burglary.
Evidence that police officer observed person in a closed service station beating on a cigarette machine,
that the officer approached the station, that defendant attempted to exit through a broken window, that
defendant was unable to extricate himself, and that the officers removed defendant from the window, that
they later found a pry tool, mallet and a hammer in the service station, and that the cigarette machine had
been broken into was sufficient to show that defendant committed a burglary.
2. Criminal Law.
Court documents which recited that the assistant state attorney and defendant, represented by named
assistant public defender, were appearing before the court and court document which stated that defendant
was present with counsel, although not naming counsel, were sufficient to show that defendant had the
assistance of counsel in the prior proceedings, so his prior convictions could be used to support his
adjudication as an habitual criminal.
OPINION
Paul Henry Fournier was found guilty of burglary. He seeks reversal of his judgment of
conviction on two grounds: that there was insufficient evidence adduced at his trial to
support the charge, and that the trial court erred in admitting appellant's prior felony
convictions during the enhanced penalty hearing.
reversal of his judgment of conviction on two grounds: that there was insufficient evidence
adduced at his trial to support the charge, and that the trial court erred in admitting appellant's
prior felony convictions during the enhanced penalty hearing. We affirm.
1. The Evidence of the Burglary.
[Headnote 1]
During the early morning hours of May 18, 1978, an officer of the Las Vegas Metro Police
Department while on patrol observed a person in a closed service station beating on a
cigarette machine. The officer called another patrol car, and as they approached the station,
the appellant attempted to exit through a broken window. In doing so, however, he got hung
up and could not extricate himself. Finally, one of the officers removed the appellant from
the window, and, after advising him of his constitutional rights, took the appellant to the local
hospital for first aid treatment. The officer testified that he found in the service station a 15
pry tool, a mallet, and a hammer. The cigarette machine had been broken into and ransacked.
We believe upon this record that the trial judge did not err in finding substantial evidence
to support his conclusion that the appellant committed a burglary.
2. The Prior Offenses.
Appellant argues that his prior convictions in Florida and Arizona were unconstitutionally
obtained because he was not provided the assistance of counsel at critical stages of the prior
judicial proceedings, citing Burgett v. Texas, 389 U.S. 109 (1967); Burns v. State, 88 Nev.
215, 495 P.2d 602 (1972); Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969). He claims that
the introduction of the exemplified records used at the hearing to support his adjudication as
an habitual criminal in this case was error.
This court held in Baymon v. State, 94 Nev. 370, 580 P.2d 943 (1978), that when the
State seeks by introduction of prior convictions to invoke the habitual offender enhancement
statute, there must be an affirmative showing that the defendant was represented by counsel
or that he validly waived his right to counsel in the prior felony proceedings.
[Headnote 2]
Our examination of the exemplified convictions reveals an affirmative showing that
appellant was represented by counsel in each prior proceeding, satisfying the requirement of
Baymon. The court document from Florida referring to the attempted escape charge says:
Come now Assistant State Attorney, Arthur Eggers, and the defendant, Paul Henry Fournier
a/k/a Paul Henry Cooley, with his counsel, Richard Levinson, Asst.
Levinson, Asst. Public Defender, and having been heretofore arraigned, and having entered a
plea of guilty as charged in the amended information. . . . (Emphasis added.)
The Florida breaking and entering conviction is similar: Come now Assistant State
Attorney, Arthur Eggers, and the defendant, Paul Henry Fournier a/k/a Paul Henry Cooley,
with his counsel, Richard Levinson, Asst. Public Defender, and having been heretofore
arraigned, and having entered a plea of guilty as charged in the amended information. . . .
(Emphasis added.)
The Arizona burglary conviction recites defense counsel as Robert Ritchie and Richard
Thompson, along with Kim Stuart as county attorney, in the caption, and then goes on to say:
The State is represented by the above named deputy; the defendant is present with counsel
above named; Court Reporter Carol Haring is present. The defendant is advised of the charge
against him and his plea of guilty thereto, and is given an opportunity to speak on his own
behalf. (Emphasis added.)
Nothing appears from the face of the records to suggest that the convictions therein
specified were unconstitutionally obtained.
Finding no error, we affirm in all respects.
Thompson, Gunderson, Manoukian and Batjer, JJ., concur.
____________
95 Nev. 593, 593 (1979) Sheriff v. Badillo
JORGE ANTONIO BADILLO, Respondent.
No. 12106
September 24, 1979 600 P.2d 221
The Supreme Court held that where defendant was identified by witness at the preliminary
examination as one of the perpetrators of a robbery, trial court erred in issuing a pretrial writ
of habeas corpus, since such identification was sufficient to establish probable cause to
believe that defendant committed the offense; the fact that such witness' testimony was in
direct conflict with that of another witness was of no import.
Reversed.
Nikolas Mastrangelo, Deputy District Attorney, Clark County for Appellant.
Cal J. Potter, III, Las Vegas, for Respondent.
1. Habeas Corpus.
Pretrial writ of habeas corpus will issue when evidence is insufficient to establish probable cause to
believe that accused committed charged offense.
2. Criminal Law.
Finding of probable cause to believe that accused committed the charged offense may be based on slight
evidence.
3. Habeas Corpus.
Where defendant was identified by witness at preliminary examination as one of the perpetrators of a
robbery, trial court erred in issuing a pretrial writ of habeas corpus as to such defendant, since such
identification was sufficient to establish probable cause to believe that defendant committed the offense;
fact that such witness' testimony was in direct conflict with that of another witness was of no import.
OPINION
Per Curiam:
Evidence was adduced at a preliminary examination that on May 2, 1979, a robbery took
place at General Auto Parts, Inc. Though the testimony of the several witnesses was in
conflict, one of the witnesses identified Badillo as one of the perpetrators. At the conclusion
of the preliminary examination, Badillo was held to answer to a charge of robbery (NRS
200.380) and use of a deadly weapon in the commission of that crime (NRS 193.165).
Thereafter, Badillo petitioned the district court for a pretrial writ of habeas corpus contending
the evidence was insufficient to establish probable cause to believe that he had committed the
offense. The district court granted the writ, and from that order the Sheriff has appealed.
[Headnotes 1-3]
The pretrial writ of habeas corpus will issue when the evidence is insufficient to establish
probable cause to believe that the accused committed the charged offense. See Williams v.
Sheriff, 92 Nev. 543, 554 P.2d 732 (1976). A finding of probable cause may be based on
slight evidence. Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973). Here, the identification
of Badillo by one of the witnesses is sufficient to establish probable cause to believe that
Badillo committed the offense. The fact that this testimony is in direct conflict with that of
another witness is of no import at this stage of the proceedings. The magistrate could, and
did, determine that the evidence supported an inference of criminal conduct by the
accused, thereby leaving the ultimate question of the credibility of the witnesses to the
trier of fact at trial.
magistrate could, and did, determine that the evidence supported an inference of criminal
conduct by the accused, thereby leaving the ultimate question of the credibility of the
witnesses to the trier of fact at trial. See Wrenn v. Sheriff, 87 Nev. 85, 482 P.2d 289 (1971).
Accordingly, the order of the district court is reversed.
____________
95 Nev. 595, 595 (1979) Sheriff v. Jensen
JACK JENSEN, Respondent.
No. 12139
September 24, 1979 600 P.2d 222
The Supreme Court held that where petitioner was arraigned in the district court on May
21, 1979 but his pretrial petition for writ of habeas corpus was not filed until June 21, 1979, a
full 31 days after arraignment, pretrial petition was not filed in compliance with mandatory
filing requirements of statute.
Reversed, and remanded with instructions.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
Nikolas L. Mastrangelo, Deputy District Attorney, Clark County, for Appellant.
Alan R. Johns, Las Vegas, for Respondent.
Habeas Corpus.
Where respondent was arraigned in district court on May 21, 1979 but his pretrial petition for writ of
habeas corpus was not filed until June 21, 1979, a full 31 days after arraignment, pretrial petition for writ
of habeas corpus failed to comply with mandatory filing requirements of statute requiring such petitions to
be filed within 21 days of initial appearance of the accused in district court, and thus petition was neither
cognizable in district court nor reviewable by Supreme Court. NRS 34.375, subd. 1(a).
OPINION
Per Curiam:
The respondent, charged by complaint with embezzlement (NRS 205.300), failed to
appear at his scheduled preliminary examination. The justice's court treated respondent's
failure to appear as a waiver of his right to a preliminary examination, and based upon the
affidavits attached to the complaint, the justice's court found probable cause to hold
respondent to answer in the district court.
95 Nev. 595, 596 (1979) Sheriff v. Jensen
appear as a waiver of his right to a preliminary examination, and based upon the affidavits
attached to the complaint, the justice's court found probable cause to hold respondent to
answer in the district court. Thereafter, appellant filed a pretrial petition for a writ of habeas
corpus in the district court. The petition was granted by the district court, and from that order,
this appeal has been perfected.
We are constrained to reverse the order of the district court without consideration of the
merits. Respondent was arraigned in the district court on May 21, 1979. His pretrial petition
for a writ of habeas corpus was not filed until June 21, 1979, a full 31 days after arraignment.
Pretrial petitions for writs of habeas corpus are required to be filed within 21 days of the
initial appearance of the accused in district court. NRS 34.375(1)(a). Our prior decisions have
established that the first appearance in district court is arraignment. See Palmer v. Sheriff, 93
Nev. 648, 572 P.2d 218 (1977). Thus, the instant petition was not in compliance with the
filing requirements of NRS 34.375(1)(a). The requirements of this statute are mandatory, and
where, as here, the requirements are not complied with, the petition is neither cognizable
below nor reviewable here. See Sheriff v. Toston, 93 Nev. 394, 566 P.2d 411 (1977).
Accordingly, we reverse and remand the case to the district court with instructions to dismiss
the petition.
____________
95 Nev. 596, 596 (1979) Peacock v. Harper
BILLY J. PEACOCK, Appellant, v. DONNIE HARPER, CAPITAL CAR RENTALS,
MARV ELLIS LEAVITT, COTTON STATES MUTUAL INSURANCE COMPANY,
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY,
Respondents.
No. 9647
September 24, 1979 600 P.2d 223
County; James A. Brennan, Judge.
A person injured in an automobile collision brought suit, inter alia, against an insurer,
seeking to recover uninsured motorist coverage. The district court entered summary judgment
against plaintiff, and he appealed. The Supreme Court, Batjer, J., held that the word
"uninsured," as used in all the applicable statutes and in plaintiff's insurance policies,
could not be construed to mean "under insured" in relation to plaintiff's injury.
Batjer, J., held that the word uninsured, as used in all the applicable statutes and in
plaintiff's insurance policies, could not be construed to mean under insured in relation to
plaintiff's injury.
Affirmed.
[Rehearing denied November 27, 1979]
Daryl Engebregson, Las Vegas, for Appellant.
Thorndal & Liles, Ltd., and Leland Eugene Backus, Las Vegas, for Respondent Cotton
States Mutual Insurance Company.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, and Rex A. Jemison, Las Vegas,
for Respondent Pennsylvania National Mutual Casualty Insurance Company.
Insurance.
Word uninsured, as used in uninsured motorist policies and in applicable statutes, could not be
construed to mean underinsured in relation to injured party's injuries. NRS 485.010 et seq., 485.210,
690B.020, 690B.020, subds. 1, 4; NRCP 54(b).
OPINION
By the Court Batjer, J.:
Appellant Billy J. Peacock, and at least five other persons, suffered personal injuries as the
result of a two-car collision on April 22, 1972, in Clark County, Nevada. Appellant and Troy
Paul were passengers in a car owned by Marv Ellis Leavitt and driven by Donnie Harper.
Driving on the wrong side of the road, Harper collided head-on with a vehicle owned and
driven by Jose Razo, who had three passengers in his car.
The occupants of the Razo vehicle filed suit against Harper and received a judgment for
$10,400, which was paid by Preferred Risk Mutual Insurance Company (hereinafter
Preferred), the insurer of the Harper-driven vehicle. Paul received a judgment in the sum of
$10,723.24 against Harper.
Appellant filed suit against respondents seeking damages in excess of $150,000. The cause
of action against Cotton States Mutual Insurance Company (hereinafter Cotton) was
predicated on the theory that since Harper has insufficient funds to compensate appellant for
his damages, he was an uninsured motorist. "Cotton" provided appellant with uninsured
motorist coverage in the amount of $25,000 per injury and $50,000 per accident.
motorist. Cotton provided appellant with uninsured motorist coverage in the amount of
$25,000 per injury and $50,000 per accident. Pennsylvania National Mutual Casualty
Insurance Company (hereinafter Pennsylvania), who appellant claimed as an insurer
because it provided his wife with uninsured coverage, intervened in the action, asserting that
Harper was not an uninsured motorist.
Subsequently, Preferred filed a complaint in interpleader, admitting that it insured the
vehicle owned by Leavitt, that Harper was a permissive user, that it provided coverage in the
amount required by the Nevada Motor Vehicle Safety Responsibility Act, see NRS Ch. 485,
and tendered into court $19,600, the alleged balance of Preferred's coverage after the
payment to the occupants of the Razo vehicle, for distribution between Peacock and Paul.
Cotton and Pennsylvania moved for summary judgment contending that they were not
liable to appellant because Harper was not driving an uninsured vehicle. Based upon the fact
that Preferred had interplead money sufficient to comply with Nevada's Motor Vehicle
Safety Responsibility Act and because of other admissions made by Preferred, who had
been permitted to intervene in the suit, the district court granted the motion and certified the
judgment pursuant to NRCP Rule 54(b).
Appellant here contends that the district court erred in its determination that the
automobile operated by Harper was not an uninsured motor vehicle. The substance of
appellant's claim is that the word uninsured, as used in all the applicable statutes as well as
the appellant's insurance policies, must be construed to mean underinsured in relation to the
appellant's injury.
1
We disagree.
NRS 690B.020(1)-(2) requires, among other things, that no automobile liability insurance
policy be issued unless it contains provisions protecting the insured from injury by uninsured
vehicles in amounts not less than the minimum limits for bodily injury liability required by
the Motor Vehicle Safety Responsibility Act.
2
The insured may purchase uninsured motorist
coverage in any amount so long as it does not exceed his bodily injury liability coverage.
____________________

1
Several states, including Georgia, Louisiana, Minnesota, Tennessee, Maine, Florida and Virginia, now have
statutory reference to underinsured motorist coverage.

2
NRS 690B.020(1)-(2) provides:
1. No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle
shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally
garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons
insured thereunder who are legally entitled to recover damages, from owners or operators of uninsured or
hit-and-run motor vehicles, for bodily injury, sickness or disease, including death,
motorist coverage in any amount so long as it does not exceed his bodily injury liability
coverage. However, an insured may, in writing, elect not to purchase uninsured motorist
protection. At the time of the aforementioned accident, the Motor Vehicle Safety
Responsibility Act required coverage of at least $15,000 for bodily injury to one person and
$30,000 for bodily injury to two or more persons in any one accident. NRS 485.210.
Here we are presented with substantially the same facts and issues found in Gardner v. The
American Ins. Co., 95 Nev. 271, 593 P.2d 465 (1979), with the exception that Cotton
provided uninsured motorist coverage for the appellant in the amount of $25,000 per person
or $50,000 per accident, instead of the minimum coverage provided in Gardner.
As in Gardner, appellant argues that finding him not to be an uninsured motorist would
create the anomalous situation wherein he, the injured party, would be better off if the
tortfeasor had no insurance at all.
3
Appellant, unfortunately, is quite correct in this
contention; however, since the Harper-driven vehicle was in fact insured to the extent
required by the Nevada Motor Vehicle Safety Responsibility Act, we cannot ignore the
statutory definition of uninsured and thus cannot hold in appellant's favor.
4
As we
indicated in Gardner, a different issue is present where, as here, the insured purchased
uninsured motorist coverage beyond the $15,000J$30,000 statutory minimum.
____________________
resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle, but no such
coverage shall be required in or supplemental to a policy issued to the State of Nevada or any political
subdivision thereof, or where rejected in writing, on a form furnished by the insurer describing the coverage
being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then
requested in writing by the named insured. The coverage required in this section may be referred to as
uninsured vehicle coverage'.
2. The amount of coverage to be provided shall be not less than the minimum limits for bodily injury
liability insurance provided for under the Motor Vehicle Safety Responsibility Act (chapter 485 of NRS), but
may be an amount not to exceed the bodily injury coverage purchased by the policyholder.

3
Appellant relies upon Porter v. Empire fire and Marine Insurance Company, 475 P.2d 258 (Ariz. 1970),
which was followed in Palisbo v. Hawaiian Insurance & Guaranty Co., Ltd., 547 P.2d 1350 (Haw. 1976). But
see: Allstate Insurance Company v. Pesqueria, 508 P.2d 1172 (Ariz.App. 1973). Porter has been rejected by
courts in other jurisdictions. Golphin v. Home Indemnity Company, 284 So.2d 442 (Fla.App. 1973); Brake v.
MFA Mutual Insurance Company, 525 S.W.2d 109 (Mo.App. 1975); Kemp v. Fidelity & Casualty Co. of New
York, 504 S.W.2d 633 (Tex.Civ.App. 1973), aff'd, 512 S.W.2d 688 (Tex. 1974). Since the statutes construed in
Porter and Palisbo, unlike NRS 690B.020, contains no specific definition of uninsured motor vehicle, we find
Porter and Palisbo inapposite.

4
Insofar as relevant to this appeal, the term uninsured motor vehicle is governed by the definition in NRS
690B.020(3)-(4), which provides:
3. For the purposes of this section the term uninsured motor vehicle' means a motor vehicle:
(a) With respect to which there is not available at the department of motor vehicles evidence of financial
responsibility as required by chapter 485 of NRS;
As we indicated in Gardner, a different issue is present where, as here, the insured
purchased uninsured motorist coverage beyond the $15,000/$30,000 statutory minimum. In
order to decide this issue we will, as we delineated in Gardner, consider both the legislative
intent in regard to the option authorized by NRS 690B.020(2), and this court's determination
of public policy as expressed in cases like Allstate Ins. Co. v. Maglish, 94 Nev. 699, 586 P.2d
313 (1978).
The Fifty-Sixth Session of the Nevada Legislature enacted, as part of the Nevada Insurance
Code, 1971 Nev. Stats. ch. 660 538, at 1777, entitled Uninsured Vehicle Coverage,
approved May 5, 1971, and effective January 1, 1972. However, on May 5, 1971, the same
Legislature approved an amendment to the same section, which authorized additional
uninsured motorist coverage in an amount not to exceed the bodily injury coverage
purchased by the policy holder and defined the term uninsured motor vehicle, see 1971
Nev. Stats. ch. 661 27.5, at 1954-1955. We have found nothing further to indicate
legislative intent, but this amendment can be read to indicate intent to authorize the
additional uninsured motorist coverage against an injury caused by an "uninsured" motor
vehicle, not an "underinsured" motor vehicle.
____________________
(b) With respect to the ownership, maintenance or use of which there is no bodily injury insurance or bond
applicable at the time of the accident, or, to the extent of such deficiency, any bodily injury liability insurance or
bond in force is less than the amount required by NRS 485.210;
(c) With respect to the ownership, maintenance or use of which the company writing any applicable bodily
injury liability insurance or bond denies coverage or is insolvent;
(d) Used without the permission of its owner if there is no bodily injury liability insurance or bond applicable
to the operator; or
(e) The owner or operator of which is unknown or after reasonable diligence cannot be found if:
(1) The bodily injury or death has resulted from physical contact of such automobile with the named insured
or the person claiming under him or with an automobile which the named insured or such person is occupying;
and
(2) The named insured or someone on his behalf has reported the accident within the time required by NRS
484.223 to 484.227, inclusive, to the police department of the city where it occurred, or if it occurred in an
unincorporated area, to the sheriff of the county or to the Nevada highway patrol.
4. For the purposes of this section the term uninsured motor vehicle' also includes, subject to the terms and
conditions of coverage, an insured other motor vehicle where:
(a) The liability insurer of the other motor vehicle is unable because of its insolvency to make payment with
respect to the legal liability or its insured within the limits specified in its policy; and
(b) The occurrence out of which legal liability arose took place while the uninsured motor vehicle coverage
required under paragraph (a) was in effect; and
(c) The insolvency of the liability insurer of the other motor vehicle existed at the time of, or within 2 years
after, such occurrence.
Nothing contained in this subsection shall be deemed to prevent any insurer from providing insolvency
protection to its insureds under more favorable terms.
intent to authorize the additional uninsured motorist coverage against an injury caused by an
uninsured motor vehicle, not an underinsured motor vehicle.
With regard to this court's interpretation of public policy, we made it clear in United
Service Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970), see also, Allstate Ins. Co.
v. Maglish, supra, and State Farm Mut. Auto. v. Christensen, 88 Nev. 160, 494 P.2d 552
(1972), that the insureds were not receiving a windfall by recovering compensation because
they had paid more than one premium for the indemnity of each separate policy. Here the
insureds received no more and no less than that for which they had paid a premium.
In order to permit appellant to recover under his policies we would be required to
reconstruct NRS 690B.020 to define an uninsured motor vehicle as a motor vehicle whose
coverage, no matter how large, is inadequate in relation to the damages suffered by the
injured party. We find no ambiguity in the applicable statutes which would allow us to
interpret into them such a significant addition to the coverage required. Furthermore, there is
no indication that the object of the legislation was to provide such coverage.
Accordingly, on the authority of Gardner, as well as the cases relied on therein, we affirm
the judgment of the district court.
5

Mowbray, C. J., and Thompson, Gunderson and Manoukian, JJ., concur.
____________________

5
See Wildiss, A Guide to Uninsured Motorist Coverage, 2.34A to .35A, 2.37A to .38A (1978); see
generally 26 A.L.R.3d 883 (1969). Cf. Vigneault v. Travelers Ins. Co., 382 A.2d 910 (N.H. 1978); Black v.
Middlesex Mut. Ins. Co., 382 A.2d 914 (N.H. 1978); Spence v. State Farm Mut. Auto. Ins. Co., 221 S.E.2d 643
(Ga.App. 1975).
____________
95 Nev. 602, 602 (1979) Buckley v. State
JOHN ARTHUR BUCKLEY, Appellant, v. THE STATE
No. 10454
September 24, 1979 600 P.2d 227
Grant L. Bowen, Judge.
Defendant was convicted in the district court of possession of controlled substance, and he
appealed. The Supreme Court, Batjer, J., held that: (1) where defendant went to trial without
seeking redress for alleged inadequate discovery resulting from inability of defense counsel to
review file of State, there was no violation of the discovery agreement by jury hearing
testimony during case-in-chief of State by police officer subpoenaed by defense concerning
evidence obtained in violation of Fourth Amendment warranting declaration of mistrial on
basis of surprise, even though had defense attorney known of existence of such evidence he
would have moved the court, preliminary to trial, to suppress the evidence; (2) agency
defense was inapplicable to crime of possession of controlled substance, and thus defendant
was not entitled to instruction on purchasing agent defense; and (3) any error resulting from
failure to give cautionary instruction regarding credibility of informants was harmless.
Affirmed.
Johnson, Belaustegui & Robison, Reno, for Appellant.
1. Criminal Law.
Where defendant went to trial without seeking redress for alleged inadequate discovery resulting from
inability of defense counsel to review file of State, there was no violation of the discovery agreement by
jury hearing testimony during case-in-chief of State by police officer subpoenaed by defense concerning
evidence obtained in violation of Fourth Amendment warranting declaration of mistrial on basis of
surprise, even though had defense attorney known of existence of such evidence he would have moved the
court, preliminary to trial, to suppress the evidence. U.S.C.A. Amend. 4.
In prosecution resulting in conviction for possession of controlled substance, agency defense was
inapplicable, and thus defendant was not entitled to instruction on purchasing agent defense. NRS
453.336.
3. Criminal Law.
Cautionary instruction regarding credibility of informants is required when informant's
testimony is uncorroborated
required when informant's testimony is uncorroborated, and it is favored when the testimony is
corroborated in critical respects.
4. Criminal law.
Although cautionary instruction regarding credibility of informant should have been given in prosecution
resulting in conviction for possession of controlled substance, where informant's testimony was
substantially corroborated, trial court did give instruction informing jury that it was their duty to weigh
witness' credibility, and there was substantial evidence of defendant's guilt and defendant fully
cross-examined the informant, any error resulting from failure to give such cautionary instruction was
harmless.
OPINION
One Paul Acklin was arrested for the sale of marijuana. In order to secure favorable
treatment from the police, Acklin called appellant, a friend who lived in California, and told
him that he was in trouble and needed ten pounds of marijuana immediately. That afternoon,
when appellant arrived at Acklin's Reno, Nevada, apartment and sold the requested drugs, he
was arrested.
Appellant was charged with sale and possession of a controlled substance. NRS 453.321;
NRS 453.336. His defense was entrapment. The jury was unable to reach a verdict on the
sales count, but found him guilty of possession. The district court dismissed the sales count
and sentenced him to six years in prison for the crime of possession.
On appeal, the appellant claims that the district court erred by (1) refusing to grant a
mistrial; (2) failing to give an instruction based upon the purchasing agent defense; and (3)
failing to give an instruction regarding the credibility of the testimony of an informant. We
disagree.
[Headnote 1]
1. During presentation of the state's case-in-chief, a police officer who had been
subpoenaed by the defense testified that a search of appellant's automobile glove
compartment revealed an envelope with one-half ounce of marijuana in it, a glass vial
containing cocaine, a pipe with marijuana residue in it, and a container of marijuana seeds. At
this point, appellant moved for a mistrial because the prosecution had breached an informal
open-file discovery agreement. The district court suppressed the subpoenaed evidence as
having been obtained in violation of the Fourth Amendment, admonished the jury to
disregard the officer's testimony, but denied the motion for a mistrial.
Appellant argues that the testimony was a surprise, and, had the prosecution not violated
the discovery agreement, he would have moved the court, preliminary to trial, to suppress the
evidence. Appellant predicates the alleged discovery breach on the fact that his attorney was
never permitted to see the state's file, despite three visits, without appointment, to the
prosecutor's office. On each occasion appellant's counsel was told that the prosecutor was
busy and to return at some other time. Appellant proceeded to trial without ever examining
the file. Furthermore, although he subpoenaed the officers involved in this case, he failed to
speak with them or examine the subpoenaed materials they had brought with them, despite
their presence before the trial commenced. If appellant had seen the file he would have been
aware of the existence of the cocaine. Appellant concedes that his inability to see the file was
not the result of wilful concealment by the prosecution. Cf. Maginnis v. State, 93 Nev. 173,
176, 561 P.2d 922, 923 (1977).
The district court concluded that there had been no breach of the discovery agreement. We
agree. Appellant's counsel should have been more diligent in seeking the file. If appellant was
dissatisfied with the discovery process he should have notified the court of this fact and
sought a continuance. Since he went to trial without seeking redress for the alleged
inadequate discovery, he cannot now be heard to complain about the discovery process. Cf.
State v. Cunha, 193 N.W.2d 106, 111 (Iowa 1971); Barclay v. Commonwealth, 499 S.W.2d
283 (Ky. 1973); State v. Thompson, 539 S.W.2d 647 (Mo.App. 1976).
[Headnote 2]
2. Appellant argues that the court should have instructed the jury on the purchasing
agent defense. Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). This contention is without
merit because the agency defense is inapplicable to the crime of possession. People v. Sierra,
379 N.E.2d 196 (N.Y. 1978).
[Headnotes 3, 4]
3. Appellant further contends the district court erred when it refused to give a cautionary
instruction regarding the credibility of informants; i.e., the credibility of Acklin. Champion v.
State, 87 Nev. 542, 490 P.2d 1056 (1971); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
Such an instruction is required when an informant's testimony is uncorroborated and favored
when the testimony is corroborated in critical respects. Crowe v. State, 84 Nev. at 367, 441
P.2d at 95-96.
Here the testimony was substantially corroborated; officers listened to Acklin's call to the
appellant and were present when the sale was made. While the court should have given the
requested instruction, its failure to do so does not constitute reversible error.
requested instruction, its failure to do so does not constitute reversible error. The court did
give an instruction informing the jury that it was their duty to weigh a witness' credibility.
There was substantial evidence of appellant's guilt. Cf. Jones v. United States, 396 F.2d 66
(8th Cir. 1968), cert. denied 393 U.S. 1057 (1969). Furthermore, the appellant fully
cross-examined Acklin, delving into his biases and motives for testifying. Any error resulting
from the failure to give the cautionary instruction is harmless. Evans v. State, 574 P.2d 24
(Alas. 1978).
Other contentions raised by the appellant are without merit.
Mowbray, C. J., and Gunderson and Manoukian, JJ., and Zenoff, S. J.,
1
concur.
____________________

1
The Chief Justice designated the Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const. art.
6, 19; SCR 244.
____________
95 Nev. 605, 605 (1979) Alpark Distributing, Inc. v. Poole
ALPARK DISTRIBUTING, INC., Appellant, v. JOE
POOLE and CAROL POOLE, Respondents.
No. 9674
September 25, 1979 600 P.2d 229
Appeal from judgment, Third Judicial District Court, Churchill County; Stanley A. Smart,
Judge.
Action was instituted to obtain restitution of leased property, unpaid rent and attorney's
fees. The district court entered judgment for lessees, and lessor appealed. The Supreme Court
held that agreement between parties to lease, though within statute of frauds because it was
made orally and for a period of time in excess of one year, was otherwise enforceable under
doctrine of estoppel where lessor made several representations that induced lessees to move
from their home to their detriment.
Affirmed.
[Rehearing denied November 29, 1979]
Stewart & Horton, Ltd., and Daniel W. Stewart, Reno, for Appellant.
Gregory D. Corn, Reno, for Respondents.
1. Frauds, Statute of.
Contracts otherwise unenforceable because of statute of frauds may be enforced under doctrine of
estoppel. NRS 111.205, 111.210, 111.220.
2. Estoppel.
Detrimental reliance sufficient to create an estoppel does not necessarily require a showing of financial or
pecuniary loss.
3. Estoppel.
A person can incur detriment under doctrine of estoppel by merely abandoning his home and moving to
land of another in reliance upon promise that land will someday belong to him.
4. Frauds, Statute of.
Agreement between parties to lease, though within statute of frauds because it was made orally and for a
period of time in excess of one year, was otherwise enforceable under doctrine of estoppel where lessor
made several representations that induced lessees to move from their home to their detriment.
Issue whether refusal to give a proposed jury instruction was error was not subject to being considered on
appeal where no formal objection was made to refusal and no ground was stated for that objection. NRCP
51; Const. art. 6, 4.
OPINION
Per Curiam:
Appellant (hereinafter referred to as Alpark) is an independent jobber of petroleum
products which owned or leased ten service stations in northern Nevada, one of which was
located in Battle Mountain. Four of these stations were subleased under an oral agreement
whereby Alpark furnished all the petroleum products which the sublessee sold on a
commission basis.
In 1974, JOe and Carol Poole (hereinafter the Pooles) were living in a house trailer in
Lovelock, and Joe was receiving insurance benefits as a result of an industrial accident. He
operated a motorcycle business from his home and, in addition, was receiving training in the
operation of a gold and silver mill. Carol was employed as a part-time waitress.
Alpark's vice president Al Simpkins, told the Pooles that Alpark had a ten-year lease on a
service station in Battle Mountain, with two five-year options to extend the lease. Simpkins
represented to the Pooles that if they operated the station, (1) they would receive a
commission based upon gallons sold; (2) that Joe Poole could operate his motorcycle shop
from the station; (3) Alpark would provide insulation and new canopy lights, and repair the
driveway and broken windows; (4) tires, batteries and accessories would be provided on a
consignment basis; (5) the Pooles could continue operating the station as long as they earned
money for Alpark; and, {6) the agreement with Alpark would continue for eight years, the
balance of the Alpark lease on the premises.
long as they earned money for Alpark; and, (6) the agreement with Alpark would continue for
eight years, the balance of the Alpark lease on the premises. In reliance upon these
representations, the Pooles moved to Battle Mountain.
At the subsequent trial there was undisputed testimony that the expense of moving the
Pooles's house trailer was paid by Alpark, and it was also undisputed that Carol quit her job
in Lovelock and that Joe paid the cost of moving his motorcycle business from Lovelock to
Battle Mountain. The Pooles worked in the Battle Mountain service station twelve to fourteen
hours a day and they made a profit for Alpark. During the Pooles's first six months at the
station, they made $8,206 and the year following, they made $19,681.
In addition to selling gasoline, Joe operated a motorcycle shop from the service station. On
December 10, 1975, Alpark's attorney mailed Joe a letter stating that Joe was devoting too
much time to his motorcycle shop, was not keeping the station open a sufficient number of
hours per day, and was closing the station too many days each month. The letter added that if
the Pooles wanted to continue operating the station, they would be required to pay Alpark
$500 each month for rent. Upon receiving the letter, the Pooles stopped paying Alpark for the
gasoline and other products sold on consignment.
Alpark brought an action on May 30, 1976, seeking restitution of the gas station, unpaid
rent and attorney's fees. Upon posting a $20,000 bond, Alpark was granted temporary
restitution of the station. The Pooles counterclaimed for damages. A jury trial resulted in
judgment in favor of the Pooles, in the amount of $46,088.40.
In this appeal, Alpark contends (1) the alleged contract was within the statute of frauds,
and the evidence admitted at the trial was insufficient as a matter of law to support an
estoppel to assert the statute of frauds because the Pooles suffered no detriment; and (2) the
refusal to give proposed Jury Instruction A was error, notwithstanding Alpark's failure to
object to the refusal at trial.
[Headnote 1]
1. It is uncontested that the agreement between the parties to this lease was made orally
and was for a period of time in excess of one year and, therefore, the agreement fell within
the statute of frauds. NRS 111.205; NRS 111.210; NRS 111.220; Zunino v. Paramore, 83
Nev. 506, 435 P.2d 196 (1967). However, contracts otherwise unenforceable because of the
statute frauds may be enforced under the doctrine of estoppel. See Zunino v. Paramore, supra.
This doctrine is properly invoked, according to Justice Roger J. Traynor of the California
Supreme Court, whenever "unconscionable injury . . . would result from denying
enforcement of the contract after one party has been induced by the other seriously to
change his position in reliance on the contract. . . ."
Supreme Court, whenever unconscionable injury . . . would result from denying enforcement
of the contract after one party has been induced by the other seriously to change his position
in reliance on the contract. . . . Monarco v. Lo Greco, 220 P.2d 737, 739 (Cal. 1950).
The Pooles believe that promissory estoppel applies in the present instance because (1)
representations were made by Al Simpkins, on behalf of Alpark, to the Pooles, and (2) the
Pooles relied upon the representations to their actual and substantial detriment. Alpark
contends, on the other hand, that the trial court should have removed the case from the jury as
a matter of law because the statute of frauds barred recognition of the oral contract by the
jury. Alpark disagrees with the trial court's ruling that if sufficient factual evidence existed,
the jury could reject the bar imposed by the statute of frauds and recognize the agreement
between the parties. The ruling of the trial judge is correct.
[Headnotes 2, 3]
Detrimental reliance sufficient to create an estoppel does not necessarily require a showing
of financial or pecuniary loss. By merely abandoning his home and moving to the land of
another in reliance upon the promise that the land will someday belong to him, a person can
incur detriment. See Greiner v. Greiner, 293 P. 759 (Kan. 1930).
[Headnote 4]
Here, the record reflects that the jury had sufficient credible factual evidence to find that
Alpark made several representations to the Pooles which induced the Pooles to move from
Lovelock to Battle Mountain, to their detriment.
[Headnote 5]
2. The record reveals that while there was discussion of proposed Jury Instruction A at
trial, Alpark made no formal objection to its refusal and did not state any grounds for an
objection. NRCP 51 provides, in part, that [n]o party may assign as error the giving or the
failure to give an instruction unless he objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which he objects and the ground of the objection. We
therefore decline to consider this issue on appeal.
1

____________________

1
The Governor, pursuant to Nev. Const. art. 6, 4, designated The Honorable William P. Beko, Judge of the
Fifth Judicial District, to sit in place of The Honorable Noel E. Manoukian, Justice, who was disqualified.
____________
95 Nev. 609, 609 (1979) Causey v. Carpenters S. Nevada
RONNIE J. CAUSEY and LARRY N. CAUSEY, dba Causey Construction, and R. N.
CAUSEY CONSTRUCTION CO., Appellants, v. CARPENTERS SOUTHERN NEVADA
VACATION TRUST, CARPENTERS SOUTHERN NEVADA HEALTH AND
INSURANCE TRUST, CARPENTERS SOUTHERN NEVADA PENSION TRUST,
CARPENTERS JOINT APPRENTICE COMMITTEE CONTRACT ADMINISTRATION
and INDUSTRY ADVANCEMENT FUND (Collectively the Carpenters Joint Trust
Funds), Respondents.
No. 10480
September 27, 1979 600 P.2d 244
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme Court held that summary judgment in favor of trust fund in suit wherein
fund sought to compel contractors to specifically perform an agreement to allow examination
of their books and records to determine if they were paying all sums required to be paid to
fund was a nullity and, hence, was subject to being set aside in that fund was neither a natural
nor an artificial person and only a trustee or trustees was entitled to bring suit.
Reversed.
John Peter Lee and James C. Mahan, of Las Vegas, for Appellants.
Lionel Sawyer & Collins, and Dan C. Bowen, of Las Vegas, for Respondents.
1. Judgment.
A judgment for a legally nonexistent entity is a nullity.
2. Judgment.
Summary judgment in favor of trust fund in suit wherein fund sought to compel contractors to specifically
perform an agreement to allow examination of their books and records to determine if they were paying all
sums required to be paid to fund was a nullity and, hence, was subject to being set aside in that fund was
neither a natural nor an artificial person and only a trustee or trustees was entitled to bring suit.
OPINION
Per Curiam:
The Carpenters Joint Trust Funds, purportedly acting as plaintiffs, commenced this
action to compel the defendant contractors to specifically perform an agreement to allow
examination of their books and records to determine if they were paying all sums required
to be paid to the trust funds.
95 Nev. 609, 610 (1979) Causey v. Carpenters S. Nevada
plaintiffs, commenced this action to compel the defendant contractors to specifically perform
an agreement to allow examination of their books and records to determine if they were
paying all sums required to be paid to the trust funds. The contractors answered asserting that
Carpenters Joint Trust Funds is not a legal entity and does not possess the capacity to sue,
and asserting that the trustees of the named trusts were the real parties in interest. For some
reason not clear from the record these contentions were never resolved and, eventually,
summary judgment was entered for Carpenters Joint Trust Funds. This appeal followed.
[Headnotes 1, 2]
A judgment for a legally nonexistent entity is a nullity. J. C. Peacock, Inc. v. Hasko, 7
Cal.Rptr. 490 (Cal.App. 1960). A party to litigation is either a natural or an artificial person.
Trust Funds is neither. It is the trustee, or trustees, rather than the trust itself that is entitled
to bring suit. Carpenters & Mill. Health B.T.F. v. Domestic Insul. Co., 387 F.Supp. 144
(D.Colo. 1975). Consequently, the summary judgment must be set aside and the cause
remanded for further proceedings. This contemplates an amended complaint in the names of
the proper parties plaintiff having capacity to sue, and a new responsive pleading.
Reversed.
____________
95 Nev. 610, 610 (1979) Banks v. Heater
ERNEST V. BANKS, Appellant, v. VERN V. HEATER and VERN V. HEATER,
Doing Business as Green Acres Realty, Respondent.
No. 10154
September 27, 1979 600 P.2d 245
Appeal from an order to set aside default judgment, Third Judicial District Court,
Churchill County; Howard D. McKibben, Judge.
Appeal was taken from order of the district court which set aside a default judgment
against real estate agent on a third-party complaint by vendor of property. The Supreme Court
held that default judgment would be set aside where record indicated that it was result of lack
of agent's knowledge of procedural requirements, inadvertence or excusable neglect and
where agent tendered a meritorious defense eight days after judgment was entered.
and where agent tendered a meritorious defense eight days after judgment was entered.
Affirmed.
Murray V. Dolan, Sparks, for Appellant.
Diehl, Recanzone & Evans, A Professional Corporation, for Respondent.
It is policy of Supreme Court that each case be decided upon its merits whenever possible.
2. Judgment.
In order to set aside a default judgment, the default must have been result of mistake, inadvertence,
surprise, or excusable neglect and, additionally, defendant must timely tender a meritorious defense.
NRCP 60(b)(1).
3. Judgment.
Vendors' default judgment against real estate agent would be set aside where record indicated that it was
result of lack of knowledge of procedural requirements, inadvertence or excusable neglect and where agent
tendered a meritorious defense eight days after judgment was entered. NRCP 60(b)(1).
Decision of the lower court in setting aside a default judgment will not be disturbed on appeal in absence
of a clear abuse of discretion. NRCP 60(b)(1).
OPINION
Per Curiam:
On March 13, 1976, appellant entered into an agreement with third parties to sell a parcel
of real property in Churchill County. Respondent was employed as the real estate agent by
appellant and had produced the buyers. The escrow instructions provided that a title insurance
policy was to be obtained for the buyers showing the property to be free and clear of all deeds
of trust. Before the close of escrow, the buyers had taken possession although the agreement
provided otherwise. During the title search it was discovered that the property was
encumbered by a deed of trust.
In April of 1976, the buyers brought suit against appellant praying for specific
performancethat is, conveyance of free and clear title. Appellant filed his answer and third
party complaints against the original owner and respondent. The complaint against
respondent, served on December 18, 1976, alleged that he had negligently failed to
discover the encumbrance and wrongfully authorized the buyers to take possession.
alleged that he had negligently failed to discover the encumbrance and wrongfully authorized
the buyers to take possession. Respondent failed to answer and default was entered against
him on January 14, 1977. On March 24, 1977, appellant and his buyers settled their lawsuit
by stipulation and the matter was dismissed on March 28. On March 29, judgment by default
was entered against respondent. A stipulation and order dismissing appellant's action against
the original owner was filed on April 5. Respondent filed his motion to set aside the default
on April 6, 1977 along with a proposed answer and counterclaim and an affidavit in support.
The motion was granted and this appeal followed.
The issue presented on appeal is whether the trial court abused its discretion in setting
aside the default judgment. We hold it did not.
[Headnotes 1, 2]
In Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963),
we set forth the criteria to be used by a trial court in deciding the issue presented here. First,
the policy of this court is that each case be decided upon its merits whenever possible.
Second, a factor of importance is the party's lack of knowledge as to procedural requirements.
Id. at 154, 380 P.2d at 295. In addition to the rule that the default must have been the result of
mistake, inadvertence, surprise, or excusable neglect, NRCP 60(b)(1), the defendant must
timely tender a meritorious defense. Gutenberger v. Continental Thrift and Loan, 94 Nev.
173, 175, 576 P.2d 745, 745 (1978); Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79
Nev. at 154, 380 P.2d at 294-95.
In the affidavit accompanying his motion to set aside the default judgment, respondent
stated that he assumed from a discussion with one of the buyers that his interests would be
protected by the buyers and taken care of in the disposition of their suit against appellant. He
was unaware that the claim against him might be litigated or settled separately from the
buyer's claim against appellant. Respondent did not become aware of the settlement between
appellant and the buyers or the default judgment against him until April 1, 1977. Respondent
contacted counsel and filed his motion to set aside the judgment on April 6, eight days after
the judgment was entered and one day before Notice of Entry of Judgment was filed.
Respondent also filed a proposed answer and counterclaim with his timely motion. This
answer, along with accompanying affidavits, stated that appellant was aware of the existence
of the deed of trust at the time of the sale and that appellant and the buyers agreed among
themselves that possession could be had by the buyers prior to the close of escrow.
the buyers agreed among themselves that possession could be had by the buyers prior to the
close of escrow.
[Headnotes 3, 4]
It is clear that a trial court could find from this record a lack of knowledge of procedural
requirements; inadvertence or excusable neglect; no bad faith or an intent to delay;
1
and, the
presentation of a meritorious defense. Gutenberger v. Continental Thrift and Loan, 94 Nev. at
174, 576 P.2d at 745-46; Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. at
154-55, 380 P.2d at 295. The decision of the lower court in setting aside a default judgment
will not be disturbed on appeal in the absence of a clear abuse of discretion. Fagin v. Fagin,
91 Nev. 794, 798, 544 P.2d 415, 417 (1975).
The decision of the lower court is affirmed.
____________________

1
It should be noted that the motion to set aside the default judgment was filed within eight days of the entry
of the judgment. Effective April 9, 1978, Nevada Rules of Appellate Procedure preclude an appeal from the
granting of a motion to set aside a default where the motion was filed within sixty days of the judgment. NRAP
3A(b)(2) (amended Feb. 8, 1978).
____________
95 Nev. 613, 613 (1979) Jones v. State
ANTHONY CURTIS JONES, Appellant, v. THE
No. 10248
September 27, 1979 600 P.2d 247
Appeal from conviction upon a jury verdict, Eighth Judicial District Court, Clark County;
Defendant was convicted in the district court on two counts of burglary and two counts of
robbery, and he appealed. The Supreme Court, Batjer, J., held that: (1) pretrial identification
of defendant by victims was not denial of due process where each victim had opportunity to
view suspects at close range during the robbery and the confrontation took place a few
minutes after the crime; (2) admission of defendant's description given to security guards by
defendant's accomplice was not denial of right to confront and cross-examine declarant of the
incriminating information; (3) trial judge did not abuse his discretion in denying defendant's
motion for mistrial after spontaneous question from juror during cross-examination of a
witness; (4) evidence sustained defendant's conviction on all counts; and {5) defendant's
conviction on all counts did not violate constitutional prohibition against double jeopardy.
95 Nev. 613, 614 (1979) Jones v. State
counts; and (5) defendant's conviction on all counts did not violate constitutional prohibition
against double jeopardy.
Affirmed.
Howard M. Miller, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
1. Criminal Law.
Test of pretrial identification preceding formal criminal charges is, considering totality of the
circumstances, whether the confrontation conducted was so unnecessarily suggestive and conducive to
irreparable mistaken identification that defendant was denied due process or law; reliability is paramount
concern. U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Although an on-the-scene confrontation between eyewitness and suspect is inherently suggestive because
it is apparent that law enforcement officials believe that they have caught the offender, such a confrontation
may be justified by countervailing policy considerations such as fact that a victim's or eyewitness'
on-the-scene identification is likely to be more reliable than a later identification and fact that prompt
identifications serve to exonerate innocent people more expeditiously.
Pretrial identification of defendant by two victims was not denial of due process, though security guard
told victims that he believed that suspects they were going to view were persons who had committed the
crime, where each victim had opportunity to view defendant at close range, the confrontation took place a
few minutes after the crime, and defendant was immediately identified by each victim. U.S.C.A.Const.
Amend. 14.
4. Criminal Law.
Ordinarily, weight and credibility of identification testimony is solely within province of the jury.
5. Criminal Law.
Supreme Court would not usurp function of jury to weigh and determine credibility of identification
testimony, especially where record supported finding that pretrial identification of defendant had sufficient
indicia of reliability to remove any taint of suggestiveness.
6. Criminal Law.
Defendant was estopped to raise any objection that admission of description given to hotel guards by
defendant's accomplice denied him right to confront and cross-examine the accomplice where, on
cross-examination, defendant's attorney elicited details of the description from the security guard.
7. Criminal Law.
Admission of accomplice's description of defendant was not denial of defendant's right to confront an
adverse witness where defendant was not on trial because of the description, but was tried because of his
furtive movements when approached by security guards, positive identification by victims, and fruits of
crime found in alleged accomplice's car.
8. Criminal Law.
Juror's remark what has this to do with a robbery during cross-examination of security guard
concerning use of force on accomplice was not prohibited by statute prohibiting conversation,
comment or opinion on any subject connected with the trial.
95 Nev. 613, 615 (1979) Jones v. State
not prohibited by statute prohibiting conversation, comment or opinion on any subject connected with the
trial. NRS 175.401.
9. Criminal Law.
Whether examination of entire jury panel is warranted lies within trial judge's discretion.
10. Criminal Law.
In prosecution for robbery, there was no evidence to indicate juror's spontaneous question what has this
to do with a robbery during cross-examination of a security guard concerning use of force on accomplice
affected rest of the jury; thus, trial judge did not abuse his discretion in denying defendant's motion for
mistrial.
11. Criminal Law.
Jury verdict in a criminal prosecution will not be reversed if there is any substantial evidence to sustain it.
12. Burglary; Robbery.
In prosecution for burglary and robbery, evidence including positive identification by and direct
testimony of the victims was sufficient to sustain defendant's conviction. NRS 200.380, subd. 1;
205.060, subd. 1.
13. Burglary.
Although defendant did not actually accompany accomplice into one victim's hotel room where burglary
occurred, defendant, who stayed with victim and his companion for several minutes in other victim's room
after accomplice left, was properly tried and convicted as a principal. NRS 195.020.
14. Criminal Law.
Defendant's convictions of burglary as well as robbery did not violate constitutional prohibition against
double jeopardy where two hotel guests were robbed after defendant or accomplice entered their rooms, in
that burglary and robbery are separate and distinct offenses and prosecution for each crime committed
during commission of a burglary, as well as the burglary itself, is specifically authorized by statute. Const.
art. 1, 8; U.S.C.A.Const. Amend. 5; NRS 200.380, subd. 1; 205.060, subd. 1; 205.070.
OPINION
Anthony Curtis Jones appeals his conviction on two counts of burglary and two counts of
robbery. He challenges these convictions on the grounds that there was (1) an unduly
suggestive pretrial identification; (2) a denial of the right to confront and cross-examine the
source of incriminating evidence; (3) a failure by the trial court to question all jurors after an
in-court comment by one juror; (4) insufficient evidence; and (5) a violation of the
prohibition against double jeopardy.
The events that form the basis of the conviction occurred at the Hilton Hotel in Clark
County on August 29, 1976. Lawrence Duncan and James Brovold, guests at the hotel, were
having drinks and conversing in Duncan's room when one John Lee Kirkland and an
accomplice pushed open the door and entered without permission.
95 Nev. 613, 616 (1979) Jones v. State
John Lee Kirkland and an accomplice pushed open the door and entered without permission.
One of the intruders stated, We are going to rob you. Both intruders crossed the room to
where the victims were seated. Kirkland's accomplice struck Duncan. As Duncan rose to
defend himself, Kirkland hit Duncan from behind, and he lost consciousness for a short time.
Both victims were bound and robbed. Kirkland then took Brovold's room key and said, I'll
go up to his room and get his money. The accomplice remained in the room for a few
minutes before departing. In the meantime, Duncan regained consciousness. After the
accomplice left the room, the victims freed themselves and notified hotel security. Neither
victim was able to give a detailed description of the assailants. Brovold told hotel security
that they had been robbed by two colored guys.
Kirkland was apprehended by security guards as he left Brovold's room. In response to
questions asked by the guards, Kirkland described his car and his accomplice. Hotel security
dispatched the descriptions to the guards patrolling the parking lot. Appellant was
apprehended in the parking lot by hotel security guards and was taken to the hotel security
office. No evidence of the crime was found on Jones; however, a handkerchief belonging to
Duncan was found in Kirkland's car, wrapped around some coins.
Jones and Kirkland were charged by an information alleging two counts of robbery and
two counts of burglary. Following a joint trial by jury, the defendants were found guilty of all
charges. Kirkland's conviction was affirmed by this court.
1
Jones filed the present appeal
from his conviction.
At the trial both victims positively identified Jones as one of the robbers. Jones contends
that the pretrial identification procedure was unduly suggestive, thus violating due process
and tainting the in-court identifications.
The record shows that approximately thirty to forty-five minutes after the crimes occurred,
a hotel security guard escorted the two victims to the security office for the purpose or
viewing two suspects. Enroute, the guard told Duncan and Brovold that he believed the
suspects were the ones who had committed the crimes. In fact, the guard mentioned that one
had been caught leaving Brovold's room. In the security office, each victim gave a statement
to police officers and viewed the two suspects in the presence of the police. Each victim
identified Jones and Kirkland as the robbers.
____________________

1
Kirkland v. State, 95 Nev. 83, 590 P.2d 156 (1979).
95 Nev. 613, 617 (1979) Jones v. State
[Headnote 1]
The pretrial identification preceded formal charges; therefore, it is governed by the
standard of Stovall v. Denno, 388 U.S. 293 (1967); Manson v. Braithwaite, 432 U.S. 98
(1977). Considering the totality of the circumstances, the test is whether the confrontation
conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken
identification that [appellant] was denied due process of law. Slovall, 388 U.S. at 301-302.
Reliability is the paramount concern. Manson, 432 U.S. at 114.
[Headnote 2]
An on-the-scene confrontation between eyewitness and suspect is inherently suggestive
because it is apparent that law enforcement officials believe they have caught the offender.
However, such a confrontation may be justified by countervailing policy considerations. For
example, a victim's or eyewitness' on-the-scene identification is likely to be more reliable
than a later identification because the memory is fresher. In addition, prompt identifications
serve to exonerate innocent people more expeditiously. Banks v. State, 94 Nev. 90, 93, 575
P.2d 592, 595-596 (1978).
[Headnote 3]
Here, the pretrial identification of Jones was not a denial of due process. Each victim had
an opportunity to view the suspects at close range during the robbery.
2
The confrontation
took place a few minutes after the crime and Jones was immediately identified by each victim
as being one of the robbers.
[Headnotes 4, 5]
Ordinarily, the weight and credibility of identification testimony is solely within the
province of the jury. Wise v. State, 92 Nev. 181, 183, 547 P.2d 314, 315 (1976). We will not
usurp that function, especially where, as here, the record supports a finding that the pretrial
identification of Jones had sufficient indicia of reliability to remove any taint of
suggestiveness.
Jones further contends that the admission of the description given to the guards denied him
the right to confront and cross-examine the declarant of incriminating information. Kirkland
had described his vehicle and his accomplice when questioned
____________________

2
Facts relating to the victim's lack of opportunity or ability to perceive the robbers were thoroughly explored
during the trial. In particular. Jones notes that Duncan had been drinking and was not wearing his bifocals. Also,
Jones argues that there was insufficient time to observe the robbers. Cf. Riley v. State, 86 Nev. 244, 468 P.2d 11
(1970) (seven second observation during robbery).
95 Nev. 613, 618 (1979) Jones v. State
by the security officers. On direct examination, one of the guards stated that he stopped Jones
as a result of the description radioed to him by the security dispatcher.
3

[Headnotes 6, 7]
Thereafter, on cross-examination, Jones' attorney elicited details of the description from
the security guard. Given his participation in the alleged error, Jones is estopped to raise any
objection on appeal. See Revuelta v. State, 86 Nev. 587, 472 P.2d 343 (1970) (defense
counsel elicited testimony concerning two other offenses). Moreover, Kirkland's description
of Jones merely enabled security officers to apprehend Jones near the scene of the crime.
Jones was not on trial because of the description. He was tried because of his furtive
movements when approached by security guards, the positive identification by the victims,
and the fruits of the crime found in Kirkland's car. Cf. Jones v. State, 93 Nev. 287, 564 P.2d
605 (1977); Miller v. State, 86 Nev. 503, 471 P.2d 213 (1970) (these cases involved
nondisclosure of identity of informer where information led to apprehension of defendant).
Kirkland's role was analagous to that of an informer. His information led to Jones' detention.
There was no denial of the right to confront an adverse witness.
Jones also complains that the trial judge improperly denied permission to question all
jurors about whether they had formed a premature opinion of guilt, and erroneously denied
his motion for mistrial.
[Headnote 8]
During cross-examination of a security guard concerning the use of force on Kirkland, a
juror exclaimed, What has this to do with a robbery? The trial judge questioned the
individual juror to be certain he had not formed a premature opinion of guilt.
4

[Headnote 9]
Whether or not examination of the entire panel is warranted lies within the trial judge's
discretion. Arndt v. State, 93 Nev. 671, 675, 572 P.2d 538, 541 (1977); United States v.
Panebianco, 543 F.2d 447, 457 (2d Cir. 1976), cert. denied 429 U.S. 1103; State v. Thayer,
458 P.2d 831, 836 (N.M. 1969).
____________________

3
The fact that Kirkland gave the original description was not mentioned at the trial. The content of the
description was not brought out on direct examination.

4
As we noted in Kirkland v. State, 95 Nev. 83, 590 P.2d 156 (1979), this juror's remark was not prohibited
by NRS 175.401 which prohibits conversation, comment or opinion on any subject connected with the trial.
95 Nev. 613, 619 (1979) Jones v. State
[Headnote 10]
There is no evidence to indicate the juror's spontaneous question affected the rest of the
jury. Consequently, the trial judge did not abuse his discretion in denying the motion for
mistrial, Sorce v. State, 88 Nev. 350, 353, 497 P.2d 902, 904 (1972), and in denying
appellant's request to interrogate the entire panel.
[Headnote 11]
Additionally, Jones argues that there is insufficient evidence to establish that he was the
perpetrator of any crime. A jury verdict in a criminal prosecution will not be reversed if there
is any substantial evidence to sustain it. Criswell v. State, 84 Nev. 459, 465, 443 P.2d 552,
556, cert. denied 400 U.S. 946 (1968); Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978).
[Headnotes 12, 13]
With respect to the burglary of Duncan's room and the two robberies committed there, the
positive identification by, and the direct testimony of, the victims was sufficient to sustain the
conviction on those three counts. The record shows that Jones did not actually accompany
Kirkland into Brovold's room, where the second burglary occurred. However, Jones stayed
with the two victims for several minutes after Kirkland left. A jury could reasonably infer that
Jones was enabling Kirkland to complete the burglary before the victims had an opportunity
to notify security. Thus, Jones was properly tried and convicted as a principal in the second
burglary. NRS 195.020.
5

[Headnote 14]
Finally, Jones contends that he was twice convicted for the same crime. Specifically, he
believes that the burglary convictions were multiplicitous because they are factually and
necessarily included in the robberies. We disagree.
No person shall be subject to be twice put in jeopardy for the same offense. Nev. Const.
art. 1, 8, U.S. Const. amend. v. Burglary and robbery are separate and distinct offenses.
____________________

5
NRS 195.020:
Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he
directly commits the act constituting the offense, or aids or abets in its commission, and whether present or
absent; and every person who, directly or indirectly, counsels, encourages, hires, commands, induces or
otherwise procures another to commit a felony, gross misdemeanor or misdemeanor is a principal, and shall be
proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, hired,
commanded, induced or procured, could not or did not entertain a criminal intent shall not be a defense to any
person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.
95 Nev. 613, 620 (1979) Jones v. State
Burglary is complete upon trespassory entrance into a building with intent to commit a
larceny or felony within. NRS 205.060(1).
6
Robbery is the unlawful taking of personal
property from the person or presence of another by force or threat. NRS 200.380(1).
7
Consequently, Jones' conviction on the four counts did not violate the constitutional
prohibition against double jeopardy.
Furthermore, Nevada law specifically authorizes prosecution for each crime committed
during the commission of a burglary, as well as the burglary itself. NRS 205.070.
8
Kirkland
v. State, 95 Nev. 83, 590 P.2d 156 (1979). But cf. People v. Diaz, 427 P.2d 505 (Cal. 1967)
(Cal.Pen.Code 654 prohibits multiple punishment if course of criminal conduct, with single
objective, is the basis of the multiple convictions).
Judgment and sentence are affirmed.
____________________

6
Every person who, either by day or night, enters any house, room, apartment, tenement, shop, warehouse,
store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or
housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.

7
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 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.

8
Every person who, in the commission of a burglar, shall commit any other crime, shall be punished therefor
as well as for the burglary, and may be prosecuted for each crime separately.
____________
95 Nev. 621, 621 (1979) Guild v. First Nat'l Bank of Nev.
GUILD, HAGEN & CLARK, LTD., Appellant, v. FIRST NATIONAL BANK OF
NEVADA, Executor of the Estate of EDWIN DANIEL FARNHAM, Sr., Respondent.
No. 11292
September 27, 1979 600 P.2d 238
Appeal from order granting summary judgment. Sixth Judicial District Court, Humboldt
County; Llewellyn A. Young, Judge.
Law firm brought action for fee asserting that it had benefited the estate by contesting
interpleader's claim to the fund. The district court granted executor's motion for summary
judgment, and law firm appealed. The Supreme Court, Mowbray, C. J., held that where
litigation prosecuted by attorney was not undertaken in order to create a fund in which estate
or its residuary beneficiaries could share and on the contrary law firm's efforts were directed
at securing for clients the exclusive possession of the fund in dispute, and where interests of
law firm's client were adverse to those of third parties that law firm now claimed to have
benefited, fee should not have been awarded.
Affirmed.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, Reno, for Appellant.
Durney and Guinan, Ltd., Reno, for Respondent.
1. Costs.
In absence of a statute or contract authorizing such an award, attorney's fees may not be recovered by a
party to litigation. NRS 18.010.
Judicially created exception to rule that in absence of statute or contract authorizing such an award,
attorney's fees may not be recovered by a party to litigation is the common fund doctrine, which permits
a litigant who expends attorneys' fees in winning a suit which creates a fund from which others derive
benefits to require those passive beneficiaries to bear a fair share of litigation costs.
Where interests of defendant's client were adverse to those of third parties that law firm now claimed to
have benefited, fees would not be awarded.
Where law firm was not successful in securing fund for its client, there was no reason to charge attorney's
fee against the fund because the client had no share to be reduced.
5. Interpleader.
In interpleader action, party must prove his own entitlement to the fund and each claimant is
treated as a plaintiff and must recover on strength of his own right or title and not
upon weakness of his adversary's.
fund and each claimant is treated as a plaintiff and must recover on strength of his own right or title and not
upon weakness of his adversary's.
Where law firm successfully attached claim of interpleader to fund, but failed to establish its client's
claim, recovery of attorney's fee from fund would not be allowed.
7. Corporations; Costs.
Substantial benefit doctrine of attorney fees applies when defendant in class action or corporate
derivative suit receives some benefit as a result of the action and defendant may then be required to yield
some of those benefits in form of an award of attorney's fees to counsel for the successful plaintiff.
OPINION
Appellant Guild, Hagen & Clark, Ltd. acted as attorney for Jessie Farnham, pursuant to a
contingent fee contract, in the case of Balish v. Farnham, 92 Nev. 133, 546 P.2d 1297 (1976).
In that case, the First American Title Company of Nevada required Jessie Farnham and
Elverda Farnham Balish to interplead their claims to a sum of money held by the title
company, the fruits of the sale of the Big Creek Ranch by E. D. Farnham. Elverda Farnham
Balish based her claim to the sum on an assignment to her by her father, E. D. Farnham.
Jessie Farnham, E. D. Farnham's second wife, asserted that this assignment was void as the
product of undue influence exercised by Elverda. The trial court found that the assignment
was void as a result of undue influence and awarded the fund to Jessie Farnham. On appeal,
this Court agreed that the assignment was invalid, but we also held that Jessie Farnham had
not demonstrated her entitlement to the fund and directed that the money be paid to the Estate
of E. D. Farnham for distribution. Under the terms of his will, the residue of his estate is to
pass to his children.
Appellant then filed a claim in the estate for an attorney's fee, asserting that it had
benefited the estate by contesting Elverda's claim to the fund. The executor, respondent First
National Bank of Nevada, denied the claim, and appellant filed the present action. The district
court granted the respondent executor's motion for summary judgment, and this appeal
followed. We affirm.
[Headnote 1]
It is well settled that, in the absence of a statute or contract authorizing such an award,
attorney's fees may not be recovered by a party to litigation. NRS 18.010; State ex rel. List v.
Courtesy Motors, 95 Nev. 103
Courtesy Motors, 95 Nev. 103, 590 P.2d 163 (1979); City of Las Vegas v. Southwest Gas, 90
Nev. 178, 521 P.2d 1229 (1974). Appellant has no express contractual relationship with the
Estate of E. D. Farnham.
[Headnote 2]
A judicially-created exception to this rule is the common fund doctrine, which permits a
litigant who expends attorneys' fees in winning a suit which creates a fund from which
others derive benefits [to] require those passive beneficiaries to bear a fair share of the
litigation costs. Quinn v. State, 539 P.2d 761, 764 (Cal. 1975). It is on this theory that
appellant seeks to recover a fee from the estate. The policy behind the exception is based on:
fairness to the successful litigant, who might otherwise receive no benefit because his
recovery might be consumed by expenses; correlative prevention of an unfair advantage
to the others who are entitled to share in the fund and who should bear their share of the
burden of its recovery; encouragement of the attorney for the successful litigant, who
will be more willing to undertake and diligently prosecute proper litigation for the
protection or recovery of the fund if he is assured that he will be promptly and directly
compensated should his efforts be successful.
In re Stauffer's Estate, 346 P.2d 748, 752-53 (Cal. 1959) (citations omitted). An award of
attorney's fees in the instant case would serve none of these policies.
[Headnote 3]
The litigation prosecuted by appellant on behalf of Jessie Farnham was not undertaken in
order to create a fund in which the Estate of E. D. Farnham or its residuary beneficiaries
could share. On the contrary, appellant's efforts were directed at securing for Jessie Farnham
the exclusive possession of the fund in dispute. Had appellant's efforts been successful, there
would have been no common fund created, and the firm would have been recompensed
under the terms of the contingent fee contract with its client. Appellant was not acting for
the benefit of all persons interested in recovery of the fund, Winslow v. Harold G. Ferguson
Corporation, 153 P.2d 714, 720 (Cal. 1944), but was asserting a claim in hostility to their
interest, Hobbs v. McLean, 117 U.S. 567, 581 (1886). In this situation, where the interests of
appellant's client were adverse to those of the third parties appellant now claims to have
benefited, fees should not be awarded. Gabrielson v. City of Long Beach, 363 P.2d 883, 886
(Cal. 1961).
[Headnote 4]
Moreover, since the appellant was not successful in securing the fund for its client, there is
no reason to charge the attorney's fee against the fund because the client has no share to be
reduced. The appellant has referred us to no case holding that an unsuccessful litigant who is
not entitled to share in a fund should recover an attorney's fee, or that the attorney himself is
entitled to a fee charged to the fund. See Hobbs v. McLean, supra. Since appellant has no
connection with any party who will share in the fund, the common fund doctrine is
inapplicable.
[Headnotes 5, 6]
Furthermore, the instant case presents a situation where the possibility of a conflict
between the interests of the client and those of the attorney is clear. In an interpleader action,
such as the one prosecuted by appellant on behalf of Jessie Farnham, a party must prove his
own entitlement to the fund: each claimant is treated as a plaintiff and must recover on the
strength of his own right or title and not upon the weakness of his adversary's. Balish v.
Farnham, 92 Nev. at 137, 546 P.2d at 1300 (citations omitted). Appellant successfully
attacked the claim of Elverda Farnham Balish to the fund, but it failed to establish its client's
claim. If we were to allow recovery of an attorney's fee from the fund in this situation, it is
plain that there would be no incentive for counsel to insist upon the claim of his own client,
since the attorney could expect to be paid his fee out of the fund, no matter to whom it was
ultimately awarded. J. Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds,
87 Harv. L. Rev. 1597, 1642 (1974). Such an extension of the common fund doctrine
would be inappropriate.
[Headnote 7]
Appellant also asserts that recovery of its fee should be permitted on the substantial
benefit theory. This contention is without merit. The substantial benefit doctrine applies
when the defendant in a class action or corporate derivative suit receives some benefit as a
result of the action. The defendant may then be required to yield some of those benefits in
the form of an award of attorney's fees to counsel for the successful plaintiff. D'Amico v.
Board of Medical Examiners, 520 P.2d 10, 28 (Cal. 1974). In this case, no defendant has been
benefited. The fund at issue was awarded to the estate, which was not a party to the litigation,
and with which appellant has no relationship. Cases cited by appellant involving recoveries
by insureds with whom insurers had subrogation agreements are not apposite.
are not apposite. It is clear that, had appellant secured the fund in dispute for Jessie Farnham,
neither respondent here nor anyone else would have had any rights in her recovery. See Hall
v. Young's Dairy Products Co., 569 P.2d 907, 909 (Idaho 1977). Any benefit conferred upon
the estate or its residuary beneficiaries was purely incidental to appellant's attempts to secure
the fund for its client. Under these circumstances, appellant may not recover its fee from the
estate.
Affirmed.
____________
95 Nev. 625, 625 (1979) Anderson v. State
WILLIAM GARY ANDERSON, Appellant, v. THE
No. 11780
September 27, 1979 600 P.2d 241
Appeal from denial of post-conviction relief, Eighth Judicial District Court, Clark County;
Defendant, who was convicted of robbery, appealed from denial by the district court of
post-conviction relief. The Supreme Court, Manoukian, J., held that: (1) even though
defendant may have been affected in some way by his diabetic condition when he entered his
guilty plea, the plea was entered freely, knowingly, and with full understanding of its nature
and consequences, and (2) even though defendant was unarmed and only his accomplice
actually held gun on the victim, defendant had ability to exercise control over the firearm and
thus was subject to added penalty inflicted upon defendants who commit crimes through use
of deadly weapons.
Affirmed.
Bell, Leavitt & Green, Ctd., Las Vegas, for Appellant.
1. Criminal Law.
Although defendant may have been affected in some way by his diabetes when he entered plea of guilty
to armed robbery, his plea was entered freely, knowingly, and with full understanding of its nature and
consequences, and record did not support contention that, at time of inquiry by trial court, he lacked
requisite mental capacity to enter an intelligent and competent guilty plea.
inquiry by trial court, he lacked requisite mental capacity to enter an intelligent and competent guilty plea.
NRS 200.380.
2. Criminal Law.
A person is mentally competent to enter a plea of guilty if he understands his right to constitutional due
process and counsel, confrontation of witnesses, freedom from compulsion to testify, right to trial by jury,
and nature of charge against him, and is capable of understanding legal consequences of guilt.
U.S.C.A.Const. Amend. 5, 6, 14.
3. Criminal Law.
Participation of a defendant not actually in possession of a weapon by aiding and abetting actual user in
unlawful use of the weapon, makes the defendant equally subject to added penalty inflicted upon
defendants who commit crimes through use of deadly weapons. NRS 193.165.
4. Statutes.
Penal statutes should be strictly construed and resolved in favor of defendant when applicability of such
statute is uncertain.
5. Statutes.
Under strict rules of construction, criminal statutes may not be enlarged by implication or intendment
beyond fair meaning of language used, and will not be held to include other offenses and persons than
those which are clearly described and provided for.
6. Criminal Law.
Possession of a weapon necessary to justify statutory enhancement of a sentence for commission of a
crime may be actual or constructive, exclusive or joint; constructive or joint possession may occur only
when unarmed participant has knowledge of the other offender's being armed, and where unarmed offender
has ability to exercise control over the firearm. NRS 193.165.
7. Criminal Law.
Defendant, who was convicted of robbery, was subject to added penalty inflicted upon defendants who
commit crimes through use of deadly weapon even though defendant was unarmed and only his accomplice
actually held gun on the victim, where defendant had ability to exercise control over the weapon. NRS
193.165.
OPINION
This is an appeal from a dental of post-conviction relief following a judgment of
conviction for the crime of robbery. NRS 200.380. Appellant was sentenced to a ten-year
term for the robbery and, because the offense was found to have been committed with the use
of a deadly weapon, appellant was sentenced to a consecutive ten-year term under this state's
armed-with-a-deadly-weapon statute. NRS 193.165.
1
We are required to determine whether
the trial court erred {1) in refusing to grant appellant's post-judgment motion to
withdraw a plea of guilty,2 and {2) in upholding the enhanced penalty in this factual
context.
____________________

1
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
to determine whether the trial court erred (1) in refusing to grant appellant's post-judgment
motion to withdraw a plea of guilty,
2
and (2) in upholding the enhanced penalty in this
factual context. We affirm.
1. The Plea.
Appellant was charged in district court by information with the crime of armed robbery.
Following arraignment he initially pled not guilty and, thereafter, pursuant to plea
negotiations, was permitted by the court to change his plea to guilty. Imposition of the
judgment and sentence was made on February 2, 1978. On December 27, 1978, appellant
filed his petition for post-conviction relief under NRS 177.315-.385, contending, inter alia,
that his plea of guilty was involuntary in view of his long-term and then-existent diabetic
condition.
In Miller v. State, 89 Nev. 561, 517 P.2d 182 (1973), we stated:
A conviction of an accused while legally incompetent violates due process and must
be set aside. Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966). It does not
inevitably follow, however, that a guilty plea by one under the influence of narcotics is
per se invalid. The influence of narcotics must be such as to affect his competency to
stand trial or his capacity to understand the nature and consequences of his plea.
Grennett v. United States, 403 F.2d 928 (Ct. App. D.C. Cir. 1968). . . .
Miller v. State, 89 Nev. at 563, 517 P.2d at 182. During an evidentiary hearing, in addition to
his own testimony, appellant introduced the testimony of the jail physician to the effect that,
as a result of Anderson's diabetic condition, it was possible that appellant did not fully
comprehend the significance and ramifications of the pleading process. On
cross-examination, however, the doctor testified that it was possible that appellant did
understand the nature and consequences of his plea, particularly in light of the fact that his
medical charts showed a rather constant and normal light sugar level.
____________________
such crime. The sentence prescribed by this section shall run consecutively with the sentence prescribed by
statute for such crime.
offense, whose imposition is contingent upon the finding of the prescribed fact.
3. The provisions of this section do not apply where the use of a firearm or other deadly weapon is a
necessary element of such crime.

2
[A] motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or
imposition of sentence is suspended; but so correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his plea. (Emphasis added.)
plea, particularly in light of the fact that his medical charts showed a rather constant and
normal light sugar level.
The record reflects that appellant, 32, is a high school graduate, can read and write, has
been previously convicted of three felonies, is familiar with the criminal process and has
served time in prison. At the time of the entry of the guilty plea, which included a plenary
canvassing by the trial judge, appellant acknowledged that he had the right to counsel at all
stages of the proceedings and that he had in fact been represented by court-appointed counsel
during the preliminary examination and was presently so represented. Appellant also stated
that he understood the charge, was entering his plea freely and voluntarily, and that he had
discussed the elements of the accusation, the state's burden of proof, and possible defenses
with his attorney.
Moreover, the record shows that appellant was aware of the fact that he had the right to a
speedy and fair trial by jury, including the right of confrontation, compulsory process and the
right against self-incrimination. He is also shown to have understood the possible penalties,
including the maximum and mandatory consecutive sentence because of the use of the
firearm which use he freely admitted. Finally, during the sentencing proceedings
approximately two months later, appellant indicated to the trial judge that there was no legal
cause or reason why judgment should not be pronounced against him and that he had no
statement to make toward mitigation of punishment.
[Headnotes 1, 2]
Following the evidentiary hearing, the district court concluded that appellant's plea was
entered freely, knowingly, and with a full understanding of its nature and consequences. We
agree with that determination. Gardner v. State, 91 Nev. 443, 448, 537 P.2d 469, 472 (1975).
There is no suggestion here that Anderson, at the time of the inquiry by the lower court,
lacked the requisite mental capacity to enter an intelligent and competent guilty plea. As
stated by one court:
A person is mentally competent to enter a plea if he understands his right to
constitutional due process and counsel, confrontation of witnesses, freedom from
compulsion to testify, right to trial by jury, understands the nature of the charge against
him, and is capable of understanding the legal consequences of guilt.
Cooper v. State, 531 P.2d 1187, 1192-93 (Idaho 1975).
Although appellant may have been affected in some way by his medical condition when he
entered the guilty plea, we find nothing which would support his claim that he failed to
understand the nature and consequences of his plea. Cf. Miller v. State, 89 Nev. at 562-63,
517 P.2d at 182-83 (proper plea found even though defendant under influence of heroin to
some degree).
2. The Enhanced Penalty.
Appellant contends that when one deadly weapon is used in the commission of a crime,
only the principal possessing it may be found guilty of violating a weapon enhancement
statute. Here, the robbery occurred in an automobile; appellant was unarmed, and only his
accomplice actually held a gun on the victim.
Although several states have considered this issue, there is far from a unanimity in the
rulings. For example, Arizona has held that for armed clauses to be fully effective, when
one deadly weapon is involved in the commission of a crime more than one principal may be
subject to a weapon enhancement penalty. State v. Church, 504 P.2d 940, 944-45 (Ariz.
1973). Cf. Key v. State, 563 S.W.2d 184 (Tenn. 1978) (enhancement applies only to statute
not requiring a firearm to be in defendant's possession and only if unarmed defendant
knows his accomplice had firearm in his possession); Jenkins v. State, 509 S.W.2d 240
(Tenn.Crim.App. 1974) (knowing aider and abettor subject to same punishment as principal).
Contra, People v. Walker, 555 P.2d 306 (Cal. 1976) (enhancement penalty limited in its
application only to persons convicted of felonies who are personally armed); People v. Hicks,
484 P.2d 65 (Cal. 1971) (same).
[Headnote 3]
The state contends that the participation of a defendant not actually in possession of the
weapon by aiding and abetting the actual user in the unlawful use of the weapon, makes the
former equally subject to the added penalty inflicted upon defendants who commit crimes
through the use of deadly weapons. We agree.
[Headnotes 4, 5]
Certainly, it is settled that penal statutes should be strictly construed and resolved in favor
of the defendant when the applicability of such statute is uncertain. Sheriff v. Hanks, 91 Nev.
57, 60, 530 P.2d 1191, 1193 (1975); Smith v. District Court, 75 Nev. 526, 528, 347 P.2d 526,
527 (1959). Further, under strict rules of construction, criminal statutes may not be enlarged
by implication or intendment beyond the fair meaning of the language used, and will not
be held to include other offenses and persons than those which are clearly described and
provided for. . . ."
be enlarged by implication or intendment beyond the fair meaning of the language used, and
will not be held to include other offenses and persons than those which are clearly described
and provided for. . . . Richmond v. State, 100 S.W.2d 1, 2 (Tenn. 1937). See Sardis v.
District Court, 85 Nev. 585, 460 P.2d 163 (1969); In re Laiolo, 83 Nev. 186, 426 P.2d 726
(1967). Nevertheless, we believe that the legislature intended the enhancement statute to
apply under this set of facts.
Although the armed clause does not apply where the use of a firearm or other deadly
weapon is a necessary element of the crime, NRS 193.165(3), there is no indication that the
additional punishment may not properly be imposed upon an offender whose criminal acts
were accomplished with the aid of a firearm or other deadly weapon which was held, as here,
by an accomplice and equally culpable principal. The enhancement statute demonstrates
generally the legislature's concern regarding the increased use of deadly weapons in the
commission of crimes and its belief that such proscription will serve to deter persons from
using weapons during the perpetration of certain crimes, in the hope that the possibility of
death and injury will be reduced. See Key v. State, 463 S.W.2d at 186-87. When one of two
robbers holds a victim at bay with a gun and the other relieves the victim of his properties, or,
as in the instant case, the unarmed assailant has knowledge of the use of the gun and by his
actual presence participates in the robbery, the unarmed offender benefits from the use of the
other robber's weapon, adopting derivatively its lethal potential. See People v. Bush, 123
Cal.Rptr. 576, 582 (Ct.App. 1975), expressly disapproved, People v. Walker, 555 P.2d at
310.
[Headnotes 6, 7]
This conclusion is consistent with our holdings involving interpretations of the term
possession. See Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973); cf. Alsup v. State, 87
Nev. 500, 489 P.2d 679 (1971) (circumstantial evidence sufficient to connect murder weapon
with defendant). Those cases do not require actual or physical possession, but rather control.
Therefore, in our view, the possession necessary to justify statutory enhancement may be
actual or constructive; it may be exclusive or joint. Constructive or joint possession may
occur only where the unarmed participant has knowledge of the other offender's being armed,
and where the unarmed offender has, as here, the ability to exercise control over the firearm.
It is noteworthy that during the change of plea proceedings, appellant acknowledged that the
firearm was used to rob the victim.
Cf. Key v. State, 563 S.W.2d at 186 (defendant apparently did not know his accomplice had a
firearm).
Giving the statute this construction complements the public policy which underlies it.
We affirm the conviction, judgment and sentences.
Mowbray, C. J., and Thompson, Gunderson and Batjer, JJ., concur.
____________
95 Nev. 631, 631 (1979) Langford v. State
TOM LANGFORD, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10477
September 27, 1979 600 P.2d 231
Appeal from judgment of conviction for robbery, kidnapping, and use of a deadly weapon
in commission of those crimes. Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of robbery, first degree kidnapping, second
degree kidnapping, and the use of a deadly weapon in the commission of each of the offenses
and he appealed. The Supreme Court, Mowbray, C. J., held that: (1) trial court did not abuse
its discretion in denying defendant's motion for mistrial; (2) trial court did not err in refusing
to give defendant's proposed instruction concerning his identification; (3) trial court did nor
err by refusing to give instruction that jury could presume from the failure of a material
witness to testify that the testimony would have been favorable to defendant; (4) trial court's
failure to instruct that first degree kidnapping conviction would not lie, if movement of
victim was incidental to robbery and did not increase the risk of harm to the victim beyond
that necessarily present in the robbery, resulted in substantial prejudice to defendant requiring
reversal of his conviction for first degree kidnapping; and (5) trial court's instruction that no
minimal distance of asportation was required to be established in order for kidnapping to lie
was not error as regards second degree kidnapping charge, although such instruction should
have been limited to such charge.
Affirmed in part; reversed in part and remanded.
Morgan D. Harris, Public Defender, and Terrence S. Jackson, Deputy Public Defender,
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Trial court is vested with broad discretion in fashioning a remedy when, during course of proceedings, a
party is made aware that another party has failed to comply fully with a discovery order. NRS 174.295.
2. Criminal Law.
In prosecution for robbery, first degree kidnapping, second degree kidnapping, and use of a deadly
weapon in commission of each of said offenses, trial court's remedy for State's violation of discovery order
due to failure to provide defendant with mug books viewed by victim in an attempt to identify perpetrator,
which remedy was to allow inspection of the mug books at a time during trial when defendant could
cross-examine witnesses concerning the mug books, was within the bounds of trial court's discretion. NRS
174.295.
3. Criminal Law.
Where defendant has learned during course of criminal trial that State has not complied with discovery
order, trial court's remedy will not be found to be an abuse of discretion unless there is a showing that State
has acted in bad faith, or that nondisclosure results in substantial prejudice to defendant, and that such
prejudice has not been alleviated by trial court's order. NRS 174.295.
4. Criminal Law.
In prosecution for robbery, first degree kidnapping, and second degree kidnapping, and use of a deadly
weapon in commission of each of said offenses, trial court did not abuse its discretion in denying
defendant's motion for mistrial, which was based upon State's failure to provide defendant with mug books
viewed by victim in an attempt to identify perpetrator in violation of court's discovery order, where it was
apparent that State's nondisclosure was inadvertent and trial court alleviated any prejudice resulting from
such nondisclosure by allowing inspection of mug books at time during trial when defendant could
cross-examine concerning the mug books. NRS 174.295.
5. Criminal Law.
Court need not give a proposed instruction when law encompassed in such instruction is substantially
covered by other instructions given to jury.
6. Criminal Law.
In prosecution for robbery, first degree kidnapping, and second degree kidnapping, and use of a deadly
weapon in commission of each of said offenses, trial court did not err in refusing to give defendant's
proposed instruction, which was a lengthy, and sometimes repetitive, account of State's burden to establish
defendant's identification beyond a reasonable doubt and an enumeration of factors to be considered by the
jury in determining whether such identification has been established, since defendant's proposed instruction
was substantially encompassed by two instructions actually given by trial court.
7. Criminal Law.
Presumption that evidence willfully suppressed would be adverse if produced arises only where witness is
available to testify and circumstances created suspicion that failure to call witness has been a willful
attempt to withhold competent evidence. NRS 47.250, subd. 3.
8. Criminal Law.
Trial court did not err in refusing to give instruction that jury could presume from failure of material
witness for State to testify that testimony would have been favorable to defendant, where such witness
could not be located and there was no evidence of willful suppression of such witness testimony. NRS
47.250, subd. 3.
9. Criminal Law.
Presumption that higher evidence would be adverse from inferior evidence being produced obtains only
where it can be shown that a party actually has in his possession better and stronger evidence than that
which was presented. NRS 47.250, subd. 4.
10. Criminal Law.
Instruction that jury could presume from failure of a material witness to testify that the testimony would
have been favorable to defendant was not mandated by presumption that higher evidence would be adverse
from inferior evidence being produced, where, even if it were assumed that witness' testimony would have
comprised better and stronger evidence, fact that neither party could locale witness rendered such
instruction inapposite. NRS 47.250, subd. 4.
11. Kidnapping.
Where kidnapping charge stands alone, it is the fact, not the distance, of a forcible removal of the victim
that constitutes kidnapping.
12. Kidnapping.
Defendant, who was charged with first degree kidnapping and robbery, was entitled to instruction on first
degree kidnapping charge that kidnapping conviction would not lie if movement of victim was incidental to
robbery and did not increase risk of harm to victim beyond that necessarily present in robbery
13. Criminal Law.
Where defendant was charged with first degree kidnapping and robbery, trial court's failure to give jury
instruction that kidnapping conviction would not lie if movement of victim was incidental to robbery and
did not increase risk of harm to victim beyond that necessarily present in robbery resulted in substantial
prejudice to defendant requiring reversal of his conviction for first degree kidnapping.
14. Kidnapping.
Where defendant is charged with both first degree kidnapping and one of the associated offenses
enumerated in the first degree kidnapping statute, questions of whether the movement of victim was
incidental to the associated offense and whether movement increased risk of harm to victim are questions
of fact to be determined by the jury in all but the clearest of cases.
15. Kidnapping
Where defendant is charged with second degree kidnapping and there is no charge that an associated
offense was committed against victims, there need be no finding with regard to minimal asportation of
defendant to sustain kidnapping charge.
16. Criminal Law.
In prosecution for robbery, first degree kidnapping, second degree kidnapping, and use of a deadly
weapon in commission of each of said offenses, trial court's instruction that no minimal distance of
asportation was required to be established in order for kidnapping to lie was not prejudicially erroneous as
regards second degree kidnapping charge, although such instruction should have been limited to
the second degree kidnapping charge.
such instruction should have been limited to the second degree kidnapping charge.
OPINION
Appellant Tom Langford was tried to a jury and convicted of robbery, one count of first
degree kidnapping, two counts of second degree kidnapping, and the use of a deadly weapon
in the commission of each of the said offenses.
He has appealed from his judgment of conviction seeking reversal on the grounds that (1)
the district attorney failed to comply with a discovery order; (2) the district court improperly
instructed the jury concerning eyewitness identification; (3) the district court erred by failing
to instruct the jury that an inference adverse to the prosecution could be drawn from the
failure of Woody Hamric to testify; and, (4) the district court improperly instructed the jury
regarding the law of kidnapping.
THE FACTS
At approximately 2:30 a.m. on October 19, 1976, Langford approached the rear door of a
Las Vegas coffee shop and asked to see Woody Hamric, the dishwasher. In response to this
inquiry, Sanford Walters, the manager of the coffee shop, instructed Langford to make his
inquiry at the front of the shop. Immediately thereafter, Langford and Michael Clarke
appeared in the front of the shop and told the waitress, Cynthia Walters, that they wished to
see Hamric. Hamric then entered the front of the shop and Langford stated to Hamric that he
had been sent to see about a job. Langford and Hamric then went to the rear of the shop to
speak with Sanford Walters about applying for a job. When Sanford Walters turned to get
Langford a job application, Langford displayed a firearm and ordered Hamric and Sanford
Walters to the front of the shop. Upon arriving at the front of the shop, Langford ordered
everyone, including five customers, to the back of the shop where he confined them in a
walk-in freezer. Langford and Clarke then brought Cynthia Walters to the front of the shop
where she was ordered to empty the cash register. She was then led back to the walk-in
freezer, and Langford and Clarke fled. The eight persons in the freezer remained there for a
few minutes, gaining release when Sanford Walters kicked down the freezer door.
Shortly after the robbery, Clarke was apprehended while fleeing the scene.
fleeing the scene. He was identified as one of the perpetrators by both Sanford and Cynthia
Walters. The police then showed the Walters some mugbooks of possible suspects, but
neither was able to identify the second perpetrator. On October 26, however, both of the
Walters were individually shown a photo the second perpetrator.
THE ISSUES
1. Prior to trial, the district court ordered the State to provide discovery of specified matter
to appellant, including [a]ll photographs shown in any photo arrays for identification
purposes. Pursuant to this order, appellant was provided with copies of the photos used in
the October 26 photo line-up. On cross-examination, Cynthia Walters stated that she had also
looked at mugbooks after the incident in an attempt to identify the perpetrator. Thereafter,
appellant moved for a mistrial contending the failure to provide the mugbooks violated the
discovery order. The district attorney then stated that he was unaware the Walters had viewed
the mugbooks, but would provide appellant with them. The district court denied the motion
for a mistrial, and appellant contends this was error.
[Headnotes 1-4]
A trial court is vested with broad discretion in fashioning a remedy when, during the
course of the proceedings, a party is made aware that another party has failed to comply fully
with a discovery order. See NRS 174.295. Remedies available to the district court include the
power 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. Id. Here, the district
court permitted inspection of the mugbooks by counsel for appellant, a remedy expressly
sanctioned by NRS 174.295, and thus within the bounds of the court's discretion. We will not
find an abuse of discretion in such circumstances unless there is a showing that the State has
acted in bad faith, or that the non-disclosure results in substantial prejudice to appellant, and
that such prejudice has not been alleviated by the trial court's order. See Maginnis v. State, 93
Nev. 173, 561 P.2d 922 (1977). Cf. United States v. Heiden, 508 F.2d 898 (9th Cir. 1974). In
the instant case, it is apparent from the district attorney's statements at trial that the
non-disclosure was inadvertent. Furthermore, even were we to assume the non-disclosure
prejudiced appellant, the trial court alleviated this prejudice by allowing inspection of the
mugbooks at a time during the trial when appellant could, if he so elected, cross-examine
witnesses concerning the mugbooks.
inspection of the mugbooks at a time during the trial when appellant could, if he so elected,
cross-examine witnesses concerning the mugbooks. Accordingly, we find no abuse of
discretion in the order denying the motion for a mistrial.
[Headnotes 5, 6]
2. Appellant next contends the district court erred by refusing to give his proposed
instruction concerning his identification. We disagree.
It is well established that a court need not give a proposed instruction when the law
encompassed in that instruction is substantially covered by other instructions given to the
jury. See Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972). Appellant's proposed instruction
is a lengthy, and sometimes repetitive, account of the prosecutor's burden to establish his
identification beyond a reasonable doubt and an enumeration of factors to be considered by
the jury in determining whether identification has been established. The law set forth in
appellant's proposed instruction, however, is substantially encompassed by two instructions
actually given by the court.
1
Moreover, the instructions actually given on his identification
are concise, accurate statements of the law, whereas the proposed instruction could well be
considered too long and argumentative, and thus likely to confuse the jury. See People v.
Guzman, 121 Cal.Rptr. 69 (Cal.App. 1975). Therefore, we perceive no error in the court's
refusal to give the proposed instruction.
3. Woody Hamric, one of the victims of the kidnapping and robbery, was not called as a
witness by the State. Appellant proposed an instruction to be given to the jury which stated
that the jury may presume from the failure of a material witness to testify that the testimony
would have been favorable to appellant. Appellant argues that the trial court erred by refusing
to give this instruction. We disagree.
In our prior decisions, we have rejected a similar instruction. See State v. Economy, 61
Nev. 394, 130 P.2d 264 (1942). Notwithstanding this rejection, appellant argues the
instruction is mandated by NRS 47.250(3) and (4), which establish the following disputable
presumptions:
3. That evidence willfully suppressed would be adverse if produced.
4. That higher evidence would be adverse from inferior being produced.
____________________

1
Instruction 25-A clearly states that the identification of the accused must be established beyond a reasonable
doubt. Instruction 26 gives a general account of factors that may be considered in determining the credibility of
witnesses.
[Headnotes 7, 8]
A presumption such as that found in NRS 47.250(3) will arise only where the witness is
available to testify and the circumstances create a suspicion that the failure to call the witness
has been a willful attempt to withhold competent evidence. See State v. Nelson, 386 P.2d 142
(Wash. 1963). Here, the record indicates that efforts to locate Hamric by both the district
attorney and appellant's counsel had proved fruitless. Further, there is no evidence that
Hamric's testimony was willfully suppressed. Because the record indicates that the witness
could not be located, and that there is no evidence of willful suppression, NRS 47.250(3)
provides no basis for the proposed instruction.
[Headnotes 9, 10]
Appellant's contention that the instruction is mandated by NRS 47.250(4) is similarly
without merit. Presumptions similar to that found in NRS 47.250(4) obtain only where it can
be shown that a party actually has in his possession better and stronger evidence than that
which was presented. See People v. Taylor, 136 Cal.Rptr. 640 (Cal.App. 1977). Even were
we to assume that Hamric's testimony would have comprised better and stronger evidence,
the fact that neither party could locate him renders such instruction inapposite.
4. Appellant also argues that the convictions on the three courts of kidnapping should be
reversed because the jury was improperly instructed concerning the law of kidnapping. In
particular, the appellant objects to an instruction given which stated that no minimal distance
of asportation need be established in order for kidnapping to lie.
2
In order to determine
whether the kidnapping instruction was proper in this case, we turn to examine our recent
decisions on the law of kidnapping, and application of those decisions to this case.
____________________

2
The trial court gave the following instructions regarding the law of kidnapping.
Instruction No. 19.
Every person who shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or carry
away any individual human being by any means whatsoever with the intent to hold or detain, or who holds or
detains, such individual for the purpose of committing robbery upon or from such individual, shall be deemed
guilty of Kidnapping in the First Degree.
Instruction No. 20.
Every person who shall willfully and without authority of law seize, inveigle, take, carry away or kidnap
another person with the intent to keep such person secretly imprisoned within the State, or for the purpose of
conveying such person out of the State without authority of law, or in any manner held to service or detained
against his will shall be deemed guilty of kidnapping in the Second Degree.
Instruction No. 21.
The law does not require that the victim be carried away for a minimum distance. It is the fact, not the
distance, of forcible removal of the victim that constitutes kidnapping.
turn to examine our recent decisions on the law of kidnapping, and application of those
decisions to this case.
In Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978) we held that where the accused is
convicted of first degree kidnapping and the associated offense of robbery, the kidnapping
conviction would not lie if the movement of the victim was incidental to the robbery, and did
not increase the risk of harm to the victim beyond that necessarily present in the robbery. In
the recent decision of Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979), we limited the
application of the Wright opinion to cases in which the appellant is charged with both first
degree kidnapping and one of the associated offenses enumerated in the first degree
kidnapping statute. We also stated in Jefferson, however, that where the accused is charged
with second degree kidnapping and an associated offense, the second degree kidnapping
charge would lie only if the movement of the victim is over and above that required to
complete the associated crime charged. Id. Clearly, in both the Jefferson and Wright
situations, a kidnapping conviction requires more than the mere fact of asportation; it requires
movement which is more than incidental to the associated offense.
[Headnote 11]
The decisions in both Jefferson and Wright were based on our concern with avoiding an
uncontemplated double punishment of the accused. This type of uncontemplated double
punishment only becomes a concern when the accused has been charged with kidnapping and
an associated offense. Thus, where the kidnapping charge stands alone, [i]t is the fact, not
the distance of forcible removal of the victim that constitutes kidnapping. Jensen v. Sheriff,
89 Nev. 123, 125-126, 508 P.2d 4, 5 (1973).
[Headnotes 12-14]
In applying these rules of law to the instruction given in the instant case, we note that a
fundamental principle of our system of trial by jury is that an instruction must accurately state
the law. See State of Nevada v. Squaires, 2 Nev. 226 (1866). Therefore, Langford, who was
charged with both the first degree kidnapping and robbery of Cynthia Walters, was entitled to
a jury instruction on the first degree kidnapping charge that encompassed the rule announced
by this court in Wright. The trial court erred by not giving such an instruction. This error was
compounded by not limiting the instruction that no minimal distance of asportation need be
established to the second degree kidnapping charge.
In our view, the questions of whether the movement of the victim was incidental to the
associated offense and whether the movement increased the risk of harm to the victim
are questions of fact to be determined by the jury in all but the clearest cases.
victim was incidental to the associated offense and whether the movement increased the risk
of harm to the victim are questions of fact to be determined by the jury in all but the clearest
cases. See People v. Anthony, 86 Cal.Rptr. 767, 778 (Cal.App. 1970); People v. Chavez, 84
Cal.Rptr. 783, 787 (Cal.App. 1970). The failure to instruct the jury in these matters misled the
jury and resulted in substantial prejudice to the accused because of which the conviction of
first degree kidnapping must be reversed, and the appellant remanded for a new trial. See
Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962).
[Headnotes 15, 16]
As to the instructions on second degree kidnapping, however, we perceive no error.
Langford was charged with the second degree kidnapping of Sanford Walters and Woody
Hamric. There was no charge that an associated offense was committed against either Sanford
Walters or Hamric. In such situation, there need be no finding with regard to minimal
asportation of the accused to sustain the kidnapping charge. Though the instruction given
regarding minimal asportation of the accused should have been limited to the second degree
kidnapping charge, we do not feel this error resulted in prejudice to the accused.
Accordingly, the convictions of robbery and second degree kidnapping are affirmed.
Appellant's conviction of first degree kidnapping is reversed, and the case is remanded to the
district court for a new trial on that charge.
____________
95 Nev. 639, 639 (1979) Rowland v. Lepire
GLEN E. ROWLAND, MARTIN L. ROWLAND and ROWLAND CORPORATION,
Appellants, v. EUGENE LEPIRE and JUDY LEPIRE, Respondents.
No. 11936
September 27, 1979 600 P.2d 237
Appeal from order denying motion to vacate default judgment; First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
The Supreme Court annulled the judgment because the judgment was entered and later
secured without plaintiffs' counsel giving notice to defendants' counsel, who had requested
additional time within which to file an answer.
95 Nev. 639, 640 (1979) Rowland v. Lepire
giving notice to defendants' counsel, who had requested additional time within which to file
an answer.
Reversed.
Kenneth J. Jordan, of Carson City, for Appellants.
Stokes, Shaw, Heaton & Doescher, of Carson City, for Respondents.
Judgment.
Default judgment entered and secured against defendants without plaintiffs' counsel having given notice
to defendants' counsel, who had requested additional time within which to file an answer, was annulled.
SCR 187.
OPINION
Per Curiam:
Plaintiffs' counsel had default entered and later secured a default judgment against
defendants without notice to their counsel who had requested additional time within which to
file an answer. Such advantage should not have been taken without first inquiring about
defense counsel's intention to proceed. Supreme Court Rule 187;
1
Nevada Ind. Guaranty v.
Sturgeon, 80 Nev. 254, 391 P.2d 862 (1964), concurring opinion. Accordingly, we annul the
judgment entered below and remand for further proceedings.
2

____________________

1
SCR 187: A member of the state bar . . . [w]hen he knows the identity of a lawyer representing an opposing
party . . . should not take advantage of the lawyer by causing any default or dismissal to be entered without first
inquiring about the opposing lawyer's intention to proceed.

2
The Chief Justice designated Honorable Frank B. Gregory, Senior Judge, to sit in this case in place of The
Honorable Cameron Batjer, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 10.
____________
95 Nev. 640, 640 (1979) Desert Chrysler-Plymouth v. Chrysler Corp.
DESERT CHRYSLER-PLYMOUTH, INC., a Corporation, and PETE KUBENA,
Appellants, v. CHRYSLER CORPORATION, a Corporation, Respondent.
No. 10459
October 10, 1979 600 P.2d 1189
Appeal from partial summary judgment, Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Owners of automobile dealership brought action to enjoin establishment of second
dealership in county.
establishment of second dealership in county. The district court granted plaintiffs' motion for
partial summary judgment, and certified the issue of the constitutionality of statutes
governing motor vehicle franchises. The Supreme Court, Batjer, J., held that sections of
chapter governing motor vehicle franchises prohibiting Department of Motor Vehicles from
issuing license for additional automobile dealership until district court determines if there is
good cause for establishment of that dealership were invalid because they were in violation
of the separation of power principle contained in State Constitution; however, remaining
sections of chapter defining unfair business practices and providing for civil penalties were
divisible from the sections which imposed licensing function on district court.
Affirmed on other grounds.
[Rehearing denied December 14, 1979]
Hilbrecht, Jones, Schreck and Bernhard, Las Vegas, for Appellants.
Lionel Sawyer and Collins, and Robert M. Buckalew and Rodney M. Jean, Las Vegas, for
Respondent.
Morton R. Galane, P. C., and James J. Jimmerson, Las Vegas, for Amicus Curiae Nevada
Franchised Automobile Dealers Association.
Appellate court may sua sponte raise a constitutional issue for the first time.
2. Constitutional Law; Statutes; Trade Regulation.
Sections of chapter governing motor vehicle franchises prohibiting Department of Motor Vehicles from
issuing license for additional automobile dealership until district court determines if there is good cause
for establishment of that dealership were invalid because they were in violation of the separation of power
principle contained in State Constitution; however, remaining sections of the chapter defining unfair
business practices and providing for civil penalties were divisible from the sections which imposed
licensing function on district court. NRS 0.020, 482.3636, 482.36365, 482.36415-482.36425;
Const. art. 3, 1.
OPINION
Appellants own the only Chrysler-Plymouth retail automobile dealership in Clark County,
Nevada. On June 8, 1977, respondent notified appellants of its intention to establish another
dealership in Clark County; the proposed dealership to be located several miles from
appellants' place of business.
be located several miles from appellants' place of business. On August 1, 1977, appellants
filed suit in district court seeking among other things, to enjoin the establishment of the
second dealership.
Pursuant to Chapter 295, 1977 Statutes of Nevada, see specifically NRS 482.36365 and
482.36415(1), when the existing dealer files for injunctive relief, the director of the
Department of Motor Vehicles cannot issue a license for the additional dealership until the
court determines if there is good cause for the establishment of that dealership.
1
In its
motion for partial summary judgment, respondent argued, relying upon a number of different
theories, that this legislation was unconstitutional. The district court agreed, granted the
motion and certified the issue pursuant to NRCP 54(b).
2
This appeal followed.
____________________

1
1. Sixty days before a manufacturer or distributor proposes to enter into a franchise establishing an
additional dealership for new motor vehicles, or relocate an existing dealership in the relevant market area of
another dealer in the same line and make, the manufacturer or distributor shall notify, by registered or certified
mail, return receipt requested, the director and each dealer in that line and make in the relevant market area of its
intention to establish or relocate an additional dealership.
2. Before the effective date of the proposed establishment of an additional dealership or relocation of an
existing dealership, any aggrieved dealer may apply to the district court in the county where the dealership is
located for injunctive relief to restrain the establishment or relocation.
3. In any hearing pursuant to this section, the manufacturer or distributor has the burden of proof to establish
there is good cause for establishing an additional dealership or relocating an existing dealership.
4. In determining whether good cause has been established, the court shall take into consideration the existing
circumstances, including:
(a) The permanency of the investment of any affected dealer.
(b) The effect on the retail new motor vehicle business and the consuming public in the relevant market area.
(c) Whether it is beneficial or injurious to the public welfare for an additional or relocated dealership to be
established.
(d) Whether a dealer of the same line and make in that relevant market area is providing adequate competition
and convenient service to consumers for the new motor vehicles of the same line and make, including the
adequacy of new motor vehicle sales and service facilities, equipment, supply of vehicle parts and qualified sales
and service personnel.
(e) Whether the action is for the purpose of coercing any existing dealer.
1. The director shall revoke or refuse to issue a dealer's license for a new franchise or a franchise replacing a
canceled or terminated franchise if an action for injunctive relief pursuant to NRS 482.3636, 482.36365 or
482.36411 has been instituted and a copy of the complaint is filed with the director by the complaining dealer.

2
The district court found that the legislation denied respondent due process since the appellants were able to
obtain a de facto injunction simply by the
During oral argument this court queried whether the statutory scheme was in violation of
the separation of powers principle enumerated in Article 3, Section 1, and Article 6, Section
6, of the Nevada Constitution.
3
Further briefing was ordered on this issue.
[Headnote 1]
Although we have on occasion declined to review constitutional issues not raised below,
e.g., Munoz v. State ex rel. Dep't of Highways, 92 Nev. 441, 444, 552 P.2d 42, 43-44 (1976),
we have done so not because of any jurisdictional limitation, but merely as a matter of
practice. See Krause v. Sacramento Inn, 479 F.2d 988, 989 (9th Cir. 1973). Relaxation of this
rule is occasionally appropriate. Cf. Krause v. Sacramento Inn, supra; Staton v. Mayes, 552
F.2d 908, 915 (10th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir. 1970);
Ruth v. Indus. Comm'n, 490 P.2d 828 (Ariz. 1971); VanSickle v. Shanahan, 511 P.2d 223,
231 (Kan. 1973); Shavers v. Kelley, 267 N.W.2d 72, 84-85, n. 14 (Mich. 1978); Laufenberg
v. Cosmetology Exam. Bd., 274 N.W.2d 618, 624 (Wisc. 1979). Furthermore, an appellate
court may sua sponte raise a constitutional issue for the first time.
____________________
filing of the action. The district court based its decision on Orrin W. Fox Co. v. New Motor Vehicle Board, 440
F.Supp 436 (C.D.Cal. 1977). However, subsequent to the district court's decision in this case, the United States
Supreme Court reversed the federal district court's decision. New Motor Vehicle Board v. Orrin W. Fox Co.,
439 U.S. 96, 99 S.Ct. 403 (1978).

3
Article 3, Section 1, of the Nevada Constitution provides:
The powers of the Government of the State of Nevada shall be divided into three separate departments,the
Legislative,the Executive and the Judicial; and no persons charged with the exercise of powers properly
belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in
the cases herein expressly directed or permitted.
Article 6, Section 6, of the Nevada Constitution provides:
The District Courts in the several Judicial Districts of this State shall have original jurisdiction in all cases in
equity; also in all cases at law which involve the title or the right of possession to, or the possession of real
property, or Mining claims, or the legality of any tax, impost, assessment, toll or municipal fine, and in all other
cases in which the demand (exclusive of interest) or the value of the property in controversy, exceeds Three
Hundred Dollars, also in all cases relating to the estates of deceased persons, and the persons and estates of
Minors and insane persons, and of the action of forcible entry and unlawful detainer; and also in all criminal
cases not otherwise provided for by law: They shall also have final appellate jurisdiction in cases arising in
Justices Courts, and such other inferior tribunals as may be established by law. The District Courts, and the
Judges thereof shall have power to issue writs of Mandamus, Injunction, Quo-Warranto, Certiorari, and all other
writs proper and necessary to the complete exercise of their jurisdiction; and also shall have power to issue writs
of Habeas Corpus on petition by, or on behalf of any person held in actual custody in their respective districts.
raise a constitutional issue for the first time. Mountain States Tel. & Tel. Co. v. Animas
Mosquito Control Dist., 380 P.2d, 560 (Colo. 1963). In the case at hand it is appropriate for
this court to raise the separation of powers issue; since the statutes were assailed on
constitutional grounds, it would be paradoxical for us to uphold the statutes on the grounds
raised by the parties, yet ignore a clear violation of the separation of powers doctrine.
[Headnote 2]
In Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967), we held that a statute which
delegated to the district courts the obligation of certifying licensed or ordained ministers to
perform marriages was unconstitutional because the legislation imposed on the judiciary an
administrative duty (licensing) which was not related to a judicial function. See also
Cromwell v. Jackson, 52 A.2d 79 (Md. 1947). Although the licensing function of the court
was more conspicuous in the Galloway statutory scheme than it is here, the statutes herein
involved nonetheless require the district courts to determine if a license should issue. Since
the director of the Department of Motor Vehicles cannot license the new dealership until the
district court has ascertained if good cause mandates the additional dealer, the court is in
reality the licensing entity. Under this scheme the court is performing a pre-licensing
fact-finding function rather than resolving an actual case or controversy. The Legislature
cannot, using the guise of permitting a party to seek injunctive relief, require the courts to
perform such a non-judicial function.
In determining if good cause exists for the establishment of the additional dealership, the
statutes mandate that the district court consider whether the additional dealership would be in
the public interest. NRS 482.36365(4). Here the determination of public interest should not
have been delegated to the courts. They are not equipped to independently investigate the acts
in order to assure that the general public is protected. Chemical Bank & Trust Co. v. Falkner,
369 S.W.2d 427, 432 (Tex. 1963).
Other states have enacted legislation dealing with the establishment of new automobile
franchises. In most of those states the legislatures assigned the task of administering the
legislation to an administrative board or agency.
4
In others the legislatures enacted
legislation which made the arbitrary or unfair establishment of additional dealerships
unlawful.5 The Nevada statutes do not contain similar provisions.
____________________

4
E.g., Ariz. Rev. Stat. Ann. 28-1304.02 (1976); Colo. Rev. Stat. tit. 12, art. 6, 101-123 (1978); Cal.
Veh. Code 3062 (West Supp. 1977-1978); Fla.Stat. Ann. 320.642 (West 1975); Haw. Rev. Stat. 437-1 to
437-42 (1976); Iowa Code Ann. 322A.1-.17 (West Supp. 1978); Neb. Rev. Stat. chap. 60 1401-1435
(1978); N.C. Gen. Stat. 20-305(5) (1978); R.I. Gen. Laws
latures enacted legislation which made the arbitrary or unfair establishment of additional
dealerships unlawful.
5
The Nevada statutes do not contain similar provisions. In testimony
before the Senate Committee on Commerce and Labor the executive director of the Nevada
Franchised Automobile Dealers Association explained to the Committee that the reason the
courts, rather than the Department of Motor Vehicles, were being obligated to administer this
legislation was because the director of that agency objected to the additional workload. Such
a reason is hardly justification for imposing an unconstitutional function on the courts. For
the reasons stated in Galloway v. Truesdell, supra, we find that sections 11, 12, 20 and 21 of
Chapter 295, 1977 Statutes of Nevada, see NRS 482.3636, 482.36365, 482.36415 and
482.3642 are unconstitutional because they are in violation of Article 3, Section 1, and
Article 6, Section 6, of the Nevada Constitution.
We now must determine if the remaining sections of Chapter 295 are severable from the
parts herein held invalid. Despite the wording of NRS 0.020,
6
which is the general
severability clause, it is a function of this court to consider whether the remainder of the
statute can stand independently and whether the Legislature would have intended it to do so.
County of Clark v. City of Las Vegas, 92 Nev. 323, 335-337, 550 P.2d 779, 787-788 (1976).
In this case it is clear that the legislation is separable and that the Legislature would have
intended severance. The remaining sections of Chapter 295 define unfair business practices
and provide for civil penalties when these laws are violated. See NRS 482.36425. Such
legislation is divisible from that which imposes a licensing function on the district court.
Furthermore, since it was the intent of the Legislature to enact a law that regulated motor
vehicle franchises, it must be presumed that the Legislature would have intended that the
remaining portion of the act be severable from the invalid provisions.
____________________
31-5.1-1 to 31.5.1-17 (Supp. 1978); S.D. Comp. Laws Ann. tit. 32, 6A-3, -4 (1976); Tenn. Code Ann.
59-1714(c) (Supp. 1978); and Va. Code 46.1-547(d) (Supp. 1979).

5
E.g., Mass. Gen. Laws Ann. chap. 93B, 4, 12, 12B (Supp. 1978); and N.Mex. Stat. Ann. 57-16-1 to
57-16-16 (1978).

6
NRS 0.020 provides:
1. If any provision of the Nevada Revised Statutes, or the application thereof to any person, thing or
circumstance is held invalid, such invalidity shall not affect the provisions or application or NRS which can be
given effect without the invalid provision or application, and to this end the provisions of NRS are declared to be
severable.
2. The inclusion of express declaration fo severability in the enactment of any provision of NRS or the
inclusion of any such provision in NRS, does not enhance the severability of the provision so treated or detract
from the severability of any other provision of NRS.
remaining portion of the act be severable from the invalid provisions. See NRS 482.318.
7
Anthony v. State, 94 Nev. 337, 580 P.2d 939 (1978).
Because of our determination here we need not consider the constitutional issues raised by
the parties.
Affirmed on other grounds.
____________________

7
The legislature finds and declares that the distribution and sale of motor vehicles in the State of Nevada
vitally affects the general economy of the state and the public interest and the public welfare, and in the exercise
of its police power, it is necessary to regulate and to license motor vehicle manufacturers, distributors, new and
used vehicle dealers, rebuilders, leasing companies, salesmen, and their representatives doing business in the
State of Nevada in order to prevent frauds, impositions and other abuse upon its citizens.
____________
95 Nev. 646, 646 (1979) Baron v. District Court
BRUCE SCOTT BARON, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS, and HOWARD
D. McKIBBEN, DISTRICT JUDGE, Respondents.
No. 11889
October 12, 1979 600 P.2d 1192
Petition for writ of mandate, Ninth Judicial District Court, Douglas County; Howard D.
McKibben, Judge.
After the district court denied petitioner's motion for preliminary examination on ground
that criminal information could only be filed after preliminary examination, petitioner sought
writ of mandate. The Supreme Court held that district court properly discerned intent of
Legislature by permitting case to proceed in district court on criminal information supported
by affidavit but without preliminary examination.
Writ denied.
Norman Y. Herring, State Public Defender, Carson City, and David Mathews, Deputy
Public Defender, Minden, for Petitioner.
Richard H. Bryan, Attorney General, Carson City; Michael Smiley Rowe, District
Attorney, Douglas County, for Respondents.
Smiley Rowe, District Attorney, Douglas County, for Respondents.
Where Legislature has failed to address a matter or has addressed it with imperfect clarity, it is function
of Supreme Court to discern the law.
2. Criminal Law.
Where petitioner was arrested and charged with offense of battery on a police officer, a misdemeanor,
where district attorney subsequently filed criminal information by which petitioner was charged with the
offense, and where petitioner then moved for preliminary examination, contending that criminal
information could only be filed after preliminary examination, district court properly discerned the intent of
the Legislature by permitting case to proceed in district court on criminal information supported by
affidavit but without preliminary examination, in view of fact that Legislature did not provide accused right
to a preliminary examination for any other misdemeanors. NRS 171.202, 173.035, 173.035, subd. 2,
200.481.
OPINION
Per Curiam:
On the instant petition we are confronted with the question of the proper means to make a
probable cause determination supporting a criminal information for the offense of battery on a
police officer. In our prior decisions, we have established that though the offense is a
misdemeanor, jurisdiction lies in the district court. Battiato v. Sheriff, 95 Nev. 361, 594 P.2d
1152 (1979). Further, we have held that because jurisdiction of the offense is in district court,
the proper charging document is either an indictment or an information. Id.
Petitioner was arrested and charged with the offense of battery on a police officer, a
misdemeanor. (NRS 200.481). Subsequently, the district attorney filed in the district court a
criminal information by which the petitioner was charged with the offense. Petitioner then
moved for a preliminary examination contending that a criminal information can only be filed
after a preliminary examination. The district court denied the motion, but stated that the
district attorney must append to the information an affidavit setting forth facts constituting
probable cause for petitioner's detention. This writ of mandate is sought to compel the district
court to grant the petitioner's motion for preliminary examination.
We first note that we are dealing in an area that the legislature has not addressed. NRS
171.202 provides that the district attorney shall conduct preliminary examinations in cases
where a felony or gross misdemeanor is charged. From NRS 171.202, it is properly inferred
that in simple misdemeanor cases, the legislature did not intend to afford the accused a
preliminary examination.
it is properly inferred that in simple misdemeanor cases, the legislature did not intend to
afford the accused a preliminary examination.
However, we are also cognizant of the fact that NRS 173.035 appears to permit the filing
of a criminal information only after the accused has either had, or waived, a preliminary
examination. Though NRS 173.035(2) permits the prosecutor to file a criminal information
supported by affidavit, this criminal information may be filed only after the magistrate has
discharged the accused at the conclusion of a preliminary examination.
[Headnotes 1, 2]
Thus we are confronted with a situation in which the accused must be prosecuted by
information, see Battiato, supra, which information appears to require a preliminary
examination, see NRS 173.035, but the offense is one for which the legislature did not
contemplate a preliminary examination, see NRS 171.202. Where the legislature has failed to
address a matter or, as here, addressed it with imperfect clarity, it is our function to discern
the law. Goodman v. Goodman, 68 Nev. 484, 488, 236 P.2d 305, 307 (1951). Here, we
believe that the district court properly discerned the intent of the legislature by permitting the
case to proceed in a district court on criminal information supported by affidavit, and without
preliminary examination. The offense charged is a misdemeanor. The legislature has not
provided the accused the right to a preliminary examination for any other misdemeanors, and
it does not appear that the legislature intended to provide that right in the instant situation.
Accordingly, the writ is denied.
____________
95 Nev. 648, 648 (1979) Merryman v. State
ELVlS MICHAEL MERRYMAN, Appellant, v. THE
No. 11493
October 15, 1979 601 P.2d 53
Appeal from judgment upon jury verdict of guilty of burglary, Eighth Judicial District
Court, Clark County; James A. Brennan, Judge.
The Supreme Court held that evidence disclosing defendant's presence at scene, his
apparent and immediate possession of stolen property together with inconsistencies
between testimony of officer and defendant permitted jury to conclude that defendant
had been in parked automobile near wall for purpose of aiding and assisting companion in
perpetration of burglary.
of stolen property together with inconsistencies between testimony of officer and defendant
permitted jury to conclude that defendant had been in parked automobile near wall for
purpose of aiding and assisting companion in perpetration of burglary.
Affirmed.
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
Burglary.
Evidence disclosing defendant's presence at scene, his apparent and immediate possession of stolen
property together with inconsistencies between testimony of officer and defendant permitted jury to
conclude that defendant had been in parked automobile near wall for purpose of aiding and assisting
companion in perpetration of burglary. NRS 195.020.
OPINION
Per Curiam:
Elvis Michael Merryman was convicted by jury verdict of burglary. After judgment of
conviction, Merryman appealed contending evidence adduced at trial was insufficient to
support the conviction.
On April 6, 1978, in Las Vegas, Nevada, an officer observed a man climb over a wall and
exchange gestures with a man seated in a parked vehicle across the street. Finding this
suspicious, the officer circled the block and stopped the suspect car as it left its location. The
officer questioned the vehicle's occupants, Merryman and one Billy Barnett. They claimed
Barnett had gone over the wall to retrieve beer, thrown there the evening before. The officer
asked where the beer was and Barnett pulled a can of beer from under the seat of the car. The
officer saw a portable radio-television unit in the back seat of the vehicle. Then, unsatisfied
by their answers, the officer went with other officers to the residence at 1709 Fontenelle, Las
Vegas, Nevada, which was behind the wall in question. Finding no one home, the officers
went to the rear, where they found a door kicked in. The resident identified the portable
unit in the vehicle as her property and testified her house had been ransacked.
The appellant testified at trial that he and Barnett were retrieving beer as described; that he
made no hand motions to Barnett as he came over the wall; and, that when he asked
Barnett where he got the portable unit, Barnett told Merryman he found it in the back
yard.
Barnett as he came over the wall; and, that when he asked Barnett where he got the portable
unit, Barnett told Merryman he found it in the back yard. According to Merryman, Barnett
told him to back up and drive through the alley, whereupon the officer stopped the car.
Appellant argues that his mere presence at the location of a burglary does not give rise to
an inference that he participated in a burglary.
This court has held that presence, companionship, and conduct before and after the offense
are circumstances from which a defendant's participation in the criminal intent may be
inferred. Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974); Bayman v. Sheriff, 89 Nev. 86,
506 P.2d 1259 (1973); Johnstone v. Lamb, 89 Nev. 38, 505 P.2d 596 (1973); Robertson v.
Sheriff, 85 Nev. 681, 462 P.2d 528 (1969). See Tellis v. State, 85 Nev. 679, 462 P.2d 526
(1969).
Appellant explained his presence at the scene to the jury; evidently it did not choose to
believe him. Moreover, the officer's testimony contradicted appellant's testimony as to hand
gestures or motions made by appellant while he was in the car, and as to what was said by
appellant to the officer at the initial stop. The jury is the sole and exclusive judge of the
credibility of witnesses and the weight to be given the evidence. Wheeler v. State, 91 Nev.
119, 120, 531 P.2d 1358 (1975); King v. State, 87 Nev. 537, 538, 490 P.2d 1054 (1971).
In view of appellant's presence at the scene, his apparent immediate possession of the
stolen property, and the inconsistencies between the testimony of the officer and the
appellant, a jury reasonably could conclude that the appellant was in the parked car near the
wall for the purpose of aiding and assisting Barnett in the perpetration of a burglary, as
charged.
1

Affirmed.
____________________

1
NRS 195.020 states:
Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he
directly commits the act constituting the offense, or aids or abets in its commission, and whether present or
absent; and every person who, directly or indirectly, counsels, encourages, hires, commands, induces or
otherwise procures another to commit a felony, gross misdemeanor or misdemeanor is a principal, and shall be
proceeded against and punished as such.
____________
95 Nev. 651, 651 (1979) Back Streets, Inc. v. Campbell
BACK STREETS, INC., a Nevada Corporation, dba BACK STREETS COCKTAIL
LOUNGE, Appellant, v. WILLIAM CAMPBELL, ALEX SCHOOFEY, AL BRAMLET,
BEN SCHMOUTEY, JACK STAFFORD, BOARD OF TRUSTEES OF INSURANCE
TRUST FUND OF EMPLOYERS AND UNIONS, KEITH ASHWORTH, HARRY RUGG,
LEO LOUIS, AL BRAMLET, BEN SCHMOUTEY, JACK STAFFORD, BOARD OF
TRUSTEES OF THE NEVADA RESORT ASSOCIATION-CULINARY WORKERS AND
BARTENDERS PENSION TRUST FUND, Respondents.
No. 10011
October 15, 1979 601 P.2d 54
Appeal from judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
The trustees of trust funds designated to receive employer contributions toward health and
welfare and pension benefit plans for employees covered by agreement brought an action
against the employer for breach of the agreement. From a judgment of the district court the
defendant appealed. The Supreme Court held that: (1) evidence establishing that defendant
had been bound to make specified payments to trust funds on behalf of his employees and to
report any change in their employment status, and that neither payments nor reports had been
made was sufficient to establish breach of the contract, and (2) defendant which did not
object to offered testimony on ground that written contract was the best evidence of its terms
waived its right to object.
Affirmed.
Keefer, Clark & O'Reilly, and R. Steven Young, Las Vegas, for Appellant.
Asleman, Sabbath & Rohay, Las Vegas, for Respondents.
1. Contracts.
A contract is founded upon the meeting of the minds of the parties as to ascertainable terms.
2. Labor Relations.
Evidence established that employer had been bound to make specified payments to union trust funds on
behalf of employees and in report any change in their employment status, and that neither payments nor
reports had been made which constituted substantial evidence of existence of a contract and or its breach
by the employer.
3. Trial.
Where defendant did not object to offered testimony on ground that written contract was best evidence of
its terms, the right to object to the evidence was waived.
4. Labor Relations.
Trustees of union trust funds designated to receive the employer contributions toward health and welfare
and pension benefit plans For employees covered by the agreement were the real parties in interest as
trustees of an express trust which was a third-party beneficiary of the agreement, and hence were proper
parties to bring suit against employer for breach of the contract. NRCP 17(a).
OPINION
Per Curiam:
This appeal arises out of a judgment awarding respondents damages resulting from
appellant's breach of a written collective bargaining agreement. Appellant asserts that the
evidence before the trial court was insufficient to establish the existence of the contract. We
find substantial evidence in the record to support the judgment of the district court and
therefore affirm.
At trial, respondents called Russell Smith, the general manager and fifty percent
stockholder of appellant at the time of the signing of the alleged agreement. He testified that
he had signed a union contract with the culinary union, that he was familiar with the terms of
the agreement, and that he had obligated the corporation to make benefit payments to
respondent trust funds for the benefit of appellant's employees. Pearl Peterson, an employee
of respondent trust funds, testified that she had calculated the amounts owed by appellant
under the benefit provisions of the contract. She also testified that appellant, as the employer,
was responsible, under the contract, for reporting changes in personnel which would vary the
amounts owed. These reports were never made by appellant. The testimony of Smith and
Peterson was uncontradicted. Appellant's resident agent was called, but had no knowledge of
the personnel changes in the relevant period. Although the employment records of the
corporation had been required by subpoena duces tecum, and he was aware of where they
were kept, he did not produce them at trial. The written contract was not introduced in
evidence, but appellant never objected to the testimony regarding its terms.
[Headnotes 1, 2]
A contract is founded upon the meeting of the minds of the parties as to ascertainable
terms. Smith v. Recrion Corp., 91 Nev. 666, 541 P.2d 663 {1975).
Nev. 666, 541 P.2d 663 (1975). The uncontroverted testimony of Smith and Peterson
established that appellant had been bound to make specified payments to respondent trust
funds on behalf of its employees and to report any change in their employment status, and
that neither payments nor reports had been made. This is substantial evidence of the existence
of a contract and of its breach by appellant. The amounts due under the contract were testified
to by Peterson, and appellant introduced none of its records to dispute her testimony. We
conclude that sufficient evidence is present in the record to justify the district court's decision.
[Headnote 3]
Appellant's contention that introduction of the written contract into evidence was
necessary is without merit. Appellant did not object to the offered testimony on the ground
that the written contract was the best evidence of its terms; its right to object to the evidence
was therefore waived. Sublett v. Henry's Turk & Taylor Lunch, 131 P.2d 369, 370 (Cal.
1942); Clevenger v. Potlatch Forests, Inc., 353 P.2d 396, 397 (Idaho 1960).
[Headnote 4]
Appellant contends that respondents were not proper parties to bring the suit in the first
instance. Respondents are the trustees of trust funds designated to receive the employer
contributions toward health and welfare and pension benefit plans for employees covered by
the agreement. They are real parties in interest, under NRCP 17(a), as trustees of an express
trust which is a third party beneficiary of the agreement. Causey v. Carpenters Southern
Nevada Vacation Trust, 95 Nev. 609, 600 P.2d 244 (1979); Lipshie v. Tracy Investment Co.,
93 Nev. 370, 379, 566 P.2d 819, 825 (1977); Olson v. Iacometti, 91 Nev. 241, 246, 533 P.2d
1360, 1364 (1975). Cf. L & H Builders Supply v. Boyd Co., 93 Nev. 610, 571 P.2d 1167
(1977) (administrator of union trust funds not real party in interest).
____________
95 Nev. 654, 654 (1979) Sierra Life Ins. Co. v. Rottman
SIERRA LIFE INSURANCE COMPANY, an Idaho Company, Appellant, v. DICK L.
ROTTMAN, Commissioner of Insurance, State of Nevada, INSURANCE DIVISION,
Department of Commerce, State of Nevada, Respondent.
No. 10288
October 15, 1979 601 P.2d 56
Appeal from judgment, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Idaho insurance company sought review of an order of the Division of Insurance
precluding the company, formerly licensed in Nevada, from receiving a certificate of
authority until it corrected specified statutory deficiencies. The district court affirmed the
Division, and appeal was taken. The Supreme Court held that: (1) the summary revocation of
the insurance company's certificate of authority did not violate the company's statutory or due
process rights, and (2) a review of the record established that the Division's determination
was proper.
Affirmed.
William K. Lohse, Reno, for Appellant.
Richard H. Bryan, Attorney General, and James L. Wadhams, Deputy Attorney General,
1. Insurance.
Under the rule of statutory construction that a provision which specifically applies to a situation will take
precedence over one that applies only generally, where there was some disparity between the
Administrative Procedure Act and the section giving the Commissioner of Insurance the authority to
summarily revoke a certificate of authority in that the APA required the agency to provide the licensee with
notice and an opportunity to show compliance, the specific statute relating to the Commissioner of
Insurance was controlling with respect to question whether summary revocation of insurer's certificate of
authority violated insurer's statutory and due process rights. NRS 233B.020, 680A.190;
When an administrative agency takes action in response to an emergency situation to protect the public
from economic injury, due process does not require a prior hearing. U.S.C.A.Const. Amend. 14; NRS
680A.190.
Action of the Commissioner of Insurance in summarily revoking foreign insurer's certificate of authority
did not violate insurer's due process rights. NRS 680A.190; U.S.C.A.Const. Amend. 14.
4. Insurance.
In reviewing decision of the Division of Insurance finding that investment portfolio of foreign insurer
failed in comply with statutory requirements and precluding the foreign insurer from doing any insurance
business in Nevada until the statutory deficiencies were corrected, the Supreme Court was limited to the
same scope of review as was the district court. NRS 680A.190.
5. Insurance.
Record established that the Division of Insurance acted properly in determining that foreign insurer's
investment portfolio failed to comply with statutory requirements and in precluding the company from
doing insurance business in Nevada until the statutory deficiencies were corrected. NRS 680A.120.
OPINION
Per Curiam:
This is an appeal from a district court judgment affirming a decision of the State of
Nevada Division of Insurance. The district court concluded that the administrative hearing
officer had properly determined that the investment portfolio of Sierra Life Insurance
Company (hereinafter Sierra Life) failed to comply with the statutory requirements of NRS
680A.120. Therefore, the company was precluded from doing any insurance business in
Nevada until all of its statutory deficiencies were corrected.
Sierra Life, an Idaho company, is a life and disability insurer and was licensed in Nevada
as a foreign insurer. On March 3, 1975, Sierra Life filed its annual financial statement with
the State of Nevada Division of Insurance, and the Division issued the company a Certificate
of Authority; permitting Sierra Life to continue to transact business in Nevada. A subsequent
review of the company's financial statement revealed that the company did not meet the
capital and surplus requirements of NRS 680A.120.
1
Accordingly, the Division, pursuant to
NRS 680A.190(1), summarily revoked Sierra Life's Certificate of Authority.2 Thereafter, an
administrative hearing was conducted, at the conclusion of which the Division ordered
that Sierra Life would not receive a Certificate of Authority until it corrected its specified
"statutory deficiencies."
____________________

1
NRS 680A.120 provides, in pertinent part:
1. Except as provided in subsection 2, to qualify for authority to transact any one kind of insurance as
defined in NRS 681A.010 to 681A.080, inclusive (kinds of insurance), or combinations of kinds of insurance as
shown below, an insurer shall possess and thereafter maintain unimpaired paid-in capital stock (if a stock
insurer) or unimpaired basic surplus (if a foreign mutual or a foreign reciprocal insurer) and free surplus not less
than 50 percent of the minimum required capital stock or minimum required basic surplus, as the case may be,
and when first so authorized shall possess initial free surplus, all in amounts not less than as determined from the
following table: . . .
Authority.
2
Thereafter, an administrative hearing was conducted, at the conclusion of which
the Division ordered that Sierra Life would not receive a Certificate of Authority until it
corrected its specified statutory deficiencies.
Sierra Life then sought review of the Division's order in the district court. The district
court affirmed the order and this appeal followed.
Appellant contends: (1) since its Certificate of Authority was summarily revoked prior to a
hearing on the matter, it was denied protections afforded by statute as well as due process of
law, and (2) there was insufficient evidence produced at the administrative hearing to support
the hearing officer's findings.
[Headnotes 1-3]
1. There is some disparity between the Administrative Procedure Act, NRS 233B.020,
which requires the agency to provide notice and an opportunity to show compliance to the
licensee, and NRS 680A.190, which gives the Commissioner of Insurance the authority to
summarily revoke a Certificate of Authority. However, it is an accepted rule of statutory
construction that a provision which specifically applies to a given situation will take
precedence over one that applies only generally. W. R. Co. v. City of Reno, 63 Nev. 330, 172
P.2d 158 (1946). Thus, NRS 680A.190 is controlling. Furthermore, where, as here, an
emergency situation exists and the action was taken to protect the public against economic
injury, due process does not require a prior hearing. Cf. Fuentes v. Shevin, 407 U.S. 67
(1972); Bell v. Burson, 402 U.S. 535 (1971); Fahey v. Mallonee, 332 U.S. 245 (1947).
____________________

2
NRS 680A.190 provides, in pertinent part:
1. The commissioner shall refuse to continue or shall suspend or revoke an insurer's certificate of authority:
(a) If such action is required by any provision of this code; or
(b) If a foreign insurer and it no longer meets the requirements for a certificate of authority, on account of
deficiency of capital or surplus or otherwise; or
(c) If a domestic insurer and it has failed to cure an impairment of capital or surplus within the time allowed
therefor by the commissioner under this code or is otherwise no longer qualified for the certificate of authority;
or
(d) If the insurer's certificate of authority to transact insurance therein is suspended or revoked by its state of
domicile, or state of entry into the United States of America if an alien insurer; or
(e) For failure of the insurer to pay taxes on its premiums as required by this code; or
(f) For failure of the insurer to furnish information to the commissioner relating to medical malpractice
insurance issued by the insurer in this state or any other state.
[Headnotes 4-5]
2. In reviewing the decision of the Insurance Division, this court is limited to the same
scope of review as the district court. It is the function of this court as well as the lower court
to review the evidence presented to the board to determine if the board's decision was
supported by the evidence, and to ascertain whether that body acted arbitrarily, capriciously
or contrary to the law. Miller v. West, 88 Nev. 105, 108, 493 P.2d 1332, 1334 (1972), cert.
denied, 409 U.S. 966 (1972). After reviewing the record and briefs on file herein, we are
constrained to find that the Division's determination was proper.
Appellant's other contentions are without merit. Accordingly, we affirm.
____________
95 Nev. 657, 657 (1979) Hildahl v. Hildahl
ROGER E. HILDAHL, Appellant, v. GLENDA L.
HILDAHL, Respondent.
No. 10220
October 15, 1979 601 P.2d 58
Appeal from judgment for arrearages and order finding appellant in contempt of court.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Divorced wife filed motion for judgment for arrearages and petition for order to show
cause, requesting a judgment for the amounts her former husband had withheld from support
payments and an order directing husband to show cause why he should not be held in
contempt of court for failing to make the full payments. The district court entered judgment
for arrearages and order finding husband in contempt of court and he appealed. The Supreme
Court, Mowbray, C. J., held that: (1) despite divorced husband's assertion that he had
assumed permanent custody of one of the children with consent of wife and was entitled to
deduct a portion of support payments for that reason, evidence supported district court's
implied finding that wife had continued to have custody of such child; (2) absent credible
evidence of agreement to modify terms of support agreement or compelling circumstances
involving change of custody before judicial approval was sought in interest of child, husband
was not entitled to setoff against his support obligations his expenditures for child who lived
with him for a time; (3) divorce decree, which set out schedule of husband's support
obligations and which incorporated and approved settlement agreement's provision for
conveyance of family home, was an order of court, and husband's unilateral modification
of his performance under that order violated the decree so that he was properly held in
contempt.
support obligations and which incorporated and approved settlement agreement's provision
for conveyance of family home, was an order of court, and husband's unilateral modification
of his performance under that order violated the decree so that he was properly held in
contempt.
Affirmed.
Bissett & Logar, Reno, for Appellant.
Hibbs & Newton, Reno, for Respondent.
1. Divorce.
Payments once accrued for either alimony or support of children become vested rights and cannot
thereafter be modified or avoided.
2. Divorce.
In action to recover sum provided in settlement agreement for support and maintenance of wife and
children, wherein divorced husband contended that he had assumed permanent custody of one of the
children with consent of wife and was entitled to deduct a portion of support payments for that reason,
evidence supported district court's implied finding that wife had continued to have custody of such child.
3. Divorce.
Under divorce decree specifying monthly payments for support of wife and children and not suggesting
that such sums could be reduced while children were visiting with noncustodial father, father was not
entitled to deduct from his support payments the amount of his expenditures while he was exercising his
visitation rights.
4. Divorce.
Absent credible evidence of agreement between divorced parents to modify terms of agreement for
support of mother and children, or compelling circumstances involving change of custody before judicial
approval was sought in interest of child, noncustodial father was not entitled to setoff against his support
obligations his expenditures for child who lived with father for a time. NRS 22.010, subd. 3, 125.140,
subd. 2, 125.150, subd. 5, 125.180, subd. 1.
5. Divorce.
Divorce decree which set out schedule of husband's support obligations and which incorporated and
approved settlement agreement's provision for conveyance of family home to wife was order issued by
court within statute including in acts or omissions constituting contempts disobedience or resistance to any
lawful order issued by court; thus husband's unilateral modification of his performance under that order
violated the decree and he was properly held in contempt. NRS 22.010, subd. 3, 125.140, subd. 2,
125.150, subd. 5, 125.180, subd. 1.
6. Contempt.
When contempt citation is issued apparently in order to ensure compliance with court order, process is
coercive in nature rather than punitive and is proper. NRS 22.110.
7. Divorce.
Although district court sentenced divorced husband to specific jail term, since sentence was suspended on
condition that he pay support arrearages it appeared that contempt was designed to coerce
husband's performance and was therefore proper.
arrearages it appeared that contempt was designed to coerce husband's performance and was therefore
proper. NRS 22.110.
OPINION
Appellant Roger E. Hildahl and respondent Glenda L. Hildahl (the parties will be referred
to hereinafter by their first names) were divorced on March 24, 1977. The divorce decree
incorporated and approved a property and support settlement agreement, with its
amendments, which had been entered into by the parties. Under the terms of the agreement,
the three minor children of the parties were placed in the custody of Glenda. Roger was
granted the right to have the children visit his home for a minimum of one month during
summer vacation and for specified periods at Christmas and Easter. Roger was required to
pay Glenda nonmodifiable alimony and an additional $750.00 per month for her support and
maintenance, and for the support, care, education, and maintenance of the minor children.
This support obligation was to decrease by one-third upon the death, marriage, emancipation,
attainment of eighteen years of age, or completion of a high school education of each of the
children. The agreement also provided that Roger would convey the family home to Glenda.
On or about June 10, 1977, Mark, the son of the parties, moved into Roger's home. Roger
thereupon withheld $250.00 per month from the support payments due for the months of June
and July, and $474.50 from the payment due for August. Glenda's attorney requested Roger to
provide the legal description of the family home (which, as counsel admitted during oral
argument, is a matter of public record) in order that a deed could be drawn, but Roger did not
comply.
On August 1, 1977, Glenda filed a Motion for Judgment for Arrearages and Petition for
Order to Show Cause, requesting a judgment for the amounts withheld from the June and July
payments and an order directing Roger to show cause why he should not be held in contempt
of court for failing to make the full payments and for not transferring the family home or
furnishing its legal description to Glenda's counsel. Upon service of the order to show cause,
Roger sent the deed to the property to Glenda's attorney.
At the hearing on Glenda's motion, Roger testified that he had in fact reduced the
payments for June, July, and August.
He testified that he had made the deductions because I had custody of my son, and it was
under circumstances which I had no reason to believe was not going to be permanent. Under
questioning by Glenda's attorney, Roger initially characterized Mark's sojourn with him as a
change in custody, effected with Glenda's consent, but in response to a question as to whether
he had been exercising his visitation privileges with Mark during the summer, he answered in
the affirmative. Roger's counsel attempted to have him testify as to the amounts he had
expended on Mark during the summer, but an objection to the testimony as irrelevant was
sustained.
On the day of the hearing, Roger filed a motion to modify the decree of divorce by
awarding custody of Mark to him.
The district court entered judgment for Glenda for the arrearages and held Roger in
contempt of court for reducing his payments and for his delay in furnishing the property
description to Glenda's counsel. Roger was sentenced to serve two days in the county jail for
the contempt, and the sentence was suspended on the condition that he comply with the
court's order to pay the arrearages. Roger has appealed both the judgment for the arrearages
and the contempt order. We affirm the judgment of the district court.
[Headnote 1]
The applicable rule is stated in Day v. Day, 82 Nev. 317, 320-21, 417 P.2d 914, 916
(1966): [p]ayments once accrued for either alimony or support of children become vested
rights and cannot thereafter be modified or voided. Accord, Norris v. Norris, 93 Nev. 65,
560 P.2d 149 (1977). The payments in the instant case fell due, but were reduced by what
Roger considered to be the proportion owing on account of Mark. It is clear that a party is not
free to modify his obligations under a decree of divorce in this fashion. For Roger to proceed
on the assumption that the support payments were intended solely for expenditures for the
children, and not for the mother's fixed costs as well, was unjustified by the terms of the
decree. The order provided for both fixed monthly support payments and liberal visitation
privileges. We do not presume, nor do we read the decree to imply, that the father was
thereby granted the right to deduct his expenditures while the child was visiting him. See
Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95 (1929).
[Headnote 2]
Roger contends, however, that he was not merely exercising his visitation privileges but
had taken custody of Mark. Our review of the record, however, reveals no indication that this
was the case.
was the case. Roger asserted, in his testimony before the district court, that he had assumed
permanent custody of his son with the consent of Glenda and that [t]here was no time limit
put on the time that I would have custody of Mark. Beyond this statement, no evidence of
Glenda's consent was introduced. The district court, in awarding the arrearages to Glenda,
recognized that, under the terms of the divorce decree, custody of Mark was still legally in
Glenda. Although it has been held in this state that custody is a personal privilege which may
be waived by the parent granted custody by the court, In Re Foster's Estate, 47 Nev. 297, 304,
220 P. 734, 736 (1923), as long as the welfare of the child is served, Elsman v. Elsman, 54
Nev. 20, 2 P.2d 139 (1931), we perceive no basis for the assertion that Glenda waived her
right to custody of Mark. The district court could have inferred merely from the fact that
Glenda filed an action for arrearages that she had not, in fact, consented to a change in
custody. On the slender record before us, we cannot disturb the district court's implied finding
that Glenda was entitled to the full payments specified in the divorce decree by reason of her
custody of Mark.
[Headnote 3]
Roger further argues, however, that he should be entitled to an equitable setoff of the
amounts he actually expended on Mark while he was living with him (or, as Roger puts it, in
his de facto custody). If by this Roger means that he is entitled to deduct from his support
payments the amount of his expenditures while he is exercising his visitation rights, we
cannot agree. The decree specifies monthly payments of certain sums, and it is bare of any
suggestion that those sums could be reduced while the children were visiting their father. See
Lindsay v. Lindsay, supra. Furthermore, since the payments were for Glenda's support and
maintenance as well as that of the children, we are unable to see how Roger would be
authorized to reduce his payments by the full amount he expended on the children in any
case.
Roger cites a multitude of cases from other jurisdictions in support of his entitlement to an
equitable setoff. See generally 47 A.L.R.3d 1031 (1973). We do not consider them
controlling here. They deal with two different kinds of situations: those in which the parent
granted custody by the court expressly or impliedly consented to transfer custody to the other
parent, and to a consequent reduction in the support payments; and those in which the
compulsion of circumstances compelled the change in custody, in the interest of the child,
and it would be inequitable to force the parent who took the child in such a case to pay the
support due to the parent who could not, or would not, retain custody.
case to pay the support due to the parent who could not, or would not, retain custody.
The instant case is not one, however, in which there is credible evidence of consent to a
change by the parent granted custody. Glenda did not impliedly acquiesce in the reduction in
support by waiting several years to file a claim for arrears, Meyer v. Meyer, 493 S.W.2d 42
(Mo.App. 1973), nor was there an express agreement, written or oral, see In Re Swall, 36
Nev. 171, 175-76 (1913), that custody could be changed and the payments reduced, Souran v.
Souran, 80 Misc.2d 476, 363 N.Y.S.2d 511 (1975); Strum v. Strum, 317 N.E.2d 59 (Ill.App.
1974). Neither do we find the sort of compulsion of circumstances in the instant case as
when the parent with custody abandons the child to the other parent, Caraway v. Caraway,
321 So.2d 405 (La.App. 1975), or when the mental instability or physical illness of the
custodial parent compels an immediate change in custody, Headley v. Headley, 172 So.2d 29
(Ala. 1964); Chapman v. Chapman, 161 P.2d 917 (Or. 1945); Silas v. Silas, 300 So.2d 522
(La.App. 1974).
[Headnote 4]
Our statutory scheme provides for orderly modification of child custody provisions in
divorce decrees, NRS 125.140(2), and for the modification of child support provisions, id.,
and alimony, NRS 125.150(5). When, as in the instant case, the court granting the divorce has
approved a child custody arrangement and a method of support payments, [t]he seeds of
further controversy may be sown when that method is unilaterally departed from. Day v.
Day, 82 Nev. at 328, 417 P.2d at 920 (Thompson, J., concurring). It is the policy of the statute
to have modifications of divorce decrees submitted to the court for approval to minimize
precisely the sort of dispute arising in the instant case. We therefore hold that, absent credible
evidence of an agreement between the parties to modify the terms of a support agreement, or
compelling circumstances which require a change in custody, before judicial approval is
sought, in the interest of the child, a parent making expenditures for a child of whom he does
not have custody is not entitled to a setoff of those amounts against his support obligations. It
follows that the district court did not abuse its discretion, under NRS 125.180(1), in awarding
judgment to Glenda for arrearages.
[Headnote 5]
The use of the contempt power to enforce the provisions of a divorce decree has been
approved many times in this state. E.g.
Lamb v. Lamb, 83 Nev. 425, 433 P.2d 265 (1967); Ex parte Phillips, 43 Nev. 368, 187 P. 311
(1920); Phillips v. Phillips, 42 Nev. 460, 180 P. 907 (1920). NRS 22.010(3) includes in the
acts or omissions constituting contempts, [d]isobedience or resistance to any lawful writ,
order, rule or process issued by the court or judge at chambers. The divorce decree, which
set out the schedule of Roger's support obligations, and which incorporated and approved the
provision for conveyance of the family home in the settlement agreement, was an order of the
court within the meaning of the statute. Roger's unilateral modification of his performance of
that order was a violation of the decree, and the district court properly held him in contempt.
[Headnotes 6, 7]
In a case such as this, when a contempt citation is issued apparently in order to ensure
compliance with a court order, the process is coercive in nature rather than punitive. Phillips
v. Welch, 11 Nev. 187 (1876). Our statute provides that if the contempt consists in the
omission to perform an act which is yet in the power of the person to perform, he may be
imprisoned until he shall have performed it. . . . NRS 22.110. Although in the instant case,
the district court sentenced appellant to a specific jail term, the fact that the sentence was
suspended on the condition that Roger pay the arrearages indicates that the contempt was
designed to coerce his performance, and was therefore proper. Thus we need not reach any
question of whether Roger's delay in providing the deed, which he had supplied prior to the
hearing, was a violation of the terms of the decree, and whether contempt was an appropriate
sanction in that respect.
Affirmed.
____________
95 Nev. 664, 664 (1979) Hollis v. State
VERNON LEROY HOLLlS, Appellant, v. THE
No. 10719
October 15, 1979 601 P.2d 62
Appeal from judgment of conviction for burglary; Second Judicial District Court, Washoe
County; Roy L. Torvinen, Judge.
The Supreme Court, Thompson, J., held that: (1) where defendant requested trial court to
allow him to represent himself with assistance of public defender's office in preparation of all
legal documents and in obtaining pertinent legal books, the court entered such order, and
deputy public defender, thereafter and until trial, did supply defendant with most of the law
books he requested, defendant's waiver of his Sixth Amendment right to counsel was
voluntarily and intelligently made even though defendant did not receive all of the law books
he requested, and (2) defendant was not denied due process on ground that he was denied
meaningful access to courts through lack of access to legal materials.
Affirmed.
[Rehearing granted November 13, 1979. Opinion on Rehearing, see 96 Nev.Adv.0pn. 50
(1980).]
Calvin R. X. Dunlap, District Attorney, and John L. Conner, Deputy District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
Defendant in state criminal trial has constitutional right to defend himself without counsel when he
voluntarily and intelligently elects to do so, and when defendant elects to conduct his own defense, he
relinquishes benefits associated with right to counsel. Const. art. 1, 8; U.S.C.A. Const. Amend. 6.
2. Criminal Law.
In order for election of defendant to defend himself without counsel to be voluntary and intelligent,
defendant must be made aware of danger and disadvantages of self-representation and make his choice with
his eyes open. Const. art. 1, 8; U.S.C.A.Const. amend. 6.
3. Criminal Law.
Where defendant requested trial court to allow him to represent himself with assistance of public
defender's office in preparation of all legal documents and in obtaining pertinent legal books, the court
entered such order, and deputy public defender, thereafter and until trial, did supply defendant with most of
the law books he requested, defendant's waiver of his Sixth Amendment rights to counsel was
voluntarily and intelligently made even though defendant did not receive all of the
law books he requested.
his Sixth Amendment rights to counsel was voluntarily and intelligently made even though defendant did
not receive all of the law books he requested. U.S.C.A.Const. Amend. 6; Const. art. 1, 8.
Where defendant requested trial court to allow him to represent himself with assistance of public
defender's office in preparation of five legal documents and in obtaining pertinent legal books, trial court
entered such order, and deputy public defender, thereafter and until trial, did supply defendant with most of
the law books he requested, defendant was not denied due process on ground that he was denied
meaningful access to courts through lack of access to legal materials, even though defendant did not
receive all of the law books he requested. U.S. C.A.Const. Amends. 5, 14.
5. Criminal Law.
Failure of defendant, who represented himself, to request instructions waived his right to successfully
complain later.
OPINION
A jury convicted Hollis of burglary. He had elected to represent himself with the aid of the
public defender's office to assist in the preparation of all legal documents and in obtaining
pertinent legal books. Although he does not challenge the proof of his guilt, he does ask that
we set aside his conviction and order another trial, contending primarily that the waiver of his
sixth amendment right to counsel was ineffective. We turn to discuss this assigned error, as
well as other subordinate claims of error.
[Headnotes 1, 2]
1. A defendant in a state criminal trial has the constitutional right to defend himself
without counsel when he voluntarily and intelligently elects to do so. Faretta v. California,
422 U.S. 806 (1975); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979).
1
When he elects to
conduct his own defense he relinquishes the benefits associated with the right to counsel. The
discrepancy between the legal skills of a layman and those of a licensed practitioner cause
trial judges zealously to protect the right to counsel and to guard against a hasty or
improvident waiver of counsel. In short, the accused must be made aware of the danger and
disadvantages of self-representation and make his choice with his eyes open.
[Headnote 3]
In the matter at hand, Hollis requested the court to allow him to represent himself with the
aid of the public defender's office to assist in the preparation of all legal documents and in
obtaining pertinent legal books.
____________________

1
Nev. Const. art 1, 8: [T]he party accused shall be allowed to appear and defend in person, and with
counsel. . . .
office to assist in the preparation of all legal documents and in obtaining pertinent legal
books. The court entered such an order.
Thereafter and until trial, a deputy public defender did supply Hollis with law books.
2
The thrust of Hollis' complaint is that he did not receive all of the books he requested. It is his
contention that his waiver of counsel was upon the condition that he receive all legal
materials requested and that the condition was accepted by the court but not thereafter
honored. Consequently, his waiver of the right to counsel was ineffective. With regard to this
contention he relies heavily upon People v. Carter, 427 P.2d 214 (Cal. 1967). In Carter it was
determined that the defendant did not effectively waive his right to counsel, and since his trial
and conviction occurred without counsel, the Supreme Court of California reversed. There,
the defendant conditioned his waiver of the right to counsel upon the use of a law library.
This happened on the day trial was to commence. The trial court did not accept the condition
and allowed the trial to proceed to conclusion in the absence of defense counsel.
The California court noted that a waiver which is made conditional by a defendant cannot
be effective unless the condition is accepted by the court. Moreover, that court observed that
the failure of the trial judge specifically to reject the condition caused the defendant to believe
that he would be permitted meaningful access to library facilities.
The case at bar is factually dissimilar to Carter. Here, the court accepted the conditional
waiver, and meaningful access to legal materials was provided to the defendant by the deputy
public defender. The waiver of his sixth amendment right to counsel was voluntarily and
intelligently made.
[Headnote 4]
Neither do we perceive a denial of due process within the intendment of Bounds v. Smith,
430 U.S. 817 (1977). There, the United States Supreme Court ruled that due process demands
that prisoners have access to the courts, which requires prison authorities to assist in the
preparation and filing of meaningful legal papers by providing adequate law libraries or
adequate assistance from persons trained in the law.
____________________

2
Hollis was provided with pertinent volumes of Nevada Revised Statutes, Major Changes in Nevada
Evidence Rules. The Criminal Law Handbook for Nevada, Federal Rules of Criminal Procedures, Vols. I and II
of Wharton, Criminal Law Procedures, Successful Techniques in the Trial of Criminal Cases, and other
materials.
law. In the instant matter, meaningful legal materials were provided to the defendant. Cf.
Wolfe v. State, 95 Nev. 240, 591 P.2d 1155 (1979) (where such materials were not provided,
and we deemed the constitutional error harmless in the context of that case).
The appellant appears to suggest that the Farretta and Bounds cases, when read together,
authorize a defendant to condition the waiver of his right to counsel upon access to a law
library, or upon being supplied with pertinent legal materials. Bounds was decided in a
post-conviction setting and held that prisoners must be provided with adequate law libraries
or with adequate assistance from persons trained in the law. That decision was not concerned
with the right to counsel at trial, nor with a voluntary and intelligent waiver of that right.
Neither Bounds nor our decision in Wolfe v. State, supra, should be read to mean that a
defendant may impose conditions upon the waiver of his right to counsel. Of course, the trial
judge must make the defendant aware of the dangers and disadvantages of self-representation.
However, that judge should not allow the defendant to dictate the terms upon which he is
willing to waive counsel, for when that occurs it is reasonably certain that an assertion will be
made following conviction that the terms of the waiver were not fulfilled.
[Headnote 5]
2. Evidence was received of another crime committed by Hollis. Although Hollis did not
challenge the admissibility of that evidence, he claims that the trial court erred in failing to
instruct the jury as to the limited purpose for which that evidence was admissible. Since he
did not request such an instruction he waived his right later to complain. Richardson v. State,
91 Nev. 266, 534 P.2d 913 (1975).
3. It is asserted that the trial court should have instructed the jury on the lesser included
offense of trespass. He did not request that instruction, and may not now complain. Larsen v.
State, 93 Nev. 397, 566 P.2d 413 (1977).
Affirmed.
Manoukian and Batjer, JJ., concur.
Mowbray, C. J., concurring in the result:
I concur in the result reached by the majority because I believe that, in this case, appellant
was provided with adequate access to legal materials to present an effective defense. Wolfe v.
State, 95 Nev. 240
v. State, 95 Nev. 240, 591 P.2d 1155 (1979). I write separately in order to express my
disagreement with the breadth of the majority's holding.
The majority recognizes that an accused has a constitutional right to defend himself
without counsel when he voluntarily and intelligently elects to do so. Ante at 1-2. Yet, when
an accused voluntarily and intelligently decides that he requires access to legal materials in
order to present that defense, the majority, without citation, holds that a judge should not
allow the defendant to dictate the terms upon which he is willing to waive counsel, for when
that occurs it is reasonably certain that an assertion will be made following conviction that the
terms of the waiver were not fulfilled. I cannot endorse such a far reaching proposition.
Furthermore, the majority's statement that when a defendant elects to conduct his own
defense he relinquishes the benefits associated with the right to counsel, ante at 2, sweeps
too broadly. Certainly, a defendant who chooses to represent himself relinquishes the right to
have an experienced, or at least competent, professional present his case, as well as the
advantages of secretarial and investigative services. But it is equally clear, as in the instant
case, that the defendant does not necessarily give up the right to present the most effective
defense of which he is capable. Of course, access to legal materials is essential to the
preparation of any defense. The majority seems to suggest that a defendant may knowingly
and intelligently waive his right to counsel with no assurance that he will be provided with
access to any legal materials at all. With this I cannot agree.
I see no reason to distinguish this case from Bounds v. Smith, 430 U.S. 817 (1977).
Although Bounds dealt with a post-conviction situation, it does not seem logical to grant
access to law libraries to prisoners, so that they may attack their convictions collaterally, but
not to defendants in criminal trials. As I read Bounds, the states are required to provide
indigent inmates with access to a reasonably adequate law library for preparation of legal
actions, Wolff v. McDonnell, 418 U.S. 539, 578-79 (1974), whether they are being held
after conviction or awaiting a trial in which they will be representing themselves. The
demands of equal protection of the laws cannot be satisfied with less.
Gunderson, J., concurs.
____________
95 Nev. 669, 669 (1979) Deutscher v. State
HENRY DEUTSCHER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10434
October 18, 1979 601 P.2d 407
Appeal from judgment of conviction for first degree murder and robbery without the use of
a deadly weapon, Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of first degree murder and robbery
without use of a deadly weapon and was given the death sentence, and he appealed. The
Supreme Court, Manoukian, J., held that: (1) although defendant, who was arrested in 1977,
was held in custody six days before his arraignment, his confession, which was given after
two and one-half days of detention, was not required to be excluded as it was otherwise
voluntary; (2) error, if any, in prosecutor's closing comment that He can sit there and not
open his mouth was harmless beyond a reasonable doubt; (3) although police officer's
testimony during video interrogation of defendant that on morning of offense defendant's wife
had informed officer that she had not seen defendant after he left home the evening before
should have been excluded, its admission was harmless error beyond a reasonable doubt in
view of other undisputed inculpatory evidence concerning defendant's whereabouts on night
in question and overwhelming evidence of guilt; (4) the 1977 sexual assault legislation
neither expressly nor impliedly repeals 1977 amendments prescribing the circumstances
under which capital penalty may be imposed for first degree murder; and (5) although in
capital penalty phase of homicide prosecution the trial court used preamended term rape
instead of new phrase sexual assault, there was no reversible error absent showing that use
of such term misled the jury.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Herbert F. Ahlswede, Deputy
Public Defender, Clark County, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Ray
Jeffers, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Death penalty statute is not impermissibly vague on ground that an aggravating circumstance for
imposition of the death penalty is that murder involved torture, depravity of the
mind, or mutilation of the victim; in any event, district court meticulously defined
terms "torture," "depravity," and "mutilation."
aggravating circumstance for imposition of the death penalty is that murder involved torture, depravity of
the mind, or mutilation of the victim; in any event, district court meticulously defined terms torture,
depravity, and mutilation. NRS 200.033, subd. 8.
Statutes are entitled to all presumptions in favor of validity.
3. Criminal Law.
Purpose of provision that death penalty statute requiring notice of evidence of additional aggravating
circumstances other than those inherent in nature of offense itself is to provide the accused with notice and
to insure due process so that he can meet any new evidence which may be presented during the penalty
hearing. NRS 175.552.
4. Criminal Law.
Provision of death penalty statute that notice be given before the penalty hearing of any aggravating
circumstance other than the aggravated nature of the offense itself was not offended by admission of
challenged evidence relating to aggravating circumstance of sexual assault since evidence was admitted at
guilt phase showing the aggravated nature of the crime and sexual assault was germane to the proof of the
crime itself and an instruction regarding sexual assault was given at trial; in such case defendant was not
required to be independently informed of the intended use of such factor during the sentencing hearing.
NRS 175.552, 175.554, subd. 1.
5. Criminal Law.
Absent a statutorily fixed period of time, a reasonable time is presumed before an arraignment must be
conducted. NRS 171.178.
6. Criminal Law.
Absent prejudice, mere passage of time between arrest and arraignment does not constitute a deprivation
of a defendant's rights. NRS 171.178.
7. Criminal Law.
Although defendant, who was arrested in August of 1977, was held in custody six days before his
arraignment, incriminating statement which he gave to the police after two and one-half days of detention
was not inadmissible where defendant suffered no prejudice and was constantly advised of his rights and
acknowledged that he understood them. NRS 171.178.
8. Criminal Law.
When an accused voluntarily waives his right to silence and his right to counsel he concurrently waives
his right to be seasonably arraigned. NRS 171.178.
9. Criminal Law.
Primary purpose of arraignment is to inform defendant of his rights. NRS 171.178.
10. Criminal Law.
Delay in arraignment is not prejudicial when a defendant has already been advised of his rights, was
promptly so advised, and voluntarily waived his rights, particularly when the delay is not so flagrant and
the record is silent relative to any other irregularities which go to the issue of voluntariness. NRS
171.178.
11. Criminal Law.
Voluntary nature of a confession is the primary test for admissibility.
12. Criminal Law.
Evidence, including education, experience and conduct of the accused, as well as credibility of police
officers, established that waivers of right to counsel and right to remain silent, as given prior to confession,
were voluntary.
13. Criminal Law.
Postconfession delay in arraignment did not retroactively result in prejudice warranting exclusion of
confession, which was otherwise voluntary. NRS 171.178.
14. Arrest.
Probable cause to arrest exists where the facts and circumstances within the officer's knowledge at time
of arrest would warrant a prudent person in entertaining an honest and strong suspicion that the person
arrested has committed a crime.
15. Arrest.
Presence or absence of probable cause is determined in light of all the circumstances and can include
conduct of the defendant in presence of the arresting officers.
16. Arrest.
Where defendant was seen leaving bar with victim on morning of crime in a car found close to the scene,
sergeant knew defendant resided at a motel which was close to bar and scene of crime, a trail of blood led
away from the crime scene to arterial highway on which defendant lived, officer observed a fresh cut on
defendant's finger when he approached him at his place of employment on morning of crime and defendant
appeared very nervous, cold and clammy, there was probable cause to arrest defendant for murder. NRS
200.010.
17. Criminal Law.
Although a comment on failure to respond can be reversible error, the comment must be more than a
mere passing reference and an accused must be prejudiced by the remark to mandate reversal.
18. Criminal Law.
Detective's testimony that defendant didn't answer when asked about origin of red stains on $50 bills
found in his possession did not constitute a prohibited reference to Fifth Amendment right to remain silent
since not only was such remark a supplementary comment to answer already given but also considering the
vague, passing nature thereof, coupled with trial court's admonishment, no prejudice was shown.
19. Criminal Law.
Prosecutor's closing comment that, [The defendant] testified he thenexcuse me. He stated during the
video interview could not be construed as an improper direct reference to defendant's failure to testify;
such nondeliberate, self-corrected statement did not constitute a sufficient comment to mandate reversal.
20. Criminal Law.
Test for determining whether prosecutorial comment constituted prohibited direct reference to failure to
testify is whether the language used was manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on failure of the accused to respond. U.S.C.A.Const.
Amend. 5.
21. Criminal Law.
Prosecutor's closing comment that He can sit there and not open his mouth may have been improper
when taken in context of discussion of state's burden of proof, but it became inconsequential
since the verdicts were free from doubt.
of state's burden of proof, but it became inconsequential since the verdicts were free from doubt.
22. Witnesses.
Spousal privilege is intended to protect confidential communications between spouses, not
communications between a spouse and third parties. NRS 49.295, subd. 1.
23. Witnesses.
Spousal privilege cannot be applied to protect communications disclosed by strangers. NRS 49.295,
subd. 1.
24. Witnesses.
Detective's testimony that during video interrogation he informed defendant that he had interviewed
latter's wife and that wife had told detective that she had not seen defendant after he went out on evening of
offense did not violate the spousal privilege. NRS 49.295, subd. 1.
25. Criminal Law.
Hearsay evidence is evidence of a statement made other than by a witness while testifying, which
testimony is offered to prove the truth of the matter asserted and is inadmissible unless it comes within an
exception. NRS 51.035, 51.065.
26. Criminal Law.
Police detective's statements, during videotaped statement, that detective had interviewed defendant's
wife on morning of offense and that wife had told detective that she hadn't seen husband after he left home
the evening before was multiple hearsay and did not come within exception to the hearsay rule as relevant
to setting the scene and establishing the circumstances under which defendant's incriminating statement
evolved, and even if purpose of statements was to show surrounding circumstances they were irrelevant and
confession should have been admitted without such extraneous matter. NRS 51.035; U.S.C.A.Const.
Amend. 5.
27. Criminal Law.
Traditionally, hearsay evidence has been excluded because it is not subject to the usual test to show the
credibility of the declarant; lacking is cross-examination to ascertain a declarant's perception, memory and
truthfulness. NRS 51.035.
28. Criminal Law.
Although police officer's testimony during video interrogation of defendant that on morning of offense
defendant's wife had informed officer that she had not seen defendant after he left home the evening before
should have been excluded, its admission was harmless error beyond a reasonable doubt in view of other
undisputed inculpatory evidence concerning defendant's whereabouts on night in question and
overwhelming evidence of guilt. NRS 51.035, 51.065.
29. Witnesses.
Right to meaningful cross-examination does not include an absolute right for disclosure of a witness'
address; rather, a court is to look to the disclosures regarding personal and employment history made by the
witness and the extent and nature of the cross-examination. U.S.C.A. Const.Amend. 6.
30. Criminal Law.
Refusal to permit cross-examination of detective as to his residential address did not infringe on Sixth
Amendment right to confront witnesses, especially since detective gave his true name and occupation and
fully described his professional involvement with defendant and was thoroughly
cross-examined by defense counsel, who failed to show how disclosure of the
address would make cross-examination any more meaningful.
described his professional involvement with defendant and was thoroughly cross-examined by defense
counsel, who failed to show how disclosure of the address would make cross-examination any more
meaningful. U.S.C.A.Const. Amend. 6.
31. Homicide.
Evidence in death penalty case was sufficient to establish aggravating circumstances of prior felony
conviction involving violence, commission of offense while engaged in attempted sexual assault and that
the murder involved torture, depravity of the mind or mutilation. NRS 200.030, sub. 4(a), 200.033,
subd. 8.
32. Homicide.
The 1977 sexual assault legislation neither expressly nor impliedly repeals 1977 amendments prescribing
the circumstances under which capital penalty may be imposed for first degree murder. NRS 200.030,
218.530.
33. Homicide.
Although in capital penalty phase of homicide prosecution the trial court used preamended term rape
instead of new phrase sexual assault, there was no reversible error absent showing that use of such term
misled the jury as to a matter of law. NRS 200.5011.
OPINION
This appeal is from felony convictions of first degree murder, NRS 200.010 and 200.030,
and robbery without the use of a deadly weapon, NRS 200.380, resulting in a death sentence
and a consecutive fifteen-year penalty respectively.
Appellant proffers several bases for reversal contending that (1) Nevada's capital
punishment statutes are constitutionally infirm; (2) the trial court erred in instructing the jury
that it could consider an aggravating circumstance absent respondent's failure to give
statutory notice of the circumstance prior to the penalty hearing; (3) his pre-arraignment
inculpatory statements made during detention were improperly admitted; (4) probable cause
for the arrest was lacking making inadmissible evidence obtained incident thereto; (5) his
fifth amendment right to silence was violated due to witness and prosecutorial misconduct;
(6) prejudicial privileged and hearsay evidence should not have been admitted; (7) the trial
court erred in its refusal to order a police officer to disclose his home address; (8) the
evidence is insufficient to support the sentencing jury's findings of aggravating circumstances
as required by NRS 177.055; (9) the trial court was without jurisdiction to proceed with the
penalty hearing; and (10) error was committed when the trial court, during the penalty
proceeding, instructed the jury using an obsolete statutory term.
instructed the jury using an obsolete statutory term. We find no reversible error and affirm.
On the morning of August 16, 1977, the body of Darlene Joyce Miller, 37, was discovered
on a desert road off North Nellis Boulevard behind Weaver Construction Company in Las
Vegas. Her white 1976 Cadillac with Texas license plates was parked nearby. She was nude
except for a blouse and bra that had been pulled open around her shoulders. Her legs were
spread apart and there was smeared blood between her upper thighs. She had superficial
lacerations and abrasions on her breasts and abdomen which experts testified represented bite
marks. Her neck, face and head were severely bruised, bearing extensive abrasive-type
injuries. Her head had a large depression skull fracture two and three-fourths inches in
diameter caused by a crushing or blunt type object. A trail of dripped blood led from the
crime scene to nearby North Nellis Boulevard, an arterial highway.
Sergeant Samolovitch of the Las Vegas Metropolitan Police Department, the officer in
charge of the investigation, was informed by another officer that the victim's car had been
parked the previous night approximately one-half mile away in front of the Wagon Wheel Bar
on Nellis Boulevard. Upon questioning the bar owner, it was determined that the appellant
had been seen with the victim in her automobile, leaving the bar at 2:00 a.m. the morning of
August 16, 1977. Appellant was also seen in the vicinity of the bar by his former employer at
approximately 6:00 a.m. The victim's body was discovered that morning at 6:30 a.m.
Appellant resided at a motel, also on Nellis Boulevard, which was located approximately
one-half mile from both the bar and crime scene. After speaking with appellant's wife at the
motel, the investigators went to Deutscher's place of employment to question him. Arriving at
about 10:00 a.m., Sergeant Samolovitch noticed a ragged, fresh cut on Deutscher's hand and
observed that he appeared nervous, cold and clammy. Sergeant Samolovitch advised
appellant that he was under arrest for murder and gave him the Miranda warning.
1

Deutscher was taken to the police station where he was again advised of his rights and
signed a rights advisory card. Appellant was then questioned by the police; he admitted being
in the victim's car, but initially denied any responsibility for the murder. When Deutscher was
asked if he had any money he took out his wallet and removed two fifty dollar bills. The two
bills appeared to be stained with blood.
____________________

1
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
appeared to be stained with blood. When asked how the money became stained, appellant did
not respond.
After Deutscher was transported to the Clark County Jail on August 16, he was
fingerprinted and also consented in writing to a search in the form of dental impressions.
Blood samples and fingernail scrapings were also obtained from him.
During a brief interrogation on August 18, 1977, Deutscher admitted killing the victim, but
because he wanted to see his wife before making a full statement, the interview was
interrupted and his wife was called. After speaking with his wife, a video taped statement was
taken that afternoon with Deutscher, his wife, and several officers present. In this statement,
appellant admitted having beaten the victim, describing the crimes in detail.
Appellant had been in custody from 10:00 a.m. Monday, August 16, the date of the
offense, until 4:00 p.m. Wednesday, August 18, when the incriminating statement was given.
He was arraigned before a magistrate on August 22.
Pertinent evidence at trial included Deutscher's fingerprints in the victim's car, blood of the
victim's blood type under the appellant's fingernails, blood at the crime scene of both the
victim's and Deutscher's blood type, and identification of the bite marks on the victim as
being made by the appellant's teeth. The victim's husband testified that his wife had been
carrying two fifty dollar bills, along with other smaller bills in her purse. The two larger bills
were not in her purse when the body was found. The appellant's clothes and boots were
located by police as a result of his confession, and the size, shape and sole pattern of the boots
were consistent with those impressions taken at the crime scene. Deutscher's pants,
undershorts, and shirt were stained with human blood.
A forensic pathologist testified as to the extent of injuries which the victim incurred,
finding no evidence of recent sexual intercourse. The expert did testify that the victim had
been strangled and that all the injuries were inflicted while the victim was still alive with the
blow causing the two and three-fourths inch diameter hole to the left side of her head being
the last and probable lethal injury.
Prior to trial, the state served upon the appellant a Notice of Intent to Seek Death Penalty,
setting forth certain aggravating circumstances. These aggravating circumstances did not
include the circumstance that the appellant had committed murder in an attempt to commit a
sexual assault.
The jury found the appellant guilty of first degree murder and robbery. A penalty hearing
was held and the jury was instructed on what they might consider as aggravating and
mitigating circumstances in determining the penalty.2 Over appellant's objection, an
instruction was given which provided that the jury could consider the attempt to commit
a sexual assault an aggravating circumstance.
instructed on what they might consider as aggravating and mitigating circumstances in
determining the penalty.
2
Over appellant's objection, an instruction was given which
provided that the jury could consider the attempt to commit a sexual assault an aggravating
circumstance.
The jury concluded that (1) the murder was committed by appellant who was previously
convicted of a felony involving the use or threat of violence to the person of another;
3
(2) the
murder was committed while the appellant was engaged in the commission of or an attempt
to commit any forcible sexual assault; and (3) the murder involved torture, depravity of mind,
or the mutilation of the victim. No mitigating circumstances were designated, the jury simply
determining that they did not outweigh the aggravating circumstances.
4

1. The Death Penalty.
Appellant contends that the death penalty statute is unconstitutionally vague and therefore
violative of due process and equal protection as the sentencing procedure permits juries
untrammeled discretion in imposing death sentences. See Furman v. Georgia, 408 U.S. 238
(1972).
Nevada's capital punishment law was amended in 1977 with inconsequential revision from
the death penalty statutes in Georgia and Florida. Georgia and Florida statutes survived
constitutional scrutiny by the United States Supreme Court and satisfied the constitutional
deficiencies enunciated in Furman. Gregg v. Georgia, 428 U.S. 153, 196-207 (1976); Proffitt
v. Florida, 428 U.S. 242, 251-53 (1976).
Confronted by an eighth amendment challenge, we have recently held that Nevada's death
penalty statutes (NRS 175.552-.562) are constitutional because they provide for a
consideration of any mitigating factor the defendant may want to present."
____________________

2
In this factual context Nevada law provides that the penalty panel may return verdicts of death, or life with
or without the possibility of parole. NRS 200.030(4).

3
The previous felony conviction was for attempted sodomy and assault in the second degree, filed in Suffolk
County, New York, October 23, 1968.

4
At the hearings during the penalty phase, the prosecution introduced the testimony of three witnesses. When
the state rested, the court inquired defense counsel whether there were any mitigation witnesses at this time
other than the evidence that was evidenced in the trial? Counsel replied there were not and rested. The only
mitigating factor to which counsel referred in closing was conclusorynamely, that the murder was committed
while the appellant was under the influence of extreme mental or emotional disturbance. The argument was that
the acts were the product of a diseased mind in that they were so brutal.
to present. Bishop v. State, 95 Nev. 511, 597 P.2d 273, 277 (1979). See also Gregg v.
Georgia, 428 U.S. at 196-97; Proffitt v. Florida, 428 U.S. at 257-58; Shuman v. State, 94
Nev. 265, 578 P.2d 1183 (1978).
[Headnotes 1, 2]
The appellant further contends that the death penalty statute is impermissibly vague
because an aggravating circumstance for imposition of the death penalty is that [t]he murder
involved torture, depravity of the mind, or mutilation of the victim. NRS 200.033(8). These
claims were not presented for review in Bishop or Shuman; however, similar aggravating
circumstances would provide adequate guidance to the jury. In the instant case, we find the
legislative enactment to be plain and intelligible. See Sheriff v. Smith, 91 Nev. 729, 542 P.2d
440 (1975). Moreover, the district court meticulously defined for the sentencing panel, the
terms torture, depravity, and mutilation
5
and the jury was therefore provided adequate
guidance for the application of the aggravating circumstances. Gregg v. Georgia, 428 U.S. at
196-97; Proffitt v. Florida, 428 U.S. at 257-58. Moreover, it is well settled that statutes are
entitled to all presumptions in favor of validity. Cummings v. City of Las Vegas Mun. Corp.,
88 Nev. 479, 481, 499 P.2d 650, 652 (1972). We find no error.
____________________

5
Instruction No. 21:
The essential elements of murder by means of torture are (1) the act or acts which caused the death
must involve a high degree of probability of death, and (2) the defendant must commit such act or acts
with the intent to cause cruel pain and suffering for the purpose of revenge, persuasion or for any other
sadistic purpose.
The crime of murder by torture does not necessarily require any proof that the defendant intended to
kill the deceased nor does it necessarily require any proof that the deceased suffered pain.
Instruction No. 22:
The condition of mind described as depravity of mind is characterized by an inherent deficiency of
moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for
human dignity and which is indifferent to human life. It is a state of mind outrageously wantonly vile,
horrible or inhuman.
Instruction No. 23:
You are instructed that the term mutilate means to cut of or permanently destroy a limb or essential
part of the body, or to cut off or alter radically so as to make imperfect.
2. Sexual Assault as an Aggravating Circumstance.
The appellant contends that the respondent should have formally notified him, under the
provisions of NRS 175.552,
6
that murder committed in the perpetration of a sexual assault
would be offered as an aggravating circumstance at the penalty hearing.
[Headnotes 3, 4]
We believe that the purpose of the statute is to provide the accused notice and to insure
due process so he can meet any new evidence which may be presented during the penalty
hearing. Here, evidence was admitted at trial which showed the aggravated nature of the
crime committed. The appellant was thus afforded ample notice regarding elements and proof
of the offense itself when these were offered during the guilt phase. Eberheart v. State, 206
S.E.2d 12, 17 (Ga. 1974). The notice provisions of the statute were plainly not offended by
the admission of the challenged evidence relating to the aggravating circumstance as the
sexual assault was germane to the proof of the crime itself. Furthermore, an instruction
regarding sexual assault was given at trial. The accused need not be independently informed
of the intended use of this factor during the sentencing hearing. Hooks v. State, 210 S.E.2d
668, 670 (Ga., 1974); Eberheart v. State, 206 S.E.2d at 17; NRS 175.554(1).
3. The Inculpatory Statements Made During Pre-Arraignment Detention.
[Headnotes 5-7]
Appellant next contends that his incriminating statements given to police are inadmissible
because, although they were given after his arrest, they preceded his arraignment. Our
statutory scheme has long provided that an accused must be taken before a magistrate
without unnecessary delay. NRS 171.178. But while this court has recognized the statutory
requirement, we have also held that in the absence of a statutorily-fixed period of time, a
reasonable time is presumed before an arraignment must be conducted.7 Tellis v. Sheriff,
S5 Nev. 557, 560
____________________

6
The state may introduce evidence of additional aggravating circumstances as set forth in NRS 200.033, other
than the aggravating nature of the offense itself, only if it has been disclosed to the defendant before the
commencement or the penalty hearing. (Emphasis added.)
before an arraignment must be conducted.
7
Tellis v. Sheriff, 85 Nev. 557, 560, 459 P.2d 364,
365 (1969). And the mere passage of time, in the absence of prejudice to the defendant, does
not constitute a deprivation of a defendant's rights. Id. Appellant was held in custody six days
before his arraignment; however, he confessed to the crime after two and one-half days of
detention. We find no prejudice as appellant was constantly advised of his rights and
acknowledged that he understood them.
In McNabb v. United States, 318 U.S. 332 (1942), and Mallory v. United States, 354 U.S.
449 (1957), confessions which resulted from an unreasonable pre-arraignment detention were
excluded because the confessions resulted from a flagrant disregard of federal procedure.
Although we are not bound by these decisions which deal with federal criminal procedure, it
is clear that they were intended to avoid the adhesive practices which would spawn from
administrative detention without judicial examination. Culombe v. Connecticut, 367 U.S.
568, 584-85 (1960). It has been held, however, that these fears are not valid when an accused,
as here, makes a voluntary confession after being fully informed of his Miranda rights.
Appellant was informed of his Miranda rights on several occasions prior to his confession,
signed a waiver card and acknowledged that he fully understood the import of the waiver.
Moreover, the Miranda warning was amplified by the L.V.M.P.D. detectives as follows:
I advised Mr. Deutscher that he had the right to remain silent; that anything he said
could and would be used against him in a court of law; that he had a right to an attorney;
if he could not afford one, one would be provided for him free of charge before any
questioning.
I also advised him that if he agreed to talk to us, at any time during that interview he
wished to revoke those rights, he had a right also to do that.
____________________

7
In 1979, the Nevada legislature amended NRS 171.178 and provided for a hearing if an arrested person is
not brought before a magistrate within seventy-two hours after arrest. At that time, it will be determined whether
a defendant may be released if the person was not brought before a magistrate without unnecessary delay.
(1979) Nev. Stats. ch. 589, 1, at 1191. Although not applicable to this case, the amendment demonstrates that
no fixed time is necessarily prejudicial. Additionally, appellant here, fully informed of his rights, confessed
within seventy-two hours of his arrest. No other evidence was obtained from appellant prior to the arraignment
and subsequent to these statements.
It is noteworthy that by the time of the trial of this proceeding, Clark County had established the position of
intake officer who has the responsibility of assisting an accused detainee by advising him of his various
constitutional and legal rights. This includes information as to bail and anything that would help them to appear
in court, and they give them the date of their arraignment when they're to appear in Justice Court, and they fill
out this sheet which helps determine if they need an attorney or public defender. . . .
time during that interview he wished to revoke those rights, he had a right also to do that.
Asked him if he understood what I was telling him, that he understood these rights, and
he indicated in the affirmative.
Additionally, the several interrogations were of reasonable duration, conducted in a
reasonable atmosphere and no irregularities were discernible from the record.
[Headnotes 8-10]
We subscribe to the rule of law which provides that when an accused voluntarily waives
his right to silence and his right to counsel, he concurrently waives his right to be seasonably
arraigned. United States v. Indian Boy X, 565 F.2d 585, 591 (9th Cir. 1977), cert. denied, 439
U.S. 841 (1978); United States v. Woods, 468 F.2d 1024, 1026 (9th Cir. 1972), cert. denied
409 U.S. 1045 (1972); Pettyjohn v. United States, 419 F.2d 651, 655-56 (D.C. Cir. 1969),
cert. denied, 397 U.S. 1058 (1970). The reason for this rule is that the primary purpose of an
arraignment is to inform the defendant of his rights. But a delay in arraignment is not
prejudicial when a defendant has already been advised of his rights, was promptly so advised,
and voluntarily waived those rights. See Pettyjohn v. United States, 419 F.2d at 655-56. This
is particularly so when the delay is not flagrant and the record is silent relative to any other
irregularities which go to the issue of voluntariness. Cf. McNabb v. United States, 318 U.S. at
334-38 (in which defendants in a custodial setting, were interrogated for periods of time in
discomfort and without counsel and advice as to the right to counsel; confessions held
inadmissible).
[Headnotes 11-13]
Because the voluntary nature of a confession is the primary test for admissibility, State v.
Boudreau, 67 Nev. 36, 46, 214 P.2d 135, 141 (1950), we now focus on whether the
pre-arraignment delay affected the voluntariness of appellant's confession. The appellant only
feebly challenges voluntariness here. In reviewing the particular circumstances gleaned from
the record surrounding the statements and resulting confession, including the education,
experience and conduct of the accused, as well as the credibility of the police officers, it is
patent that the waivers were voluntary. The subsequent delay in arraignment did not
retroactively result in prejudice so that appellant's rights were violates. Morgan v. Sheriff, 92
Nev. 544, 546, 554 P.2d 733, 735 (1976); Brown v. Justice's Court, 83 Nev. 272, 276, 428
P.2d 376, 378 (1967).
4. Probable Cause.
[Headnotes 14, 15]
The challenge by appellant of the existence of probable cause for his arrest is also without
merit. Probable cause to arrest exists where the facts and circumstances within the officer's
knowledge at the time of arrest would warrant a prudent person in entertaining an honest and
strong suspicion that the person arrested has committed a crime. Brinegar v. United States,
338 U.S. 160, 175-76 (1949); Gordon v. State, 83 Nev. 177, 179, 426 P.2d 424, 425 (1967);
Schnepp v. State, 82 Nev. 257, 260, 415 P.2d 619, 621 (1966). The presence or absence of
probable cause is determined in light of all the circumstances and can include conduct of the
defendant in the presence of the police officers. A Minor v. State, 91 Nev. 456, 462, 537 P.2d
477, 481 (1975); Schnepp v. State, 82 Nev. at 260, 415 P.2d at 621.
[Headnote 16]
Sergeant Samolovitch testified as to the factual basis upon which his decision to arrest was
made: (1) The appellant was seen leaving the Wagon Wheel Bar with the victim the morning
of the crime in a car found close to the scene; (2) He knew Deutscher resided at a motel
which was close to the bar and the crime scene; (3) A trail of dripped blood led away from the
crime scene to Nellis Boulevard; (4) He observed a fresh cut on appellant's finger when he
approached him at his place of employment the morning of the crime; and (5) The appellant
appeared very nervous, cold, and clammy when he was approached by the officer. It is
arguable that each of these circumstances, when taken by themselves, is consistent with
innocence. But here, the cumulative suspicion produced by the totality of the circumstances
warranted the finding by the lower court of probable cause to arrest. A Minor v. State, 91
Nev. at 462, 537 P.2d at 480; Schnepp v. State, 82 Nev. at 260-61; 415 P.2d at 621.
5. The Defendant's Fifth Amendment Right to Remain Silent.
Appellant claims there were two occasions during the trial where his fifth amendment right
to remain silent was violated. He asserts the first error occurred during Detective Levos'
testimony concerning the red-stained fifty dollar bills found in appellant's possession upon
which the appellant refused to comment. Following timely objection, the jury was
admonished to disregard the testimony.
[Headnotes 17, 18]
Although a comment on a failure to respond can be reversible error, the comment must be
more than a mere passing reference and an accused must be prejudiced by the remark to
mandate reversal. Shepp v. State, 87 Nev. 179, 181, 484 P.2d 563, 564 (1971); see Layton v.
State, 87 Nev. 598, 600, 491 P.2d 45, 47 (1971). Clearly, this was not a purposeful comment
by the prosecutor. Cf. Layton v. State, 87 Nev. at 600, 491 P.2d at 47 (prosecutor made
prejudicial comment in closing argument respecting defendant's silence). The comment here
was by a witness and was a supplemental comment to the answer already given.
8
Considering the vague, passing nature of the remark, coupled with the admonishment, no
prejudice to the appellant is shown. Layton v. State, 87 Nev. at 600, 491 P.2d at 47; Shepp v.
State, 87 Nev. at 181, 484 P.2d at 564.
[Headnotes 19, 20]
The second comment occurred during the prosecutor's final argument when he said, [The
defendant] testified he thenexcuse me. He stated during the video interview. . . . This
vague reference to the appellant's confession cannot be construed as a direct reference to his
failure to testify. Layton v. State, 87 Nev. at 600, 491 P.2d at 47. The established test is
whether the language was manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure of the accused to [respond].
Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). This non-deliberate,
self-corrected statement by the prosecutor does not constitute a sufficient comment to
mandate reversal. See Sanchez v. Heggie, 531 F.2d 964 (10th Cir. 1976).
____________________

8
The deputy district attorney was questioning Detective Levos regarding his interview of the appellant:
Q. Did you ask him how the stains got on the two fifty dollar bills?
A. I did.
Q. What did you ask him in that regard?
A. I asked himI said, Then where did the stains fromon the money come from?'
He didn't answer me.
Defense counsel made an objection, following which the reference to defendant's silence was stricken and the
jury admonished. It should be noted, however, that the appellant previously had stated he waived his rights and
was willing to give a statement to the police. He had given a statement, responded that he did have money and
attempted to explain how he got it. When Detective Levos asked about the stains, the appellant did not answer.
Detective Levos' comment at trial was in passing and was a description of all the circumstances. The comment
by the police officer here was also not emphasized by the prosecutor.
[Headnote 21]
The final remark, which was made during the state's closing argument, was, He can sit
there and not open his mouth. Our review shows that this remark was in the context of a
discussion of the state's burden of proof. Even though the remark may be improper when
taken in context, it becomes inconsequential when, as here, the verdicts are free from doubt.
Dearman v. State, 93 Nev. 364, 369, 566 P.2d 407, 410 (1977). The error, if any, on this
record of guilt, is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18,
21-24 (1967).
6. The Hearsay and Privileged Statements.
Appellant contends that inadmissible evidence was admitted during the jury's hearing of a
portion of the video taped statement. The challenged testimony consists of remarks by
Detective Levos during the video interrogation regarding comments appellant's wife made to
police officers.
9
The appellant asserts that the statements are inadmissible because they are
privileged spousal communications, as well as hearsay.
[Headnotes 22-24]
Appellant contends that the officer is placing testimony before the jury indirectly when the
wife could not testify against her husband. The spousal privilege,
10
however, is intended to
protect confidential communications between spouses, not communications between a spouse
and third parties. Foss v. State, 92 Nev. 163, 167-68, 547 P.2d 688, 691 (1976). The privilege
cannot be applied to protect communications disclosed, as here, by strangers. State v. Lindley,
502 P.2d 390, 392 (Or.App. 1972).
[Headnotes 25-27]
Hearsay evidence is evidence of a statement made other than by a witness while testifying
at the hearing, which is offered to prove the truth of the matter asserted.
____________________

9
The testimony was:
Henry, I interviewed your wife on the morning of the 16th, and I don't think she was lying to me, but
she told me that she hadn't seen you since about 9:30 or 9:45 the night before, when you came home from
your mother's. You got a ride home from your mother's, and she went to bed and you went out. She told
me that she did not see you since.

1 0
NRS 49.295 (1) provides in pertinent part:
(a) A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or
against her husband without his consent.
(b) Neither a husband nor a wife can be examined, during the marriage or afterwards, without the consent of
the other, as to any communication made by one to the other during the marriage.
prove the truth of the matter asserted. NRS 51.035. It is inadmissible unless it comes within
an exception. NRS 51.065. Respondent argues that the statements made by the police officer
in the video taped interview concerning what appellant's wife had said were not admitted to
prove the truth of what the wife had said. Without citing authority, the state contends that the
officer's statements were merely relevant to setting the scene and establishing the
circumstances under which the defendant's incriminating statement evolved. It was the
statement of the defendant, and not the officer's statements to the defendant, which was
offered into evidence. We cannot agree with the state based on the record before us.
Traditionally, hearsay evidence has been excluded because it is not subject to the usual
tests to show the credibility of the declarant. Lacking is cross-examination to ascertain a
declarant's perception, memory and truthfulness. Moore v. United States, 429 U.S. 20, 21-22
(1976) (per curiam); Donnelly v. United States, 228 U.S. 243, 273 (1913). The same
problems are present here as to two declarants. First, it is the officer on a video tape making a
statement as to what he was told by appellant's wife. Second, the wife has allegedly made
certain statements as to appellant's whereabouts on the night of the murder. Appellant's wife
was not subject to cross-examination to discover if she indeed said this or as to her memory.
Although the officer could have been questioned as to the accuracy of his recollection, it is
apparent he was basing his knowledge of appellant's whereabouts upon what someone else
had informed him. This is inadmissible hearsay. Toti Contracting Co. v. A. J. Orlando
Contracting Co., 181 A.2d 594, 596 (Conn. 1962). Indeed, both of these statements were
hearsay. See Archibald v. State, 77 Nev. 301, 307, 362 P.2d 721, 723-24 (1961); Cf.
Alexander v. State, 84 Nev. 737, 449 P.2d 153. (1968) (defendant's testimony as to what a
friend had said was hearsay). Together, these statements constituted multiple hearsay.
We perceive no hearsay exceptions to what appellant's wife said, let alone what the officer
has stated. See NRS 51.065-.375. Additionally, it cannot seriously be argued that the purpose
was only to show that the statements were made or conversation had or that they were to
show the circumstances of appellant's statements. The officer had even said to the appellant,
Henry, your wife is present in the room. . . . Are you going to make a liar out of her? If the
purpose of these statements was merely to show the surrounding circumstances, we believe
they would have been irrelevant. The statements by appellant himself could have and should
have been admitted by themselves.
appellant himself could have and should have been admitted by themselves.
We must now determine whether the admission of these hearsay statements was harmless
beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967); Drummond v.
State, 86 Nev. 4, 8-9, 462 P.2d 1012, 1015 (1970); NRS 177.255, 178.598. We note that
whether or not appellant's wife did in fact make the statements, there is other uncontradicted
evidence placing the appellant at the Wagon Wheel Bar after midnight. Appellant was seen
leaving the bar with the victim at approximately 2 a.m. and he was seen near the bar and not
far from the murder scene at 6 a.m., shortly before the body of the victim was discovered. In
addition, there is overwhelming evidence of appellant's guilt as shown by appellant's
possession of two blood-stained fifty dollar bills and testimony by the victim's husband that
the victim had two fifty dollar bills on her person before she was killed. The appellant
appeared to have been in need of money; he was quite familiar with the scene of the crimes
and entire area whereas the victim was not; there were bootmarks at the scene which matched
boots appellant had discarded and an expert testified that the bite marks on the victim were
made by appellant. Moreover, blood found at the scene matched the blood-type of the
appellant and the blood in the fingernail scrapings taken from appellant was of the same
blood type as that of the victim.
[Headnote 28]
All of this is extremely convincing even without regard to appellant's confession or the
statement of appellant's wife.
11
While these statements by the wife should have been
excluded, we hold that the error was harmless beyond a reasonable doubt as there was other
undisputed inculpatory evidence concerning appellant's whereabouts on the night in question,
cf. State v. Rover, 13 Nev. 17, 24-25 (1878) (Beatty, J., concurring) (admission of evidence
not harmful where other evidence already established fact), and overwhelming evidence of
his guilt. Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976) (per curiam);
Drummond v. State, 86 Nev. 4, 8-9, 462 P.2d 1012, 1015 (1970).
7. The Inquiry into the Detective's Residence.
[Headnotes 29, 30]
On cross-examination appellant attempted to ascertain the residential address of Detective
Lee. Appellant contends that the trial court's refusal to order disclosure infringed upon his
sixth amendment right to confront witnesses.
____________________

11
It is significant that the challenged statements here came near the end of the interview after the appellant
had given the police virtually all of the inculpatory information.
the trial court's refusal to order disclosure infringed upon his sixth amendment right to
confront witnesses. See Smith v. Illinois, 390 U.S. 129 (1968); Alford v. United States, 282
U.S. 687 (1931). In Brown v. State, 94 Nev. 393, 580 P.2d 947 (1978), we held that the
accused's right to a meaningful cross-examination does not establish an absolute right for the
disclosure of a witness' address, but rather we would look to the disclosures regarding
personal and employment history made by the witness and the extent and nature of the
cross-examination. Here, as in Brown, it is of importance that the witness is a police officer
and not an informer in that the motive and background of the police officer differs
considerably from an informer. United States v. Alston, 460 F.2d 48, 53 (5th Cir. 1972);
People v. Pleasant, 244 N.W.2d 464, 466-67 (Mich.App. 1976).
Moreover, the witness gave his true name and occupation, and fully described his
professional involvement with the appellant. The detective was also thoroughly
cross-examined by defense counsel who failed to make a showing how disclosure of the
officer's address would make his cross-examination any more meaningful. There is no error.
8. Sufficiency of the Evidence to Support the Death Penalty.
[Headnote 31]
We are required to review imposition of the death penalty pursuant to NRS 177.055 and
must consider: (a) Any errors enumerated by way of appeal; (b) Whether the evidence
supports the finding of an aggravating circumstance or circumstances; (c) Whether the
sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor; and (d) Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases in this state, considering both the crime and the defendant. The
appellant concedes that there is sufficient evidence to support the finding of the first
aggravating circumstance, a previous felony conviction involving violence. He contends,
however, that the other aggravating circumstances are unsupportable and, without their
support, the mitigating evidence outweighs the evidence in aggravation. We disagree.
NRS 200.034(4)(a) provides that only one aggravating circumstance is necessary for
imposition of the death penalty. There is, however, substantial evidence to support the finding
of the other aggravating circumstances. The attempted sexual assault is supported by such
evidence as the victim's nearly nude body, the bloodstains on the victim's body and the
appellant's undershorts, as well as the bite marks on the victim's abdomen, breasts, and in her
vaginal area.
Similarly, there is substantial evidence to support a finding that the murder involved
torture, depravity of the mind, or mutilation of the victim. There is extensive evidence
demonstrating the heinous, brutal nature of the beating which resulted in the death of Darlene
Joyce Miller. Considering both the crime and the defendant, we conclude that the death
penalty is not excessive or disproportionate to the penalty imposed in similar cases in this
state. E.g., State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946). See Bean v. State, 81 Nev. 25,
398 P.2d 251 (1965). Cf. Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978) (life
imprisonment); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960) (life imprisonment).
Lastly, appellant contends that the sentence of death was imposed under the influence of
passion, prejudice or any arbitrary factor. NRS 177.055(2)(c). The record is devoid of any
such evidence.
9. Penalty Hearing Jurisdiction.
[Headnote 32]
Appellant next contends that the trial court was without jurisdiction to conduct the penalty
hearing because Chapter 598 of the 1977 statutory amendments, 1977 Nev. Stats. ch. 598, at
1626, repealed the provisions of Chapter 585 of the same amendments, 1977 Nev. Stats. ch.
585, at 1541 (amending NRS 200.030), which prescribed the circumstances under which the
capital penalty may be imposed for first degree murder. Both enactments came during the
1977 session, with Chapter 598 passing three days after Chapter 585. There is nothing in the
sexual assault legislation which indicates a repeal of the capital punishment law. Indeed, the
legislative scheme shows that the two laws are completely separate. Additionally, both laws
went into effect simultaneously on July 1, 1977 pursuant to statute. NRS 218.530. Repeals by
implication are disfavored. Ronnow v. City of Las Vegas, 57 Nev. 332, 364, 65 P.2d 133, 145
(1937). We decline to find either an express or implied repeal of Chapter 585.
10. Statutory Terms.
[Headnote 33]
Finally, appellant apparently contends that the trial court committed reversible error when
it instructed the jury, using the term rape instead of the new phrase sexual assault. On this
record, we perceive no error. State v. Murray, 67 Nev. 131, 147-48, 215 P.2d 265, 273-74
(1950). Although the court used the language of the statute before its amendment, NRS
200.5011 {amended 1977), there is no showing that the use of the term "rape" misled the
jury as to a matter of law.
200.5011 (amended 1977), there is no showing that the use of the term rape misled the jury
as to a matter of law.
We affirm the convictions of first degree murder and robbery, together with the judgments
and sentences of death plus fifteen years.
I also concur in the result only.
____________
95 Nev. 688, 688 (1979) Carr v. Sheriff
JAMES ARNOLD CARR, Appellant, v. SHERIFF,
No. 11869
October 22, 1979 601 P.2d 422
Information was filed charging defendant with burglary and further alleging that defendant
used the deadly weapon in commission of burglary. Defendant filed petition for writ of
habeas corpus contending that there was insufficient evidence presented at preliminary
examination to support allegation that he used deadly weapon in commission of burglary. The
district court denied the petition, and appeal was taken. The Supreme Court, Gunderson, J.,
held that although defendant's alleged conduct with knife after he gained entry into house
could subject him to other criminal charges, evidence that defendant was discovered inside
house when owner returned home from lunch and that defendant took several steps toward
owner carrying a knife was insufficient to support allegation that defendant used deadly
weapon in commission of burglary.
Reversed.
Mowbray, C. J., and Thompson, J., Dissented.
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender,
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Burglary.
Offense of burglary is complete when house or other building is entered with specific intent designated in
statute. NRS 205.060.
2. Criminal Law.
In order to use a deadly weapon in commission of crime, there need only be conduct which produces a
fear of harm or force by means or display of deadly weapon. NRS 193.165.
3. Criminal Law.
Although defendant's alleged conduct with knife after he gained entry into house could subject him to
other criminal charges, evidence that defendant was discovered inside house when owner returned home
from lunch and that defendant took several steps toward owner carrying a knife was insufficient to support
allegation that defendant used deadly weapon in commission of burglary. NRS 193.165, 205.060.
OPINION
Following a preliminary examination, the Clark County District Attorney filed an
information in the district court charging James Arnold Carr with burglary, a felony under
NRS 205.060, and further alleging that Carr used a deadly weapon in the commission of that
crime (see NRS 193.165). Carr thereafter filed a pretrial petition for a writ of habeas corpus
in the district court, contending that there was insufficient evidence presented at the
preliminary examination to support the allegation that he used a deadly weapon in the
commission of the burglary. The petition was denied and Carr has appealed.
Evidence presented at the preliminary examination disclosed that Carr was discovered
inside a house in Las Vegas when the owner returned home from lunch. Carr, who was
carrying a knife when he was discovered, took several steps toward the owner before she fled
the house and notified the police. Based on this evidence, Carr was ordered to stand trial.
The essence of Carr's contention is that the crime of burglary was complete upon his
alleged unlawful entry of the house and was not accomplished with the use of the knife. We
agree.
[Headnotes 1, 2]
The offense of burglary is complete when the house or other building is entered with the
specific intent designated in the statute.1 See Bullis v. State, S3 Nev. 175, 426 P.2d 423
{1967); State v. Simpson, 32 Nev. 13S
statute.
1
See Bullis v. State, 83 Nev. 175, 426 P.2d 423 (1967); State v. Simpson, 32 Nev.
138, 104 P. 244 (1909). Thus, Carr's alleged commission of the burglary, having already
occurred upon his entry of the house, could not have been perpetrated with the use of a deadly
weapon as contemplated by NRS 193.165.
2
In order to use a deadly weapon for purposes of
that statute, there need only be conduct which produces a fear of harm or force by means or
display of a deadly weapon. Culverson v. State, 95 Nev. 433, 596 P.2d 220 (1979).
[Headnote 3]
Therefore, although Carr's alleged conduct with the knife after he gained entry into the
house may subject him to other criminal charges, cf. State v. Helmick, 540 P.2d 638 (Ariz.
1975), such conduct may not be used to enhance the crime of burglary pursuant to NRS
193.165. Accordingly, the district court's order denying Carr's petition for a writ of habeas
corpus which challenges the allegation that he used a deadly weapon in the commission of the
burglary is reversed without prejudice to the state's right to file appropriate charges, if any,
within 15 days after remittitur issues.
Manoukian and Batjer, JJ., concur.
The majority holds, in effect, that a burglar who is gathering his loot is no longer engaged
in the commission of a burglary. According to the majority, the burglary had already been
completed. I doubt if an unsuspecting homeowner, surprised in his own living room by a
weapon-wielding burglar, would be able to comprehend or to appreciate the majority's logic. I
know that I do not.
In reaching its conclusion, the majority performs a feat of legerdemain, transforming a
legal term of art, complete; into a conception of reality. Of course, the crime of burglary is
complete, in the sense that criminal liability attaches, once an individual enters a house
with a felonious intent. See NRS 205.060(1). The commission of that crime, though, is not
complete in the sense of being terminated.
____________________

1
NRS 205.060(1) provides in part:
Every person who . . . enters any house . . . with intent to commit grand or petit larceny, or any felony, is
guilty of burglary.

2
NRS 193.165(1) provides in part:
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. . . .
This Court has not always been so swayed by a hypertechnical interpretation of the word
complete. In the felony-murder context, this Court has found that the res gestae of a crime
embraces the actual facts of the transaction, the matters immediately antecedent to it, and
those acts immediately following it and so closely connected with it to form in reality a part
of the occurrence. State v. Fouquette, 67 Nev. 505, 528, 221 P.2d 404, 417 (1950); accord
Payne v. State, 81 Nev. 503, 507, 406 P.2d 922, 924-925 (1965). Thus, we held that a robber
who was attempting to secure his stolen possessions or who was attempting to effect his
escape was still engaged in the perpetration of a robbery even though the robbery had been
technically completed. Id. The result should be no different with respect to burglary. See,
e.g., United States v. Naples, 192 F.Supp. 23, 33-35 (D.C.D.C. 1961) (and cases cited
therein), rev'd on other grounds, 113 App.D.C. 281, 307 F.2d 618 (1962).
Since I believe that the evidence presented at the preliminary examination provided
probable cause to believe that appellant used a deadly weapon in the commission of a
burglary, I would affirm the district court's denial of appellant's writ of habeas corpus.
Thompson, J., concurs.
____________
95 Nev. 691, 691 (1979) Biegler v. Nevada Real Est. Div.
HAROLD G. BIEGLER and DOROTHY R. BIEGLER, Appellants, v. NEVADA REAL
ESTATE DIVISION, STATE OF NEVADA, Respondent.
No. 9036
October 22, 1979 601 P.2d 419
Appeal from judgment, Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Husband and wife real estate brokers appealed from an order of the Real Estate Advisory
Commission suspending their licenses for a period of 90 days. The district court affirmed and
brokers appealed. The Supreme Court, Hoyt, D. J., held that the evidence was sufficient to
sustain the Commission's findings that the husband had failed to disclose to the buyers his
interest in property sold, that he had failed to timely deliver a closing statement, and that a
closing statement finally delivered was inadequate; however, the evidence did not sustain
the Commission's determination that the wife was in any way responsible for these
actions, or that the husband made any false promises to the buyers or failed to orally
disclose material facts relating to the property.
deliver a closing statement, and that a closing statement finally delivered was inadequate;
however, the evidence did not sustain the Commission's determination that the wife was in
any way responsible for these actions, or that the husband made any false promises to the
buyers or failed to orally disclose material facts relating to the property.
Reversed in part, and remanded.
Fahrenkopf, Mortimer, Sourwine, Mousel and Pinkerton, and Douglas A. Sloane, Reno,
for Appellants.
Richard H. Bryan, Attorney General, and James I. Barnes, III, Deputy Attorney General,
1. Brokers.
Evidence was sufficient to sustain Real Estate Advisory Commission's findings that broker failed to
timely deliver closing statement, that closing statement finally delivered was inadequate, and that broker
failed to disclose to buyer his interest in property. NRS 645.290, 645.630, subds. 9, 18.
2. Brokers.
Evidence was insufficient to sustain real Estate Advisory Commission's finding that broker made false
promises to real estate buyer and failed to orally disclose material facts relating to property. NRS
645.630, subds. 2, 14.
3. Brokers.
Without corroboration, hearsay statements will not support suspension of real estate broker's license.
4. Brokers.
In disciplinary proceedings before Real Estate Advisory Commission against husband and wife brokers,
evidence was insufficient to establish that wife had any dealings with sale of property on which complaint
was made and there was no evidence that she committed any violations of law.
OPINION
By the Court, Hoyt, D. J.:
1

This is an appeal from an order of the district court affirming a decision of the Nevada
Real Estate Advisory Commission.
____________________

1
The Governor designated the Honorable Merlyn H. Hoyt, Judge of the Seventh Judicial district Court, to sit
in the place of The Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
On February 8, 1974, Bernice Felkins, a home-buyer, wrote to the Nevada Real Estate
Division alleging that Harold Biegler, a licensed real estate broker, had failed to provide her
with a closing statement within one month of the completion of a sales transaction. The letter
also stated that Harold Biegler had informed Felkins that the property in question belonged to
a couple in Germany, when in fact, the property belonged to Biegler and his wife Dorothy, a
licensed real estate sales agent. Felkins' allegations were substantially set forth in a document
prepared at the request of the Division, signed by her, and submitted on March 8, 1974.
Although this document was labeled an affidavit by the Division, it was not notarized,
sworn, or affirmed in any other manner.
Based upon information contained in the affidavit, the Division prepared a Statement
of Fact, which Felkins signed. After conducting an investigation, the Division filed a
complaint against the Bieglers on January 7, 1975. A hearing was held before the Nevada
Real Estate Advisory Commission on February 6, 1975, at which the Bieglers appeared
without legal counsel. The Division called Harold Biegler as a witness. Biegler testified that
the closing statement had not been delivered to Felkins and her husband until February 12,
1974. Biegler further testified that this first closing statement did not satisfy the Felkins, and
that he subsequently had Valley Title Company prepare a second closing statement. He also
stated that though he and Dorothy Biegler were the owners of the property sold to the Felkins,
the Bieglers' interest had been orally disclosed prior to the time of sale. Harold Biegler
emphasized that Dorothy Biegler had taken no part in the transaction. The Division also
introduced into evidence several documents relating to the sale of the property, none of which
disclosed the Bieglers' interest therein.
The only evidence relevant to this appeal presented by the Bieglers was a copy of the letter
written by Bernice Felkins to the Commission, and the Statement of Fact signed by Felkins.
On March 19, 1975, the Commission rendered findings of facts, conclusions of law and a
decision. The Commission concluded that (1) the Bieglers had failed to disclose their interest
in the property in writing; (2) the Bieglers had failed to timely deliver a closing statement;
and, (3) the first closing statement sent by the Bieglers was inadequate. Pursuant to these
conclusions, the Commission decided the Bieglers had both violated NRS 645.2902 and NRS
645.630{2), {9), {14) and {1S),3 as well as Section VII{S) of the "Rules and Regulations
Amending Rules and Regulations of Nevada Peal Estate Advisory Commission" {1973).4
An order was entered suspending each of their licenses for a period of ninety days.
NRS 645.290
2
and NRS 645.630(2), (9), (14) and (18),
3
as well as Section VII(8) of the
Rules and Regulations Amending Rules and Regulations of Nevada Peal Estate Advisory
Commission (1973).
4
An order was entered suspending each of their licenses for a period
of ninety days.
The Bieglers appealed the decision of the Commission to the district court. The district
court sustained the decision, and the Bieglers perfected this appeal. We turn first to a review
of the charges against Harold Biegler.
[Headnote 1]
1. A license may be suspended if the Commission finds a licensee has engaged in any of
the conduct proscribed by NRS 645.630. Harold Biegler's license was suspended for violating
four subsections of the statute. Though we find the evidence supports the decision that
Biegler violated two of these subsections, NRS 645.630{9) and NRS 645.630{1S), we find
the evidence insufficient as to the violations of NRS 645.630{2) and NRS 645.630{14).
____________________

2
Within 1 month after the closing of a transaction in which title to real property is conveyed from a vendor to
a purchaser through a licensed real estate broker, such broker shall deliver to the vendor and purchaser a written
closing statement which shall include an accounting of all money and property and show in detail the receipts or
disbursements of each item as it is charged or credited to the vendor or purchaser. If the transaction is closed
through escrow and the escrow holder renders a statement which reveals such information, that shall be deemed
compliance with this section on the part of the broker.

3
The commission may suspend, revoke or reissue subject to conditions any license issued under the provisions
of this chapter at any time where the licensee has, by false or fraudulent representation, obtained a license, or
where the licensee, whether or not acting as a licensee, is found to be guilty of:
. . . .
2. Making any false promises of a character likely to influence, persuade or induce.
. . . .
9. Disregarding or violating any of the provisions of this chapter, chapter 119 of NRS or of any regulation
promulgated under either chapter.
. . . .
14. Negligence, or failure to disclose or to ascertain and disclose to any person with whom such licensee is
dealing, any material fact, data or information concerning or relating to the property with which such licensee is
dealing, which such licensee knew.
. . . .
18. Demonstrated negligence or incompetence in performing any act for which he is required to hold a
license.

4
Section VII(8) of the Rules and Regulations Amending Rules and Regulations of Nevada Real Estate
Advisory Commission (1973) provides:
The licensee shall not acquire an interest in or buy for himself, any member of his immediate family, his
firm or any member thereof, or any entity in which he has a substantial ownership interest, property listed with
him, or his firm, without making the true position known to the listing owner in writing, and in selling property
owned by him or in which he has such interest, the facts shall be revealed to the purchaser in writing.
supports the decision that Biegler violated two of these subsections, NRS 645.630(9) and
NRS 645.630(18), we find the evidence insufficient as to the violations of NRS 645.630(2)
and NRS 645.630(14).
The basis of the Commission's decision that Harold Biegler violated NRS 645.630(9) is
the Commission's finding that he engaged in conduct proscribed by NRS 645.290 and Section
VII(8).
NRS 645.290 requires a licensed broker to deliver a closing statement to the purchaser
within one month after the closing of a transaction. Biegler admitted that he failed to comply
with this requirement and, thus, the evidence clearly supports the Commission's finding that
Biegler violated NRS 645.290. Section VII(8) requires a licensee who sells property owned
by him to make a written disclosure of his ownership to the purchaser, and Biegler's
admission, as well as documentary evidence introduced by the state, established that Biegler
failed to make such a disclosure. Therefore, the Commission's finding that Biegler violated
Section VII(8) and NRS 645.290 is supported by the evidence, and that part of the
Commission's decision is affirmed.
The Commission's conclusion that Harold Biegler violated NRS 645.630(18) was
predicated upon the fact that when Harold finally did send a closing statement, the statement
was inadequate. The Commission concluded, and we agree, that this conduct indicates
[d]emonstrated negligence or incompetence, within the meaning of NRS 645.630(18).
Accordingly, the portion of the Commission's decision finding a violation of NRS
645.630(18) is affirmed.
[Headnotes 2, 3]
We do not agree, however, that the Commission's decision that Biegler violated NRS
645.630(2) and NRS 645.630(14) is supported by sufficient evidence. The only evidence
indicating that Biegler made any false promises to Felkins, or that Biegler failed to orally
disclose material facts relating to the property, is found in the Felkins' letter and Statement
of Fact. Though admissible in evidence,
5
these statements are hearsay, and without
corroboration will not support the suspension of a license. See Nardoni v. McConnell, 310
P.2d 644 (Cal. 1957); Walker v. City of San Gabriel, 129 P.2d 349 (Cal. 1942). On
____________________

5
Since the Felkins statement was introduced by the Bieglers, they do not have standing to raise any
procedural derelictions in its admission. Cf. Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); State v. Fouquette,
67 Nev. 505, 534, 221 P.2d 404, 419 (1950). Thus, the admissibility of the hearsay statement in this case is
distinguishable from the situation presented in Laman v. Nevada Real Estate Adv. Comm'n, 95 Nev. 50, 589
P.2d 166 (1979).
the record before us, there is no corroborating evidence indicating that Harold Biegler
violated NRS 645.630(2) and NRS 645.630(14) and, therefore, that portion of the
Commission's decision is reversed.
[Headnote 4]
2. The record fails to establish that Dorothy Biegler had any dealings with, or
responsibilities to, the Felkins with regard to the sale of the property, and there is no evidence
that she committed any of the alleged violations. See Rudin v. Nevada R. E. Advisory
Comm'n, 86 Nev. 562, 471 P.2d 658 (1970). Therefore, the portion of the Commission's
decision suspending Dorothy Biegler's license is reversed.
Accordingly, we remand this case for the imposition of a penalty upon Harold Biegler,
consistent with this decision.
____________
95 Nev. 696, 696 (1979) Biglieri v. Washoe Co. Grand Jury
CLYDE BIGLIERI, Appellant, v. WASHOE COUNTY GRAND JURY REPORT
DATED MARCH 15, 1976, Respondent.
No. 10707
October 26, 1979 601 P.2d 703
Appeal from judgment, Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
The district court, dismissed petition to expunge various portions of grand jury report, and
petitioner appealed. The Supreme Court, Mowbray, C. J., held that those portions of report
which in effect accused petitioner of what amounted to criminal activity, without giving him
opportunity to respond to those charges in judicial forum, were issued in excess of lawful
authority of grand jury and thus should be expunged.
Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, and Wallace D.
Stephens, Reno, for Appellant.
Calvin R. X. Dunlap, District Attorney, Washoe County, for Respondent.
1. Grand Jury; Indictment and Information.
Grand jury, when issuing investigative report, may not accuse a named individual, either directly or
indirectly, of indictable offense without returning indictment or presentment. NRS 172.175, subd. 3.
2. Grand Jury.
Petitioner, who sought expungement of various portions of grand jury report, did not have standing to
challenge portions of report dealing with other individuals. NRS 172.175, subd. 3.
3. Grand Jury.
When singling out individuals through accusations of possible criminal conduct, grand jury acts as
inquisitor and in this role it must either indict or be silent; it is one thing for grand jury to find that official
acts or practices, although not expressly forbidden by law, are opposed to public trust and should be
exposed to public scrutiny, and quite another thing for grand jury to adjudge such conduct to be morally
wrong or to misconduct which is censorable or actionable. NRS 172.175, subd. 3.
4. Grand Jury.
Portions of report of grand jury, which was not free to suggest that petitioner was guilty of official
misconduct and then avoid consequences of its findings by refusing to indict, that in effect accused
petitioner of what amounted to criminal activity without giving him opportunity to respond to those charges
in judicial forum were issued in excess of grand jury's lawful authority and thus should be expunged. NRS
172.155, subd. 1, 172.175, subds. 2, 3, 197.110, subd.2, 245.075.
5. Grand Jury.
Supreme Court was not bound by grand jury's own assertion that nothing in its report was intended to
accuse petitioner of criminal activity since if grand jury could determine legal effect of its report in such a
fashion, it would have unlimited opportunity to include allegations of indictable offenses in its report while
at the same time immunizing report from attack by bald statement that those accusations did not amount to
wrongdoing. NRS 172.145, 172.175, subd. 3.
OPINION
Clyde Biglieri appeals from the district court's dismissal of his petition to expunge various
portions of the Washoe County Grand Jury Report, disseminated on March 15, 1976. Since
we agree that those portions of the report were issued in excess of the grand jury's lawful
authority under NRS 172.175(3)
1
we reverse.
____________________

1
No report issued pursuant to this section shall single out any person or persons which directly or by
innuendo, imputation or otherwise accuses such person or persons of a wrongdoing which if true would
constitute an indictable offense unless the report is accompanied by a presentment or indictment of such person
or persons.
[Headnote 1]
Recently, this Court had occasion to review a similar petition for expungement brought by
Joseph Conforte, one of the principal targets of the March 15th investigative report. See In re
Washoe County Grand Jury Report, 95 Nev. 121, 590 P.2d 622 (1979). At that time, we
upheld the constitutionality of NRS 172.175(2) which empowers the grand jury to investigate
and to report on matters pertaining to the public welfare, morals, and safety of the
community; but we also found that these reportorial powers are not without limit. Id. at 124,
590 P.2d at 624. For example, a grand jury, when issuing an investigative report, may not
accuse a named individual, either directly or indirectly, of an indictable offense without
returning an indictment or presentment. Id. at 125, 590 P.2d at 625; NRS 172.175(3).
[Headnote 2]
In the instant case, appellant concedes that our opinion in Washoe County effectively
disposes of his constitutional attacks on the March 15th report. He insists, however, that
portions of that report, in effect, accuse him of what amounts to criminal activity without
giving him the opportunity to respond to those charges in a judicial forum.
2
We agree.
Though we have fully detailed the factual background of the March 15th report in our
Washoe County opinion, a brief summary is in order here.
In July, 1974, the Washoe County Grand Jury commenced an investigation which focused
upon a transaction commonly referred to as the Conforte Land Transaction. The scope of the
investigation expanded considerably, ultimately involving members of the Reno and Sparks
City Councils, the Washoe County Commission, and the Washoe Convention Authority. The
grand jury publicly disseminated its report on March 15, 1976.
No presentments or indictments accompanied the report. The grand jury emphasized that
nothing said in this report is intended to accuse, imply, or create an innuendo that any person
has committed a criminal offense. Despite this caveat, the grand jury sharply criticized
various named public officials for allegedly breaching their public trust. These named
officials, according to the grand jury, had acted in their official capacities on matters of
public interest without disclosing their conflicting personal interests in those matters.
____________________

2
Though appellant initially petitioned the district court for expungement of the entire grand jury report, he
presently seeks expungement only of those portions which single him out directly or by innuendo, imputation,
or otherwise, of possible criminal wrongdoing. We note, in this regard, that appellant does not have standing to
challenge the portions of the report dealing with other individuals. In re Washoe County Grand Jury Report, 95
Nev. at 123, 590 P.2d at 624.
according to the grand jury, had acted in their official capacities on matters of public interest
without disclosing their conflicting personal interests in those matters.
Appellant Biglieri, then a Reno City Councilman, was one of the officials singled out for
criticism in the report. The grand jury concluded that appellant had performed his official
duties with respect to the Conforte Land Transaction and to a related city council vote on a
proposed room tax increase while having a personal stake in the outcome of those matters.
The grand jury based its findings on the following allegations: appellant's real estate firm had
handled the Conforte Land Transaction and, as a result, appellant had received a large
commission from Conforte; appellant was aware that a substantial portion of the revenues
raised pursuant to the room tax increase would be used by the city to purchase a parcel of
land from Conforte; appellant knew that Conforte was in a position to reap major profits from
this sale; appellant had received a substantial campaign contribution from Conforte; appellant
was urged by Conforte to vote in favor of the proposed room tax increase; appellant had, in
fact, cast the tie-breaking vote in favor of the tax increase; and, most significantly, appellant
knew he had a chance of receiving extensive Conforte business in connection with the future
sale and development of the parcel of land retained by Conforte. Of course, since no
indictment was returned, the truth of these allegations cannot be ascertained.
The question of the validity of these portions of the March 15th report, unaccompanied by
indictment or presentment, is now before this Court.
[Headnote 3]
The reportorial function of the grand jury, serving to enlighten the community on matters
of public importance, occupies an important position in our democratic form of government.
We must be on our guard, however, to distinguish between the grand jury's power to report
upon public affairs and its power to accuse of public offenses. In re Ormsby Grand Jury, 74
Nev. 80, 322 P.2d 1099 (1958). When singling out an individual through accusations of
possible criminal conduct, the grand jury acts as an inquisitor; in its inquisitorial role, the
grand jury must either indict or be silent. Id.; NRS 172.175(3). The principle behind this
limitation is quite simply that:
[A] man should not be made subject to quasi official accusation of misconduct which
he cannot answer in an authoritative forum; that in making such accusation the grand
jury is exceeding its reportorial function and is proceeding to impose the punishment of
reprimand. . . .
In re Ormsby Grand Jury, 74 Nev. at 83, 322 P.2d at 1100; see also Nevada State Judiciary
Comm., 1973 Legislative Session, Minutes at 376 (April 5, 1973) (commenting on the
underlying intent of NRS 172.175(3)). In other words, it is one thing for the grand jury to find
that official acts or practices, although not expressly forbidden by law, are opposed to the
public trust and should be exposed to public scrutiny; it is quite another thing, however, for
the grand jury to adjudge such conduct to be morally wrong or to be misconduct which is
censurable or actionable. In re Ormsby Grand Jury, 74 Nev. at 85-86, 322 P.2d at 1102.
[Headnote 4]
The dividing line between proper public criticism and unlawful accusations of possible
criminal conduct is often difficult to discern, but it is one which must be drawn. The learned
district judge below, relying heavily on the fact that Nevada's criminal conflict of interest
laws did not take effect until after the dissemination of the grand jury's report and on the
grand jury's expressed opinion that [n]othing said in this report is intended to accuse, imply,
or create an innuendo that any person has committed a criminal offense, concluded that the
report did not accuse appellant of any indictable offenses. We cannot agree. While NRS
245.075, the criminal conflict of interest statute, did not take effect until 1977, we note that
NRS 197.110(2), enacted in 1911, makes it a gross misdemeanor for a public officer to [b]e
beneficially interested, directly or indirectly, in any contract, sale, lease or purchase which
may be made by, through or under supervision of such officer, in whole or in part. . . . We
find that the grand jury's account of appellant's conduct with respect to the Conforte Land
Transaction and the subsequent city council vote on the proposed room tax increase falls
squarely within the purview of this statute.
The grand jury, in effect, has accused appellant of official misconduct. If the grand jury
had probable cause to believe the truth of its allegations relating to appellant's conduct, then
the only course consistent with its duty was to return a presentment or indictment, thereby
allowing appellant his day in court to test the truth or falsity of these charges. NRS
172.155(1). If, on the other hand, the grand jury was not satisfied with the accuracy of its
information concerning appellant's conduct, then it could report only in general terms on
matters pertaining to the public welfare. See NRS 172.175(2) and (3). What the grand jury
was not free to do was to suggest that appellant was guilty of misconduct and then avoid the
consequences of its findings by refusing to indict.
[Headnote 5]
Moreover, this Court is not bound by the grand jury,s own assertion that nothing in its
report was intended to accuse appellant of criminal activity. If the grand jury could determine,
free from judicial review, the legal effect of its report in such a fashion, it would have
unlimited opportunity to include allegations of indictable offenses in violation of NRS
172.175(3) while, at the same time, immunizing its report from attack by the bald statement
that those accusations did not amount to wrongdoing. See generally In re Washoe County
Grand Jury Report, supra. We decline to grant the grand jury such unfettered power: the
grand jury may not transform its inquiry, in which only the most minimal safeguards are
accorded the subjects of its investigations, see NRS 172.145, into a secret trial culminating in
the published condemnation of an individual.
For the above reasons, we reverse the judgment of the district court and remand the cause
with directions to deny respondent's motion for summary judgment and to enter partial
summary judgment for appellant, expunging P.26, L.7, through P.27, L.16, inclusive, from
the March 15, 1976 report of the Washoe County Grand Jury.
Thompson, Gunderson, and Manoukian, JJ., concur.
The majority opinion sets forth the accusations and allegations against Biglieri contained
in the grand jury report. Not one of these allegations could be legitimately used to support an
indictment or information for violation of NRS 197.110(2), applying Nevada's probable cause
standard. See e.g. Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973); State v. von
Brincken, 86 Nev. 769, 476 P.2d 733 (1970).
I reluctantly must agree with the majority, however, that there could be an innuendo or
imputation of such a violation. Since it appears to be the intent of the Nevada Legislature to
render the grand jury impotent in its reporting function, I have no alternative but to concur in
the result reached by the majority and conclude that NRS 172.175(3) mandates reversal in
this case.
____________
95 Nev. 702, 702 (1979) Schmidt v. Sadri
LARRlE SCHMIDT and JOYCE SCHMIDT, Appellants, v. FARIBORZ SADRI, BILL
LASHLEE, JACK MATTHEWS REALTY, Respondents.
No. 10143
October 29, 1979 601 P.2d 713
Appeal from judgment in action for forcible entry and unlawful detainer; Eighth Judicial
District Court; Clark County; James A. Brennan, Judge.
The Supreme Court, Manoukian, J., held that: (1) because adequate proof of possession
was a precondition to plaintiff's recovery in action, defendants' denial of that allegation
allowed him to introduce any relevant evidence which might controvert fact of possession
and, hence, to introduce evidence of abandonment notwithstanding their failure to plead it as
an affirmative defense, and (2) it was reasonable to assume that a general denial of plaintiffs'
alleged right to possession put defendants' claim of abandonment in issue in action and
provided plaintiffs with sufficient notice.
Affirmed.
David M. Printz, Las Vegas, for Appellants.
Rogers, Monsey & Woodbury, and John M. Sacco, Las Vegas, and James M. Bixler, Las
Vegas, for Respondents.
1. Pleading.
An affirmative defense raises a matter which is beyond the limits of the plaintiff's prima facie case.
2. Pleading.
Surprise and prejudice may result when evidence is admitted to prove a true affirmative defense that is
without scope of plaintiff's complaint.
3. Pleading.
If an affirmative defense is not pleaded, it is ordinarily deemed waived, and no evidence can be submitted
relevant to that issue.
4. Pleading.
Statutory list respecting avoidance or affirmative defense is not exclusive and requires affirmative
pleading for any matter which constitutes an avoidance or affirmative defense. NRCP 8(c).
5. Pleading.
Evidence which merely controverts plaintiff's prima facie case does not constitute a confession or
avoidance.
6. Pleading.
If a particular issue arises by logical inference from allegations of plaintiff's complaint, a general denial is
treated as being sufficient to put those matters in issue.
7. Forcible Entry and Detainer.
Parties seeking to recover in an action for forcible entry and detainer were required to demonstrate that
they had actual or constructive possession.
Where it was alleged in action for forcible entry and detainer that plaintiffs were rightfully in possession,
it was natural for trial court and all parties to infer that defendants' denial of allegation placed abandonment
in issue.
9. Pleading.
A defendant is entitled under a general denial to introduce evidence which controverts any fact the
plaintiff must prove in order to recover.
Because adequate proof of possession was a precondition to plaintiff's recovery in action for forcible
entry and detainer, defendants' denial of that allegation allowed him to introduce any relevant evidence
which might controvert fact of possession and, hence, to introduce evidence of abandonment
notwithstanding their failure to plead it as an affirmative defense. NRS 2.120; NRCP 8(b).
It was reasonable to assume that a general denial of plaintiff's alleged right to possession put defendants'
claim of abandonment in issue in action for forcible entry and detainer and provided plaintiff with
sufficient notice. NRS 2.120; NRCP 8(b).
12. Pleading.
When an issue not raised by pleadings is tried by express or implied consent of parties, those issues shall
be treated as if they were raised in pleadings. NRCP 15(b).
13. Pleading.
Fact that plaintiffs failed to object to defendants' introduction of initial evidence of abandonment in
action for forcible entry and detainer was appropriately construed by trial court as implied consent to
admission of other evidence.
OPINION
In this appeal from a judgment in favor of respondents, defendants below, we are asked to
determine whether the trial court erred in permitting respondents to introduce evidence of
abandonment in an action for forcible entry and detainer, notwithstanding respondents' failure
to plead it as an affirmative defense. We discern no error.
Appellants, plaintiffs below, Larrie and Joyce Schmidt, were tenants in a house owned by
respondent Fariborz Sadri in Las Vegas, Nevada. Sadri decided to sell the residence and
entered into an exclusive listing with the respondent Jack Matthews Realty and Matthews'
salesman, Bill Lashlee. On June 15, 1976, Sadri entered into an agreement to sell his
property to Mr. and Mrs.
1976, Sadri entered into an agreement to sell his property to Mr. and Mrs. James Connors.
Respondent Lashlee visited the property on June 21, 1976 and, believing appellants had
abandoned the premises, helped clean the house to expedite the occupancy by the new
owners.
Thereafter, the Schmidts filed an action in district court for forcible entry and unlawful
detainer, trespass, conversion, and infliction of mental distress. The complaint specifically
alleged that they were in actual, peaceful and quiet possession of the premises when the
action of the respondents occurred. Respondents filed an answer generally denying the
allegations in the complaint except for the admission that co-defendant Lashlee was the
authorized agent of Jack Matthews Realty.
During trial, the judge allowed evidence to be presented concerning abandonment although
it had not been specifically pleaded as a defense. Appellants objected to the admission of
further evidence on abandonment after failing to object to evidence which had already been
presented on the issue.
The trial court found in favor of the defendants on the basis of the abandonment of the
premises. This appeal ensued.
[Headnotes 1-3]
An affirmative defense raises a matter which is beyond the limits of the plaintiff's prima
facie case. Surprise and prejudice may result when evidence is admitted to prove a true
affirmative defense that is without the scope of the plaintiff's complaint. See Mason v.
Hunter, 534 F.2d 822, 825 (8th Cir. 1976). If an affirmative defense is not pleaded, it is
ordinarily deemed waived, and no evidence can be submitted relevant to that issue. Chisholm
v. Redfield, 75 Nev. 502, 508, 347 P.2d 523, 526 (1959).
[Headnotes 4-6]
Appellants contend that abandonment is an affirmative defense though it does not fall
within the statutory list enumerated in NRCP 8(c).
1
The procedural list is, by its express
terms, not exclusive and it requires affirmative pleading for any matter which constitutes an
avoidance or affirmative defense. It is true, however, that evidence which merely controverts
the plaintiff's prima facie case does not constitute a confession or avoidance. Pangborn v.
National Advertising Co., 93 Nev.
____________________

1
NRCP 8(c) provides in part:
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration
and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
168, 170, 561 P.2d 456, 457 (1977). If a particular issue arises by logical inference from the
allegations of the plaintiff's complaint, a general denial is treated as being sufficient to put
those matters in issue. Id.
[Headnotes 7-9]
Appellants, in order to recover below, were required to demonstrate that they had actual or
constructive possession. Courchaine v. Bullion Mining Co., 4 Nev. 369, 373-74 (1868);
Mallett v. Uncle Sam Mining Co., 1 Nev. 188, 200-201 (1865). In reviewing the complaint,
we note that it alleged that the appellants were rightfully in possession. A fortiori, it was
natural for the trial court and all parties to infer that respondents' denial of that allegation
placed abandonment in issue. Moreover, a defendant is entitled under a general denial, to
introduce evidence which controverts any fact the plaintiff must prove in order to recover.
Federal Deposit Insurance Corp. v. Siraco, 174 F.2d 360, 362 (2d Cir. 1949); Parkening v.
Mullen, 396 P.2d 487, 489 (Okla. 1964).
[Headnotes 10, 11]
In the instant case then, it is clear that, because adequate proof of possession was a
precondition to plaintiff's recovery, the respondents' denial of that allegation allows them to
introduce any relevant evidence which might controvert the fact of possession. Pangborn v.
National Advertising Co., 93 Nev. at 169, 561 P.2d at 457; Parkening v. Mullen, 396 P.2d at
489. In addition, the 1951 legislature authorized this court to promulgate rules to regulate
civil practice and procedure. The legislature envisioned that such rules would serve to
simplify existing judicial procedures and promote the speedy determination of litigation upon
its merits. NRS 2.120. On January 1, 1953, this court adopted the Nevada Rules of Civil
Procedure, which are based primarily upon the federal rules. Nevada, then, is a notice
pleading state, and it is reasonable to assume that a general denial of the plaintiff's alleged
right to possession put the claim of abandonment in issue and provided appellants with
sufficient notice. See NRCP 8(b).
[Headnote 12]
Finally it is rudimentary that when an issue not raised by the pleadings is tried by express
or implied consent of the parties, those issues shall be treated as if they were raised in the
pleadings. Poe v. La Metropolitana Co., 76 Nev. 306, 308-09, 353 P.2d 454, 455-56 (1960);
NRCP 15(b).
2
Appellants failed to satisfy the trial court that the admission of the
complained of evidence would prejudice them in any legally cognizable way.
____________________

2
NRCP 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent
[Headnote 13]
The fact that appellants failed to object to the introduction of the initial evidence of
abandonment was appropriately construed by the trial court as implied consent to the
admission of other evidence. See Kaye v. Smitherman, 225 F.2d 583, 593, 594-95 (10th Cir.
1955), cert. denied, 350 U.S. 913 (1955).
We affirm the judgment of the district court.
____________________
of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the
result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleading the court may allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court
that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.
The court may grant a continuance to enable the objecting party to meet such evidence.
____________
95 Nev. 706, 706 (1979) State v. Havas
THE STATE OF NEVADA, Appellant, v. VICTOR
ROWLAND HAVAS, Respondent.
No. 10357
October 29, 1979 601 P.2d 1197
Appeal from judgment dismissing information in the Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The district court dismissed charges of forcible rape against defendant, and State appealed.
The Supreme Court, Breen, D.J., held that because of the potential relevance of evidence to
guilt or innocence of accused, prosecution's failure to produce pants and undergarments of
alleged rape victim for inspection when requested by defense required dismissal of forcible
rape charges.
Affirmed.
Batjer, J., dissented.
Richard H. Bryan, Attorney General, Carson City, and Michael A.
95 Nev. 706, 707 (1979) State v. Havas
Michael A. Cherry, Special Prosecutor, Clark County, for Appellant.
Louis Wiener, Jr., Las Vegas, for Respondent.
Failure to preserve evidence which is material and exculpatory violates due process without necessity of
showing reasons for its unavailability. U.S.C.A.Const. Amends. 5, 14.
2. Criminal Law.
Burden of showing materiality and exculpatory nature of evidence which is not preserved by prosecution
rests on defense.
3. Criminal Law.
Because of the potential relevance of evidence to guilt or innocence of accused, prosecution's failure to
produce pants and undergarments of alleged rape victim for inspection when requested by defense required
dismissal of forcible rape charges.
OPINION
By the Court, Breen D. J.
1

The trial court dismissed charges of forcible rape against Havas upon the ground that the
prosecution had failed to preserve exculpatory evidence. This case has been before this court
twice on other matters. See State v. Havas, 91 Nev. 611, 540 P.2d 1060 (1975) and State v.
Havas, No. 9321, Order Dismissing Appeal, filed December 30, 1976.
The record discloses that the pants and undergarments of the alleged victim were not
produced by the prosecution for inspection when requested by the defense. No explanation
was made for the unavailability of the garments nor was there a contention made that they
were intentionally destroyed by the prosecutor. The garments were either lost, destroyed or
simply not taken into possession during the investigation of this case.
[Headnotes 1, 2]
The issue presented to us is whether the evidence not preserved was material and
exculpatory. If so, the failure to preserve the evidence violates due process without the
necessity of showing the reasons for its unavailability. The burden of showing materiality and
exculpatory nature of the evidence rests on the defense Hale v. State 230 N.E.2d 432{1nd.
1967); State v. Hornbeak 559 P 2d 3S5 {Kan 1977); State v.
____________________

1
Mr. Chief Justice John Mowbray voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to Art. VI, 4 of the Constitution, designated Judge Peter I. Breen of the Second Judicial
District to sit in his stead.
95 Nev. 706, 708 (1979) State v. Havas
the defense Hale v. State 230 N.E.2d 432(1nd. 1967); State v. Hornbeak 559 P 2d 385 (Kan
1977); State v. Craig, 545 P.2d 649 (Mont. 1976).
In Wallace v. State, 88 Nev. 549, 501 P.2d 1036 (1972), we reversed a conviction when
the prosecution intentionally failed to disclose a psychiatrist's report. There we followed
Brady v. Maryland, 373 U.S. 83, 87 (1963), in holding that when the prosecution withholds
exculpatory evidence, due process is violated regardless of the motive of the prosecutor.
Respondent contends that he would have used the garments to show lack of force. The
garments, says respondent, must have been torn to have been removed in the manner claimed
by the victim. The position of the prosecution is that since a showing of physical force is not
necessary to complete the act of forcible rape (Dinkens v. State, 92 Nev. 74, 77, 546 P.2d
228, 230 (1976)), but only that the act was committed against the victim's will, the garments
are not material. Furthermore, claims the prosecutor, the victim has already testified that the
clothing was not torn and, therefore, its presence would be cumulative.
The crime of rape is rarely perpetrated in the presence of witnesses other than the
defendant and the victim and great reliance must be placed on the testimony of the victim,
and, if given, the defendant. Thus, the presence or absence of other evidence which would
support or refute the testimony of the involved parties has the potential for great significance.
See for example, Davis v. Pitchess, 388 F.Supp. 105 (C.D.Cal. 1974), where the court held
the presence of vaginal smears on the victim's underpants to be highly relevant to the guilt or
innocence of the defendant. And see State v. Wright, 557 P.2d 1 (Wash. 1976), which
determined that the preservation of clothing of a murder victim was immediately related to
the very existence of the alleged homicide. The court therein reversed a conviction on the
ground that there was a reasonable possibility that the destroyed evidence was material to the
guilt or innocence of the defendant.
[Headnote 3]
On these facts, we believe a rape victim's underpants are so related to the commission of
the crime and that their preservation has such potential relevance to the guilt or innocence of
an accused that a further showing is unnecessary. See United States v. Bryant, 439 F.2d 642
(D.C.Cir. 1971). The prosecution should have acquired and preserved the underpants in
question.
95 Nev. 706, 709 (1979) State v. Havas
This does not place an undue burden on the prosecution for preservation of this type of
evidence. In an appropriate case, where the prosecutor seeks to dispose of such evidence, the
trial court can be petitioned, with notice to the defense, to determine a course of action
consistent with the interests of the parties.
The judgment appealed from is affirmed.
Thompson and Manoukian, JJ., concur.
I concur in the result, but desire to add a comment.
When this case first came before us, in regard to a pretrial habeas application, there was
serious doubt whether the State had presented any evidence at all, justifying a prosecution for
forcible rape. See State v. Havas, 91 Nev. 611, 540 P.2d 1060 (1975). Indeed, on this issue,
members of the court were divided in opinion, although our established practice has been
extremely liberal in upholding determinations of probable cause, whether made by
magistrates or by grand juries. See, for example Franklin v. State, 89 Nev. 382, 513 P.2d 1252
(1973).
It should be noted, therefore, that the factual determination now under review, i.e. the
district court's finding that the loss of the underpants was prejudicial, came in a case in which
the alleged victim's testimony was itself quite ambiguous on the issue of force, and subject to
serious challenge concerning the manner the crime assertedly occurred.
In this context, the district court's finding cannot be held erroneous as a matter of law.
Batjer, J., dissenting:
I respectfully dissent from the opinion filed by the majority. Victor Havas was charged
with rape as a result of events occurring in February, 1975. Evidence was introduced at his
preliminary hearing that Havas interviewed a young woman for a job at the Courtesy RV
Center and as a part of the interview forced her to have sexual intercourse with him. On
appeal from the granting of a petition for habeas corpus we found that there was sufficient
evidence presented to support the information.
1
State v. Havas, 91 Nev. 611, 540 P.2d 1060
(1975).
The young woman testified at the preliminary examination that her clothes were not torn
during the alleged rape, and that she put them on again after the event.
____________________

1
From the record it appears that the clothing was not produced at the preliminary examination and, thus, the
same evidence exists now as existed at the time of that opinion.
95 Nev. 706, 710 (1979) State v. Havas
that her clothes were not torn during the alleged rape, and that she put them on again after the
event. The respondent contends that he was prejudiced by the prosecution's failure to preserve
that evidence. This court has recently set forth the standard for reversal for loss of evidence in
Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979), where it was held that the defense must
show either (1) bad faith or connivance on the part of the government or (2) that the
defendant was prejudiced by the loss of the evidence.
No explanation is given for loss of the pants and respondent has made no attempt to show
bad faith or connivance in their disappearance. It follows then that the majority believes that
prejudice exists. Since respondent maintains only that he needs the pants to show that he did
not force himself on his victim and tear her clothes, the victim's testimony obviates the need
for the clothing. Furthermore, a showing of [p]hysical force is not a necessary ingredient in
the commission of the crime of rape. Dinkens v. State, 92 Nev. 74, 77, 546 P.2d 228, 230
(1976).
The respondent has shown no genuine prejudice to his defense. I would reverse and
remand for trial.
____________
95 Nev. 710, 710 (1979) Dias v. State
STEVEN MICHAEL DIAS, Appellant, v. THE STATE
No. 10386
October 29, 1979 601 P.2d 706
Appeal from judgment of conviction entered upon a jury verdict, Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
Defendant was convicted before the district court of burglary and petit larceny, and he
appealed. The Supreme Court held that whatever rights defendant might arguably have had
under the confrontation clause were waived by tactics of his defense counsel, who not only
did not object to arresting officer's additional testimony concerning description of suspect
given by eyewitnesses at scene of crime, but who on cross-examination brought out, in
substantially greater detail than in testimony actually objected to, both fact of defendant's
identification and statements made by bystanders.
Affirmed.
95 Nev. 710, 711 (1979) Dias v. State
1. Witnesses.
Whether confrontation clause is substantive restraint upon power of state and federal government to
prescribe rules of evidence for admission of hearsay testimony, or merely a requirement that
cross-examining procedure be used in taking testimony of witnesses who actually appear at trial
confrontation clause clearly embodies policy favoring use of cross-examination as most effective method of
determining the truth, and thus constitutes a necessary protection to accused in a criminal trial.
2. Criminal Law.
Where hearsay objection is lodged on ground that declarant has not been made available at trial and as a
result cannot be subjected to cross-examination, policy of confrontation clause is evoked equally with that
of hearsay rule, and thus hearsay objection lodged adequately preserves confrontation clause issue for
review. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Where defense counsel not only did not object to arresting officer's initial testimony concerning
description of suspect given by eyewitnesses at scene of crime, but on cross-examination brought out, in
substantially greater detail than in testimony actually objected to, both fact of defendant's identification and
statements made by bystanders, whatever rights defendant might arguably have had under the confrontation
clause with respect to hearsay evidence of his identification as perpetrator of charged crimes was waived by
tactics of defense counsel. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Circumstantial evidence of defendant's guilt and testimony of eyewitness who identified defendant at
scene by his clothing and appearance, a permissible means of identification, combined with testimony of
officer on cross-examination as to fact of defendant's identification and statements made by bystanders,
demonstrated beyond a reasonable doubt that confrontation clause violation, if any, in admitting part of
officer's testimony to which counsel actually did object did not affect the result and thus, a fortiori,
admission of testimony over hearsay objection did not constitute reversible error. U.S.C.A.Const. Amend.
6.
5. Criminal Law.
Although Supreme Court has discretion to treat noncompliance with filing requirements as a confession
of error, where no prejudice to defendant appeared as result of the State's filing of its answering brief three
days after expiration of 13th extension and over a year after filing of defendant's opening brief, Supreme
Court confined itself to expressing wrong disapproval of such dilatory conduct. NRAP 31(c).
OPINION
Per Curiam:
Convicted by jury verdict of burglary (NRS 205.060) and petit larceny (NRS 205.240),
Steven Michael Dias contends we must reverse because he was denied his Sixth
Amendment right of confrontation when hearsay evidence regarding his identification as
the perpetrator of the charged crimes was admitted at his trial.
95 Nev. 710, 712 (1979) Dias v. State
must reverse because he was denied his Sixth Amendment right of confrontation when
hearsay evidence regarding his identification as the perpetrator of the charged crimes was
admitted at his trial.
The charges arise out of the ransacking of a jewelry shop in Reno. The shop was protected
by a silent a[arm system which could be activated by the breaking of a display window. The
alarm was activated at approximately 3:18 a.m. on June 25, 1977, and police officers arrived
at the scene within minutes. Robert Reynolds, one of the first officers to arrive at the scene,
saw that the shop window had been broken. Reynolds also noted the presence of bloodstains
on some of the broken glass in and around the smashed window.
After his arrival, officer Reynolds was approached by a bystander who volunteered a
description of the man she had seen breaking into the shop. The bystander told Reynolds that
she had seen the man go into a bar located two doors east of the jewelry shop. Reynolds then
entered the bar looking for a Negro male adult in his twenties, late teensearly twenties,
about six feet, six one, heavy build, wearing dark blue clothing and white tennis shoes.
There Dias was found, the only black man present, wearing a dark blue jacket, blue jeans, and
white tennis shoes. He had a fresh laceration on his forehead.
1

Officer Reynolds approached Dias and inquired about his injury. After listening to Dias'
explanation, Reynolds asked Dias to step outside, where he was arrested. Subsequently, a
booking search conducted at the police station revealed two jewelry items in Dias' possession
which were identified as missing from the burglarized store.
A witness who observed the crimes being committed testified at the trial that the
perpetrator was a black male who was wearing blue denim clothing and white shoes. Officer
Reynolds also related at trial that when he stepped outside of the bar with Dias, several
bystanders identified Dias as the man they had seen committing the crimes. Reynolds'
testimony regarding this identification was admitted over appellant's hearsay objection.
2
Appellant reasserts his hearsay objection here and also raises, for the first time, an
objection to the testimony based on the Confrontation Clause of the Sixth Amendment of
the United States Constitution.
____________________

1
An investigator later found a bloody washbasin and several discarded towels bearing what appeared to be
bloodstains in the men's restroom of the bar. At the trial, the bartender testified that Dias asked her for some
towels after he entered the bar and that he also asked her to say, in the event she was asked, that he had been in
the bar all night.

2
The testimony is as follows:
After listening to his story, we asked him [Dias] outside, told him there was some people who wanted to take
a look at him, that he was a suspect in a burglary. He accompanied us outside.
We put himwe took him outside, put him up against the wall and searched
95 Nev. 710, 713 (1979) Dias v. State
Appellant reasserts his hearsay objection here and also raises, for the first time, an
objection to the testimony based on the Confrontation Clause of the Sixth Amendment of the
United States Constitution.
The State asserts that appellant is precluded from raising the constitutional issue for the
first time on appeal. We have held that, while the general rule is that failure to object at trial
will ordinarily bar review of an issue, when constitutional questions are raised this court has
the power to address them. Hardison v. State, 84 Nev. 125, 128, 437 P.2d 868, 870 (1968). In
this case, however, an objection to the testimony now challenged on appeal was, in fact, made
on the ground that it violated the hearsay rule.
[Headnotes 1, 2]
Whether the confrontation clause is a substantive restraint upon the power of the state and
federal governments to prescribe rules of evidence admitting hearsay testimony, see
California v. Green, 399 U.S. 149, 179 (1970) (Harlan, J., concurring), or merely a
requirement that a cross-examining procedure be used in taking the testimony of witnesses
who actually appear at trial, see Dutton v. Evans, 400 U.S. 74, 94 {1970) {Harlan, J.,
concurring in the result), we need not decide.
____________________
him for weapons. Finding none, we had the witnesses identify him, which they did.
Q: You observed witnesses identify him?
A: Yes, I did.
Q: And they were identifying him as the person who
DEFENSE COUNSEL: I object. That's hearsay also.
PROSECUTOR: Your Honor, the fact of his observation of the identification is not hearsay, only that he
observed it.
DEFENSE COUNSEL: I don't think so, your Honor. What Mr. Nomura is saying is that he saw some person
look at Mr. Dias and say, That's the man that I saw break the window, and that's obviously hearsay, whether
they said anything or not.
PROSECUTOR: Your Honor, he's only testifying as to his subsequent actions as to his arrest and all he's
doing is observing the situation. He's not doing anything as far as hearsay is concerned.
We're not offering any statements in this case, no assertion of conduct or anything like that, only his
observation.
DEFENSE COUNSEL: It's assertive conduct, your Honor, and his statementif he wants to bring somebody
in that can identify Mr. Dias, he should.
PROSECUTOR: Your Honor, there will be testimony that will do that. However, I just wanted to indicate to
the Court that his testimony is limited only to the observation of what he saw.
THE COURT: I'll let him characterize it as far as the identification. I suppose to ask him what the individuals
said particularly would be hearsay.
PROSECUTOR: Yes, I agree with that, your honor.
THE COURT: All right.
BY PROSECUTOR:
Q: So, Officer Reynolds, you observed some identification take place?
A: Yes, sir, I did.
95 Nev. 710, 714 (1979) Dias v. State
actually appear at trial, see Dutton v. Evans, 400 U.S. 74, 94 (1970) (Harlan, J., concurring in
the result), we need not decide. Under either theory, the confrontation clause clearly embodies
the policy favoring the use of cross-examination as the most effective method of determining
the truth, and thus a necessary protection to the accused in a criminal trial. Pointer v. Texas,
380 U.S. 400, 404 (1965). When a hearsay objection is lodged, as here, on the grounds that
the declarant has not been made available at trial and, as a result, cannot be subjected to
cross-examination, the policy of the confrontation clause is invoked equally with that of the
hearsay rule. We therefore hold that the hearsay objection lodged in the instant case
adequately preserved the confrontation clause issue for review.
[Headnote 3]
We need not, however, reach the substance of the constitutional claim presented in this
case, nor differentiate it from cases, such as Bruton v. United States, 391 U.S. 123 (1968), in
which a codefendant's absolute right to refuse to testify rendered hearsay testimony as to his
confession inadmissible under the confrontation clause. Our review of the record reveals that
defense counsel not only did not object to the arresting officer's initial testimony concerning
the description of the suspect given by the eyewitnesses at the scene of the crime, but on
cross-examination brought out, in substantially greater detail than in the testimony actually
objected to, both the fact of appellant's identification and the statements made by the
bystanders.
3
No motion to strike this testimony was made and no cautionary instruction was
requested. Whatever rights appellant might arguably have had under the confrontation clause
were thus waived by the tactics of defense counsel.
[Headnote 4]
Even were we to find that it was error to admit the part of the officer's testimony to which
counsel actually did object, we should be constrained to hold that, under the circumstances of
this case, the error was harmless beyond a reasonable doubt. The circumstantial evidence of
guilt and the testimony of an eyewitness who identified appellant at the scene by his clothing
and appearancea permissible means of identification under Matthews v. State, 94 Nev.
179
____________________

3
The cross-examination by defense counsel was as follows:
Q: [DEFENSE COUNSEL] Was he [an eyewitness] one of the individuals who gave the positive I.D. of Mr.
Dias as the one who did it?
A: I believe the only positive I.D. that I can recall and somebody saying, yes, I'm absolutely positive that's
him, was Miss Young. Everybody else said, Yeah, that looks like the one.
DEFENSE COUNSEL: That's all.
95 Nev. 710, 715 (1979) Dias v. State
and appearancea permissible means of identification under Matthews v. State, 94 Nev. 179,
576 P.2d 1125 (1978)combined with the testimony of the officer on cross-examination,
convince us beyond a reasonable doubt that the constitutional error, if any, did not affect the
result. Schneble v. Florida, 405 U.S. 427 (1972); Fahy v. Connecticut, 375 U.S. 85 (1963);
Wolfe v. State, 95 Nev. 240, 591 P.2d 1155 (1979). A fortiori, admission of the testimony
over appellant's objection based on the hearsay rule, which we review on the less strict
standard applicable to non-constitutional error, Cosey v. State, 93 Nev. 352, 566 P.2d 83
(1977); see State v. Jon, 46 Nev. 418, 430, 211 P. 676, 679 (1923), does not constitute
reversible error.
[Headnote 5]
We note that respondent was granted thirteen extensions of time to file its answering brief,
which was ultimately filed three days after the expiration of its last extension and over a year
after the filing of appellant's opening brief. Although we have discretion to treat
noncompliance with filing requirements as a confession of error, NRAP 31(c); Kitchen
Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975); see Toiyabe Supply Co. v. Arcade,
74 Nev. 314, 330 P.2d 121 (1958), since no prejudice to appellant appears, we confine
ourselves to expressing our strong disapproval of such dilatory conduct.
____________
95 Nev. 715, 715 (1979) State ex rel. Dep't Hwys. v. District Ct.
THE STATE OF NEVADA, on relation of its Department of Highways, Petitioner, v.
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, et al.,
Respondents.
No. 11462
October 29, 1979 601 P.2d 710
Proceeding in mandamus to compel dismissal of personal injury action.
The State brought original proceeding in mandamus to compel dismissal of a personal
injury action. The Supreme Court, Thompson, J., held that: (1) where the identity of the State
as the defendant was not known to the plaintiff when the original complaint was filed,
plaintiff's subsequent amendment of her complaint to name the State of Nevada a party
defendant in place of "Doe 1" was an addition of a party rather than a substitution; {2)
where the amended complaint was not filed until more than three years after the accident
in which plaintiff was injured, the statute of limitations barred relief against the State;
and {3) since it was clear that the State was entitled to dismissal and the State could not
appeal from the trial court's order denying its motion to dismiss, the extraordinary relief
of mandamus was appropriate.
complaint to name the State of Nevada a party defendant in place of Doe 1 was an addition
of a party rather than a substitution; (2) where the amended complaint was not filed until
more than three years after the accident in which plaintiff was injured, the statute of
limitations barred relief against the State; and (3) since it was clear that the State was entitled
to dismissal and the State could not appeal from the trial court's order denying its motion to
dismiss, the extraordinary relief of mandamus was appropriate.
Writ granted.
Richard H. Bryan, Attorney General, and Norman C. Robison and Ernest Adler, Deputy
Attorneys General, for Petitioner.
John F. O'Reilly, of Las Vegas, for Respondents.
1. Parties.
The rule which permits a party whose name is not known to be designated by any name and subsequent
amendment of the pleading if the party's true name is discovered is designed to embrace situations where
the plaintiff has in mind the identity or description of the fictitiously named defendant but not his true
name. NRCP 10(a).
2. Limitation of Actions
Where identity of the State of Nevada as a potential defendant was not known to plaintiff when original
personal injury complaint was filed, plaintiff's subsequent amendment of her complaint to name the State of
Nevada a party defendant in place of Doe 1 was in fact an addition of a party defendant rather than a
substitution and, therefore, the State was not deemed a party to the action from its commencement, for
statute of limitations purposes. NRCP 10(a).
Where more than three years had passed since accident which gave rise to personal injury suit, plaintiff
could not have amended her complaint to add the State of Nevada as a party defendant. NRS 34.160.
An appeal does not lie from an order denying a motion to dismiss.
5. Mandamus.
Normally, mandamus is not available to review discretionary acts of a district court.
6. Mandamus.
When right to a dismissal is clear, the extraordinary relief of mandamus is available to compel dismissal.
NRS 34.160.
7. Mandamus.
Where it was clear that the State of Nevada was entitled to dismissal of personal injury action and since
the State could not appeal from trial court's order denying its motion to dismiss, the extraordinary relief of
mandamus was appropriate to compel the trial court to dismiss the action.
mandamus was appropriate to compel the trial court to dismiss the action. NRS 34.160.
OPINION
In this action to recover damages for personal injuries the district court allowed the
plaintiff to amend her complaint to name the State of Nevada a party defendant in place of
Doe 1. The State thereupon moved to dismiss contending that it was added as a party
defendant rather than substituted, and that the two year statute of limitations had run against
the claim for relief alleged against the State.
The issue then before the court was whether the amendment was a substitution of a party
for the originally named Doe 1, or the addition of a party defendant. If a substitution, the State
would be deemed a party to the action from its commencement and the bar of limitations
would not be available as a defense since action was commenced before the limitation period
had run. NRCP lO(a); Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969);
Hill v. Summa Corporation, 90 Nev. 79, 518 P.2d 1094 (1974) (concurring opinion).
1
On the
other hand, if the amendment amounted to an addition of a party defendant, the statute of
limitations would bar relief since the amended complaint was not filed until more than three
years had passed following the accident. Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269
(1975); Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973).
[Headnote 1]
We noted in Hill v. Summa Corporation, supra, that NRCP 10(a) does not refer to a party
who is not known, but rather to a party whose name is not known. It is designed to embrace
the case where the plaintiff has in mind the identity or description of the fictitiously named
defendant but not his true name.
[Headnotes 2, 3]
The record does not reflect that the plaintiff knew that the State was involved but did not
know its name. The opposite is the case. The plaintiff did not know that the roadway where
the accident occurred was under state control until a codefendant, Clark County, filed a
motion to dismiss the claim asserted against it, which motion was filed more than two
years after the accident happened.
____________________

1
NRCP 10(a): . . . . A party whose name is not known may be designated by any name, and when his true
name is discovered, the pleading may be amended accordingly.
Clark County, filed a motion to dismiss the claim asserted against it, which motion was filed
more than two years after the accident happened. Thus, the identity of the State as a defendant
was not known to the plaintiff until after limitations had run. The State's motion to dismiss
should have been granted. Knight v. Witco, supra.
2

[Headnotes 4-7]
An appeal does not lie from an order denying a motion to dismiss. Thus, we must decide
whether extraordinary relief is appropriate. Although mandamus normally is not available to
review discretionary acts of a district court, Wilmurth v. District Court, 80 Nev. 337, 393
P.2d 302 (1964), statute provides that the writ may issue to compel the performance of an act
which the law especially enjoins as a duty resulting from office. NRS 34.160. When the right
to a dismissal is clear, the extraordinary relief of mandamus is available to compel dismissal.
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964); Dzack v. Marshall, 80 Nev. 345, 393
P.2d 610 (1964).
We order that a peremptory writ of mandate issue requiring the respondent court to
dismiss this action against the State of Nevada.
When plaintiff's counsel instituted this action, he sought to designate the governmental
road ownerwhich ultimately turned out to be the State of Nevada itselfby a subdivision
name through which the State commonly transacts business, including ownership of other
roads in southern Nevada. Now, having allocated some but not all of its road ownership to
that subdivision (the County of Clark), the State of Nevada here contends that a timely action
naming its subdivision as defendant was untimely as against itself. I cannot agree.
Plaintiff's counsel clearly intended to sue the governmental entity which owned the
roadway in question. As in Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621
(1969)in which the plaintiffs mistakenly sued the wrong corporation, Aku Aku,
Inc.here plaintiff's counsel incorrectly sued a related entity, i.e. Clark County, through
which our government does business for other purposes in the same general area.
____________________

2
In denying the State's motion to dismiss the district court relied upon our opinion in Garvey v. Clark
County, 91 Nev. 127, 532 P.2d 269 (1975). In Garvey the plaintiffs conceded that they consciously elected not
to name the State a defendant when suit was commenced. Nothing of that sort appears in the case at hand.
Here, as in the Servatius case, the intent was to sue the owner; the mistake was in suing such
owner by naming a related entity.
If anything, it appears to me the facts of this case are stronger than those of the Servatius
case. By dividing itself into various subdivisions, of which several sometimes share the
State's responsibilities in a given area, the State inevitably creates doubt about the technical
ownership of governmental property. Indeed, at particular times, due to territorial disputes
between the governmental entities themselves, it may sometimes be legally debatable which
entity in fact has legal authority over, and ownership of, a particular roadway. See County of
Clark v. City of North Las Vegas, 89 Nev. 10, 504 P.2d 1326 (1973). I therefore respectfully
submit that this court should not establish rules of procedure so inflexible that the State may
never be substituted in place of a subdivision created for the State's legal convenience.
I note that the result of a rigid holding will be that careful lawyers must, hereafter, name
not only the State of Nevada, but every subdivision which may possibly have an interest. I
respectfully submit this will entail unnecessary expenditure of time by government attorneys,
who might have been spared involvement if our district courts were allowed flexibility to
permit the amendment of pleadings in appropriate cases.
In addition, I note NRAP 3A(b)(5) does not contemplate that denial of a motion to dismiss
may be challenged by mandamus. Thus, by assuming jurisdiction of this case, the court is not
only extending the holding of Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), but
going beyond the scope of the appellate rule predicated on that holding.
I respectfully dissent. The facts of this case are unique and not the usual situation where an
attempt is made to substitute a stranger for the party originally named after the expiration of
the statutory limitation on actions. NRS 11.190(4)(e). Here, the named defendant in the action
was the County of Clark, a political subdivision of the State of Nevada. As the United States
Supreme Court said in Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d
506 (1964):
Political subdivisions of States, counties, cities, or whatevernever were and never
have been considered as sovereign entities. Rather, they have been traditionally
regarded as subordinate governmental instrumentalities created by the State to assist in
the carrying out of state governmental functions.
Regardless of how it is denominated, the real issue before this court is whether the district
court erred when it substituted the State of Nevada as a party defendant and permitted the
substitution to relate back to the filing of the original complaint, see NRCP 15(c),
1
thereby
precluding the defense by the state of the statute of limitations. I find no error.
As in Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969), the intent of
the plaintiff was to sue the real owner of the roadway. I agree with the observation by
Gunderson, J., in his dissent that this court should not establish rules of procedure so
inflexible that the state may not be substituted in place of a subdivision created for the state's
legal convenience.
I would deny the writ.
____________________

1
NRCP 15(c):
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date
of the original pleading.
____________
95 Nev. 720, 720 (1979) Echols v. Summa Corp.
HAROLD ECHOLS, Appellant, v. SUMMA CORPO-
RATION, dba FRONTIER HOTEL, Respondent.
No. 10620
November 2, 1979 601 P.2d 716
Appeal from order granting motion to dismiss amended complaint, Eighth Judicial District
Restaurant customer brought suit in tort against company he believed to own the restaurant
in which he was injured and the manufacturer of the ketchup bottle which allegedly exploded
in his hands. After the statute of limitations expired, customer amended his complaint to
substitute the true owner of the restaurant as defendant. The district court dismissed the
amended complaint on the ground that it was barred by the statute of limitations and customer
appealed. The Supreme Court, Batjer, J., held that the amendment related back to the filing of
the original complaint, thus action against the proper defendant should not have been
dismissed.
Reversed.
Walter Norwood, Las Vegas, for Appellant.
Cromer, Barker and Michaelson, and Frank C. Cook, Las Vegas, for Respondent.
Limitation of Actions.
Where proper defendant received actual notice of the action before expiration of the period of limitations
through service upon its vice-president who was also the general manager of the improperly served
defendant, an officer of the proper defendant acknowledged that it was the proper party and the proper
party had been neither mislead nor prejudiced by the amendment since it had actual notice of the action
before the expiration of the limitation period, amendment substituting the proper defendant related back to
the filing of the original complaint and action was not barred by statute of limitations. NRS 11.190,
subd. 4(e); NRCP 15(c).
OPINION
Harold Echols brought this action in tort against Hughes Tool Company (Hughes) and H.
J. Heinz Company (Heinz) to recover for personal injuries allegedly caused by a defective
product. After the statute of limitations had expired, Echols amended his complaint to
substitute Summa Corporation (Summa) as the defendant in place of Hughes. The district
court dismissed the amended complaint on the ground that it was barred by the statute of
limitations. NRS 11.190(4)(e).
1
We reverse.
On November 30, 1975, Echols was injured when the bottle of Heinz Ketchup he was
trying to open allegedly exploded in his hands. The accident occurred in a restaurant located
in the Frontier Hotel. Echols filed suit against Hughes, dba Frontier Hotel,
2
and Heinz on
November 21, 1977, nine days before the expiration of the two year limitation of actions.
NRS 11.190(4)(e). Summons and complaint were served upon L. Stephen Savoldelli on
November 23, 1977. On that date Savoldelli was the General Manager of the Frontier Hotel
and a Vice President of Summa.
____________________

1
NRS 11.190:
Actions . . . can only be commenced as follows:
. . . .
4. Within 2 years.
. . . .
(e) An action to recover damages for injuries to a person or for the death of a person caused by the
wrongful act or neglect of another. . . .

2
Echols' attorney's secretary phoned the Secretary of State's office and the Clark County Business License
Department and was told that Hughes owned the Frontier.
The Frontier Hotel in Las Vegas, Nevada, originally was operated by a division of Hughes.
On December 12, 1972, that division changed its name to Summa Corporation after Hughes
evolved into two corporations. Summa filed the appropriate documents noting the name
change with the Secretary of State and the Clark County Business License Department.
Hughes moved to dismiss the complaint on the ground that Summa owned the Frontier at
the time of the accident. In response, Echols moved to amend the complaint. On January 9,
1978, the district judge granted Hughes' motion to dismiss as to name only, and granted
Echols' motion to amend the complaint by naming Summa as a party-defendant.
Summons was served upon Summa's resident agent on January 13, 1978. Twelve days
later, Summa moved to dismiss the action on the ground that Echols' amended complaint was
filed after the statutory period had expired. Summa's motion was granted, and the action was
dismissed with prejudice on February 9, 1978.
Echols contends that the amendment substituting Summa for Hughes relates back to the
filing of the original complaint, see NRCP 15(c),
3
and, therefore, the action is not barred and
should not have been dismissed with prejudice. We agree.
We have previously held that a proper defendant may be brought into the action after the
statute of limitations has run if the proper defendant (1) receives actual notice of the action;
(2) knows that it is the proper party; and (3) has not been misled to its prejudice by the
amendment. Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969).
The three requirements are present in this case. Summa received actual notice of the action
before the expiration of the two year period of limitations through service upon Savoldelli, a
Summa Vice President and General Manager of the Frontier. It was apparent to those
operating the Frontier that Hughes Tool Company was a misnomer. In a sworn affidavit
offered in support of Hughes' motion to dismiss, a Summa officer acknowledged that Summa
is the proper defendant. Having actual notice of the action before the expiration of the two
year period, Summa was neither misled nor prejudiced by the subsequent amendment.
____________________

3
NRCP 15(c):
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date
of the original pleading.
The trial judge erred in dismissing, with prejudice, the action against Summa. The
amendment relates back to the filing of the original complaint, NRCP Rule 15(c), because the
identity of interests between the proper and improper defendants enabled Echols to give fair
and adequate notice of the law suit to Summa prior to the expiration of the two year period.
Judgment is reversed and the case is remanded for a trial on the merits.
Reversed.
____________
95 Nev. 723, 723 (1979) Cirac v. Lander County
DON L. CIRAC, Appellant, v. LANDER COUNTY, et al.,
Respondents, ANDREA BURTON, Intervenor.
No. 11886
November 2, 1979 602 P.2d 1012
Appeal from order granting summary judgment in special election proceeding, Third
Judicial District Court, Lander County; Stanley A. Smart, Judge.
Injunctive relief was sought against county board of commissioners, stemming from their
approval of a petition by tax-paying electors to place on a special election ballot the question
of relocating the county seat. The district court granted summary judgment for defendants,
and plaintiff appealed. The Supreme Court, Manoukian, J., held, inter alia, that: (1) the
county board acted within its authority in validating signatures on county seat removal
petition of persons whose names did not appear on the tax rolls but who allegedly held a
community property interest in the property listed on the rolls under the name of a spouse; (2)
a declaration by the spouse listed as the taxpayer is sufficient evidence of character of
property for the county board to find that a nonlisted spouse is actually a taxpayer as well; and
(3) election on the removal petition was not rendered moot by reason of voter approval at a
special election; plaintiff timely instituted an equity action to test the validity of the petition
and prevent the election, and a justiciable controversy was presented.
Affirmed.
Thompson, J., dissented.
Woodburn, Wedge, Blakey and Jeppson, and Daniel J. Klaich, Reno, for Appellant.
George G. Holden, District Attorney, Lander County, and Thomas L. Belaustegui, Reno,
for Respondents.
1. Injunction.
Although the Supreme Court will not interrupt an election process by preventing an issue from being
presented to the voters, an injunction will lie in the lower court to prohibit a county seat removal election
when the ballot question, if passed, would involve election expenditures as well as the considerable
expense of relocating the county seat and obvious irreparable injury; this is particularly so where, as in the
instant case, the challenge to the qualifying petition was timely filed below and the election has now been
concluded. NRS 243.470.
2. Counties.
County board of commissioners acted within its authority in validating signatures on county seat removal
petition of persons whose names did not appear on the tax rolls but who allegedly held a
community-property interest in the property listed on the rolls under the name of a spouse. NRS
243.465, 243.470.
3. Counties
Supreme Court has demanded strict adherence to the authentication requirements of the Constitution
governing an initiative petition.
4. Statutes.
When the language of a statute is plain, its intention must be deduced from such language, and the court
has no right to go beyond it.
5. Statutes.
If the words of a statute are clear, court should not add to or alter them to accomplish a purpose not on
the face of the statute or apparent from permissible extrinsic aids such as legislative history or committee
reports.
6. Elections.
Legislature may adopt such rules as deemed necessary to test the qualifications of an elector, but such
rules must not deny or abridge a person's constitutional right to vote and must be reasonable, impartial and
uniform.
7. Elections.
Right to vote should not be taken away due to a doubtful statutory construction or mere technicality.
8. Officers and Public Employees.
When confronted with recall and candidacy statutes, the rule of substantial compliance best furthers the
purpose of insuring that only registered voters are engaged in the qualifying procedures.
9. Counties.
It is proper to allow qualified electors of a county, who are also taxpayers of the county, to sign a
qualifying petition for the removal of the county seat. NRS 243.465, 243.470.
10. Counties.
A declaration by the spouse listed as the taxpayer is sufficient evidence of character of property for the
county board of commissioners to find that a nonlisted spouse is actually a taxpayer as well, as regards a
petition for removal of the county seat. NRS 51.345, 123.220, 123.225, 243.465, 243.470.
11. Injunction.
Election on county seat removal petition was not rendered moot by reason of voter approval at a special
election; plaintiff timely instituted an equity action to test the validity of the petition and prevent the
election, and a justiciable controversy was presented. NRS 243.465, 243.470.
OPINION
This is an appeal from an order of the district court granting summary judgment. The order
had the effect of denying plaintiff-appellant's request for injunctive relief against respondents
Lander County Board of Commissioners, and others, as a result of respondents' approval of a
petition by taxpaying electors to place the question of the relocation of the county seat on a
special election ballot.
Four questions confront us. They are: (1) Whether injunctive relief is the proper remedy;
(2) Whether respondent board acted beyond the scope of its authority in validating signatures
on the county seat removal petition of persons not listed on the tax assessment roll; (3)
Whether the board's decision to allow the additional signatures was supported by sufficient
evidence; and (4) Whether as a result of voter approval, this appeal is rendered moot.
On December 7, 1978, a petition was filed with Emma F. Gandolfo, then County Clerk of
Lander County, seeking to have the question of moving the Lander County seat from Austin
to Battle Mountain placed before the county electorate at a special election. The petition
contained 949 signatures. At the direction of the Board of County Commissioners, an
examination of the signatures on the petition was conducted by various county officers who
were to report thereon to the board at a public meeting duly noticed and called for January 5,
1979.
At the meeting of January 5, 1979, the board heard reports from former County Clerk
Emma F. Gandolfo, County Assessor Dorothy Estes, and County Treasurer Don Bruce. The
County Assessor reported as to the number of signers who were listed on the real and
personal property tax roll. The Treasurer gave a similar report as to real property taxpayers.
The Clerk reported on miscellaneous irregularities such as duplicate signatures. No other
evidence was received. The Board approved 882 of the signatures on the petition as meeting
the statutory requirements. At the last general election in Lander County, 1410 legal votes
were cast. Sixty percent of that number, or S46 signatures of qualified electors and
taxpayers, are required for a county seat removal petition before the petition can be
found sufficient and an election ordered on the removal question.
that number, or 846 signatures of qualified electors and taxpayers, are required for a county
seat removal petition before the petition can be found sufficient and an election ordered on
the removal question. NRS 243.465. Because the number of signatures approved by the
Board exceeded the required 846 signatures, the petition was found sufficient and the board
ordered the county seat removal proposition placed on a special election ballot. The special
election was subsequently set for May 15, 1979.
Of the 882 signatures approved by the Board, seventy-one were of persons whose names
did not appear on either of the Lander County tax rolls. Without the inclusion of these
signatures, the removal petition would be insufficient as a matter of law. The seventy-one
names approved by the commissioners were of persons married to taxpayers actually listed on
the county rolls. For each of the unlisted spouses, an affidavit of community property interest
was filed along with the petition. The commissioners determined that the seventy-one
unlisted spouses had a community property interest in taxed property and were, therefore,
within the intendment of NRS 243.465, even though their names could not be found on the
tax rolls.
On April 4, 1979, appellant filed a complaint for injunctive relief to prohibit the Board of
Commissioners from placing the county seat relocation question before the voters. Prior to
the hearing, Andrea Burton, a respondent herein, was permitted to intervene. At a hearing on
May 11, 1979, four days before the scheduled election, the lower court granted summary
judgment for respondents and intervenor. On May 15, 1979, the voters of Lander County
approved the move of the county seat from Austin to Battle Mountain by a vote of 748 to
417.
1. Jurisdiction.
[Headnote 1]
The threshold issue is that of jurisdiction. We must determine whether or not an injunction
is a proper vehicle with which to resolve a question concerning the propriety of the acts of a
county commission in conducting an inquiry into the sufficiency of the removal petition.
1
It
is suggested here, as it was in Lauritzen v. Casady, 70 Nev. 136 140, 261 P.2d 145, 146
{1953), and Caine v. Robbins, 61 Nev. 416, 426
____________________

1
1. At the time specified in the notice, the board of county commissioners shall meet and inquire into and
determine the sufficiency of the petition and the validity of the signatures thereto, and if sufficient and signed by
the required number the board shall make an order directing that the proposition to remove the county seat to the
place named in the petition be submitted to a vote of the qualified electors of the county at the next general
election, if the same is to occur within 6 months of the time of filing the petition; otherwise at a special election
to be called for that purpose at any time not less than 4 months nor more than 6 months from the date of filing
the petition with the clerk of the board.
Lauritzen v. Casady, 70 Nev. 136 140, 261 P.2d 145, 146 (1953), and Caine v. Robbins, 61
Nev. 416, 426-27, 131 P.2d 516, 520 (1942), that an injunction is not the proper remedy
because no irreparable injury is shown and because the purpose of the election is wholly
politicalas distinguished from elections involving proprietary or pecuniary interests.
Although this court has held that we will not interrupt an election process by preventing an
issue from being presented to the voters, Beebe v. Koontz, 72 Nev. 247, 252-53, 302 P.2d
486, 489 (1956); see Brown v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954), it is well settled
that an injunction will lie in the lower court to prohibit an election when the ballot question,
if passed, would involve election expenditures as well as the considerable expense of
relocating the county seat and obvious irreparable injury. Lauritzen v. Casady, 70 Nev. at 140,
261 P.2d at 146; Caine v. Robbins, 61 Nev. at 426-27, 131 P.2d at 520. See NRCP 65. This is
particularly so where, as here, the challenge to the qualifying petition was timely filed below
and the election has now been concluded so that the election itself is not interrupted with our
consideration. Compare Beebe v. Koontz, 72 Nev. at 252-53, 302 P.2d at 489 (no good cause
shown for belated challenge) and Harrison v. Board of County Commissioners, 198 P.2d
1013 (Idaho 1948) (improper suit in equity after election) with Lauritzen v. Casady, 70 Nev.
at 137-38, 261 P.2d at 145 (sufficiency of petition properly challenged prior to election).
If respondent board transcended its statutory authority in conducting the inquiry of the
qualifying petition, then the board itself was without jurisdiction to call an election. Thus, the
question of the board's jurisdiction is the substantive issue required to be decided. A
resolution of this issue, to which we now turn for consideration, will necessarily be
dispositive of this appeal.
2. The Unlisted Names.
Nevada law specifically provides for the removal of a county seat and requires a petition
be signed by taxpayers as appears by the last real or personal property assessment roll. . . .
NRS 243.465
2
This petition must be signed by persons equal in number to those casting
sixty percent of the legal votes at the last general election. Id. When such petition is filed,
the board of county commissioners must "meet and inquire into and determine the
sufficiency of the petition and the validity of the signatures. . . ."
____________________
2. No names shall be withdrawn from the petition after the same has been filed with the clerk of the board of
county commissioners except in cases of actual fraud in the procuring of signatures to the same.

2
Whenever the residents of any county in this state shall file a petition with the clerk of the board of county
commissioners, signed by qualified electors of the county, who are also taxpayers of the county as appears by
the last real or personal property assessment roll, equal in number to at least 60 percent of the legal votes cast at
the last preceding general election in the county, asking for
equal in number to those casting sixty percent of the legal votes at the last general election.
Id. When such petition is filed, the board of county commissioners must meet and inquire
into and determine the sufficiency of the petition and the validity of the signatures. . . . NRS
243.470. If there is a sufficient number of signatures, an election must be held.
[Headnote 2]
In the instant case, the board validated seventy-one signatures of persons whose names did
not appear on the tax rolls but who allegedly held a community property interest in property
listed on the rolls under the name of a spouse. Without these signatures the qualifying petition
would have been insufficient.
In a previous case, this court held, under a predecessor of the present statute, that a person
who does appear on the tax assessment roll is qualified to sign a petition. State ex rel.
Kaufman v. Martin, 32 Nev. 197, 205, 106 P. 318, 319-20 (1910), construing 1900
Nev.Comp.Laws 5007. There, the board of county commissioners removed the signatures
of forty-two persons whose names actually appeared on the assessment rolls but only in a
partnership capacity. We held the action of removal of signatures to be error but did not
address the issue whether names could be added. The court in Kaufman also held that a
petitioner would not be disqualified if he possessed the substantial qualifications and [was] a
taxpayer and voter as indicated. Id. at 205, 106 P. at 320. Some signers had not registered for
the previous special election but had registered for the general election. Such was sufficient
compliance with the statute requiring signatures of qualified electors.
The standard of construction to be used in the present case is crucial. We query whether
there must be strict compliance with the language requiring a person to be a taxpayer as
appears by the last real or personal property assessment roll or a liberal construction which
allows signatures of those who are taxpayers but do not appear as such?
[Headnotes 3, 4]
a. Application of Strict Construction.This court has previously demanded strict
adherence to the authentication requirements of the Constitution governing an initiative
petition. Lundberg v. Koontz, 82 Nev. 360, 366, 418 P.2d 808, S11 {1966).
____________________
the removal of the county seat of the county to some other designated place, the board of county commissioners
shall fix a time for a public hearing upon the petition, which time shall be within 30 days after the filing of the
petition and the clerk of the board of county commissioners shall give notice thereof by publication in a
newspaper published in the county as may be designated by the board, at least once in each week for 2 weeks,
the first publication to be at least 2 weeks before the date of hearing. (Emphasis added.)
811 (1966). And when the language of a statute is plain, its intention must be deduced from
such language, and the court has no right to go beyond it. State ex rel. Hess v. Washoe
County, 6 Nev. 104, 107 (1870).
In an early Montana case, it was determined that the board of county commissioners could
not disregard names which were actually on the poll books and assessment rolls. In order to
find that number on the county seat removal petition to be the percentage required, the board
removed from the rolls names of those who had ceased to be legal voters or taxpayers since
the last records were made. Ainsworth v. McKay, 175 P. 887, 887-88 (Mont. 1918). There the
statute provided the board shall compare such petition with the poll books . . . [and] the
listed assessment roll. . . . Id. at 887. The court held that when there are no constitutional
restrictions, the legislature can prescribe the chosen test.
If we find that respondent board has the power to add names to the assessment rolls, what
would be the result? It may be that the doors would be opened to many more people,
organizations or groups who were not originally on the tax rolls. There are a number of
situations in which actual taxpayers and eligible voters are omitted from the tax rolls. One
situation, for example, is with holders in joint tenancy where only one owner was designedly
or mistakenly put on the roll. In addition, a partnership or closely held corporation may be
taxed by an entity name, although the individual partners or shareholders are paying the taxes.
Similarly, a new owner of property since the closing date of the rolls may wish to be
considered a taxpayer for these purposes. With personal property, such as a mobile home
being moved into the county, the assessor's office may only be informed by the mobile park
or mobile sales dealer of the name of one owner. In reality, these assets may be held as
community property or in joint tenancy. By casual inspection, however, the adoption of NRS
243.465 apparently reflects the legislative intent to give the board a simple way of
determining the importance of an issue to the people of the county considering the people
likely to vote on that issue. A liberal construction of NRS 243.465 may vitiate that intent.
[Headnote 5]
b. Application of Liberal Construction.On the other hand, although our court has
essentially followed the above standards, several distinctions have developed. If the words of
a statute are clear, we should not add to or alter them to accomplish a purpose not on the face
of the statute or apparent from permissible extrinsic aids such as legislative history or
committee reports. Lauritzen v. Casady, 70 Nev. at 139, 261 P.2d at 146.
P.2d at 146. But did the legislature in this case foresee the present problems? Absent evidence
that it did, we must speculate as to how it would have dealt with them.
[Headnote 6]
Certainly, the legislature may adopt such rules . . . as may be deemed necessary to test the
qualifications of an elector. State ex rel. Whitney v. Findlay, 20 Nev. 198, 202, 19 P. 241,
243 (1888). But such rules must not deny or abridge a person's constitutional right to vote and
must be reasonable, impartial, and uniform. Id. In Whitney, the court could not add to the
constitutional requirements to vote. And, notably, the Lundberg court was discussing
constitutional and not statutory requirements when it called for strict construction. Lundberg
v. Koontz, 82 Nev. at 366, 418 P.2d at 810-11. In the present case, however, the petition
requirements are statutory and not constitutional. See Springer v. Mount, 86 Nev. 806,
809-10, 477 P.2d 159, 160-61 (1970) (Zenoff, J., dissenting) (demonstrating difference in
construction). It should also be seen that unlike the statute considered in Ainsworth v.
McKay, 175 P. at 887, the present statute does not say the board shall compare the petition
with the roll, but says the signers should be taxpayers as shown on the last assessment roll.
[Headnote 7]
This court has liberally construed statutes regulating recall and candidacy petitions. See
Cleland v. District Court, 92 Nev. 454, 552 P.2d 488 (1976); Springer v. Mount, 86 Nev. 806,
477 P.2d 159 (1970). We doubt that the legislature here wished to prevent truly qualified
taxpayers from signing a petition or actually to prevent voters from voting on an issue of this
importance.
3
And the right to vote should not be taken away due to a doubtful statutory
construction or mere technicality. Lynip v. Buckner, 22 Nev. 426, 439, 41 P. 762, 765
(1895) (improper handling of ballots by official in district attorney election). Construction of
laws must be according to their spirit and meaning, and not merely according to their letter.
Id.
____________________

3
Indeed, to say a person here cannot sign a petition such as the one before us arguably presents an equal
protection problem. Our statute requires that a person signing the petition be a taxpayer. And if only
non-taxpayers desire to have a county seat change, their inability to sign a qualifying petition may preclude them
from voting on the issue. If our statute produces a classification and denies the fundamental right to vote, without
a showing of a compelling governmental interest, there may be a violation of equal protection. Hill v. Stone, 421
U.S. 289, 297 (1975); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626 (1969). In light of our
disposition here, however, in finding that non-listed taxpaying spouses may sign a petition, we need not address
the constitutional issue.
A reading of NRS 243.470 also reflects that the legislature wished to leave some
reasonable authority with the board by providing that it should inquire into and determine
the sufficiency of the petition. . . . NRS 243.470.
[Headnotes 8, 9]
By analogy, when confronted with recall and candidacy statutes, this court has found that
the rule of substantial compliance best furthers the purpose of insuring that only registered
voters are engaged in the qualifying procedures. Cleland v. District Court, 92 Nev. at 456,
552 P.2d at 490; Springer v. Mount, 86 Nev. at 809, 477 P.2d at 160. It is true that this was
with regard to whether persons fully complied with the requirement of providing their
address. In this factual context, though, we adopt the rule of substantial compliance, believing
it proper to allow qualified electors of the county, who are also taxpayers of the county
(NRS 243.465) to sign a qualifying petition for the removal of a county seat. Significantly,
appellant does not deny that the signers in question were taxpayers. The only contention is
that they simply do not appear on the real or personal property assessment roll as called for by
the statute.
Furthermore, this court has recognized the fact that community property of spouses may be
subject to liability of judgments whether or not the wife was a party to the suit. Randono v.
Turk, 86 Nev. 123, 131-32, 466 P.2d 218, 224 (1970). And, of course, both spouses must join
in any conveyance or encumbrance of community real property. NRS 123.230(3).
Determining that we have the power to inquire into the realas distinct from
ostensiblelegislative purpose, we conclude that the allowance of the board's action in the
present case complements legislative intent and is, indeed, necessary to extend the statute's
provision to persons who come within its equity. We perceive little distinction from the
board's powers outside a petition situation. Statutes allow the board of commissioners to
place previously omitted property on the assessment roll, NRS 244.516, or to modify an
assessment after examining a report involving a new part-owner. NRS 361.790. In this
context, we agree with the trial court that a spouse with a community property interest is in
fact a taxpayer and on a proper showing should be entitled to sign the petition. We believe
that our interpretation does no violence to the language chosen by the legislature.
When a petition for the removal of a county seat is filed, the board of county
commissioners shall meet and inquire into and determine the sufficiency of the petition and
the validity of the signatures thereto" at a public hearing.
the signatures thereto at a public hearing. NRS 243.470. As can be seen, the statute does not
specifically make clear whether evidence can be taken and, if so, what kind and to what
extent.
As we have previously stated, the board of county commissioners is a body possessing
but limited and special powers; that, when its power or authority to do any particular
thing is questioned, the record must show affirmatively all the facts necessary to give it
authority to perform the act complained of, and that, when this is not the case, the
presumption is against its jurisdiction.
Godchaux v. Carpenter, 19 Nev. 415, 418, 14 P. 140, 141 (1887) (citations omitted). In
Godchaux, our court found the board without jurisdiction to open a road based on a petition.
The record failed to show that the board had found a majority of resident taxpayers of a road
district, according to the last previous assessment roll, had signed the petition. Id. at 417,
14 P. at 140-41. Thus, board jurisdiction may be lacking when insufficient evidence appears
in the record to show a petition is proper. See Johnson v. Eureka County, 12 Nev. 28 (1877).
In the present case, the board determined that certain persons had a community interest in
property for which a spouse was listed as the taxpayer. As such, the board concluded that it
could add the unlisted persons to the tax rolls. The precise subsidiary question before us is
whether a community interest is demonstrated by the evidence presented to the board.
Here, the evidence of a community interest considered by the board included seventy-one
identical affidavits signed by a spouse actually listed on the assessment rolls. These affidavits
stated the affiant was the owner of property in Lander County and that a second person was
his or her spouse and had a present, existing and equal interest in said property according to
NRS 123.220, 123.225 and that the property is community property. The lower court
determined that such a document either constituted in itself sufficient evidence to transmute
separate property to community or that this was a confirmation of community property. The
court also believed that the affidavits were declarations against interest. See NRS 51.345. But
the court acknowledged that in a divorce contest, the statement by itself would be a mere
legal conclusion and that underlying facts relating to when the property was acquired would
have to be found.
[Headnote 10]
We recognize that community property is [a]ll property, [other than gifts, inheritances
and devises], acquired after marriage by either husband or wife, or both [unless there is an]
agreement in writing between the spouses, which is effective only as between them. . . ."
agreement in writing between the spouses, which is effective only as between them. . . . NRS
123.220. And in divorce, estate or other familial inter se proceedings, in order for a
presumption of community property to arise, facts of marriage and time and manner of
acquisition must be shown and the opinions of parties are entitled to no weight. See Peters v.
Peters, 92 Nev. 687, 557 P.2d 713 (1976); Barrett v. Frank, 46 Nev. 170, 208 P. 435 (1922).
See also In re Pepper's Estate, 112 P. 62 (Cal. 1902); In re Wilson's Estate, 56 Nev. 353, 53
P.2d 339 (1936). But the difference in this case is that there appears to be no dispute between
spouses as to the character of property. We express no opinion as to whether the affidavits
presented to the board here would be sufficient to find either a presumption of character or a
transmutation when the character of the property is in issue. We only find that under these
facts, a declaration by the spouse listed as the taxpayer is sufficient evidence of character of
property for the board of commissioners to find that a non-listed spouse is actually a taxpayer
as well.
There are additional reasons for finding sufficient evidence under these facts. Although the
board of county commissioners may be vested with quasi-judicial or reasonable
discretionary or investigatory powers,
4
we cannot impose upon them all of the problems
inherent in ascertaining a question which, in other situations, must be left to the judiciary.
Additionally, we believe the legislature intended that ascertainment of the petitioners' status
should be accurate yet convenient from the points of view of the board and other involved
officials. Our holding allows for a proper balancing of the conflicting valuesspecifically,
the minimization of error or fraud and the necessary preparation of adequate government
records against the right to vote. See Dunn v. Blumstein, 405 U.S. 330 (1972);, Springer v.
Mount, 86 Nev. 806, 477 P.2d 159 (1970).
We conclude that the legislature must have intended that the propounded affidavits
constitute sufficient evidence. The board did not err in so finding.
4. Mootness.
[Headnote 11]
Respondents contend that as a result of voter approval at a May 15, 1979 special election,
this appeal is rendered moot. We do not agree.
____________________

4
The board does have some discretion in certain matters. However, it must have a sufficient basis on which
to support its jurisdiction. Where, as here, the board did have sufficient evidence before it, certiorari will not lie
as the board has not exceeded its jurisdiction. NRS 34.020-.140. See State v. Board of Regents, 70 Nev. 144,
261 P.2d 515 (1953).
do not agree. Respondents rely on Harrison v. Board of County Commissioners, 198 P.2d
1013 (Idaho 1948). Harrison is easily distinguished from the instant case. There, the alleged
insufficient petition was not challenged until approximately one year after the election and the
contestant's complaint was materially defective on its face. Here, appellant timely instituted
this equity action to test the validity of the petition and prevent the election. We believe a
justiciable controversy has been presented. Moore v. Oglivie, 394 U.S. 814, 816 (1969). See
Young Investment Co. v. Reno Club, Inc., 66 Nev. 216, 208 P.2d 297 (1949); Pacific
Livestock Co. v. Mason Valley Mines Co., 39 Nev. 105, 153 P. 431 (1915).
Finally, returning to the question of jurisdiction, we conclude that respondent board was
within its legal authority to call the election and that there was no basis for relief, either
injunctive or through certiorari.We affirm the summary judgment.
Mowbray, C. J., concurs.
I agree with the majority opinion that injunctive relief is a proper remedy in this case and
that this appeal is not rendered moot as a result of voter approval at the special election;
however, I believe that the issues presented are far less ponderous than portrayed in that
opinion.
Here with reference to the seventy-one names in question we have no problem Of the
county commissioners deleting names from or adding names to the petition, tax rolls or
election rolls. The commissioners merely found those petitioners to be qualified electors and
taxpayers of Lander County. They determined this by the fact that their spouses' names
appeared on the last real or personal property assessment roll and from the affidavits signed
by those spouses actually listed acknowledging the marital relationship and that the unlisted
spouse had a present, existing and equal interest in the assessed property. The Commissioners
met their statutory obligation of determining the sufficiency of the petition and the burden
then shifted to any opponents to show the facts alleged in the affidavits to be false. This was
not done.
NRS 243.465 does not require that petitioners names appear on the assessment roll, only
that by an examination of the roll it appears that the petitioner is a taxpayer. That statute does
not preclude the presentation of supporting affidavits as was done here.
I agree that the Judgment of the district court must be affirmed.
Thompson, J., dissenting:
I would set aside the summary judgment entered below and annul the result of the election.
As stated in the majority opinion, 846 signatures of qualified electors and taxpayers were
required before an election could be ordered. In finding a sufficient number of signatures,
882, the Board of Commissioners approved 71 signatures of persons whose names did not
appear on the Lander County real or personal property assessment rolls. The 71 names so
approved were of persons married to taxpayers who were listed. For each nonlisted spouse an
affidavit of community property interest was filed.
1. The procedure for removal of a county seat to a new location is specified by statute.
NRS 243.460-243.490. Qualified electors of the county who also are taxpayers as appears by
the last real or personal property assessment roll, equal in number to at least 60 percent of the
legal votes cast at the last preceding general election must sign the petition. If this does not
occur, an election may not be held. Since 71 signatures of persons whose names did not
appear on the assessment rolls were approved by the Board without which the petition was
ineffective for want of requisite signatures, it is apparent that the statutory precondition was
not met.
This court is not empowered to annul or alter the legislative direction that the names of the
qualified electors and taxpayers must appear on the last real or personal property assessment
roll. The legislative intent is clearly expressed and there is no occasion for construction.
Blaisdell v. Conklin, 62 Nev. 370, 373, 151 P.2d 626 (1944).
The apparent purpose of the use of the assessment rolls to identify valid signatures is to
make the Board's determination simple and nondiscretionary. The Board was not granted
authority to count other persons who otherwise might qualify as signatories. I read State v.
Martin, 32 Nev. 197, 205, 106 P. 318 (1910), to support this point of view. The legislature
wished to avoid imposing upon the Board of Commissioners a fact-finding burden more
properly reserved for courts to be resolved in an adversary atmosphere.
2. It is suggested by respondents that a refusal by the Board to count the 71 signatures of
persons whose names did not appear on the assessment rolls would somehow deny equal
protection in violation of our federal constitution.
appear on the assessment rolls would somehow deny equal protection in violation of our
federal constitution. I find this suggestion unpersuasive. In the first place, that issue is not
validly presented in this case. The signatures were counted. If they had not been counted and
an equal protection challenge tendered, the issue would have to be resolved. That did not
occur here. Aside from this fact, persons who own community property may have it listed
under both names on the assessment rolls if they desire their interests to be reflected in title
documents. Consequently, if they are ineligible to sign the petition because their names do
not appear on the assessment rolls, that ineligibility must be attributed to them rather than to
the statutory wording selected by the legislature.
____________
95 Nev. 736, 736 (1979) Estate of Greenberg v. Skurski
ESTATE OF MAYER GREENBERG, deceased, DANIEL B. GREENBERG, individually
and as Executor of the Estate of MAYER GREENBERG, RUTH C. GREENBERG, LOUIS
W. CORWIN, ERIC T. STANIEK, MATTIE P. STANIEK, HAROLD A. HAYTIN, LOIS
HAYTIN and PHILLIP A. GREENBERG, Appellants, v. ANDY SKURSKI, Respondent.
No. 10691
November 2, 1979 602 P.2d 178
Appeal from judgment; Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Real estate broker brought action against members of investment group to recover real
estate commission allegedly earned during negotiations for sale and purchase of industrial
park. The district court entered judgment in favor of broker, and defendants appealed. The
Supreme Court, Thompson, J., held that: (1) evidence did not support trial court's finding that
one member of group, who advised broker that they had a deal, was a subagent with authority
to act for the group, and (2) broker had not produced a buyer ready, willing and able to
purchase the property since release clause designated in sales agreement between group and
holder of deed of trust was not acceptable to purchasers, and thus broker was not entitled to
commission.
Reversed with direction to enter judgment for appellants-defendants.
Batjer, J., dissented in part, concurred in part; Gunderson, J., dissented.
Beckley, Singleton, DeLanoy & Jemison, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondent.
1. Principal and Agent.
In real estate broker's action against members of investment group to recover real estate commission
allegedly earned during negotiations for sale and purchase of industrial park, trial court's finding that one
member of the group, who had advised broker that they had a deal, was a subagent of the group's agent
with authority to act for all members was not supported by the evidence.
A subagent is person appointed by agent empowered to do so, to perform functions undertaken by
agent for principal, but for whose conduct agent agrees with principal to be primarily responsible.
Because agency relationship, which is normally grounded on trust and confidence principal places in his
agent, is personal in nature, agency duties ordinarily cannot be delegated without express authority of the
principal where duties involve any personal discretion, skill or judgment.
Duties placed upon agent to act for principals, members of investment group, regarding industrial park
owned by the group involved personal discretion, skill or judgment of agent and thus his duty to so perform
was not assignable without consent of principals.
5. Brokers.
Precondition of entitlement to a broker's commission is that he produce a buyer ready, willing and able to
purchase property upon terms prescribed by sellers.
6. Brokers.
Real estate broker did not produce a buyer ready, willing and able to purchase property subject to sales
agreement between owners of property and holder of deed of trust where release clause designated in the
agreement was not acceptable to purchasers; thus broker was not entitled to commission.
OPINION
Andy Skurski, a licensed real estate broker, commenced this action against members of an
investment group to recover a real estate commission allegedly earned during negotiations for
the sale and purchase of the Starlite Industrial Park. The district court entered judgment in
favor of Skurski for the sum of $66,S75.
$66,875. That judgment imposed a joint and several liability against the members of the
investment group.
The district court found that one of the members of the investment group owning the
Starlite Industrial Park, Eric Staniek, was a subagent, empowered to negotiate for and bind all
members, and that Staniek had made a deal with Skurski to sell the Industrial Park to the
Janitell brothers. Moreover, the court also found that the Janitell brothers were ready, willing
and able to purchase the property upon terms prescribed by the sellers. There is no evidence
possessing substance to support either finding. For reasons hereafter expressed we reverse
and direct the entry of judgment for appellants-defendants. United Mortgage Co. v. Hildreth,
93 Nev. 79, 559 P.2d 1186 (1977).
1. Starlite Industrial Park was owned by nine persons as tenants in common.
1
Their
ownership was subject to a deed of trust in favor of Nevada Savings and Loan Association to
secure a loan in the sum of $693,000. Their ownership also was subject to the provisions of a
sales agreement between them and Nevada Savings and Loan designating specific prices to be
paid for the release of certain lots within certain blocks of the Industrial Park as those lots
were sold.
The tenants in common, by written document, appointed Mayer Greenberg agent and
attorney in fact for each of them with regard to the Industrial Park and the loan thereon from
Nevada Savings and Loan Association. No one else was authorized to act for them.
A real estate consultant, working on behalf of the owners, sent to Skurski and other real
estate brokers a 73-page document containing a detailed description of the Starlite Industrial
Park. Thereafter, Skurski showed the property to the Janitell brothers who were interested in
purchasing commercial property in the Las Vegas area.
Negotiations between some of the sellers and Skurski and the Janitell brothers commenced
in early June 1973, and on August 11, 1973, Eric Staniek advised Skurski that they had a
deal.
[Headnote 1]
As already noted, the district court found that Eric Staniek was a subagent of Mayer
Greenberg with authority to act for all of the tenants in common owning the Industrial Park.
We perceive no basis for such a finding. The document appointing Mayer Greenberg agent
and attorney in fact for each tenant in common does not authorize the appointment of a
subagent.
____________________

1
The owners were Mayer Greenberg, ruth Greenberg, Phillip Greenberg, Daniel Greenberg, Harold Haytin,
Lois Haytin, Louis Corwin, Mattie Staniek and Eric Staniek. Mayer Greenberg died before this action was
brought and his estate was named a defendant in his stead.
Mayer Greenberg agent and attorney in fact for each tenant in common does not authorize the
appointment of a subagent. There is no evidence to suggest that Ruth Greenberg, Phillip
Greenberg, Daniel Greenberg, Harold Haytin, Lois Haytin, Louis Corwin or Mattie Staniek
authorized Eric Staniek to act for them.
[Headnote 2]
A subagent is a person appointed by an agent empowered to do so, to perform functions
undertaken by the agent for the principal, but for whose conduct the agent agrees with the
principal to be primarily responsible. Restatement (Second) of Agency 5(1) (1957). We
read nothing in the record suggesting that the principals empowered Mayer Greenberg to
appoint a subagent, nor may the record be read to indicate that Mayer Greenberg agreed with
his principals to be responsible for the conduct of Eric Staniek.
[Headnote 3]
The agency relationship normally is grounded on the trust and confidence the principal
places in his agent. Consequently, the law has come to look upon that relationship as personal
in nature. It is for this reason that agency duties ordinarily cannot be delegated without the
express authority of the principal where the duties involve any personal discretion, skill or
judgment. Knudsen v. Torrington Company, 254 F.2d 283 (2d Cir. 1958).
[Headnote 4]
There is no question but that the duties placed upon Mayer Greenberg to act for the
principals with regard to the Starlite Industrial Park involved the personal discretion, skill or
judgment of Greenberg. His personal performance was called for and his duty to so perform
was not assignable to Eric Staniek or anyone else without the consent of his principals.
Sumner v. Nevin, 87 P. 1105 (Cal.App. 1906) (holding that a contract entered into between a
broker and the owners of a tract of land, by which the broker was given the exclusive selling
rights of the land, being founded on personal qualities, was not assignable without the
consent of the parties thereto).
[Headnote 5]
2. A precondition of entitlement to a broker's commission is that he produce a buyer,
ready, willing and able to purchase the property upon terms prescribed by the sellers. Bell v.
Krupp, 86 Nev. 247, 467 P.2d 1013 (1970). This did not happen. The ownership of the
Industrial Park was subject, not only to a deed of trust in favor of Nevada Savings and Loan
Association, but also to the provisions of a sales agreement with that Association
designating specific prices to be paid for the release of certain lots within certain blocks
of the Industrial Park as those lots were sold.
Association, but also to the provisions of a sales agreement with that Association designating
specific prices to be paid for the release of certain lots within certain blocks of the Industrial
Park as those lots were sold.
[Headnote 6]
The parties to this litigation as well as the Janitells deemed the release clause to be a very
important element in a sale if one were to occur. The existing release clause designated in the
agreement with Nevada Savings and Loan was not acceptable to the Janitells. A different
release clause having the approval of Nevada Savings and Loan was never agreed upon
between the sellers and the Janitells or Skurski. Therefore, it is clear that the broker did not
meet the precondition of entitlement to a commission.
The judgment below is reversed and the cause is remanded with direction to enter
judgment for defendants-appellants.
Batjer, J., dissenting in part and concurring in part:.
Although I dissent from the majority's holding that the record does not support the district
court's finding that Staniek was a sub-agent empowered to negotiate for and bind all members
of the investment group in its sale of the Starlite Industrial Park to the Janitell brothers, I
concur in the result upon the reasons recited by the majority that respondent Skurski did not
produce a buyer, ready, willing and able to purchase the Industrial Park upon the terms
prescribed by the sellers.
Respondent, a licensed real estate broker, brought suit against appellants, members of an
investment group, for payment of a real estate commission allegedly earned during
negotiations for the sale of real property. The district court awarded respondent $66,875 plus
interest, and this appeal followed.
In October, 1972, Mr. Silverson, a real estate consultant working on behalf of appellants,
sent respondent a 73-page document containing a detailed description of commercial property
owned by appellants in Las Vegas, Nevada. Respondent subsequently showed the property to
the Janitell brothers who were interested in investing in commercial property in the Las
Vegas area.
The Janitells, respondent, some of the appellants, and Silverson met in early June, 1973, in
Los Angeles, California to discuss the sale of appellants' property. At that meeting some of
the details of the proposed purchase were worked out.
On August 8, 1973, appellant Mayer Greenberg, to whom the other appellants had
executed a power of attorney, called respondent to revoke the original offer, but gave the
Janitells 10 days to accept another proposal. On August 11, 1973, respondent called Mayer
Greenberg's office, talked to appellant Staniek, and accepted the August 8, 1973 offer.
There was evidence presented at trial that an employee of Nevada Savings and Loan
drafted escrow instructions in response to a call from appellant Staniek, in accordance with
the agreement made on August 11, 1973. Subsequently, appellants accepted an offer from
another party and the deal with the Janitells was never consummated.
Appellants contend (1) negotiations with one member of the investment group were
insufficient to bind the remainder of the group; (2) there was insufficient evidence to sustain
the trial court's finding that respondent earned his commission; and, (3) the pre-judgment
interest award was improperly calculated.
1. Appellants argue that since Mayer Greenberg was attorney-in-fact for their investment
group, he, and not Staniek, was the only one who had authority to negotiate on behalf of the
group. Therefore, they conclude, since it was appellant Staniek, and not Mayer Greenberg, to
whom respondent communicated on August 11, 1973, we must find that Staniek was acting
as a sub-agent of Mayer Greenberg in order for there to be sufficient evidence of an
agreement to purchase the property.
Such authority may be found from the facts adduced at trial. Cf. Nevada Nat'l Bank v.
Gold Star Meat Co., 89 Nev. 427, 514 P.2d 651 (1973); Ellis v. Nelson, 68 Nev. 410, 233
P.2d 1072 (1951); Cleaveland v. Gabriel, 180 A.2d 749 (Conn. 1962). The evidence shows
that Staniek frequently took Mayer Greenberg's phone calls, and acted for Mayer Greenberg
on behalf of the group in writing letters and transacting business. There is no evidence that
any of his acts were subsequently repudiated by Mayer Greenberg, or any other member of
the investment group. Further, it is undisputed that on August 11, 1973, respondent was
calling Mayer Greenberg's office when Staniek took the call and made representations on
behalf of the Greenbergs.
The evidence of record is sufficient to find that Mayer Greenberg was holding out Staniek
as his agent.
2. The general rule is well settled that, in the absence of some other agreement, a broker
has earned his commission when he has produced a buyer ready, willing, and able to purchase
the property upon the terms prescribed by the seller. Bell V.
V. Krupp, 86 Nev. 247, 467 P 2d 1013 (1970); Evans v. Dorman, 81 Nev. 319, 402 P.2d 652
(1965); Lukey v. Smith, 77 Nev. 402, 365 P.2d 487 (1961); Engel v. Wilcox, 75 Nev. 323,
340 P.2d 93 (1959). It is not necessary for the sale to be consummated. Engel v. Wilcox, Id.
The district court found that respondent had produced a ready, willing, and able buyer.
Appellants contend there is insufficient evidence to support this conclusion because, although
Ralph Janitell testified that he was willing and able to buy the property, there had been no
agreement as to material terms of the agreement.
The district court found that the August 11, 1973 phone conversation between appellant
Staniek and respondent (acting on behalf of the Janitells) evidenced agreement as to material
terms. This finding is substantiated by the fact that appellant Staniek asked Nevada Savings
and Loan to prepare escrow instructions in accordance with that agreement.
If the evidence, though conflicting, can be read to support [the findings of fact], this court
must approve the trial court's determinations. Shell Oil Co. v. Ed Hoppe Realty Inc., 91 Nev.
576, 578, 540 P.2d 107, 108 (1975). See also Havas v. Carter, 89 Nev. 497, 515 P.2d 397
(1973). While there is certainly conflicting evidence here, there is, nevertheless, sufficient
evidence to support the district court's findings.
3. The district court awarded respondent $66, 875, together with simple interest at 7
percent per annum. This sum was based upon the draft escrow instructions which provided
for serial payments of premiums by the buyers to the sellers.
Respondent was to receive 5 percent of each of these serial payments, plus 7 percent
interest from the date each payment was due to the date of judgment. The escrow instructions
provided for payment of $250,000 on November 1, 1973; $125,000 on November 1, 1975;
$125,000 on November 1, 1976; and $837,500 on November 1, 1977. Calculation of 5
percent of each of these figures results in commissions of $12,500; $6,250; $6,250; and,
$41,875 respectively. Interest of 7 percent per annum from the date each payment was due, to
the date of judgment should have been based upon these figures.
Accordingly, that portion of the district court's judgment awarding pre-judgment interest
should be reversed and the case remanded for an award consistent with this opinion.
The remaining portions of the district court's judgment should be affirmed.
____________
95 Nev. 743, 743 (1979) Crumbaker v. Kelly
WILLIAM H. CRUMBAKER, JEANNE FOSTER, aka Crumbaker, ROSEMARY
DRESSER, ONE DOE through FIFTY DOE, inclusive, etc., et al., Appellants, v. THOMAS
L. KELLY, HELEN F. KELLY, aka Helen S. Kelly, Respondents.
No. 10134
November 5, 1979 601 P.2d 1199
Appeal from judgment; Fifth Judicial District Court, Esmeralda County; William P. Beko,
Judge.
Defendants appealed from a judgment of the district court quieting title in the mortgagees
on the basis of adverse possession. The Supreme Court held that: (1) mortgagees repudiated
the mortgage and thus their possession was adverse; (2) the general adverse possession statute
allowing a party who has adversely possessed property for five years and who had paid or
tendered all taxes assessed on such property for the same period, to assert his possession
against a known claimant, applied to support mortgagee's claim; and (3) tender of taxes was
sufficient to satisfy requirements of applicable statute.
Affirmed.
Larry G. Bettis, Hawthorne, Nevada, for Appellants.
E. A. Hollingsworth, Reno, Nevada, for Respondents.
1. Mortgages.
If mortgagee repudiates the mortgage relationship and such repudiation is brought to actual notice of
mortgagor, mortgagee's possession of property will be characterized as adverse. NRS 11.150, 40.090.
2. Mortgages.
Repudiation of the mortgage relationship such as will characterize mortgagee's possession as adverse is
effected when the mortgagee, by various acts of dominion over the property, asserts an absolute right to the
property independent of the mortgage. NRS 11.150, 40.090.
3. Mortgages.
Possession by mortgagees who secured the property against mortgagors' entrance, placed their own tenant
in the house and collected rent from her with neither an acknowledgment of nor an accounting to
mortgagors and paid or tendered taxes on the property was properly deemed adverse. NRS 11.150,
40.090.
4. Mortgages.
General adverse possession statute requiring five years of continuous possession and payment of taxes
was properly applied in favor of mortgagee who had been in possession for 11 years since remedy provided
by general adverse possession statute was deemed to be cumulative with remedy provided by another
adverse possession statute which required a 15-year period of possession. NRS 11.150, 40.090.
5. Mortgages.
Mortgagees in possession who either paid or tendered payment of all taxes assessed against the property
satisfied requirement of general adverse possession statute, though for one year another party paid the taxes
before mortgagees timely tendered payment. NRS 11.150.
OPINION
Per Curiam:
This is an appeal from a district court judgment quieting title in respondents, Thomas and
Helen Kelly. The district court concluded that respondents, as mortgagees in possession, had
satisfied all the statutory requirements of adverse possession pursuant to the provisions of
NRS 11.150.
Respondents conveyed property described as lots 18, 19 and 20 in block 54 of Goldfield,
Nevada, together with buildings and household furnishings, by grant deed to Mr. and Mrs.
Crumbaker in 1964. In exchange therefor, Mr. and Mrs. Crumbaker executed a mortgage in
favor of the Kellys. The property was subsequently quitclaimed to Rosemary Dresser in
November of 1964, who assumed the mortgage and took possession of the property until
April of 1965. Thereafter, the monthly payment of $75 due on the mortgage was not paid.
Although the Kellys initiated legal action to foreclose on the mortgage, they did not pursue
it to a final judgment. The statute of limitations ran on that cause of action and the Kellys
made no other demands for payment.
In May of 1966, the Kellys found the property vacant and padlocked the house. In 1967,
the Kellys placed their own tenant on the premises where she has remained to the present
time. Rental payments of $75 per month have been made by the tenant to the Kellys. The
appellants discovered this arrangement in 1968 but did not object until the institution of this
action in 1977.
All of the taxes on the property have been paid by the Kellys with the exception of the
1974-1975 tax year. In that year, Mrs. Crumbaker paid the taxes although Mr. Kelly tendered
payment at a later, though still timely, date.
Appellants contend: (1) a mortgagee in possession cannot hold real property adversely to
the mortgagor without a clear repudiation of the mortgage and that such repudiation was not
shown by the evidence in this case, (2) chapter 40 of the Nevada Revised Statutes rather than
chapter 11 controls in this action, and (3) tender of taxes does not satisfy the requirements of
NRS 40.090 regarding payment of taxes.
[Headnotes 1, 2]
1. Foreclosure and sale are not the only means whereby a mortgagee can acquire title to
the mortgaged property. Borden v. Clow, 21 Nev. 275, 30 P. 821 (1892). Where the
mortgagee repudiates the mortgage relationship and such repudiation is brought to the actual
notice of the mortgagor, his possession of the property will be characterized as adverse. Cory
v. Santa Ynez Land & Imp. Co., 91 P. 647 (Cal. 1907). A repudiation is effected when the
mortgagee by various acts of dominion over the property, asserts an absolute right to the
property independent of the mortgage. Baldwin Co. v. Mason, 52 So.2d 668 (Fla. 1951); Cory
v. Santa Ynez Land & Imp. Co., supra; Borden v. Clow, supra.
[Headnote 3]
In the instant case, the mortgagees secured the property against the mortgagors' entrance in
1966. They placed their own tenant in the house and have collected rent from her with neither
an acknowledgment of nor an accounting to the mortgagors. They have likewise paid taxes on
the property. The mortgagors had actual notice of the morgagees' actions and did not object.
As such acts evidence a claim inconsistent with the rights of the mortgagors, the mortgagees'
possession of the property was permissibly deemed adverse by the district court.
[Headnote 4]
2. NRS 11.150
1
is the general adverse possession statute, allowing a party who has
adversely possessed property for five years and who has paid or tendered all taxes assessed on
such property for the same period, to assert his possession against a known claimant. NRS
40.090
2
allows a party who has adversely possessed property for 15 years and paid the taxes
thereon for 5 years preceding the action, to assert his possession against all claimants, known
and unknown.
____________________

1
NRS 11.150 states: In no case shall adverse possession be considered established unless it be shown, in
addition to the requirements of NRS 11.120 or 11.140, that the land has been occupied and claimed for the
period of 5 years, continuously, and that the party or persons, their predecessors and grantors have paid all taxes,
state, county and municipal, which may have been levied and assessed against the land for the period mentioned,
or have tendered payment thereof

2
NRS 40.090 provides in pertinent part: 1. An action may be brought to determine the adverse claims to and
clouds upon title to real property by a person who, by himself, or by himself and his predecessors in interest, has
been in the actual, exclusive and adverse possession of such property continuously for more than 15 years prior
to the filing of the complaint, claiming to own the same in fee, or by any other freehold estate, against the whole
world, and who has by himself or his predecessors in interest, paid all taxes of every kind levied or assessed and
due against the property during the period of 5 years next preceding the filing of the complaint, . . . . (Emphasis
added.)
claimants, known and unknown. The five-year requirement of NRS 11.150 does not conflict
with the 15-year requirement of NRS 40.090 as NRS 40.120 states: The remedy provided in
NRS 40.090, 40.100 and 40.110 shall be construed as cumulative and not exclusive of any
other remedy, form or right of action or proceeding now allowed by law. Therefore, the trial
court did not err in applying NRS 11.150 to this action.
[Headnote 5]
3. NRS 11.150 allows a party to assert his adverse possession where he has either paid or
tendered payment of all taxes assessed against the property. Respondents have satisfied this
requirement. The paid all taxes phrase embodied in NRS 40.090 is not relevant to this case.
____________
95 Nev. 746, 746 (1979) Levi v. State
JOHN NEIL LEVI, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11384
November 9, 1979 602 P.2d 189
Appeal from judgment of conviction for child abuse with serious bodily harm; Eighth
The Supreme Court, Thompson, J., held that: (1) evidence of cosmetic disfigurement was
sufficient for the jury on the element of substantial bodily harm; (2) prior inconsistent
statements made by the alleged victim and his sister were admissible for all purposes; and (3)
trial court was not obliged, on its own motion, to instruct jury to disregard admissions made
by defendant should they believe the children's prior statements, which were repudiated at
trial.
Affirmed.
Mowbray, C. J., dissented.
Jeffrey D. Sobel, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, H. Douglas Clark, and James N. Tufteland, Deputy
District Attorneys, Clark County, for Respondent.
95 Nev. 746, 747 (1979) Levi v. State
1. Criminal Law.
Serious permanent disfigurement, within statutory definition of substantial bodily harm for purposes of
criminal penalty, includes cosmetic disfigurement as well as an injury that is functionally disabling. NRS
193.015, 200.508, subd. 2.
2. Infants.
In light of evidence of cosmetic disfigurement suffered by child as a result of first and second-degree
burns to boy's stomach and hand allegedly inflicted by defendant, his father, evidence was sufficient for
jury on the substantial bodily harm element of the felony offense of child abuse resulting in substantial
bodily harm. NRS 193.015, 200.508, subd. 2.
3. Criminal Law.
Where alleged victim and his sister were under oath and subject to cross-examination by defense counsel
at preliminary hearing and at trial in child abuse prosecution, prior inconsistent statements, repudiated at
trial, that defendant had lit piece of paper on fire and held son over the flames were admissible for all
purposes, and such use did not violate confrontation clause. NRS 57.035, subd. 2(d); U.S.C.A.Const.
Amend. 6.
4. Criminal Law.
In child abuse case in which defendant had admitted to police officers that he burned his son, trial judge
was not obliged, on his own motion, to instruct the jury to disregard such admissions should they disbelieve
children's prior statements, repudiated at trial, to the effect that father had lit piece of paper on fire and held
son over the flames.
OPINION
A jury convicted Levi of child abuse resulting in substantial bodily harm.
1
The legislature
has defined substantial bodily harm for the purposes of criminal penalty as meaning (1)
bodily injury which creates a substantial risk of death, or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily member or
organ, or (2) prolonged physical pain. NRS 193.015.
[Headnotes 1, 2]
In this case evidence was received from which the jury properly could conclude that Levi
willfully held his eight-year-old son over burning papers causing first and second degree
burns to the boy's stomach and hand. The primary claim of error is that the state failed to
prove that the burns constituted substantial bodily harm. Accordingly, we are asked to modify
the felony conviction to that of a gross misdemeanor. Other errors also are assigned and will
be considered.
____________________

1
NRS 200.508(2): A person who violates any provision of subsection 1, if substantial bodily or mental harm
results to the child, shall be punished by imprisonment in the state prison for not less than 1 year nor more than
20 years.
95 Nev. 746, 748 (1979) Levi v. State
1. Although it is true that the burns to the boy's stomach and hand did not create a
substantial risk of death, protracted loss or impairment of a bodily member or organ, or
prolonged physical pain, there was sufficient evidence offered to enable the jury to find a
serious permanent disfigurement. Indeed, a doctor testified that the disfigurement was
permanent, and could be cosmetically serious, if not functionally so. In our view, the phrase,
serious permanent disfigurement, includes cosmetic disfigurement as well as an injury that
is functionally disabling. The child did not want the jurors to see his burned stomach because
it was different. The damage apparently was serious in his mind. He was permanently scarred
because of pigment loss. It was the jury's province to determine whether the harm was serious
as well as permanent. Gibson v. State, 95 Nev. 99, 590 P.2d 158 (1979). We perceive no error
in its determination.
[Headnote 3]
2. During trial, Darin, the eight-year-old son who was burned, and Michele, his
nine-year-old sister, repudiated statements each had given at the preliminary examination to
the effect that their father had lit a piece of paper in the kitchen sink and held Darin over the
flames. Such prior inconsistent statements were received as substantive evidence pursuant to
NRS 51.035(2)(d).
2
It is asserted that the reception of such statements as evidence of the
truth of the matters stated thereinas opposed to admission for impeachment onlyis not
constitutionally adequate.
The same contention was tendered to the United States Supreme Court and, by that Court,
rejected. California v. Green, 399 U.S. 149 (1970). The California Supreme Court had ruled
that the confrontation clause precluded the introduction at trial of prior inconsistent
statements made at a preliminary hearing, under oath by an adequately counseled defendant.
People v. Green, 451 P.2d 422 (Cal. 1969). In reversing that determination the High Court
held that the confrontation clause is not viola;ed as long as the declarant is testifying as a
witness at trial and is subject to full cross-examination. Moreover, the Court observed that
where the prior statement was made under circumstances not significantly different from an
actual trial, the statement is admissible wholly apart from the question whether the
defendant had an effective opportunity for confrontation at the subsequent trial.
____________________

2
NRS 51.035(2)(d) provides:
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 a grand jury, . . . .
95 Nev. 746, 749 (1979) Levi v. State
actual trial, the statement is admissible wholly apart from the question whether the defendant
had an effective opportunity for confrontation at the subsequent trial. We followed this
observation in Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979).
In this case the children were under oath and subject to cross-examination by defendant's
counsel at the preliminary hearing and at trial. The prior inconsistent statements were
admissible for all purposes pursuant to NRS 51.035.
[Headnote 4]
3. Levi admitted to police officers that he had burned his son. Because such admissions
were made, he now contends that the trial judge, on his own motion, was obliged to instruct
the jury to disregard such admissions should they disbelieve the children's prior statements.
Only in exceptional circumstances need the trial court, sua sponte, give such a limiting
instruction. For example, in Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971), the state
conceded that a cautionary instruction concerning an addict-informer's testimony was central
to the cause, and we found prejudice where no such instruction was given. We do not
consider the instruction which Levi now insists should have been given to fall within the class
that must be given sua sponte by the court. Gebert v. State, 85 Nev. 331, 454 P.2d 897
(1969). Indeed, supporting authority for his contention is not submitted.
Affirmed.
Gunderson, Manoukian, and Batjer, JJ., concur.
The majority, by invoking the principle of substantial evidence, places its imprimatur
upon what I can characterize only as a gross miscarriage of justice. In its quest for a quantum
of evidence to support the jury's finding that appellant had committed child abuse resulting in
serious permanent disfigurement, the majority loses sight of one of the most basic concepts
of due process of the law, that a person may not be punished without evidence to support
each and every element of the crime with which he is charged. Shuttlesworth v. City of
Birmingham, 382 U.S. 87, 94-95 (1965); Thompson v. City of Louisville, 362 U.S. 199, 204
and 206 (1960).
In affirming the instant jury verdict, the majority declares that the record-contains
substantial evidence supporting a finding of permanent disfigurement and that, based upon
this evidence, the jury could reasonably conclude that the permanent disfigurement was
serious.
95 Nev. 746, 750 (1979) Levi v. State
disfigurement was serious. That substantial evidence, according to the majority, consisted of
a doctor's testimony that the disfigurement was permanent. Ante at 748. The record,
however, belies the existence of any such statement or of any other evidence of permanent
disfigurement. And, after all, it is the record with which we are concerned on appeal. See,
e.g., A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); State v. Ah Mook, 12 Nev. 369
(1877). To the record I now turn.
At trial, the State called Dr. Grillot, one of the victim's examining doctors, and apparently
the doctor referred to by the majority as a medical expert. Dr. Grillot testified that he had
examined the child's burns on one occasion a few days after the burning incident and, at that
time, he had not formed any opinion as to whether the child had incurred any permanent
disfigurement. Moreover, Dr. Grillot added that even if he were to examine the child's burns
at trial, he would not be able to give an opinion as to the permanent nature of any injury.
Though the doctor did note that black children scar more readily than other children, because
of possible pigment loss, he emphasized that he had not noticed any damage to the victim's
pigment. No evidence was offered at trial to indicate or to imply that the child had, in fact,
suffered a pigment loss or had incurred permanent scarring, discoloration, or disfigurement of
any kind. Nor is there any indication, contrary to respondent's contention, that the jury was
presented with a view of the child's stomach.
1
The majority, however, reads Dr. Grillot's
exculpatory testimony as a statement that the child was permanently disfigured. With this
conclusion, I cannot agree.
While I would agree with the majority that it is the jury's function to determine whether
any permanent disfigurement is serious, Gibson v. State, 95 Nev. 99, 590 P.2d 158 (1979), I
note, as well, that the jury must be presented with some evidence upon which it can base its
determination, Shuttlesworth v. City of Birmingham, supra; Thompson v. City of Louisville,
supra. While I recognize that it is not the function of this court, on appeal, to reassess the
credibility of the witnesses or the weight to be given to the evidence, Wheeler v. State, 91
Nev. 119, 531 P.2d 1358 (1975), I add, with additional emphasis, that it is not this court's
function to create such evidence, ex nihilo, when no such evidence appears in the record, A
Minor v. State, supra; State v. Ah Mook, supra. Since the record before us does not contain
one shred of evidence to support a finding of serious, permanent disfigurement, due process
demands that the instant jury verdict be reversed.
____________________

1
The record reflects that both the jurors and the prosecutor informed the trial judge that they were unable to
see the boy's stomach.
95 Nev. 746, 751 (1979) Levi v. State
In addition, I cannot agree with the majority's holding that a trial court need not give, on its
own motion, a cautionary instruction regarding a defendant's oral admissions to a third party.
Appellant calls our attention to People v. Beagle, 492 P.2d 1 (Cal. 1972), which explicitly
holds that such an instruction must be given sua sponte by the trial court. 492 P.2d at 9-10.
The overwhelming majority of jurisdictions which have considered this issue is in accord. See
People v. Bemis, 202 P.2d 82 (Cal. 1949) (and cases cited therein); Stork v. State, 559 P.2d
99 (Alaska 1977); State v. McGilbry, 392 P.2d 297 (Ariz. 1964); cf. State v. Bouse, 264 P.2d
800 (Or. 1953) (holding that it was error for the trial judge not to instruct, sua sponte, on the
reasons behind the cautionary instruction).
The rationale underlying these decisions is simply that verbal admissions should be
received by a jury with caution and subjected to careful scrutiny since no other class of
evidence is more subject to error or abuse:
Witnesses having the best motives are generally unable to state the exact language of an
admission, and are liable, by the omission or the changing of words, to convey a false
impression of the language used. No other class of testimony affords such temptations
or opportunities for unscrupulous witnesses to torture the facts or commit open perjury,
as it is often impossible to contradict their testimony at all, or at least by any other
witness than the party himself.
People v. Bemis, 202 P.2d at 84. I can see no reason why this rationale does not apply to the
damaging admissions, virtually immune from challenge, offered against appellant in the
present case.
The State's case against appellant was not a strong one. The corpus delicti was established
by the arguably inconsistent prior statements made by two of appellant's children. This
insubstantial corpus was buttressed by appellant's third party admissions. Had the jury been
properly instructed to view those admissions with caution, a more favorable verdict to
appellant might very likely have been returned. See, e.g., Stork v. State, 559 P.2d at 103;
People v. Lopez, 120 Cal.Rptr. 562 (Ct.App. 1975).
Since I believe that the jury was not properly instructed in the present case and that the
judgment of the district court, unsupported by any evidence, deprived appellant of due
process, I would reverse the judgment and remand the case for a new trial. Accordingly, I
respectfully dissent.
____________
95 Nev. 752, 752 (1979) Medical Multiphasic v. Linnecke
MEDICAL MULTIPHASIC TESTING, INC., Formerly Health Evaluation Centers
Incorporated, a Nevada Corporation, Appellant, v. LILLIAN B. LINNECKE, Executrix of the
ESTATE OF HARRY F. LINNECKE, and LILLIAN B. LINNECKE, Individually,
Respondents.
No. 9792
November 9, 1979 602 P.2d 182
Appeal from judgment notwithstanding the verdict; Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Landlord commenced an unlawful detainer action for non-payment of rent, and the tenant
denied liability and counter-claimed for damages for constructive eviction. After the jury
returned a verdict in favor of defendant, the district court entered judgment for plaintiff
notwithstanding the verdict, and defendant appealed. The Supreme Court, Thompson, J., held
that: (1) neither the first unlawful detainer action instituted by landlord, nor her refusal to
defer collection of accrued rent until the end of the lease term, constituted a constructive
eviction, and (2) a tenant may not claim a constructive eviction when it continues in
possession after the landlord's commission of acts which the tenant contends would justify
abandonment of the premises; in such circumstances, the tenant waives any claim for
damages resulting from an alleged constructive eviction.
Affirmed.
Leonard T. Howard, Sr., Chartered, of Reno, for Appellant.
Petersen & Petersen, of Reno, for Respondents.
A constructive eviction results from an active interference with, or disturbance of, the tenant's possession
by act of the landlord because of which the whole, or a substantial part, of the premises is rendered unfit for
occupancy for the purpose for which it was demised; moreover, the tenant must elect to treat such
interference as an eviction and surrender the premises within a reasonable time.
2. Landlord and Tenant
There can be no constructive eviction if the tenant continues in possession even though disturbed in the
beneficial enjoyment of the premises.
Neither the first unlawful detainer action instituted by landlord, nor her refusal to defer collection of
accrued rent until the end of the lease term, constituted a constructive eviction.
A landlord is not guilty of constructive eviction by commencing an unlawful detainer action against a
tenant who has not paid rent as agreed.
While the court, on conflicting evidence in first unlawful detainer action, found that the landlord had
waived timely payment of rent and that as a result there was no unlawful detainer, this was not to be treated
as a nontrespassory intrusion upon the tenant's right to possession when the tenant did not so treat it and did
not surrender possession within a reasonable time thereafter.
A tenant may not claim a constructive eviction when it continues in possession after the landlord's
commission of acts which the tenant contends would justify abandonment of the premises; in such
circumstances, the tenant waives any claim for damages resulting from an alleged constructive eviction.
Where the reason a sublease was not consummated was the tenant's inability to pay rent then accrued,
such default could not be charged to the landlord.
OPINION
Linnecke commenced an unlawful detainer action for non-payment of rent against Medical
Multiphasic Testing, Inc. (MMTI), in which MMTI denied its liability for rent and
counterclaimed for damages for a constructive eviction.
Trial occurred before a jury. When all proofs had been offered Linnecke moved for a
directed verdict on the ground that no defense to the claim for unpaid rent had been shown,
and that there was no constructive eviction as a matter of law. The trial court doubted whether
a constructive eviction had been shown, but preferred to submit all issues to the jury reserving
power to correct a mistake should the jury make one. Consequently, it denied the motion for a
directed verdict.
The jury returned its verdict in favor of MMTI, and awarded MMTI damages of $27,000
upon its counterclaim. Judgment was entered on the verdict. Thereafter, Linnecke moved for
judgment notwithstanding the verdict. That motion was granted and a judgment in the sum of
$14,200 for rent due upon surrender of the premises less the last month's rent paid in advance
was entered for Linnecke. In its decision the court observed that there was no constructive
eviction of MMTI by Linnecke.
Linnecke. This appeal is from the judgment n.o.v. For the reasons hereafter expressed, we
affirm.
In March 1970 Linnecke leased a building to MMTI for a term of 10 years at a rental of
$1,100 per month for the first 5 years and $1,200 per month for the second 5 years. The term
of the lease commenced May 15, 1970. Rent was paid, usually late, through June 1971. Rent
due July 15, 1971, was not paid. Therefore, on July 16 Linnecke gave appropriate notice to
pay rent or quit the premises. On the last day for the payment of rent pursuant to the notice,
MMTI requested a one-day extension of time. It is disputed whether Linnecke extended time
until noon the following day or for the full day. In any event, during the late afternoon of the
next day rent was tendered to an employee of Linnecke who refused to accept the tender
because he had not been authorized to do so. A subsequent tender by counsel for MMTI to
counsel for Linnecke also was refused. On July 28, 1971, Linnecke filed an unlawful detainer
action.
That action was decided in February 1972, the court ruling that Linnecke had waived
timely payment of rent with the result that there was no unlawful detainer. No appeal was
taken. While that action was pending, Linnecke, in January 1972, caused another notice to
pay rent or quit to be served upon MMTI demanding rent due from July 1971 through January
1972. The present action was commenced September 8, 1972, to recover rent due.
The lease gave MMTI the right to sublet. The tenant had insisted upon such a provision
since it would have no use for the building if its medical testing program proved
unsuccessful. The tenant did cease doing business about nine and one half months after the
lease commenced and, therefore, proceeded to search for a subtenant. In July and August
1972, MMTI negotiated with Economic Opportunity Board, a prospective subtenant. The
Board was willing to pay the sum of $13,600 covering the full subrental period on the
condition that Linnecke would forego her demand for accrued rent until the end of the lease
term. She refused to do so.
In asking this court to set aside the judgment n.o.v. and reinstate the judgment entered
upon jury verdict, the appellant contends that substantial evidence was introduced to establish
all essential elements of a constructive eviction as alleged in its counterclaim. We turn to
discuss this central issue.
[Headnotes 1, 2]
1. The district court, in ruling that there was no constructive eviction as a matter of law,
relied upon our opinion in Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963). We there
noted that a constructive eviction results from an active interference with, or disturbance
of, the tenant's possession by the act of the landlord because of which the whole, or a
substantial part of the premises is rendered unfit for occupancy for the purpose for which
it was demised.
noted that a constructive eviction results from an active interference with, or disturbance of,
the tenant's possession by the act of the landlord because of which the whole, or a substantial
part of the premises is rendered unfit for occupancy for the purpose for which it was demised.
Moreover, the tenant must elect to treat such interference as an eviction and surrender the
premises within a reasonable time. There can be no constructive eviction if the tenant
continues in possession even though disturbed in the beneficial enjoyment of the premises.
[Headnotes 3-5]
When the mentioned principles are applied to the case at hand, it is clear that the district
judge was compelled to enter judgment n.o.v. The assertion that the first unlawful detainer
action instituted by Linnecke together with her refusal to defer collection of accrued rent until
the end of the lease term, constituted a constructive eviction, is specious. A landlord is not
guilty of constructive eviction by commencing an unlawful detainer action against a tenant
who has not paid rent as agreed. Rent had not been paid when due. The court, on conflicting
evidence, found that the landlord had waived timely payment and that as a result there was no
unlawful detainer. Surely, this is not to be treated as a nontrespassory intrusion upon the
tenant's right to possession when the tenant did not so that it and did not surrender possession
within a reasonable time thereafter. Baker v. Simonds, supra.
[Headnote 6]
The spark which ignited this controversy was the inability of MMTI to pay the rent it had
agreed to pay. The failure of MMTI to pay rent does not form the basis for a damage claim
against Mrs. Linnecke. Neither may a tenant claim a constructive eviction when it continues
in possession after the landlord's commission of acts which the tenant contends would justify
abandonment of the premises. In such circumstances the tenant waives any claim for damages
resulting from an alleged constructive eviction. Here, MMTI continued in possession for
about one year and three months after the first unlawful detainer action was commenced,
which action forms the main predicate for the tenant's claim of a constructive eviction.
[Headnote 7]
It is evident that the reason a sublease with Economic Opportunity Board was not
consummated was the inability of MMTI to pay rent then accrued. That default may not be
charged to Mrs. Linnecke.
2. The appellant asserts that the lower court erred when it awarded Linnecke the sum of
$14,200 for unpaid rent. The amount of unpaid rent is not disputed. The appellant simply
contends that it is not obliged to pay that sum because it was constructively evicted from the
premises. Since we agree with the district court that there was no constructive eviction as a
matter of law, this claim of error fails.
Affirmed.
Mowbray, C. J., and Manoukian and Batjer, JJ., concur.
This appeal involves two unlawful detainer actions instituted by respondent Lillian B.
Linnecke against appellant Medical Multiphasic Testing, Inc. (MMTI). Pursuant to a ten-year
lease agreement effective March 15, 1970, appellant MMTI, as tenant, rented certain business
property in Reno from respondent Linnecke, as landlord. The lease expressly granted
appellant an absolute right to sublet the premises. Appellant MMTI insisted on that provision
since the corporation would have no use for the building if its contemplated medical testing
program proved unsuccessful. MMTI borrowed approximately $45,000, which it invested in
remodeling the premises, and procured a $25,000 loan for operating expenses.
In January or February, 1971, MMTI ceased doing business and began looking for a
subtenant. The lease was then the company's only asset. Because of the premises' increased
value, due to improvements, the company expected to sublet at a substantial profit, which it
would use to repay its creditors. Although it had not yet found a subtenant, MMTI met its
rental obligation to respondent Linnecke through June, 1971, by obtaining stockholder loans.
When MMTI failed to pay the rent due in July, 1971, respondent Linnecke served MMTI
notice either to pay the rent due or to vacate the premises within ten days. On the last day
prescribed by the notice, appellant, through its agent Leonard T. Howard, telephoned Mrs.
Linnecke and indicated he would deliver the rent that day if necessary, but if she would agree
he would deliver it the following day. Respondent Linnecke agreed to payment on the next
day. The following afternoon, Mr. Howard appeared at respondent Linnecke's office and
tendered a check for the rental payment pursuant to instructions from Mrs. Linnecke, who had
absented herself, her office manager refused the check. Mrs. Linnecke also later rejected a
subsequent tender by mail of the rental payment.
Respondent Linnecke then filed a complaint for unlawful detainer.
detainer. MMTI successfully defended this first suit. After trial in January, 1972, the court
decided there was no unlawful detainer and dismissed the complaint with prejudice.
1
Mrs.
Linnecke moved to amend the judgment and for a new trial, seeking judgment for $9,900, the
rent accrued since July 1971. The court ultimately denied her relief, holding it improper in an
unlawful detainer action to award past-due rent where there had been no unlawful detainer.
2
Mrs. Linnecke did not appeal and the appropriate period therefor expired July 9, 1972.
During the litigation period, MMTI failed to sublet the premises, although it retained a
realtor for that purpose. In response to Mrs. Linnecke's repeated demand for payment of all
rent accrued since July, 1971, MMTI denied liability, claiming Mrs. Linnecke's wrongful
initiation and maintenance of the unlawful detainer action clouded MMTI's title, preventing it
from subletting.
Sometime in July, 1972, MMTI negotiated with the Economic Opportunity Board, a
prospective subtenant. Although very much interested in subleasing the premises from
MMTI, upon advice of its attorney, the Board refused to execute a prepared agreement
because of unsettled technicalities of the court's decision.
3

In an effort to retain its only asset, appellant continued to negotiate with both Mrs.
Linnecke and the prospective subtenant. MMTI held special board-of-directors and
stockholders meetings on August 7, 1972, in which it decided that one last negotiation effort
should be made with Mrs. Linnecke and that, if unsuccessful, the company should surrender
possession of the premises and file an action for constructive eviction. On August 8, MMTI
officers contacted Mrs. Linnecke, who referred them to her attorney. The officers tendered
respondent's attorney a check from the prospective subtenant in the sum of $13,600, covering
the full subrental period, on condition that Mrs.
____________________

1
The court ruled MMTI defaulted in payment of rent but Mrs. Linnecke waived the default by agreeing to
allow the additional day for payment. The court found tender of payment was made as agreed upon and that Mrs.
Linnecke, without legal reason, refused to accept the rental payment. Therefore, contrary to an assertion in the
majority opinion, Mrs. Linnecke's wrongful refusal to accept belated payment, after she had induced it, was the
spark which ignited this controversy. This fact was determined by the district court, and it therefore is no longer
subject to any cognizable dispute.

2
In so holding, the court did not address the merits of whether or not MMTI owed rent accrued during
litigation.

3
Apparently the Board's attorney was referring to the dispute regarding MMTI's liability for past-due rent.
condition that Mrs. Linnecke would forego her demand for rent accrued during litigation until
the end of the lease term. Mrs. Linnecke refused.
On September 8, 1972, MMTI surrendered possession of the premises to respondent
Linnecke who, that same day, initiated this second unlawful detainer action. MMTI answered,
and counterclaimed for damages for constructive eviction. After the jury returned a verdict in
favor of appellant on its counter-claim, Mrs. Linnecke made a motion for judgment
notwithstanding the verdict, or alternatively, for new trial. The court granted j.n.o.v.,
concluding as a matter of law that MMTI waived any right to claim damages for constructive
eviction when it chose to remain in possession and defend the initial unlawful detainer action.
Accordingly, the court ordered judgment entered in favor of Mrs. Linnecke for the rent
accrued until the time of surrender.
4
The court further ordered that if the j.n.o.v. is reversed,
respondents shall be entitled to a new trial on the issue of damages. MMTI appeals,
claiming the court erred in deciding as a matter of law there could be no constructive
eviction. I agree.
1. In its decision, relying primarily on Baker v. Simonds, 79 Nev. 434, 386 P.2d 86
(1963), the trial court held that by electing to remain in possession of the premises while
defending the initial unlawful detainer action, MMTI waived any right to claim damages for
constructive eviction. In Baker, this court had stated:
[T]he relevant inquiries concern the nature of the tenancy . . ., an evaluation of the
landlord's nontrespassory intrusion upon the tenant's possession, and whether
possession was abandoned within a reasonable time after the occurrence of the acts
complained about; and, of course, the extent of damage once the foundation for liability
is found to exist.
79 Nev. at 438, 386 P.2d at 88. However, in Polk v. Armstrong, 91 Nev. 557, 540 P.2d 96
(1975), after distinguishing the facts of the Baker case, this court had later stated:
We believe that Landlord's failure to repair the wall to conform to the code
amounted to a constructive eviction, and the fact that Tenant's equipment remained in
the premises should not bar him from recovery for damages resulting from his eviction.
Additionally, Landlord in early 1971 changed the locks on the building and then
occupied the building to make the repairs demanded by the City, which acts
constituted an actual eviction.
____________________

4
The exact figure awarded was $14,200, representing the amount of rent due at the time of surrender of the
premises less the last month's rent which appellant paid in advance at the beginning of the lease term.
early 1971 changed the locks on the building and then occupied the building to make
the repairs demanded by the City, which acts constituted an actual eviction. Only then
did Tenant commence this action.
91 Nev. at 562, 540 P.2d at 99.
MMTI argues the waiver rule should not apply in this case because Mrs. Linnecke's
intrusion was continuing and cumulative, and thus the jury could have found MMTI
abandoned the premises within a reasonable time. This argument is persuasive. The first act
of alleged wrongful interference was the initial unlawful detainer action, improperly placing
the legal rights of any prospective subtenant in doubt. The rights of MMTI under the first
action were not finally determined until July 9, 1972, the date when the appeal time ran on
the judgment rendered in MMTI's favor. Then, Mrs. Linnecke continued to frustrate MMTI's
effort to obtain a subtenant by refusing to consent to the proposed sublease to EOB, and
refusing to accept a check for six months' rent from EOB. On September 8, 1972, MMTI
returned the keys to respondent, intending to file a claim for damages for constructive
eviction. On the same day, the instant action was commenced by respondent.
I think the jury could properly determine that these acts amounted to a continuing
wrongful intrusion by the landlord, and that thus, when MMTI gave up possession on
September 8, 1972, it did so within a reasonable time. At that point, MMTI inferably no
longer had reason to believe any sublease of the property would be acceptable to Mrs.
Linnecke. Cf. In re Consumers World, 160 F.Supp.238 (U.S.D.C. Mass. 1958).
2. The respondent contends, however, that MMTI remained liable for the rent so long as
its possession of the leased premises continued, citing the general rule stated in Volpert v.
Papagna, 83 Nev. 429, 443 P.2d 533 (1967); Schultz v. Provenzano, 69 Nev. 324, 251 P.2d
294 (1952); Automobile Supply Co. v. Scene-in-Action Corp., 172 N.E. 35 (111. 1930). This
rule has been applied, even where the landlord's interference was continuing. See Petroleum
Collections Inc. v. Swords, 122 Cal.Rptr. 114 (Cal.App. 1975). In regard to respondent's
contention, I think the principles stated at 6 Williston, Contracts (3d ed. 1962) 892 at
650-651, concerning equitable relief, are applicable:
In the case of material breaches of a lease by a lessor, where the injury is sufficiently
serious, equitable relief by way of injunction or specific performance may be granted.
We perceive no reason why equitable relief in appropriate circumstances, should not
be given by way of {1) a declaration . . . that the wrongful acts of the lessor justify
treating those acts as a constructive eviction, {2) appropriate consequential relief,
and {3) assessment of damages. . . .
circumstances, should not be given by way of (1) a declaration . . . that the wrongful
acts of the lessor justify treating those acts as a constructive eviction, (2) appropriate
consequential relief, and (3) assessment of damages. . . . Such relief is more nearly
adequate than the incomplete and hazardous remedy at law which requires that the
lessee (a) determine at its peril that the circumstances amount to a constructive eviction,
and (b) vacate the demised premises, possibly at some expense, while remaining
subject to the risk that a court may decide that the lessor's breaches do not go the
essence of the lessor's obligation. (Footnotes omitted; emphasis added.)
5

Here, we deal with a business lease. MMTI's right to sublease would be the sole asset of
the corporation if it ceased doing business during the ten-year lease term. I conclude that
under the facts of this case, the stated contract principles apply. Where, as here, the business
lessee is substantially deprived of the beneficial use of the premises by the lessor,s wrongful
acts, the lessee should be relieved of his obligation to pay rent under the lease.
Under the law as given in the judge's instructions to the jury, the jury could reasonably find
facts establishing that MMTI had proved a prima facie case; that respondent, by her wrongful
and continuing acts, interfered with and prevented MMTI's sublease of the premises, thereby
preventing MMTI from using and enjoying the property in the fashion contemplated by the
parties; and that these acts rendered the sublease provision valueless to MMTI, relieving
MMTI of any obligation to pay rent.
For this court to uphold the court's order granting judgment n.o.v., respondent had to
demonstrate that MMTI failed to prove a claim for relief as a matter of law. This has not been
done.
The trial court also granted a new trial on the issue of damages in the event of reversal on
the j.n.o.v. Entry of this order was also error. As this court stated in Fox v. Cusick, 91 Nev.
218, 533 P.2d 466 (1975) at 221, the fact that, in the view of the trial judge, the weight of the
evidence may have been against the verdict returned does not invest the judge with authority
to order that the case be tried again. Respondent must show that if the jurors had properly
applied the instructions of the court, it would have been impossible to reach the verdict the
jury reached.
____________________

5
Cf. Medico-Dental Bldg. Co. v. Horton & Converse, 132 P.2d 457 (Cal. 1942) (covenants not to compete
and to pay rent were dependent; the exclusive right to conduct business was vital to the lessee's successful
operation). See 3 Witkin, Summary of California Law (8 ed. 1973), 423; 2 Powell, Real Property (Rev. ed.
1977), 221 [1] n.11, p. 184.
it would have been impossible to reach the verdict the jury reached. Eikelberger v. Tolotti, 94
Nev. 58, 574 P.2d 585 (1978); Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969).
Here, evidence established that MMTI secured a subtenant who was willing and able to
pay MMTI the sum of $13,600, covering a six-month term. The right to sublease was
absolute. The rental to be paid to respondent under the lease with respondents was $1,100 per
month until May 1975, at which point rental increased to $1,200 per month. The court
instructed the jury that the measure of damages was the amount of the sublease rental from
constructive eviction to time of trial, less monthly rental owed respondent, less the last
month's rent.
The profit to MMTI on the EOB sublease would have been $14,000 per year until May
1975, and $12,800 thereafter. The jury awarded damages in the amount of $27,000 to MMTI,
i.e. a sum approximately equal to two years' profit on the EOB sublease. The jury, following
the court's instructions, could reasonably have found this figure was due to MMTI as
damages.
We should therefore reverse and remand with directions to the trial court to enter judgment
for defendant MMTI on its counterclaim in the amount of $27,000; and we should instruct the
court not to proceed to a new trial on the question of damages.
____________
95 Nev. 761, 761 (1979) Dye v. Dye
FERN ROSE DYE, a/k/a FERN ROSE SCHUBERT, Appel-
lant, v. JAMES WILLIAM DYE, Respondent.
No. 10232
November 9, 1979 602 P.2d 182
Appeal from dismissal of civil action, Eighth Judicial District Court, Clark County; Keith
C. Hayes, Judge.
Ex-wife appealed from an order of the district court dismissing her action to recover
accrued child support payments. The Supreme Court held that an earlier refusal of the court to
grant a post-divorce decree motion to reduce child support arrearages to judgment did not bar
the instant action.
Reversed.
Stanley W. Pierce, Las Vegas, for Appellant.
95 Nev. 761, 762 (1979) Dye v. Dye
Cohen and Terry, Ltd., Las Vegas, for Respondent.
Divorce.
An earlier refusal of the court to grant a post-divorce decree motion to reduce child support arrearages to
judgment did not bar the instant action to recover accrued child support payments.
OPINION
Per Curiam:
The district court dismissed an action to recover child support payments which had
accrued under a divorce decree entered January 20, 1964. The dismissal was based on the
court's belief that an earlier refusal of the court to grant a post-divorce decree motion to
reduce child support arrearages to judgment barred the instant action. This was error. Brown
v. Vonsild, 91 Nev. 646, 541 P.2d 528 (1975); Folks v. Folks, 77 Nev. 45, 359 P.2d 92
(1961).
We reverse and remand for trial upon the issues raised by the pleadings.
____________
95 Nev. 762, 762 (1979) LaFon v. State
DAVID LaFON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11805
November 13, 1979 601 P.2d 1201
Appeal from judgment of conviction, First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Jaquette & Kilpatrick, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Patrick B. Walsh, Substitute Prosecutor, Carson
OPINION
Per Curiam:
Appellant was convicted of attempted escape from prison (NRS 212.090). The contentions
he raises in this appeal are not opposed by respondent. Instead, respondent concedes that the
district judge committed reversible error. Under these circumstances, we reverse the
judgment and remand the case to the district court for a new trial. Cf. NRAP 31(c).
____________
95 Nev. 763, 763 (1979) Davies v. Butler
JOHN T. DAVIES; BILLIE J. DAVIES; and PAMELA J. DAVIES, Appellants, v.
CHARLES BUTLER; BRENT ESPIL; PAWL HOLLIS; GARY JOHNSON; JERRY
LAZARRI; STEVEN RAHBECK; MICHAEL SALLEE; EMERY AGEE SMITH;
THOMAS J. WOOLDRIDGE; THE SUNDOWNERS, an Unincorporated Association; et al.,
Respondents.
No. 9964
November 13, 1979 602 P.2d 605
Appeal from judgment upon a jury verdict in a wrongful death action, and from an order
denying a motion for a judgment notwithstanding the verdict or a new trial. Second Judicial
District Court, Washoe County; William N. Forman, Judge.
Parents brought wrongful death action against social drinking club and members to
recover damages for death of their son during his initiation to the club. The district court
entered judgment on jury verdict against the parents, and they appealed. The Supreme Court,
Mowbray, C. J., held that: (1) evidence warranted instruction regarding willful or wanton
misconduct of the club and its members; (2) instruction that [a] person may expressly or by
voluntarily participating in an activity consent to an act which would otherwise be a battery
was so incomplete as to be misleading and to be reversible error; and (3) evidence from
which jury could have concluded that at some point the son's further drinking was
involuntary and no longer deliberate drinking with knowledge of what was consumed
rendered prejudicial instruction that [i]ntoxication is not excuse for failure to act as
reasonably prudent person would act. . . . A person who is intoxicated or under the influence
of intoxicating liquor is held to the same standard of care as a sober person.
Batjer and Gunderson, JJ., dissented.
Peter Chase Neumann, Reno, for Appellants.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondents.
1. Negligence.
Mere negligence on part of plaintiff will not constitute defense to wanton or willful misconduct of
defendant. NRS 41.141, subd. 1.
2. Negligence.
Legislature, by including term gross negligence in comparative negligence statute, determined that
concept of gross negligence is comparable to and subject to comparison with ordinary negligence, but left
law unchanged with regard to conduct in which defendant's culpability more closely approaches that of one
who intentionally inflicts damage. NRS 41.141, subd. 1.
3. Clubs.
In parents' wrongful death action against social drinking club and members to recover damages for
death of their son during his initiation to the club, evidence warranted instruction regarding willful or
wanton misconduct of the club and its members. NRS 41.141, subd. 1.
4. Appeal and Error; Clubs.
In parents' wrongful death action against social drinking club and its members to recover damages for
death of their son during his initiation to the club wherein the parents abandoned claim of assault and
battery, instruction that [a] person may expressly or by voluntarily participating in an activity consent to
an act which would otherwise be a battery was so incomplete as to be misleading and to be reversibly
erroneous.
5. Negligence.
Where intoxication is involuntary, standard of conduct to which actor must conform in order not to be
negligent is that of a reasonable man under a like disability.
6. Appeal and Error; Clubs.
death of their son during his initiation to the club, evidence from which jury could have concluded that at
some point the son's further drinking was involuntary and no longer deliberate drinking with knowledge
of what was consumed rendered prejudicial instruction that [i]ntoxication is no excuse for failure to act as
reasonably prudent person would act. . . . A person who is intoxicated or under the influence of intoxicating
liquor is held to the same standard of care as a sober person.
7. Negligence.
In view of comparative negligence statute, social drinking club and its members could be liable for
death of initiate during his initiation to the club even though doctrine of last clear chance was rendered
inappropriate by such statute. NRS 41.141, subd. 1.
8. Clubs.
death of their son during his initiation to the club, it was proper to reject res ipsa loquitur instructions
requested by the parents where non-defendant observers were present at every point in events leading to
death of the son, and such observers were fully available to testify.
9. Intoxicating Liquors.
Violation of municipal ordinance prohibiting sale or furnishing of alcoholic beverages to any person
actually or apparently under the influence of alcohol was not negligence per se with respect to death of
initiate during invitation to social drinking club.
10. Evidence.
death of their son during his initiation to the club, trial court was correct in refusing to admit death
photograph and photographs parents offered showing other initiates and one of the
members taken at event which preceded "final ceremony."
photographs parents offered showing other initiates and one of the members taken at event which preceded
final ceremony. NRS 48.035, subd. 1.
11. Evidence.
death of their son during his initiation to the club, proof parents offered regarding certain unattributed
statements made regarding liquid on the son's clothes did not meet foundational requirements for
admission by silence, and thus were not admissible, where there was no showing that the remarks were
made to, or in hearing of, any defendant.
OPINION
Appellants John T. and Billie J. Davies brought this action against the Sundowners, a
voluntary unincorporated club, and nine of its members to recover damages for the death of
their son, John, who died during his initiation to the club.
1
The jury found in favor of the
respondents and against the Davies. The Davies have appealed from the judgment entered
thereon and from the district court's order denying their motion for a judgment
notwithstanding the verdict or a new trial. We reverse and remand for a new trial.
THE FACTS
In their wrongful death action, the Davies claimed that their son, John Davies, died of
alcoholic poisoning resulting from the negligence, gross negligence and wanton or reckless
conduct of the respondents, the Sundowners, a voluntary unincorporated association, and nine
of its individual members, during the club's initiation ceremonies in October, 1975. The
Davies charged that the defendants caused to be administered to their son excessive and
unreasonably dangerous amounts of alcohol, and that they subjected him to physical and
mental abuse which resulted in his death. The defendants, respondents herein, denied
wrongful conduct on their part. They claimed as affirmative defenses that John's negligence,
gross negligence and recklessness contributed to his death, and that he had assumed the risk
of what occurred.
The club known as the Sundowners is a social drinking club which sponsors various
activities in conjunction with extra-curricula events at the University of Nevada, Reno. The
club's treasury is funded by these activities, most of which are held in connection with its
initiation ceremonies.
____________________

1
The complaint also contained counts of assault and battery, which were abandoned by appellants, and a
complaint by the decedent's sister, Pamela J. Davies, for infliction of emotional distress, which is not a subject of
this appeal.
club's treasury is funded by these activities, most of which are held in connection with its
initiation ceremonies.
There was a general agreement among the witnesses at the trial as to the chronology of
events preceding Davies' death. On Thursday morning, October 9, 1975, Davies and four
others were informed of their selection as initiates. From that time until Saturday night,
initiates were directed to participate in morning, afternoon and evening activities, all of which
were focused on their ability to consume alcoholic beverages. By Saturday evening, one of
Davies' fellow initiates described himself as physically and mentally exhausted.
On Saturday evening, October 11, 1975, the initiates were instructed to report to the Little
Waldorf Saloon in Reno. At midnight, on a given signal by the club president, respondent
Lazarri, the initiates were taken outside to a parking lot and lined against a wall. There the
final ceremony commenced. The five initiates, including Davies, were given and
admonished to drink large quantities of alcohol, including 190 proof Everclear, within a 20
to 30 minute period. After they had consumed the liquor, the initiates were instructed to climb
into the open bed of a pickup truck. The three active members of the club who were
accompanying the initiates testified that they made two brief stops, then drove some 40 to 50
miles from Reno to a point near Pyramid Lake. There it was discovered that Davies had
ceased breathing. The respondents who were present and Davies' fellow initiates testified that
they attempted mouth to mouth resuscitation but without success. They then sped back to
Reno. Enroute they ran out of gas. An ambulance was called, and Davies eventually was
taken to the nearest hospital, where he was pronounced dead. A second initiate was also
admitted and treated for alcoholic poisoning at the hospital when it was discovered that he
had also become unconscious. He was, however, successfully revived with the assistance of
an artificial respirator.
The club's president during the relevant period, respondent Lazarri, testified at trial that all
members of the club, including each of the nine named respondents, had an equal voice in its
governance, including disposition of treasury funds, and that they each benefitted from its
fund-raising activities. According to Lazarri's recollection, each of the nine named
respondents was present at the meeting when the initiation ceremonies of October, 1975,
were planned.
Each respondent also testified that he either was at the planning meeting or knew of the
initiation, including the plan to have initiates drink on the final evening and then be
transported to the desert, but did not voice an objection. Each of the named respondents
admitted being present at some point in that part of the initiation known as the "final
ceremony" which preceded Davies' death.
named respondents admitted being present at some point in that part of the initiation known
as the final ceremony which preceded Davies' death. With the exception of respondent
Hollis, who arrived later to participate in transporting Davies and the other initiates to the
desert, all were present during the time that liquor was administered to Davies during the
final ceremony and either observed or actively participated in the event.
Several respondents mentioned that the possibility of danger had been discussed among
the members of the club, because an initiate the previous year had been taken to the hospital
to have his stomach pumped.
Testimony of witnesses regarding the treatment and condition of Davies during the final
ceremony varied. Davies' sister and two of her friends, who observed the event from a car
parked across the street, testified that they saw Davies struck in the stomach and on the head
by either respondent Sallee or respondent Johnson. Two of these witnesses testified that they
heard the decedent shout out Stop in protest.
Three other observers, unconnected with the decedent or the respondents, testified that
they saw Davies fall to the ground, where he was kicked and screamed at, and that they then
saw him picked up and held against the wall, while a bottle was forced into his mouth. Two
of these witnesses testified that Davies definitely appeared unable to stand on his own.
2
The
respondents, however, generally denied that Davies or any other initiate had been struck
or kicked, though they admitted that the initiates had been shoved or held up, and
verbally hazed, while bottles of liquor were held to their mouths.
____________________

2
Lynn Elmore testified in part:
Q Would you now describe exactly what you observed with respect to John Davies?
A Yes. I noticed they were holding the bottle in his mouth, and he was very wobbly at the time. And after a
few moments went by, he bent over as if he was going to get sick. I thought he was sick, and I thought he was
going to bend over and perhaps vomit.
Q Did he?
A No, he didn't.
Q Then
A Then, he stood back up with the help of these two men that were with him. And they placed the bottle
back in his mouth. And then, he fell to the ground, and they, the men, yelled at him and kicked him, told him to
get up and yelled obscenities and picked him back up and put him back against the wall again. And that is when I
left.
Diane Schwall testified in part:
Q Would you go on and tell us with respect to John Davies when he was down on the ground what else was
being done to him or towards him?
A The Sundowners that were kicking him were very angry with him for falling down. And they were kicking
him and slapping him.
Q Were they speaking any words to him?
A Yes, profanity, foul language. They were yelling.
Q How was the sound with respect to volume or loudness?
A Very loud.
The respondents, however, generally denied that Davies or any other initiate had been
struck or kicked, though they admitted that the initiates had been shoved or held up, and
verbally hazed, while bottles of liquor were held to their mouths.
____________________
Q So, are you describing the sounds that you heard as being yelling in a loud voice and obscenities?
A Yes.
Q By the Sundowners towards John Davies?
A Yes.
Q How long was he down on the ground with the Sundowners yelling at him in four[sic] langauge[sic] and
with him being kicked?
A Probably about five seconds.
Q It was a very short time then?
A Yes.
Q And, Miss Schwall, what happened following that?
A They picked him up and they threw him against the wall and forced a bottle into his mouth.
Q All right. Where in relationship to that wall, that outside wall of the Little Waldorf Saloon was John
Davies picked up and put against the wall? Was it closer to the sidewalk and the street or was
A It was right between the edge of the building and the door.
Mitchell Unger testified in part:
Q Would you describe exactly what you observed with respect to the incident of John Davies being held up?
A Well, when we did walk outside, he was being held up and there was two people holding him up, and then
pretty quick he looked like he was going to get sick.
So he started to turn his head and then he fell completely to the ground. And they started yelling at him and
stuff like that. And then one guy kicked him, and told him to get up, drink like a man.
And then they picked him up and held him against the wall again, put a bottle to his mouth so he'd drink.
Q Without being specific about the words actually being yelled at him, would you describe generally what
was being yelled at John Davies?
A Well, they were obscenity words
Q You're a young man and you've heard obscenity on many occasions, I'm certain.
A Yes.
Q You work on the railroad and there's some pretty rough talk there?
A Right.
Q What was your reaction to what you heard?
A Well, I was very embarrassed, because I was with Lynn, and this kind of talk with anotherwith a female
is kind of embarrassing. I wasn't sure if she heard the words or anything like that.
Q Was it after John Davies was on the ground that you saw him being kicked?
A Yes.
Q And after you saw him kicked while he was on the ground, did you see him up against the wall at any time
again?
A Yes. We was starting to leavewell, after he did get kicked and then they picked him back up on
theand put him against the wall and then we left.
mouths. Some respondents testified that Davies had been involved in a scuffle with
respondents Johnson and Sallee while trying to retrieve his hat. Several respondents testified
that at the end of the ceremony Davies walked unaided to the waiting truck. Several also
testified that they had no way of determining how much alcohol an initiate was actually
consuming. Respondent Rahbeck testified that he had previously told the decedent exactly
what had been involved in his own initiation, including how to fake drinking when liquor
was poured into his mouth.
he jury, by a six to three vote, returned a general verdict in favor of all defendants. The
court subsequently denied plaintiffs' motions for a new trial or, in the alternative, for a
judgment notwithstanding the verdict. Appellants contend that reversal and a new trial are
mandated by prejudicial errors in the instructions to the jury, the form of the jury verdicts, and
certain evidentiary rulings made by the court which we turn to consider.
THE INSTRUCTIONS
1. The Comparative Negligence Statute and
Willful or Wanton Conduct
The jury was instructed that [c]ontributory negligence if any, on the part of the decedent
does not reduce any recovery by the plaintiffs John T. Davies or Billie J. Davies against a
defendant for an injury caused by misconduct of a defendant if you find that the defendant
intended to inflict harm upon the decedent. (Emphasis added.) Appellants claim this
instruction constituted reversible error and that the trial court should instead have given the
following proposed instruction:
Contributory or comparative negligence of the decedent is not a bar to recovery for
any injury or damage caused by the wilful or wanton conduct of a defendant.
Wilful or wanton misconduct is intentional wrongful conduct, done either with
knowledge that serious injury to another will probably result, or with a wanton or
reckless disregard of the possible results. (Emphasis added.)
It has long been the rule in this jurisdiction that contributory negligence is not a bar to
recovery for injury or damage caused by the willful or wanton misconduct of a defendant.
Rocky Mt. Produce v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962); Crosman v. Southern Pac.
Co., 44 Nev. 286, 194 P. 839 (1921). Respondents contend that with the passage of the
comparative negligence statute, NRS 41.1413, the legislature intended that henceforth
the willful or wanton misconduct of a defendant should simply be compared with the
contributory negligence of a plaintiff.
negligence statute, NRS 41.141
3
, the legislature intended that henceforth the willful or
wanton misconduct of a defendant should simply be compared with the contributory
negligence of a plaintiff. Appellants, on the other hand, contend that, since the statute does
not mention willfull or wanton misconduct, there is no basis for concluding that the
legislature intended to change the previous rule. We agree with the appellants that, read in
light of our previous decisions carefully delineating the concepts of willful and wanton
misconduct, the legislature intended to leave such behavior outside the purview of the
comparative negligence statute.
Nevada's applicable comparative negligence statute, 41.141(1), provided that [i]n any
action to recover damages for injury to persons or property in which contributory negligence
may be asserted as a defense, the contributory negligence of the plaintiff shall not bar a
recovery if the negligence of the person seeking recovery was not greater than the negligence
or gross negligence of the person or persons against whom recovery is sought, but any
damages allowed shall be diminished in proportion to the amount of negligence
attributable to the person seeking recovery."
____________________

3
NRS 41.141 read, at the time of the injury and trial herein:
1. In any action to recover damages for injury to persons or property in which contributory negligence may
be asserted as a defense, the contributory negligence of the plaintiff shall not bar a recovery if the negligence of
the person seeking recovery was not greater than the negligence or gross negligence of the person or persons
against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of
negligence attributable to the person seeking recovery.
2. In such cases, the judge may, and when requested by any party shall instruct the jury that:
(a) The plaintiff may not recover if his contributory negligence has contributed more to the injury than the
negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return by general verdict the total amount
of damages the plaintiff would be entitled to recover except for his contributory negligence.
(c) If the jury determines that a party is entitled to recover, it shall return a special verdict indicating the
percentage of negligence attributable to each party.
(d) The percentage of negligence attributable to the person seeking recovery shall reduce the amount of such
recovery by the proportionate amount of such negligence.
3. Where recovery is allowed against more than one defendant in such an action:
(a) The defendants are severally liable to the plaintiff.
(b) Each defendant's liability shall be in proportion to his negligence as determined by the jury, or judge if
there is no jury. The jury or judge shall apportion the recoverable damages among the defendants in accordance
with the negligence determined.
The statute has subsequently been amended. See (1979) Nev. Stats. ch. 629 6, at 1356-57
proportion to the amount of negligence attributable to the person seeking recovery.
(Emphasis added.)
Appellants concede that gross negligence by the defendants, if proved, is subject, under the
statute, to comparison with decedent's negligence. They contend, however, that willful or
wanton misconduct, like conduct intended to cause harm, was not intended to be and should
not be made subject to the defense of contributory negligence by the operation of the statute.
[Headnote 1]
This court has consistently distinguished the concepts of ordinary or gross negligence from
the concepts of willful or wanton misconduct.
Gross negligence is manifestly a smaller amount of watchfulness and circumspection
than the circumstances require of a prudent man. But it falls short of being such
reckless disregard of probable consequences as is equivalent to a wilful and intentional
wrong. Ordinary and gross negligence differ in degree of inattention, while both differ
in kind from wilful and intentional conduct which is or ought to be known to have a
tendency to injury.
(Emphasis added.) Hart v. Kline, 61 Nev. 96, 101, 116 P.2d 672, 674 (1941). Wanton
misconduct involves an intention to perform an act that the actor knows, or should know, will
very probably cause harm. Rocky Mt. Produce v. Johnson, supra, 78 Nev. at 51-52, 369 P.2d
at 202. This court has also said:. To be wanton such conduct must be beyond the routine.
There must be some act of perversity, depravity or oppression. Bearden v. City of Boulder
City, 89 Nev. 106, 110, 507 P.2d 1034, 1036 (1973). In light of these decisions, it is clear that
the legislature, by the use of the term gross negligence, could not have contemplated that
the term would include the distinct concepts of willful or wanton misconduct. See Draney v.
Bachman, 351 A.2d 409 (N.J.Super. 1976). In the absence of a clear legislative directive, we
decline to abrogate the long-standing rule that mere negligence on the part of a plaintiff will
not constitute a defense to the wanton or willful misconduct of a defendant. See Ryan v.
Foster & Marshall, Inc., 556 F.2d 460 (9th Cir. 1977).
As respondents have pointed out, courts in several other jurisdictions have reached a
different conclusion. We are not persuaded that the results reached apply to the interpretation
of the statute before us. In Li v. Yellow Cab Company, 532 P.2d 1226, 1241 (Cal. 1975), the
Supreme Court of California announced, by way of dictum, that henceforth both gross
negligence and willful or wanton misconduct would be subject to comparative negligence.
announced, by way of dictum, that henceforth both gross negligence and willful or wanton
misconduct would be subject to comparative negligence. The California court, however,
having adopted comparative negligence by judicial decision, was not faced, as we are, with
the problem of determining legislative intent.
In Billingsley v. Westrac Company, 365 F.2d 619 (8th Cir. 1966), the court, applying
Arkansas law, concluded that willful and wanton negligence, as used by the Arkansas
courts, amounted in fact to gross negligence and should therefore be subjected to comparative
negligence analysis in order to avoid thwarting the purpose of the statute. In Bielski v.
Schulze, 114 N.W.2d 105 (Wis. 1962), also cited by respondents, the court explicitly dealt
only with the concept of gross negligence. As noted in Bielski, id. at 113, [m]uch of what
constituted gross negligence will be found to constitute a high percentage of ordinary
negligence causing the harm. The conclusion we reach today is consistent with the approach
taken by these courts. It is clear that the legislature, by specifically including gross negligence
in the terms of the comparative negligence statute, intended to subject such conduct to
comparison with a plaintiff's contributory negligence. We agree that conduct amounting to
gross negligence should be subject to such comparison in order to be consistent with the
legislative purpose. In light of our prior decisions defining willful and wanton misconduct,
however, we find it equally clear that such conduct is not equivalent to gross negligence.
[Headnote 2]
As noted by V. Schwartz, Comparative Negligence 5.3 (1974), to the extent that the
concepts of willful and wanton misconduct or gross negligence were instituted merely to
ameliorate the hardships of the contributory negligence rule, the rationale no longer applies
under comparative negligence, but to the extent that they reflect a judgment that the
defendant's culpability is so close to intentional wrongdoing that he should not have the
benefit of contributory negligence, the basis for the rule is unchanged by a comparative
negligence system. We conclude that the legislature, by including the term gross negligence
in the comparative negligence statute, has made a determination that the concept of gross
negligence is comparable to and subject to comparison with ordinary negligence, but has left
the law unchanged with regard to conduct in which the defendant's culpability more closely
approaches that of one who intentionally inflicts damage.
[Headnote 3]
The evidence in the instant case supports an instruction regarding the willful or wanton
misconduct of the respondents. The jury could conclude that the intent of respondents was to
administer dangerous quantities of alcohol to Davies within a short period of time. 190 proof
alcohol was deliberately chosen to be administered, as it had been on previous occasions, and
respondents were fully aware of its nature. Further, they were aware that retention of large
amounts of alcohol in the system can be highly dangerous, as an initiate had had to be
hospitalized the year before. Despite respondents' protestation that they assumed decedent
would not swallow most of the alcohol administered to him, they admitted having no way to
determine whether that was so, while continuing to put bottles of liquor to his lips and
screaming at him to drink it. Other courts have had no difficulty finding willful, wanton, or
reckless misconduct in the furnishing of alcohol in sufficient quantities to cause death, even
under less aggravated circumstances. E.g., Ewing v. Cloverleaf Bowl, 572 P.2d 1155 (Cal.
1978); McCue v. Klein, 60 Tex. 168 (1883).
We find that the comparative negligence statute was not intended to abrogate the rule that
contributory negligence is no defense to willful or wanton conduct, and that the refusal to
give the requested instruction was reversible error.
2. The Consent of the Decedent
[Headnote 4]
The trial court instructed the jury, over appellants' objection, that [a] person may
expressly or by voluntarily participating in an activity consent to an act which would
otherwise be a battery. In the context of this case, the giving of this instruction was
reversible error.
As appellants point out, they had abandoned their claim of assault and battery, and the
instruction was therefore irrelevant to any material issue in the case. The jury, however,
would be entitled to assume that the instruction was relevant, and to use it in their assessment
of decedent's degree of responsibility for his resulting death. The jury may well have deduced
from this instruction that one who voluntarily participates in an activity in legal
contemplation assumes the risk of all negligent or intentional conduct by others. After all,
[s]ince under our jury system, the jury does not have the function of deciding questions of
law, the primary purpose of instructions must be to inform the jury, as triers of facts, what
fact issues are to be favorably decided to reach each possible verdict. Stanich v. Western
Union Tel. Co., 153 S.W.2d 54, 56 (Mo. 1941).
Further, in the context of this case, the instruction was so incomplete as to be misleading.
To be effective, consent must be (a) by one who has the capacity to consent . . . and (b) to
the particular conduct, or to substantially the same conduct. 4 Restatement (Second), Torts
892A, at 364 (1979). As this court has held, consent is not effective as a defense to battery
where the beating is excessively disproportionate to the consent, given or implied, or where
the party injured is exposed to loss of life or great bodily harm. Wright v. Starr, 42 Nev. 441,
446, 179 P. 877 (1919). Furthermore, capacity to consent requires the mental ability to
appreciate the nature, extent and probable consequences of the conduct consented to.
Restatement, Torts, supra, comment b, at 365. As noted by Prosser, Law of Torts, 18,
at 102 (4th ed. 1971), [i]f the plaintiff is known to be incapable of giving consent because
of . . . intoxication . . . his failure to object, or even his active manifestation of consent will
not protect the defendant.
In McCue v. Klein, supra, the widow of a man who had died as a result of drinking a toxic
quantity of alcohol sued those who had furnished him the alcohol and induced him to drink it,
on a wager. The court held, 60 Tex. at 169,
[T]he maxim of volenti non fit injuria presupposes that the party is capable of giving
consent to his own injury. If he is divested of the power of refusal by mental faculties,
the damage cannot be excused on the ground of consent given. A consent given by a
person in such condition is no consent at allmore especially when his state of mind is
well known to the party doing the injury. . . . And so if one whose mental faculties are
suspended by intoxication is induced to swallow spiritous liquors to such excess as to
endanger his life, the persons taking advantage of his condition of helplessness and
mental darkness and imposing the draught upon him must answer to him if such injury
should fall short of the destruction of life, and to his family if death should be the
result.
We conclude that in view of all the circumstances the instruction may have misled the
jury, and it should not have been given. Zelavin v. Tonopah Belmont, 39 Nev. 1, 7, 149 P.
188, 189 (1915).
3. The Intoxication Is No Excuse Instruction
[Headnotes 5, 6]
The court instructed the jury, over appellants' objection that [i]ntoxication is no excuse
for failure to act as a reasonably prudent person would act. A person who is intoxicated or
under the influence of intoxicating liquor is held to the same standard of care as a sober
person."
under the influence of intoxicating liquor is held to the same standard of care as a sober
person.
While ordinarily the statement is an accurate summary of the law, the courts have refused
to apply the basic rule strictly, at least as to the inebriate's duty to protect himself, if when
the liquor was furnished [plaintiff's decedent] was incapable of acting like a reasonable man.
Hoyt v. Tilton, 128 A. 688, 690 (N. H. 1925). Cf. De Martini v. Alexander Sanitarium, Inc.,
13 Cal.Rptr. 564 (Cal.App. 1961).
The rule is also subject to certain exceptions which the jury may have found applicable in
this case. The Restatement (Second) of Torts, 2, 283C, at 18 (1965), provides that [i]f the
actor is ill or otherwise physically disabled, the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable man under like disability.
Where intoxication is involuntary, such as in the highly unusual case in which one
believes that he is drinking tea is plied with liquor, and so becomes disabled, the standard of
conduct to which the actor must conform is that of a reasonable man under a like disability.
Restatement (Second), Torts, supra, at 19.
Where, however, the intoxication is voluntary, or where it results from deliberate
drinking with knowledge of what is being consumed, so that the result is deliberately
risked, the policy of the law has refused to make any allowance for the resulting
disability, and the rule stated in this Section is not applied. Such intoxication does not
excuse conduct which would otherwise be negligent. Id.
This explanation of the standard of conduct required of an intoxicated person illustrates
the misleading nature of the unqualified instruction given to the jury. There was evidence in
this case from which the jury could have concluded that at some point decedent's further
drinking was involuntary, and no longer deliberate drinking with knowledge of what is
consumed, so that the result is deliberately risked.
The instruction practically takes from the consideration of the jury the [plaintiffs'] theory
of the case, i.e., that decedent did not voluntarily consume a lethal dose of alcohol, and thus
it was prejudicial error. Zelavin v. Tonopah Belmont, supra, 39 Nev. at 10.
4. The Last Clear Chance Instruction
[Headnote 7]
Appellants requested a last clear chance instruction, informing the jury that if they
determined that the decedent had, by his own negligence, placed himself in a position of
danger, from which he was unable to escape or of which he was unaware, and thereafter
defendants either saw or should have seen the danger and could have avoided injury to
the decedent by the exercise of ordinary care, but failed to do so, "then you must find
against the defense of comparative negligence, because under such conditions the law
holds the defendants liable for any injury or damage suffered by the plaintiff's decedent
and proximately resulting from the accident, despite the negligence of the plaintiff's
decedent."
had, by his own negligence, placed himself in a position of danger, from which he was unable
to escape or of which he was unaware, and thereafter defendants either saw or should have
seen the danger and could have avoided injury to the decedent by the exercise of ordinary
care, but failed to do so, then you must find against the defense of comparative negligence,
because under such conditions the law holds the defendants liable for any injury or damage
suffered by the plaintiff's decedent and proximately resulting from the accident, despite the
negligence of the plaintiff's decedent. The trial court properly refused to give the instruction,
on the ground that it was inappropriate under Nevada's comparative negligence statute.
The traditional legal rationale for the application of the doctrine of last clear chance was
that the plaintiff had ceased to be actively negligent, and the subsequent negligence of the
defendant was therefore, as a matter of law, the sole proximate cause of the injury. See
Weck v. Reno Traction Co., 38 Nev. 285, 296-97, 149 P. 65, 68 (1915). This rationale has
been criticized as quite out of line with modern ideas of proximate cause. W. Prosser,
supra, 66, at 427. Indeed, it is not consistent with the rationale applied by this court in other
consecutive negligence situations. See, e.g., Drummond v. Mid-West Growers, 91 Nev. 698,
704-5, 542 P.2d 198, 203 (1975) (subsequent negligence of a third party toward rescuer of
negligent defendant foreseeable; defendant's negligence remains proximate cause).
Most courts which have considered the issue in recent years have agreed, concluding that
the doctrine, as a device for assigning sole responsibility for an injury to the defendant,
though both defendant and plaintiff are negligent, should not survive under a system of
comparative negligence. E.g., Kaatz v. State, 540 P.2d 1037 (Ala. 1975); Li v. Yellow Cab
Company, supra; Burns v. Ottati, 513 P.2d 469 (Colo.App. 1973); Seaboard Coast Line
Railroad Co. v. Daugherty, 164 S.E.2d 269 (Ga.App. 1968); Cushman v. Perkins, 245 A.2d
846 (Me. 1968). We agree.
The trial court committed no error in refusing to give the last clear chance instruction as
requested by appellants.
5. The Res Ipsa Loquitur Instructions
[Headnote 8]
Appellants requested two res ipsa loquitur instructions which were properly rejected by the
trial court.
As this court stated in Hospital Ass'n v. Gaffney, 64 Nev. 225, 234-35, 180 P.2d 594, 599
(1947), the doctrine of res ipsa loquitur "is an exception to the general rule that negligence
is not to be presumed, but must be affirmatively proved," and
loquitur is an exception to the general rule that negligence is not to be presumed, but must
be affirmatively proved, and
[t]he inference which the doctrine permits is grounded upon the fact that the chief
evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person. If the circumstances do not suggest or
indicate superior knowledge or opportunity for explanation on the part of the party
charged, or if the plaintiff himself has equal or superior means of information, the
doctrine will not apply.
We find nothing in the circumstances of this case, other than the fact that the decedent was
unavailable to testify, which would justify bringing the doctrine into play in this case.
Non-defendant observers were present at every point in the events leading to the death of the
decedent, and were fully available to testify. Since we are unwilling to extend the doctrine so
as to apply it to virtually every wrongful death action, we therefore uphold the trial court's
determination in this instance.
6. The Negligence Per Se Instruction
[Headnote 9]
Appellants asked that the jury be instructed that violation by the defendants of a Reno
municipal ordinance, prohibiting the sale or furnishing of alcoholic beverages to any person
actually or apparently under the influence of alcoholic beverages, would constitute negligence
as a matter of law.
In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), we considered
carefully the policy considerations involved in imposing civil liability upon one who sells
liquor to a person who is drunk, on the basis of a similar prohibitory state statute. We
concluded then that in the absence of evidence of legislative intent to impose such liability,
we would decline to hold that violation of such a statute is negligence per se.
Our ruling in Hamm is dispositive here. The trial court correctly rejected appellants'
proposed instruction.
THE EVIDENTIARY RULINGS
We have examined the record and determine that appellants' claims that the trial court
committed reversible error in refusing to admit certain evidence are without merit.
[Headnotes 10, 11]
Appellants offered photographs showing other initiates and one of the respondents taken at
an event which preceded the "final ceremony", as well as the death photograph of the
decedent.
final ceremony, as well as the death photograph of the decedent. The court refused to admit
them as each had little probative value. The ruling was correct. NRS 48.035(1). Appellants'
offer of proof regarding certain unattributed statements made regarding liquid on decedent's
clothes did not meet the foundational requirements for an admission by silence, as there
was no showing that the remarks were made to, or in the hearing of, any defendant.
Greenberg v. Stanley, 153 A.2d 833 (N.J. 1959); Creager v. Chilson, 453 S.W.2d 941 (Mo.
1970). The unattributed statement in the medical records of decedent's co-initiate regarding
the source of the liquid was also properly excluded. Mikel v. Flatbush General Hospital, 370
N. Y.S.2d 162 (N. Y.App. 1975); Dorsten v. Lawrence, 253 N.E.2d 804 (Ohio App. 1969).
We do not address appellants' remaining contentions, relevant to the issue of the respective
liability of each of the respondents, since that issue was never reached by the jury.
For the reasons hereinabove set forth, we conclude that we must reverse the order of the
district court denying appellants' motion for a new trial and remand the case to the lower
court for that purpose.
Manoukian, J., and Fondi, D. J.
4
, concur.
I respectfully dissent from the opinion filed by the majority.
I do not believe the trial court erred when it instructed the jury that [c]ontributory
negligence, if any, on the part of the decedent does not reduce any recovery by the plaintiffs
John T. Davies or Billie J. Davies against a defendant for an injury caused by misconduct of a
defendant if you find that the defendant intended to inflict harm upon the decedent instead of
giving the instruction proposed by appellants.
1
Although the proposed instruction is
semantically more desirable, both convey the message that the plaintiffs' recovery should not
be reduced if the injury to the decedent resulted from the intentional wrongful conduct of the
defendants.
____________________

4
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Michael E. Fondi, Judge of the
First Judicial District, to sit in place of The Honorable Gordon Thompson, Justice, who was disqualified.

1
Contributory or comparative negligence of the decedent is not a bar to recovery for any injury or damage
caused by the wilful or wanton conduct of a defendant.
Wilful or wanton misconduct is intentional wrongful conduct, done either with knowledge that serious
injury to another will probably result, or with a wanton or reckless disregard of the possible results.
Furthermore, I do not agree that the trial court erred in giving the instruction that
[i]ntoxication is no excuse for failure to act as a reasonably prudent person would act. A
person who is intoxicated or under the influence of intoxicating liquor is held to the same
standard of care as a sober person. It correctly and fairly states the law. If appellants believed
it to be overbroad in its application to the facts of this case, a countervailing instruction
should have been offered.
Although the giving of the instruction that [a] person may expressly or by voluntarily
participating in an activity consent to an act which would otherwise be a battery might be
error in the context of this case, the giving of that instruction was harmless. NRCP 61.
2

I concur with the remainder of the majority opinion which rejects the other assignments of
error. The appellants received a fair and thorough trial upon their cause of action and the jury
verdict should not be set aside upon narrow technical grounds which arguably can be decided
either way. I would affirm.
____________________

2
NRCP 61:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
____________
95 Nev. 779, 779 (1979) Summa Corp. v. Broods Rent-A-Car
SUMMA CORPORATION, a Delaware Corporation, Appellant, v. BROOKS
RENT-A-CAR, a Nevada Corporation, Respondent.
No. 10649
November 13, 1979 602 P.2d 192
Appeal from summary judgment, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
The Supreme Court held that where respondent was granted an extension of time to file its
answering brief on appeal, but neither filed its brief when due nor requested a further
extension of time, it would treat respondent's failure to file answering brief as a confession of
error and, accordingly, summary judgment in respondent's favor was reversed and case
was remanded for trial on the merits.
95 Nev. 779, 780 (1979) Summa Corp. v. Broods Rent-A-Car
judgment in respondent's favor was reversed and case was remanded for trial on the merits.
Reversed and remanded for trial.
Lionel Sawyer & Collins, and David N. Frederick, Las Vegas, for Appellant.
David Abbatangelo, Las Vegas, for Respondent.
Supreme Court will not comb record to ascertain matters which should have been set forth in respondent's
brief on appeal. NRAP 31(c).
Where respondent was granted an extension of time to file its answering brief on appeal, but neither filed
its brief when due nor requested a further extension of time, Supreme Court elected to treat respondent's
failure to file its answering brief as a confession of error and, accordingly, summary judgment in
respondent's favor was reversed and case was remanded for trial on the merits. NRAP 31(c).
OPINION
Per Curiam:
Appellant's opening brief was filed on September 5, 1978. Respondent sought and was
granted an extension of time to November 10, 1978 in which to file its answering brief.
Respondent, however, neither filed its brief when it was due, nor has it requested a further
extension of time in which to do so.
Because of respondent's dereliction, appellant has filed a motion for confession of error
and summary reversal. See NRAP 31(c). In its response to the motion, respondent suggests
that, in lieu of an answering brief, this court may search the entire transcript of the
proceedings below to answer the arguments raised by appellant.
[Headnotes 1, 2]
This court will not comb the record to ascertain matters which should have been set forth
in respondent's brief. See State v. Cecchettini, 45 Nev. 238, 201 P. 547 (1921). Instead, we
elect to treat respondent's failure to file its answering brief as a confession of error. Kitchen
Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975). Accordingly, the judgment in
respondent's favor is reversed and this case is remanded for trial on the merits.
____________
95 Nev. 781, 781 (1979) Frost v. Sheriff
KELLY FROST, Appellant, v. SHERIFF, CLARK
No. 11899
November 13, 1979 602 P.2d 193
Defendant appealed from order entered by the district court denying his pretrial petition for
writ of habeas corpus seeking to have indictment charging him with murder, attempted
robbery with use of deadly weapon, and burglary with use of deadly weapon dismissed. The
Supreme Court held that: (1) the indictment was not required to be dismissed on basis that
illegal evidence was used to obtain the indictment nor on basis that grand jury system was
unconstitutional, but (2) where grand jury transcript showed that alleged burglary was
completed upon entry of apartment, defendant could not be guilty of burglary with use of
deadly weapon.
Howard N. Ecker, Las Vegas, for Appellant.
Raymond D. Jeffers, Deputy District Attorney, Clark County, for Respondent.
Indictment charging defendant with murder, attempted robbery with use of deadly weapon, and burglary
with use of deadly weapon was not required to be dismissed on basis that illegal evidence was used to
obtain the indictment nor on basis that grand jury system was unconstitutional.
2. Burglary.
Where grand jury transcript showed that alleged burglary was completed upon entry of apartment,
defendant could not be guilty of burglary with use of deadly weapon. NRS 193.165, 205.060.
OPINION
Per Curiam:
In this appeal from an order of the district court denying his pretrial petition for a writ of
habeas corpus, Kelly Frost contends the indictment charging him with murder (NRS 200.010;
NRS 200.030), attempted robbery with the use of a deadly weapon {NRS 200.3S0; NRS
20S.070; NRS 193.165), and burglary with the use of a deadly weapon {NRS 205.060;
NRS 193.165) must be dismissed because {1) illegal evidence was used to obtain the
indictment, {2) the grand jury system is unconstitutional, and {3) insufficient evidence
was presented to the grand jury to support the charge of burglary with the use of a
deadly weapon.
95 Nev. 781, 782 (1979) Frost v. Sheriff
weapon (NRS 200.380; NRS 208.070; NRS 193.165), and burglary with the use of a deadly
weapon (NRS 205.060; NRS 193.165) must be dismissed because (1) illegal evidence was
used to obtain the indictment, (2) the grand jury system is unconstitutional, and (3)
insufficient evidence was presented to the grand jury to support the charge of burglary with
the use of a deadly weapon.
Evidence presented to the grand jury indicates that Frost and two confederates engaged in
a plan to rob Billie Ray Tyner of marijuana and money. Frost and his confederates drove to
Tyner's apartment and Frost and one of his companions entered the apartment while the other
companion waited outside in the car. In the attempted perpetration of the robbery inside the
apartment, Frost shot and killed Tyner.
[Headnotes 1, 2]
All contentions herein raised by Frost are without merit, except his challenge to the
burglary charge. As to that, we reverse the Order of the district court insofar as it relates to the
allegation that a deadly weapon was used in the commission of the burglary, since it appears
from the grand jury transcript that the burglary was complete upon entry of the apartment and,
therefore, could not have been perpetrated with the use of a deadly weapon. Carr v. Sheriff,
95 Nev. 688, 601 P.2d 422 (1979).
In all other respects the order below is affirmed.
____________
95 Nev. 782, 782 (1979) Revert v. Ray
ARTHUR REVERT, ROBERT A. REVERT, and the A. REVERT TRUST, Appellants, v.
CLARA ALBERTA RAY and THEODORE T. RAY, and GEORGE HENNEN, State
Engineer of the State of Nevada, Respondents.
No. 10246
November 28, 1979 603 P.2d 262
Appeal from the judgment of the district court affirming the decision of the State
Engineer; Fifth Judicial District Court, Nye County; William P. Beko, Judge.
The district court, entered judgment affirming State Engineer's decision granting
applicants' application for appropriation of five cubic feet per second of water from certain
springs, and opponents appealed. The Supreme Court, Mowbray, C. J., held that: (1) a party
aggrieved by decision of State Engineer in an appropriation hearing is not entitled to a de
novo hearing in district court; {2) substantial evidence supported State Engineer's finding
that water company had abandoned its rights to use waters emanating from springs; {3)
State Engineer abused his discretion in failing to solve opponents' critical adverse
possession claim that their predecessors in interest had adversely possessed waters
flowing from springs for requisite period of time prior to date of water company's
abandonment of right to use waters emanating from springs, so that opponents had
vested interest in disputed waters; and {4) district court should have remanded case to
State Engineer for proper determination of opponents' critical adverse possession claim
rather than looking to post-review brief filed by State Engineer to supply missing findings.
95 Nev. 782, 783 (1979) Revert v. Ray
novo hearing in district court; (2) substantial evidence supported State Engineer's finding that
water company had abandoned its rights to use waters emanating from springs; (3) State
Engineer abused his discretion in failing to solve opponents' critical adverse possession claim
that their predecessors in interest had adversely possessed waters flowing from springs for
requisite period of time prior to date of water company's abandonment of right to use waters
emanating from springs, so that opponents had vested interest in disputed waters; and (4)
district court should have remanded case to State Engineer for proper determination of
opponents' critical adverse possession claim rather than looking to post-review brief filed by
State Engineer to supply missing findings.
Reversed and remanded with directions.
Denton & Denton, Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, and George Campbell, Deputy Attorney General,
Carson City, for Respondent State Engineer.
Gary A. Sheerin, Carson City, for Respondents Clara Alberta Ray and Theodore T. Ray.
A party aggrieved by decision of State engineer in an appropriation hearing is not entitled to a de novo
hearing in district court. NRS 533.450, subds. 1, 2.
With respect to a limited review in the nature of an appeal, neither district court nor Supreme Court
will substitute its judgment for that of State Engineer in an appropriation hearing; such courts will not pass
upon credibility of witnesses nor reweigh evidence, but, rather, will limit themselves to determination of
whether substantial evidence in record supports State Engineer's decision. NRS 533.450, subds. 1, 2.
In proceeding on application for appropriation of five cubic feet per second of water from certain springs,
substantial evidence supported State Engineer's finding that water company had abandoned its right to use
waters emanating from such springs, and despite existence of some conflicting evidence in record, Supreme
Court would not substitute its judgment for that of fact finder. NRS 533.450, subds. 1, 2.
Abandonment of right to use waters emanating from certain springs, requiring a union of acts and intent,
is a question of fact to be determined from all surrounding circumstances.
Applicable standard of review of decisions of State Engineer in appropriation hearing, limited to inquiry
as to substantial evidence, presupposes fullness and fairness of administrative proceedings, which occurs
when all interested parties have had full opportunity to be heard, State Engineer has
clearly resolved all crucial issues presented, and decision maker has prepared
findings in sufficient detail to permit judicial review, and when these procedures,
grounded in basic notions of fairness and due process, are not followed, and resulting
administrative decision is arbitrary, oppressive, or accompanied by manifest abuse of
discretion, Supreme Court will not hesitate to intervene.
95 Nev. 782, 784 (1979) Revert v. Ray
when all interested parties have had full opportunity to be heard, State Engineer has clearly resolved all
crucial issues presented, and decision maker has prepared findings in sufficient detail to permit judicial
review, and when these procedures, grounded in basic notions of fairness and due process, are not
followed, and resulting administrative decision is arbitrary, oppressive, or accompanied by manifest abuse
of discretion, Supreme Court will not hesitate to intervene. NRS 533.450, subd. 2; U.S.C.A. Const.
Amend. 14.
State Engineer abused his discretion in failing to resolve opponents' critical adverse possession claim that
their predecessors in interest had adversely possessed waters flowing from springs for requisite period of
time prior to date of water company's abandonment of right to use waters emanating from springs, so that
opponents had vested interest in disputed waters.
district court should have remanded case to State Engineer for proper determination of opponents' critical
adverse possession claim, rather than looking to post-review brief filed by State Engineer to supply missing
findings, where State engineer's brief amounted to nothing more than post hoc rationalization for his prior
error of omission and was not type of explicit and concise finding of fact required by applicable statute;
in short, brief was not part of record, and thus should not have been considered by district court. NRS
233B.125.
OPINION
The instant appeal centers about the disputed right to use the waters emanating from the
Beatty (also known as Revert) Springs. Clara and Theodore Ray, contending that those waters
are public waters, applied to the State Engineer for an appropriation of five cubic feet per
second of water from the springs. Claiming a vested right to use those waters, Arthur Revert,
Robert A. Revert, and the A. Revert Trust opposed the Rays' application. Following a
hearing, the State Engineer concluded that the Beatty Springs were in fact public waters and
granted the Rays' application. The district court affirmed. The Reverts appeal, contending
that, as a matter of law, these rulings are clearly erroneous. We agree.
The origins of this dispute predate the enactment of Nevada's water laws. Prior to 1905,
Montilius M. Beatty, subsequently known as Old Man Beatty, acquired, by squatter's
possession, a vested right of some magnitude in the use of the waters flowing from the Beatty
Springs. In 1905, Beatty conveyed his water rights, for consideration, to the Bullfrog Water,
Light and Power Company.
95 Nev. 782, 785 (1979) Revert v. Ray
Water, Light and Power Company. Bullfrog initially put the water to beneficial use, installing
a pipeline running from the springs to the short-lived boomtown of Rhyolite and executing a
two year lease of those water rights to the Indian Springs Water Company in January, 1915.
Bullfrog, however, eventually lost interest in the springs and vanished from the area, at some
time between 1915 and 1920, without transferring or selling its water rights.
Prior to 1913, however, John K. Brunk homesteaded the land on which the Beatty Springs
are located. Brunk applied for and ultimately received a U.S. patent for the land. During his
stay in the Beatty area, Brunk, as well as all of his successors in interest, used the waters from
the Beatty Springs openly, notoriously, and without any challenge at all. In 1913, Brunk sold
his interests in the Beatty Springs and surrounding lands to E. E. and E. M. Palmer who, in
turn, transferred their interests to W. E. Shirk in 1922. The Reverts, appellants herein,
succeeded to Shirk's interests in 1930, and since that time have exercised exclusive dominion
over the disputed waters and have, in fact, supplied the town of Beatty with its water needs
from those springs.
At the hearing before the State Engineer, appellants vigorously contended that they had a
vested right to use the waters of Beatty Springs, dating back to an alleged adverse possession
of the springs by Brunk and the Palmers. Without reaching the issue of adverse possession,
the State Engineer found that Bullfrog had abandoned its rights in Beatty Springs between
1915 and 1920 and, as a result, the water rights had reverted to the State and were now public
waters subject to appropriation. The Reverts appealed this decision to the district court.
After rejecting the Reverts' request for a de novo hearing, the district court held a limited
review of the proceedings before the State Engineer. The court found that the State Engineer's
determination of abandonment on the part of Bullfrog was supported by substantial evidence,
but expressed some concern over the State Engineer's apparent failure to consider the
possibility that the Reverts' predecessors in interest had adversely possessed the springs prior
to the time of abandonment. The district court then relied on a post-review brief filed by the
State Engineer which, in conclusory terms, asserted that any use of the Beatty Springs by
Brunk or the Palmers had been permissive and not adverse. Treating this brief as an actual
finding of the State Engineer, the district court concluded that this finding, though
supported by less than convincing evidence, was neither arbitrary nor clearly erroneous. As
a result, the district court affirmed the decision of the State Engineer. This appeal followed.
95 Nev. 782, 786 (1979) Revert v. Ray
On appeal, the Reverts contend that they were entitled to a de novo hearing in the district
court and that the findings and conclusions of the State Engineer are either not supported by
substantial evidence or are, as a matter of law, clearly erroneous. To those issues we now
turn.
[Headnote 1]
Contrary to appellants' suggestion, a party aggrieved by a decision of the State Engineer in
an appropriation hearing is not entitled to a de novo hearing in the district court. The relevant
statutes specifically provide that any such review shall be in the nature of an appeal and that
the proceedings in the district court shall be informal and summary. NRS 533.450(1) and
(2). Moreover, while the legislature originally provided for such a de novo review, 1913 Nev.
Stats., ch. 140, 75, that provision was explicitly repealed during the next legislative session,
1915 Nev. Stats., ch. 243, 75.
[Headnote 2]
With respect to a limited review in the nature of an appeal, neither the district court nor
this court will substitute its judgment for that of the State Engineer: we will not pass upon the
credibility of the witnesses nor reweigh the evidence, but limit ourselves to a determination of
whether substantial evidence in the record supports the State Engineer's decision. See, e.g.,
No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967) (and cases cited
therein).
[Headnotes 3, 4]
Applying this standard to the present case, we find that the State Engineer's finding of
abandonment is supported by substantial evidence. Abandonment, requiring a union of acts
and intent, is a question of fact to be determined from all the surrounding circumstances.
Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069 (1961); In re Waters of Manse Spring, 60
Nev. 280, 108 P.2d 311 (1940). The record reflects that, prior to 1919, Bullfrog had ceased all
business and corporate operations in the Beatty area, had vanished from the community, and
had allowed part of its property to be sold for delinquent taxes. The recited evidence amply
supports a finding of abandonment, and, despite the existence of some conflicting evidence in
the record, this court will not substitute its judgment for that of the factfinder. See No. Las
Vegas v. Pub. Serv. Comm'n, supra.
[Headnote 5]
Our conclusion that substantial evidence supports the findings of the State Engineer does
not, however, dispose of the instant appeal.
95 Nev. 782, 787 (1979) Revert v. Ray
instant appeal. The applicable standard of review of the decisions of the State Engineer,
limited to an inquiry as to substantial evidence, presupposes the fullness and fairness of the
administrative proceedings: all interested parties must have had a full opportunity to be
heard, see NRS 533.450(2); the State Engineer must clearly resolve all the crucial issues
presented, see Nolan v. State Dep't of Commerce, 86 Nev. 428, 470 P.2d 124 (1970) (on
rehearing); the decisionmaker must prepare findings in sufficient detail to permit judicial
review, id.; Wright v. State Insurance Commissioner, 449 P.2d 419 (Or. 1969); see also NRS
233B.125. When these procedures, grounded in basic notions of fairness and due process, are
not followed, and the resulting administrative decision is arbitrary, oppressive, or
accompanied by a manifest abuse of discretion, this court will not hesitate to intervene. State
ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973).
[Headnote 6]
In this case, appellants argued before the State Engineer that their predecessors in interest,
Brunk and the Palmers, had acquired, by adverse possession against Bullfrog, a vested
interest in the waters of Beatty Springs. Resolution of this claim was essential to the full and
fair determination of the instant appropriation application. If the alleged adverse possession
had been effected and successfully completed prior to the date of Bullfrog's abandonment,
then appellants would have established a vested interest in the disputed waters. The State
Engineer, however, did not address this issue. Appellants were thus deprived of a full and fair
determination of their claims. By failing to resolve appellants' critical adverse possession
claim, the State Engineer manifestly abused his discretion. See Nolan v. State Dep't of
Commerce, supra.
[Headnote 7]
The district court, unfortunately, compounded the State Engineer's error. Though it
recognized the State Engineer's failure to address appellants' critical adverse possession
claim, the lower court did not remand the case to the State Engineer for a proper
determination of the issue; instead, the district court looked to a post-review brief filed by the
State Engineer to supply the missing findings. This was error. The State Engineer's brief
amounted to nothing more than a post hoc rationalization for the State Engineer's prior error
of omission and is not the type of explicit and concise finding of fact required by NRS
233B.125. The brief, in short, was not a part of the record and thus, should not have been
considered by the district court. See Johns v. Gragson, supra; City of Reno v. Folsom, 86
Nev. 39, 464 P.2d 454 (1970).
95 Nev. 782, 788 (1979) Revert v. Ray
The judgment of the district court must, therefore, be reversed and the instant case
remanded to the State Engineer for a full and fair determination of appellants' adverse
possession claim. In this regard, we note that the finding of abandonment on the part of
Bullfrog is supported by substantial evidence. The precise question, then, before the State
Engineer on remand is whether appellants' predecessors in interest, Brunk or the Palmers, had
adversely possessed the waters flowing from the Beatty Springs for the requisite period of
time prior to the date of Bullfrog's abandonment. Accordingly, the judgment of the district
court is reversed and the cause remanded for further proceedings consistent with this opinion.
Thompson, Gunderson, and Manoukian, JJ., and Gabrielli, D. J.,
1
concur.
____________________

1
The Governor, pursuant to Nev. Const. art. 6, 4, designated The Honorable John E. Gabrielli, Judge of the
Second Judicial district, to sit in place of The Honorable Cameron M. Batjer, who was disqualified.
____________
95 Nev. 788, 788 (1979) American Fence, Inc. v. Wham
AMERICAN FENCE, INC., a Nevada Corporation, ROBERT V. STEUTEVILLE, and
JACK MATTHEWS & CO., Realtors, a Nevada Corporation, Appellants, v. HARRY P.
WHAM and EDWIN DOTSON, and ANTOINETTE
WHAM, Respondents.
No. 10580
November 30, 1979 603 P.2d 274
Appeal from order granting summary judgment; Eighth Judicial District Court, Clark
County; Michael E. Fondi, Judge.
Lessee/purchaser and its president brought action for specific performance of option to
purchase real estate and real estate agency sought recovery of broker's commission allegedly
due on the purchase price. The district court, granted owner/lessors' motion for summary
judgment, and plaintiffs appealed. The Supreme Court held that notice of termination of the
lease signed by co-lessor effectively terminated the lease, and termination of the lease
effectively terminated the option as well.
Affirmed.
Clark & Zubel, Las Vegas, for Appellants.
Edwin J. Dotson, Las Vegas, for Respondents.
Showing of authority of lessor to act for his co-lessors in giving notice of termination or lease is
jurisdictional prerequisite to granting of writ of restitution in an unlawful detainer action. NRS 40.250.
Unlawful detainer action is entirely a creation of statute, and compliance with requirements of the statute
is necessary to maintenance of the action. NRS 40.250.
3. Specific Performance.
Action for specific performance of lessee's option to purchase real estate was equitable in nature and
district court, acting as a court of equity, could look to substance of lessors' notice to terminate lease rather
than to statutory requirements for notice in an unlawful detainer action, especially since agreement between
the parties did not require statutory form of notice to terminate the lease. NRS 40.250.
4. Judgment.
Action for specific performance of lessee's option to purchase real estate was equitable in nature and thus
issues of validity of lessors' notice to terminate lease and its effects on lessee's option were purely issues of
law, proper for resolution on motion for summary judgment. NRCP 52(a), 56.
Co-lessor's notice to lessee reciting various breaches of the lease, declaring the lease terminated, and
giving lessee until end of month to remove its personal property from the premises effectively terminated
the lease.
Lease and option to purchase real estate were not separate contracts to be severed and enforced
independently but were meant to stand or fall together, and thus termination of the lease effectively
terminated the option as well.
OPINION
Per Curiam:
In this action, appellants American Fence, Inc. and its president, Robert V. Steuteville,
seek specific performance of an option to purchase real estate. The option had been granted in
connection with a lease of the property to American Fence by respondents. Appellant Jack
Matthews & Co. seeks recovery of a broker's commission allegedly due on the purchase price.
After cross motions for summary judgment, the district court concluded that the option had
been extinguished by the termination of the lease and, as a consequence, granted summary
judgment for respondents. This appeal followed; we affirm.
In January, 1975, appellant American Fence, Inc., through its president, appellant
Steuteville, entered into a series of agreements with respondents Harry P.
its president, appellant Steuteville, entered into a series of agreements with respondents Harry
P. Wham, Antoinette Wham, and Edwin Dotson, relating to a piece of commercial real
property in Las Vegas known as Whamco Divers. On January 17, an Offer and Acceptance
Agreement was executed for what was described as a Lease/Option to Purchase the subject
property. The agreement specified the amount of the rent, the term the lease was to run (one
year unless Option exercised as specified herein), and the exchange of earnest money,
representing first and last months' rent plus $600 option money. Three days later the parties
executed a lease of the property, which included in the payment provisions a section entitled
Lease/Option to Purchase, acknowledging the payment of first and last months' rent in
advance plus $600.00 option money, the latter being non-refundable to Lessee/Buyer if
Option to Purchase is not exercised per Offer and Acceptance Agreement attached . . .
Lessee/Buyer to exercise Option to Purchase . . . at any time from commencement to
termination of term specified therein. The lease also granted the lessors the right to terminate
the lease in the event that a sublease was entered into without the prior consent of the lessors,
and to re-enter and terminate the lease in the event of any breach. On January 27, the parties
opened an escrow account and executed escrow instructions, again referring to the
Lease/Option to Purchase. Appellants took possession on or about January 27, and the term
of the lease began on February 1, 1975.
On September 10, 1975, Dotson mailed a Notice of Termination of Lease to American
Fence, reciting various breaches of the lease (including unauthorized subletting), declaring
the lease terminated, and giving American Fence until September 30, 1975, to remove its
personal property from the premises. The names of the three co-lessors were typed on the
notice, but it was signed only by Edwin J. Dotson. On September 30, the appellants
delivered to Dotson (and addressed to the three co-lessors) a letter purporting to exercise the
option to purchase the property; Dotson replied the same day with a mailgram stating that the
option was no longer available because the lease had been terminated.
[Headnote 1]
The lessors then filed an unlawful detainer action and obtained a writ of restitution, which
was ultimately set aside by this court in American Fence, Inc. v. Wham, 93 Nev. 26, 559 P.2d
824 (1977). There we held that the summary procedure for obtaining the writ was not
available since the record did not show affirmatively the authority of Dotson to act for his
co-lessors in giving the notice of termination.
show affirmatively the authority of Dotson to act for his co-lessors in giving the notice of
termination. This showing is a jurisdictional prerequisite to the granting of the writ in an
unlawful detainer action.
In March, 1976, appellants commenced this action for specific performance of the option,
alleging the performance of all the covenants and conditions, regarding the purchase of the
Subject Property. Respondent Wham, now the sole owner of the property, answered,
traversing the allegation of performance, incorporating the recital of the breaches of the lease
in the Notice of Termination, and asserting the termination of the lease as a defense. Cross
motions for summary judgment were made. The district court granted respondents' motion
and denied that of appellants.
[Headnote 2]
Appellants contend that our decision in American Fence, Inc. v. Wham, supra, is
conclusive on the issue of Dotson's authority to give notice of the termination of the lease.
This argument is meritless. We held in that case only that the statutory requirements for
obtaining the summary writ of restitution had not been complied with, and we specifically
noted that the issue of the enforceability of the option was not before us. 93 Nev. at 27 n. 2,
559 P.2d at 825. The unlawful detainer action is entirely a creation of statute, see Yori v.
Phenix, 38 Nev. 277, 149 P. 180 (1915); NRS 40.250, and compliance with the requirements
of the statute is necessary to the maintenance of the action. Gasser v. Jet Craft Ltd., 87 Nev.
376, 380, 487 P.2d 346, 348 (1971).
[Headnotes 3-5]
By contrast, the present action for specific performance is equitable in nature. In such a
case, the district court, acting as a court of equity, looks less to technical distinctions than lo
broad principles of justice. Schroeder v. Gemeinder, 10 Nev. 355, 368 (1875). Specifically,
the district court could look to the substance of the notice rather than to the statutory
requirements for notice in an unlawful detainer action, especially when the agreement
between the parties did not require the statutory form of notice to terminate the lease. Sandra
Frocks v. Ziff, 74 N.E.2d 699 (Ill. 1947); cf. McNally v. Leach, 205 S.W. 82 (Mo.App. 1918)
(defective notice from one co-lessor who did not purport to act for others). The district court
had before it the instruments executed by the parties, the notice of termination, and affidavits
from Wham supporting Dotson's authority to act for his co-lessors in sending the notice.1
Appellants, apparently believing that we had settled the issue of termination, did not
dispute Dotson's authority to give notice to quit, nor did they assert that the notice was
defective in any other way.
authority to act for his co-lessors in sending the notice.
1
Appellants, apparently believing
that we had settled the issue of termination, did not dispute Dotson's authority to give notice
to quit, nor did they assert that the notice was defective in any other way. The issues before
the district court were therefore purely issues of law, proper for resolution on a motion for
summary judgment, NRCP 56; Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979,
984 (1963), as to the validity of the notice and its effect on the option. We find no error in the
district court's conclusion, implied in the granting of respondents' motion (no conclusions of
law were filed, NRCP 52(a)), that the notice of September 10, 1975, terminated the lease.
Even on the standard applicable to motions for summary judgment, that is, indulging all
inferences favorable to the party moved against, Lipshie v. Tracy Investment Co., 93 Nev.
370, 375, 566 P.2d 819, 822 (1977), we are convinced that no genuine issue of fact relating to
the termination remained to be tried. We turn, then, to the legal effect of that termination.
We note first that this is not a case in which the notice to quit was so equivocal, see Tseka
v. Scher, 65 A.2d 169 (Conn. 1949); Mitchell v. Wayave, 40 S.E.2d 284 (Va. 1946), that
appellants were lulled into assuming that the lease was still in effect. Neither is it asserted that
respondents waived their right to terminate the lease by accepting rent after notice of the
breaches, see Summa Corp. v. Richardson, 93 Nev. 228, 234, 564 P.2d 181, 185 (1977), nor
that the breaches were so technical or remediable that it would be inequitable to enforce the
termination, Thompson v. Coe, 115 A. 219 (Conn. 1921) (loss of rent in mail with immediate
offer to cure was so technical a breach that forfeiture of option would be inequitable). By
pleading only that the terms regarding the sale of the property had been complied with,
appellants have not properly asserted that the lease was still in force when the attempt to
exercise the option was made. Rademacher v. Rademacher, 178 P.2d 973, 982 (Wash. 1947).
[Headnote 6]
Instead, appellants assert that the option and the lease were separate contracts which ought
to be severed and enforced independently. Our reading of the instruments executed by the
parties indicates that this is not the case.
____________________

1
We observe that the exhibits attached to the motions for summary judgment made by both parties were only
sporadically the [s]worn or certified copies required by NRCP 56(e). Although we do not condone such
deviation from procedural requirements, since the point was not raised by either party and no prejudice appears,
NRCP 61 (because both parties submitted substantially the same exhibits), we shall not address the question.
parties indicates that this is not the case. All three documents, the Offer and Acceptance, the
lease, and the escrow instructions, refer to the Lease/Option to Purchase as parts of a single
transaction, and all recite the same terms. Looking to the function of the agreements rather
than merely to their form, Sandra Frocks v. Ziff, 74 N.E.2d at 703, we conclude that the lease
and option were meant to stand or fall together.
Appellants argue that the recital of a separate consideration for the option requires that it
be enforced without regard to the lease. They cite Gershenhorn v. Stutz, 72 Nev. 293, 304
p.2d 395 (1956), in which we noted, while refusing to enforce an option, that both option and
lease rested upon a common and indivisible consideration. 72 Nev. at 303, 304 P.2d at 400.
This point is not determinative; rather, we must look to whether each agreement forms a
complete contract alone. See Mathews Slate Co. v. New Empire Slate Co., 122 F. 972, 979
(C.C.N.D.N. Y. 1903). In Gershenhorn, the option could not be a separate contract because
the element of consideration was lacking; here, while the consideration is present for the
option, the term it was to remain open is supplied by the lease. Therefore, whether we view
the agreement as two separate contracts, which the term of the option is dictated by the term
of the lease, or as one contract, the termination of the lease effectively terminated the option
as well.
This case does not present a situation in which an attempt to terminate the lease is made
after the lessee has exercised the option. Ruark v. Peterson, 491 P.2d 75 (Colo.App. 1971);
Murfee v. Porter, 214 P.2d 543 (Cal.App. 1950). Here, we have an attempt to exercise an
option after notice has been received that the lease was terminated as permitted by the terms
of the lease. Were we to hold that such an exercise is valid, it would be difficult to imagine
how any covenant in such a lease could be enforced, or a reserved power of termination
exercised: the lessee would always have the freedom to violate the conditions of the lease
with the assurance that, if the power of termination were ever invoked, exercise of the option
would still be possible. Sandra Frocks v. Ziff, 74 N.E.2d at 704; Thompson v. Coe, 115 A. at
221.
We note that the summary judgment on the issue of the survival of the option disposes of
the causes of action of appellant Matthews, which are predicated on the existence of a valid
contract of sale.
The judgment of the district court is affirmed.
____________
95 Nev. 794, 794 (1979) Humboldt Basin Newspapers v. Sunderland
HUMBOLDT BASIN NEWSPAPERS, INC., CLAYTON F. DARRAH, and GEORGIA R.
DARRAH, Appellants, v. CAL SUNDERLAND, BARBARA SUNDERLAND, MICHAEL
SUNDERLAND, and WINNEMUCCA PUBLISHING CO., INC., a Nevada Corporation,
Respondents.
No. 10148
November 30, 1979 603 P.2d 278
Appeal from judgment of involuntary dismissal pursuant to NRCP 41(b). Sixth Judicial
District Court, Humboldt County; Llewellyn A. Young, Judge.
Sellers of newspaper brought suit seeking specific performance of the alleged oral contract
for sale or, in the alternative, for an accounting and for an injunction. The district court,
granted judgment of involuntary dismissal and sellers appealed. The Supreme Court,
Mowbray, C. J., held that: (1) evidence supporting an inference that buyers agreed to
purchase the newspaper but refused to sign a written contract or perform their agreement
when they realized that they could seize the newspaper's only assets, the subscription list, the
advertising, and the established community reputation, without paying for them precluded
involuntary dismissal, and (2) involuntary dismissal with respect to the causes of action for
specific performance or an accounting was error where it was within the trial court's power,
as a court of equity, to intervene to prevent such unjust enrichment as inferred by the sellers
or to return the parties, as nearly as possible, to the status quo ante.
Affirmed in part and reversed in part, and remanded with directions.
T. David Horton, Battle Mountain, for Appellants.
James A. Callahan and John M. Doyle, Winnemucca, for Respondents.
1. Trial.
A motion for involuntary dismissal admits truth of plaintiff's evidence and all inferences that reasonably
can be drawn therefrom and evidence must be interpreted in light most favorable to plaintiff. NRCP
41(b).
In action by sellers for specific performance of alleged contract of sale of newspaper, evidence
supporting an inference that buyers agreed to purchase the newspaper but refused to sign a written contract
or perform their agreement when they realized that they could seize the newspaper's only assets, the
subscription list, advertising, and established community reputation, without paying
for them precluded involuntary dismissal.
only assets, the subscription list, advertising, and established community reputation, without paying for
them precluded involuntary dismissal. NRCP 41(b).
3. Judgment.
In granting relief, district court is not bound to consider only form of relief requested in prayer. NRCP
54(c).
Judgment of involuntary dismissal was error with respect to causes of action for specific performance or
an accounting where, it was in court's power, as a court in equity, to intervene to prevent such unjust
enrichment as plaintiffs' evidence inferred or to return parties, as nearly as possible, to the status quo ante.
NRCP 54(c).
5. Injunction.
In action by seller on alleged contract of sale of newspaper, cause of action for injunctive relief against
various alleged tortious interferences with the newspaper's business by buyers was rendered moot by fact
that newspaper was defunct and remaining seller expressed no desire to return to the publishing business.
OPINION
Humboldt Basin Newspapers, Inc., Clayton Darrah (now deceased) and Georgia Darrah
appeal from the district court's involuntary dismissal, under NRCP 41(b), of their complaint
seeking specific performance of an alleged oral contract for the sale of their newspaper or, in
the alternative, for an accounting for the period the respondents, Cal, Barbara and Michael
Sunderland, were publishing the newspaper, and for an injunction of certain of respondents'
actions alleged to be tortious with respect to appellants' business. For the reasons discussed
below, we find that the judgment of involuntary dismissal was proper as to the cause of action
for an injunction, but error with respect to the causes of action for specific performance or an
accounting. We therefore affirm in part and reverse in part, and remand for further
proceedings in the district court.
In October, 1971, Clayton and Georgia Darrah advertised for the sale of their weekly
paper, the Humboldt County Bulletin, in a trade publication. Through the services of a broker,
respondent Cal Sunderland was put in contact with the Darrahs. After some negotiations
between Sunderland and the Darrahs, Sunderland was put in possession of the Bulletin.
Thereafter, Sunderland, along with his wife and son, published the Bulletin for six weeks in
December, 1971, and January, 1972, during which period the Sunderlands were introduced to
the community by the Darrahs as the new owners of the Bulletin. It is undisputed that,
during their publication of the Bulletin, the Sunderlands had orally agreed to pay all
expenses of the paper and to retain all earnings.
Bulletin, the Sunderlands had orally agreed to pay all expenses of the paper and to retain all
earnings. When the Darrahs' attorney presented the Sunderlands with a written contract for
the sale of the paper, however, the Sunderlands balked. The Sunderlands' attorney had
previously referred to the terms orally agreed upon for the contract of sale, but they
contended in the lower court that no final agreement had been reached, that they had never
agreed to assume personal liability on two promissory notes which the paper owed, and that
they had always insisted upon written guarantees from the newspaper's creditors and those of
the Darrahs that they would never look to the Sunderlands for payment.
When the Sunderlands refused to sign the written contract, the Darrahs demanded the
return of the Bulletin. The Sunderlands returned the few items of office equipment which
they had used in the Bulletin's office, but they refused to return the office itself or the
telephone number.
The Sunderlands proceeded to publish, on the same schedule as they had published the
Bulletin, a new newspaper, the Humboldt Sun. They used the same business address,
telephone number, legal announcements, display advertising and classified advertising that
had been used while they were publishing the Bulletin; they used the Bulletin's existing
second class mailing privileges to distribute the Sun; and they claimed to be the only
newspaper qualified to carry legal announcements in Humboldt County, a position formerly
held by the Bulletin. The Sun carried a list of carryover subscribers, and some advertisers
were apparently not informed that there had been any change in ownership or operation from
the Bulletin to the Sun.
The Darrahs continued to publish the Bulletin, on a greatly reduced scale, until May, 1972.
In March, 1972, they filed an action seeking specific performance of the contract to purchase
the paper, damages, an accounting for the period the Sunderlands were in possession of the
Bulletin, and seeking an injunction to prevent the Sunderlands from, among other things,
using the advertising that had appeared in the Bulletin, slandering the Darrahs' title to being
the publishers of the only newspaper entitled to print legal notices in Humboldt County, and
representing falsely that the Darrahs were out of business. The case came to trial in July,
1977, by which time Clayton Darrah, who had handled most of the negotiations with the
Sunderlands, had died. At the close of appellants' case in chief, respondents moved for
involuntary dismissal under NRCP 41(b). The trial court found that there had been no oral
contract for the sale of the paper, that an accounting was not required since there had been
no showing of malice on the part of the Sunderlands, and that an injunction should not
issue as there was no legal or contractual limit on the Sunderlands' right to start their
own newspaper.
required since there had been no showing of malice on the part of the Sunderlands, and that
an injunction should not issue as there was no legal or contractual limit on the Sunderlands'
right to start their own newspaper. This appeal ensued.
[Headnotes 1, 2]
The standard for evaluating the sufficiency of the evidence to avoid a judgment of
involuntary dismissal under NRCP 41(b) is well established: A motion for involuntary
dismissal admits the truth of plaintiff's evidence and all inferences that reasonably can be
drawn therefrom, and the evidence must be interpreted in the light most favorable to
plaintiff. Gunlock v. New Frontier Hotel, 78 Nev. 182, 183, 184, 370 P.2d 682, 683 (1962)
(citations omitted). In the instant case, the trial court found that there was no meeting of the
minds . . . in relation to the contract to purchase with the exception of the contract price.
However, the evidence, viewed in the light most favorable to appellants, supports an
inference that the Sunderlands agreed to purchase the paper but refused to sign the written
contract or to perform their agreement when they realized that they could seize the Bulletin's
only assets, the subscription lists, the advertising, and the established community reputation,
without paying for them. The truth or falsity of these inferences must be tested, of course,
after the presentation of respondents' case; but on the standard of review applicable to the
granting of Rule 41(b) motions, it cannot be said that appellants have failed to make out a
cause of action.
In a similar case, Rushton v. Tobler, 85 Nev. 503, 457 P.2d 584 (1969), we found that
plaintiffs' evidence, which could be read to show that an oral contract to purchase a business
had been entered into, the price agreed upon, possession of the business delivered to
defendants and operated by them, and an escrow opened to complete the transaction, was
more than ample to defeat a motion for involuntary dismissal under Rule 41(b). 85 Nev. at
505, 457 P.2d at 585. We consider the instant case to be in the same posture.
[Headnotes 3, 4]
Respondents have argued that the terms of the alleged oral agreement were not sufficiently
clear to support an action for specific performance. See Evans v. Lee, 12 Nev. 393 (1877).
While we express no opinion at this juncture as to what relief, if any, appellants may be
entitled to, we note that the district court is not bound to consider only the form of relief
requested in the prayer, NRCP 54(c); Smith v. Rahas, 73 Nev. 301, 318 P.2d 655 (1957). It
appears from appellants' evidence that during the period the Sunderlands were operating the
Bulletin, pursuant to an oral agreement to publish the paper while sale negotiations were
proceeding, they were in an agency or fiduciary relationship with appellants.
pursuant to an oral agreement to publish the paper while sale negotiations were proceeding,
they were in an agency or fiduciary relationship with appellants. The Sunderlands' retention
of the premises and of advertising copy obtained while they were publishing the Bulletin may
have been a breach of their duty to act in the interests of the Bulletin while they were so
engaged. See Dunfee v. Terwilliger, 15 F.2d 523 (9th Cir. 1926). If the trial court were to find
that respondents have in fact received substantially everything they would have obtained from
purchasing the Bulletin without actually paying for the paper, it would be within its power, as
a court of equity, to intervene to prevent such unjust enrichment or to return the parties, as
nearly as possible, to the status quo ante. Buckley v. Buckley, 12 Nev. 423 (1877).
[Headnote 5]
Since the appellants' evidence affirmatively shows that the Bulletin itself is defunct, and
the remaining owner expressed no desire to return to the publishing business in competition
with the now established Humboldt Sun, we consider appellants' cause of action for
injunctive relief, against various alleged tortious interferences with the Bulletin's business by
the Sunderlands, to have been rendered moot. Judgment of dismissal as to this cause of action
was appropriate, and to this extent we affirm the judgment of the district court. We reverse
the judgment of the district court with respect to the remaining causes of action and remand
with directions to deny respondents' motion for involuntary dismissal under NRCP 41(b).
Finally, we do not address appellants' remaining contentions, relating to the quashing of
subpoenas duces tecum, since we view the error, if any, as invited by appellants. Lester v.
Leuck, 50 N.E.2d 145 (Ohio 1943).
____________
95 Nev. 798, 798 (1979) Cooper v. Pacific Auto. Ins. Co.
DONALD COOPER, Appellant, v. PACIFIC AUTO-
MOBILE INSURANCE CO., Respondent.
No. 10245
November 30, 1979 603 P.2d 281
Appeal from judgment, Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Conversion action was commenced. The district court entered judgment for plaintiff, and
defendant appealed. The Supreme Court held that evidence that sale of car was for cash, was
consummated in the nighttime on a weekend, took place at a bar and that buyer made no
effort to verify any information given to him was sufficient to support conclusion that
buyer was not a "good faith purchaser."
was consummated in the nighttime on a weekend, took place at a bar and that buyer made no
effort to verify any information given to him was sufficient to support conclusion that buyer
was not a good faith purchaser.
Affirmed.
Keefer, Clark & O'Reilly, and R. Steven Young, Las Vegas, for Appellant.
Beckley, Singleton, Delanoy & Jemison, Chtd., and Robert D. Vannah, Las Vegas, for
Respondent.
1. Sales.
Whether or not a purchaser had notice of an outstanding claim or was buying in good faith is a factual
determination. NRS 104.2403, subd. 1(b).
2. Sales.
Evidence that sale of car was for cash, was consummated in the nighttime of a weekend, took place at a
bar and that buyer made no effort to verify any information given to him was sufficient to support
conclusion that buyer was not a good faith purchaser. NRS 104.2403, subd. 1(b).
OPINION
Per Curiam:
Respondent, plaintiff below, commenced this action in conversion against appellant,
Donald Cooper, and Melvin Kramer. Following trial, judgment was rendered only against
appellant Cooper, as Kramer was unavailable. Two issues confront us in this appeal. They
are: (1) Whether the trial court erred in its determination that appellant is not a bona fide
purchaser and by not adequately setting forth its findings; and (2) whether respondent stated a
claim for relief and adequately proved the elements of its cause of action.
On April 29, 1977, Mr. Harry Gordon was contacted by Melvin Kramer, aka, Fred
Schiller. Gordon, a partner with Independent Home Supply Company, had advertised in the
Los Angeles Times as being for sale a 1976 Cadillac. Independent Home Supply was the true
owner of the automobile. Gordon was selling the vehicle for the company.
Kramer, who represented himself to be Fred Schiller, offered to buy the car from Gordon
for $8,100. The transaction took place at Gordon's home on Friday, April 29. Payment was
made by Kramer with what appeared to be a valid cashier's check for the full amount. This
cashier's check was made out to Independent Home Supply Company. Gordon signed the
pink slip, dated it and filled out the motor vehicle transfer slip.
Gordon, who had only seen Kramer that Wednesday when he test drove the automobile, did
not ask for any identification at the time of the purchase. Mr. Gordon testified that Kramer
made a presentable appearance and gave no reason for Gordon to suspect him. The sale took
place in Los Angeles where Gordon lived and where Independent Home Supply is located.
On April 30, 1977, a Saturday, Kramer was in Las Vegas and contacted a Mr. Pete
Kubena, an automobile dealer. Kramer had attempted to sell the car to Kubena for $6,000.
Kubena contacted Gordon apparently to find out the circumstances of the sale that previous
day. At that time, Gordon became suspicious and more closely scrutinized the cashier's check.
Gordon then went to a neighbor who was a banker and was told that the check was bad.
Gordon contacted the Los Angeles police the following day.
Kramer, unsuccessful in his attempt to sell the car to Kubena, went down the street to
Lee's Ranch House Bar, which is owned by appellant Cooper. Kramer asked Cooper if he
knew of a car dealer in the area who may be interested in purchasing the automobile.
Appellant was informed of Kramer's purchase the previous day for $8,100 and was also told
that one car dealer had offered Kramer $7,000 for the car, but that Kramer would have to wait
until Monday for the money. After showing the car to appellant, Kramer offered to sell the car
for $6,000. Kramer had explained to appellant that he had had a bad streak of luck and that he
lost $15,000 gambling and wanted to sell the car. Appellant offered Kramer $5,000 cash and
the sale was consummated. Kramer furnished appellant with three sets of keys, the title,
handbook and the original price sticker on the car. Kramer also gave appellant the owner's
certificate, a bill of sale he wrote out himself, a smog inspection certificate, and the
registration. Appellant also saw a California driver's license with Kramer's photograph and
signature. Although appellant observed that the original title had been with Independent
Home Supply Company, he did not question the fact that the title had been signed over to
Kramer by M. Gordon. Appellant made no independent effort to verify any of the information
given to him, allegedly because the sale took place on a weekend, and also testified that
nothing about the transaction made him suspicious. Appellant registered the vehicle with the
Department of Motor Vehicles on May 2, 1977. On approximately May 5 or 6 appellant
learned that he had purchased the fraudulently obtained vehicle.
After Pacific Automobile Insurance Company paid Gordon for the loss, it instituted the
instant action to regain possession of the automobile pursuant to its right to subrogation under
the insurance contract.
the insurance contract. The findings of fact state that the delivery of the Cadillac from Gordon
to Kramer [Schiller] was in transaction made him suspicious. Appellant registered the
exchange for a cashier's check which was later dishonored; that Kramer delivered the
Cadillac to appellant in exchange for $5,000; and that appellant was not a good faith
purchaser for value.
1. Bona fide Purchaser.
[Headnote 1]
Nevada law provides that [a] person with voidable title has power to transfer a good title
to a good faith purchaser for value even if that first person obtained the property in
exchange for a check which is later dishonored. . . . NRS 104.2403(1)(b). Upon review it
must be determined whether appellant's status was a question of fact or law. Of course,
whether or not a purchaser had notice of an outstanding claim or was buying in good faith is a
factual determination. Golden v. Oahe Enterprises, Inc., 240 N.W.2d 102, 112-13 (S.D.
1976). See Riverside National Bank v. Law, 564 P.2d 240 (Okla. 1977); Landrum v.
Armbruster, 220 S.E.2d 842 (N.C.App. 1976); Lane v. Honeycutt, 188 S.E.2d 604
(N.C.App.), cert. denied, 190 S.E.2d 466 (N.C. 1972). The trial court stated as a finding of
fact that appellant was not a good faith purchaser.
We must now determine whether there was sufficient evidence to support the finding that
appellant was not a bona fide purchaser and whether the court properly set forth its findings
in its judgment. Our rules of civil procedure require that in any case tried upon the facts . . .
the court shall find the facts specifically and state separately its conclusions of law thereon
and direct the entry of the appropriate judgment. . . . NRCP 52(a). Here, the only findings of
fact were that the reasonable market value was $8,100, the first sale was in exchange for a
counterfeit cashier's check, the delivery of the car to appellant was for $5,000 cash, and
appellant was not a bona fide purchaser. The court explicates no other facts in support of its
determination.
[Headnote 2]
This court has previously held that in the absence of express findings it will imply findings
where the evidence clearly supports the judgment. Gorden v. Gorden, 93 Nev. 494, 496, 569
P.2d 397, 398 (1977). We note that the trial court, at the conclusion of the trial, stated that
the manner in which the car was sold, unfortunately, to [appellant], cried out for [appellant]
to be careful. Here, the sale was for cash; was consummated in the nighttime and on a
weekend; and, took place at a bar.
bar. Moreover, appellant made no effort to verify any of the information given to him. From
the record before us it may be implied that the lower court found that appellant should have
been on notice of an outstanding claim and was thus not buying in good faith. The judgment
of the lower court is supported by the evidence. Richfield Oil Corp. v. Harbor Insurance Co.,
85 Nev. 185, 192, 452 P.2d 462, 467 (1969); Chisholm v. Redfield, 75 Nev. 502, 508, 347
P.2d 523, 526 (1959).
2. The Claim and Proof.
Appellant next contends that respondent's complaint failed to state a claim for relief and
that respondent failed to prove the elements of its cause of action. Appellant has failed to cite
any relevant authority in support of this contention. In view of this failure, we may opt not to
consider the assignments of error. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025
(1979); Werner v. Shoshone Coca-Cola Bottling Co., 91 Nev. 286, 535 P.2d 161 (1975). In
any event, our inspection of the record reveals that no error was committed. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Williams v. United Credit Plan of Chalmette, Inc., 526
F.2d 713, 714 (5th Cir. 1976); Taylor v. State & University, 73 Nev. 151, 153, 311 P.2d 733,
734(1957). See also NRCP 8(a), 15(b); NRAP 31(c).
____________
95 Nev. 802, 802 (1979) Marshall v. State
ARTIE CHARLES MARSHALL, Appellant, v. THE
No. 11783
November 30, 1979 603 P.2d 283
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County; Robert
J. Legakes, Judge.
Defendant was convicted before the district court of dealing in credit cards of another, and
he appealed. The Supreme Court held that giving instruction directing jury to find that
defendant's possession of credit cards was with knowledge that they were stolen and that he
intended to defraud was reversible error.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
Richard H. Bryan, Attorney General, Robert J. Miller, District Attorney, and H. Douglas
Clark, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law; False Pretenses.
In prosecution for dealing in credit cards of another, giving instruction directing jury to find that
defendant's possession of credit cards was with knowledge that they were stolen and that he intended to
defraud was error, and such error could not be deemed harmless in light of fact that the instruction
concerned essential elements of the offense charged. NRS 47.230, subd. 2, 205.690, subd. 3.
2. False Pretenses.
Statutory presumption that a person possessing two or more credit cards issued in name or names of
another person or persons possesses them with knowledge that they have been stolen and with intent to
defraud is not a conclusive presumption. NRS 47.230, subd. 2, 205.690, subd. 3.
3. Criminal Law.
Statutory presumption that person possessing two or more credit cards issued in name or names of
another person or persons possesses them with knowledge that they have been stolen and with intent to
defraud may be the basis for an instruction permitting jury to infer guilty knowledge and intent, without
violating statute precluding judge from directing jury to find a presumed fact against the accused. NRS
47.230, subd. 2, 205.690, subd. 3.
OPINION
Per Curiam:
[Headnote 1]
Artie Charles Marshall was convicted by jury of dealing in the credit cards of another. He
was sentenced to five years in the Nevada State Prison. In our view the court committed
reversible error when, by instruction given over objection, it directed the jury to find that
Marshall's possession of the credit cards was with the knowledge that they were stolen and
that he intended to defraud.
1

[Headnotes 2, 3]
Although NRS 205.690(3) creates a presumption that a person possessing two or more
credit cards issued in the name or names of another person or persons is presumed to possess
them with the knowledge that they have been stolen and with the intent to defraud, such
presumption is not conclusive.
____________________

1
The instruction:
If you find beyond a reasonable doubt that the Defendant, ARTIE CHARLES MARSHALL, possessed two
or more credit cards issued in the name or names of another person or persons, you must assume that such
possession was with the knowledge that they were stolen and he intended to circulate, use, sell or transfer them
with the intent to defraud, unless the Defendant raises a reasonable doubt in your minds that his possession was
not with such knowledge or intent.
them with the knowledge that they have been stolen and with the intent to defraud, such
presumption is not conclusive. Indeed, NRS 47.230(2) commands that a judge shall not direct
the jury to find a presumed fact against the accused. This command was violated by the
instruction and the violation may not be deemed harmless since the erroneous instruction
concerned essential elements of the offense charged. The statutory presumption of NRS
205.690(3) may be the basis for a jury instruction permitting the jury to infer guilty
knowledge and intent, without violating NRS 47.230(2). Ricci v. State, 91 Nev. 373, 381, 536
P.2d 79 (1975). Language directing the jury to do so is impermissible.
____________
95 Nev. 804, 804 (1979) Wicker v. State
JAMES RICK WICKER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10679
November 30, 1979 603 P.2d 265
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of one count of rape and three counts of the
infamous crime against nature, and he appealed. The Supreme Court held that: (1) substantial
evidence supported defendant's convictions, and (2) defendant was properly convicted of each
separate crime, even though the acts were all committed within a relatively short time.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas R. Jarrett, Deputy Public Defender,
1. Rape; Sodomy.
In prosecution for rape and infamous crime against nature, there was substantial evidence to support
defendant's convictions despite defendant's contention that the sexual acts were with consent of the victims.
NRS 200.363, subd. 1 (Repealed); 201.190, subd. 1.
2. Criminal Law.
Statutes under which defendant was convicted for rape and infamous crime against nature established
separate and distinct sex offenses, and thus defendant was properly convicted of each separate crime even
though his sexual acts were all committed within a relatively short time. NRS 200.363, subd. 1
(Repealed); 201.190, subd. 1.
OPINION
Per Curiam:
Appellant James Rick Wicker contends we must reverse his conviction for one count of
rape and three counts of the infamous crime against nature because (1) the evidence adduced
at his trial was insufficient to support the verdict and (2) the district court erred by refusing to
give the jury several proposed instructions. We disagree.
The two female victims of the crimes testified at the trial that on May 3, 1977, Wicker and
a companion forcibly entered the victims' apartment. Wicker thereafter forced the first victim
to submit to intercourse and sodomy with him and to perform fellatio upon him. He also
forced the other victim to perform fellatio.
Wicker testified in his own defense that the sexual acts were committed with consent, and
that no force or coercion occurred. The jury, however, did not believe Wicker, and convicted
him of the aforementioned crimes.
1

[Headnote 1]
1. Wicker argues that his conviction cannot stand because the evidence presented at the
trial was insufficient to establish that he committed the sexual acts without the consent of the
victims.
This court has often stated that where there is conflicting testimony presented at a criminal
trial, it is within the province of the jury to determine the weight and credibility of the
testimony, and the verdict will not be disturbed on appeal on the ground that it is contrary to
the evidence where there is substantial evidence to support it. Hankins v. State, 91 Nev. 477,
538 P.2d 167 (1975). Here, there was substantial evidence to support the verdict. See
Henderson v. State, 95 Nev. 324, 594 P.2d 712 (1979).
____________________

1
The statutes under which Wicker was convicted provided in pertinent part:
NRS 200.363(1). Forcible rape is the carnal knowledge of a female against her will. A person convicted of
forcible rape shall be punished. . . .
NRS 201.190(1). [E]very person of full age who commits the infamous crime against nature shall be
punished. . . .
In 1977, the legislature repealed NRS 200.363 and amended NRS 201.190. 1977 Nev. Stats. ch. 598.
[Headnote 2]
2. Wicker also contends the district court committed reversible error by refusing to
instruct the jury that Wicker could be convicted, if at all, of only one offense relating to the
first victim because all of the individual sexual acts committed upon her were part of one
continuous and uninterrupted activity, and the legislature intended that such activity could
give rise to only one charge. This contention is also without merit.
The statutes under which Wicker was convicted, see n. 1, supra, established separate and
distinct sex offenses. See Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976); Hogan v. State,
84 Nev. 372, 441 P.2d 620 (1968). Cf. Burks v. State, 92 Nev. 670, 557 P.2d 711 (1976). The
offenses charged against Wicker under these statutes resulted from separate acts committed
on the person of the first victim. Wicker was therefore properly convicted of each separate
crime, even though the acts were all committed within a relatively short time. People v.
Slobodion, 191 P.2d 1 (Cal. 1948).
Affirmed.
____________
95 Nev. 806, 806 (1979) Womack v. Warden
VIRGIL PAUL WOMACK, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 12144
November 30, 1979 603 P.2d 267
Motion for order appointing substitute counsel for appellant.
Counsel filed motion to be relieved as appointed counsel for indigent appellant and for
appointment of substitute counsel. The Supreme Court held that counsel had to give appellant
due notice of the motion, and giving notice to warden, who was the respondent, was not
sufficient.
Denied.
Charles M. Kilpatrick, Carson City, for Appellant.
Patrick B. Walsh, Carson City, for Respondent.
Attorney and Client.
Counsel, who filed motion to be relieved as appointed counsel for indigent appellant and for appointment
of substitute counsel, had to give appellant due notice of the motion; giving notice to warden, who was the
respondent, was not sufficient.
95 Nev. 806, 807 (1979) Womack v. Warden
respondent, was not sufficient. SCR 203; ABA Code of Professional Responsibility, Canon 2; EC2-32;
DR2-110(A)(2).
OPINION
Per Curiam:
Charles M. Kilpatrick was appointed to represent appellant, an indigent. Mr. Kilpatrick
now moves to be relieved as appellant's attorney, and for appointment of substitute counsel.
The motion was served by mail on respondent's counsel, who does not oppose the motion.
However, there is no indication that the motion was served on appellant, Mr. Kilpatrick's
client.
The Code of Professional Responsibility of the American Bar Association has been
adopted by reference into the Nevada Supreme Court Rules. SCR 203. Under the Code, a
lawyer must give adequate notice of withdrawal to his client. Canon 2, Ethical Consideration
2-32
1
; Disciplinary Rule 2-110(A)(2).
2

Where a lawyer seeks to withdraw as appointed counsel for a client, notice to the adverse
party is not enough. It is the client whose rights and interest are affected. Thus, due notice of
the motion to withdraw must be given to the client. See In re Kaufman, 93 Nev. 452, 567 P.2d
957 (1977).
Counsel's motion for appointment of substitute counsel is denied without prejudice to the
re-filing of the motion with adequate proof or acknowledgment of service on appellant.
It is so ORDERED.
____________________

1
Ethical Consideration 2-32 provides in part, that when a lawyer withdraws from a case, he should protect
the welfare of his client by by giving due notice of his withdrawal.

2
Disciplinary rule 2-110(A)(2) provides, in part, that a lawyer shall not withdraw from employment until he
has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice
to his client. . . .
____________
95 Nev. 807, 807 (1979) Bader Enterprises, Inc. v. Becker
BADER ENTERPRISES, INC., a Delaware Corporation, Appellant, v. ERNEST A.
BECKER, Doing Business Under the Firm Name and Style of CHARLESTON HEIGHTS
SHOPPING CENTER, a Limited Partnership of Nevada, Respondent.
No. 10213
November 30, 1979 603 P.2d 268
Appeal from order granting summary judgment, Eighth Judicial District, Clark County;
James A. Brennan, Judge.
Complaint was filed alleging that defendant had converted certain property belonging to
plaintiff and that the property was involved in the bankruptcy of a third person. The district
court granted defendant's motion for summary judgment on statute of limitations grounds,
and plaintiff appealed. The Supreme Court held that summary judgment was precluded by the
existence of issues of fact as to whether the property involved in the alleged conversion was
within the exclusive jurisdiction of the federal bankruptcy court at the time of the conversion
and, thus, whether federal statutes suspended any state statute of limitations.
Stanley W. Pierce, Las Vegas, for Appellant.
Smith & O'Brien, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is appropriate only when the truth is quite clear and no genuine issue of fact remains.
2. Bankruptcy.
Under bankruptcy statutes, any non-exempt property within the bankrupt's possession comes within the
exclusive jurisdiction of the bankruptcy court. Bankr.Act, 70, 311, 11 U.S.C.A. 110,711.
3. Judgment.
In suit wherein creditor of bankrupt alleged that defendant, also a creditor of the bankrupt, had converted
certain property belonging to plaintiff, summary judgment favorable to defendant's claim that the statute of
limitations on a cause of action for conversion had run was precluded by the existence of issues of fact
bearing on question whether the property involved was within the exclusive jurisdiction of the federal
bankruptcy court at the time of the alleged conversion and, thus, whether bankruptcy proceedings had
suspended the state statute of limitations. Bankr.Act, 11(f), 391, 11 U.S.C.A. 29(f), 791.
OPINION
Per Curiam:
Appellant, Bader Enterprises, Inc. (Bader), filed an unverified complaint on December 19,
1975. In its complaint Bader alleged that on June 12, 1972, respondent, Ernest A. Becker
(Becker) converted certain property belonging to Bader. Additionally Bader alleged that the
property was involved in a bankruptcy of a third person. Becker answered the complaint and
on July 15, 1977 made a motion for summary judgment. As the basis for the motion, Becker
contended that the statute of limitations for a claim in conversion, NRS 11.190(3)(c), had run.
Thus, Becker argued that Bader's claim for relief was barred.
Bader argued that at the time of the alleged conversion the property at issue was within the
exclusive jurisdiction of the Federal Bankruptcy Court. It was also asserted that 11 U.S.C.
29(f)
1
and 791
2
controlled, and that these federal statutes suspend any state statute of
limitations affecting the debts of a bankrupt.
3
Upon the facts presented, the trial court
found that there was no genuine issue of material fact and granted Becker's motion for
summary judgment. We do not agree.
[Headnote 1]
Summary judgment is appropriate only when the truth is quite clear, and no genuine issue
of fact remains. Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d 819 (1977); Perry v.
Byrd, 87 Nev. 431, 488 P.2d 550 (1971); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d
979 (1963). While at first blush it appears that the 3-year statute of limitations precludes the
appellant's claim, upon a more in-depth analysis it becomes evident that there are material
issues of fact which are still at issue.
[Headnote 2]
The essential question on appeal is whether the bankruptcy proceedings suspended the
state statute of limitations. According to the bankruptcy statutes, any non-exempt property
within the bankrupt's possession comes within the exclusive jurisdiction of the
bankruptcy court.
____________________

1
29. Suits by and against bankrupts.
. . . .
(f) The operation of any statute of limitations of the United States or of any State, affecting the debts of a
bankrupt provable under this title, shall be suspended during the period from the date of the filing of the petition
in bankruptcy (1) until the expiration of thirty days after the date of the entry of an order denying his discharge;
or (2) if he has waived or lost his right to a discharge, then until the expiration of thirty days after the filing of
such waiver or loss of such right or, in the case of a corporation, if no application for a discharge is filed within
the period of six months after the adjudication, then until the expiration of thirty days after the end of such
period; or (3) until thirty days after the dismissal of the bankruptcy proceedings, whichever may first occur.

2
791. Suspension of statutes of limitation, etc.
All statutes of limitation affecting claims provable under this chapter and the running of all periods of time
prescribed by this title in respect to the commission of acts of bankruptcy, the recovery of preferences and the
avoidance of liens and transfers shall be suspended while a proceeding under this chapter is pending and until it
is finally dismissed.

3
The Federal Bankruptcy Law has been substantially repealed by P.L. 95-598, Bankruptcy Reform Act of
1978 (effective October 1, 1979). All references in this opinion are made to the federal statutes prior to the
effective date of the 1978 reform Act.
the bankrupt's possession comes within the exclusive jurisdiction of the bankruptcy court. 11
U.S.C. 110
4
and 711
5
. See Thompson v. Magnolia Co., 309 U.S. 478 (1940); Guardian
Mortgage Investors v. Unofficial Noteholders-Debentureholders Creditors Committee, 607
F.2d 1020 (2d Cir. 1979); Tolk v. Weinsten, 220 S.E.2d 239 (S.C. 1975); see generally 8
Collier, Bankruptcy 3.01 (14 ed. 1978).
The United States Supreme Court has stated that the purpose of the bankruptcy law is to
place the property of the bankrupt, wherever found, under the control of the court, for equal
distribution among the creditors. Straton v. New, 283 U.S. 318 (1931). In order to accomplish
this purpose, that Court has reasoned that once a petition in bankruptcy is filed, the federal
courts acquire the exclusive right to administer all property in the bankrupt's possession.
Straton v. New, supra; Lazarus v. Prentice, 234 U.S. 263 (1914); Hebert v. Crawford, 228
U.S. 204 (1913); U.S. Fidelity Co. v. Bray, 225 U.S. 205 (1912); Murphy v. John Hofman
Co., 211 U.S. 562 (1909); White v. Schloerb, 178 U.S. 542 (1900).
In 1938 the applicable sections, 11 U.S.C. 29(f) and 791, were added to preserve the
property of the bankrupt until the various and relative values and rights of all parties
concerned could be determined and passed upon by the bankruptcy court. Martin v. Goggin,
238 P.2d 84 (Cal.App. 1951). Other courts have held that these federal statutes suspend all
statutes of limitations without exception. See Booloodian v. Ohanesian, 91 Cal.Rptr. 923
(Cal.App. 1970); Wells v. California Tomato Juice, 118 P.2d 916 (Cal.App. 1941).
[Headnote 3]
In the instant case appellant and respondent are creditors of the bankrupt, Brathendale
Soup Kettle. Brathendale leased unimproved real property from Becker on December 15,
1969. Pursuant to the terms of the lease, Brathendale constructed a building on the real
property. The lease provided that Brathendale was to retain all title to any improvements upon
the real property and that it could remove the improvements prior to the expiration of the
lease.
____________________

4
110. Title to property.
(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their
appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the
date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is
held to be exempt, . . .

5
711. Exclusive jurisdiction of debtor and property.
Where not inconsistent with the provisions of this chapter, the court in which the petition is filed shall, for
the purposes of this chapter, have exclusive jurisdiction of the debtor and his property, wherever located.
On January 25, 1971, Bader entered into an equipment lease with Brathendale. As security
for this lease, Brathendale assigned all its right, title and interest in and to the improvements
located upon the real property.
Brathendale filed a petition for arrangement under Chapter XI of the Bankruptcy Act on
January 24, 1972. The bankruptcy court terminated Becker's real property lease on June 7,
1972. From the record it does not appear that the bankruptcy court released possession of the
building or the equipment lease at that time. Bader alleges that Becker converted the building
and equipment on July 12, 1972, shortly after the real property lease was terminated. The
bankruptcy court entered an order abandoning the building and equipment on January 10,
1974.
It appears to this court that a question of fact remains. The record before this court does
not contain a finding as to who had possession of the building or the equipment at the time of
Brathendale's filing of its petition in bankruptcy. If Brathendale indeed had possession at the
time of the filing of the petition, the statute of limitations was suspended by 11 U.S.C.
29(f) and 791. See Booloodian v. Ohanesian, supra.
Accordingly, we reverse and remand for further proceedings not inconsistent with this
opinion.
____________
95 Nev. 811, 811 (1979) Sievers v. Diversified Mtg. Investors
FERDIE SIEVERS AND LAKE TAHOE LAND COMPANY, INC., and KINGSBURY
LEASING COMPANY, Appellants, v. DIVERSIFIED MORTGAGE INVESTORS, A
MASSACHUSETTS TRUST, et al., Respondents.
No. 11942
November 30, 1979 603 P.2d 270
Appeal from declaratory judgment, Ninth Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
Developers brought suit for declaratory judgment requesting the court to declare that the
promissory note entered into between developers and lender was usurious and that all interest
paid be returned to developers and for damages for breach of contract. The district court
entered judgment against developers and developers appealed. The Supreme Court,
Manoukian, J., held that: (1) the parties properly stipulated to the law of the lender's state
under which the loan transaction was not usurious, and (2) lender was not in breach of the
contract when it failed to release portions of the secured properly under a provision of the
loan agreement where developers had created a potential impairment of security in
violation of the contract.
provision of the loan agreement where developers had created a potential impairment of
security in violation of the contract.
Affirmed.
Carl F. Martillaro and Edward Bernard, Carson City, for Appellants.
Fahrenkopf, Mortimer, Sourwine, Mousel and Sloane, Reno, for Respondents.
1. Contracts.
The expressed intention of parties as to applicable law in construction of a contract is controlling if
parties acted in good faith and not to evade law of real situs of contract.
2. Contracts.
Under choice-of-law principles, parties are permitted within broad limits to choose law that will
determine validity and effect of their contract; however, situs fixed by agreement must have a substantial
relation with transaction and agreement must not be contrary to public policy of forum state.
3. Usury.
Law stipulated in contract between developer and out-of-state lender would control to allow a rate of
interest which was usurious in the forum state but legal under law stipulated, where parties acted in good
faith with knowledge that the interest rate exceeded that allowed in forum state, situs fixed by agreement
had a substantial relation with the transaction in that all loans and loan documents were prepared, executed
and processed in that state, in which lender conducted its business, and public policy of forum had no
interest in parties contracting beyond the state's jurisdiction. NRS 99.050
4. Usury
Usury statute may not abrogate rights of parties contracting beyond state's jurisdiction, having little or no
relation to anything done or to be done within the state. NRS 99.050.
5. Usury.
If parties have stipulated to a fair and reasonable rate of interest valid under laws of a state to which
transaction has a substantial nexus and there is not a clear effort to avoid forum law, provision should not
be found violative of public policy of forum state unless rate of interest is substantially above what forum
law allows so as to shock the conscience of the court. NRS 99.050.
6. Contracts.
Where developers were delinquent on taxes and assessments, interest was overdue, and developers
redistributed lot densities without securing required approval of lender, thereby creating a potential
impairment of security in violation of contract, lender was not in breach when it failed to release portions
of secured property under provision of loan agreement.
OPINION
This is an appeal from the granting of declaratory judgment in favor of respondents. In this
action, plaintiff-appellants requested the district court to declare that the promissory note
entered into between appellants and respondent, Diversified, was usurious and that all
interest paid be returned to appellant.1 Appellants also asked for damages for breach of
contract.
requested the district court to declare that the promissory note entered into between appellants
and respondent, Diversified, was usurious and that all interest paid be returned to appellant.
1
Appellants also asked for damages for breach of contract.
Two issues are presented for our consideration, namely: (1) Whether the loan transaction
was usurious; and (2) Whether respondent breached the contract by failing to comply with
release clauses and, if so, whether appellants have a remedy. We answer both questions in the
negative.
Several weeks after the commencement of this action, respondent noticed a non-judicial
foreclosure sale for June 14, 1978 on the real property which secured the promissory note.
Following the entry of a temporary restraining order against the proposed sale, the trial court
entered a preliminary injunction enjoining the sale pending a final determination of this
action. Following the trial on the merits, judgment was rendered against appellants. This
court entered a stay pending appeal.
In early 1971, appellant Lake Tahoe Land Company, a Nevada Corporation, acting through
its president, appellant Ferdie Sievers, attempted to secure financing in Nevada for a large
building construction project. Sievers, unable to secure financing in this state, sought
financing from persons outside Nevada, including Diversified. Negotiations between
appellants and respondent began with most discussions in this state. Respondent Diversified
is a Massachusetts business trust organized under the laws of that state and engaged in
making loans throughout the United States.
On April 20, 1971, negotiations between the parties concluded with the execution of a loan
agreement, promissory note, and deeds of trust in Boston, Massachusetts. The promissory
note from Lake Tahoe Land Company was in the amount of $1,200,000, interest payable at
14 percent per annum. The entire remaining balance was due and payable on April 20, 1976.
A second loan was made on December 7, 1972, to assist appellant Land Company on the
first loan, which had become delinquent.
____________________

1
1. Parties may agree for the payment of any rate of interest on money due or to become due on any contract
which does not exceed the rate of 12 percent per annum, except as otherwise provided in subsection 2.
2. If the lowest daily prime rate at the three largest United States banking institutions is 9 percent or more, the
maximum rate of interest shall not exceed such lowest daily prime rate plus 3.5 percent. . . .
3. Any agreement for a greater rate of interest than specified in this section is null and void and of no effect as
to such excessive rate of interest.
appellant Land Company on the first loan, which had become delinquent. Both loans were
secured by two deeds of trust on appellants' land in Douglas County and by appellant Sievers'
personal guarantee of the promissory note.
The notes provide that principal and interest is payable in Boston, Massachusetts. Loan
disbursements came from respondent's bank account in Massachusetts and appellants'
payments were deposited in that account. Additionally, the parties agreed, in Paragraph 39h
of the loan agreement, that the laws of Massachusetts would control.
The laws of the Commonwealth of Massachusetts shall govern in the interpretation,
construction, enforcement, and all other aspects of the rights, obligations and duties
created under the Loan, this Agreement, the Note and Mortgage, except where the law
of the state in which the land is situated governs in the enforcement of the security of
the loan.
Interest payments were first in default in February 1972. After the modification and new loan
in December of 1972, the interest was again in default in October of 1974.
Paragraph 10 of the loan agreement provided that the lender agreed that it would execute
partial releases of the property subject to the lien as set forth in the release schedule. Such
releases were to be made provided that there was no default under the note, deeds of trust, or
the agreement. The release schedule provided that no part of an entire tract would be released
if in the sound discretion of the Lender, the remainder of the tract is reduced in value
because of the requested release. Although releases were made upon written request until
September of 1974, as required by the schedule, a request for release in March of 1975 was
refused. In May of 1975 Diversified informed appellants that it would not release the property
because real property taxes were in arrears.
1. The Usury Question.
Interest in excess of twelve percent per annum in Nevada is prohibited. NRS 99.050. Here,
the loan agreements both called for interest at fourteen percent per annum. In fact, the trial
court found that the interest paid was actually 14.58 percent per annum for the aggregate loan.
Thus, it is clear that the interest agreed to here would violate Nevada law. Pease v. Taylor, 88
Nev. 287, 291, 496 P.2d 757, 760 (1972). The record, however, is uncontradicted that the
parties agreed that the laws of Massachusetts would control. Massachusetts statutes provide
that interest may be assessed at no more than twenty percent per annum. Mass. Ann. Laws ch.
271, 49 (Michie/Law.
Co-op Supp. 1979). If Massachusetts law controls, the loan will not be considered usurious.
[Headnotes 1, 2]
It is well settled that the expressed intention of the parties as to the applicable law in the
construction of a contract is controlling if the parties acted in good faith and not to evade the
law of the real situs of the contract. Seeman v. Philadelphia Warehouse Co., 274 U.S. 403,
407 (1927); Bedford v. Eastern Building & Loan Ass'n, 181 U.S. 227, 242-43 (1901); Big
Four Mills v. Commercial Credit Co., 211 S.W.2d 831, 836 (Ky.App. 1948); Hansen v.
Duvall, 62 S.W.2d 732, 739 (Mo. 1933). Under choice-of-law principles, parties are
permitted within broad limits to choose the law that will determine the validity and effect of
their contract. Gamer v. DuPont Glore Forgan, Inc., 135 Cal.Rptr. 230, 234-35 (Cal.App.
1976); Grady v. Denbeck, 251 N.W.2d 864, 865 (Neb. 1977). See Restatement (Second) of
Conflicts of Laws 187 (1971). The situs fixed by the agreement, however, must have a
substantial relation with the transaction, Seeman v. Philadelphia Warehouse Co., 274 U.S. at
408; Fahs v. Martin, 224 F.2d 387, 397 (5th Cir. 1955); Solevo v. Aldens, Inc., 395 F.Supp.
861, 864 (D.Conn. 1975), and the agreement must not be contrary to the public policy of the
forum. Big Four Mills v. Commercial Credit Co., 211 S.W.2d at 837; Kinney Loan &
Finance Co. v. Summer, 65 N.W.2d 240, 245 (Neb. 1954). See generally Annot., 125 A.L.R.
482 (1940); 45 Am.Jur.2d Interest and Usury 18-33 (1969); 16 Am.Jur.2d Conflict of
Laws 46-51 (1964).
[Headnote 3]
The lower court found that the parties acted in good faith and not for the purpose of
evading forum laws. The record supports this finding. The evidence showed that appellants
had to contact out of state lenders who would accommodate their needs; respondent, a
business trust, transacts business throughout the country and centralizes its business in
Massachusetts; with one unrelated exception, the parties stipulated to the applicability of
Massachusetts laws; appellant Sievers, experienced in such business transactions, understood
that those laws would be applicable and knew that the interest rate exceeded that allowed in
Nevada; principal and interest was paid in Massachusetts and the loan proceeds were
disbursed from there. Additionally, respondent, in order to be consistent and to provide an
aura of predictability to the real estate lending operation of the trust, had all loans and loan
documents prepared, executed and processed in Massachusetts. This included appellant
Sievers' personal guarantee of the promissory note.
included appellant Sievers' personal guarantee of the promissory note. The trial court
concluded that the negotiations were conducted in Nevada to accommodate appellants and the
fact that the real property securing the loan was located in this state is inconsequential.
National Surety Corp. v. Inland Properties, Inc., 286 F.Supp. 173, 188 (E.D.Ark. 1968).
There is no doubt here but that Massachusetts is the state with the dominant interest. There
was substantial evidence to support the finding below that the transaction had a substantial
relationship with Massachusetts. These findings by the lower court also preclude a finding
that this was an adhesion contract which would invalidate the stipulation. See Big Four Mills
v. Commercial Credit Co., 211 S.W.2d at 836-37; Ehrenzweig, Adhesion Contracts in the
Conflict of Laws, 53 Colum.L.Rev. 1072, 1077-79 (1953).
[Headnote 4]
Appellant contends that the interest provision in the contract is violative of Nevada public
policy and, as such, Massachusetts law is inapplicable. Appellants rely on Pease v. Taylor, 88
Nev. 287, 496 P.2d 757 (1972). Although Pease held that our usury laws formed part of the
public policy of this state, there is no evidence to suggest that NRS 99.050 was intended to
have extra-territorial effect. Absent legislative direction, we are under no compulsion to apply
the statute here. The statute may not abrogate rights of parties contracting beyond the state's
jurisdiction, having little or no relation to anything done or to be done within Nevada. Home
Insurance Co. v. Dick, 281 U.S. 397, 410 (1930). Because the transaction in Pease was
wholly within this state, appellants' reliance is misplaced.
Appellants argue that out of state lenders must be placed on a parity with lenders within
the state so as not to give license to the former simply because the borrower has stipulated to
the charge. A crucial function of choice-of-law rules is that their application should further
harmonious relations between states and facilitate commercial intercourse between them. If
we disregard this important conflicts function here because a contract provision is not in
accord with our statutes and thus violative of a strong forum public policy, we would perhaps
rarely find another state's laws controlling. Consequently, the clear intentions of the parties
would be defeated.
[Headnote 5]
Nevada's statutory changes to higher interest rates reflect an awareness by our legislature
that interest is escalating elsewhere. See (1979) Nev. Stats. ch. 498, 2, at 963-64; 1975 Nev.
Stats. ch. 758, 1, at 1794. There will often be times when a rate outside of this state must
be used.
rate outside of this state must be used. NRS 99.050(2) (use of prime rate). If the parties have
stipulated, as in the instant case, to a fair and reasonable rate of interest valid under the laws
of a state to which the transaction has a substantial nexus, and there is not a clear effort to
evade our state law, the provision should not be found violative of our public policy unless
the rate is substantially above what our law allows so as to shock the conscience of this court.
Trinidad Industrial Bank v. Romero, 466 P.2d 568, 571-72 (N.M. 1970). See Solevo v.
Aldens, Inc., 395 F.Supp. at 865-66; National Surety Corp. v. Inland Properties, Inc., 286
F.Supp. at 188-89. Here, there is no substantial evidence that Diversified's intent was to do
anything other than to have all of its loan transactions governed by the laws of its domicile.
2. The Breach.
Appellants contend that respondent was in breach of contract when it failed to release
portions of the secured property under a provision of the loan agreement, pursuant to written
requests by appellants in March of 1975. Appellants argue that this material failure was
without justification and, as a result, relieved appellants of their duty to pay subsequent
interest.
[Headnote 6]
The findings of the lower court were that appellants were delinquent on taxes and
assessments, interest was overdue, and that appellants re-distributed the lot densities without
securing the required approval of Diversified, thereby creating a potential impairment of
security in violation of the contract. Findings will not be overturned on appeal when, as here,
they are supported by substantial evidence. Harris v. Shell Development Corp., 95 Nev. 348,
351, 594 P.2d 731, 733 (1979).
We affirm the judgment of the lower court. We also dissolve this court's order which
stayed the proposed non-judicial sale of the real property.
____________
95 Nev. 818, 818 (1979) Sheriff v. Chumphol
SHERIFF OF WASHOE COUNTY, NEVADA, Appellant,
v. POOLSAWAS CHUMPHOL, Respondent.
No. 12302
December 11, 1979 603 P.2d 690
Appeal from order granting pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; William N. Forman, Judge.
The Supreme Court held that the habeas corpus petition, which did not contain the
required consent and was not verified was not cognizable in the district court.
and William A. S. Magrath, II, Deputy District Attorney, Washoe County, for Appellant.
Terry A. Friedman, Reno, for Respondent.
1. Habeas Corpus.
Unverified petition for writ of habeas corpus is not cognizable. NRS 34.370, subd. 3.
2. Habeas Corpus.
Petition for writ of habeas corpus which did not contain the required consent and was not verified was not
cognizable in district court. NRS 34.370, subd. 3, 34.375, subd. 1(b)(3), 34.380, subd. 4(a).
OPINION
Per Curiam:
[Headnotes 1, 2]
On September 25, 1979, respondent filed a pretrial petition for a writ of habeas corpus.
The petition did not contain the consent required by NRS 34.375(1)(b)(3). Such a petition
may not be considered. NRS 34.375(1); 34.380(4)(a). In addition, the petition was not
verified as required by NRS 34.370(3). An unverified petition for a writ of habeas corpus is
not cognizable. Sheriff v. Arvey, 93 Nev. 72, 560 P.2d 153 (1977). Nevertheless, the district
court granted the petition, and the state has appealed.
We do not reach the merits of the appeal. The habeas petition was not cognizable in the
district court for both of the reasons stated above. Accordingly, we reverse. This proceeding
is remanded to the district court with instructions to dismiss the petition. See Sheriff v.
Toston, 93 Nev. 394, 566 P.2d 411 (1977).
___________
95 Nev. 819, 819 (1979) Whitley v. Jake's Crane & Rigging, Inc.
HORACE J. WHITLEY, Appellant, v. JAKE'S CRANE &
RIGGING, INC., a Nevada Corporation, Respondent.
No. 10272
December 11, 1979 603 P.2d 689
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Worker brought personal injuries action against subcontractor. The district court entered
judgment for subcontractor, and worker appealed. The Supreme Court held that where
general contractor entered into two contracts regarding certain equipment it owned and was
storing, and pursuant to first contract, defendant subcontractor unloaded and stored
equipment on its premises, and under terms of second contract, worker's employer supplied
technical direction, clerical support and casual laborers in the unloading and storing process,
and employee of general contractor was at all times present in the unloading yard to monitor
the work, general contractor performed the function of principal employer, including the
exercise of supervisory control over work on project, and, therefore, defendant subcontractor
was immune from tort liability to injured worker under provisions of the Nevada Industrial
Insurance Act.
Affirmed.
Goodman, Oshins, Brown & Singer, and Kirby R. Wells, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, and Gerald I. Gillock, Las Vegas, for Respondent.
In determining whether individual is an employee entitled to compensation under Workers' Compensation
Act, the Supreme Court has adopted a policy of broad and liberal interpretation; under such flexible
approach, the Court has rejected a test focusing exclusively upon degree of control over operational details
and instead has accorded substantially equal weight to several different factors, including degree of
supervision, source of wages, existence of right to hire and fire, right to control hours and location of
employment and extent to which workers' activities further the general business concerns of alleged
employer.
Where general contractor entered into two contracts regarding certain equipment it owned and was
storing, and pursuant to first contract, defendant subcontractor unloaded and stored equipment on its
premises, and under terms of second contract, worker's employer, another subcontractor, supplied technical
direction, clerical support and casual laborers in the unloading and storing process, and employee of
general contractor was at all times present in the unloading yard to monitor the work, general contractor
performed the function of principal employer, including the exercise of supervisory control over
work on project, and, therefore, defendant subcontractor was immune from tort
liability to injured worker under provisions of the Nevada Industrial Insurance Act.
exercise of supervisory control over work on project, and, therefore, defendant subcontractor was immune
from tort liability to injured worker under provisions of the Nevada Industrial Insurance Act. NRS
616.010-616.680.
OPINION
Per Curiam:
Horace Whitley has appealed from an order of the district court granting Jake's Crane &
Rigging, Inc.'s (Jake's) motion for summary judgment. Whitley was injured on November 24,
1975, by a crane owned and operated by Jake's. He sought and recovered an award from the
Nevada Industrial Commission (NIC) under the policy or his employer, Westinghouse, and
subsequently commenced this tort action against Jake's. The district court found that
Westinghouse and Jake's were both subcontractors of a principal employer, Southern
California Edison (Edison), and that Jake's was, therefore, immune from tort liability under
the provisions of the Nevada Industrial Insurance Act (NIIA). NRS 616.010-616.680. We
affirm that decision.
NRS 616.560(1) provides that an employee . . . [who] receives an injury . . . which injury
was caused under circumstances creating a legal liability in some person, other than the
employer or a person in the same employ may proceed against such third party in tort.
(Emphasis supplied.) In Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969), we
addressed the question of whether employees of separate subcontractors, working at the same
jobsite, should be considered persons in the same employ for the purposes of NRS 616.560.
We concluded that immunity from common law tort liability did so extend, relying in part on
NRS 616.085, which reads: Subcontractors and their employees shall be deemed to be
employees of the principal contractor.
On appeal, however, Whitley maintains that the record fails to demonstrate that Edison
had sufficient control of the project to entitle it to attain the status of an employer under the
NIIA.
Prior decisions of this court have held that an owner of property who functions as his own
principal contractor will be deemed an employer under the act. Hosvepian v. Hilton Hotels
Corp., 94 Nev. 768, 587 P.2d 1313 (1978); 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).
[Headnote 1]
In determining whether an individual is an employee entitled to compensation under
workmen's compensation acts, we have adopted a policy of broad and liberal interpretation.
Antonini v. Hanna Industries, 94 Nev. 12
v. Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (1978); Nevada Ind. Comm'n v. Bibb, 78
Nev. 377, 374 P.2d 531 (1962). Under this flexible approach, we have rejected a test focusing
exclusively upon the degree of control over operational details and instead have accorded
substantially equal weight to several different factors, including the degree of supervision, the
source of wages, the existence of a right to hire and fire, the right to control the hours and
location of employment and the extent to which the worker's activities further the general
business concerns of the alleged employer. Antonini v. Hanna Industries, supra; see also
McDowell Constr. Supply v. Williams, 90 Nev. 75, 518 P.2d 604 (1974); Nevada Ind.
Comm'n v. Bibb, supra; Titanium Metals v. District Court, supra. Indeed, lack of control has
not always been deemed conclusive. Nevada Ind. Comm'n v. Bibb, supra.
[Headnote 2]
The record before this court shows that Edison entered into two contracts regarding certain
equipment it owned and was storing in Las Vegas, Nevada. Pursuant to the first contract,
Jake's unloaded and stored this equipment on its premises. Under the terms of the second
contract, Westinghouse supplied technical direction, clerical support and casual laborers in
the unloading and storing process. An employee of Edison was at all times present in the
unloading yard to monitor the work.
These facts demonstrate that Edison performed the function of principal employer,
including the exercise of supervisory control over the work on the project. Therefore,
pursuant to NRS 616.085 and NRS 616.560 the NIIA provides Whitley his sole remedy.
Summary judgment is affirmed.
____________
95 Nev. 821, 821 (1979) Dawson v. Dawson
JUDITH ANN DAWSON, Appellant, v. COWAN
DAWSON, Respondent.
No. 10421
December 11, 1979 603 P.2d 691
Appeal from order modifying decree of divorce, Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
The Supreme Court held that trial court did not err in granting divorced husband's motion
to modify parties' divorce decree by reducing divorced husband's child support obligations
from $150 per month per child to $100 per month per child.
95 Nev. 821, 822 (1979) Dawson v. Dawson
decree by reducing divorced husband's child support obligations from $150 per month per
child to $100 per month per child.
Affirmed.
Smith & O'Brien, and Richard A. Avila, Las Vegas, for Appellant.
Edward G. Marshall, Las Vegas, for Respondent.
Divorce.
Trial court did not abuse its discretion in granting divorced husband's motion to modify parties' divorce
decree by reducing divorced husband's child support obligations from $150 per month per child to $100
per month per child on ground of changed circumstances.
OPINION
Per Curiam:
Appellant Judith Ann Dawson contends in this appeal that the district judge erroneously
granted a motion to modify the parties' decree of divorce by reducing respondent's child
support obligations from $150 per month per child to $100 per month per child. (The parties
have two children, both of whom are in the custody of appellant.)
The reduction in the amount of child support payments was based on changed
circumstances of the parties, and was a matter addressed to the sound discretion of the trial
court, the exercise of which will not be disturbed on appeal unless clearly abused. Culbertson
v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975); Goodman v. Goodman, 68 Nev. 484, 236
P.2d 305 (1951).
Here, a review of the record indicates that it was within the discretion of the district judge
to modify respondent's child support obligations. Buchanan v. Buchanan, 90 Nev. 209, 523
P.2d 1 (1974).
____________
95 Nev. 822, 822 (1979) Aetna Cas. & Surety Co. v. Bell
AETNA CASUALTY AND SURETY COMPANY and NATIONAL INDEMNITY
COMPANY, Appellants, v. GARY BELL and MARY STANDER, Respondents.
No. 11082
December 11, 1979 603 P.2d 692
Appeal from order denying motion to vacate, Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
Sureties on bond issued in connection with preliminary injunction appealed from order of
the district court holding them liable on the bonds.
injunction appealed from order of the district court holding them liable on the bonds. The
Supreme Court held that where respondents voluntarily entered into stipulation with
opponents resolving their dispute over possession and operation of a club, following which
the preliminary injunction was dissolved, respondents had waived any rights they possessed
under and, were not entitled to recover on, the injunction bonds.
Reversed.
David Hamilton, Reno, for Appellants.
White & Spaulding, Ltd., Reno, for Respondents.
1. Injunction.
Respondents lost their right to recover on surely bonds filed in connection with temporary restraining
order and subsequent preliminary injunction when they entered into stipulations with opponents resolving
their differences and the preliminary injunction was accordingly dissolved. NRCP 65(c), 65.1.
2. Injunction.
Generally, in case of an injunction bond, the claim against a surety does not accrue until it is finally
determined that plaintiff was not entitled to the restraining order or injunction; a final determination may
take the form of a decree dismissing the suit, total or partial dissolution of the injunction, or failure to carry
the burden of proof at the hearing on the preliminary injunction. NRCP 65(c), 65.1.
3. Injunction.
A voluntary dismissal of an injunction suit is regarded as a final determination that plaintiff was not
entitled to the injunction and warrants recovery on an injunction bond. NRCP 65(c), 65.1.
4. Injunction.
Where an action is dismissed by voluntary, amicable and mutual agreement of the parties, such dismissal
does not operate as a final determination that a plaintiff was not entitled to the preliminary injunction, and
the party against whom the injunction was granted waives his rights under the bond and cannot afterwards
maintain an action on the bond on the ground that the injunction was wrongfully granted. NRCP 65 (c),
65.1.
OPINION
Per Curiam:
In this appeal, Aetna Casualty and Surety Company and National Indemnity Company
contend the district court erroneously determined that they were liable upon surety bonds
issued as security in connection with a temporary restraining order and preliminary
injunction. We agree and reverse.
The events leading to this appeal originated with a dispute between the respondents and
Robert Morse over the rightful possession of a business known as the Hee Haw Nevada Club.
Pending trial of the action to determine rightful possession, Morse obtained from the district
court a temporary restraining order and, subsequently, a preliminary injunction conferring the
present right of possession upon Morse and enjoining the respondents from entering upon or
operating the business. The injunction also required Morse to perform certain fiduciary duties
and to file periodic financial accounts with the court. Pursuant to NRCP 65(c), surety bonds
were posted in the sum of $7,500.
1
(Appellant Aetna Casualty and Insurance Company had
posted a $1,000 bond upon the issuance of the temporary restraining order; appellant National
Indemnity Company posted the remaining $6,500 bond upon the issuance of the preliminary
injunction.)
Following a partial trial on the merits, respondents and Morse entered into a stipulation
concerning all matters in dispute between the above-named Plaintiff [Morse] and
Defendants [respondents] pertaining to the ownership, operation, assets and liabilities of the
cabaret Hee Haw Nevada. The stipulation specified the liabilities of the parties for certain
debts and obligations, and provided that Morse would remain in possession of the business
for one month from the date of the stipulation, after which he would turn over possession to
the respondents with certain designated personal property upon payment to him of $1,800.
The district court approved the stipulation resolving the differences of the parties and
consequently vacated the trial and ordered the preliminary injunction dissolved. However,
Morse's subsequent failure to comply with the terms of the stipulation caused respondents to
obtain an order from the district court allowing earlier possession of the business than
provided for in the stipulation.
Several months later, the respondents filed a motion for order compelling payment of
damages for wrongful issuance of temporary restraining order and preliminary injunction.
The appellants, who contend they were not properly notified of the motion, did not appear at
the subsequent hearings, and Morse failed to present any evidence in his behalf. The district
court, after receiving evidence from the respondents only, concluded that Morse had violated
the fiduciary duties imposed upon him by the preliminary injunction and that the violation of
these duties resulted in damages to the respondents in the approximate amount of
$15,500.
____________________

1
NRCP 65(c) provides:
No restraining order or preliminary injunction shall issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred
or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be
required of the State or of an officer or agency thereof.
The provisions of rule 65.1 apply to a surety upon a bond or undertaking under this rule.
duties resulted in damages to the respondents in the approximate amount of $15,500. The
court determined that Morse's violation of his fiduciary duties constituted wrongful restraint
under the preliminary injunction as a matter of law and ordered appellants to pay to
respondents the face amount of the surety bonds which were posted as security when the
preliminary injunction was issued.
Upon notification of this order, appellants filed a motion to vacate. They argued that they
should not have been required to pay the amount of the bonds because they were not properly
notified of the motion pursuant to NRCP 65.1,
2
and, among other things, that the
respondents were not entitled to payment on the bonds after the preliminary injunction was
dissolved pursuant to the stipulation of the parties. The motion to vacate was denied and this
appeal, which presents the same issues, followed.
[Headnote 1]
We agree with appellants' contention that respondents lost their right to recover on the
surety bonds when the respondents and Morse entered into the stipulation resolving their
differences and the preliminary injunction was subsequently dissolved. Accordingly, we
reverse solely on this basis and need not reach the issue of the adequacy of the notice afforded
appellants under NRCP 65.1.
[Headnotes 2, 3]
Generally, in the case of an injunction bond, the claim against the surety does not accrue
until it is finally determined that the plaintiff was not entitled to the restraining order or
injunction. 11 Wright & Miller, Federal Practice and Procedure 2972 (1973). A final
determination may take the form of a decree dismissing the suit, total or partial dissolution of
the injunction, or the failure to carry the burden of proof at the hearing on the preliminary
injunction. Id. See also Glens Falls Ins. v. First Nat'l Bank, 83 Nev. 196, 427 P.2d 1 (1967). A
voluntary dismissal of an injunction suit by the plaintiff is also regarded as a final
determination that the plaintiff was not entitled to the injunction and warrants recovery on the
bond.
____________________

2
NRCP 65.1 provides:
Whenever these rules require or permit the giving of security by a party, and security is given in the form of
a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the
jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers
affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without
the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be
served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.
M. Blatt Company v. Southwell, 130 S.E.2d 859 (N.C.1963); 2 High on Injunctions 1649a
(4th ed. 1905).
[Headnote 4]
However, where the action is dismissed by the voluntary, amicable and mutual agreement
of the parties, such dismissal does not operate as a final determination that the plaintiff was
not entitled to the injunction, St. Joseph & Elkhart Power Co. v. Graham, 74 N.E. 498 (Ind.
1905), and the party against whom the injunction was granted waives his rights under the
bond and can not afterward maintain an action upon the bond on the ground that the
injunction was wrongfully granted. Wilshire Mortg. Corp. v. O. A. Graybeal Co., 105 P.2d
996 (Cal.App. 1940). High, supra. See also Sackett v. City of Morris, 149 Ill.App. 152
(1909); Cassem v. Ernst, 84 Ill.App. 70 (1899).
Respondents having voluntarily entered into the stipulation with Morse resolving their
dispute over the possession and operation of the Hee Haw Nevada Club, and the preliminary
injunction having thereby been dissolved, no rights could thereafter arise upon the bonds in
favor of the respondents. [Respondents] had an opportunity, by refusing to sign the
stipulation . . ., to insist either that [Morse] voluntarily dismiss the suit or that the court
determine whether the injunction was properly granted, to the end that an action might be
prosecuted upon the bond. Wilshire Mortg. Corp. v. O. A. Graybeal Co., supra at 999.
Having failed to do so, respondents waived any rights they possessed under, and therefore
should not have been allowed to recover upon, the bonds.
Reversed.
____________
95 Nev. 826, 826 (1979) Jackson v. Hicks
JOSEPH C. JACKSON and NANCY L. JACKSON, Appellants, v. HENRY H. HICKS and
MARJORIE M. HICKS, Respondents.
No. 11330
December 11, 1979 604 P.2d 105
Appeal from judgment, Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Neighbors commenced an action seeking a declaration that they had acquired a
prescriptive easement over a 20-foot strip of land. The district court entered judgment in
favor of landowners, and neighbors appealed. The Supreme Court, Thompson, J., held that
where roadway was established by landowners for their own use, fact that neighbors also
made use of it under circumstances which did not interfere with use of landowners
themselves did not create a presumption of adverseness; rather, presumption was that
neighbors' use was permissive and such presumption was not rebutted by neighbors'
maintenance and improvement of a portion of the way.
of landowners themselves did not create a presumption of adverseness; rather, presumption
was that neighbors' use was permissive and such presumption was not rebutted by neighbors'
maintenance and improvement of a portion of the way.
Affirmed.
Robert F. Butler, of Reno, for Appellants.
Cooke, Roberts & Reese, of Reno, for Respondents.
1. Easements.
An easement by prescription may be created through five years' adverse, continuous, open and peaceable
use.
2. Easements.
Whether use of servient estate is with permission or is adverse presents an issue of fact.
3. Easements.
Where roadway was established by landowners for their own use, fact that neighbors also make use of it
under circumstances which did not interfere with use of landowners themselves did not create a
presumption of adverseness; rather, presumption was that neighbors' use was permissive and such
presumption was not rebutted by neighbors' maintenance and improvement of a portion of the way.
OPINION
The Jacksons commenced this action to have the district court declare that they had
acquired a prescriptive easement over a twenty-foot strip of land owned by Henry and
Marjorie Hicks. Contrary to their claims, the court found that their use of the strip of land was
permissive, rather than hostile and adverse. Consequently, judgment was entered for the
Hickses. This appeal challenges the propriety of that decision.
The Hickses and Jacksons own adjoining property as reflected on the diagram below.
1
The twenty-foot strip of land between lots 17 and 19 connects the Hicks property to
Hunter Lake Drive and is the only ingress to and egress from that homesite.
____________________

1
(Diagram. See book)
between lots 17 and 19 connects the Hicks property to Hunter Lake Drive and is the only
ingress to and egress from that homesite. That strip is owned by the Hickses. The Jacksons
own parcels 16 and 17. Parcel 16 is a vacant lot. The Jackson home, garage and horse stables
are on parcel 17.
The Hicks home was built about 1960 by their predecessor in interest, the McKennas, who
insisted that the conveyance to them include the twenty-foot strip of land from their homesite
to Hunter Lake Drive. Shirley McKenna, now Shirley Rae, resided there until she sold the
property to the Hickses in 1974.
The Jackson home was constructed in 1962 by Ben Wynn. Since parcel 17 was too narrow
to allow a driveway along the side of the house, a circular drive was placed in front. In 1965
Wynn sold the property to Riley Kirkendahl. Kirkendahl wished to build a garage behind the
house and received permission from the McKennas to use their driveway until he could
purchase parcel 16 and provide another access. Kirkendahl's interest in parcel 17 was
foreclosed shortly thereafter, and other persons rented the property until it was sold to the
Jacksons in 1970. Each predecessor in interest occasionally used the driveway for ingress to
and egress from the garage without seeking permission from the McKennas.
After the Jacksons acquired parcel 17 in 1970, the use of the driveway increased. They
added a barn and corral to their backyard. In 1972 the Jacksons purchased parcel 16 which is
four to six feet higher than parcel 17, and converted it to pasture.
When the Hickses purchased parcel 18 in 1974, they notified the Jacksons by letter of their
(the Hickses) ownership of the driveway, that the Jacksons' use thereof was permissive, that
the Hickses intended to pave the driveway, and suggested that the Jacksons provide their own
driveway. At the same time the Hickses placed a sign, Private Property, Permission to Pass
May be Revoked at Any Time, at the entrance to the driveway on Hunter Lake Drive. In
1976, the attorney for the Hickses notified the Jacksons by letter of the Hickses' intention to
fence the land along their property line. In 1977 the Jacksons were notified that their
permission to use the driveway was revoked. This litigation ensued.
It is the appellate contention of the Jacksons that the evidence received does not support
the finding of the trial court that their use of the driveway was permissive rather than adverse.
We turn to examine this contention.
[Headnotes 1, 2]
An easement by prescription may be created through five years adverse, continuous, open
and peaceable use. Dean v. Pollard, 93 Nev. 105, 560 P.2d 911 (1977); Richardson v.
Brennan, 92 Nev. 236, 548 P.2d 1370 (1976); Stix v. LaRue, 78 Nev. 9, 368 P.2d 167 (1962);
Howard v. Wright, 38 Nev. 25, 143 P. 1184 (1914). Whether the use is with permission or is
adverse presents an issue of fact. Turrillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956).
Upon review following a full trial, we are to consider the evidence in a light most favorable to
the respondents for whom the trial court entered judgment.
[Headnote 3]
When the Jacksons added a barn and corral to their backyard on parcel 16, they also
improved the twenty-foot roadway. It is their contention that their maintenance and
improvement of the roadway established a clear shift from a permissive use to an adverse use.
It was within the province of the trial court to rule otherwise.
Here, as in Howard and Turrillas, the owners of the servient estate (the Hickses)
established the way for their own use, and there was another way available to the dominant
estate. In such circumstances, the use of the way by a neighbor for a long period of time does
not create a presumption of adverse use, Howard, and does create a presumption of
permissive use, Turrillas. Cf. Stix v. LaRue, supra. The following quotation from Turrillas is
apropos:
Where a roadway is established or maintained by a landowner for his own use, the
fact that his neighbor also makes use of it, under circumstances which in no way
interfere with use by the landowner himself, does not create a presumption of
adverseness. The presumption is that the neighbor's use is not adverse but is permissive
and the result of neighborly accommodation on the part of the landowner.
This presumption was not rebutted. Maintenance and improvement of a portion of the way
does not evidence adversity. Howard. The Jacksons admit that they did not notify McKenna
of an adverse claim. McKenna testified that no one used the driveway without her permission.
When the Hickses purchased the property in 1974 they advised the Jacksons that their use of
the way was permissive. Thus, it is apparent that the presumption of a permissive use was
corroborated by the evidence received.
the presumption of a permissive use was corroborated by the evidence received.
Affirmed.
____________
WILLIE CRAIG WILLIAMS, Jr., Appellant, v. THE
No. 11223
December 11, 1979 603 P.2d 694
James J. Guinan, Judge.
Defendant was convicted in the district court of sexual assault, and he appealed. The
Supreme Court held that: (1) evidence of defendant's sexual misconduct with other persons
was relevant on issue of intent and was admissible in order to rebut defendant's testimony on
a point material to establishment of his guilt, and (2) remarks of prosecutor on two occasions
during trial with respect to defendant's propensity for criminal conduct may have been
improper, but they were not prejudicial under circumstances.
Affirmed.
1. Criminal Law.
Failure of state to timely file its answering brief could, in discretion of Supreme Court, be treated as a
confession of error so as to result in reversal of judgment without consideration of merits, but under
circumstances, Supreme Court elected to consider appeal rather than to set aside trial court's judgment for
such failure. NRAP 31(c).
2. Criminal Law.
Prosecution may not introduce evidence of other criminal acts of accused unless evidence is substantially
relevant for some purpose other than showing a probability that accused committed charged crime because
of a trait of character. NRS 48.045, 48.045, subd. 2.
3. Criminal Law.
Even where relevancy under an exception to general rule may be found, evidence of other criminal acts
may not be admitted if its pobative value is outweighed by its prejudicial effect.
4. Rape.
Crucial question in determining if a sexual assault has occurred is whether act is committed without
consent of victim.
5. Rape.
Intent of accused is relevant to issue of consent or lack thereof in a prosecution for sexual assault.
6. Rape.
Evidence of defendant's sexual misconduct with other persons was relevant on issue of intent and was
admissible in order to rebut defendant's testimony on a point material to establishment of his guilt.
7. Criminal Law.
Remarkable similarity of modus operandi in testimony regarding other crimes, and their relative
proximity in time to charged offense, established probative value of such evidence.
8. Criminal Law.
Admission of other crimes evidence was justified by necessity in that element of crime sought to be
proved, intent to commit act without consent was not substantially established by other evidence.
9. Criminal Law.
Remarks of prosecutor on two occasions during trial with respect to defendant's propensity for criminal
conduct may have been improper, but they were not prejudicial under circumstances.
OPINION
Per Curiam:
Convicted by jury verdict of sexual assault (NRS 200.366), Willie Craig Williams, Jr.,
contends we must reverse the judgment and remand the case to the district court for a new
trial because (1) evidence of other sexual misconduct allegedly committed by him was
improperly admitted at his trial and (2) the prosecutor made prejudicial statements during the
trial regarding his propensity for criminal conduct.
[Headnote 1]
Williams also has filed a motion for an order treating respondent's failure to timely file its
answering brief as a confession of error.
1
See NRAP 31(c). Such a failure may, in the
discretion of this court, be treated as a confession of error and result in the reversal of the
judgment without consideration of the merits.
____________________

1
Respondent was granted seven extensions of time to file its answering brief; the brief was ultimately filed
ten days after the expiration of the last extension. We do not condone, and herein express our disapproval of,
such dilatory conduct. See Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979).
discretion of this court, be treated as a confession of error and result in the reversal of the
judgment without consideration of the merits. Toiyabe Supply Co. v. Arcade, 74 Nev. 314,
330 P.2d 121 (1958). We elect to consider this appeal rather than to set aside the trial court's
judgment for respondent's failure to file its brief within the prescribed time. See Petri v.
Sheriff, 87 Nev. 549, 491 P.2d 43 (1971).
Williams was convicted of having sexual intercourse with a female without her consent.
At the trial, the complaining witness testified that in April 1978, Williams telephoned her and
inquired about her interest in obtaining employment with him as a secretary. She replied that,
although she was interested in a job, she was not feeling well that day and therefore could not
meet with him to discuss the matter. However, after Williams told her that his heavy schedule
would preclude a later meeting, she agreed to meet with Williams at her residence that day.
Williams arrived at the witness's residence a short time later. A discussion ensued for
several hours, during which Williams related to the witness the advantages of the job
opportunity. She, however, expressed little interest in the prospect and asked Williams to
leave. Williams remained, continued talking and ultimately offered her $5,000 for a
one-night stand. She refused, but Williams persisted, telling her, you don't have a choice
now. Finally, after Williams told her that he had a black belt in karate, demonstrated what he
could do to her with his karate expertise, and stated that he could make it very nasty for her
seven-year-old daughter, the witness submitted to Williams' demand to have intercourse.
Williams testified at the trial that he did have intercourse with the complaining witness,
but claimed that she consented to the act. He denied that any coercion or threats occurred.
On rebuttal, the prosecution called as witnesses two women who testified that they had
intercourse with Williams against their will in September 1976. Each woman stated that she
had met Williams at a job interview and that Williams subsequently coerced her into
submitting to intercourse with him after demonstrating his ability with karate. The trial judge
instructed the jury that this evidence was admitted on the limited question of whether or not
the defendant intended to engage in sexual activity with the alleged victim against her will,
and should not be considered for any other purpose.
2
1.
____________________

2
2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
1. Williams contends, among other things, that evidence of his sexual misconduct with
other persons should not have been admitted at the trial because such evidence was not
relevant to prove his intent to sexually assault the victim. He claims that since he is asserting
consent of the victim as a defense, it is her intent, not his, that is at issue here. We disagree.
[Headnotes 2, 3]
It is the general rule that the prosecution may not introduce evidence of other criminal acts
of the accused unless the evidence is substantially relevant for some other purpose than to
show a probability that the accused committed the charged crime because of a trait of
character. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). See NRS 48.045(2), supra, n.
2. But see Willett v. State, 94 Nev. 620, 584 P.2d 684 (1978); McMichael v. State, 94 Nev.
184, 577 P.2d 398 (1978) (limited exception in area of sex crimes). Even where relevancy
under an exception to the general rule may be found, evidence of other criminal acts may not
be admitted if its probative value is outweighed by its prejudicial effect. Nester v. State, 75
Nev. 41, 334 P.2d 524 (1959).
[Headnotes 4-6]
The crucial question in determining if a sexual assault has occurred is whether the act is
committed without the consent of the victim. Dinkens v. State, 92 Nev. 74, 546 P.2d 228
(1976), and the intent of the accused is relevant to the issue of consent or lack thereof. State
v. Hampton, 529 P.2d 127 (Kan. 1974). In the instant case, evidence of Williams' sexual
misconduct with other persons was admitted as being relevant to prove his intent to have
intercourse with the victim without her consent. This evidence was introduced after Williams
admitted committing the act, but claimed to have done so with the victim's consent. By
acknowledging the commission of the act but asserting his innocent intent by claiming
consent as a defense, Williams himself placed in issue a necessary element of the offense and
it was, therefore, proper for the prosecution to present the challenged evidence, which was
relevant on the issue of intent, in order to rebut Williams' testimony on a point material to the
establishment of his guilt. See People v. Westek, 190 P.2d 9 (Cal. 1948). See also Hunt v.
State, 211 S.E.2d 288 (Ga. 1974); State v. Hampton, supra.
[Headnotes 7, 8]
The remarkable similarity of the modus operandi in the testimony regarding the other
crimes, and their relative proximity in time to the charged offense establish the probative
value of such evidence. See McMichael v. State, supra. Moreover, admission of the
challenged evidence was justified by necessity, since the element of the crime sought to
be proved {intent to commit the act without consent) was not substantially established by
other evidence.
admission of the challenged evidence was justified by necessity, since the element of the
crime sought to be proved (intent to commit the act without consent) was not substantially
established by other evidence. See Jones v. State, 85 Nev. 4, 448 P.2d 702 (1969); Tucker v.
State, supra. Under these circumstances, we uphold the determination of the trial court that
the probative value of the evidence outweighed its prejudicial effect.
[Headnote 9]
2. Williams also seeks reversal because of alleged prejudicial remarks made on two
occasions by the prosecutor during the trial regarding Williams' propensity for criminal
conduct. Although such remarks may have been improper, a review of the record does not
establish that Williams was thereby prejudiced. See Pickworth v. State, 95 Nev. 547, 598
P.2d 626 (1979).
____________
95 Nev. 834, 834 (1979) Pettit v. Management Guidance, Inc.
DON PETTIT, dba LIBRARY BUTTERY & PUB, Appellant, v. MANAGEMENT
GUIDANCE, INC., a Corporation, Respondent.
No. 10914
December 11, 1979 603 P.2d 697
Appeal from dismissal without prejudice of civil action. Eighth Judicial District Court,
Clark County; George E. Marshall, Judge.
After a corporation's suit for damages arising out of an alleged breach of contract was
dismissed by the district court without prejudice, defendant appealed. The Supreme Court
held that dismissal without prejudice was proper where the relevant statute of limitations had
not run.
Affirmed.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Appellant.
Nitz, Schofield & Nitz, Las Vegas, for Respondent.
Pretrial Procedure.
Where relevant statute of limitations had not run when corporation's complaint for damages was
dismissed on ground that it had not, at time of commencement of suit, qualified to do business in Nevada,
trial court acted properly in specifying that dismissal was without prejudice.
95 Nev. 834, 835 (1979) Pettit v. Management Guidance, Inc.
acted properly in specifying that dismissal was without prejudice. NRS 11.190, subd. 1(b), 80.010 et
seq., 80.210, 80.210, subd. 1.
OPINION
Per Curiam:
Pursuant to NRS 80.210,
1
the district court dismissed respondent's complaint for damages
arising out of an alleged breach of contract on the grounds that respondent, a California
corporation, had not, at the time of the commencement of the suit, qualified to do business in
Nevada. The district court, aware that the relevant statute of limitations, see NRS
11.190(1)(b), had not run and aware that respondent corporation was in the process of
effecting compliance with NRS 80.010 et seq, Nevada's qualifying statutes, ordered the
dismissal to be without prejudice. Cf. League to Save Lake Tahoe v. Tahoe R.P.A., 93 Nev.
270, 563 P.2d 582 (1977) (prejudice will adhere to dismissal of unqualified foreign
corporation's suit when relevant statute of limitations has run).
Appellant, the prevailing party below, seeks reversal of that decision, contending that the
dismissal should have been with prejudice. Appellant does not claim to have been injured or
prejudiced by respondent's failure to qualify, but simply argues that the penalty provisions of
NRS 80.210 cannot be cured by subsequent statutory compliance. We do not agree.
Strictly construing NRS 80.210 in order not to limit the rights of [foreign] corporations
beyond the plain import of the language used in the statute, we have permitted a foreign
corporation to intervene in an action even though it had not complied with Nevada's
qualifying statutes until after the commencement of the suit. Lawler v. Ginochio, 94 Nev.
623, 625, 584 P.2d 667, 668 (1978), quoting Scott v. Day-Bristol Consolidated Mining Co.,
37 Nev. 299, 303, 142 P. 625, 626 (1914). We see no reason to distinguish Lawler from the
instant case.
The order of the district court dismissing respondent's complaint without prejudice is,
therefore, affirmed.
____________________

1
Every corporation which fails or neglects to comply with the provisions of NRS 80.010 to 80.040, inclusive,
shall be subject to a fine of not less than $500, to be recovered in a court of competent jurisdiction, and shall not
be allowed to commence, maintain, or defend any action or proceeding in any court of this state until it shall
have fully complied with the provisions of NRS 80.010 to 80.040, inclusive. (Emphasis added.)
____________
95 Nev. 836, 836 (1979) Marvin v. State
MARVIN A MINOR, Appellant, v. THE STATE
No. 10612
December 11, 1979 603 P.2d 1056
Appeal from order certifying appellant to stand trial as an adult, Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
The Supreme Court, Manoukian, J., held that: (1) the fact that probation and police
authorities blatantly violated statute in connection with the juvenile's detention was not
sufficient to invalidate the certification order; (2) the trial court did not violate principles of
fundamental fairness when it considered certain admissions that had been obtained from the
juvenile; and (3) the court's careful evaluation met the statutory requirement of full
investigation.
Affirmed.
Mowbray, C. J., dissented.
David Hamilton, Reno, for Appellant.
1. Infants.
It was a blatant violation of statute for police and probation authorities to arrest 17-year-old and
thereafter hold him for four days without allowing him to use the telephone and without allowing him to
see his parents when the parents, who had been out of town, finally arrived at the detention facility two
days after the boy had been taken into custody. NRS 62.170, subd. 1.
2. Infants.
Order certifying 17-year-old to stand trial as an adult was not rendered invalid by fact that probation and
police authorities violated relevant juvenile statutes when they held 17-year-old incommunicado for
approximately four days and did not allow the boy to use a telephone or see his parents. NRS 62.080,
62.170, subd. 1.
3. Criminal Law.
Because of the child's presumed immaturity, special safeguards should be placed around a police
interview investigating a delinquent act. NRS 62.080.
4. Criminal Law.
Before being interviewed, a child should be advised of his rights and cautioned that any answers may be
used in a criminal court as well as in juvenile court. NRS 62.080; U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Especially in the case of young children, law enforcement authorities should make special efforts
to interview juveniles only in the presence of a parent or guardian.
should make special efforts to interview juveniles only in the presence of a parent or guardian.
6. Criminal Law.
A juvenile does have the capacity to make a voluntary confession without the presence or assent of a
parent or guardian.
7. Criminal Law.
A juvenile's confession is not psychologically coerced or involuntary simply because no adult assented to
it.
8. Criminal Law.
Absent extraordinary circumstances, a responsible custodian should always be present when a child is
being questioned or a formal statement concerning his participation in a delinquent act is being taken;
clearly, the more serious the offense and the younger the accused, the greater the precautions which should
be taken in interrogation. U.S.C.A.Const. Amend. 5; NRS 62.080, 62.170, subd. 1.
9. Infants.
The informal nature of a hearing to determine whether exclusive original juvenile jurisdiction should be
waived precludes the imposition of strict evidentiary standards and the court in such a hearing can consider
any material, relevant evidence. NRS 62.040.
10. Infants.
Though strict evidentiary standards are not applicable to a juvenile waiver hearing, fundamental fairness
demands that evidence considered by the court in such a hearing be founded on accurate and reliable
information. U.S.C.A.Const. Amends. 5, 14; NRS 62.040.
11. Infants.
On appeal from order certifying appellant from juvenile court to stand trial in district court as an adult,
appellant's contention that confessions which were relied upon by the trial court in waiving juvenile court
jurisdiction were admitted in violation of his Fifth Amendment rights was irrelevant. U.S.C.A.Const.
Amend. 5; NRS 62.040.
12. Infants.
A juvenile waiver or transfer hearing is nonadjudicatory in that no inquiry is made into the guilt or
innocence of the juvenile and the sole inquiry at such a hearing is to determine whether the interests of the
juvenile and of society would be better served by subsequent adjudication in the juvenile or adult court
system.
13. Infants.
A child who commits an offense is in effect exempt from the criminal law unless the juvenile court
waives its jurisdiction. NRS 62.193, subd. 1, 62.195, subd. 3, 62.200, subd. 3.
14. Infants.
Juvenile proceedings in Nevada are civil in nature. NRS 62.193, subd. 1, 62.195, subd. 3, 62.200,
subd. 3.
Substantially all constitutional rights granted to adults in criminal proceedings now belong to accused in
juvenile proceedings. U.S.C.A.Const. Amends. 5, 14.
16. Infants.
Fact that trial court based its determination to certify 17-year-old to stand trial as an adult on certain
admissions obtained from the boy did not violaie principles of fundamental fairness where, notwithstanding
evidence that police and probation authorities violated applicable statutes in connection with the boy's
detention, it appeared that the boy's statements were reliable and the boy, who was not
inexperienced in delinquency arrest procedures, was implicated in a series of
commercial and residential burglaries which occurred over an extended period of
time and were committed with obvious premeditation and deliberation and where the
boy's statements were corroborated by the fact that police were able to find physical
evidence of the burglaries from what the boy told them.
were reliable and the boy, who was not inexperienced in delinquency arrest procedures, was implicated in a
series of commercial and residential burglaries which occurred over an extended period of time and were
committed with obvious premeditation and deliberation and where the boy's statements were corroborated
by the fact that police were able to find physical evidence of the burglaries from what the boy told them.
17. Infants.
The juvenile court has considerable latitude in determining whether it should retain or waive jurisdiction.
18. Infants.
Where order certifying appellant from juvenile court to stand trial as an adult amply specified the reasons
for the certification and where the order indicated that the judge carefully considered the character and
disposition of the juvenile together with the nature of his past and present offenses and all other necessary
elements, the order plainly satisfied the statutory requirement of full investigation. NRS 62.080.
OPINION
This is an appeal from an order certifying appellant from juvenile court to stand trial in
district court as an adult. Two questions are presented for our determination. They are: (1)
Whether the district court erred in basing in part its determination to certify appellant as an
adult on statements allegedly obtained in violation of appellant's fifth amendment right to
silence; and (2) Whether the juvenile probation department conducted the required full
investigation precedent to such certification.
1
We find no error and affirm the decision of
the lower court.
[Headnotes 1-8]
The appellant, nearly eighteen years of age, was arrested for burglary and possession of
burglary toolsfeloniesin Carson City in the early morning hours of Sunday, October 2,
1977. Shortly thereafter, an arraignment was held before a magistrate in Carson City resulting
in appellant's being transferred to the Washoe County Juvenile Detention Center at
Wittenberg Hall in Reno. A Carson City probation officer attempted to contact appellant's
parents, but found that they were out of town.2 Subsequently, Washoe County juvenile
probation officer, Gordon Woodard, in an unsuccessful attempt to contact the parents, left
a message with appellant's sister that appellant was being detained at Wittenberg Hall.
____________________

1
If a child 16 years of age or older is charged with an offense which would be a felony if committed by
an adult, the juvenile division of the district court, after full investigation, may in its discretion retain
jurisdiction or certify the child for proper criminal proceedings to any court which would have
jurisdiction of such offense if committed by an adult. (Emphasis added.)
attempted to contact appellant's parents, but found that they were out of town.
2
Subsequently, Washoe County juvenile probation officer, Gordon Woodard, in an
unsuccessful attempt to contact the parents, left a message with appellant's sister that
appellant was being detained at Wittenberg Hall.
After being advised of his rights,
3
the appellant made several inculpatory statements
incriminating not only himself, but several adult persons in relation to a number of burglaries
of residences and businesses. Additionally, he directed the police to several items of stolen
propertyproducts of the burglaries.
Although they arrived home on Monday, October 3, appellant's parents did not go to
Wittenberg Hall until Tuesday, October 4. They were not permitted to visit appellant at that
time because he was being questioned regarding the admitted burglaries by a Washoe County
Sheriff's detective. Appellant was also denied use of the telephone during his detention.
4
A
detention hearing was eventually held and on Thursday, October 6, appellant was released to
his parents.
____________________

2
NRS 62.170(1) provides in pertinent part: When a child is taken into custody the officer shall immediately
notify the parent, guardian, or custodian of the child. . . .

3
See in re Gault, 87 U.S. 1, 41 (1967); Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).

4
Appellant had not yet been adjudicated to be triable as an adult during these pre-waiver stages. In A Minor
v. State, 89 Nev. 564, 517 P.2d 183 (1973), we stated, While the officers had the right to take into custody a
juvenile found violating the law, the juvenile is entitled to the same Fourth and Fourteenth Amendment
protection afforded to adults. . . . Id. at 567, 517 P.2d at 185 (citations omitted). In recognizing the foregoing,
we intimate no view regarding the question of admissibility of the confessions in subsequent criminal
proceedings, but are constrained to condemn what we perceive to be the flagrant disregard by the probation and
police authorities of NRS 62.170(1), by not allowing the parents to see the child and apparently holding
appellant incommunicado during his approximate four days detention. In this age of ubiquitous standardization
and relative sophistication in probation and peace officer training, it is difficult to conceive of such a blatant
violation of the relevant juvenile statutes. Nevertheless, the breach of the statutory mandates do not alone
invalidate the certification order. Cf. A Minor v. State, 89 Nev. at 567-68, 517 P.2d at 185 (confinement of a 16
year old arrested for being under the influence of alcohol, in adult jail, without notification of responsible
custodian or probation officer, held improper conduct, but not error).
Because of a child's presumed immaturity, special safeguards should be placed around a police interview in
investigating a delinquent act since, at that time, it is not known whether or not the juvenile court will retain
jurisdiction over the case or permit trial in a criminal court. NRS 62.080. It cannot always be assumed that the
police interview will lead only to a non-criminal proceeding.
Before being interviewed, a child should be advised of his rights and cautioned that any answers may be used
in a criminal court as well as before the juvenile court. Special efforts should be made, especially in the case of
young children, to interview the juvenile only in the presence of a parent or guardian.
The Carson City charges were dismissed, but appellant was charged by Washoe County
authorities on October 5, 1977, as a result of the information derived from appellant's
statements. On October 13, a petition was filed in the Juvenile Department of the District
Court, charging appellant with fifteen felony counts consisting primarily of burglary and
grand larceny. NRS 205.060, 205.220. A motion was also filed requesting that appellant be
ordered to stand trial as an adult. The judge then ordered that the Washoe County Juvenile
Probation Department conduct an investigation and submit a report to the court pursuant to
NRS 62.080.
Following the investigation, a report consisting of a study and analysis of appellant's home
life, school and offense record and other relevant background information was submitted by
the Juvenile Probation Department. The report was based largely upon information obtained
from appellant during his confinement at Wittenberg Hall.
A hearing on the motion for certification was held December 21, 1977, appellant being
represented by retained counsel, after which the court in a detailed order waived its
exclusive original [juvenile] jurisdiction, NRS 62.040, requiring that appellant stand trial as
an adult. Although testimony of appellant's admissions was not the sole evidence
incriminating appellant, it played a major role in the lower court's determination to waive its
juvenile jurisdiction.
1. The Fifth Amendment Claim.
The appellant contends that the confessions relied upon by the trial court in waiving
juvenile court jurisdiction were admitted in violation of his fifth amendment right against
self-incrimination. Due to the posture of the instant proceeding, and to the fact that we are not
here concerned with guilt or innocence but rather with appellant's knowledgeability and
amenability to juvenile treatment, the fifth amendment claim becomes irrelevant.
5

____________________
Harling v. United States, 295 F.2d 161, 163-64 n. 12(1961). Although a juvenile does have the capacity to make
a voluntary confession without the presence or assent of a parent or guardian, and a confession is not
psychologically coerced or involuntary simply because no adult assented to it, Stokely v. State of Maryland, 301
F.Supp. 653, 660 (D.Md. 1969); People v. Lara, 432 P.2d 202, 212 (Cal. 1967); In re J.F.T., 320 A.2d 322, 324
(D.C.App. 1974), it is preferred that a responsible custodian be present. Absent extraordinary circumstances, this
should always be the policy when a child is being questioned or a formal statement concerning his participation
is being taken. Clearly, the more serious the offense and the younger the accused, the greater the precaution
which should be taken in the interrogation process.

5
Even had we determined it necessary to discuss the question of volunlariness, the extreme paucity of the
factual record does not invite that inquiry. Absent proper objection or the existence of plain error, NRS
47.040(1), this In Kent v. United States, 3S3 U.S. 541 {1966), the United States Supreme
Court considered the requirements for a valid waiver of exclusive jurisdiction of a juvenile
court as a condition to the trial of a juvenile in an adult criminal proceeding. While the
Court's decision involved the language of a statute, it stressed the necessity that the basic
requirements of due process and fairness be satisfied in such proceedings. Id. at 553.
In Kent v. United States, 383 U.S. 541 (1966), the United States Supreme Court
considered the requirements for a valid waiver of exclusive jurisdiction of a juvenile court as
a condition to the trial of a juvenile in an adult criminal proceeding. While the Court's
decision involved the language of a statute, it stressed the necessity that the basic
requirements of due process and fairness be satisfied in such proceedings. Id. at 553. See In re
Gault, 387 U.S. 1, 30-31 (1967). Kent, however, neither expressly nor impliedly extended the
fifth amendment right against self-incrimination to waiver hearings.
6

[Headnotes 9, 10]
The principles of fundamental fairness govern in fashioning procedures and remedies to
serve the best interests of the child. Pee v. United States, 274 F.2d 556, 559 (D.C.Cir. 1959).
And, while we recognize that a waiver involves a critically important action, Kent v.
United States, 383 U.S. at 553, the consequence of a certification is not necessarily a
condemnation of the accused. Therefore, the informal nature of the waiver hearing which
differs from a criminal proceeding, precludes imposition of strict evidentiary standards. The
court in a waiver hearing can consider any material, relevant evidence, but fundamental
fairness demands that such evidence be founded on accurate and reliable information. People
v. Chi Ko Wong, 557 P.2d 976, 989-90 (Cal. 1976). See also State v. Piche, 442 P.2d 632,
635-36 (Wash. 1968).
[Headnote 11]
Because of the unique role of a trial judge in the non-adversary confidential atmosphere of
the juvenile court, State v. Loyd, 212 N.W.2d 671, 674 (Minn. 1973), coupled with the fact
that the confessions have not yet been sufficiently asserted to be involuntary or unreliable, we
find no error. The accused still has access to the panoply of legal and constitutional rights
available to adult defendants, including trial by jury. This is not, at least at present, a case
involving the admissibility, in a state criminal proceeding, of an inadmissible confession. Cf.
____________________
court has held that we are precluded from considering the claim. Septer v. Warden 91 Nev. 84, 86 530 P.2d
1390, 1391 (1975); Clark v. State, 89 Nev. 392, 393, 513 P.2d 1224, 1224-25 (1973). See United States v.
Petrucci, 486 F.2d 329 (9th Cir. 1973), cert. denied, 416 U.S. 937 (1974); Thomas v. State, 93 Nev. 565, 571
P.2d 113 (1977).

6
Recently, the United States Supreme Court determined that jeopardy attaches with the initiation of an
adjudication of responsibility in a juvenile delinquency proceeding and that no waiver of jurisdiction can occur
thereafter. Breed v. Jones, 421 U.S. 519, 531 (1975); NRS 62.195(3). But even though that claim of double
jeopardy Fell under the fifth amendment, the Court has never held that the consideration of a questionable
confession in a non-adjudicatory waiver hearing invalidates the waiver hearing invalidates the waiver under that
same amendment.
Haley v. Ohio 332 U.S. 596 (1948) (unreasonable police conduct in obtaining confession
violated due process); A Minor v. State, 89 Nev. 564, 517 P.2d 183 (1973) (unreasonable
police tactics violated juvenile's fourth amendment rights).
[Headnotes 12-15]
A juvenile waiver or transfer hearing is non-adjudicatory in that no inquiry is made into
the guilt or innocence of the juvenile. The sole inquiry at such a hearing is to determine
whether the interests of the juvenile and of society would be better served by subsequent
adjudication in the juvenile or adult court system. Once a child commits an offense, he is in
effect exempt from the criminal law unless the juvenile court waives its jurisdiction. During
that period, the juvenile code governs and, irrespective of In re Gault, 387 U.S. 1 (1967), In
re Winship, 397 U.S. 358 (1970), and McKeiver v. Pennsylvania, 403 U.S. 528 (1971), and
the fact that substantially all of the constitutional rights granted to adults in criminal
proceedings now belong to accuseds in juvenile proceedings, juvenile proceedings in Nevada
continue to be civil in nature. NRS 62.193(1), 62.195(3), 62.200(3).
[Headnote 16]
It is arguable that because children, generally speaking, are exempt from criminal statutes,
it is unfair to allow admissions made by them in the non-criminal and non-punitive setting of
juvenile proceedings to be used subsequently for the purpose of securing their criminal
conviction. Even though the juvenile court was made to serve as somewhat of an adjunct to
the adult criminal process, given the record presently before us, we are satisfied that the
principles of fundamental fairness were not violated in this proceeding.
Returning to the question of reliability of the statementsthe information upon which the
waiver was basedit is apparent from the record, notwithstanding the evidence of police and
probation statutory improprieties, that appellant's statements for the sole and preliminary
purpose of waiver, are reliable. These statements were corroborated by the fact that the police
were able to find physical evidence of the burglaries from what appellant had told them.
7
Considering these statements, coupled with the evidence that appellant was nearly eighteen at
the time of his detention; appellant was implicated in a series of commercial and residential
burglaries which occurred over an extended period of time, cf.
____________________

7
Although we do not reach the voluntariness issue from a fifth amendment standpoint, we do believe that
information obtained from a confession in the context of a waiver hearing may be found reliable in satisfaction
of fourteenth amendment due process requirements. See State v. Piche, 442 P.2d at 632. In Piche, the court
stated that the fact that the non-adversary transfer hearing does not directly result in confinement, punishment, or
a determination of guilt
occurred over an extended period of time, cf. Matter of Welfare of Dahl, 278 N.W.2d 316,
318-20 (Minn. 1979) (no significant prior history of misconduct); the trial court found that
appellant evidenced maturity and sophistication, the crimes were committed with obvious
premeditation and deliberation; appellant's associates in crime are adults; and appellant is not
inexperienced in delinquency arrest procedures, reliability at this procedural stage is apparent.
Here, the statements are relevant to determining the best interests of the juvenile and of
society, and the trial court properly admitted them. In re Harbert, 538 P.2d 1212, 1218
(Wash. 1975); State v. Piche, 442 P.2d 632, 636 (Wash. 1968). See People v. Morris, 226
N.W.2d 565 (Mich.App.), cert. denied, 423 U.S. 849 (1975). In the instant case, this
permitted use has no cognizable effect on the juvenile court's parens patriae relation to the
child, Kent v. United States, 383 U.S. at 554; Kline v. State, 86 Nev. 59, 62, 464 P.2d 460,
462 (1970), and is compatible with the non-criminal philosophy which underlies the Juvenile
Court Act. There having been no suppression hearing below, this determination is, of course,
without prejudice to appellant's right to move to suppress in the criminal proceeding. See
NRS 47.090, 174.125(1).
2. The Question of a Full Investigation.
Appellant next contends that the juvenile department failed to make a full investigation
pursuant to NRS 62.080, because it did not extend its inquiries beyond the circumstances
surrounding the series of burglaries. This contention is without merit.
[Headnote 17]
In Kline v. State, 86 Nev. 59, 464 P.2d 461 (1970), and Lewis v. State, 86 Nev. 889, 478
P.2d 168 (1970), we adopted the criteria established by Kent v. United States, 383 U.S. 541
(1966), for determining a valid waiver of jurisdiction from juvenile court. The order appealed
from is thorough and indicates that the judge carefully considered the character and
disposition of the appellant, together with the nature of his past and present offenses, his
amenability to juvenile treatment, and each of the remaining elements enunciated in Kent v.
United States, 383 U.S. at 565-68, and Lewis v. State, 86 Nev. at 893 n.2, 478 P.2d at
170-171 n.2. Accord, Martin v. State, 94 Nev. 687, 585 P.2d 1346 (1978). The juvenile court
has considerable latitude in determining whether it should retain or waive jurisdiction. Kent
v. United States, 383 U.S. at 552-53.
____________________
coupled with the additional fact that the admission was not strongly urged to be a product of physical or
psychological coercion, meant that the consideration of self-incriminating statements did not violate
constitutional safeguards Id. at 635-36.
[Headnote 18]
The instant order waiving jurisdiction provides with ample specificity the reasons for the
appellant's certification as an adult. Appellant was certified to be tried as an adult primarily
because the juvenile court determined that he was not amenable to juvenile treatment,
particularly within the period remaining before the juvenile court's jurisdiction is terminated.
8
The trial court's careful evaluation plainly meets the statutory requirement of full
investigation. We find no error.
We affirm the order of the district court, waiving its juvenile jurisdiction.
Thompson and Batjer, JJ., concur.
This Court has previously announced that [m]eaningful review [of a juvenile court's
jurisdictional waiver] requires that the reviewing court should review. It should not be
remitted to assumptions. . . . It may not assume' that there were adequate reasons, nor may it
merely assume that full investigation' has been made. Kline v. State, 86 Nev. 59, 61, 464
P.2d 460, 461 (1970), quoting Kent v. United States, 383 U.S. 541, 561 (1966) (emphasis
added). The majority opinion assumes that a full investigation had been made. Since, in my
opinion, the record does not support this assumption, I must respectfully dissent.
With respect to waiver proceedings, the juvenile court and the State, acting as parens
patriae of the juvenile rather than as prosecuting attorney and judge, are engaged in
determining the needs of the child and of society rather than adjudicating criminal conduct.
Non-criminal treatment within the juvenile system is the rule; adult criminal treatment is the
exception. NRS 62.290; Kent v. United States, 383 U.S. at 560. To further the ends of the
juvenile systemproviding comprehensive, effective, non-criminal treatment for the
delinquent juvenile, id.the juvenile department has at its disposal virtually unlimited
resources with which to examine the delinquent child and to fashion an appropriate
rehabilitative remedy, see, e.g., NRS 62.080, NRS 62.200(1)(b) and (c); NRS 62.300; NRS
62.310.
____________________

8
Irrespective of NRS 62.070, which permits the juvenile court to retain jurisdiction of a child until it reaches
the age of 21 years, our youth corrections system customarily releases youths committed to its care at age 18.
Thus, while the juvenile court has considerable latitude in determining whether it should
retain or waive jurisdiction, its decision must be based on a full investigation. A full
investigation, in this context, cannot be a mere ritual; rather, it anticipates a thorough
examination of the child and his background and a thorough exploration of all alternative
strategies of rehabilitation. D.H. v. State, 561 P.2d 294, 298 (Alaska 1977); State v. Gibbs,
500 P.2d 209, 217-18 (Idaho 1972); In re Patterson, 499 P.2d 1131, 1136 (Kan. 1972); United
States v. Howard, 449 F.2d 1086, 1090-91 (D.C.Cir. 1971); see also, People v. Chi Ko
Wong, 557 P.2d 976, 988 (Cal. 1976); In re Harbert, 538 P.2d 1212, 1217 (Wash. 1975);
Haziel v. United States, 404 F.2d 1275, 1279-80 (D.C.Cir. 1968). Only in this manner may
the welfare of the juvenile and the interests of society be secured.
While a judge in a criminal prosecution concerns himself solely with the alleged criminal
act, the juvenile court judge must focus his attention on the actor: the juvenile judge must
consider the juvenile's past, his future, his mind, and his acts. Miller v. Quatsoe, 332 F.Supp.
1269, 1275 (D.C.Wis. 1971). Thus, the nature of the juvenile's alleged offense is relevant to
his present state of development and is one factor to be considered by the juvenile court; but,
standing alone, it fails to establish sufficient grounds for waiving jurisdiction. State v. Gibbs,
500 P.2d at 217-18. Obviously, the juvenile court's investigation must extend beyond the
alleged criminal acts. D.H. v. State, 561 P.2d at 298.
Once the juvenile court has fully examined the mental and emotional development of the
child, the court must then balance these factors against the safety, needs, and demands of
society. In re Harbert, 538 P.2d at 1217. In striking this balance, the juvenile court is under a
duty to utilize its facilities, personnel, and expertise to explore thoroughly all possible
alternative dispositions short of waiver. D.H. v. State, supra; State v. Gibbs, supra; In re
Patterson, supra; U.S. v. Howard, supra.
The full investigation in the instant case, in my opinion, falls short of these standards.
The probation officer responsible for appellant's full investigation testified that he limited
his investigation to the circumstances of appellant's alleged criminal acts and to one brief
conversation with appellant about his past. The officer admitted that though he went to
appellant's home in order to uncover evidence of criminal acts, be did not conduct any
in-depth interview of appellant's parents. Nor did the officer seek out or question appellant's
sister, neighbors, or friends. Though the officer knew that appellant was employed, he did
not interview appellant's employer or co-workers.
employed, he did not interview appellant's employer or co-workers. The officer did not have
appellant examined by a psychiatrist. Nor did the officer check with any of appellant's former
schools or teachers. In short, the probation officer merely satisfied himself that appellant had
committed various criminal acts. The so-called full investigation extended no further.
Moreover, neither the probation department nor the juvenile court examined what
alternative strategies might offer hope to rehabilitate appellant, or what facilities would be
necessary to further those strategies. Despite the wide range of alternative dispositions
available to the court, see, e.g., NRS 62.200, the only program even mentioned during the
waiver hearing was the Nevada Training School. Though the probation officer stated during
the hearing that I don't know that he [appellant] can't benefit from [juvenile] facilities, no
further inquiry was made concerning the available facilities or programs and their suitability
to appellant's case. Again, in my opinion, this is not the type of full investigation
contemplated by NRS 62.080.
In sum, I note that the juvenile court's latitude in deciding whether or not to waive
jurisdiction presupposes both procedural regularity and compliance with the requirement of a
full investigation. Since a full investigation was not made, I would reverse the judgment of
the juvenile court and remand the cause for a new waiver hearing to be based upon a thorough
examination of both the child and his background and the alternative strategies of
rehabilitation available to the court.
____________
95 Nev. 846, 846 (1979) Ash Springs Dev. v. O'Donnell
ASH SPRINGS DEVELOPMENT CORPORATION, Petitioner, v. THE HONORABLE
THOMAS J. O'DONNELL, Judge of the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark; KAREN SUE CRUNK; MAURICE and CAROLYN
CRUNK, Parents of KAREN SUE CRUNK, Respondents.
No. 12174
December 12, 1979 603 P.2d 698
Original proceedings in mandamus.
Action was brought to recover for daughter's personal injuries, with parents seeking
recovery for medical expenditures made in course of treatment of daughter's injuries. Writ of
mandamus was sought directing the Eighth Judicial District Court to render summary
judgment on ground that actions were barred by statutes of limitations.
of mandamus was sought directing the Eighth Judicial District Court to render summary
judgment on ground that actions were barred by statutes of limitations. The Supreme Court
held that: (1) where at time of alleged injury plaintiff was 15 years of age and age of majority
was 21, but age of majority was lowered to 18 after plaintiff had achieved her sixteenth
birthday, plaintiff's disability for limitations purposes commenced on attainment of age 18,
and (2) parents' claims were likewise barred.
Writ granted.
Thorndal, Gentner, Backus, Lyles & Maupin, Ltd., Las Vegas, for Petitioner.
Manzonie & Massi, Las Vegas, for Respondents.
1. Mandamus.
Where an action is barred by statute of limitations, no issue of material fact exists and mandamus is a
proper remedy to compel entry of summary judgment.
Where at time of alleged injury plaintiff was 15 years of age and age of majority was 21, but age of
majority was lowered to 18 after plaintiff had achieved her sixteenth birthday, plaintiff's disability for
limitations purposes, commenced on attainment of age 18. NRS 11.190, 11.250.
Since daughter's personal injuries claim was barred by statute of limitations, parents' claim based on
medical expenditures for daughter's treatment was likewise barred. NRS 11.190.
OPINION
Per Curiam:
Respondents Karen Sue Crunk, Maurice Crunk and Carolyn Crunk commenced actions on
September 8, 1977, in respondent court based on personal injuries allegedly suffered by
Karen Sue Crunk on May 29, 1972. Petitioner argues that the statute of limitations bars these
actions.
[Headnote 1]
Where an action is barred by the statute of limitations no issue of material fact exists and
mandamus is a proper remedy to compel entry of summary judgment. Smith v. Gabrielli, 80
Nev. 390, 395 P.2d 325 (1964).
The dispositive issue is whether Karen Sue Crunk's disability due to her minority tolled the
running of the statute of limitations until her eighteenth birthday, in which case the district
court should have held the actions barred, or her twenty-first birthday, in which case the
action was properly commenced.
court should have held the actions barred, or her twenty-first birthday, in which case the
action was properly commenced. At the time of the alleged injury, when Karen Sue Crunk
was fifteen years of age, NRS 11.250, the disability statute, applied until age 21;
subsequently, the statute was amended, effective July 1, 1973 (when Karen Sue Crunk was
sixteen years old), lowering the age of majority to eighteen years of age.
1

Respondents argue that since at the time of the alleged injury the age of majority was
twenty-one years of age, a vested right to file the instant action at any time within the period
determined as of the date of the accident accrued. While this question is a novel one in
Nevada, we have been directed to no case which adopts respondents' position. On the other
hand numerous cases from other jurisdictions hold to the contrary. D'Andrea v. Montgomery
Ward & Co., Inc., 571 F.2d 403 (7th Cir. 1978); Hurdle v. Prinz, 235 S.E.2d 354 (Va. 1977);
Jones v. State, 564 P.2d 1276 (Hawaii 1977); Feest v. Allis Chalmers Corp., 229 N.W.2d 651
(Wis. 1975).
[Headnote 2]
We agree with the reasoning of these courts, and find that Karen Sue Crunk's disability
ended for the purpose of commencing suit on her attainment of age eighteen. Thus, on
September 9, 1976, the two-year statute of limitations ran and the subsequent bringing of suit
was barred.
2

[Headnote 3]
Because of our disposition, it is unnecessary to reach the other issues raised by the parties.
3
Accordingly, it is ordered that a peremptory writ of mandate issue requiring respondent
court to dismiss said actions against petitioner.
____________________

1
1973 Nev. Stats. ch. 753 1, at 1577.

2
Actions . . . can only be commenced as follows:
. . . .
4. Within 2 years:
. . . .
(e) An action to recover damages for injuries to a person. . . .

3
The action of Maurice Crunk and Carolyn Crunk, parents of Karen Sue Crunk, is based on medical
expenditures made by them for treatment of Karen Sue Crunk's injuries. It is contended that this action is not
barred since Karen Sue Crunk's disability tolled the running of the statute of limitations as to all actions arising
out of the same occurrence. As this contention rests on the premise that Karen Sue Crunk's action is not barred,
our resolution of that issue disposes of the parents' action as well.
____________
95 Nev. 849, 849 (1979) Farmer v. State
BILLY BOB FARMER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10607
December 12, 1979 603 P.2d 700
Appeal from conviction of first degree murder, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
The Supreme Court, Manoukian, J., held that: (1) bailiff's advising jurors, The judge said
to continue deliberating, when jurors stated that they were no longer making progress in
their deliberations, was not inappropriate, or coercive and did not amount to a dynamite
charge; (2) statute requiring that deliberating jurors be brought into court if there is any
disagreement between them as to any part of the testimony or if they desire to be informed on
any point of law did not apply to case in which jurors merely reported to judge through note
by jury foreman that they felt they were no longer making progress in their deliberations; (3)
bailiff's statement was not prejudicial, where trial consumed five days, 19 witnesses testified,
jury had deliberated approximately 13 hours, and jurors deliberated for only three additional
hours before reaching a verdict; and (4) defendant was not deprived of fair trial by use of
prosecution witness who had been granted immunity, where witness was not implicated in the
slaying for which defendant was being prosecuted the witness and defendant had allegedly
killed a second person and it was for that crime that witness was granted immunity, the
immunity was unqualified and it was given long before date of defendant's appearance as
witness, so that State was not in position to compel witness to testify in manner which would
support State's theory of the case.
Affirmed.
Goodman, Oshins, Brown & Singer, Chtd., Las Vegas, for Appellant.
Melvin Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
An Allen or dynamite charge is instruction to deadlocked jury which contains an admonition that case
must at some time be decided or that minority jurors should reconsider their positions in light of the
majority view.
2. Criminal Law.
Bailiff's advising jurors, The judge said to continue deliberating, upon jurors stating that they
were no longer making progress in their deliberations, was not inappropriate or
coercive and did not amount to a "dynamite charge."
upon jurors stating that they were no longer making progress in their deliberations, was not inappropriate
or coercive and did not amount to a dynamite charge.
3. Criminal Law.
Not every communication elsewhere than in open court between deliberating jurors and court officials or
attendants is error, and an inquiry of jury by custodian as to jury progress in reaching verdict, without
more, is generally nonprejudicial.
4. Criminal Law.
Statute requiring that deliberating jurors be brought into court if there is any disagreement between them
as to any part of the testimony or if they desire to be informed on any point of law did not apply to case in
which jurors merely reported to judge, through note by jury foreman, that they felt they were no longer
making progress in their deliberations. NRS 175.451.
5. Criminal Law.
Length of time jury should deliberate in criminal cases is within sound discretion of trial court and time
should be determined by facts and circumstances of particular case and reasonable probability that jury can
agree.
6. Criminal Law.
In determining extent of harm flowing from judge's communication requesting jurors to continue to
deliberate, factors to be considered are nature of communication and whether it was authorized or not,
length of trial, number of witnesses, complexity of the proceedings, duration of jury's deliberations,
seriousness of offense, length of time jury deliberated following the most recent communication with court
or bailiff and such other factors relevant to the particular inquiry.
7. Criminal Law.
Bailiff's stating to jurors that judge wished them to continue deliberating was not prejudicial to defendant
convicted of first-degree murder, where trial consumed five days, 19 witnesses testified, jury had
deliberated approximately 13 hours and jurors deliberated for only three additional hours before reaching a
verdict. NRS 47.040, subd. 1, 175.391, 178.598.
8. Criminal Law.
Defendant was not deprived of fair trial on theory that deputy district attorney's closing argument in
murder case indicated that defendant had also killed another person, where the prosecutor had been
referring to several different people at the same time and using many pronouns so that the statement was
subject to the interpretation that it did not state that defendant had killed the other person, there had been
no previous mention of another murder in closing argument, and it could be assumed that jury, under
instructions requested by defense, properly ignored any suggested inference that the other person's death
was attributable to defendant. NRS 200.010, 200.030.
9. Criminal Law.
That death of person mentioned in murder trial was brought out was not, by itself, ground for mistrial in
murder case and did not constitute error.
10. Criminal Law.
Where case is not close on guilt or innocence, prosecutorial remarks will not justify reversal.
11. Criminal Law.
Even if remark of prosecutor in closing argument in murder case had indicated that defendant had
killed another person, because of overwhelming evidence of guilt, the error would be
viewed as harmless beyond reasonable doubt.
indicated that defendant had killed another person, because of overwhelming evidence of guilt, the error
would be viewed as harmless beyond reasonable doubt. NRS 200.010, 200.030.
12. Criminal Law.
Defendant was not deprived of fair trial by use or prosecution witness who had been granted immunity,
where witness was not implicated in slaying for which defendant was being prosecuted, witness and
defendant had allegedly killed second person and it was for that crime that witness was granted immunity,
the immunity was unqualified and was given long before date of witness' appearance, so that State was not
in position to compel witness to testify in support of State's theory of case, and evidence of guilt,
independent of witness' testimony, was sufficient to support conviction. NRS 200.010, 200.030.
OPINION
Billy Bob Farmer appeals from a conviction by jury for first degree murder, NRS 200.010
and 200.030, which resulted in the imposition of a sentence of life without the possibility of
parole, contending that: (1) the jury verdict was coerced; (2) he was deprived of a fair trial by
the use of a prosecution witness granted immunity; and (3) the prosecutor's remarks during
closing argument constituted prejudicial error. Finding no reversible error, we affirm.
1. The Facts.
There was substantial evidence adduced at trial which showed that one Phillip Wroughton
arranged to have appellant murder Ronald Craig Davis, apparently because Wroughton and
appellant were suspicious that Davis had been informing the police about Wroughton's and
appellant's criminal activities and because Davis was indebted to Wroughton. The state's
evidence was presented through a series of witnesses who were either participants or
precipitants in a variety of serious criminal offenses including drug trafficking, prostitution,
receiving stolen property and, in at least one instance, possibly murder.
Wroughton owned a home in Las Vegas where Farmer and a number of prosecution
witnesses lived prior to the instant homicide. Phillip Wroughton was murdered sometime
subsequent to Davis' death, and appellant was also charged with that crime.
The record demonstrates that on October 20, 1976, Farmer and a James Logan went to
Davis' home purportedly to discuss a cocaine transaction. Farmer and Davis were
acquaintances. There was no sign of forcible entry which is an indication that Davis knew his
assailants. Appellant was armed with a sawed-off shotgun wrapped in a towel. Earlier that
day, a coat which belonged to Farmer was seen in Farmer's residence and a similar jacket
was discovered at the murder scene.
belonged to Farmer was seen in Farmer's residence and a similar jacket was discovered at the
murder scene. The next day a state's witness who resided at the Wroughton residence
observed Farmer cleaning a shotgun and at trial a police detective testified that he discerned
an odor of gun cleaning fluid emanating from the seized gun. A firearms expert testified that
the two shotgun blasts that killed Davis probably came from appellant's shotgun. The record
is uncontradicted relative to threats made by Wroughton against Davis and admissions by
Wroughton that appellant had committed the murder. Several of these threats and admissions
make mention of appellant's complicity in the homicide and were made in his presence.
Farmer himself made extra-judicial admissions that he had murdered Davis. Pamela
Cathey, a resident in Wroughton's home testified that Farmer had admitted shooting Davis.
Phillip Carra also testified that appellant admitted in detail having killed Davis. Carra was a
prospective co-defendant with Farmer, incidental to the Wroughton homicide, but was given
immunity in exchange for his cooperation in that case.
After approximately five days of trial, the jury received its charge from District Judge Paul
Goldman and commenced its deliberations at 11:45 a.m. on Friday, August 26, 1977. The
jury continued to deliberate until 11:30 p.m. that evening, immediately after which it was
sequestered. Deliberations resumed the following day at 8:15 a.m. Judge Goldman intended
to leave Las Vegas on vacation on August 27 and had arranged for District Judge James
Brennan to receive the verdict or to take whatever action was dictated by the circumstances.
Due to Judge Goldman's vacation plans, he was not available at the courthouse on
Saturday, August 27. He had telephoned the courthouse on two occasions during the morning
to inquire as to the jury's progress, and on the second occasion the bailiff asked Judge
Goldman what action he should take should the jury indicate that they were not making
progress. Judge Goldman instructed the bailiff simply to let the jury continue their
deliberations. The bailiff was also instructed by Judge Goldman to contact Judge Brennan
should any problem arise.
At approximately 12:00 noon, Judge Goldman called regarding the jury's progress and as a
result of the bailiff's inquiry to the jury, it was determined that they were making progress.
Then at approximately 1:00 p.m. on Saturday, August 27, the bailiff received a
communication from the jury that stated: Judge Goldman: We the jury feel we are no longer
making progress in our deliberations. David A. Osbourne, jury foreman. Several minutes
elapsed after which the bailiff opened the door to the jury room and advised them, "The
Judge said to continue deliberating."
the door to the jury room and advised them, The Judge said to continue deliberating. Judge
Brennan was immediately notified of this action. There were no other communications with
the jury until they returned their verdict at about 5:00 p.m. Saturday.
2. The Verdict's Validity.
Appellant, equating the bailiff's comment to the jury with an Allen charge, contends that in
this context, such comment constituted coercion and thus invalidated the guilty verdict. He
also alleged that, due to the bailiff's failure to comply with statutes which relate to jury
deliberations, we must reverse. We do not agree.
[Headnote 1]
An Allen or dynamite charge is an instruction to a deadlocked jury which contains an
admonition that the case must at some time be decided or that minority jurors should
reconsider their positions in light of the majority view. Allen v. United States, 164 U.S. 492,
501 (1896); Redeford v. State, 93 Nev. 649, 652 n. 3, 572 P.2d 219, 220 n. 3 (1977).
1
We
have held, in reluctantly approving the Allen charge, that in order for such an instruction to be
valid, it must clearly inform the jurors that each member has a duty to adhere to his own
honest opinion and the charge must avoid creating the impression that there is anything
improper, questionable, or contrary to good conscience for a juror to create a mistrial.
Ransey v. State, 95 Nev. 364, 366, 594 P.2d 1157, 1158 (1979); see also Redeford v. State,
93 Nev. 649, 572 P.2d 219 (1977).
[Headnote 2]
A simple request, as here, that the jury continue its deliberations is not inappropriate or
coercive and does not amount to a dynamite charge. The instruction to the jury here did not
suggest explicitly or implicitly that the jury was compelled to reach a verdict and did not
render the verdict invalid. State v. Claridy, 563 P.2d 1239, 1241 (Or.App. 1977).
[Headnote 3]
Nor every communication elsewhere than in open court between jurors and court officials
or attendants, after the case has been submitted to the jury for deliberation, is error. An
inquiry of the jury by a custodian as to jury progress in reaching a verdict, without more, has
generally been considered non-prejudicial. State v. Poffenbarger, 74 N.W.2d 585, 587 (Iowa
1956); State v. Franklin, 46 N.W.2d 710, 716 (Iowa 1951). We are in agreement with this
authority.
____________________

1
See Note, The End of the Allen Charge in California: People v. Gainer, 14 Cal. W.L. Rev. 453 (1978).
[Headnote 4]
Appellant further argues that the bailiff's judicially authorized conduct constituted a per se
violation of NRS 175.451, and was, a fortiori, reversible error. NRS 175.451 provides:
After the jury have retired for deliberation, if there is any disagreement between them
as to any part of the testimony, or if they desire to be informed on any point of law
arising in the cause, they must require the officer to conduct them into court. Upon their
being brought into court, the information required shall be given in the presence of, or
after notice to, the district attorney and the defendant or his counsel.
(Emphasis added.) Here, however, the jurors were not requesting information regarding
testimony or any point of law, and the statute relating to communications between the court
and the jury has no application.
Appellant next asserts that the trial court did not comply with NRS 175.461. This statute
provides that a jury shall not be discharged until they have arrived at a verdict unless at the
expiration of such time as the court may deem proper, it satisfactorily appears that there is no
reasonable probability that the jury can agree. NRS 175.461. Specifically, appellant contends
that due to the judge's absence he was unable to determine that the jury could not agree. The
evidence is to the contrary.
At the mistrial hearing, the bailiff testified that he conversed with Judge Goldman on the
phone approximately one hour before the note was received from the jury. At that time,
approximately 12 noon on Saturday, Judge Goldman told the bailiff to ask the jury if they
were making progress. The foreman said that they were and Judge Goldman was so informed.
The note stated the jury felt it was no longer making progress in its deliberations. The bailiff
read the note, left, and after pausing for several minutes, told the jury, The Judge said to
continue deliberating. The jury returned its verdict at 5:00 p.m., with Judge Brennan
presiding.
Although Judge Goldman had instructed the bailiff to tell the jury to continue
deliberations, the trial judge was not uninformed of the progress of the jury. The bailiff, at the
time of his second conversation with Judge Goldman, believed there would be no mistrial
declared until at least 5:00 p.m. Judge Brennan, who was then supervising the proceedings,
was aware of Judge Goldman's preferences but was left with the discretion to act consistent
with or irrespective of them.
[Headnotes 5-7]
The length of time a jury should deliberate is within the sound discretion of the trial court.
State v. Addington, 472 P.2d 225, 235 (Kan. 1970); NRS 175.461. The time should be
determined by the facts and circumstances of the particular case and the reasonable
probability that the jury can agree. State v. Crowley, 552 P.2d 971, 975 (Kan. 1976); NRS
175.461. See also People v. Carter, 442 P.2d 353 (Cal. 1968). The totality of the
circumstances must be evaluated in determining the extent of the harm flowing from this type
of communication. Factors to be considered are the nature of the communication and whether
it was authorized or not; the length of the trial; the number of witnesses; the complicated
nature of the proceedings; the duration of the jury's deliberations; the seriousness of the
offense; the length of time the jury deliberated following the most recent communication with
the court or bailiff; and such other factors relevant to the particular inquiry. Here, the trial
consumed approximately five days, nineteen witnesses testified, the jury had deliberated
approximately thirteen hours prior to the admonishment that they should continue
deliberating, and the charge against the appellant was extremely serious. There is no showing
that the jurors were in fact unable to agree upon a verdict and they deliberated for three
additional hours before reaching the verdict. Although the bailiff's communication was not
expressly authorized by statute, NRS 175.391,
2
it was not prejudicial. NRS 47.040(1);
178.598.
3. Prosecutorial Misconduct.
Appellant contends that he was deprived of a fair trial by improper prosecutorial closing
argument. He claims that the deputy district attorney remarked that Farmer also killed
Wroughton and that this error requires reversal. We disagree.
During his closing argument, and in recalling the testimony of several state's witnesses, the
deputy district attorney stated:
And Vicki Licausi, you remember Miss Licausi. Wroughton drove right straight to that
car, that green Ford Ronnie Davis was using, and where were the keys? They were right
in the ignition. He knew exactly where that car was. Do you know who told him?
____________________

2
Upon commencing deliberation, the jurors shall be kept in charge of a proper officer, unless at the
discretion of the court they are permitted to depart for home overnight. When the jurors are kept together,
the officer in charge shall keep the jurors in some private and convenient place and separate from other
persons. He shall not permit any communication to be made to them, or make any himself, unless by
order order court, except to ask them if they have agreed upon verdict. . . .
(Emphasis added.)
you know who told him? The man who murdered him told him where that car was. He
knew where to get that car.
(Emphasis added.) The statement is, at the most, innocuous when considered with the totality
of the evidence and other argument. Appellant contends that the emphasized portion actually
meant, The man who murdered [Wroughton] told [Wroughton] where that car was.
Respondent contends that it may have meant, The man who murdered [Ronnie Davis] told
[Wroughton] where that car was. There had been no evidence presented that appellant had
killed Wroughton.
The record reflects that the prosecution was referring to several different people at the
same time and using many pronouns. Respondent's interpretation is cogent and reasonable
when considered in light of the testimony and the surrounding closing argument. The
testimony of Vicki Licausi was that she had been told by Wroughton that she could use the
green Ford. Investigating officer Barlow testified on cross-examination that the car was
registered to Wroughton and that he was at the death scene to retrieve the vehicle. Melanie
Jones, a prosecution witness, who had been at the victim's residence frequently, testified that
Davis had used the Ford up to his death and she did not recall that he had ever left the keys in
the car.
Viewing this referenced testimony in context with the remainder of the prosecutor's
closing remarks, it is clear that the prosecution is inferring that Farmer left the keys in
Wroughton's car after killing Davis. Farmer then related the information to Wroughton, his
alleged accomplice, who used Vicki Licausi to retrieve Wroughton's car when police were
still at the death scene. Thus, [Wroughton] knew exactly where that car was. Do you know
who told him? The man who murdered [Ron Davis] told [Wroughton] where the car was.
[Wroughton] knew where to get that car.
[Headnotes 8, 9]
Additionally, the prosecution had not at any time during the course of the trial mentioned
another murder by appellant.
3
There was no previous mention of another murder in closing
argument. The jury should have been aware only of the one homicidethe Ron Davis
murder.
____________________

3
The fact that Wroughton was deceased had been mentioned previously during the trial. A police officer
testified that he knew that Wroughton was now deceased and Billy Mills testified that he discovered that a
possible accomplice in the Davis murder was in Arizona at the time Wroughton was killed. After the officer was
asked if he knew Wroughton was deceased, it was defense counsel who requested an admonition to the jury that
it not attribute his death to the appellant or anyone else connected with the case. There had not been any
inference made that his death was so attributable. The testimony by Mills was in response to a prosecution
question as to when Mills had heard that a certain person was in Arizona. Defense counsel's immediate request
for a mistrial and
homicidethe Ron Davis murder. We can assume that the jury, under the instructions
requested by the defense during the trial, properly ignored any suggested inference that
Wroughton's death was attributable to Farmer.
If remarks are such as to cause doubt as to whether the defendant was prejudiced, the
doubt should be resolved in favor of the defendant. Spomer v. State, 395 P.2d 657, 664
(Okla.Crim.App. 1964) (prejudicial remarks by trial judge regarding another case pending
against accused required reversal). Moreover, improper argument is presumed to be injurious
especially when the remarks call to the jurors attention matters they are not justified in
considering. Riley v. State, 91 Nev. 196, 198, 533 P.2d 456, 457, cert. denied, 423 U.S. 868
(1975). Here, however, respondent could properly argue, and the jury was entitled to draw
inferences from the acts of appellant, that appellant had informed Wroughton, after Davis'
death, as to the location of and circumstances surrounding the vehicle.
[Headnotes 10, 11]
Furthermore, where the case, as here, is not close on guilt or innocence, prosecutorial
remarks will not justify reversal. Dearman v. State, 93 Nev. 364, 369, 566 P.2d 407, 410
(1977). Even if the remark is considered improper, because of the overwhelming evidence of
guilt, we would view the error as harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24 (1967); Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276
(1976).
4. Witness Immunity.
[Headnote 12]
Lastly, appellant specifies as error the alleged deprivation of a fair trial by the use of a
prosecution witness granted immunity. He contends that Phillip Carra should not have been
permitted to testify in the instant case because of the state's grant of immunity to Carra in
connection with the murder of Phillip Wroughton.
4
But for the grant of immunity, appellant
and
____________________
the utterance of a profanity in front of the jury would have drawn more of an inference that Wroughton's death
was attributable to appellant. We cannot say that the fact that the death of a figure mentioned in a murder trial is
brought out is, by itself, ground for a mistrial or constitutes error.

4
It is apparent to this court that when Carra took the witness stand the defense was fully apprised of the grant
of immunity and could well anticipate that Carra's testimony would be instrumental to the prosecution's case.
Yet, no objection was interposed. Although we have often held that absent a timely objection this court will not
consider an issue raised for the first time on appeal, Thomas v. State, 93 Nev. 565, 566, 571 P.2d 113, 114
(1977); Allen v. State, 91 Nev. 78, 81-82, 530 P.2d 1195, 1197 (1975) due to the arguable merit of the due
process claim and as result of our intervening opinion in Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978),
we have decided to consider the merit of the contention.
Carra would have been joined as co-defendants in the Wroughton case. In proffering his due
process contention, appellant relies solely upon Franklin v. State, 94 Nev. 220, 577 P.2d 860
(1978). In that case the court stated:
By bargaining for specific testimony to implicate a defendant, and withholding the
benefits of the bargain until after the witness has performed, the prosecution becomes
committed to a theory quite possibly inconsistent with the truth and the search for truth.
We deem this contrary to public policy, to due process, and to any sense of justice.
94 Nev. at 225, 577 P.2d at 863 (footnote omitted).
Appellant's reliance is misplaced. First, in Franklin, unlike in the present case, an
accomplice of the defendant, who had actually executed the contract to kill, testified for the
prosecution. He was liable to prosecution for the murder for which the defendant, Franklin,
had been convicted. Cf. People v. Medina, 116 Cal.Rptr. 133 (Cal.App. 1974) (immunity
granted on condition that witness not materially change statement given to police); People v.
Green, 228 P.2d 867 (Cal.App. 1951) (accomplice granted conditional immunity to testify in
case in which he was charged). In contrast, Carra was never implicated in any way in the
Davis slaying. Carra and Farmer allegedly killed Wroughton and it was for this crime that
Carra was granted immunity. In fact, the evidence is clear that neither the state nor Carra
anticipated Carra would testify in the instant case until the eve of the trial.
Second, in Franklin, the accomplice's sentencing was deferred pending the rendition of his
trial testimony, leaving the inference that his immunity was conditioned upon the giving of
testimony consistent with his pre-trial statement. See People v. Medina, 116 Cal.Rptr. 133,
144-51 (Cal.App. 1974). Carra's immunity was unqualified and was given long before the
date of his appearance as a witness in the instant case. The state was not in a position to
compel Carra to testify in a manner which would support the state's theory of the case.
Finally, in Franklin, a substantial part of the direct evidence regarding the murder
conspiracy and actual homicide was supplied by the actual perpetrator and, without it, the
evidence may have supported an innocent verdict. In the instant case, although we are unable
to say that his testimonial contribution was not sufficient to be determinative of the issue of
guilt, the evidence of guilt, independent of Carra's testimony, is substantial and, in our view,
sufficient to support the conviction.
In People v. Green, 228 P.2d 867 (Cal.App. 1951), the court stated, It is a practice which
seems to be approved in all jurisdictions, if the ends of justice will be thereby served, to
extend immunity to one jointly charged with crime, upon condition that he testify fully and
fairly as to his knowledge of the facts out of which the charge arose." Id. at S71
{emphasis added).
immunity to one jointly charged with crime, upon condition that he testify fully and fairly as
to his knowledge of the facts out of which the charge arose. Id. at 871 (emphasis added). We
have recognized that grants of immunity in exchange for testimony are generally permissible
and the promise of leniency affects only the weight of the evidence, not its admissibility.
LaPena v. State, 92 Nev. 1, 6, 544 P.2d 1187, 1190 (1976); see also Farmer v. Sheriff, 93
Nev. 535, 569 P.2d 939 (1977). Here, the promise of immunity was unqualified and related to
another transaction. In addition, there is nothing in the record to indicate that the grant of
immunity was conditioned on anything other than Carra's testifying fully and fairly as to his
knowledge of the facts out of which the Wroughton murder charge arose. This record is
devoid of any suggestion that that promise of immunity is repugnant to the letter or spirit of
Nevada's criminal jurisprudence. See People v. Green, 228 P.2d 867, 870 (Cal.App. 195]).
This contention is without merit.
Batjer and Gunderson, JJ., concur in the result.
____________
95 Nev. 859, 859 (1979) Crockett v. State
EDWARD NEVON CROCKETT, Appellant, v. THE
No. 8919
December 13, 1979 603 P.2d 1078
Appeal from judgment of conviction and sentence for second-degree murder, Second
Judicial District Court, Washoe County; William N. Forman, Judge.
The Supreme Court, Gunderson, J., held that loss and destruction of certain evidence
violated defendant's right to a air trial.
Reversed.
Manoukian, J. and Mowbray, C. J., dissented.
David Hamilton, Reno, for Appellant.
1. Criminal Law.
When evidence is lost as a result of inadequate government handling, a conviction may be reversed if
defendant shows either bad faith or connivance on part of government or prejudice from its loss.
2. Criminal Law.
In prosecution for premeditated murder which resulted in a conviction for second-degree murder based
entirely on circumstantial evidence, failure of lab technician to report blood-grouping test of vaginal swab
which was possibly exculpatory and her intentional discarding of sperm slide so prejudiced defendant as to
violate his right to a fair trial. U.S.C.A.Const. Amend. 14.
OPINION
A jury convicted Edward Crockett for the shooting death of his 15 1/2-year-old
stepdaughter, Blythe Harrington. On appeal, Crockett urges a variety of serious contentions,
to most of which we will allude only in passing. For example, some significant assignments
of error, which we find it unnecessary to consider, involve the following: 1) in closing
argument, the prosecutor commented several times to the jury on Mrs. Crockett's failure to
testify; 2) following defense counsel's final argument to the jury, the court clerk stated to the
prosecutor, Go get em Tiger; 3) around midnight, after the jury had deliberated several
hours, they reported they could not reach a verdict. The court inquired how the jury stood
numerically. After hearing of the eleven-to-one division, the judge stated that he and both
counsel appreciated there was a problem in the case. He said, however, it had been a long,
five-week trial, and if a mistrial were declared, it would have to be tried over by some other
jury. Shortly after the jury began deliberating again, it returned an apparent compromise
verdict of murder in the second degree.
Crockett also urges that suppression, loss and destruction of certain evidence violated his
right to a fair trial. We direct our primary concern to this issue, since it is fully dispositive of
the case. Having reviewed the voluminous record, we are constrained to agree with
appellant's counsel. The conviction must be reversed and all charges dismissed.
Without attempting a complete recapitulation of the record, we note the evidence was
entirely circumstantial. Sometime between 11:00 and 11:30 p.m. on July 2, 1974, Crockett
telephoned the Washoe County Sheriff's Department to report finding the nude body of his
stepdaughter on Antelope Mountain. Crockett explained he and his wife had gone looking for
the girl, when she had failed to return home that evening.
the girl, when she had failed to return home that evening. After Crockett led them to the
remote location of his discovery, law enforcement officers cordoned off an area
approximately fifteen feet in radius around the body and waited for daylight. During the
night, several additional officers arrived.
The following morning, the officers began photographing and gathering evidence, within
and outside the roped area.
1
The pathologist arrived around 10:30 a.m. and made a cursory
examination of the body. An autopsy was performed later that day in a laboratory, where
body tissue, fluid, hair and foreign material samples were taken for future testing and
examination.
Several days later, the Sheriff's Department secured a warrant to search Crockett's
residence for certain guns, ammunition and clothing. During the search, officers twice
knocked a small box off a closet shelf, spilling numerous small torn bits of paper. Crockett
told the officer not to bother picking them up, that he would vacuum them up later. Noticing
the word love, written on one of the scraps, however, the officers decided the papers should
be taken. One officer then put the paper bits into his pocket. When Crockett inquired what
had happened to the scraps, the officers informed him they intended taking them and
indicated they would get an additional warrant if necessary. Crockett acquiesced on the
condition that he be informed of the contents. When the paper scraps were later assembled,
the writing appeared to be a diary or narrative by Blythe Harrington of an ongoing love
affair, including sexual relations, with her stepfather.
Several weeks later, the grand jury found a murder indictment against Crockett, who made
numerous pre-trial motions, including one to suppress the so-called diary as fruit of an
illegal seizure. Denial of that motion is assigned as error on appeal.
2
Another pre-trial
motion, for discovery, resulted in an open court order for the prosecution to reveal known
names of any persons in the area at the time of the killing. Additionally, the court issued a
written order to produce copies of all photographs taken, as well as all scientific tests
conducted, including blood grouping tests.
____________________

1
Evidence gathered included photographs of the preserved circular area and the body itself, numerous
photographs and plaster casts of footprints and horseshoe tracks, a discarded tampon found near the body, and
clothing.

2
The diary was admitted solely as evidence of Crockett's supposed motive to kill his stepdaughter. In
addition to complaining of an unconstitutional seizure, defense counsel contends the diary was: 1) inadmissible
hearsay, which denied Crockett's constitutional right to confront witnesses against him; 2) inadmissible as
uncorroborated accusations of uncharged and unproven criminal conduct (statutory rape); and 3) inadmissible
because its prejudicial impact would greatly outweigh its probative value.
blood grouping tests. Various contentions on appeal relate to the State's asserted failure to
fulfill its obligations to safeguard evidence and make it available to the defendant.
One instance in which the State arguably deprived appellant of due process by interfering
with evidence concerned the anticipated testimony of Mrs. June Campbell, a Lemon Valley
resident. Before the grand jury, Mrs. Campbell testified that at about 5:15 p.m. on July 2,
1974, she had seen, from her home, a girl very much resembling Blythe Harrington riding a
dark horse very slowly northbound toward Lemon Valley Road. Because the time of death
could not be accurately estimated medically (arguably due to investigative oversights), and
because Crockett had an alibi until at least 4:30 p.m. on the day of the killing, Mrs.
Campbell's testimony was crucial: it indicated the victim was still alive at 5:15 p.m. Prior to
trial, the defense located a young girl bearing a striking resemblance to Blythe Harrington,
who initially stated that, on the day in question, she had been riding a dark horse in the
Lemon Valley area, around Mrs. Campbell's home. Because the girl's statement cast
considerable doubt on Mrs. Campbell's identification of Blythe Harrington, the prosecutor
stipulated to dismiss the indictment; however, the court refused to honor the stipulation.
Subsequently, the girl changed her story, stating she had not been riding in Lemon Valley
that day, but had been riding in Sun Valley on a light colored horse. Still later, the girl said
Washoe County sheriff's deputies had intimidated, threatened and harassed her. She brought a
motion for protective order, on which the court never finally ruled, asserting that because of
emotional instability suffered as a result of the prosecution's investigation, she could no
longer separate fact from fiction regarding her activities on the day in question.
3
At trial,
Mrs. Campbell testified that she observed a girl very much resembling Blythe Harrington
riding a dark colored horse slowly northward toward Lemon Valley Road at about 5:15 p.m.
She also testified that, approximately thirty minutes later, she observed a man resembling
Crockett riding the easement road behind her residence much faster in the same direction.
However, of course, the look alike witness did not testify.
____________________

3
Of interest is the girl's testimony regarding what occurred when Washoe County Sheriff's officers took her
to Lemon Valley. While driving around she told the officers she couldn't remember anything with respect to the
area. However, she did recognize Mrs. Campbell's home as they drove past, but didn't know why she recognized
it. She also informed the officers that she discarded a Coke can at a cattle crossing. The officers did find a
Coke can by the cattle crossing on Lemon Valley Road.
It was undisputed that both Crockett and the victim rode north on Lemon Valley Road to
the second windmill, approximately 9.4 miles from Mrs. Campbell's residence. However,
officers who tracked the horse prints to that point did not determine whether the two horses
were riding together or at different paces.
The distinctive track of; the victim's horse clearly left the road at one point and horse
tracks, as well as two sets of footprints, continued from that point into the sagebrush toward
the death scene. However, testimony was unclear whether there were tracks of one horse or
two, and the officers assertedly had lost the photographs taken of the trail of prints. One set of
footprints was made by the victim. The other set, chevron prints, apparently was made by
the killer.
Three sets of prints were found within the roped-off area around the body: the victim's,
chevron prints, and a single smooth-soled bootprint. The State argued the smooth-soled
print was made by Crockett when he discovered the body. Crockett, on the other hand, argued
the print was made by a second participant in the killing. Although a cast of the smooth-soled
print was larger than Crockett's boot size, the State contended that problems with the casting
process, or even the killer wearing an extra pair of socks, might explain the disparity.
However, again, investigative omissions made it impossible to resolve this issue. No prints
from the trail made by Crockett when he found the body had been preserved for comparison.
Another area of dispute and confusion concerned sorrel-colored hairs discovered on the
tree to which officers had found the victim's darker horse tied. The defense argued that the
sorrel hairs (Crockett's horse was sorrel) came from the saddle blanket on the victim's horse,
which blanket contained numerous sorrel hairs. As to where on the tree the hairs were
discoveredthe side on which the victim's horse stood tied, or the otherthe State's
evidence was unclear and in conflict. Also, the handling and labeling of the samples by the
Washoe County Sheriff's criminologist was impugned.
Experts testified that the murder weapon was a .22 Marlin rifle. Crockett was seen both
embarking and returning from his ride in Lemon Valley. Each time witnesses saw him
carrying a .22 pistol, but no one saw a rifle, although Crockett owned such a weapon.
Moreover, Crockett's stepsons testified they remembered having his Marlin rifle on the
afternoon in question.
4
Testimony regarding expert examinations of the pubic hair
combings was highly contradictory.
____________________

4
Crockett complains of the State's wrongful failure to furnish, before trial, names of other persons known to
have been in the area at the time of the killing and having a .22 Marlin rifle.
Testimony regarding expert examinations of the pubic hair combings was highly
contradictory. The Washoe County Sheriff criminologist found no foreign hairs.
5
An expert
from Oakland Forensics discovered a hair foreign to both the defendant and the victim. An
expert from the California Department of Justice found two more foreign hairs. At trial, the
State urged that these foreign hairs were not definitively established to be pubic hairs, and
speculated that they might have been the result of contamination occurring after the initial
examination by the criminologist.
The faulty processing of other evidence concerning recent sexual relations was even more
noteworthy, however. Microscopic examination of a sample of the vaginal swab from the
victim's body revealed presence of sperm. Absence of acid phosphates on the tampon found
near the body created the inference the sexual intercourse occurred on the scene. That
inference, in turn, indicated that whoever had sex with the victim was the killer. The area
around the body showed no evidence of struggle.
During trial, the defense discovered that an unreported blood grouping test had been
performed by the sheriff criminologist's lab assistant. The assistant admitted she had tested
the vaginal swab taken from the body of the victim, but had not reported the results because
she considered them strange. The results, showing a positive reaction for both A and B
type secretions, were hardly inexplicable, however. A true B secretion would simply
eliminate Crockett as her lone killer, since his blood type is A rh positive, and the victim was
also type A.
6

The lab assistant indicated that she thought perhaps it was a false B reaction, caused by
bacterial action. A forensic serologist testified that bacterial action can cause a false B
reaction, but if intact sperm were found, the bacteria level would be low. He also testified that
a sperm slide could be examined for the amount of bacteria present, and could be easily
preserved. The lab assistant testified she had examined a sample of the swab for sperm at the
same time she made the unreported blood grouping tests, and had found sperm with tails.
____________________

5
Credibility of the Washoe County Sheriff criminologist was severely impeached. His method of handling the
evidence in this case was said by the prosecutor himself to be the worst he had ever seen. With respect to the
pubic hair combings in particular, the criminologist testified to three totally disparate estimates of the number of
hairs originally contained in the sample.

6
The victim was blood type A rh negative, but it was not known whether she was a secretor. Thus, an A
secretion may or may not be attributable to the victim.
unreported blood grouping tests, and had found sperm with tails. Still, since no one asked her
to preserve the slide, she threw it away. The swab itself could no longer be tested because it
had not been properly preserved.
[Headnote 1]
1. Of course, when evidence is lost as a result of inadequate governmental handling, a
conviction may be reversed. Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979); Williams v.
State, 95 Nev. 527, 598 P.2d 1144 (1979); United States v. Heiden, 508 F.2d 898 (9th Cir.
1974). As stated in our prior decisions, the test for reversal on the basis of lost evidence
requires appellant to show either 1) bad faith or connivance on the part of the government, or
2) prejudice from its loss.
[Headnote 2]
Taken alone, we might consider circumstantial evidence in this case sufficient to sustain a
conviction. However, in effect, the unreported blood grouping test indicating a B reaction
was direct exculpatory evidence. Indicating, as it did, that someone other than Crockett had
raped and killed Blythe Harrington, this test by itself made a prima facie showing exonerating
him. Of course, the prosecution attempted to explain away the B reaction, by relying on the
State's own mishandling of the swab to argue that the reaction was caused by bacteria. Had
the test results been reported when made, as required by the discovery order, as well as by the
prosecutor's instructions to the laboratory assistant, then the swab and sperm slide could have
been preserved and reexamined to resolve any issue concerning validity of these apparently
exculpatory initial results.
Unfortunately, scientific verification is forever foreclosed because the government
admittedly did not properly preserve the swab. Further, the sperm slide, which easily could
have been preserved, was intentionally, though not maliciously, discarded. The State now
seeks to benefit from its own faulty procedures by urging factual possibilities which proper
procedures might well have foreclosed. We think this approach is legally untenable. We
cannot permit speculative inferences adverse to Crockett to be derived from the absence of
evidence which the State should have preserved. Were we to do so, it is clear Crockett would
be prejudiced by the loss, and our prior holdings would be offended.
This obviously is not a case where an otherwise prejudicial loss may be ignored, on the
ground that evidence of guilt is overwhelming. Even as the case was tried, the record shows a
verdict of questionable validity.7 However, once it is seen that the State may not profit
from its own fault, by raising inferences adverse to Crockett from its own loss of the swab
and slide, then the record is seen to contain debatable circumstantial evidence of guilt,
which is directly controverted by exculpatory evidence quite conclusive in nature.
verdict of questionable validity.
7
However, once it is seen that the State may not profit from
its own fault, by raising inferences adverse to Crockett from its own loss of the swab and
slide, then the record is seen to contain debatable circumstantial evidence of guilt, which is
directly controverted by exculpatory evidence quite conclusive in nature.
Due process cannot be restored in this case by retrial, since the swab is gone and there is
no way fairly to eliminate the prejudice. Cf. People v. Hitch, 527 P.2d 361 (Cal. 1974).
We therefore reverse the conviction and order that the indictment against Crockett be
dismissed.
8

Thompson and Batjer, JJ., concur.
____________________

7
As noted, the evidence was entirely circumstantial. We perceive some substance to several of appellant's
numerous other assignments of error. Individually, any one of those other contentions might not persuade us to
reverse the conviction, but considered together they raise further concern about the verdict's validity. In this
regard, we note the prosecutor proffered no theory other than that of premeditated killing. Yet, after reporting a
deadlock, the jury deliberated only a short time before returning a verdict of second-degree murder. All this
indicates not only uncertainty on the part of the jury, but a compromise verdict.

8
We cannot ignore the error in this case on any theory that the evidence was overwhelming. As noted, the
prosecutor considered his case so weak and flawed that, had the judge not required him to go forward, the
prosecutor would not have taken the case to trial, but would have dismissed all charges. To show overwhelming
evidence, however, the dissent portrays as facts inferences which seem not to follow from the evidence.
For example, the dissent says the victim had recently experienced consensual intercourse and the lack of
evidence of a struggle is indicative that the victim was familiar with the killer. This court has heretofore
recognized, however, that women can be and often are raped through fear rather than by actual force. See, e.g.,
Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1978). Once rape is accomplished, whether through force or fear,
the assailant not infrequently proceeds to kill the victim.
The dissent also mentions that the decedent was killed with a .2 caliber firearm, and proceeds to notice that
appellant owned a .22 rifle, and was carrying a .22 pistol on the day of the tragedy. This is true. Expert testimony
showed, however, that appellant's pistol could not have been the death weapon. Furthermore, according to the
record, others and not appellant were in possession of his .22 rifle on the day in question.
As another example, the dissent says that appellant may have worn a heavy construction shoe similar to one
of the prints identified at the homicide scene. This assertion will not withstand examination. There is no
evidence that appellant ever owned shoes with chevron prints. To the contrary, the shoes appellant was known
to be wearing did not have a chevron tread, although they were of a heavy type commonly worn by the
working men who inhabit the area in question.
The dissent notes that when the appellant returned home from his construction job, he quickly saddled his
horse and followed Blythe's path. Stripped of emotive language, this statement, and the record, shows only that
appellant went riding immediately after work, as he apparently often did, and that he rode north, as commonly
was the case.
Manoukian, J., dissenting, with whom Mowbray, C. J., concurs:
I am unable to acquiesce in the reversal and, therefore, respectfully dissent.
Although it is true, as stated by the majority, that when evidence is lost as a result of
inadequate governmental handling, a conviction may be reversed, Howard v. State, 95 Nev.
580, 600 P.2d 214 (1979); Williams v. State, 95 Nev. 527, 598 P.2d 1144 (1979); United
States v. Heiden, 508 F.2d 898 (9th Cir. 1974), we have more often held that when there
exists overwhelming evidence of guilt, we will, within due process limitations, view the error
as harmless. Hendee v. State, 92 Nev. 669, 557 P.2d 275 (1976) (evidence that pistol used in
commission of crime was stolen, while error, considered harmless because evidence of guilt
overwhelming); Johnson v. State, 92 Nev. 405, 551 P.2d 241 (1976) (where evidence of guilt
overwhelming, failure to give instruction is harmless); Jacobs v. State, 91 Nev. 155, 532 P.2d
1034 (1975) (FBI agents self-destruction of interrogation notes done without malicious
motive and, because of overwhelming evidence of guilt, considered harmless); Drummond v.
Stare, 86 Nev. 4, 462 P.2d 1012 (1970) (Bruton violation held harmless beyond a reasonable
doubt where evidence of guilt was overwhelming);
1
Pacheco v. State; 82 Nev. 172, 414 P.2d
100 (1966) (improper prosecutorial remark during closing argument considered harmless
when verdict is free from doubt). See also Chapman v. California, 386 U.S. 18 (1967). Here,
there was strong circumstantial evidence of guilt filling the alleged evidentiary voids.
Moreover, Crockett's successful assertion that the prosecution was guilty of the suppression,
loss and destruction of certain evidence is, although on cursory review somewhat persuasive,
lacking in merit.
The majority states that [t]aken alone, we must consider circumstantial evidence in this
case sufficient to sustain a conviction. However, in effect, the unreported blood grouping test
indicating a B reaction was direct exculpatory evidence. There is no question but that the
examination and results of a sample vaginal swab from the victim's body is important.
Appellant contends that the manner of governmental preservation prevented anyone from
ever knowing who the killer is. The police criminologist's lab assistant testified that she got a
B reaction either due to the presence of B antigens, due to a third party contributor
other than appellant, or due to bacterial deterioration traceable to the manner in which
the swab was maintained.
____________________

1
Bruton v. United States, 391 U.S. 123 (1968), held that the use against Bruton of a co-defendant's
confession was violative of the confrontation clause of the sixth amendment.
third party contributor other than appellant, or due to bacterial deterioration traceable to the
manner in which the swab was maintained. The forensic serologist confirmed the lab
assistant's testimony that bacterial action can result in a false B reaction. The lab assistant
further testified that the B reaction was not a strong one, so that there existed no real
indication of a third party contributor. Of course, had there been a strong B reaction, that
evidence would be both crucial and exculpatory. Here, the jury apparently concluded there
was bacterial contamination and that a valid test would show no basis to conclude there was
any reliable possibility of a third party contributor.
In terms of testing, cases require only enough to insure fairness in the proceedings. United
States v. Augenblick, 393 U.S. 348, 355-56 (1969); United States v. Miranda, 526 F.2d 1319,
1324-29 (2d Cir. 1975). In the instant case, tests were conducted, the government's experts
were thoroughly cross-examined regarding methodology, and the notes relative to such
testing were made available for defense examination. The constitution does not guarantee to
the defense the automatic right to conduct such testing, United States v. Love, 482 F.2d 213,
218-20 (5th Cir.), cert. denied sub nom. Oglesby v. United States, 414 U.S. 1026 (1973);
United States v. Sewar, 468 F.2d 236, 237-38 (9th Cir. 1972), cert. denied, 410 U.S. 916
(1973); see People v. Eddington, 218 N.W.2d 831 (Mich.App. 1974), but does require
enough to insure fairness. The fairness requirement here was met.
In the instant case the evidence of guilt is overwhelming and the constitutional error which
provides the basis for the majority's reversal of the conviction is, in my view, harmless
beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250 (1969). The record
shows that on July 2, 1974, decedent, Blythe Harrington, age fifteen and one-half, left her
home where she resided with her mother and appellant. At 5:15 p.m. that day she was seen
riding a horse toward Antelope Valley, northeast of Reno, a path on which she and appellant
had ridden horseback a number of times before. Appellant returned home from his
construction job shortly after 5:00 p.m. whereupon he quickly saddled his horse and followed
Blythe's path, ultimately traveling approximately nineteen miles. The assertion that he was
traveling at a much faster pace than Blythe is a fact which is consistent with the police
officers' interpretation of the horse tracks found near the death scene. As the majority
correctly states, It was undisputed that both Crockett and the victim rode north on Lemon
Valley Road. . . . Additionally, the uncontradicted evidence shows that Blythe's totally nude
body was found in Antelope Valley later that evening, such discovery reported by
appellant.
body was found in Antelope Valley later that evening, such discovery reported by appellant.
The victim had recently experienced consensual sexual intercourse and the lack of evidence
of a struggle is indicative that the victim was familiar with the killer. Appellant admitted to
police the fact of his long-term sexual affair with the victim, his step-daughter.
2
Moreover,
Blythe was shot two times with a.22 caliber firearm; appellant was the owner of a.22 rifle and
was carrying a.22 pistol upon his return from his initial search for Blythe July 2; and, the
appellant may have worn a heavy construction shoe similar to one of the prints identified at
the homicide scene.
It is well settled that the guilt of an accused can be established wholly by circumstantial
evidence. Bailey v. State, 94 Nev. 323, 325, 326, 579 P.2d 1247, 1249 (1978); State v.
Plunkett, 62 Nev. 258, 278, 142 P.2d 893 (1943). See Curtis v. State, 93 Nev. 504, 560 P.2d
583 (1977). Within this factual setting, the absence of the items of evidence, whether
exculpatory or inculpatory in nature, was insignificant.
While there are other issues raised by appellant which might arguably warrant reversal, but
which would permit retrial, the grounds relied upon by the majority are shallow because
founded upon empty defense claims which are easily answerable.
____________________

2
Additional evidence of appellant's sexual affair with the victim was shown by the victim's diary admitted
into evidence over appellant's objection. The victim's assertion that appellant was having an affair with her could
have reasonably been discerned by the jury as a motive for the murder. Appellant may have wished to keep his
step-daughter quiet about the allegationwhether or not it was true. Notwithstanding the fact that the lower
court found the seizure of the scraps of paper to have been with appellant's consent, the seizure is justified as one
of potential evidence of a crime found inadvertently and in plain view by officers lawfully on the premises under
a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971). Even though this diary may not
have been specifically mentioned in the search warrant, because it was in plain view and its discovery was
inadvertent, the officers could seize it in order to determine if it was evidence of the crime. United States v.
Bennett, 409 F.2d 888, 896-97 (2d Cir.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852 (1969).
The district court also properly admitted the diary over the claims that it was a denial of the right to
confrontation and improperly placed before the jury unproven criminal conduct and was thus prejudicial. This
was allowed as a hearsay exception as the statements were found to be against the victim's societal interest. NRS
51.345(1)(d). But, because this was evidence tending to show appellant's motive, it could have been admitted as
non-hearsay. Nevertheless, we cannot say that the trial court erred in finding that the statements in the diary were
against the victim's societal interest. Moreover, because this diary was the major item of evidence establishing
motive, the trial court could properly admit it finding the probative value outweighed the prejudicial impact.
Bails v. State, 92 Nev. 95, 100, 545 P.2d 1155, 1158 (1976).
founded upon empty defense claims which are easily answerable. The claimed errors were
either of appellant's own making, the unavailable evidence was unimportant or corroborated,
or in any event, the failure to produce the evidence was non-prejudicial.
____________
95 Nev. 870, 870 (1979) Bank of Nevada v. Speirs
BANK OF NEVADA and DIANE CRANDALL COULTHARD, Coexecutors of the Estate
of George William Coulthard, Deceased, Appellants, v. KAREN J. SPEIRS and FIRST
NATIONAL BANK OF NEVADA, successor Trustee for Karen J. Speirs, Respondents.
No. 10473
FIRST NATIONAL BANK OF NEVADA, successor Trustee for Karen J. Speirs, Appellant,
v. BANK OF NEVADA and DIANE CRANDALL COULTHARD, Coexecutors of the Estate
of George William Coulthard, Deceased, Respondents.
No. 10474
December 13, 1979 603 P.2d 1074
Consolidated appeals from judgment entered in actions which were consolidated for trial;
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Coexecutors of the estate of deceased trustee appealed from determination of the district
court that trustee during his lifetime had acted improperly in discharging his responsibilities
as trustee for his daughter, with such determination resulting in judgment imposing
constructive trust for benefit of the daughter on an interest in real property which trustee had
acquired in his own name. The Supreme Court, Thompson, J., held that: (1) trustee had
committed no wrongdoing in discharge of his duties by investing, for benefit of the trust, in
Iowa farms rather than purchasing additional shares of real estate investment company, shares
of which constituted the major asset of the trust, and (2) trustee, once he decided to purchase
additional shares of the investment company for himself, was not legally obliged to purchase
one-half thereof for the trust.
Reversed and remanded with directions.
John Peter Lee, Ltd. and James C. Mahan, of Las Vegas, for Bank of Nevada and Diane
Crandall Coulthard.
Weiner, Goldwater & Waldman, Ltd., and Gerald M. Gordon, of Las Vegas, for Karen J.
Speirs and First National Bank of Nevada.
1. Trusts.
A testamentary trustee is a fiduciary who must act in good faith and with fidelity to beneficiary of the
trust; he should not place himself in a position where it would be for his own benefit to violate his duty to
the beneficiary.
2. Trusts.
Broad grant of authority given to testamentary trustee constituting exoneration of the trustee for mistakes,
if any, must be accorded respect by a court, especially in a family setting.
3. Trusts.
Testamentary trustee who inherited stock from his wife and received an equal share in trust for the benefit
of his daughter committed no wrongdoing in discharge of his duties as trustee by taking advice of
investment expert in purchasing Iowa farms for the trust rather than purchasing additional shares of the
stock, which would have required the trust to borrow substantial sums of money.
4. Trusts.
Testamentary trustee who inherited stock from his wife and who received an equal share as trustee for the
benefit of his daughter was not legally obliged, once he decided to purchase additional stock for himself to
purchase one-half thereof for the trust since it was not per se improper to disturb the equal interest of trust
and trustee.
5. Trusts.
In circumstances where possibility of conflict between trust and trustee is created by last will distributing
equal interest in investment company to them, an absolute limitation against self-dealing on part of the
trustee is modified, and the trustee will not be penalized when he has acted in good faith and in a manner
he believes was for best interest of the trust.
OPINION
These consolidated appeals are taken from a judgment imposing a constructive trust for the
benefit of Karen J. Speirs upon a 12.5-percent interest in real property known as the
Horseshoe Club Hotel and Casino in Las Vegas and, as well, money damages. The district
court determined that George William Coulthard during his lifetime had acted improperly in
discharging his responsibilities as trustee for his daughter, Karen J. Speirs, and impressed a
constructive trust upon the mentioned interest in the Horseshoe Club which Coulthard had
acquired in his own name and which the coexcutors of his estate, the Bank of Nevada and
Diane Crandall Coulthard now hold.
acquired in his own name and which the coexcutors of his estate, the Bank of Nevada and
Diane Crandall Coulthard now hold. The coexecutors have appealed from that determination.
Karen J. Speirs and the First National Bank also have noticed an appeal from a portion of the
judgment concerning money damages. We turn first to recite relevant facts.
At one time, Lena Silvagni Coulthard was the wife of George William Coulthard. Karen J.
Speirs was their daughter. Lena's last will bequeathed one half of her stock in Silvagni Estate
Co. which owned the Horseshoe building and land to G. William Coulthard, and the other
one half to G. William Coulthard in trust for Karen. Lena died July 15, 1955. G. William
Coulthard was appointed executor of her estate. An order was entered in the estate proceeding
distributing a certificate for 12,500 shares of Silvagni Estate Co., 6.25 percent of the stock of
that corporation, to G. William Coulthard individually, and a like amount to him as trustee for
Karen J. Speirs (then Karen J. Coulthard).
The trust instrument directed Coulthard as trustee to use the corpus of the trust for the
care, education, welfare and maintenance of Karen, and at his discretion to use both the
income and corpus for such purposes. The trustee was empowered to buy, sell and invest
with regard to the corpus of this trust, in whatever manner seems to him to be best, and I
specifically provide that he may invest the same in whatever property or properties, real or
personal, stocks, bonds, or evidences of indebtedness, at his choosing. The trust was to
terminate when Karen became twenty-five years old.
The Silvagni Estate Co. owned in fee simple the land referred to as the Horseshoe
Properties. After Lena's death the stockholders of that company were Michael Silvagni,
Victor Silvagni, Olga Silvagni, G. William Coulthard, and G. William Coulthard as trustee
for Karen. In April, 1961, those stockholders entered into an agreement to dissolve the
corporation and distribute the Horseshoe Properties to themselves as tenants in common in
the proportion that their stockholdings bore to the total stock issued. Pursuant to that
agreement Coulthard individually received a 6.25-percent undivided interest in the Horseshoe
Properties and a 6.25-percent undivided interest as trustee for Karen. The agreement also
contained a right of first refusal which required the party desiring to sell to first offer his or
her interest to the remaining parties to this agreement at no greater a price or more stringent
terms than he or she is offered by a bona fide buyer not a party to this agreement.
In 1962, 1965 and 1967, Coulthard purchased for himself additional interests in the
Horseshoe Properties. The 1962 purchase was for a 12.5-percent interest from Michael
Silvagni for $250,000.
$250,000. The 1965 purchase was for a 7.5-percent interest from Michael Silvagni for
$375,999, and the 1967 purchase was for a 5-percent interest from Victor Silvagni for
$165,000. These purchases were financed through loans from the Bank of Las Vegas.
It is the contention of Karen Speirs and of First National Bank, the successor trustee for
Karen, that Coulthard should have purchased one half (12.5 percent) of such additional
interests in the Horseshoe Properties for the trust. The district court agreed.
Coulthard purchased five Iowa farms for the trust, one in 1961, one in 1965 and three in
1968. The acquisition price was approximately $243,146. Coulthard died on July 25, 1972.
After his death, but prior to termination of the trust, Karen sold the farms for a substantially
higher sum. These sales occurred in 1974. Karen and the First National Bank contend that the
acquisition of Iowa farmland was an improvident investment. The district court also agreed
with this contention. For reasons hereafter expressed we reverse the judgment below, since, in
our view, G. William Coulthard did not breach his duty as the testamentary trustee of the trust
established for Karen.
[Headnote 1]
1. A testamentary trustee is a fiduciary who must act in good faith and with fidelity to the
beneficiary of the trust. He should not place himself in a position where it would be for his
own benefit to violate his duty to the beneficiary.
[Headnote 2]
We are here concerned with a family arrangement. In establishing the testamentary trust
for the benefit of Karen, Lena Silvagni Coulthard invested G. William Coulthard, her
husband and Karen's father, with complete discretion as to investing the trust corpus. She
specifically provided that he may invest the same in whatever property or properties, real or
personal, stocks, bonds, or evidences of indebtedness, at his choosing. This broad grant of
authority, this testamentary exoneration of the trustee for mistakes, if any, must be accorded
respect by a court. This would seem especially true in a family setting where it is apparent
that the wife-mother wanted the husband-father to have absolute control of the trust
established for the benefit of their daughter, knowing that he would act with love and care.
[Headnote 3]
Wholly apart from the testamentary forgiveness of trustee liability for investments, we
perceive no wrongdoing by G. William Coulthard in the discharge of his duties as trustee.
Before himself borrowing money to acquire additional interests in the Horseshoe
Properties he asked an investment expert whether he should purchase such additional
interests for the trust, and was advised not to do so.
himself borrowing money to acquire additional interests in the Horseshoe Properties he asked
an investment expert whether he should purchase such additional interests for the trust, and
was advised not to do so. The major asset of the trust was the Horseshoe Properties interest.
The expert advised him to diversify the trust investments rather than to risk having the value
of the trust corpus depend upon the strength of the gaming economy in Nevada which, during
the years in question, was in a state of fluctuation. Moreover, the trust would have to borrow
substantial sums of money if it were to acquire such additional interests in the Horseshoe
Properties, and the expert strongly advised against such a course of action. In these
circumstances we do not fault Coulthard for declining to purchase for the trust.
[Headnote 4]
This aside, it is the position of Karen and the First National Bank that once Coulthard
decided to purchase additional interests in the Horseshoe Properties for himself, he was
legally obliged to purchase one half thereof for the trust, notwithstanding expert advice that it
was a poor investment for the trust. We are not at all persuaded by this contention, and find
no case supporting it in a similar factual context.
The rule that a fiduciary owes a primary duty to protect his trust was not violated by
Coulthard. It is not per se improper to disturb the equal interests of the trust and the trustee.
Anderson v. Bean, 172 N.E. 647 (Mass. 1930). There, the court observed that the disturbance
of the equal balance of holdings of stock by the trust and by the trustee as an individual is not,
as a matter of law, apart from other circumstances, an unconscionable advantage or
disadvantage.
The other circumstances here present do not suggest any impropriety on the part of
Coulthard. He was advised against purchasing the additional interests for the trust and
followed that advice. No loss was occasioned to the beneficiary, Karen, by Coulthard's
individual acquisition of a greater interest in the Horseshoe Properties. Indeed, by his last
will, Karen and Coulthard's children by his second marriage to Diane Crandall Coulthard
inherit equal portions of his property including the additional Horseshoe interests. The
fortuitous circumstance that the Horseshoe Properties have substantially increased in value
has inured to Karen's benefit as well as to the benefit of other heirs.
As we see it, the fault with the decision below is its acceptance of the proposition that it is
per se improper to disturb the equal interests of the trust and the trustee. The court did not
find that Coulthard had acted in bad faith or fraudulently.
Rather, it found, in substance, that had he acquired one half of the additional Horseshoe
Properties for the trust, Karen would have benefited. This finding necessarily rests upon
hindsight, and gives no credence whatsoever to the expert advice which Coulthard, in good
faith, sought and followed. Neither does it properly acknowledge the complete discretion
granted him with regard to trust investments.
[Headnote 5]
Finally, we note that the testatrix, Lena Silvagni Coulthard, created the possibility of a
conflict between the trust and the trustee by her last will distributing equal interests in the
Horseshoe Properties to them. In these circumstances, an absolute limitation against
self-dealing on the part of the trustee is modified, and the trustee will not be penalized when
he has acted in good faith and in a manner he believes was for the best interest of the trust. In
re Steele's Estate, 103 A.2d 409 (Pa. 1954).
2. The purchases of the Iowa farms for the trust also were within the broad investment
authority given Coulthard by the trust instrument. This precludes any liability on the part of
his estate.
3. The appeal by Karen and the First National Bank is in regard to the manner in which
the district court computed damages due them. Since the ruling as to damages rests upon the
premise that Coulthard acted improperly in discharging his duties as trustee for Karen, and
since we have determined that ruling to be improper, it is apparent that there can be no
damage award in any amount.
The judgment below in favor of Karen J. Speirs and First National Bank of Nevada is
reversed, and the cause is remanded with direction to enter judgment in favor of Bank of
Nevada and Diane Crandall Coulthard.
Mowbray, C. J., and Manoukian and Batjer, JJ., concur.
I respectfully disagree with the majority opinion insofar as it declares the trustee free to
take trust instrument advantages entirely for himself.
____________
95 Nev. 876, 876 (1979) Alper v. State ex rel. Dep't of Hwys.
ARBY ALPER & RUTH ALPER, UNITED OUTDOOR ADVERTISING COMPANY, a
California Corporation, E. T. LEGG and COMPANY; CAR DISPLAYS, INC.; JAMES VAN
DER MEER, SUSAN ANN PINJUV, AMY THOMPSON and MALENDA VAN DER
MEER, Trustees for the Van Der Meer Grandchildren; YOUNG ELECTRIC SIGN
COMPANY; EMIL MILLER And DORINDA MORGAN, Appellants, v. THE STATE OF
NEVADA, on Relation of its Department of Highways, Respondent.
No. 11039
December 13, 1979 603 P.2d 1085
Appeal from partial summary judgment, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Action was brought seeking declaratory relief or injunction with respect to application of
Nevada Advertising Control Act of 1971, and the State counterclaimed and also brought two
separate actions in eminent domain. Following consolidation, the district court entered partial
summary judgment in favor of the State, and appeal was taken. The Supreme Court,
Gunderson, J., held that zoning classification permitting nurseries and green houses, certain
on-premises signs, multiple dwellings, public and quasi-public and institutional buildings,
bars, restaurants, motels, public garages and automobile repair shops, upholstery shops,
service stations, retail business establishments, offices and office buildings and certain
off-premises signs, was commercial or industrial zone for purposes of Nevada
Advertising Control Act of 1971, and thus outdoor advertising structures were exempt from
condemnation.
Reversed.
George Rudiak, Las Vegas, for Appellants.
Richard Bryan, Attorney General, and Richard E. Thornley, Deputy Attorney General,
1. Zoning and Plaintiff.
So long as local zoning authority has acted within its statutory authority and there is no allegation of
improper motive, its classification of area as commercial or industrial does not violate purposes of
federal Highway Beautification Act or Nevada Advertising Control Act of 1971. NRS 410.010 et seq.;
23 U.S.C.A. 131 et seq.
2. Zoning and Planning.
Zoning classification permitting nurseries and green houses, certain on-premises signs, multiple
dwellings, public and quasi-public and institutional buildings, bars, restaurants, motels, public garages and
automobile repair shops, upholstery shops, service stations, retail business
establishments, offices and office buildings and certain off-premises signs, was
"commercial" or "industrial" zone for purposes of Nevada Advertising Control Act of
1971, and thus outdoor advertising structures were exempt from condemnation.
repair shops, upholstery shops, service stations, retail business establishments, offices and office buildings
and certain off-premises signs, was commercial or industrial zone for purposes of Nevada Advertising
Control Act of 1971, and thus outdoor advertising structures were exempt from condemnation. NRS
410.010 et seq.
OPINION
This is an appeal from entry of partial summary judgment in respondent's favor. The case
was certified for appeal pursuant to 54(b), Nevada Rules of Civil Procedure.
Appellants Alper, United Outdoor Advertising Company, and E. T. Legg and Company
sued the State of Nevada for declaratory relief or injunction. Respondent, State of Nevada,
counterclaimed in that action and also brought two separate actions in eminent domain
against the other appellants.
1
The three actions were consolidated for hearing in the district
court.
The issue before the trial court was whether an area zoned H-2 under Clark County
zoning ordinances was an area zoned commercial or industrial under authority of state law
for purposes of the federal Highway Beautification Act and the Nevada Outdoor Advertising
Act. If so, off-premises advertising structures belonging to the appellants in the H-2 zone
would be exempt from condemnation under those acts.
2
The trial court determined that the
zone designated as H-2 by the Clark County Zoning Board was not a commercial or industrial
zone within the meaning of NRS 410.320(4). The court therefore granted the respondent's
motion for partial summary judgment.
3
The federal Highway Beautification Act, 23 U.S.C.
131, was originally enacted in 195S.
____________________

1
Case No. A 178394: Alper et al. vs. State of Nevada; Case No. A 179689, State of Nevada vs. Car Displays,
Inc., et al., and Case No. A 179682, State of Nevada vs. Young Electric Sign Company, et al.

2
23 U.S.C. 131(d) states in part:
In order to promote the reasonable, orderly and effective display of out-door advertising while remaining
consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing,
consistent with customary use is to be determined by agreement between the several States and the Secretary,
may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way areas
adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State
law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States
and the Secretary. . . . The Nevada act is similar. See NRS 410.320(4). Commercial outdoor off-premises
advertising is not permitted in other areas. See 23 U.S.C. 131(c) and NRS 410.320(3).

3
The question of compensation is not before the court.
The federal Highway Beautification Act, 23 U.S.C. 131, was originally enacted in 1958.
Pub. L. No. 85-381, 122(a), 72 Stat. 89. The act was reenacted, in substantially its current
form, on October 22, 1965. Pub. L. No. 89-285, 131, 79 Stat. 1028. Generally, the act
requires the states to adopt measures for effective control of signboards that are adjacent to
the interstate and federal-aid primary highway systems. Commercial and industrial zones are
exempted from the act's provisions. Should a state fail to accomplish effective control of
outdoor advertising, the Secretary of Transportation has authority to impose a penalty
consisting of a 10 percent reduction in annual federal highway funds to the state.
4

The states have authority under their own zoning laws to zone areas for commercial or
industrial purposes. The actions of the states in this regard will be accepted by the Secretary
of Transportation for the purposes of 23 U.S.C. 131(d). Action which is not a part of
comprehensive zoning or which is created primarily to permit outdoor advertising structures
will not be recognized as valid zoning for outdoor advertising control purposes. CFR
750.708(b).
The State of Nevada passed its Highway Beautification Act, NRS 410.220 et seq., in 1971
to comply with the federal law and avoid the 10 percent penalty provision. The State of
Nevada entered into an agreement with the Secretary of Transportation on January 21, 1972.
5
The agreement defined zoned commercial or industrial areas as those areas which are
zoned for business, industry, commerce, or trade pursuant to a state or local zoning ordinance
or regulation.
The State of Nevada does not contend that Clark County acted without authority in zoning
as it did, nor does it contend that Clark County zoned primarily to permit outdoor advertising
structures to contravene the purposes of the act. Therefore, the issue before this court is the
validity of the lower court's determination that H-2 was not a commercial zone within the
meaning of NRS 410.220 et seq.
Under Clark County ordinances, uses permitted in the H-2 zone included:
(A) Nurseries and greenhouses;
(B) On-premises signs subject to the provisions of Section 29.44.050(J) of this title;
{C) The following uses, upon the issuance of a conditional use permit in each case,
which permit shall prescribe conditions as to building site area, materials,
dimensions of yards, building setbacks, off-street parking and loading spaces, and
such other matters as may be deemed necessary and not considered andJor not
specified in this title;
____________________

4
See State of S.D. v. Adams, 587 F.2d 915 (8 Cir. 1978).

5
A copy of the agreement appears in State of Nevada, Dept. Highways Outdoor Advertising Control Manual,
p. 29 (5 ed. 1975).
(C) The following uses, upon the issuance of a conditional use permit in each case,
which permit shall prescribe conditions as to building site area, materials, dimensions
of yards, building setbacks, off-street parking and loading spaces, and such other
matters as may be deemed necessary and not considered and/or not specified in this
title;
(1) Multiple dwellings, dwelling groups, apartment houses, provided that all buildings
and structures shall comply to Section 29.21.050 (property development standards) of
the R-4 (multiple familyhigh density) district;
(2) Public and quasi-public and institutional buildings or uses,
(3) Bars, taverns, etc.,
(4) Restaurants and eating places,
(5) Motels,
(6) Public garages and automobile repair shops,
(7) Upholstery shops,
(8) Service stations,
(9) Retail business establishments,
(10) Offices and office buildings,
(11) Off-premises signs subject to the provisions of Section 29.44.050(J)(3) of this title;
(D) Accessory buildings and incidental to the above. (Ord. 566 9, 1978; Ord. 497 5,
1976; Ord. 429 (part), 1974).
The ordinance has been in effect since 1946. In 1971 the ordinance was amended to require
conditional use permits. In 1976, Clark County divided the county into districts, including
residential, commercial, manufacturing and special districts. Until that time, H-2 had been
denominated a special district. The commercial districts in 1976 included:
C-C, shopping center district
C-P, office and professional district
C-1, local business district
C-2, general commercial district
C-3, general commercial district
H-2, general highway frontage district
The State of Nevada argued that H-2 was not a commercial district for purposes of the
Highway Beautification Act and the Nevada Act because Congress intended to restrict
outdoor advertising to areas which are established as commercial and which have little
natural countryside to protect.
and which have little natural countryside to protect. The State argued that the Federal
Highway Administrator for Nevada did not consider a zone to be commercial which also
permitted other uses. Affidavits before the court established that the signs in question had
been in existence prior to passage of the 1965 Congressional act and the 1971 Nevada act. An
affidavit also established that 95 percent of the land in H-2 was undeveloped and less than 2
1/2 percent was commercial use with the remainder residential use. Therefore, the State
argued that the commercial use in the H-2 area was incidental to residential use and could not
qualify the area as an area zoned commercial for purposes of advertising control.
We are not persuaded by the State's argument. When Clark County zoning authorities
reclassified the H-2 area from special to commercial, the authorities did not add to nor
delete from the permissible uses. The area has been consistently viewed by the county as
suitable for such activities as nurseries, multiple dwellings, public buildings, bars, restaurants,
motels, garages, shops, service stations, retail business establishments and office buildings.
These activities are included in business, commerce or trade, and come within the
commercial zone exception of the Nevada act, as set out in the agreement between Nevada
and the Secretary of Transportation. We also note that if the H-2 area were unzoned, under
the agreement between the State and Secretary of Transportation, the presence of one
permanent structure devoted to a commercial activity or on which a commercial activity is
actually conducted, with or without a permanent structure, could result in a determination that
the area was an unzoned commercial area for purposes of outdoor advertising control.
6

Thus, it would be inconsistent to determine that H-2 cannot be a commercial area because
only 2 1/2 percent of the area is devoted to commercial activities.
[Headnote 1]
Congress, in enacting the 1965 Highway Beautification Act, was heavily influenced by the
outdoor advertising industry.
7
The proposed Nevada Act was amended in the Nevada Senate
in order to recognize that outdoor advertising is a legitimate commercial use of private
property.
8
So long as the local zoning authority has acted within its statutory authority and
there is no allegation of improper motive, its classification of an area as "commercial" or
"industrial" does not violate the purposes of 23 U.S.C. 131 et seq. or Ch. 410, Nev. Rev.
____________________

6
Outdoor Advertising Control Manual, cited at n.4 at 31, D.

7
R. Cunningham, Billboard Control under the Highway Beautification Act of 1965. 71 Mich. L. R. 1296,
1300 nn 17, 18 (1973).

8
1971 Senate Journal 416.
as commercial or industrial does not violate the purposes of 23 U.S.C. 131 et seq. or Ch.
410, Nev. Rev. Stats.
By agreement with the Secretary of Transportation, the State of Nevada has established
criteria for size, number and placement of signs within commercial and industrial zones. It
has also established a permit procedure for outdoor advertising. The State has the means to
control outdoor advertising effectively within the commercial and industrial zones validly
created by the local authority.
[Headnote 2]
For the reasons stated herein, we hold that the trial court erred in granting summary
judgment to the respondent on the basis that H-2 was not a commercial zone for purposes of
the Nevada Advertising Control Act of 1971, and the cause is hereby remanded to the district
court with instructions to grant appellant's cross-motion for summary judgment.
____________
95 Nev. 881, 881 (1979) White v. State
DANNY RAY WHITE, Appellant, v. THE STATE
No. 11518
December 13, 1979 603 P.2d 1063
Mendoza, Judge.
Defendant was convicted before the district court of burglary, and he appealed. The
Supreme Court, Manoukian, J., held that trial judge's inquiry as to numerical standing of jury
was not abuse of discretion nor error where no answer was given, where conversation
between judge and jury foreman was limited to whether there had been substantial changes in
balloting during deliberations, and where judge did not urge jury to reach verdict nor in any
other manner apply pressure upon minority jurors.
Affirmed.
Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J.
95 Nev. 881, 882 (1979) White v. State
J. Miller, District Attorney, H. Douglas Clark, and James Tufteland, Deputy District
Attorneys, Clark County, for Respondent.
1. Criminal Law.
Alleged error from judicial inquiry into numerical standing of jury during deliberations does not
constitute reversible error per se but, rather, alleged error should be examined in context of all facts and
circumstances surrounding case.
2. Criminal law.
where trial judge requested jury to disclose its numerical standing but no answer was given, conversation
between judge and jury foreman was limited to whether there had been substantial changes in balloting
during deliberations, and judge did not urge jury to reach verdict nor in any other manner apply pressure to
minority jurors, judicial inquiry into numerical standing of jury did not constitute abuse of discretion or
error of any sort.
3. Criminal Law.
Although unnecessary, negative reasonable doubt instruction given in burglary case was in harmony with
statutory reasonable doubt instruction and trial court did not commit error by giving it. NRS 175.211.
4. Criminal Law.
Weight and credibility of testimony of identifying witnesses is within exclusive province of jury.
5. Criminal Law.
Where there is substantial evidence to support verdict in criminal case, Supreme Court will not disturb
verdict not set aside judgment.
6. Burglary.
Evidence, which included eyewitness testimony concerning defendant's involvement in burglary, was
sufficient to support his burglary conviction. NRS 205.060.
OPINION
A jury found the appellant, Danny Ray White, guilty of burglary, NRS 205.060. On appeal
he contends: (1) That the trial court committed error in its comments to the jury during their
deliberations; (2) That the giving of an additional nonstatutory instruction regarding
reasonable doubt constituted reversible error; and, (3) That the evidence was insufficient to
support the verdict. We find each contention to be without merit.
1. The Court's Inquiry.
During deliberations, the jury foreman sent a note to the trial court stating that the jury was
unable to reach a unanimous verdict after numerous votes. In addition, the note indicated that
a better understanding of the term reasonable doubt would be helpful. Pursuant to NRS
175.451, the court thereafter convened in the presence of the defendant, both counsel,
and the jury, whereupon the following discussion occurred:
95 Nev. 881, 883 (1979) White v. State
thereafter convened in the presence of the defendant, both counsel, and the jury, whereupon
the following discussion occurred:
THE COURT: Well, let me ask you this then before, with consent of counsel, counsel
has asked that I ask you some preliminary questions with regard to the number of
ballots you have taken, and without stating which why [sic], either one way or the
other, if you could just give us a numerical lineup without stating for or against or
whatever it might be, give us some idea if you have made any progress in your ballots.
Have you made any progress from the time you stated [sic], has there been any material
switch in the ballots?
MR. WOODBURY: Yes we have.
THE COURT: Has the shift been rather substantial?
MR. WOODBURY: I would say so, yes.
The trial court then gave the following instruction on reasonable doubt: It is not necessary
that the Defendant's guilt should be established beyond any doubt, or to an absolute certainty.
But instead thereof the Defendant's guilt must be established beyond a reasonable doubt as
hereinafter defined.
Immediately thereafter, the statutory definition of reasonable doubt, previously given to
the jury, was repeated. NRS 175.211(1).
1

In Burton v. United States, 196 U.S. 283 (1905), the Supreme Court condemned the
judicial inquiry into the numerical standing of a jury during deliberations. Burton did not
decide, however, whether the numerical inquiry was reversible error. Brasfield v. United
States, 272 U.S. 448 (1926), resolved the issue, holding that a numerical inquiry constituted
reversible error per se. Recognizing that such an inquiry tends to be coercive, the Supreme
Court said: We deem it essential to the fair and impartial conduct of the trial, that the inquiry
itself should be regarded as ground for reversal. Id. at 450.
The Supreme Court has never held, or intimated, that the Brasfield rule of per se
prejudicial error is a rule of constitutional law binding on the states.
____________________

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.
95 Nev. 881, 884 (1979) White v. State
Brasfield rule of per se prejudicial error is a rule of constitutional law binding on the states.
Indeed, there are explicit holdings that Brasfield merely created a federal procedural rule
incident to the Supreme Court's supervisory power over federal courts. See Ellis v. Reed, 596
F.2d 1195 (4th Cir. 1979); State v. Cornell, 266 N.W.2d 15 (Iowa), cert. denied, 439 U.S.
947 (1978).
Although a number of jurisdictions have followed the reasoning in Brasfield, e.g., People
v. Wilson, 213 N.W.2d 193, 195 (Mich. 1973); see Taylor v. State, 299 A.2d 841
(Md.Ct.Spec.App. 1973), other courts have held that the trial court may make inquiry
respecting the numerical division of the jury. People v. Carter, 442 P.2d 353, 356 (Cal. 1968);
Sharplin v. State, 330 So.2d 591, 596 (Miss. 1976). Finally, some states have required that
there be a showing of prejudice based on the circumstances of each case. People v. Austin,
523 P.2d 989, 993-94 (Colo. 1974).
[Headnote 1]
Our approach to this type of claimed judicial error, in general, resembles the position of
the Colorado court. Id. at 993-94. We have held that the alleged error should be examined in
the context of all the facts and circumstances surrounding the case. See Redeford v. State, 93
Nev. 649, 652-53, 572 P.2d 219, 220-21 (1977) (court erred in giving Allen charge without
qualifying language); State v. Clark, 38 Nev. 304, 308-10, 149 P. 185, 187-88 (1915)
(judicial coercion of jury included inquiry into numerical division). We opt to follow our
precedent and reject the harsh Brasfield rule of automatic reversal.
[Headnote 2]
In the instant case, the trial judge requested the jury to disclose its numerical standing. No
answer, however, was given. The conversation between the judge and the jury foreman was
limited to whether there had been substantial changes in the balloting during deliberations.
Moreover, the judge did not urge the jury to reach a verdict, nor in any other manner apply
pressure to minority jurors. Cf. Ransey v. State, 95 Nev. 364, 594 P.2d 1157 (1979)
(reversible error for a trial court to give Allen charge during deliberations, which in essence
told lone dissenting juror to be open-minded and not obstinate, but which failed to inform
jurors they should not surrender conscientiously formed opinions). In evaluating the totality
of the circumstances, cf. Farmer v. State, 95 Nev. 849, 603 P.2d 700 (1979) (bailiff's
communication with jury was not prejudicial), we conclude that the inquiry was neither an
abuse of discretion nor error of any sort.
95 Nev. 881, 885 (1979) White v. State
2. Reasonable Doubt.
[Headnote 3]
We have often expressed our view that the reasonable doubt instruction contained in NRS
175.211 is adequate, and that no further instruction need be given. Although it is unnecessary,
we have also held that the negative reasonable doubt instruction of the kind given in this case
is in harmony with the statute. Jackson v. State, 93 Nev. 677, 683, 572 P.2d 927, 931 (1977).
The trial court did not commit error by giving the instruction. See Tucker v. State, 92 Nev.
486, 553 P.2d 951 (1976); State v. Hall, 54 Nev. 213, 13 P.2d 624 (1932).
[Headnotes 4-6]
Finally, appellant contends that there was insufficient evidence to support the jury's
verdict. Although the evidence was in conflict, the prosecution presented eyewitness
testimony concerning appellant's involvement in the burglary. The weight and credibility of
the testimony of identifying witnesses is within the exclusive province of the jury. Wise v.
State, 92 Nev. 181, 183, 547 P.2d 314, 315 (1976). Where there is, as here, substantial
evidence to support a verdict in a criminal case, this court will not disturb the verdict nor set
aside the judgment. McKinney v. State, 95 Nev. 494, 596 P.2d 503 (1979); Henderson v.
State, 95 Nev. 324, 594 P.2d 712 (1979).
We affirm the conviction.
____________
95 Nev. 885, 885 (1979) Meyer v. State
BRUCE ARTHUR MEYER, Appellant, v. THE STATE
No. 11855
December 13, 1979 603 P.2d 1066
Appeal from judgment of conviction upon guilty plea. Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Defendant appealed from order of the district court denying his motion to withdraw his
guilty plea to charge of sexual assault. The Supreme Court, Batjer, J., held that: (1) district
judge's acceptance of defendant's guilty plea was fatally defective because record was
devoid of any indication that defendant was informed that sexual assault was not a
probational offense, and {2) order denying withdrawal of defendant's guilty plea was an
abuse of discretion.
95 Nev. 885, 886 (1979) Meyer v. State
judge's acceptance of defendant's guilty plea was fatally defective because record was devoid
of any indication that defendant was informed that sexual assault was not a probational
offense, and (2) order denying withdrawal of defendant's guilty plea was an abuse of
discretion.
Norman Herring, State Public Defender, and J. Gregory Damm, Deputy Public Defender,
for Appellant.
1. Criminal Law.
District judge's acceptance to defendant's guilty plea to crime of sexual assault was fatally defective
because record did not indicate that defendant was informed that sexual assault was not a probational
offense. NRS 176.165, 200.366, subd. 2(b)(2), (c).
2. Criminal Law.
Whether or not probation is available is critical to a defendant's understanding of consequences of his
guilty plea; therefore, when an offense is not probational, district judge has duty to insure that record
discloses that defendant is aware of that fact.
3. Criminal Law.
Trial court abused its discretion in denying defendant's motion to withdraw his guilty plea to charge of
sexual assault since court's failure to adequately inform defendant of consequences of his plea created a
manifest injustice. NRS 176.165.
OPINION
Bruce Arthur Meyer appeals from the district court's order denying his motion to withdraw
his guilty plea to the charge of sexual assault. Meyer's only valid argument is that his guilty
plea was not entered voluntarily and intelligently because he was not informed, on the record,
that probation is not available to one convicted of sexual assault. A review of the record
supports this contention. We reverse.
On September 30, 1978, Meyer allegedly forced a child to perform fellatio. Meyer was
charged with lewdness with a minor, NRS 201.230, and sexual assault of a minor, NRS
200.364, 200.366.
Pursuant to a plea bargain negotiated with the district attorney, an amended information
was filed charging Meyer with sexual assault, in lieu of sexual assault with a minor.1 In
addition, the state promised to dismiss the other charges against Meyer at the time of his
sentencing.2 Meyer pleaded guilty to sexual assault.
95 Nev. 885, 887 (1979) Meyer v. State
with sexual assault, in lieu of sexual assault with a minor.
1
In addition, the state promised to
dismiss the other charges against Meyer at the time of his sentencing.
2
Meyer pleaded guilty
to sexual assault.
[Headnote 1]
The district judge questioned Meyer to determine whether the plea was voluntarily entered
and whether Meyer had a complete understanding of the crime charged and of the
consequences of his plea. In an effort to establish on the record that the guilty plea was
constitutionally valid, the district judge generally followed the guidelines set forth in Higby v.
Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). However, the district judge's acceptance of
Meyer's guilty plea was fatally defective because the record is devoid of any indication that
Meyer was informed that sexual assault is not a probational offense.
3

[Headnote 2]
Whether or not probation is available is critical to the defendant's understanding of the
consequences of his guilty plea. Therefore, when an offense is not probational, the district
judge has a duty to insure that the record discloses that the defendant is aware of that fact.
Wells v. State, 396 A.2d 161 (Del. 1978) and Wood v. Morris, 554 P.2d 1032 (Wash. 1976).
4
[Headnote 3]
[Headnote 3]
____________________

1
The minimum sentence for sexual assault is 5 years. NRS 200.366(2)(b)(2). The minimum sentence for
sexual assault of a minor is 10 years. NRS 200.366(2)(c).

2
The state did fulfill its side of the bargain after Meyer was sentenced to five years in prison.

3
NRS 200.366 Sexual assault: Definition; penalties
. . . .
2. Any person who commits a sexual assault shall be punished:
. . . .
(b) If no substantial bodily harm to the victim results:
(1) By imprisonment in the state prison for life, with possibility of parole, beginning when a minimum of 5
years has been served; or
(2) By imprisonment in the state prison for any definite term of 5 years or more, with eligibility for parole
beginning when a minimum of 5 years has been served.
NRS 176.185 Suspension of execution of sentence by court; terms and conditions of probation.
1. Whenever any person has been found guilty in a district court of a crime upon verdict or plea, the court,
except in cases of capital murder or murder of the first or second degree, kidnaping in the first degree, sexual
assault, or an offense for which the suspension of sentence or the granting of probation is expressly forbidden,
may by its order suspend the execution of the sentence imposed and grant probation to the convicted person as
the judge thereof deems advisable. . . . (Emphasis added.)

4
See ABA Standards Relating to the Ad. of Crim. Just., Pleas of Guilty, Standard 14-1.4(a)(ii) (Second Ed.
Tentative Draft 1978). Cf. United States v. Del Prete, 567 F.2d 928 (9th Cir. 1978), United States v. Wolak, 510
F.2d 164
95 Nev. 885, 888 (1979) Meyer v. State
[Headnote 3]
The failure to adequately inform Meyer of the consequences of his plea created a manifest
injustice that may be corrected by setting aside the conviction and allowing Meyer to
withdraw his guilty plea. See NRS 176.165.
5
The order denying withdrawal of the plea was
an abuse of discretion. Consequently, the order is reversed and the case is remanded to the
district court to permit Meyer to plead anew.
____________________
(6th Cir. 1975) (district judge must inform defendant of mandatory special parole term and mandatory minimum
sentence in order to comply with Fed.R.Crim.P. 11). Contra, State v. Stewart, 364 N.E.2d 1163 (Ohio 1977).

5
NRS 176.165 When plea of guilty may be withdrawn:
Except as provided in NRS 176.225, a motion to withdraw a plea of guilty or of nolo contendere may be
made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice
the court after sentence may set aside the judgment of conviction and permit the defendant in withdraw his plea.
____________
95 Nev. 888, 888 (1979) Boyle v. Warden
ROBERT L. BOYLE, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 11792
December 13, 1979 603 P.2d 1068
Appeal from order denying post-conviction petition for writ of habeas corpus, First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
The Supreme Court held that: (1) the counsel's failure to further verify whether defendant
could have been prosecuted as an habitual criminal did not constitute ineffective
representation, and (2) plea was not involuntary on ground that defendant thought he was
pleading guilty to only one offense but was sentenced to two consecutive four-year terms
since statute defining the offense and the enhancement provision do not create separate
offenses and defendant was fully and correctly advised as to weapon enhancement provision
as well as range of possible sentences.
Affirmed.
Stephen R. Wassner, Zephyr Cove, for Appellant.
Richard H. Bryan, Attorney General, and Richard E. Thornley, Deputy Attorney General,
1. Criminal Law.
Under any test of effective assistance of counsel the presumption that an attorney has fully discharged his
duties may be overcome only by strong and convincing proof to the contrary.
2. Criminal Law.
Defendant was not denied effective assistance of counsel in connection with guilty plea on ground that
counsel should have verified prior conviction before recommending that defendant enter into plea bargain
where counsel's reason for not researching the matter further was that defendant had stated that he had been
convicted of at least two prior felonies and did not dispute those convictions despite fact that he had been
informed of the necessary proofs required to be convicted as an habitual criminal.
3. Criminal Law.
Guilty plea to charge of armed robbery was not subject to challenge on ground that it was not intelligently
made because defendant thought he was pleading guilty to a single offense when he was, in effect, pleading
guilty to separate offenses of robbery and use of a weapon in commission thereof, since not only are the
two not separate offenses but record disclosed that defendant was fully and correctly advised as to the
weapon enhancement provision as well as the range of possible sentences. NRS 193.165, 193.165,
subd. 2, 200.380, 207.010.
OPINION
Per Curiam:
Pursuant to a plea bargain, appellant Boyle pleaded guilty on May 12, 1978, to armed
robbery. NRS 200.380; NRS 193.165. The plea bargain included a commitment by the
prosecution not to prosecute Boyle as an habitual criminal under NRS 207.010. Boyle was
subsequently sentenced to two consecutive four-year terms in the Nevada State Prison. The
First Judicial District Court denied his petition for a writ of habeas corpus and this appeal
followed, appellant being represented on appeal by different counsel.
Appellant contends he made neither a voluntary nor intelligent guilty plea because (1) his
attorney failed to verify whether Boyle could have been prosecuted as an habitual criminal;
and, (2) the memorandum of plea bargain used the term armed robbery leading him to
believe that he was pleading to only one offense and he would receive only one sentence.
It is well established that a plea of guilty must be entered intelligently and voluntarily.
Boykin v. Alabama, 395 U.S. 238 (1969); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959
(1970); see also Patton v. Warden 91 Nev. 1, 530 P.2d 107 {1975); Armstrong v. Warden,
90 Nev. S, 51S P.2d 147 {1974); Heffley v. Warden, S9 Nev. 573
also Patton v. Warden 91 Nev. 1, 530 P.2d 107 (1975); Armstrong v. Warden, 90 Nev. 8, 518
P.2d 147 (1974); Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973). Appellant argues
that had his attorney more fully advised him about the bargain, he would not have entered a
guilty plea. Thus, he argues, the plea was not taken voluntarily and intelligently as required by
Higby, and its progeny.
(1) In his first contention of error appellant offers no evidence that he could not have been
convicted as an habitual criminal. He alleges, however, that his attorney should have verified
the prior convictions before recommending to appellant that he enter into the plea bargain.
Counsel's reasons for not researching this matter further appear in the record in an affidavit in
which he states: ROBERT BOYLE . . . stated to me that he had been convicted of at least
two prior felonies [and he] never disputed those convictions . . . despite the fact that he had
been informed . . . of the necessary proofs required to be convicted as an habitual criminal.
It is axiomatic that a guilty plea lacks the required voluntariness and understanding if
entered on advice of counsel that fails to meet the minimum standards of effectiveness
derived from' the Sixth Amendment. United States v. Sanderson, 595 F.2d 1021, 1022 (5th
Cir. 1979). We have always maintained that to find ineffective assistance of counsel, we must
find that counsel's representation was of such a low caliber as to reduce the proceeding to a
sham, a farce, or a pretense. See White v. State, 95 Nev. 159, 591 P.2d 266 (1979); Warden v.
Lischko, 90 Nev. 221, 523 P.2d 6 (1974). We are here urged to adopt a less stringent test, that
is, whether counsel rendered reasonably effective assistance. Cooper v. Fitzharris, 586 F.2d
1325 (9th Cir. 1978), cert. denied, 440 U.S. 974 (1979).
[Headnotes 1, 2]
Under any test, however, the presumption that an attorney has fully discharged his duties
may be overcome only by strong and convincing proof to the contrary. See White v. State,
supra; Shuman v. State, 94 Nev. 265, 578 P.2d 1183 (1978); Lambert v. State, 94 Nev. 68,
574 P.2d 586 (1978); Warden v. Lischko, supra. We have considered the record and perceive
no foundation for the claim of ineffective assistance of counsel under any test. See White v.
State, supra.
[Headnote 3]
(2) Appellant next contends that in agreeing to a guilty plea for armed robbery, he
thought he was pleading guilty to a single offense when he was, in effect, pleading guilty to
two separate offenses, robbery (NRS 200.380) and use of a weapon in the commission of a
crime {NRS 193.165).
in the commission of a crime (NRS 193.165). However, NRS 193.165 does not create a
separate offense but rather provides for an enhancement of the sentence when a weapon is
used. NRS 193.165(2). Moreover, the record affirmatively discloses that appellant was fully
and correctly advised as to the weapon-enhancement provision as well as the range of
possible sentences that could be imposed. Under these circumstances, we find his argument
that his plea of guilty on a charge of armed robbery was not intelligently made, to be
without merit. See Armstrong v. Warden, supra.
Appellant's other contentions are without merit. Accordingly, we affirm appellant's
conviction and sentence.
____________
95 Nev. 891, 891 (1979) Montes v. State
MANUEL M. MONTES, Appellant, v. THE STATE
No. 10673
December 13, 1979 603 P.2d 1069
Appeal from judgment upon jury verdict, Eighth Judicial District Court, Clark County;
Defendant was convicted by jury in district court of possession of stolen vehicle, and
defendant appealed. The Supreme Court, Gunderson, J., held that: (1) to be convicted of
possession, defendant did not have to have intended to procure or pass title to vehicle; (2)
applicable statute did not require State to prove that defendant intended to deprive owner
permanently of his vehicle; (3) while certain instruction should have used statutory language
reason to believe, such instruction did not reduce State's burden of proof on element of
knowledge to a negligence standard, but, rather, was actually broader than defendant was
entitled to have given; and (4) error occurred in giving instruction purporting to state
rebuttable presumption of guilt arising from defendant's recent, exclusive and unexplained
possession of stolen vehicle, but such error was harmless, because such erroneous instruction
was broader than defendant was entitled to have given.
Affirmed.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Richard Bryan, Attorney General, Carson City; Robert J Miller, District Attorney and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Miller, District Attorney and James Tufteland, Deputy District Attorney, Clark County, for
Respondent.
1. Receiving Stolen Goods.
The intent element of taking or receiving in first clause of statute, which clause forbids receipt or transfer
of stolen vehicles with intent to procure or pass title, is not to be imparted to second clause of statute,
which clause makes mere possession of a vehicle, with requisite knowledge of its stolen character, a crime.
NRS 205.273.
Statute forbidding possession of stolen vehicles did not require State to prove that defendant intended to
deprive owner permanently of his vehicle. NRS 205.273.
While, in prosecution for possession of a stolen vehicle, certain instruction should have used statutory
language reason to believe, giving of such instruction did not reduce State's burden on element of
knowledge to a negligence standard, but, rather, was actually broader than defendant was entitled to have
given, as it required State to prove that defendant acted for his own gain or to prevent owners from
reacquiring vehicle and that defendant had either acquired or possessed vehicle, whereas defendant's
possession of stolen vehicle coupled with his knowledge or reason to believe that it was stolen comprised
crime. NRS 205. 273.
4. Criminal Law; Receiving Stolen Goods.
In prosecution for possession of stolen vehicle, error occurred in giving instruction purporting to state
rebuttable presumption of guilt arising from defendant's recent, exclusive and unexplained possession of
stolen vehicle, but such error was harmless, because such erroneous instruction was broader than defendant
was entitled to have given. NRS 47.230, 47.230, subds. 2, 3, 205.273, 205.2715, subds. 1, 2.
5. Criminal Law.
Allen charge, given at close of case with other instructions, instructed jury not to surrender
conscientiously held opinions, and it was not coercive, and its use in instant case was not improper.
6. Criminal Law.
Since defendant had cited no authority in support of his contentions of error concerning motion for
mistrial and motion by defense counsel to withdraw during trial, Supreme Court need not consider them,
but nevertheless, inspection of record reflected that trial court did not abuse its discretion in denying
motions made.
OPINION
Manuel M. Montes was tried by a jury and convicted of possession of a stolen vehicle, a
violation of NRS 205.273. The appellant contended on appeal that the trial court erred in
instructing the jury, in denying his motion for mistrial, and in denying his attorney's motion to
withdraw as counsel.
On April 6, 1977, at approximately 1:30 a.m. in Clark County, Nevada, a police officer in
a patrol vehicle noticed a vehicle traveling in an erratic manner.
County, Nevada, a police officer in a patrol vehicle noticed a vehicle traveling in an erratic
manner. He could see two occupants. The driver was a caucasian male and the passenger was
a black male. The officer began to chase the suspect vehicle at high speeds. The chase
terminated when the suspect vehicle spun out, causing a cloud of dust. A second officer
observed the suspect vehicle spin out with the patrol car in pursuit. As the second officer
traveled toward the scene, he saw the driver exit the suspect vehicle and run toward him. The
second officer exited his patrol vehicle and gave chase, apprehending the appellant a few
moments later. In the meantime, the first officer had apprehended the passenger. The officers
subsequently learned that the suspect vehicle had been stolen between 4:30 p.m. and 7:00
p.m. the previous day.
Appellant testified at trial that he had been drinking heavily on April 5, 1977. He bad
completed a telephone call from a telephone booth near the place where the vehicles stopped.
He saw the suspect vehicle spin out, walked closer and saw the driver leave the vehicle to
run. Appellant was returning to the telephone booth when appellant was apprehended as the
driver of the suspect vehicle. No other witnesses were called on behalf of the appellant.
The first contention of error was that the jury was not properly instructed as to the
elements of possession of a stolen vehicle. NRS 205.273 states:
Any person who, with intent to procure or pass title to a motor vehicle which he
knows or has reason to believe has been stolen, shall receive or transfer possession of
the same from or to another, or who shall have in his possession any motor vehicle
which he knows or has reason to believe has been stolen, and who is not an officer of
the law engaged at the time in the performance of his duty as such officer, shall be
guilty of a felony and 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.
The statute forbids two types of criminal activity: receipt or transfer of stolen vehicles with
intent to procure or pass title, and possession of stolen vehicles. In each type of crime the
statute requires that the State prove the defendant knew or had reason to believe the vehicle
was stolen. (See State v. Wise, 515 P.2d 644 (N.Mex. 1973), wherein the court of New
Mexico has interpreted a similar statute.)
[Headnote 1]
The trial court refused to give two instructions offered by the defense.1 First, appellant
argued that, to be convicted of possession, appellant must have intended to procure or
pass title to the vehicle.
defense.
1
First, appellant argued that, to be convicted of possession, appellant must have
intended to procure or pass title to the vehicle. This is not the case. The intent element of
taking or receiving in the first clause of the statute is not to be imparted to the second clause
which makes mere possession of a vehicle, with the requisite knowledge of its stolen
character, a crime.
[Headnote 2]
Second, the statute does not require the state to prove that appellant intended to deprive the
owner permanently of his vehicle (Cf. NRS 205.275, receiving stolen property.) We also note
the exemption in the statute for officers of the law engaged in the performance of their duties.
If mere possession of a vehicle with knowledge or reason to believe it was stolen were not
intended to be the crime, there would be no reason to include the exemption for police
officers.
For these reasons, rejection of appellant's proposed instructions Nos. 1 and 2 was not error.
[Headnote 3]
With respect to the instruction given, to which appellant excepted, Instruction No. 6 stated:
Any person who, for his own gain, or to prevent the rightful owner from again
possessing his property, shall acquire or possess a motor vehicle, knowing the vehicle
was stolen or having reasonable cause to believe that the vehicle was stolen, is guilty of
possession of a stolen motor vehicle. (Emphasis added.)
Appellant urged that Instruction No. 6 was erroneous in that it required reasonable cause
to believe rather than appellant's actual knowledge or actual belief. Direct proof of
defendant's knowledge or belief is rarely available. We have held that possession of stolen
property, with slight corroboration in the form of statements or conduct tending to show guilt,
will support a conviction for receiving stolen property.
____________________

1
Appellant's proposed instructions were offered in the alternative and read as follows:
(1) In order to convict the defendant of the crime of possession of a stolen vehicle, the State must prove
beyond a reasonable doubt that the vehicle was stolen, that the defendant had possession of the vehicle, that the
defendant knew or reasonably should have known that the vehicle was stolen at the time he possessed it, and that
the defendant intended to permanently deprive the true owner of possession of the vehicle. (Emphasis added.)
(2) In order to convict the defendant of the crime of possession of a stolen vehicle, the State must prove
beyond a reasonable doubt that the vehicle was stolen, that the defendant had possession of the vehicle, that the
defendant knew or reasonably should have known that the vehicle was stolen at the time he possessed it, and that
the defendant intended to procure or pass title to the vehicle. (Emphasis added.)
will support a conviction for receiving stolen property. Dutton v. State, 94 Nev. 461, 581 P.2d
856 (1978).
Contrary to appellant's urging, we do not agree that Instruction No. 6 reduced the State's
burden of proof on the element of knowledge to a negligence standard. The proper focus is
the state of mind of the particular defendant. We believe the instructions adequately informed
the jury that appellant's knowledge or appellant's reason to believe the vehicle stolen was the
question to be determined by the jury. Other instructions made clear that the State must prove
the defendant's guilt beyond a reasonable doubt. Cf. State v. Ware, 557 P.2d 1077 (Ariz.App.
1976) with People v. Johnson, 564 P.2d 116 (Colo. 1977).
While the instruction should have used the statutory language reason to believe, the
giving of Instruction No. 6 was not reversible error. It arguably was actually broader than
appellant was entitled to have given. It required the State to prove that appellant acted for his
own gain or to prevent the owners from reacquiring the vehicle and that appellant had either
acquired or possessed the vehicle. As noted above, we believe appellant's possession of a
stolen vehicle coupled with his knowledge or reason to believe it was stolen comprised the
crime.
[Headnote 4]
Appellant further argued that the trial court erred in giving Instruction No. 5, which stated:
The recent unexplained possession of a stolen vehicle is evidence of the fact that the
possessor of said property unlawfully took it. The elements of this rebuttable
presumption are the property must be stolen, must be in the possession of the
defendant, the possession must be recent, and it must be unexplained. This may be
sufficient to convict in the absence of other facts and circumstances which leave a
reasonable doubt in the minds of the jury.
Instruction No. 5 is erroneous. It purports to state a rebuttable presumption that is
neither contained in the evidence code of this state nor created by our case law.
2
See NRS
47.180, et seq. The rebuttable presumption given to the jury is in reality a misstatement of a
holding in Staab v. State, 90 Nev. 347, 350, 526 P.2d 338, 340 (1974). In that case we said
that recent, exclusive and unexplained possession of stolen property by an accused person
could give rise to an inference of guilt which might be sufficient to convict in the absence of
other facts and circumstances.
____________________

2
For a discussion of the ramifications of creating a presumption in a civil case, see Privette v. Faulkner, 92
Nev. 353, 358, 550 P.2d 404 (1976).
facts and circumstances. This inference is permissible because, when goods have been taken
from one person and are quickly found in the possession of another, there is a strong
probability that they were taken by the latter. Staab v. State, cited above.
Moreover, if the presumption stated in the instruction were a true presumption and the
presumed fact was an element of the offense, the court had the obligation to determine
whether a reasonable juror could, on the evidence as a whole, find the presumed fact (that
appellant took the vehicle) beyond a reasonable doubt.
3
If so, the court was obligated to
instruct the jury that the presumed fact (the taking) had to be found beyond a reasonable
doubt. NRS 47.230(3).
Instruction No. 5 must be read in connection with Instruction No. 7, however. Instruction
No. 7 states:
In order for the state to convict the defendant of unlawfully taking a vehicle the State
must prove beyond a reasonable doubt that the defendant drove the vehicle of another
without the intent to permanently deprive the owner thereof, but without the consent of
the owner of the vehicle.
Instruction No. 7 is adapted from NRS 205-2715(1). Subsection (2) of that statute states:
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. Appellant
did not except to the giving of Instruction No. 7 and, indeed, argued to the jury that, at most,
the evidence proved joyriding or unlawfully taking the vehicle without the owner's consent.
____________________

3
NRS 47.230 states:
1. In criminal actions, presumptions against an accused recognized at common law or created by statute,
including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed
by this section.
2. The judge shall not direct the jury to find a presumed fact against the accused. When the presumed fact
establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt
or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole,
including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. Under
other presumptions, the existence of the presumed fact may be submitted to the jury if the basic facts are
supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the
existence of the presumed fact.
3. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall
give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the
presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element
of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence,
be proved beyond a reasonable doubt.
Again, acknowledging that Instruction No. 5 did not correctly state the law, the instruction
was broader than the appellant was entitled to have given. The State, under the instruction
given, had to prove that the property was stolen; that the property was in the possession of the
appellant; and that his possession was recent and unexplained. Under the statutory
presumption contained in NRS 205.2715(2) the State had only to prove that the appellant had
possession of the vehicle and that the owner had not consented to his possession.
4
Thereafter, the court would have to act according to NRS 47.230(2) and (3).
The record shows the State proved that the vehicle had been taken some five to eight hours
prior to appellant's arrest; proved that the vehicle was taken without the owners' permission:
and proved that the appellant attempted to elude pursuit when his erratic driving brought him
to the attention of the patrol officers. The jurors, following the instructions of the court, could
have found beyond a reasonable doubt that the defendant took the vehicle without the consent
of the owners.
Consideration of the entire case indicates neither a miscarriage of justice, nor prejudice to
appellant's substantial rights resulted from the court instructing the jury as it did. Kelso v.
State, 95 Nev. 37, 588 P.2d 1035 (1979); State v. Fitch, 65 Nev. 668, 692-93, 200 P.2d 991,
1003-04 (1948).
[Headnote 5]
Appellant also contended that the court gave an improper and coercive jury instruction.
Instruction No. 22 is what is commonly referred to as an Allen charge. (See Allen v. United
States, 164 U.S. 492 (1896)). Instruction No. 22 is virtually identical to the instruction this
court upheld in Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976). Instruction No. 22, given
at the close of the case with the other instructions, instructed the jury not to surrender
conscientiously held opinions. It was not coercive. Its use in this case was not improper. But
cf. Ransey v. State, 95 Nev. 364, 594 P.2d 1157 (1979).
[Headnote 6]
The remaining contentions of error concerned a motion for mistrial and a motion by
defense counsel to withdraw during trial. Since appellant has cited no authorities in support of
his positions, we need not consider them. McKinney v. Sheriff, 93 Nev. 70, 71, 560 P.2d 151
(1977); Franklin v. State, 89 Nev.
____________________

4
The constitutionality of NRS 205.2715(2) was upheld in Edwards v. Sheriff, 93 Nev. 13, 558 P.2d
1144(1977).
382, 513 P.2d 1252 (1973); Williams v. State, 88 Nev. 164, 494 P.2d 960 (1972).
Nevertheless, inspection of the record reflects that the trial court did not abuse its discretion
in denying the motions made.
Affirmed.
____________
95 Nev. 898, 898 (1979) Lapinski v. City of Reno
CONRAD LAPINSKI, Appellant, v. CITY OF RENO, NEVADA; CARL BOGART, Mayor;
PATRICIA LEWIS, MARCEL DURANT, CLYDE BIGLIERI, BRUNO MENICUCCI,
NICK LAURI, and BILL GRANATA, City Council thereof; and ROBERT H. OLDLAND,
City Manager, Respondents.
No. 9854
December 14, 1979 603 P.2d 1088
Appeal from order denying petition For writ of mandate, Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Appeal was taken from a judgment of the district court, denying petition for writ of
mandate to require city to reinstate city traffic safety engineer. The Supreme Court held that
traffic safety engineer's lack of registration as a professional engineer, trip to meeting of
international traffic engineers, progress on bikeway project, failure to get railroad crossings
on priority list for federal funding, statement that he would seek legal opinion as to part of
proposed change in city street, and fact that he had over $100,000 in his budget which he
intended to carry over to the next year did not constitute legal cause for termination of his
employment; therefore, city council abused its discretion in refusing to reinstate him and trial
court erred in denying his application for writ of mandate.
Reversed and remanded for further proceedings.
James C. Van Winkle, Reno, for Appellant.
Louis S. Test, City Attorney, and Lance R. Van Lydegraf, Assistant City Attorney, Reno,
for Respondents.
Where city council agreed to hold a public hearing with regard to termination of employment of
city traffic safety engineer,
termination of employment of city traffic safety engineer, city was obligated to afford engineer a
substantially fair hearing and establish that legal cause did exist for engineer's termination and on appeal
from trial court's denial of engineer's petition for writ of mandate city was precluded from arguing that no
such hearing was required.
In determining whether there was substantial evidence placed before city council from which it could
have made a finding that legal cause existed to terminate city traffic safety engineer's employment with
city, Supreme Court was limited to record which was before council.
Once city traffic safety engineer, whose employment with city had been terminated, had produced
sufficient evidence to rebut memorandum charges stating reasons for his termination, burden shifted to city
to produce further evidence.
4. Mandamus; Municipal Corporations.
City traffic safety engineer's lack of registration as a professional engineer, trip to meeting of
international traffic engineers, progress on bikeway project, failure to get railroad crossings on priority list
for federal funding, statement that he would seek legal opinion as to part of proposed change in city street,
and fact that he had over $100,000 which he intended to carry over to the next year did not constitute legal
cause for termination of his employment; therefore, city council abused its discretion in refusing to
reinstate city traffic safety engineer and trial court erred in denying his application for writ of mandate.
OPINION
Per Curiam:
By petition for writ of mandate in the court below, Conrad Lapinski, appellant herein,
challenged the Reno City Council,s refusal to reinstate him to the position of City Traffic
Safety Engineer. The trial court dismissed the petition. Lapinski also sought a writ of
certiorari and damages but neither issue is before the court. The parties stipulated that further
hearing on the question of damages would be held at a later time, if necessary.
Lapinski was recruited for the position with the City of Reno by former City Manager Joe
Latimore in 1974, while Lapinski was employed by the City of Riverside, California, as
traffic engineer. The Reno City Council confirmed Lapinski's appointment after an interview.
His employment with the City began in September, 1974, and continued until June 18, 1975
(his last date of pay).
After Lapinski had been hired as City Traffic Safety Engineer, the Reno city government
underwent changes. The office of traffic engineer was placed under the supervision of the
Director of Public Works, Jack Easley. Robert H. Oldland, one of the respondents herein, had
become City Manager. The day Easley's appointment was confirmed,
day Easley's appointment was confirmed, Lapinski was moved to a garage office so that
Easley could take his office. Soon after arrival, Easley refused to approve Lapinski's
six-month step increase in pay on the basis that he was not familiar with Lapinski's work. On
April 7, 1975, the City Manager requested action on a Council memorandum, seeking traffic
changes on Center Street. Easley rewrote Lapinski's memorandum to order the change as
requested. On April 23, 1975, Lapinski attended a meeting of traffic engineers in Sacramento,
California. On April 24, 1975, Easley recommended to Oldland that Lapinski be fired.
Oldland met with Easley and Lapinski on April 24 and April 25, 1975. Oldland placed
Lapinski on a thirty-day probationary period, ending May 30, 1975. On June 19, 1975, Easley
again recommended Lapinski's termination. Oldland did terminate Lapinski. Lapinski states
he was notified of his termination June 20, 1975. Lapinski thereafter sought a public hearing
before the City Council to appeal the decision. On June 26, 1975, Easley wrote a
memorandum at the request of Oldland detailing areas of concern which had led to the
termination. On June 27, 1975, Oldland wrote a memorandum to the City Council stating the
reasons for Lapinski's termination. The parties throughout the appeal have referred to these
memoranda as the charges against Lapinski, which will be referred to here as the
memorandum charges. The parties have stipulated that the memorandum charges were
before, and considered by, the City Council at the hearing on July 21, 1975, and constituted
part of the record before the court below.
The City Council, at their meeting on July 21, 1975, agreed that Lapinski's appearance
before them would be a hearing and the deputy city attorney present at the meeting advised
the Council that the Council had to find there was legal cause for Lapinski's termination.
The Council allowed Lapinski's attorney to call and examine witnesses and the members of
Council asked questions. At the conclusion of the hearing, the Council agreed to continue the
matter to another time for a closed personnel hearing, at which Lapinski, his attorney, and
Jack Easley were to be present. There is no record of the proceedings in closed session or the
persons present. Lapinski claims he was excluded from all but the final discussions.
[Headnote 1]
Although the parties have briefed and argued the question, we need not decide whether
language of the Reno City Charter,
Art. III, 3.020 providing that dismissal be cause mandates a termination hearing.
1
Nor do
we decide the nature and extent of any concomitant constitutional provisions if a hearing
were mandated.
2
Inasmuch as the City Council agreed on July 21, 1975, to hold a public
hearing, we think the City was obliged to afford Lapinski a substantially fair hearing and
establish that legal cause did exist for his termination. At this juncture, we deem the City
precluded from arguing that no hearing was required.
[Headnote 2]
The determinative issue in this case is whether there was substantial evidence placed
before the City Council from which it could have made a finding that legal cause existed to
terminate Lapinski's employment with the City of Reno. State ex rel. Sweikert v. Briare, 94
Nev. 752, 588 P.2d 542 (1978); No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 281, 429
P.2d 66, 68 (1967). In making this determination, this court, as was the court below, is
limited to the record which was before the Council. Alley v. Nevada Real Estate Div., 94
Nev. 123, 575 P.2d 1334 (1978); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968).
This court has held cause to be:
. . . legal cause, and not any cause which the officer authorized to make such
removal may deem sufficient. It is implied that an officer cannot be removed at the
mere will of the official vested with the power of removal, or without any cause. The
cause must be one which specifically relates to and affects the administration of the
office, and must be restricted to something of a substantial nature directly affecting the
rights and interests of the public. The cause must be one touching the qualifications of
the officer or his performance of his duties, showing that he is not a fit or proper person
to hold the office. An attempt to remove an officer for any cause not affecting his
competency or fitness would be an excess of power and equivalent to an arbitrary
removal.
____________________

1
This section provides:
The City Manager shall appoint all officers and employees of the City, and may remove for cause any
officer or employee of the City except as may otherwise be provided in this Charter. . . . The City Council may,
by majority vote of all members elected, remove for cause any head of a department or office. (Emphasis
added.)
Article IX, 9.020 exempts the traffic safety engineer from the provisions of the Civil Service Act.

2
Cf. State ex rel. Sweikert v. Briare, 94 Nev. 752, 588 P.2d 542 (1978), wherein this court held that an
employee who has obtained a properly interest in his employment is entitled to due process constitutional
protections.
Ex rel. Whalen v. Welliver, 60 Nev.154,158,104 P.2d 188, 190-191 (1940); Hardison v.
Carmany, 88 Nev. 670, 676-677, 504 P.2d 1, 5 (1972).
The City contends that the information set forth in the memorandum charges and the
testimony during the Council meeting constitute substantial evidence that Lapinski did not
follow and implement City policy or perform his duties properly. The City argues that the
cause shown was of a substantial nature and directly affected the rights and interests of the
public.
With respect to the Easley memorandum, we note that certain allegations do not clearly
refer to times prior to June 19, 1975.
3
Mr. Easley concluded his memorandum as follows:
If the [sic] I were to summarize, I would put it this way: I do not feel that the City
administration can allow, nor condone, insubordination, falsehoods, negligence to
problems, the putting off of activities, improper or not planning for the future, disregard
for proposal grant funding, non-supervision of his personnel, disregard of employment
requirements such as registration, tardiness in responses and poorly written informative
memos for your signature.
The City argues that testimony concerning Lapinski's lack of registration as a professional
engineer, his trip to Sacramento on April 23, 1975, Lapinski's statement at the hearing that he
had trouble taking direction from Easley, unsatisfactory progress with the City bikeway
system, inability to get Reno railroad crossings on a priority list for federal funding, and
generally unsatisfactory performances of duties is sufficient evidence to support the decision
to terminate Lapinski.
Addressing these contentions in order, the job classification for traffic safety engineer
refers to registration as a professional engineer in the State of Nevada as a desirable
minimum qualification. Lapinski testified California had recently designated Traffic
Engineer as a professional specialty and that examination procedures were currently being
developed. He testified that the application was first available in May, 1975, and that he had
made application to California and to Nevada. We note that when Lapinski was hired, City
Council members knew he had not registered. The Council specified no time for him to
become registered.
Lapinski testified he made a trip to Sacramento, California for a half-day meeting of the
International Traffic Engineers. The agenda included a conference on bikeway systems.
Easley testified Lapinski took this trip after he told Lapinski not to leave town.
____________________

3
See 16-18, 20-22, 24, 25, 27-29.
testified Lapinski took this trip after he told Lapinski not to leave town. The trip was made
without his knowledge.
4
Joe Latimore testified Lapinski would not need prior approval for
this trip. Easley informed the Council, erroneously, that Lapinski had flown to Sacramento
and, later, when challenged, agreed to pay his own expenses. Lapinski in fact drove a City
vehicle and paid his own expenses.
Lapinski testified he could get along with Easley. He testified that when given a direct
order, he would obey it rather than be insubordinate.
The bikeway project was transferred to Lapinski from the Parks Department. Lapinski
testified phase one of the plan was complete and other phases were in progress. When he was
terminated the City approval needed to complete the grant request had not been given. The
Parks Department made the grant application.
There is evidence in the record that Lapinski had toured Reno and northern Nevada with
the State Engineer and others to determine which railroad crossings should be considered for
funding. When the list was compiled, none of the Reno locations were included. The State
Engineer testified that Lapinski had done all he could have done to obtain financing.
Selection of locations was made by others.
A Councilman requested a feasibility study of changes at Center Street in Reno in
December, 1974, from the City Manager. On April 7, 1975 he renewed his request. Easley
and Lapinski went together to the site but could not agree on the proposed changes. Lapinski's
memorandum of April 9, 1975, stated he would seek a legal opinion as to part of the action
requested. Easley struck this statement from the memorandum and ordered the changes. The
City argues this incident shows Lapinski's lack of respect for his superiors and inability to
follow and implement City policy. Lapinski had over $100,000 in his budget which he
intended to carry over to the next year. Easley testified it should have been used.
[Headnote 3]
Once Lapinski had produced evidence sufficient to rebut the memorandum charges, the
burden shifted to the City to produce further evidence. Cf. City of Reno v. Folsom, 86 Nev.
39, 43, 464 P.2d 454, 456-457 (1970) (benefit to property must be shown by agency once
validity of assessment is challenged).
Inasmuch as there is not record of what was presented during the closed personnel
session and the City Council members made no record of their findings, we decline to
speculate as to any further evidence the Council may have received to support the
charges during the closed personnel session.
____________________

4
The memorandum charges indicate the trip was in violation of City resolutions requiring prior
authorizations. The resolutions were not made part of the record.
the closed personnel session and the City Council members made no record of their findings,
we decline to speculate as to any further evidence the Council may have received to support
the charges during the closed personnel session.
[Headnote 4]
The facts in the record do not constitute legal cause for termination. Therefore, the Council
abused its discretion in refusing to reinstate Lapinski and the trial court erred in denying the
application for writ of mandate. See Bartlett v. Board of Trustees, 92 Nev. 347, 550 P.2d 416
(1976); cf. Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961) (Council failed
to exercise any discretion as contemplated by statute in denying use permit).
The judgment of the lower court is erroneous and must be reversed. The case is remanded
to consider the matter of damages, including any legal or factual issues which may be raised
concerning the availability of a set-off for wages appellant has earned elsewhere since his
discharge. The lower court is directed to enter an appropriate order reinstating petitioner to
his position as Reno Traffic Safety Engineer.
____________
95 Nev. 904, 904 (1979) Gamble v. State
LESTER GAMBLE, Appellant, v. THE STATE
No. 11652
December 20, 1979 604 P.2d 335
Appeal from order denying petition for post-conviction relief. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Petition was filed for post-conviction relief wherein petitioner sought to withdraw his
guilty plea or, in the alternative, to obtain specific performance of his plea bargain. The
district court denied the petition, and petitioner appealed. The Supreme Court held that the
circumstances required an evidentiary hearing.
Richard A. Wright, Las Vegas, for Appellant.
1. Criminal Law.
When more than a bare allegation is made that a guilty plea was induced by promises made by
the prosecution, an evidentiary hearing is required to determine whether a promise
was made to the defendant.
induced by promises made by the prosecution, an evidentiary hearing is required to determine whether a
promise was made to the defendant.
2. Criminal Law.
When the prosecution contends that it should be released from its obligations under a plea bargain
because of an alleged breach of the agreement by defendant, an evidentiary hearing is required to
determine whether defendant actually breached the agreement and, if so, whether the breach is sufficiently
material to warrant releasing the prosecution from its promises.
3. Criminal Law.
When a plea bargain is made and a guilty plea entered thereon, the promises of the prosecutor are part of
the inducement of the plea for purposes of the rule that no guilty plea that was induced by an unkept
promise can be permitted to stand.
4. Criminal Law.
Since a defendant relinquishes constitutional protections by pleading guilty, a waiver of those protections
must be knowingly and voluntarily made.
5. Criminal Law.
A waiver of constitutional protections that is effected by a guilty plea cannot be valid when the plea was
induced by an unkept promise.
6. Criminal Law.
In connection with plea bargains, the prosecution is held to the most meticulous standards of both
promise and performance.
7. Criminal Law.
For purpose of determining whether defendant should be allowed to withdraw his guilty plea because of
an alleged breach of the plea agreement by the prosecution, the cause of the prosecution's failure to keep its
promises is irrelevant.
8. Criminal Law.
In order for the court to be warranted in setting aside a judicially approved plea bargain, the court must
not only find that a breach of the bargain occurred but also that the breach is sufficiently material to justify
the dissolution of the plea bargain and that the breach was intentionally caused by the defendant.
9. Criminal Law.
Allegations made in support of petition for post-conviction relief wherein defendant sought to withdraw
his guilty plea or, alternatively, to obtain specific performance of plea bargain warranted an evidentiary
hearing to determine whether the breach of the plea agreement was caused by defendant's desire to
repudiate the agreement or by inadequate communication within the district attorney's office and between
that office and defense counsel.
10. Criminal Law.
If a defendant deliberately and knowingly refuses to comply with the terms of negotiated plea, proper
cause of action is to nullify the plea bargain, permit defendant to withdraw his guilty plea and allow him to
plead anew.
OPINION
Per Curiam:
Lester Gamble appeals from the district court's denial of his petition for post-conviction
relief, in which he sought to withdraw his plea of guilty to a charge of attempted grand
larceny or, in the alternative, to obtain specific enforcement of his plea bargain.
or, in the alternative, to obtain specific enforcement of his plea bargain. We reverse the
judgment of the district court and remand for further proceedings.
In December, 1977, appellant Gamble was arraigned on a charge of grand larceny and
entered a plea of not guilty. As a result of negotiations with the prosecutor, a plea agreement
was reached: Gamble, who was then on probation for a previous conviction, agreed to
stipulate to the revocation of probation and to plead guilty to the present grand larceny
charge; the prosecution promised not to file an unrelated grand larceny charge against
appellant and to agree to the imposition of concurrent sentences on the present grand larceny
charge and on the probation revocation. After a proper canvass by the district judge, which
included the fact that the plea was being entered pursuant to plea negotiations and that the
prosecutor was agreeing to the imposition of a concurrent sentence, the plea of guilty was
accepted and entered on February 17, 1978. While in custody after the entry of the plea,
appellant was hospitalized with an ailment whose nature is not disclosed by the record.
On March 15, 1978, a hearing was held in Department 8 of the Eighth Judicial District
Court to revoke appellant's probation. Appellant was represented by a different public
defender than the one representing him in the instant case, and the State was represented by a
different deputy district attorney. No reference was made to the plea negotiations in the
instant case, and no attempt was made to have appellant stipulate to the revocation of
probation. After the hearing, probation was revoked and appellant was sentenced to a ten year
prison term.
On March 28, 1978, a sentencing hearing was held in Department 7 of the Eighth Judicial
District Court on the charge at issue in the instant case. It appeared then that the appellant had
not stipulated to the revocation, but it was the first either defense counsel or the prosecutor
had heard of the probation revocation hearing. As the deputy district attorney put it, I just
don't have any explanation for what's happened. That hearing was continued.
The final sentencing hearing occurred on April 11, 1978. At this hearing, the deputy
district attorney represented that appellant had refused to stipulate to the revocation of his
probation, and recommended that the maximum sentence on the present grand larceny charge
be imposed to run consecutively to the sentence imposed as a result of the probation
revocation. The appellant then stated that, if the sentence was not to be imposed as agreed in
the plea negotiations, he wished to withdraw his plea of guilty. Appellant's counsel argued
that the plea bargain had been broken through no fault of appellant but rather through
inadequate communication within the district attorney's office and between that office
and defense counsel.
plea bargain had been broken through no fault of appellant but rather through inadequate
communication within the district attorney's office and between that office and defense
counsel. The district judge imposed a five year sentence, to run consecutively to that on the
probation revocation. Gamble sought post-conviction relief in the district court, contending
that the prosecution had not kept its promises in the plea bargain, that his guilty plea was
therefore involuntary, and that, as a result, he should be permitted to withdraw the plea. The
district court denied his petition after a hearing which consisted of argument of counsel and
consideration of the points and authorities submitted; and this appeal followed.
[Headnotes 1, 2]
We find that the hearing held by the district court was insufficient to establish the
appellant's alleged breach of the plea bargain. When more than a bare allegation is made that
a guilty plea was induced by promises made by the prosecution, Vaillancourt v. Warden, 90
Nev. 431, 529 P.2d 204 (1974), we have chosen to follow the Ninth Circuit Court of Appeals,
which held, in Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972), that an evidentiary hearing
is required to determine whether a promise was made to the defendant. Fine v. Warden, 90
Nev. 166, 521 P.2d 374 (1974). Similarly, when the prosecution contends that it should be
released from its obligations under a plea bargain because of an alleged breach of the
agreement by the defendant, an evidentiary hearing is required to determine whether the
defendant actually breached the agreement, and, if so, whether the breach is sufficiently
material to warrant releasing the prosecution from its promises. United States v. Donahey,
529 F.2d 831 (5th Cir. 1976); see also United States v. Nathan, 476 F.2d 456 (2nd Cir. 1973).
[Headnotes 3-7]
The reason for this rule is the requirement of fairness in plea negotiations recognized in
Santobello v. New York, 404 U.S. 257 (1971). When a plea bargain is made and a guilty plea
entered thereon, the promises of the prosecutor are part of the inducement of the plea (as the
judge in this case specifically noted); and it is axiomatic that [n]o guilty plea which has been
induced by an unkept plea bargain can be permitted to stand. Bryan v. United States, 492
F.2d 775, 778 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079 (1974). Since the defendant
relinquishes constitutional protections by pleading guilty, a waiver of those protections must
be knowingly and voluntarily made; and it is obvious that a waiver induced by an unkept
promise cannot be valid. The prosecution is held to the most meticulous standards of both
promise and performance," Correale v. United States, 479 F.2d 944, 947 {1st Cir.
meticulous standards of both promise and performance, Correale v. United States, 479 F.2d
944, 947 (1st Cir. 1973), precisely because it is the defendant's rights which are being
violated when the plea agreement is broken or meaningless. It is his waiver which must be
voluntary and knowing. Id. at 949. For this reason, the cause of the prosecution's failure to
keep its promises is irrelevant. Santobello v. New York, supra; United States v. Brown, 500
F.2d 375 (4th Cir. 1974).
[Headnotes 8, 9]
It is equally clear that the fact of a breach of a plea bargain must be determined by the
court: to set aside a judicially approved plea bargain, the prosecution may not act unilaterally
but . . . on adequate evidence, a judge must find that there has been a substantial breach of the
bargain which the court had approved. United States v. Simmons, 537 F.2d 1260, 1261 (4th
Cir. 1976) (emphasis supplied). This test requires not only that the district court find that the
breach occurred, but also that it is sufficiently material to justify the dissolution of the plea
bargain, and that the breach was intentionally caused by the defendant. In this case, the
district court apparently concluded that, since the probation revocation hearing was a matter
of public record, no evidence needed to be taken. This was error. Although the fact that some
breach of the agreement had occurred was clear, it remained to be determined whether the
breach was substantial (i.e., whether the prosecution had received all it really wanted by the
entry of a plea of guilty to the instant charge), and whether the breach was caused by the
defendant. In the record before us, there is not the slightest indication that appellant was ever
presented with a stipulation to revoke his probation by the prosecution, nor that one was
requested by the prosecution of either of appellant's defense counsel. We would blind
ourselves to reality to expect any criminal defendant to come forward with a stipulation
required by a plea agreement when neither his counsel nor the prosecution has even
mentioned it. If the district court finds that the failure to stipulate to the revocation of
probation was not due to the desire of appellant to break the plea bargain, but was the result
of prosecutorial inadvertence or neglect, see Santobello v. New York, 404 U.S. at 262, there
is no reason to permit the prosecution to avoid its obligations under the bargain. If, on the
other hand, appellant's alleged breach of the plea bargain was a deliberate repudiation of the
agreement, see United States v. Resnick, 483 F.2d 354 (5th Cir.), cert. denied, 414 U.S. 1008
(1973); Cardillo v. United States, 476 F.2d 631 (5th Cir. 1973), the proper remedy is the
nullification of the plea bargain and the withdrawal of the guilty plea entered thereon, since,
if the bargain which is part of the inducement of the plea is removed, the plea itself
becomes a nullity.
guilty plea entered thereon, since, if the bargain which is part of the inducement of the plea is
removed, the plea itself becomes a nullity. What is clearly not permissible under Santobello is
to hold the defendant to his plea and then impose whatever punishment the prosecution sees
fit to recommend.
[Headnote 10]
The district court's evidentiary determination of whether the breach of the plea bargain was
caused by the appellant's desire to repudiate it or by the prosecution's not letting the right
hand know what the left hand is doing, Santobello v. New York, 404 U.S. at 262; see United
States v. Brown, supra, will dictate the relief to be awarded appellant. If the court finds that
appellant deliberately and knowingly refused to stipulate to the revocation of his probation, as
the State alleges, the proper course of action is to nullify the plea bargain, permit appellant to
withdraw his guilty plea, and allow him to plead anew. Santobello v. New York, 404 U.S. at
263. If the court finds that the breach was caused by the State's failure to request a stipulation
pursuant to the plea agreement, the only possible remedy is specific enforcement of the plea
bargain, that is, a new sentencing hearing, before a different district judge, id., at which the
prosecution must perform its promise to agree to the imposition of concurrent sentences on
the present charge and on the revoked probation.
The order of the district court is reversed and the cause remanded for further proceedings
consistent with this opinion.
____________
95 Nev. 909, 909 (1979) Todd v. State
ODELL JACK TODD, Appellant, v. THE STATE
Nos. 10760, 11488
December 20, 1979 603 P.2d 1092
Appeal from conviction of first degree murder and denial of motion for new trial, Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
His motion for new trial was denied, and he appealed. The Supreme Court held that an
instruction which was nearly identical to an instruction which had been condemned by the
Supreme Court in an earlier case by reason of its being an Allen charge which in essence told
a lone dissenting juror that he should be open-minded and not obstinate and which did not
contain any mention that the juror should not surrender conscientiously formed opinions
was erroneously coercive, and required reversal.
95 Nev. 909, 910 (1979) Todd v. State
should be open-minded and not obstinate and which did not contain any mention that the
juror should not surrender conscientiously formed opinions was erroneously coercive, and
required reversal.
Reversed.
Houston & Moran, Las Vegas, for Appellant.
James N. Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
In murder prosecution, instruction which was nearly identical to instruction which had been condemned
by Supreme Court in earlier case by reason of its being an Allen charge which in essence told lone
dissenting juror that he should be open-minded and not obstinate and which did not contain any mention
that juror should not surrender conscientiously formed opinions was erroneously coercive, and required
reversal.
OPINION
Per Curiam:
In these consolidated proceedings, appellant was convicted of murder in the first degree
and sentenced to a term of life with the possibility of parole. Appellant's motion for new trial
based on newly discovered evidence was denied. He appealed from the conviction and from
the order denying his motion for new trial, alleging several grounds for reversal. We need
only consider appellant's contention that an oral instruction or admonition given by the court
during the jury's deliberations was coercive.
In the instant case, the complained of instruction was nearly identical to the instruction that
we condemned as reversible error in Ransey v. State, 95 Nev. 364, 366-67, 594 P.2d 1157,
1158 (1979). See also Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977).
Accordingly, we reverse.
____________
95 Nev. 911, 911 (1979) Boggs v. State
WILLIAM THOMAS BOGGS, Appellant, v. THE
No. 11519
December 20, 1979 604 P.2d 107
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of grand larceny. The defendant appealed.
The Supreme Court held that where defendant was found driving a stolen vehicle, and three
passengers were arrested but later released and their names and addresses were either never
taken down by patrolmen or were lost, mere showing of inability to contact the three
passengers in the vehicle did not deny defendant a fair trial.
Affirmed.
Morgan D. Harris, Public Defender, and E. David Stoebling, Deputy Public Defender,
Howard Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where defendant had not alleged or proved that names and addresses of possible witnesses, i.e.,
passengers of stolen vehicle which he was driving were intentionally lost or suppressed, he was required to
bear burden of showing prejudice, such burden requiring some showing that it could be reasonably
anticipated that evidence sought would be exculpatory and material to his defense, and it would not have
been sufficient to show merely a hoped-for conclusion from examination of destroyed evidence or to show
only that examination of such evidence would be helpful in preparing defense.
2. Criminal Law.
Where defendant was found driving stolen vehicle, and three passengers were arrested but later released
and their named and addresses were either never taken down by patrolmen or were lost, mere showing of
inability to contact the three passengers in vehicle did not defendant fair trial.
3. Criminal Law.
To be admissible as evidence, confession must be made freely, voluntarily and without compulsion or
inducement, such voluntariness to be determined from totality of surrounding circumstances.
4. Criminal Law.
Evidence including testimony that patrol officer read defendant his rights and that defendant indicated
that he understood such rights established voluntariness of confession though defendant was under arrest at
time of confessing.
95 Nev. 911, 912 (1979) Boggs v. State
5. Criminal Law.
Judge's decision regarding voluntariness or confession is final unless such finding is plainly untenable.
OPINION
Per Curiam:
Appellant was convicted by a jury of grand larceny. He appeals from this conviction
contending that the district court committed reversible error by refusing to grant his motion to
dismiss and by refusing to suppress his confession. He further contends that the evidence
adduced at trial was insufficient to support the conviction.
The facts of the case are as follows: On June 28, 1978, an automobile was left running in a
Las Vegas commercial center's parking lot. The vehicle was stolen. Later that day, near
Spanish Fork, Utah, State Highway Patrol officers detained the driver and three passengers of
a vehicle on suspicion of gasoline theft. The three passengers were arrested but later released.
The driver of the vehicle, appellant Boggs, was arrested, placed in a patrol vehicle and
advised of his constitutional rights. Shortly thereafter, a radio dispatch informed the officers
that the automobile which Boggs had been driving was the above referenced stolen vehicle.
Boggs was placed under arrest on a charge of auto theft and his rights were again read to him.
Boggs was asked, Who stole the car? His response, according to the questioning officer
was, I'm the one that got in the car and started it. More or less, I'm the one that stole it, and
he indicated that the vehicle was stolen from a Las Vegas business area.
As stated above, the three additional occupants of the stolen vehicle were released. Their
names and addresses were either never taken down by the patrolmen or were lost, thus
preventing their appearance at trial. In arguing that his motion to dismiss was wrongfully
denied, Boggs contends that the failure to produce these witnesses constitutes suppression,
loss, or destruction of evidence by the State and denied him a fair trial.
[Headnote 1]
We have stated that where a party seeks to have his conviction reversed for loss of
evidence he must show either bad faith or connivance on the part of the government or that he
was prejudiced by the loss of the evidence. Crockett v. State, 95 Nev. 859, 603 P.2d 1078
(1979); Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979). Appellant has not alleged, and
there is no evidence to support, a contention that the names and addresses of the stolen
vehicle's passengers were intentionally lost or suppressed.
95 Nev. 911, 913 (1979) Boggs v. State
of the stolen vehicle's passengers were intentionally lost or suppressed. Prejudice must,
therefore, be shown and the burden of showing this prejudice rests on the defense. State v.
Havas, 95 Nev. 706, 601 P.2d 1197 (1979). This burden requires some showing that it could
be reasonably anticipated that the evidence sought would be exculpatory and material to
appellant's defense. See State v. Williams, 500 P.2d 722 (Or.App. 1972). It is not sufficient
that the showing disclose merely a hoped-for conclusion from examination of the destroyed
evidence, nor is it sufficient for the defendant to show only that examination of the evidence
would be helpful in preparing his defense. See United States v. Agurs, 427 U.S. 97 (1976);
State v. Koennecke, 565 P.2d 376 (Or.App. 1977).
[Headnote 2]
Appellant merely contends that his inability to contact the other three passengers of the
vehicle denied him a fair trial. Such a contention, without more, does not meet the required
standards.
[Headnote 3]
Secondly, Boggs contends that the district court erred by refusing to suppress his
confession, maintaining that such confession was not freely and voluntarily made. To be
admissible as evidence, a confession must be made freely, voluntarily and without
compulsion or inducement. Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967).
Voluntariness is to be determined from the totality of the surrounding circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Surianello v. State, 92 Nev. 492, 553 P.2d
942 (1976).
[Headnote 4]
Upon examining the total circumstances here we do not find those factors leading to a
conclusion that the confession was involuntary. There is evidence that the patrol officer read
appellant his rights and that appellant indicated that he understood those rights. There is no
evidence indicating compulsion except the fact that appellant was under arrest at the time of
the confession. As we stated in Walker v. State, 78 Nev. 463, 473, 376 P.2d 137, 142 (1962):
The mere fact that the appellant was under restraint at the time the confession was given
does not in itself make the confession involuntary. See also Surianello v. State, supra; Lee v.
State, 86 Nev. 794, 477 P.2d 157 (1970); State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964).
[Headnote 5]
Furthermore, the judge's decision regarding voluntariness is final unless such finding is
plainly untenable. McRoy v. State, 92 Nev. 75S
95 Nev. 911, 914 (1979) Boggs v. State
92 Nev. 758 557 P.2d 1151 (1976); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968). We
do not find such a situation here.
Finally, Boggs contends that the evidence adduced at trial was insufficient to sustain his
conviction of grand larceny. Where, as here, the verdict is supported by substantial evidence
in the record it will not be disturbed on appeal. McKinney v. State, 95 Nev. 494, 596 P.2d
503 (1979); Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
Accordingly, appellant's conviction is affirmed.
____________
95 Nev. 914, 914 (1979) Sheriff v. Standal
D'ARCY LIVINGSTON STANDAL, Respondent.
No. 12146
December 20, 1979 604 P.2d 111
Appeal from order granting pretrial petition for a writ of habeas corpus, Eighth Judicial
Defendant, charged with aiding and abetting statutory rape and a crime against nature,
filed pretrial petition for a writ of habeas corpus. The district court granted the writ, and the
sheriff appealed. The Supreme Court held that: (1) where the indictment nowhere told
defendant the manner in which she aided and abetted a statutory rape or a crime against
nature, the indictment was insufficient and (2) the state could not rely on the grand jury
transcript to supplement the indictment.
Affirmed, without prejudice.
Nikolas L. Mastrangelo, Deputy District Attorney, Clark County, for Appellant.
Goodman, Oshins, Brown & Singer, and William B. Terry, Las Vegas, for Respondent.
The indictment or information must specify the acts of criminal conduct upon which the state is relying
and, for this purpose, conclusory allegations are insufficient. NRS 173.075, subds. 1, 2.
Where indictment which charged female defendant as a principal with sex crimes committed against a
14-year-old girl nowhere stated the manner in which defendant allegedly aided and abetted the statutory
rape or the crime against nature and did not give defendant the slightest information
as to the acts she performed which made her guilty of a crime, the indictment was
fatally defective.
or the crime against nature and did not give defendant the slightest information as to the acts she performed
which made her guilty of a crime, the indictment was fatally defective. NRS 173.075, subds. 1, 2,
195.020.
Where the statutory language is conclusory, allegations phrased solely in such language are insufficient in
an indictment or information. NRS 195.020.
The state could not rely on grand jury transcript to supplement indictment which was phrased in
conclusory statutory language and did not give defendant information as to the acts she performed which
made her guilty of a crime.
OPINION
Per Curiam:
Respondent was charged by indictment with aiding and abetting statutory rape and a crime
against nature. A pretrial petition for a writ of habeas corpus was granted by the district court.
The sheriff appeals.
The only counts in the indictment against respondent were counts VI and VII. These
counts read as follows:
COUNT VIStatutory Rape
Defendant Darlene Faye Standal aka D'ARCY LIVINGSTON STANDAL, did, on or
about November 8, 1975, then and there wilfully, unlawfully and feloniously aid and
abet STANLEY WILLIAM STANDAL in the act of carnal knowledge of [the victim],
a female person under the age of 16 years, said Defendant D'ARCY LIVINGSTON
STANDAL being over the age of 21 years.
COUNT VIIInfamous Crime Against Nature
Defendant Darlene Faye Standal aka D'ARCY LIVINGSTON STANDAL, did, on or
about November 5, 1975, wilfully, unlawfully and feloniously aid, abet, and induce
STANLEY WILLIAM STANDAL in committing the infamous crime against nature
upon the person of [the victim], to place the penis of the said STANLEY WILLIAM
STANDAL in the mouth of said [victim].
Nowhere in the indictment is respondent told the manner in which she aided and abetted a
statutory rape or an infamous crime against nature. NRS 173.075(1) expressly provides that
an indictment shall be a plain, concise and definite written statement of the essential facts
constituting the offense charged. It is indicated by NRS 173.075(2) that the indictment
should either include the means by which the offense was accomplished, or show that the
means are unknown.
In Simpson v. District Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229-30 (1972), a murder
indictment was found to be inadequate. We stated:
Accordingly, we believe the following formulation of the law, by one of the leading
authorities, correctly states the principle that must govern our decision:
Whether at common law or under statute, the accusation must include a
characterization of the crime and such description of the particular act alleged to have
been committed by the accused as will enable him properly to defend against the
accusation, and the description of the offense must be sufficiently full and complete to
accord to the accused his constitutional right to due process of law.' 4 R. Anderson,
Wharton's Criminal Law and Procedure, 1760, at 553 (1957).
[Headnote 1]
The indictment or information must specify the acts of criminal conduct upon which the
state is relying. Bielling v. Sheriff, 89 Nev. 112, 508 P.2d 546 (1973). Conclusory allegations
are insufficient. Earlywine v. Sheriff, 94 Nev. 100, 575 P.2d 599 (1978).
Smith v. State, 572 P.2d 262 (Okla.Crim.App. 1977), is similar to the present case. In
Smith, an information charged that the defendant did wilfully, unlawfully, wrongfully,
feloniously and knowingly harbor, aid, assist and conceal a fugitive from justice. The
information did not specify how the defendant harbored, aided, assisted and concealed the
fugitive. Because the information did not inform the defendant of the acts committed by him,
the information was held to be fatally defective.
[Headnotes 2, 3]
In the present case we are faced with unusual circumstances where a woman is charged, as
a principal, with sex crimes committed against a 14 year old girl. The basis of the indictment
against respondent is the allegation that she aided and abetted Mr. Standal in the statutory
rape and infamous crime against nature. Under the circumstances of this case, the aiding and
abetting language is conclusory. It fails to give defendant the slightest information as to the
acts she performed which make her guilty of a crime. The indictment is phrased in statutory
terms. See NRS 195.020. However, where the statutory language is conclusory, allegations
phrased solely in such language are insufficient.
are insufficient. See Sheriff v. Levinson, 95 Nev. 436, 596 P.2d 232 (1979); Earlywine v.
Sheriff, supra.
1

[Headnote 4]
The state apparently contends that respondent's course of conduct makes her guilty of
aiding and abetting. We see no reason why the state cannot set forth the course of conduct
with reasonable clarity in the indictment. See State v. Cutshaw, 437 P.2d 962 (Ariz.App.
1968). In this context, the state may not rely on the Grand Jury transcript to supplement the
indictment. Simpson v. District Court, supra.
The district court granted the writ of habeas corpus on the grounds that the indictment was
not supported by sufficient evidence at the Grand Jury hearing. Because of our ruling above,
it is not necessary to reach the issue of sufficiency of the evidence. It is also not necessary to
decide other issues raised by the petition.
The granting of a writ of habeas corpus is affirmed solely on the ground that the charging
allegations in counts VI and VII are insufficient, without prejudice to any right of the state to
institute new proceedings against respondent.
2

____________________

1
This rule is in conformity with other jurisdictions. In People v. Donachy, 586 P.2d 14 (Colo. 1978), the
Supreme Court of Colorado said: [I]f the statute does not sufficiently set out the facts which constitute the
offense, so that the defendant may have notice with what he is charged, then a more particular statement of facts
is necessary. Id. at 16. See also, State v. Anderson, 410 P.2d 230 (Or. 1966).

2
We express no opinion as to whether new proceedings would be subject to the applicable statute of
limitations.
____________
95 Nev. 917, 917 (1979) Brill v. State Real Estate Div.
MICHAEL S. BRILL, d.b.a. HOME INDEX, Appellant, v. STATE OF NEVADA REAL
ESTATE DIVISION OF THE DEPARTMENT OF COMMERCE, Respondent.
No. 11367
December 20, 1979 604 P.2d 113
Appeal from permanent injunction; Second Judicial District Court, Washoe County; Peter
I. Breen, Judge.
The Real Estate Division of the Department of Commerce brought action to enjoin
defendant from engaging in a real estate business without a license. The district court ordered
a permanent injunction, and appeal was taken. The Supreme Court, Thompson, J., held that
defendant, who charged $25 in advance for access to a list of the locations of available
rentals, was engaged in the activities of a real estate broker and was subject to statutory
licensing procedures.
Court, Thompson, J., held that defendant, who charged $25 in advance for access to a list of
the locations of available rentals, was engaged in the activities of a real estate broker and was
subject to statutory licensing procedures.
Affirmed.
David Hamilton, of Reno, for Appellant.
Richard H. Bryan, Attorney General, and Robert C. Herman, Deputy Attorney General, for
Respondent.
1. Brokers.
Under the statutes relating to the licensing of real estate brokers which provide in relevant part that an
advance fee listing includes a list of the locations of property offered for rent or lease and that one who
charges a fee for such listing is a real estate broker, proprietor of rental index business who charged $25 in
advance for access to a list of the locations of available rentals was engaged in activities of a real estate
broker and was subject to licensing procedures. NRS 645.002, 645.004, subd. 1, 645.030, subd. 1(b).
2. Brokers.
The intent of the statutes relating to the licensing or real estate brokers is to protect the public from
unscrupulous and unqualified persons and, therefore, the statutes should receive a liberal construction.
NRS 645.002, 645.004, subd. 1, 645.030, subd. 1(b).
The statutory requirement that those who solicit renters for an advance fee must be licensed serves a
legitimate public purpose and does not violate due process and equal protection. NRS 645.001 et seq.;
OPINION
This action was commenced by the Real Estate Division of the Department of Commerce
to enjoin Michael Brill, d.b.a. Home Index, from engaging in the real estate business without
a license. At issue is whether his business falls within the sweep of the licensing provisions of
Chapter 645 NRS. The district court ruled that it does, and ordered a permanent injunction.
This appeal followed. For reasons hereafter expressed, we affirm.
Mr. Brill, appellant, d.b.a. Home Index, operated a business in Reno, Nevada. Through
newspaper advertisements and personal inquiries of landlords, Mr. Brill compiled a notebook
listing available rental properties in the Reno area. Interested renters were attracted to Home
Index by its newspaper advertisements. Customers paid a fee of $25, completed a form to
indicate their rental needs, and were allowed to peruse the notebook listings previously
compiled by Home Index.
indicate their rental needs, and were allowed to peruse the notebook listings previously
compiled by Home Index. Further pursuit of the listed properties was left up to the customer.
The customer was given an identification number which allowed him to utilize the service for
four months. During that time period, the customer could return to Home Index in person or
simply call a phone service to ascertain whether or not any new rentals meeting his needs had
been received by Home Index. Mr. Brill is not a licensed real estate broker.
[Headnote 1]
1. Relevant statute provides that one who receives or charges an advance fee is a real
estate broker.
1
An advance fee is defined as a fee charged or received for an advance fee
listing issued for the purpose of promoting the lease of business opportunities or real estate.
NRS 645.002. Finally, NRS 645.004(1) specifically provides that an advance fee listing
includes a list of the locations of property offered for rent or lease.
Since Michael Brill charged $25 in advance for access to a list of the locations of available
rentals, the district court found his activities to fall within the referenced statutes and to be the
activities of a real estate broker subject to licensing procedures.
[Headnote 2]
It is Brill's appellate contention that advance fee provisions are intended only to embrace
advance fees collected from property owners and do not reach his activities. This contention
is refuted by a mere reference to the preamble of the enactment which specifically mentions
representations made to owners, lessees, or renters of property. Stats. Nev. 1957, ch. 147.
Moreover, the preamble declares the legislative purpose to protect not only property owners
but, as well, the general public, and to subject the advance fee business to regulation and to
limit those who engage in it to persons of proven honesty and integrity by requiring that they
be licensed. Stats. Nev. 1957, ch. 147. Since the intent of the statute is to protect the public
from unscrupulous and unqualified persons, it should receive a liberal construction. Whitaker
v. Arizona Real Estate Board, 54S P.2d S41 {Ariz.App.
____________________

1
NRS 645.030(1)(b) provides in pertinent part:
1. Within the meaning of this chapter, a real estate broker' is any person, copartnership, association or
corporation:
(b) who engages in or offers to engage in the business of claiming, demanding, charging, receiving,
collecting or contracting for the collection of an advance fee in connection with any employment undertaken to
promote the sale or lease of business opportunities or real estate by advance fee listing advertising or other
offerings to sell, lease, exchange or rent property.
548 P.2d 841 (Ariz.App. 1976). The district court did not err in ruling that the advance fee
business of Brill is within Chapter 645 NRS.
[Headnote 3]
2. The application of NRS 645.002, 645.004 and 645.030(1)(b) to Brill's business is
asserted to be violative of due process and equal protection. In a similar context the same
argument was advanced and rejected by this court. Gaessler v. Sheriff, 95 Nev. 267, 592 P.2d
955 (1979).
The requirement that those who solicit renters for an advance fee be licensed serves a
legitimate public purpose. The legislature had found that such renters had been deceived and
defrauded by such promoters. Stats. Nev. 1957, ch. 147. Licensing is calculated to minimize
such abuse and is rationally related to such purpose. Gaessler.
Affirmed.
____________
95 Nev. 920, 920 (1979) Rae v. All American Life & Cas. Co.
JOHN R. RAE, Appellant, v. ALL AMERICAN LIFE
AND CASUALTY CO., Respondent.
No. 10313
December 20, 1979 605 P.2d 196
Appeal from order denying motion to set aside default judgment, Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court, Manoukian, J., held that: (1) although suit alleged single fraud claim
against multiple named defendants, grant of final judgment against the only defendant who
was served and who made an appearance was not precluded, and (2) trial court properly
refused to set aside default judgment where defendant against whom default judgment was
final failed to file motion to set it aside within prescribed time limit.
Affirmed.
Albright & McGimsey, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Dan Bowen, Las Vegas, for Respondent.
1. Judgment.
When multiple parties are involved in an action, a judgment is not final unless rights and liabilities of all
parties are adjudicated. NRCP 54(b).
2. Judgment.
Court may direct entry of a final judgment as to fewer than all parties involved in an action and make an
express determination that there is no reason for delay and direct entry of judgment. NRCP 54(b).
3. Judgment.
An individual named as a codefendant is not a party for purposes of rule governing when a judgment is
final when multiple parties are involved in an action unless the codefendant has been served. NRCP
54(b).
4. Judgment.
Although suit alleged single fraud claim against multiple named defendants, grant of final judgment
against the only defendant who was served and who made an appearance was not precluded. NRCP
54(b).
5. Judgment.
Trial court properly refused to set aside default judgment against only defendant who had been served in
suit naming multiple defendants where defendant against whom default judgment was final failed to file
motion to set it aside within prescribed time limit. NRCP 54(b), 60(c).
An appellate court will affirm holding of lower court if it is supported by any theory presented.
7. Judgment.
Even if defendant filed motion to set aside default judgment within time limitations of rule specifically
governing relief from default judgments, be was not entitled to relief from that judgment for reason that he
failed to demonstrate inadvertence, excusable neglect or existence of a meritorious defense. NRCP
60(b),(c).
OPINION
On April 12, 1976, respondent All American Life and Casualty Company filed a complaint
for fraud praying for $92,000 in damages and $10,000 in punitive damages. The complaint
named appellant Rae, David Lee Edwards, Investors Associates, Inc. and Rae and Edwards
doing business as Investors Associates. Appellant Rae was served on April 16, 1976, and
timely answered for himself and as Investors Associates. No other defendant was served with
process.
On May 6, 1976 respondent moved to strike the answer and to enter a default on the
grounds that the in pro per answer had not been properly acknowledged. NRCP 11. This
motion was not contested and, on May 18, the lower court ordered that the answer be stricken
and that judgment be entered against appellants for $92,000 plus costs. This order was filed
on May 25. Notice of Entry of Judgment was filed a year later on May 3, 1977.
1977. On July 22, 1977, appellant moved to set aside the default and default judgment
entered on May 25, 1976. Appellant argued then, as he does on appeal, that the judgment was
not a final determination as to all parties and, under NRCP 54(b), the court had discretion to
modify that judgment.
On August 29, 1977 the court entered an order denying appellant's motion to set aside the
default judgment. The court based its conclusion on the fact that the motion to set aside
followed by fourteen months the entry of the default judgment and, thus, the court was
without jurisdiction to entertain the motion. Appellant's sole contention is that the default
judgment entered on May 25, 1976 was not a final judgment as to all parties and, as such, was
subject to revision under NRCP 54(b).
[Headnotes 1, 2]
It is true that, under rule 54(b), when multiple parties are involved in an action, a judgment
is not final unless the rights and liabilities of all parties are adjudicated. The court may,
however, direct the entry of a final judgment as to fewer than all parties and make an express
determination that there is no reason for delay and direct the entry of judgment. In the absence
of such determination, a decision affecting fewer than all parties is subject to revision at any
time before the entry of judgment as to all parties. NRCP 54(b). Appellant claims that
because no judgment was rendered affecting David Lee Edwards, a named defendant, the
lower court could reverse or revise its judgment affecting appellant upon a good cause
showing.
[Headnotes 3, 4]
The subsidiary question here is whether a named defendant is a party for the purposes of
rule 54(b). It is widely accepted that an individual named as a co-defendant is not a party
unless he has been served. United States v. Studivant, 529 F.2d 673, 674 n.2 (3rd Cir. 1976);
Ferguson v. Bartels Brewing Co., 284 F.2d 855, 857 (2nd Cir. 1960). See Tidewater
Insurance Associates v. Dryden Oil Co., 401 A.2d 178, 180 (Md.Ct.Spec.App. 1979); Pacific
States Security Co. v. District Court, 48 Nev. 53, 60, 226 P. 1106, 1108 (1924). Cf. Haley v.
Simmons, 529 F.2d 78 (8th Cir. 1976) (district court presumed to have retained jurisdiction
over improperly served defendants). The fact that David Lee Edwards was not served does
not affect the finality of the judgment as to appellant. Although but a single claim is alleged
against multiple named defendants, rule 54(b) does not preclude the grant of a final judgment
against the only defendant who was served and who made an appearance. The unserved
defendant was not a party and a 54{b) certification was unnecessary.
unserved defendant was not a party and a 54(b) certification was unnecessary. Were we to
hold otherwise, the end to litigation would be uncertain in many cases.
1

[Headnote 5]
Because the default judgment was final, and appellant had actual notice of it shortly after
its entry, he should have filed a motion to set it aside within the prescribed time
limitnamely, within six months of its entry. NRCP 60(c). The motion to set aside here was
not filed until June 22, 1977more than one year later. The lower court properly refused to
set aside the default judgment.
[Headnote 6]
Even if we found error in the district court's refusal to entertain the motion for
jurisdictional reasons, it is well established that the court will affirm the holding of the lower
court if it is supported by any of the other theories presented. See Kraemer v. Kraemer, 79
Nev. 287, 382 P.2d 394 (1963); Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (1962); Lemel v.
Smith, 64 Nev. 545, 187 P.2d 169 (1947).
[Headnote 7]
Because there is a default judgment rather than merely an entry of default, the judgment
can only be set aside in accordance with the terms of NRCP 60(b). Even if the time
constraints of rule 60(b) do not apply, a movant still must demonstrate inadvertence,
excusable neglect or other sufficient reasons enumerated in rule 60(b) in order to justify the
setting aside of a default judgment. The evidence adduced at the hearing shows that appellant
was duly served with process; that his pro se answer prepared by California counsel was
stricken following proper notice and opportunity to be heard; and, that respondent's motion
for entry of default was likewise proper]y noticed. In addition, appellant had actual notice of
the entry of judgment by at least May 17, 1976. The record does not show excusable neglect
or any other circumstance which would warrant relief from the judgment. Moreover, there is
no showing of the existence of a meritorious defense. The trial court did not abuse its
discretion in refusing to set aside the judgment.
We affirm.
____________________

1
Respondent argues that a virtual Pandora's box would be opened were we to hold that one designated as a
defendant in a complaint is a party within the meaning of rule 54(b) irrespective of whether he had been served.
We agree. If we subscribed to appellant's argument, a named but unserved party may be obligated to answer
interrogatories or sit for a deposition, NRCP 33; to produce documents, NRCP 34; to undergo examinations,
NRCP 35; to respond to requests for admissions, NRCP 36; and to comply with orders, NRCP 37.
Mowbray, C. J., and Thompson and Batjer, JJ., and Zenoff, S. J.,
2
concur.
____________________

2
The Honorable E. M. Gunderson, J., having voluntarily disqualified himself from participating in the
decision of this appeal, the Chief Justice designated The Honorable David Zenoff, Senior Justice (Retired), to sit
in his stead. Nev. Const. art. 6 19; SCR 243.
____________
95 Nev. 924, 924 (1979) Hooper v. State
MATTHEW HOOPER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10709
December 20, 1979 604 P.2d 115
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Defendant was convicted before the district court of burglary, and he appealed. The
Supreme Court held that: (1) matters not considered below would not be considered for the
first time on appeal, and (2) proffered intent instruction and proffered instruction on law
applicable where there are two reasonable theories was supported by the evidence were
properly refused in view of instructions given.
Affirmed.
1. Criminal Law.
Contention that during closing argument prosecutor argued facts not in evidence would not be considered
on appeal where defense counsel did not move to strike the comments, did not move for a mistrial and did
not request to have the jury instructed regarding the argument.
2. Criminal Law.
Matters outside the record on appeal may not be considered by an appellate court.
3. Criminal Law.
Contention that district court erred in admitting certain photographs would not be considered on appeal
where objection, if any, was made prior to calling the roll of the jury, objection was not reported, was not
part of the trial transcript and no settled statement of the proceedings was prepared and only reference to
objection was in an affidavit filed by defense counsel for purposes of appeal. NRS 194.010, subd. 5.
4. Criminal Law.
Defendant is entitled to have the jury instructed on his theory of the case as disclosed by the evidence, no
matter how weak or incredible that evidence may appear to be.
5. Criminal Law.
It is not error to refuse to give an instruction when the law encompassed therein is substantially covered
by other instructions given.
6. Criminal Law.
Proffered instruction on intent was properly refused in view of instructions given. NRS 194.010, subd.
5.
7. Criminal Law.
It is not error to refuse instruction that where there are two theories, one supporting guilt and the other
innocence, the jury must adopt the former, where the jury was properly instructed on the subject of
reasonable doubt.
OPINION
Per Curiam:
Appellant was convicted of burglary, and sentenced to a term in the state prison. We find
no error in the record. Therefore, the conviction is affirmed.
Evidence at trial established that in the early morning hours of June 27, 1977, Walter
Garner broke into a building located in a salvage yard in North Las Vegas. Mr. Garner
removed items from the building, and passed them to appellant over a perimeter fence. As
items were passed over the fence, appellant placed them in his car, which was parked about
sixty feet away.
Appellant testified that he believed Mr. Garner worked at the salvage yard, and that the
property actually belonged to Mr. Garner. This belief was based on statements made by Mr.
Garner to appellant before and during the incident. Mr Garner did not testify at appellant's
trial.
[Headnote 1]
Appellant's first contention is that during closing argument, the prosecutor argued facts not
in evidence which prejudicially affected appellant. We need not consider if the argument was
improper or prejudicial, because defense counsel did not move to strike the prosecutor's
comments, did not move for a mistrial, and did not request to have the jury instructed
regarding the argument. Under such circumstances, appellate consideration is precluded.
Halbower v. State, 93 Nev. 212, 562 P.2d 485 (1977); Clark v. State, 89 Nev. 392, 513 P.2d
1224 (1973); State v. Hunter, 48 Nev. 358, 232 P. 778 (1925).
[Headnotes 2, 3]
Appellant next contends that the district court committed error in admitting certain
photographs into evidence. Defense counsel's objection, if any, was made prior to calling
the roll of the jury.
counsel's objection, if any, was made prior to calling the roll of the jury. The objection was
not reported, is not part of the trial transcript, and no settled statement of the proceeding was
prepared. NRAP 10(c). The only reference to the objection is contained in an affidavit filed
by defense counsel for purposes of the appeal. Matters outside the record on appeal may not
be considered by an appellate court. McInnis v. McInnis, 94 Nev. 532, 582 P.2d 802 (1978);
Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969).
Appellant also contends that his requested jury instruction D, dealing with mistake of
fact, was improperly refused by the district court.
1
Respondent does not claim that the
instruction was an incorrect statement of law. Rather, respondent claims that the instruction
was properly refused because the subject matter was adequately covered by other instructions.
[Headnotes 4, 5]
A defendant in a criminal case is entitled to have the jury instructed on his theory of the
case as disclosed by the evidence, no matter how weak or incredible that evidence may appear
to be. Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979); Froggatt v. State, 86 Nev. 267, 467
P.2d 1011 (1970); Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965). On the other hand, it is
not error to refuse to give an instruction when the law emcompassed [encompassed] therein is
substantially covered by other instructions given to the jury. Ward v. State, 95 Nev. 431, 596
P.2d 219 (1979); Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (1979); Beets v. Stale, 94 Nev.
89, 575 P.2d 591 (1978).
[Headnote 6]
Instruction D, by its very language, dealt with the element of intent. See NRS
194.010(5). The jury was adequately instructed on the law of intent as it applied to appellant.
2
Therefore, the district court did not commit error by refusing instruction "D."
____________________

1
Instruction D read as follows:
However, you are further instructed, that an act committed under an ignorance or mistake of fact
which disproves any criminal intent is not a crime.
Where a person in good faith believes in the existence of certain facts, and acts with reference to such
believed facts in a manner which would be lawful if the facts were really as he believes them to be, he is
not guilty of crime, although his act is such that if committed or made by one who knew the true facts it
would constitute a criminal offense.

2
The following instruction, among others, was given on the issue of intent:
You are instructed that to aid and abet in the commission of a crime it is necessary to show that a
crime has been committed and that defendant aided and assisted and knowingly, voluntarily, and with
common intent with the alleged other offender, united in the commission of the crime. (Emphasis added).
Therefore, the district court did not commit error by refusing instruction D.
Finally, appellant contends that the district court committed error by failing to give
requested instruction H, which states that where two reasonable theories are supported by
the evidence, one supporting guilt and the other supporting innocence, the jury must adopt the
theory consistent with innocence of the defendant.
3
It is not error to refuse such an
instruction where the jury is properly instructed on the subject of reasonable doubt. Bails v.
State, 92 Nev. 95, 545 P.2d 1155 (1976); Hall v. State, 89 Nev. 366, 513 P.2d 1244 (1973).
See Dutton v. State, 94 Nev. 461, 581 P.2d 856 (1978). Our review of the record discloses
that the instructions actually given on the subject of reasonable doubt were proper and
adequate. Therefore, the district court did not commit error by refusing to give appellant's
instruction H.
The judgment of conviction is affirmed.
____________________

3
Instruction H reads as follows:
If, upon a fair and impartial consideration of all of the evidence in the case, the Jury finds that there
are two reasonable theories supported by the testimony in the case and that one of such theories is
consistent with the theory that the defendant is innocent of charges contained in the Indictment and that
the other is consistent with the guilt of the defendant then it is the law and the law makes it the duty of the
Jury to adopt that theory which is consistent with the innocence of the defendant and find the defendant
not guilty.
____________
95 Nev. 927, 927 (1979) Miller v. Hayes
HOWARD M. MILLER, Special Prosecutor, State of Nevada, County of Clark, Petitioner, v.
THE HONORABLE KEITH C. HAYES, District Judge of the Eighth Judicial District Court,
in and for the County of Clark, State of Nevada, and JANIECE SEARLES BELLANGER,
Respondents.
No. 12189
December 20, 1979 604 P.2d 117
Prosecutor sought writ of mandamus to compel judge to enter judgment of conviction in
the form originally pronounced. The Supreme Court, Batjer, J., held that where sentence had
been pronounced and entered in the minutes but the judgment had not been signed by the
judge nor entered by the clerk, judge had jurisdiction to modify that sentence by
suspending it.
clerk, judge had jurisdiction to modify that sentence by suspending it.
Writ denied.
Manoukian and Thompson, JJ., dissented.
Howard M. Miller, Special Prosecutor, Clark County, State of Nevada, for Petitioner.
John Peter Lee, Las Vegas, for Respondents.
1. Criminal Law.
Statute providing that the term of imprisonment designated in the judgment shall begin on the date of
sentencing of the prisoner by the court did not apply to a case in which imposition of sentence and
judgment were pronounced by the court and entered in the court minutes but the judgment was not signed
by the judge nor entered by the clerk; district judge's pronouncement of a judgment and sentence from the
bench is not a final judgment and does not, without more, oust the district court of jurisdiction over the
defendant. NRS 176.105, 176.335, subd. 3.
2. Criminal Law.
Where, although sentence had been pronounced and entered in the court minutes, the judgment had not
been signed by the judge nor entered by the clerk, trial court had jurisdiction to modify that sentence by
suspending it. NRS 176.105, 176.185, subd. 1, 176.335, subd. 3.
OPINION
Howard M. Miller, Special Prosecutor for the State of Nevada, Clark County, petitions this
court for a writ of mandamus compelling respondent Judge Keith C. Hayes to enter a
judgment of conviction against Janiece Searles Bellanger in the form pronounced on June 26,
1979, and to vacate the judgment of conviction signed and entered against her on July 6,
1979.
Bellanger pleaded nolo contendere to the felony charge of driving under the influence of
intoxicating liquor resulting in death or substantial bodily harm to another person. NRS
484.3795. On June 26, 1979, imposition of sentence and judgment were pronounced by the
court and entered in the court minutes. The defendant was sentenced to Nevada State Prison
for a term of five (5) years, sentence to commence immediately, and was fined $5,000. The
judgment was neither signed by the judge nor entered by the clerk.
On July 6, 1979, the district court conducted another hearing, reconsidered the question of
probation, announced that the previous sentence was "withdrawn," and again pronounced
sentence of five years in the Nevada State Prison and a $5,000 fine, but ordered that the
sentence be suspended and the defendant placed on an indeterminate period of
probation, not to exceed five years, on the special condition that she pay for and complete
a residential rehabilitation program for alcoholics at Gemini Group Home, Inc., and that
she not be released from such program without prior approval by that court.
the previous sentence was withdrawn, and again pronounced sentence of five years in the
Nevada State Prison and a $5,000 fine, but ordered that the sentence be suspended and the
defendant placed on an indeterminate period of probation, not to exceed five years, on the
special condition that she pay for and complete a residential rehabilitation program for
alcoholics at Gemini Group Home, Inc., and that she not be released from such program
without prior approval by that court. She was further ordered not to drink any alcoholic
beverages, and not to drive.
The petitioner contends that the district court was without jurisdiction to modify in any
manner, and for any cause, the sentence pronounced, but not signed or entered, on June 26,
1979. We disagree.
NRS 176.185(3) provides that [i]n issuing the order granting probation, the court may fix
the terms and conditions thereof, . . . except that the court shall not suspend the execution of a
sentence of imprisonment after the defendant has begun to serve it. See also State v. District
Court, 85 Nev. 485, 457 P.2d 217 (1969). The question before this court, then, is simply
when does a defendant begin to serve a sentence of imprisonment.
[Headnote 1]
The district court pronounced sentence on June 26, 1979 to commence immediately.
While NRS 176.335(3) provides that [t]he term of imprisonment designated in the judgment
shall begin on the date of sentence of the prisoner by the Court, we do not believe that
subsection 3 is applicable to this case. Contrary to petitioner's contention, a district judge's
pronouncement of judgment and sentence from the bench is not a final judgment and does
not, without more, oust the district court of jurisdiction over the defendant. Only after a
judgment of conviction is signed by the judge and entered by the clerk, as provided by NRS
176.105, does it become final and does the defendant begin to serve a sentence of
imprisonment. Otherwise, a district judge could never suspend an announced sentence and
grant probation under NRS 176.185(1), since the defendant, immediately after
pronouncement of sentence, would have commenced serving his or her sentence.
[Headnote 2]
At the time the district judge reconsidered his previous action, resentenced the petitioner,
and placed her on probation, no judgment had been signed by the judge nor entered by the
clerk. Therefore the district judge had jurisdiction to modify or suspend his earlier decision.
Writ denied.
Mowbray C. J., and Gunderson, J., concur.
Manoukian, J., with whom Thompson, J., joins, dissenting:
The majority opinion holds that a district judge's pronouncement of judgment and sentence
from the bench is not a final judgment and does not, without more, deprive the district judge
of jurisdiction over the matter. I respectfully dissent from that result.
On June 26, 1979, in the presence of the defendant and her counsel, entry of judgment and
imposition of sentence were pronounced by the court and entered in the minutes, which
reflect that Mrs. Bellanger was sentenced to Nevada State Prison for a term of five (5) years,
sentence to commence immediately, and was further fined $5000. The record shows that
defense counsel informed the court of the previous unsuccessful participation by Mrs.
Bellanger in a number of alcoholic treatment programs, in Nevada and elsewhere, and argued
that she should not be incarcerated. The court concluded that although in this particular case
the hard thing to do is to follow the recommendation [of the pre-sentence report that Mrs.
Bellanger be incarcerated], her conduct reflected an inexcusable disregard for the most
important right that any of us have, and that is the right to live. Thereafter, Mrs. Bellanger
was remanded to the custody of the sheriff.
On July 6, 1979, the court conducted a second hearing. The judge commented that his
primary concern continued to be the protection of the community, but that a resourceful
attorney has come up with an alternative to that which I had originally ordered and in addition
some people whom I respect, who have an interest in Mrs. Bellanger and her family, came
forward in her behalf since the time of sentencing, and I am impressed with that. The court
then announced that the previous sentence was withdrawn. He reaffirmed the sentence of
five years in the Nevada State Prison and a $5000 fine, but then ordered that the sentence be
suspended and the defendant placed on an indeterminate period of probation, not to exceed
five years, on the special condition that she pay for and complete a residential rehabilitation
program for alcoholics at Gemini Group Home, Inc., not be released from such program
without prior approval by this court, not drink any alcoholic beverages, and not drive. The
written judgment filed on July 6, 1979, reflects that the defendant was sentenced on June 26,
1979, which sentence was reimposed and suspended, with the grant of probation.
The state contends that the trial court was without jurisdiction to modify in any manner,
and for any cause, the sentence once imposed. While I believe that this contention is
over-broad in this factual context, I find that it has substantial merit. Cf. Warden v. Peters, 83
Nev. 298, 301-02, 429 P.2d 549, 551-52 (1967) (trial court had inherent power to correct
mistake in sentence); see also NRS 176.165, 176.555, 176.565. I do, however, agree that in
this instance the judgment must be modified, as the court was without authority to suspend
the execution of the sentence once imposed and place the defendant on probation after she
had begun to serve her sentence.
Article 5, section 14 of our constitution provides in part:
The legislature is authorized to pass laws conferring upon the district courts authority to
suspend the execution of sentences, fix the conditions for, and to grant probation, and
within the minimum and maximum periods authorized by law, fix the sentence to be
served by the person convicted of crime in said courts.
Nev. Const. art. 5, 14. Although district courts have been given such authority, see NRS
176.185, this statutory power must be strictly construed. Van Dorn v. Warden, 93 Nev. 524,
525-26, 569 P.2d 938, 939 (1977); State v. District Court, 85 Nev. 485, 487, 457 P.2d 217,
218 (1969).
The legislature has specifically provided, in issuing the order granting probation, the
court may fix the terms and conditions thereof, . . . except that the court shall not suspend the
execution of a sentence of imprisonment after the defendant has begun to serve it. NRS
176.185(3) (emphasis added). See also State v. District Court, 85 Nev. 485, 457 P.2d 217
(1969).
Here the court unequivocally pronounced sentence on June 26, 1979, to commence
immediately. NRS 176.335(3) provides that The term of imprisonment designated in the
judgment shall begin on the date of sentence of the prisoner by the Court. (Emphasis added.)
The majority, citing NRS 176.105, states that only after a judgment is signed by the judge
and entered by the clerk,' does it become final. Unlike NRS 176.185(3), however, NRS
176.105 is silent respecting the time at which a sentence is to commence. I deem NRS
176.185(3) controlling. In State v. Trunnel, 549 P.2d 550 (Alaska 1976), the court stated, A
sentence is imposed' at the time it is first announced upon the record by the court. Id. at
551, citing Kriebel v. United States, 10 F.2d 762, 764 (7th Cir. 1926). This is the law in a
majority of the jurisdictions and inferentially has been in Nevada. See State v. Clark, 90 Nev.
144, 520 P.2d 1361 {1974); State v. District Court S5 Nev. 4S5
(1974); State v. District Court 85 Nev. 485 457 P.2d 217 (1969). See also Smith v. Johns,
532 P.2d 49 (Colo. 1975); People v. Kersten, 138 P.2d 780 (Cal. 1943).
If, as here, the sentence as orally pronounced has been entered upon the court's minutes
and the defendant has begun service of the sentence, it is impossible to overlook the reality of
Mrs. Bellanger's several days of incarceration following the imposition of judgment and
sentence. It is well established that the remand of a defendant to the custody of a sheriff, as
was done here, constitutes a partial execution of the oral judgment for purposes of
consideration of credit for time served under equal protection guarantees of both federal and
state constitutions. See Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974).
The legislature has provided for the lapse of a period of time prior to the imposition of
judgment and sentence within which the Department of Parole and Probation is to investigate
the background, circumstances, criminal record of the defendant, and make a
recommendation to the court of a definite term of confinement, amount of fine, or both. NRS
176.185(2); 176.145. Surely, the legislature considered these reasonable periods of time
within which the sentencing judges could give, as was initially done in the instant case, the
careful consideration that the state and the defendant are entitled to receive at this significant
stage of the proceeding. Here, the sentencing judge, with commendable deliberation and
rationale, stated his reasons for selecting the particular sentence initially imposed which was
consistent with the recommendation by the Department of Parole and Probation. It is apparent
to me that the court took into consideration all relevant factors, including the defendant's
driving record and condition at the time of this arrest, prior to imposing judgment and
sentence.
1
We have held that [m]andamus is a proper remedy to compel the vacation of a
judgment which unlawfully suspends the execution of a sentence in a criminal case. State v.
District Court, 85 Nev. at 487, 457 P.2d at 218. Accordingly, I would direct that a writ issue,
compelling the trial court to vacate that portion of its judgment which suspended the sentence
imposed on June 26, 1979.
____________________

1
The record demonstrates that one and one half hours following the defendant's arrest, a chemical analysis of
her blood indicated a 0.33 percent weight of alcohol. NRS 484.381 specifies that a blood alcohol result of 0.10
percent or more by weight of alcohol in a defendant's blood gives rise to the presumption that the defendant was
under the influence of intoxicating liquor.
____________
95 Nev. 933, 933 (1979) Block v. State
RICHARD KENNETH BLOCK, Appellant, v. THE
No. 10816
December 20, 1979 604 P.2d 338
Appeal from judgment of conviction for burglary, Eighth Judicial District Court, Clark
The Supreme Court, Batjer, J., held that: (1) officers had reasonable cause for belief that
defendant had committed a burglary, and thus arrest was legal and testimony regarding
defendant's subsequent statements about his foot injury made en route to police station were
properly admitted; (2) trial judge did not violate defendant's Sixth Amendment right to
represent himself by failing to inquire if defendant wanted to proceed pro se prior to denying
defendant's motion to discharge his appointed counsel; (3) a trespass committed by entering
into a building with intent to commit an unlawful act is a lesser included offense of burglary;
(4) evidence did not require that court give proposed instruction on lesser included offense of
trespass; and (5) evidence was sufficient to sustain conviction.
Affirmed.
1. Criminal Law.
Where arresting officers knew that burglary had been committed, that two suspects had been arrested
after they had jumped from roof of store and that defendant had been continuously observed by helicopter
unit from moment he jumped from roof in front of store until be was captured, such facts were sufficient to
establish reasonable cause for belief that defendant had committed a burglary, and thus arrest was legal and
testimony regarding defendant's subsequent statements about his foot injury made en route to police station
were properly admitted. NRS 171.124, 171.124, subd. 1(c).
2. Criminal Law.
Trial judge did not violate defendant's Sixth Amendment right to represent himself by failing to inquire if
defendant wanted to proceed pro se prior to denying defendant's motion to discharge his appointed counsel.
A trespass committed by entering into a building with intent to commit an unlawful act is a lesser
included offense of burglary. NRS 205.060, 207.200.
95 Nev. 933, 934 (1979) Block v. State
4. Criminal Law.
In prosecution for burglary, evidence did not require that court give proposed instruction on lesser
included offense of trespass. NRS 205.060, 207.200.
5. Burglary.
Evidence of defendant's presence at crime scene, his attempts to evade capture and his statements
concerning his foot injury permitted conclusion that defendant had been aiding and abetting burglary of
store and was thus guilty of burglary himself. NRS 195.020.
OPINION
Richard Kenneth Block appeals his conviction by jury for burglary. He raises four
contentions on appeal: (1) statements made to police were fruits of an illegal arrest and
should have been excluded; (2) the trial judge violated Block's Sixth Amendment right to
represent himself by failing to inquire if Block wanted to proceed pro se prior to denying
Block's motion to discharge his appointed counsel; (3) the trial judge committed reversible
error by refusing to instruct the jury on the lesser included offense of trespass; and (4) the
evidence was insufficient to support a verdict of guilty. We affirm.
In the early morning hours of March 21, 1977, a police helicopter unit and several patrol
units responded to a burglar alarm at a Skaggs Drug Center in Las Vegas, Nevada. Two men
were seen inside the store climbing up a ladder to the roof. Police apprehended the two men
running from the building after they had jumped off the roof at the rear of the store.
In the meantime, an officer in a helicopter observed an object or person or something go
over the front of the store. With the aid of a powerful light, the helicopter followed the
person who jumped from the roof until officers on the ground caught him hiding in some
bushes. The arresting officers identified Block as the person apprehended in the bushes.
[Headnote 1]
After arresting Block and informing him of his Miranda rights, officers placed Block in a
patrol car. During the trial, two officers testified that en route to the station and at the station
Block had complained that he had hurt his foot when he jumped from the roof.
Block contends that the testimony concerning his statements about his foot injury should
not have been allowed because the statements were fruits of an arrest made without probable
cause.
95 Nev. 933, 935 (1979) Block v. State
An arrest without a warrant is constitutionally valid only if the arresting officer had
probable cause to arrest the defendant. Beck v. Ohio, 379 U.S. 89 (1964). Probable cause
exists if the facts and circumstances known to the officer at the time of the arrest would lead a
prudent person to believe that a felony was committed by the defendant. Washington v. State,
94 Nev. 181, 576 P.2d 1126 (1978); Beck, supra; NRS 171.124(1)(c).
1
Mere suspicion
which arises from the defendant's presence in the vicinity of the crime does not constitute
probable cause. Rodarte v. City of Riverton, 552 P.2d 1245 (Wyo. 1976). Nor does flight in
response to approaching police officers, in and of itself, constitute probable cause. People v.
Bates, 546 P.2d 491 (Colo. 1976).
In this case, the arresting officers knew that a burglary had been committed, that two
suspects had been arrested after they had jumped from the roof at the rear of the store, and
that Block was continuously observed by the helicopter unit from the moment he jumped
from the roof in front of the store until he was captured. The facts known to the officers were
sufficient to establish reasonable cause for believing that Block had committed a burglary.
Consequently, the arrest was legal and the testimony regarding Block's statements was
properly admitted.
[Headnote 2]
Block's next assertion is that the trial judge erred by not inquiring if Block wished to
represent himself. On the second day of his two day trial, Block requested that the court allow
his counsel to withdraw. Block based his motion on our communication; I cannot set up a
proper defense for this case',. Block's attorney explained that Block had refused to discuss the
case that morning and that, given the total breakdown in communication, he would be unable
to adequately defend Block. He urged the court to appoint another attorney to represent
Block. The trial judge denied Block's request for withdrawal of counsel because the jury had
been sworn, the trial was underway, and Block's current counsel was competent and qualified
to handle Block's defense.
In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme Court held that
the Sixth Amendment guarantees a criminal defendant the right to represent himself. There
are two limitations on that right, however. The demand for pro se status must be timely and
must be unequivocal.
____________________

1
NRS 171.124 Arrests by peace officers.
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a
warrant, arrest a person:
. . . .
(c) when a felony or gross misdemeanor has in fact been committed, and he has reasonable cause for
believing the person arrested to have committed it.
95 Nev. 933, 936 (1979) Block v. State
se status must be timely and must be unequivocal. United States v. Dujanovic, 486 F.2d 182,
186 (9th Cir. 1973).
Block did not make an unequivocal demand for pro se status.
2
On appeal, Block argues
that the trial judge should have made an affirmative inquiry with respect to Block's wishes to
proceed pro se to dispel any doubt about Block's reasons for wanting his counsel to withdraw.
We disagree. We refuse to place the burden of eliciting an unequivocal demand upon the trial
judge.
3

Block's third contention is that the trial judge erroneously refused to instruct the jury on
the lesser included offense of trespass.
4

If there is any evidence at all, however slight, on any reasonable theory of the case under
which the defendant might be convicted of a lower degree or lesser included offense, the
court must, if requested, instruct on the lower degree or lesser included offense. Lisby v.
State, 82 Nev. 183, 188, 414 P.2d 592, 595 (1966). A crime is a lesser included offense if it is
necessarily committed anytime the charged offense is committed. Id. at 187.
[Headnote 3]
Block was charged with burglary: the entry into a store or other building with intent to
commit a larceny or a felony. NRS 205.060. A trespass is committed when a person enters
onto land or into a building with intent to commit an unlawful act. NRS 207.200. A burglary
cannot be committed without entering a building with the requisite intent. Thus, a trespass
committed by entering into a building with intent to commit an unlawful act is a lesser
included offense of burglary.
[Headnote 4]
However, Block points out that there was no evidence that he entered into the store.
Absent an evidentiary basis for an intermediate verdict of trespass by entry into the store, a
trespass instruction is improper. Klepar v. State, 92 Nev. 103, 546 P.2d 231 {1976); Arnold
v. State, 94 Nev. 742
____________________

2
The trial judge and defense counsel interpreted Block's request as a motion to substitute counsel. On appeal,
Block simply argues that he was denied his right to represent himself.

3
Such an inquiry could be interpreted as an improper solicitation of a waiver of the constitutional right to
counsel.

4
Appellant's proposed instructions refused by the trial judge:
Instruction No. ATrespass is defined as the unlawful entry onto land or into any building of another with
the intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act.
Instruction No. Byou are instructed that if you find that the state has failed to prove the defendant guilty of
burglary you may still find the defendant guilty of a lessor included offense of trespass providing the state has
proven said defendant guilty of said trespass charge beyond a reasonable doubt.
95 Nev. 933, 937 (1979) Block v. State
P.2d 231 (1976); Arnold v. State, 94 Nev. 742, 587 P.2d 423 (1978). Furthermore, the entry
onto land form of trespass is not a lesser included offense of burglary and thus requires no
instruction. Cf. Jackson v. State, 93 Nev. 677, 572 P.2d 927 (1977) (trial judge properly
refused instruction on unlawful taking of a vehicle because not lesser included offense of
burglary). The trial judge did not err by refusing the proposed trespass instructions.
5

[Headnote 5]
Finally, Block challenges the sufficiency of the evidence. It is the function of the jury and
not of the reviewing court to weigh the evidence. Wheeler v. State, 91 Nev. 119, 531 P.2d
1358 (1975); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). A conviction will not be
reversed on the ground that the verdict is contrary to the evidence if there is any substantial
evidence to support it. McKinney v. State, 95 Nev. 494, 596 P.2d 503 (1979).
In view of Block's presence at the crime scene, his attempts to evade capture, and his
statement concerning his foot injury, a rational trier of fact could conclude beyond a
reasonable doubt that Block was aiding and abetting the commission of a burglary and thus
was guilty of burglary himself. NRS 195.020.
The judgment of conviction is affirmed.
____________________

5
Block does not argue that he was intitled [entitled] to an instruction on aiding and abetting a trespass. Even
if Block conceded that he was involved with the two men seen inside the store, the refusal to give such an
instruction did not constitute error because the conduct of the two men clearly exceeded a mere trespass. See
Jackson v. State, 93 Nev. 677, 572 P.2d 927 (1977); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966).
____________
95 Nev. 938, 938 (1979) Sturrock v. State
MICHAEL PAUL STURROCK, Appellant, v. THE STATE
Nos. 10926, 10927
December 20, 1979 604 P.2d 341
Appeals from judgments of conviction, Eighth Judicial District Court, Clark County; Paul
S. Goldman, Judge.
Defendant was convicted in the district court of two counts of possession of stolen
property, and he appealed. The Supreme Court, Manoukian, J., held that: (1) trial court did
not abuse its discretion by refusing to accept defendant's guilty plea; (2) defendant was not
denied effective assistance of counsel by counsel's failure to request a preliminary hearing;
and (3) although trial court erred in failing to inform defendant of his right to preliminary
examination before permitting him to enter a plea, defendant waived any impropriety by
failing to pursue remedy of mandamus.
Affirmed.
Mowbray, C. J., and Gunderson, J., dissented.
Mike Harrison, Las Vegas, for Appellant.
1. Criminal Law.
Question of accepting a tendered plea of guilty is within sound discretion of trial court and, although the
tendered plea may be constitutionally valid, the court is under no compulsion to accept it. NRS 174. 035,
subd. 1.
2. Criminal Law.
In determining whether a guilty plea should be rejected, trial court is obligated to consider seriously the
proffered plea. NRS 174.035, subd. 1.
3. Criminal Law.
Trial court did not abuse its discretion by refusing to accept defendant's guilty plea under circumstances
where the court could have inferred that the plea was not voluntary from defendant's prior reluctance to
enter the plea of guilty, from his apparent mistrust of counsel, and from his assertion that he felt he could
prevail at trial. NRS 174.035, subd. 1.
4. Criminal Law.
A defendant is denied effective assistance of counsel where counsel's conduct has reduced the
proceedings to a sham, a farce, or a pretense.
5. Criminal Law.
There is a strong presumption that counsel has fully discharged his duties.
6. Criminal Law.
Defense counsel's failure to request a preliminary hearing despite defendant's desire for such a hearing
did not reduce the proceedings to a sham, a farce, or a pretense such as to deny defendant
effective assistance of counsel under circumstances where counsel was present at
each appearance of defendant, was well prepared at trial, attempted to have
defendant's plea bargain reinstated, filed a motion to dismiss the charges, and
conducted vigorous cross-examination of witnesses at trial.
sham, a farce, or a pretense such as to deny defendant effective assistance of counsel under circumstances
where counsel was present at each appearance of defendant, was well prepared at trial, attempted to have
defendant's plea bargain reinstated, filed a motion to dismiss the charges, and conducted vigorous
cross-examination of witnesses at trial.
7. Criminal Law.
When a plea agreement is not consummated, validity of a defendant's waiver of his right to a preliminary
examination is vitiated, and it is incumbent upon district court to absolve defendant of adverse
consequences of the aborted plea bargain. NRS 171.196.
8. Criminal Law.
Although trial court erred in failing to inform defendant of his right to a preliminary examination before
permitting him to enter a plea, defendant waived any impropriety regarding trial court's inaction by
proceeding to trial rather than pursuing his remedy of mandamus; overruling State v. Rollings, 58 Nev.58,
68 P.2d 907. NRS 34.160, 171.186, 171.196, 171.208.
9. Criminal Law.
Under circumstances where trial court's abuse is so patent and deprivation purportedly so crucial to the
accused, an extraordinary remedy must be sought because no post-judgment appeal will be available to
review the error complained of, absent compelling reasons; overruling State v. Rollings, 58 Nev. 58, 68
P.2d 907.
10. Criminal Law.
Where there is substantial evidence to support a verdict in a criminal case, the reviewing court will not
disturb the verdict nor set aside the judgment.
OPINION
These are consolidated appeals from felony convictions by jury of two separate counts of
possession of stolen property. NRS 205.275. We recognize three issues as meriting
discussion. They are: (1) Whether the district court abused its discretion by refusing to accept
appellant's guilty plea; (2) Whether appellant was denied effective assistance of counsel by
counsel's failure to request a preliminary hearing; and (3) Whether the district court erred by
not sua sponte remanding the cases to justice's court for preliminary examinations.
Pursuant to plea negotiations appellant was to waive his right to a preliminary
examination, see NRS 171.186, and was subsequently, in district court, to enter a plea of
guilty to one charge of possession of stolen property. In return, the district attorney had
agreed to dismiss other charges against appellant and to recommend a sentence concurrent
with that already being served by appellant on another conviction. Clark County Deputy
Public Defender, William Henry, had initially discussed the plea bargain with appellant.
Pursuant to this agreement, appellant, represented by Deputy Public Defender Thomas
Gardner, appeared in justice's court, waived his preliminary examination and had the plea
bargain read into the record.
Thomas Gardner, appeared in justice's court, waived his preliminary examination and had the
plea bargain read into the record. The case then proceeded by information in the district court.
Appellant was represented by Henry during his initial district court appearance. Then,
Henry informed the court that Sturrock was reluctant to fulfill the plea bargain. As a result,
Henry requested a continuance until Gardner could confer with appellant. Several days later,
appellant appeared in district court with both Henry and Gardner, during which time appellant
stated that he had entered into the plea negotiation agreement and had waived his preliminary
examination as a result of misrepresentations made to him by Henry. Henry adamantly denied
that he had made any misrepresentation and moved for leave to allow the Public Defender's
Office to withdraw from the case. The court denied the motion to withdraw and read the
informations. Thereafter, appellant entered pleas of not guilty to both charges. Gardner again
moved for and was denied leave to withdraw as counsel. Appellant, addressing the court,
asked if he could have a preliminary examination. The court failed to answer appellant's
question and the proceedings were concluded.
Thereafter, a hearing was held to afford appellant the opportunity to change his pleas. The
district court initially permitted appellant to withdraw his pleas of not guilty and enter a plea
of guilty to one of the charges. During the course of the district court's inquiry as to the
validity of the guilty plea, however, appellant stated that he had entered the plea of guilty only
on the advice of counsel, and that he (appellant) felt that he would prevail at a trial. As a
result of appellant's statements, the district court found the guilty plea was not voluntarily
tendered and, accordingly, declined to accept it. The cases were then set for trial.
1. The Guilty Plea.
[Headnotes 1-3]
The question of accepting a tendered plea of guilty is within the sound discretion of the
trial court.
1
See Santobello v. New York, 404 U.S. 257 (1971); North Carolina v. Alford,
400 U.S.
____________________

1
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court
may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without
first addressing the defendant personally and determining that the plea is made voluntarily with
understanding of the nature of the charge and consequences of the plea. (Emphasis added.)
25 (1970); Lynch v. Overholser, 369 U.S. 705 (1962) Although the tendered plea may be
constitutionally valid, the court is under no compulsion to accept it. North Carolina v. Alford,
400 U.S. at 38 n.11. In determining whether the guilty plea should be rejected, however, the
trial court is obligated to consider seriously the proffered plea. See United States v.
Bednarski, 445 F.2d 364 (1st Cir. 1971). In the instant case, the district court had an adequate
factual basis upon which to conclude that the tendered plea was either involuntary or
proffered in such a manner as to be inconsistent with the effective administration of justice. In
particular, the district court could infer that the plea was nor voluntary from the appellant's
prior reluctance to enter the plea of guilty, his apparent mistrust of counsel (although the
record reflects that this was merely appellant's subjective belief), and his assertion that he felt
he could prevail at trial. United States v. Bettelyoun, 503 F.2d 1333, 1336 (8th Cir. 1974); cf.
Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975) (where state fulfills its
obligations under plea bargain, defendant's subjective expectation of leniency is insufficient
to entitle him to withdraw guilty plea). It is even arguable that a sufficient basis existed for
which the court could have permitted appellant to withdraw his guilty plea, prior to
sentencing, had the plea been accepted. State v. District Court, 85 Nev. 381, 384, 455 P.2d
923, 925-26 (1969) (granting of motion to withdraw one's plea before sentencing is proper
where substantial reason causes the granting of the motion to appear fair and just); NRS
176.165. This contention is without merit.
2. Effective Counsel.
[Headnotes 4-6]
Appellant next contends that he was denied the effective assistance of counsel by virtue of
his failure to request a preliminary examination after the frustration of the plea negotiations. It
is settled in this state that a defendant is denied the effective assistance of counsel where
counsel's conduct has reduced the proceedings to a sham, a farce, or a pretense. Shuman v.
State, 94 Nev. 265, 272, 578 P.2d 1183, 1187 (1978). There is a strong presumption that
counsel has fully discharged his duties. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6, 7
(1974). In the instant case, it was apparent prior to, and immediately after appellant entered
his pleas of not guilty, that appellant wished to have a preliminary examination. Even though
we do not approve of counsel's failure to insure that appellant was afforded the benefit of this
important procedural device, nevertheless, counsel was present at each appearance of the
accused, was well prepared at trial, attempted to have the plea bargain reinstated, filed a
motion to dismiss the charges, and conducted vigorous cross-examination of witnesses at
trial.
plea bargain reinstated, filed a motion to dismiss the charges, and conducted vigorous
cross-examination of witnesses at trial. Under these circumstances, we cannot say that
counsel's isolated failure to act reduced the proceedings below to a sham, a farce or a
pretense. We find no merit to this contention.
3. The Requested Preliminary Examination.
[Headnote 7]
Appellant further contends that it was error for the district court to accept his tendered not
guilty pleas after the breakdown in negotiations when it was apparent that appellant desired to
exercise his right under NRS 171.196 to a preliminary examination. Prior to his appearance in
district court, appellant had waived his right to a preliminary examination as part of a plea
bargain agreement. But, when such an agreement is not consummated, the validity of the
waiver is vitiated, and it is incumbent upon the district court to absolve appellant of the
adverse consequences of the aborted plea bargain. See Schoultz v. Hocker, 469 F.2d 681 (9th
Cir. 1972); Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974); Riley v. Warden, 89 Nev.
510, 515 P.2d 1269 (1973). The court was thus obligated to inform appellant of his right to a
preliminary examination before permitting him to enter a plea.
[Headnote 8]
The effect of the district court's error was that appellant forfeited his opportunity to
exercise the statutory right to a preliminary examination. Although a preliminary examination
is not constitutionally mandated, see Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916 (1968), it
does provide important benefits to the defense of an accused. See Coleman v. Alabama, 339
U.S. 1 (1970); cf. Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979) (post-indictment
preliminary examination not constitutionally mandated).
2

Nevertheless, to say that the district court erred in refusing to remand for a preliminary
examination does not mandate reversal following trial and conviction.
3
Because appellant
had a clear right to a preliminary examination, and the district court exercised no discretion
in failing or refusing to remand to the justice court, NRS 171.20S, mandamus was
available to compel remand.
____________________

2
This error assumes increased significance when considered in light of the deprivations suffered by the
person incarcerated. Pretrial confinement subjects one to public scorn, interrupts income, adversely affects
familial relationships, and jeopardizes the accused's employment.

3
Moreover, it is arguable that because appellant has been convicted and his pretrial incarceration is ended,
this claim has become moot. Cf. Gernstein v. Pugh, 420 U.S. 103, 110 n.11, 118-19 (1975) (holding reached the
fourth amendment probable cause context). But see Coleman v. Alabama, 399 U.S. 1 (1970) (an accused is
entitled to counsel at a preliminary hearing, it being a critical stage because of information potentially
discoverable.)
court exercised no discretion in failing or refusing to remand to the justice court, NRS
171.208, mandamus was available to compel remand. NRS 34.160.
4
By failing to pursue this
remedy, and instead proceeding to trial, appellant has waived any impropriety regarding the
trial court's inaction.
In analogous situations, we have held that failure to bring an issue before this court in a
timely manner results in a waiver of the objection. See Nix v. State, 91 Nev. 613, 541 P.2d 1
(1975); George v. State, 89 Nev. 47, 505 P.2d 1217 (1973); Skinner v. State, 83 Nev. 380,
432 P.2d 675 (1967); Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Ex parte Merton,
80 Nev. 435, 395 P.2d 766 (1964).
[Headnote 9]
In Franklin v. District Court, 85 Nev. 401, 455 P.2d 919 (1969), we stated that: As a
general proposition we approve the notion that appellate review should be postponed, except
in narrowly defined circumstances, until after final judgment has been rendered by the trial
court. Id. at 403, 455 P.2d at 921 (emphasis added). In circumstances such as those present
in the instant case, where abuse is so patent and deprivation purportedly so crucial to the
accused, an extraordinary remedy must be sought, because no post-judgment appeal will be
available to review the error complained of, absent compelling reasons. To the extent that
State v. Rollings, 58 Nev. 58, 68 P.2d 907 (1937) (we reached the merits of a post-conviction
claim that a preliminary examination was held beyond the statutory limit, but denied relief), is
inconsistent with this opinion, it is expressly overruled.
In so holding, we emphasize that this case is decided on these facts alone. We reaffirm our
holding in Franklin, finding that the instant case presents one of the narrowly defined
circumstances perceived in Franklin.
[Headnote 10]
Finally, appellant has not challenged the sufficiency of the evidence which supports his
convictions. Indeed, Where there is substantial evidence to support a verdict in a criminal
case, as the record indicates exists in this case, the reviewing court will not disturb the
verdict nor set aside the judgment."
____________________

4
The magistrate or master shall inform the defendant of the complaint against him and any affidavit filed
therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to
obtain counsel, and of his right to have a preliminary examination. He shall also inform the defendant that
he is not required to make a statement and that any statement made by him may be used against him. The
magistrate shall allow the defendant reasonable time and opportunity to consult counsel, and shall admit
the defendant to bail as provided in this Title.
not disturb the verdict nor set aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529
P.2d 206, 207 (1974).
The judgments of conviction are affirmed.
Thompson, J., concurs.
I agree that the judgments of conviction against the appellant should be affirmed, but for a
significantly different reason than that reached by Justice Manoukian and concurred in by
Justice Thompson.
When the district judge rejected appellant's proffered guilty plea and set the matter for
trial, jurisdiction was in the district court. At that time the judge had the discretion to remand
the cause for a preliminary examination. NRS 171.208.
1
Why it was not remanded is unclear
in the record. When the trial judge did not sua sponte remand the cause to the justice court for
a preliminary examination, he did not abuse his discretion.
A preliminary examination is not meant to be a substitute for a trial. There is no
constitutional right to a preliminary hearing. It is a creature of statute, and as such, the
proceedings are governed by statutory provisions . . . Its purpose is to determine the basis for
prosecution and the issue involved in the proceedings is not the question of guilt or
innocence, but whether there is sufficient evidence for probable cause to hold the accused
over to answer and stand trial. Azbill v. Fisher, 84 Nev. 414, 418, 442 P.2d 916, 918 (1968).
At the conclusion of a consolidated jury trial, appellant was found guilty beyond a
reasonable doubt of two charges of possession of stolen property. It would be incongruous to
now remand the matter to justice court to determine whether there was probable cause to hold
appellant to answer and stand trial.
On the other hand, I find it equally incongruous to hold that appellant waived any right he
might have had to a preliminary examination because he did not pursue mandamus. If he had
pursued that remedy, it would have been denied because a writ of mandate will not issue to
compel the performance of a discretionary act. See, e.g., Roventini v. District Court, 81 Nev.
603, 407 P.2d 725 (1965).
____________________

1
NRS 171.208.
Whenever a preliminary examination has not been had, the district court may for good cause shown at any
time before a plea has been entered or an indictment found remand the defendant for preliminary examination to
the appropriate justice of the peace or other magistrate, and such justice or other magistrate shall then proceed
with the preliminary examination as provided in this chapter.
This Court has previously held that a criminal defendant's statutory right to
post-conviction appellate review of any intermediate order or proceeding, see NRS
177.015(2) and 177.045, is an all-embracive right, State v. Teeter, 65 Nev. 584, 592, 200
P.2d 657, 661 (1948), and that such a substantial right may not be curtailed absent a specific
limiting statute, O'Donnell v. District Court, 40 Nev. 428, 432-33, 165 P. 759, 759-60 (1917).
My brethren today announce a novel legal proposition: appellate review of a meritorious
claim of pre-trial error is foreclosed in this Court when a criminal defendant has refused to
seek piecemeal review of his case. Because this defendant has refused to disrupt the orderly
progress of his criminal case by petitioning, prior to trial, for an extraordinary writ of
mandate, see Franklin v. District Ct., 85 Nev. 401, 455 P.2d 919 (1969), he is to be turned
away without relief when it is conceded by all that he was entitled to a preliminary
examination, that he requested one, and that he was denied one.
1
With this result I cannot
agree.
The majority's reasoning is difficult to follow. First, the majority insists that appellant had
a clear right to a preliminary examination, so clear, in fact, that the learned trial judge
below did not perceive that right nor did appellant's two attorneys, the effective quality of
whose representation the majority goes to great lengths to establish. Then, the majority
reasons that since the trial court has the discretion to remand the cause for a preliminary
examination, NRS 171.208, and since this Court has the discretion, under NRS 34.160, to
issue a writ of mandate to secure appellant's right, this appellant waived his right to appellate
review under NRS 177.015(2) and 177.045 simply by failing to petition this Court for a
pre-trial extraordinary writ to compel the trial court to exercise its discretion. This, I
respectfully submit, neither is, nor ought to be, the law.
In O'Donnell v. District Court, supra, this Court held that, because the right to an appeal is
a substantial one, a statute will not be construed as taking away that right unless its language
clearly reveals such an intent. 40 Nev. at 432-33, 165 P. at 760. Indeed, if a statute is capable
of a construction maintaining the right of appeal, it will be so construed. Id. at 433, 165 P. at
760. Without doubt, NRS 34.160, permitting appellate review by way of the extraordinary
writ of mandate, does not, by any stretch of the imagination, purport to foreclose the
possibility of post-conviction appeal to this Court.
____________________

1
The request and subsequent ruling were made in another department of the Eighth Judicial District Court
and not before or by the district judge who presided at appellant's trial.
of post-conviction appeal to this Court. The majority apparently overlooks the force of our
decision in O'Donnell.
Moreover, this Court has expressly disapproved of the use of pre-trial extraordinary writs,
absent special circumstances, in criminal cases. Franklin v. District Ct., supra. In Franklin,
we held that the extraordinary writ of certiorari would not lie to challenge an intermediate
order for discovery since a post-conviction appeal could be had to this Court; we noted:.
[A]ppellate review should be postponed, except in narrowly defined circumstances,
until after final judgment has been rendered by the trial court. Piecemeal review does
not promote the orderly handling of a case, and is particularly disruptive in criminal
cases where the defendant is entitled to a speedy resolution of the charges against him.
85 Nev. at 403-04, 455 P.2d at 921 (citation omitted). I can see no difference between the
present case and the situation in Franklin.
Of course, our holding in Franklin left open the possibility of extraordinary relief in a
narrowly defined class of criminal cases. The majority interprets our dictum in Franklin to
mean that whenever this Court, after the fact, determines that the remedy of mandamus was
available, a criminal defendant, by not pursuing that remedy, has waived appellate
consideration of what is conceded by all to be patent error. I can find no opinion, prior to
today's, in this or any other jurisdiction which holds that absent a specific statute, rule or
precedent clearly detailing the proper mode of appellate review, the failure to pursue the
possible remedy of mandamus bars subsequent appellate review. Nor can I find any authority
for the proposition that a criminal defendant must waive his right to a speedy trial, his right to
present his defense while memories and evidence are still fresh, in order to preserve a point
for appeal.
Significantly, the five analogous cases cited by the majority, ante at 943, deal with the
pre-trial writ of habeas corpus, holding that the failure to pursue the explicit statutory remedy
of appeal from the denial of a pre-trial application for a writ of habeas corpus waives any
subsequent challenge to that denial.
2
The pre-trial habeas situation, however, is manifestly
different from the present situation. With respect to pre-trial habeas, the legislature has
specifically provided for a comprehensive scheme whereby an accused can, before trial,
attack a possibly erroneous determination of probable cause. See NRS 34.380.
____________________

2
It is noteworthy that the legislature has removed the provision for appeals of denials of pre-trial writs of
habeas corpus. (1979) Nev. Stats., ch. 216, 1.
Thus, we have held that the pre-trial habeas statute, NRS 34.380, excludes, by its own terms,
the possibility of post-conviction or collateral review of a probable cause determination. Ex
parte Merton, 80 Nev. 435, 395 P.2d 766 (1964).
The rationale of the pre-trial habeas cases is simply inapplicable to the present situation.
First, the legislature has not provided for a comprehensive scheme by which an aggrieved
defendant can challenge, prior to trial, a district court's decision to refuse him a preliminary
examination. On the contrary, under the guidelines announced by this Court in State v.
Teeter, supra, such an erroneous decision is appealable following conviction. 65 Nev. at
592-93, 200 P.2d at 662.
In addition, appellant, as all those charged with the commission of a felony, has both a
right to a speedy trial and a right to a preliminary examination. In the present case, however,
the district court's erroneous decision placed appellant in the position of having to choose
between these two rights: appellant could waive his right to a speedy trial and pursue the
extraordinary remedy of mandamus; or, as he ultimately decided to do, appellant could forego
his right to a preliminary examination and defend himself on the merits. I know of no
decision of this Court or of any other jurisdiction that holds that such an election constitutes a
voluntary and intelligent waiver of such a substantial right as that to a preliminary
examination. Nor can I find any authority for the proposition that the possible availability of a
writ of mandate precludes appellate consideration of the denial of this statutory right.
By contrast, this Court has often considered, on post-conviction appeal, the denial of so
important a righteven though the appellant had not sought any extraordinary writ before
trial. For example, in State v. Teeter, supra, we reversed a defendant's conviction because the
trial court had erroneously denied his motion for bail. There, we noted that the defendant had
an absolute right to bail and that the trial court had no discretion to deny it. Clearly, under
today's majority holding, Teeter could have and should have sought a pre-trial writ of
mandate to enforce that right. Though Teeter did not pursue such a remedy, this Court
considered his post-conviction appellate claims and found them meritorious.
Similarly, in State v. Rollings, 58 Nev. 58, 68 P.2d 907 (1937), we considered, on
post-conviction appeal, Rollings, contention that his preliminary examination was held after
the statutory limit for such an examination had expired. Though we denied Rollings'
requested relief, this Court did not hesitate to reach the merits of his claim even though a
pre-trial writ of mandate was available to enforce the statutory right. The fact that the
majority expressly overrules Rollings does not convince me that today's decision is in
accord with the prior decisions of this Court.
that the majority expressly overrules Rollings does not convince me that today's decision is in
accord with the prior decisions of this Court.
More recently, in Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970), we reviewed, on
post-conviction appeal, a defendant's contention that he had been deprived of his right to a
speedy trial. In Anderson, we noted that on the facts of that case, Anderson had a mandatory
right to a speedy trial. Yet, even though Anderson had not pursued a pre-trial writ of mandate
to enforce that mandatory right, we considered his claims on appeal following conviction.
Even were I to accept the rule announced by my brethren, I do not believe that it would
necessarily be applicable in the instant case. While I agree that a defendant has a right to a
preliminary examination, granted by NRS 171.196 and referred to in NRS 171.186, I note
that NRS 171.208 provides that a district court may, before a plea is entered or indictment
found, remand the defendant for a preliminary examination when one has not been had. This
seems to imply that the district court has some discretion in the matter; and, of course, a writ
of mandate will not issue to compel the performance of a discretionary act. See, e.g.,
Roventini v. District Court, 81 Nev. 603, 407 P.2d 725 (1965).
In addition, I question the propriety of applying the majority's rule of waiver to the instant
proceedings. It is well established that an appellate court's procedural decisions, arrived at
without benefit of case precedent or rule, may only have prospective application. Hill v.
Sheriff, 85 Nev. 234, 236, 452 P.2d 918, 919 (1969). A fortiori, where prior cases have given
conflicting or ambiguous directions concerning the proper manner in which to seek appellate
reviewas our decision in Rollings clearly doesprospective application is mandated. See,
e.g., State v. Post, 592 P.2d 775, 777 (Ariz. 1979); State v. Stanley, 592 P.2d 422, 426 (Haw.
1979); People v. Chi Ko Wong, 557 P.2d 976, 987 (Cal. 1976).
I should note further that the majority's opinion may affect the efficient administration of
our criminal justice system. Taken to its logical end, the majority holds that for a criminal
defendant to preserve any pre-trial issue for appeal, he must first file a pre-trial petition for
extraordinary relief in this Court.
3
The result could be that the speedy and orderly resolution
of criminal cases in the district courts will be disrupted, and that the speedy disposition of
appellate matters in this Court will be impeded.
____________________

3
In all-fairness to the majority, today's rule of waiver applies only to cases where a criminal defendant
determines that a trial court's abuse is so patent and deprivation purportedly so crucial. Ante at 943. Such
determinations, I submit, have been historically left to this Court to resolve and not to defendants or their
counsel.
and that the speedy disposition of appellate matters in this Court will be impeded.
In sum, I believe that the majority opinion announced today does not make good law.
Since I believe that appellant has not waived his right to appellate review in this Court, I feel
constrained to reach the question of whether the denial of appellant's right to a preliminary
examination, under the circumstances of this case, mandates reversal of appellant's
conviction. For the reasons stated below, I believe that it does.
The right to a preliminary examination is a legislative grant of a substantial right to protect
the accused from improvident and groundless charges. Azbill v. Fisher, 84 Nev. 414, 442
P.2d 916 (1968). In addition, the preliminary examination is a critical stage of the
proceedings against an accused: a lawyer's skilled examination and cross-examination of
witnesses may expose fatal weaknesses in the prosecution's case; the examination works as a
discovery device by which the accused and his attorney may prepare a proper defense;
defense counsel may elicit testimony, under oath, with which the prosecution's witnesses may
be impeached at trial. Coleman v. Alabama, 399 U.S. 1, 9 (1970). In the present case,
appellant withdrew his pleas of guilty on two occasions because he wished to defend himself
on the merits. Appellant believed not only that he was not guilty, but that he could
successfully rebuff the prosecution's attempts to prove otherwise. Taken in this light, the
district court's erroneous ruling did not merely deprive appellant of his right to a magistrate's
determination of probable cause; rather, the ruling deprived appellant of his right to prepare
effectively for his defense. Under the facts of this case, then, I would reverse appellant's
conviction.
I add, as well, that I cannot agree with the majority's conclusion that appellant was
afforded effective assistance of counsel. We have held that counsel's failure to pursue his
client's interests zealously, In re Kramer, 61 Nev. 174, 122 P.2d 862 (1942), and counsel's
failure to prepare and investigate his client's case carefully, Jackson v. Warden, 91 Nev. 430,
537 P.2d 473 (1975), results in the deprivation of an accused's Sixth Amendment right to
effective assistance of counsel. The record before us indicates that defense counsel below
demonstrated a marked indifference to appellant's interests.
4
Appellant himself orally moved
the district court to remand his case for a preliminary examination, to disqualify the district
judge on the grounds of prejudice, to discharge his present attorneys, and to appoint new,
effective counsel. With respect to each of these oral motions, the district judge either
ignored appellant's claims or denied them summarily since no written papers were before
him.
____________________

4
Appellant has been represented by other counsel throughout the proceedings before this Court.
motions, the district judge either ignored appellant's claims or denied them summarily since
no written papers were before him. Defense counsel did not argue any of appellant's oral
motions, with the exception of counsel's own motion to withdraw, nor did counsel file any
written motions or points and authorities in support of appellant's motions. All in all, the
record, in my opinion, indicates that defense counsel, while attempting to withdraw from the
case, failed to assert their client's rights. While I agree with the majority that the record
demonstrates that counsel did cross-examine the State's witnesses at trial, I would hardly
classify such cross-examination as vigorous. In addition, there is no way to gauge how much
more effective that cross-examination would have been had counsel reaped the discovery
benefits of a preliminary examination. And, after all, it was largely because of defense
counsel's indifference or mere neglect that appellant was denied his clear right to a
preliminary examination. I believe, therefore, that, in the instant case, appellant was denied
his constitutional right to effective assistance of counsel.
For the reasons discussed above, I would reverse appellant's conviction. Respectfully, I
dissent.
I find the concluding rationale of the majority opinion somewhat troubling.
Where, as here, an important proceeding has been erroneously omitted, as my brethren
concede, I suggest that to inquire whether the denial of such proceeding was harmless error
would require unguided speculation. Cf. Holloway v. Arkansas, 435 U.S. 475 (1978).
Moreover, we cannot presume that this omission was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18 (1967). It is in the context of these legal realities, not in
the abstract, that the claim appellant was denied effective assistance of counsel must be
assessed.
Thus, the following issue is posed. When a defendant has wrongfully been denied his right
to a preliminary examinationan important right that, upon exercise, often helps to prepare a
defense, and that in this case the appellant vociferously demanded in the presence of his
counselmay it be said the defendant waived such right because counsel failed to pursue
the legally esoteric remedy of mandamus? I have hitherto believed that before concepts of
waiver may be applied, at least some evidence of knowing forbearance is requisite.
If we try to speak of waiver, I think we then are forced to face the next question. Can a
defendant be said to have had
effective counsel, in contemplation of the law, when counsel does nothing to protect an
important procedural right, which he knows the defendant desires to insist upon, which might
have assisted the defendant, and the loss of which therefore may not be styled harmless error?
I respectfully suggest that to ask the question is to answer it.
____________
95 Nev. 951, 951 (1979) Arnold v. Arnold
JANET S. ARNOLD, Appellant, v. RICHARD WAYNE
ARNOLD, Respondent.
No. 11928
December 20, 1979 604 P.2d 109
Appeal from order awarding permanent custody of minor child, Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
In divorce proceedings, the district court granted custody of a two-year-old child to the
father and mother appealed. The Supreme Court, Mowbray, C. J., held that: (1) awarding
custody to the father was not an abuse of discretion and (2) the tender years doctrine,
requiring the placement of a young child with its mother unless she is unfit, is no longer the
law.
Affirmed.
Gladstone & Stark, Las Vegas, for Appellant.
Raggio, Walker, Wooster & Clontz, and Houston, Moran & Kennedy, Las Vegas, for
Respondent.
1. Divorce.
In divorce proceedings, awarding custody of two-year-old child to father was not abuse of discretion
where child was thriving and maturing and being appropriately nurtured after living half of his life in his
father's home and wife's emotional and financial problems, caused by breakup of her marriage, had affected
her relationship with child in adverse manner.
Tender years doctrine, requiring placement of young child with its mother unless she is unfit, is no
longer the law; overruling Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110, NRS 125.140.
OPINION
Following divorce proceedings, Janet S. Arnold, appellant, and Richard Wayne Arnold,
respondent, each sought permanent custody of their two year old child.
and Richard Wayne Arnold, respondent, each sought permanent custody of their two year old
child. The district court, after entering a decree of divorce, awarded temporary custody of the
child to Richard until a hearing on the merits could be had. After a full hearing and after
reviewing a thoroughly detailed investigative report prepared by the Child Custody Division,
the district court awarded permanent custody to Richard. Janet appeals, contending that the
district court abused its discretion. The purported abuse, Janet argues, is evidenced by the
district judge's candid observation that he could not divine whether this child would be best
raised by the father or best raised by the mother. We do not agree that the court below
abused its discretion. Therefore, we affirm.
[Headnote 1]
The district court scrutinized the particular facts and circumstances of the case before it,
see Smith v. Smith, 90 Nev. 422, 529 P.2d 209 (1974), in order to protect and to further the
best interests of the child, see Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960). Though
aware that both parties loved the child and that neither was an unfit parent, the court weighed
the fact that the child, after living half of his life in his father's home, was thriving and
maturing and being appropriately nurtured against appellant's admission that her emotional
and financial problems, caused by the breakup of her marriage, had previously affected her
relationship with the child in an adverse manner. The court, attempting to strike a delicate
balance in a difficult case, decided that the best interests of the child would be served by
awarding permanent custody to the father. This realistic approach, coupled with the
consideration of all the relevant facts and circumstances presented, is not an abuse of
discretion. See Nichols v. Nichols, 91 Nev. 479, 537 P.2d 1196 (1975).
[Headnote 2]
Appellant further argues that the tender years doctrine, the rule of maternal preference
enunciated in Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), mandates reversal. For
the reasons expressed below, we overrule Peavey.
Based on what we then considered to be the universally recognized principles that the
mother is the natural custodian of her young, that the law favors the mother, and that a child
requires the advantage and benefit of a mother's love and devotion, we held, in Peavey, that
absent a finding of the mother's unfitness, the tender years doctrine required the placement
of a young child with its mother. 85 Nev. at 573, 460 P.2d at 111.
111. Despite these so-called universally recognized principles, we have eschewed a rigid and
mechanical application of the doctrine and have, in subsequent cases, carved out a number of
exceptions: the doctrine does not apply to custody determinations involving children between
the ages of eight and ten, Smith v. Smith, 90 Nev. 422, 529 P.2d 209 (1974); nor does it apply
to change of custody cases, Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970). More
significantly, in Nichols v. Nichols, supra, we shed some new light on Peavey, holding the
tender years doctrine applicable only to those custody cases in which all things were equal
between the parents. 91 Nev. at 481, 537 P.2d at 1197.
This court does not stand alone in its disillusionment with the tender years doctrine.
During the past decade, many jurisdictions have either eliminated the rule or greatly reduced
its weight. See generally 70 A.L.R.3d 262. Most important, the legislature, just this year, in
expressing the public policy of Nevada, has now prohibited the courts of this state from
utilizing a rule of sexual preference in determining the custody of minor children:
In determining custody of a minor child . . . the sole consideration of the court is the
best interest of the child, and no preference may be given to either parent for the sole
reason that the parent is the mother or father of the child. . . .
1979 Nev. Stats. ch 269, 2, amending NRS 125.140 (effective May 3, 1979).
1

Upon careful reexamination of Peavey, it is clear to us that the tender years doctrine,
whether in its pristine form or as it has been reinterpreted in Nichols, runs afoul of the
standards this court and the legislature have announced with respect to child custody
determinations, and that it is nothing more than an expression of a culturally enforced bias
favoring rigidly and unrealistically defined societal sex roles. The touchstone of all custody
determinations is the best interests of the child; the foundation of these determinations is the
particular facts and circumstances of each case. A preference for one parent over the other,
solely on the basis of the parent's sex, has no place in this scheme. We, therefore, expressly
overrule Peavey v. Peavey.
Since the record does not demonstrate that the district court below abused its discretion,
we affirm its award of permanent custody to respondent.
____________________

1
The district court made its custody determination approximately two weeks before the effective date of NRS
125.140, as amended.
below abused its discretion, we affirm its award of permanent custody to respondent.
____________

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