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90 Nev.

1, 1 (1974)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 90
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90 Nev. 1, 1 (1974) Rhodes v. Rhodes
GORDON STANLEY RHODES, Appellant, v.
GILDA JEAN RHODES, Respondent.
No. 7066
January 8, 1974 517 P.2d 1007
Appeal from portions of divorce decree concerning property, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
Affirmed.
Jerry Collier Lane, of Carson City, for Appellant.
Fondi & Banta, of Carson City, for Respondent.
OPINION
Per Curiam:
We have reviewed the entire record; the evidence justifies the trial court's property
distribution; the decree is in all respects affirmed.1
90 Nev. 1, 2 (1974) Rhodes v. Rhodes
the trial court's property distribution; the decree is in all respects affirmed.
1

____________________

1
Mowbray, J., being disqualified, the Governor appointed Waters, D. J., to sit in his stead. While this appeal
was under submission, Waters, D. J., died. As this case involves no novel points of law, but simply review of the
record, which we find entirely adequate to support the trial court, said appeal is disposed of by a quorum of the
Court. Nev. Const, art. 6, 2.
____________
90 Nev. 2, 2 (1974) Paulette v. Sheriff
LLOYD LEONARD PAULETTE, Appellant, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 7195
January 14, 1974 517 P.2d 786
Appeal from a order denying a pretrial petition for a writ of habeas corpus, Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas D. Beatty, Chief Deputy Public
Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
Indicted for two counts of murder (NRS 200.010) by the Clark County Grand Jury,
appellant sought pretrial habeas relief in the district court. In this appeal from the order
denying that relief, he contends (1) he is not subject to prosecution in this state because he is
a foreign national; and, (2) the evidence submitted to the grand jury was insufficient to
establish probable cause.
Appellant is one of three foreign nationals charged, on the same evidence in a single
indictment, with the identical crimes.
One of the co-defendants, Claude Theriault, previously raised the identical issues now
raised by Paulette, which we considered and rejected, as being without merit, in Theriault v.
Sheriff, S9 Nev. 506
90 Nev. 2, 3 (1974) Paulette v. Sheriff
Sheriff, 89 Nev. 506, 515 P.2d 397 (1973).
1
The other co-defendant, Robert Gordon
Johnstone, also challenged the indictment on the lack of probable cause. We considered and
rejected that contention in Johnstone v. Lamb, 89 Nev. 38, 505 P.2d 596 (1973).
The order of the trial court is affirmed.
____________________

1
Theriault also challenged the jurisdiction of Nevada courts to try a foreign national for a crime committed in
this state in an original proceeding in prohibition, filed in this court as case No. 6983. We denied his petition for
the extraordinary writ of prohibition in an unreported Order.
____________
90 Nev. 3, 3 (1974) Sheriff v. Hodges
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. BILLY HODGES, Respondent.
No. 7539
January 15, 1974 517 P.2d 1006
Appeal from an order granting a writ of habeas corpus, Eighth Judicial District Court,
Clark County; William P. Compton, Judge.
Appeal by a sheriff from an order of the district court granting a writ of habeas corpus to a
person accused of selling heroin to a named police officer on the ground that the proof at the
preliminary examination showed instead that the sale was consummated through a third-party
undercover agent. The Supreme Court held that the fact that the undercover agent delivered
the money to the accused and the heroin to the officer did not insulate the accused from
prosecution.
Reversed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Appellant.
Eric Zubel, of Las Vegas, for Respondent.
Drugs and Narcotics.
Fact that, although criminal complaint charged accused with selling heroin to named police officer, proof
at preliminary hearing showed that sale was made through intermediary, an undercover agent, did not
insulate accused from prosecution for sale.
90 Nev. 3, 4 (1974) Sheriff v. Hodges
agent, did not insulate accused from prosecution for sale. NRS 453.161, 453.321.
OPINION
Per Curiam:
A criminal complaint charged that respondent sold two (2) balloons of diacetylmorphine
(heroin) to Las Vegas Police Officer Kent Clifford, in violation of NRS 453.321 and NRS
453. 161. After a preliminary examination respondent was ordered to stand trial for the
offense and a criminal information was then filed in the district court.
Thereafter, respondent filed a pretrial petition for habeas corpus, contending the
information was fatally defective because the proof adduced at the preliminary examination
showed the sale had been made to an undercover agent, acting as an intermediary, and not to
Officer Clifford. The district court agreed and granted the writ of habeas corpus. Appellant
contends the writ was improperly issued.
The sole issue we need to resolve is whether or not an accused is subject to prosecution for
the sale of a controlled substance when the proof adduced at the preliminary examination
shows the sale was consummated through a third party. We conclude that, in the factual
context of this case, respondent is subject to prosecution.
The record reflects that Officer Clifford, together with an undercover agent, drove to the
Las Vegas west side and parked his car some 10 to 15 feet from the rear entrance of Kelly's
Liquor Store. The undercover agent got out of the car and met respondent near the rear
entrance to the store. After negotiating a price for the heroin the agent walked back to the car
and reported to Officer Clifford. Clifford, being satisfied with the terms, gave the undercover
agent the agreed amount of money. The agent walked back to respondent, exchanged the
money for the heroin, and delivered it to Officer Clifford. Clifford testified that he could not
hear all of the conversation between Hodges and the agent but that he did visually observe the
entire transaction, which took place in broad daylight.
Our legislature has made it unlawful for any person to sell, exchange, barter, supply or
give away a controlled or counterfeit substance. NRS 453.321(1). Whether Hodges made the
sale directly to Officer Clifford, or through the conduit of the undercover agent, is neither
determinative of, nor critical to, the issue of whether or not the crime was committed.
Under our statute it is not necessary that the buyer deal directly with the seller in order to
sustain the charge.
90 Nev. 3, 5 (1974) Sheriff v. Hodges
directly with the seller in order to sustain the charge. See People v. Taylor, 338 P.2d 377 (Cal.
1959), which held that the fact that the parties dealt with each other through a third person
was immaterial, and such proof was sufficient to sustain a conviction. Compare Tellis v.
State, 84 Nev. 587, 445 P.2d 938 (1968), where the accused was charged with the unlawful
sale of narcotics to an informer. The proof in Tellis, as here, showed the parties had dealt with
each other through an intermediary and we affirmed the conviction.
Reversed.
____________
90 Nev. 5, 5 (1974) Price v. First Nat'l Bank of Nevada
MARY G. PRICE, Administratrix of the Estate of DELBERT GREEN, Deceased, Appellant,
v. THE FIRST NATIONAL BANK OF NEVADA, Executor of the Estate of M. C.
SINNOTT, Deceased, and HILDA SINNOTT, Doing Business as SINNOTT MOTEL,
Respondents.
No. 7076
January 16, 1974 517 P.2d 1006
Appeal from judgment entered on jury verdict by the Fifth Judicial District Court, Mineral
County; Kenneth L. Mann, Judge.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellant.
Richard P. Wait, of Reno, for Respondents.
OPINION
Per Curiam:
The rulings of the district court which appellant assigns as error have not been shown to be
inconsistent with substantial justice. The judgment is affirmed. NRCP 61.
____________
90 Nev. 6, 6 (1974) Varner v. State
DUANE VARNER, Appellant, v. STATE
OF NEVADA, Respondent.
No. 6961
January 16, 1974 518 P.2d 43
Appeal from judgment of conviction and sentence of the Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted in the district court of forgery and of uttering a forged
instrument, and he appealed. The Supreme Court held that defendant's Fourth Amendment
rights were not violated by search of his room in parents' home with parents' consent; that
defendant was not prejudiced by admission of photographic identification display concerning
an alleged accomplice; and that defendant had no basis for complaint with respect to
identification before the jury of documents which were ultimately held inadmissible.
Affirmed.
Halley and Halley, of Reno, for Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy, Washoe County, for Respondent.
1. Searches and Seizures.
Where defendant who occupied a room in his parents' home was merely a guest at the sufferance of his
parents, who retained full right of control over the premises, contrary to defendant's contention that he was
a tenant within full right of control over his room, defendant's Fourth Amendment rights were not violated
when the police searched his room with his parents' consent. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Voluntariness of defendant's consent to search of his vehicle was a question of fact to be determined from
all the circumstances. U.S.C.A.Const. Amend. 4.
3. Criminal Law.
Defendant failed to demonstrate prejudice from admission of photographic identification display which
pertained to an alleged accomplice who was not a defendant in the instant action.
4. Criminal Law.
Where jury's knowledge of nature of exhibits which were ultimately held inadmissible was derived as
much from questions propounded by defendant as from the deputy district attorney's questions, to
which no objections were lodged in any event, defendant had no basis for complaint.
90 Nev. 6, 7 (1974) Varner v. State
questions, to which no objections were lodged in any event, defendant had no basis for complaint.
OPINION
Per Curiam:
Convicted of two counts of forgery and two counts of uttering a forged instrument,
appellant contends several rulings of the district court were erroneous.
[Headnote 1]
First, appellant contends his Fourth Amendment rights were violated by police who, with
his parents' consent, searched the room he occupied in his parents' home, and there seized
several items, one a check protector which was received in evidence at his trial. Although
appellant claims to have been a tenant there, with sole right of control over the room he
commonly occupied, cf. Stoner v. California, 376 U.S. 483 (1964), the record warrants a
determination that he was merely a guest at the sufferance of his parents, who retained full
right of control over the subject premises.
[Headnote 2]
Appellant also contends his Fourth Amendment rights were violated by the admission of
evidence found in his vehicle, because voluntariness of his consent to search was not shown
by clear and persuasive evidence, cf. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970).
Voluntariness is a question of fact to be determined from all the circumstances,
Schneckloth v. Bustamonte, 412 U.8. 218, at 248-49 (1973), and the record supports the trial
court's determination that appellant's consent was in fact voluntarily given.
[Headnote 3]
Appellant further assigns as error the admission of a photographic identification display,
which he claims was suggestive and denied him due process of law. This photographic
identification pertained to an alleged accomplice who was not a defendant in the present
action, and we believe appellant has failed to demonstrate that he was in any way prejudiced
by the display.
[Headnote 4]
Appellant's next proffered assignment of error concerns the identification of documents
before the jury which were not formally offered as evidence until after both sides rested their
cases, and which were then held inadmissible.
90 Nev. 6, 8 (1974) Varner v. State
cases, and which were then held inadmissible. The record reflects that respondent's counsel
examined witnesses concerning such evidence, without objection from appellant's then
counsel, after which appellant's then counsel cross-examined concerning the documents. It
appears that to the extent the jury came to know the nature of these exhibits, notwithstanding
their subsequent exclusion, that knowledge must have been derived as much from the
questions propounded by appellant's counsel, as from any of the deputy district attorney's
questions, to which no objections were lodged in any event. We consider these circumstances
totally unlike those in State v. Sorenson, 73 Nev. 218, 315 P.2d 508 (1957), upon which
appellant relies.
Appellant's remaining assignments of error are also without merit.
Affirmed.
____________
90 Nev. 8, 8 (1974) Armstrong v. Warden
CLEVELAND H. ARMSTRONG, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6978
January 16, 1974 518 P.2d 147
Appeal from denial of post-conviction relief regarding judgment and sentence for grand
larceny, and judgment and sentence for robbery; Second Judicial District Court, Washoe
County; John F. Sexton, Judge.
The Supreme Court, Thompson, C. J., held that the trial court's failure to refer to
defendant's privilege against self-incrimination before accepting guilty plea to robbery did not
invalidate the plea; and that there need not be an expressed articulation and waiver of
constitutional rights of privilege against compulsory self-incrimination, the right to trial by
jury and right to confront accusers when a defendant who is represented by counsel pleads
guilty and it appears from record that his plea was voluntarily and intelligently entered with
knowledge of its consequences.
Each conviction is affirmed.
Gary A. Sheerin, State Public Defender, for Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
90 Nev. 8, 9 (1974) Armstrong v. Warden
1. Criminal Law.
The trial court's failure to refer to accused's privilege against self-incrimination before accepting his
guilty plea to robbery did not invalidate the plea.
2. Criminal Law.
There need not be an expressed articulation and waiver of three constitutional rights of privilege against
self-incrimination, the right to trial by jury and the right to confront his accusers when a defendant who is
represented by counsel pleads guilty and it appears from the record that his plea was voluntarily and
intelligently entered with knowledge of its consequences.
OPINION
By the Court, Thompson, C. J.:
By reason of guilty pleas the appellant stands convicted of grand larceny and robbery and
presently is serving concurrent sentences therefor at the Nevada State Prison. He asks that we
annul those judgments and sentences on the ground that appropriate inquiry regarding his
waiver of constitutional trial rights was not made when his guilty pleas were accepted.
Prior to our recent opinion, Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973), we
had construed Boykin v. Alabama, 395 U.S. 238 (1969), to require the trial court specifically
to ascertain whether the defendant knows that if he pleads guilty he thereby waives his
privilege against compulsory self-incrimination, the right to trial by jury and the right to
confront his accusers. Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970); Higby v. Sheriff,
86 Nev. 774, 476 P.2d 959 (1970); Brown v. Warden, 88 Nev. 166, 494 P.2d 959 (1972).
Such specific inquiry was deemed essential to the fundamental determination of whether the
defendant entered his plea voluntarily and understandingly.
[Headnote 1]
In Heffley, supra, we departed from our prior rulings and joined with a growing body of
case authority which accords Boykin a more ample interpretation than had we. Brady v.
United States, 397 U.S. 742 (1970); United States v. Sherman, 474 F.2d 303 (9th Cir. 1973);
Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973); McChesney v. Henderson, 482 F.2d 1101
(5th Cir. 1973); Merrill v. State, 206 N.W.2d 828 (S.Dak. 1973). Specifically we held in
Heffley, supra, that the trial court's failure to refer to the accused's privilege against
self-incrimination before accepting a guilty plea did not invalidate the plea. That precise issue
is presented in this case with regard to the appellant's plea of guilty to robbery and is
controlled by Heffley.
90 Nev. 8, 10 (1974) Armstrong v. Warden
regard to the appellant's plea of guilty to robbery and is controlled by Heffley.
[Headnote 2]
The court's inquiry of the appellant when he pleaded guilty to grand larceny failed to refer
to any of the three trial rights mentioned in Boykin. However, the canvass otherwise is
adequate to show a voluntary and intelligent plea entered with a full understanding of its
consequences. In line with McChesney v. Henderson, supra, and the reasoning of Heffley, we
conclude that there need not be an express articulation and waiver of the three constitutional
trial rights mentioned in Boykin when a defendant who is represented by counsel pleads guilty
and it appears from the record that his plea was voluntarily and intelligently entered with
knowledge of its consequences.
However, we reiterate the statement in Heffley that the criteria of Higby remain suitable
as a guideline for our courts to follow.
Each conviction is affirmed.
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 10, 10 (1974) State v. Hardin
THE STATE OF NEVADA, Appellant, v.
MANUEL HARDIN, Respondent.
No. 7393
January 17, 1974 518 P.2d 151
Appeal from order suppressing evidence, Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Defendant was held for trial but his motion for suppression of evidence was granted by the
district court and the State appealed. The Supreme Court, Gunderson, J., held that where
police summoned to investigate a homicide at a hotel, where a violent struggle apparently had
taken place, found a blood-drenched corpse and, having no suspect, and after having
unproductive interviews with the more distant neighbors of the victim knocked on the door of
defendant's room, which was adjacent to the victim's, and, though they knew he was inside,
he did not respond, the officers' entry into the room with the manager's passkey and seizure of
blood-stained shirt and other evidence in plain view after entry were justifiable under the
emergency doctrine, and the ensuing arrest was on probable cause.
90 Nev. 10, 11 (1974) State v. Hardin
under the emergency doctrine, and the ensuing arrest was on probable cause.
Reversed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.
Garner, Chief Deputy District Attorney for Appeals, and H. Leon Simon, Deputy District
Attorney, Clark County, for Appellant.
Wiener, Goldwater & Galatz, Ltd., of Las Vegas, for Respondent.
1. Searches and Seizures.
Hotel manager could not consent to search of guest's room. U.S.C.A.Const. Amend. 4.
2. Searches And Seizures.
Burden rests with those seeking exemption from general rule, requiring warrant for search, to prove that
exigencies of situation made warrantless search imperative; subject to such burden, an emergency
doctrine exception to Fourth Amendment's warrant requirement is generally recognized. U.S.C.A.Const.
Amend. 4.
3. Arrest; Searches and Seizures.
Where police summoned to investigate homicide at hotel, where violent struggle apparently had taken
place, found blood drenched corpse and, having no suspect, and after having unproductive interviews with
the more distant neighbors of victim knocked on door of defendant's room, which was adjacent to victim's,
and, though they knew he was inside, he did not respond, officers' entry into room with manager's passkey
and seizure of blood-stained shirt and other evidence in plain view after entry were justifiable under
emergency doctrine, and ensuing arrest was on probable cause. NRS 177.015, subd. 1(b)(2); Stats. Nev.
1973, ch. 730; U.S.C.A.Const. Amend. 4.
4. Searches and Seizures.
That officers had already been investigating crime scene for some 2 1/2 hours before they opened door of
defendant's hotel room did not make their entry into room, with manager's passkey, any the less urgent in
view of increasing likelihood that killer of victim in adjacent room would escape. U.S.C.A.Const. Amend.
4.
OPINION
By the Court, Gunderson, J.:
On the basis of incriminating evidence observed in plain view upon opening respondent's
hotel room door, North Las Vegas policemen arrested respondent, found more evidence while
searching respondent incident to his arrest, and charged him with the robbery and murder of
the tenant of an adjoining room.
90 Nev. 10, 12 (1974) State v. Hardin
After preliminary examination, the justice's court held respondent for trial; however, on his
motion the district court suppressed all evidence discovered when respondent's room door
was opened without a warrant, and through the ensuing warrantless arrest and search. The
State has appealed.
1

The facts are not in dispute. Summoned to investigate a homicide in Room 83 of the Mintz
Hotel, where a violent struggle apparently had taken place, the police found a blood drenched
corpse, its throat cut and multiple stab wounds in its chest. Identification officers began
collecting physical evidence, and thereafter, having no suspect, detectives commenced
interviewing occupants of neighboring rooms, seeking information to throw light on the
crime. Although respondent had earlier been seen entering Room 82, he did not respond to
the officers' knock. For all they knew, he might have been asleep, drunk, or merely attempting
to avoid visitors. Believing it essential to interview respondent, whose room was closest to
the death scene, and who therefore was most likely to have heard the final conflict, the
officers opened his door with the manager's passkey.
The key to Room 83 lay on the floor in plain view. Wearing a blood-stained shirt,
respondent was on the bed, staring up at the officers. When they ordered him to his feet, a
knife later identified as the death weapon fell to the floor. Key and knife were blood stained.
The officers placed respondent under arrest and, in the ensuing search, found the victim's
wallet on his person. In ordering these items suppressed, the district court stated that the
record is devoid of facts which might justify the officers' initial entry of Room 82. We
disagree.
[Headnote 1]
1. As the district court noted, the hotel manager could not consent to a search of
respondent's room. The United States Supreme Court has so held, saying:
[W]hen a person engages a hotel room he undoubtedly gives implied or express
permission' to such persons as maids, janitors or repairmen' to enter his room in the
performance of their duties.' 342 U.S., at 51. But the conduct of the night clerk and the police
in the present case was of an entirely different order. In a closely analogous situation the
Court has held that a search by police officers of a house occupied by a tenant invaded the
tenant's constitutional right, even though the search was authorized by the owner of the
house, who presumably had not only apparent but actual authority to enter the house for
some purposes, such as to 'view waste.' Chapman v. United States, 365 U.S. 610. . . .
____________________

1
Effective July 1, 1973, appeals from interlocutory orders granting or denying motions to suppress are no
longer authorized. See Stats. of Nev. 1973, ch. 730, p. 1489-1490. This appeal was instituted before repeal of
NRS 177.015(1)(b)(2).
90 Nev. 10, 13 (1974) State v. Hardin
was authorized by the owner of the house, who presumably had not only apparent but actual
authority to enter the house for some purposes, such as to view waste.' Chapman v. United
States, 365 U.S. 610. . . .
No less than a tenant of a house, or the occupant of a room in a boarding house,
McDonald v. United States, 335 U.S. 451, a guest in a hotel room is entitled to constitutional
protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10.
That protection would disappear if it were left to depend upon the unfettered discretion of an
employee of the hotel. Stoner v. California, 376 U.S. 483, 489-490 (1964); United States v.
Jeffers, 342 U.S. 48 (1951); Lustig v. United States, 338 U.S. 74 (1949).
However, we believe cases like Stoner, Jeffers and Lustig, cited above, have but
superficial similarity to this one, and that reliance on such cases would here be misplaced. In
each, a predetermination to search clearly existed; discovery of evidence was not inadvertent.
The instant case, we feel, is of different character altogether, and should be considered in
light of authorities decided under the so-called emergency doctrine exception to the Fourth
Amendment's warrant requirement.
[Headnote 2]
2. In this regard, it should first be observed that the United States Supreme Court has said
the core of the Fourth Amendment is the security of the individual's privacy against
arbitrary intrusion by the police. Wolf v. Colorado, 338 U.S. 25, 27 (1949). Implementing
this principle, the Court has mandated that warrantless police invasions of personal privacy
are per se unreasonable under the Fourth Amendmentsubject only to a few specifically
established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967).
The burden rests with those seeking exemption from the general rule requiring a warrant to
prove that the exigencies of the situation made that course imperative. McDonald v. United
States, 335 U.S. 451, 456 (1956). Subject to that burden, an emergency doctrine exception
to the Fourth Amendment's warrant requirement is generally recognized.
One court has claimed the emergency doctrine exception derives from a dictum of
Justice Jackson in Johnson v. United States, 333 U.S. 10 (1948). See: Root v. Gauper, 438
F.2d 361, 364 (8th Cir. 1971). However, another has asserted [t]he right of the police to
enter and investigate in an emergency without the accompanying intent to either search or
arrest is inherent in the very nature of their duties as peace officers, and derives from the
common law. United States v. Barone, 330 F.2d 543, 545 {2d Cir.
90 Nev. 10, 14 (1974) State v. Hardin
Barone, 330 F.2d 543, 545 (2d Cir. 1964). In any event, although the doctrine's origins may
be debatable, and although it has never been definitively explained by the Supreme Court of
the United States, lower courts have consistently recognized and applied it in a variety of fact
situations.
2
One author has summarized the doctrine as follows:
Law enforcement officers may enter private premises without either an arrest or a search
warrant to preserve life or property, to render first aid and assistance, or to conduct a general
inquiry into an unsolved crime, provided they have reasonable grounds to believe that
there is an urgent need for such assistance and protective action, or to promptly launch a
criminal investigation involving a substantial threat of imminent danger to either life,
health, or property, and provided, further, that they do not enter with an accompanying
intent to either arrest or search.
____________________

2
The emergency doctrine exception has been applied recently in these fact situations, among others:
Where robber with demonstrated great proclivity for shooting people fled into apartment building, police in
hot pursuit properly conducted systematic warrantless search of all units for suspects and weapons. People v.
Bradford, 104 Cal.Rptr. 852 (Cal.App. 1973).
Where police were called to hotel because of gunfight, finding one person shot in lobby, and room-clerk said
another apparently injured person had gone upstairs carrying a gun, warrantless entry of the latter's room was
justified; however, no one being there, search of a closed suitcase was improper. United States v. Goldenstein,
456 F.2d 1006 (8th Cir. 1972).
Where officers knew bank had been robbed, were informed certain persons had been planning a bank robbery,
located getaway car near house of brother of alleged planner, and heard shots and sounds of men escaping before
they could knock on the door, officers properly entered to see if anyone was still there and lawfully seized
objects used in robbery which were in plain sight. United States v. Holiday, 457 F.2d 912 (3rd Cir. 1972).
Police called to murder scene who had reason to believe perpetrator might still be inside building, and who
found blood spots seeming to lead to an apartment upstairs, and who after knocking entered to see if anyone was
hiding, lawfully seized blood-stained pants on hanger in closet. Fellows v. State, 283 A.2d 1 (Md.App. 1972).
Where officers were told several persons were unsuccessful in contacting defendant's mother, and officers
smelled apparent odor of decaying human flesh upon entering the building where defendant shared apartment
with her, they justifiably turned knob and opened door of apartment, thereby observing the mother's corpse on
couch; and thereupon subsequent entry and observation of blood-stained rug and shirt also were justified. People
v. Brooks, 289 N.E.2d 207 (Ill.App. 1972).
Police properly entered enclosed yard of home pursuant to occupant's distress telephone call, although another
occupant met them with assurances that all was well. State v. Sainz, 501 P.2d 1199 (Ariz.App. 1972).
Where police were informed unknown man had seized young girl and forced her first into one apartment and
then into another vacant apartment across the hall, using a knife to subdue her, and it appeared assault would
have been even more violent and vicious if the victim had not escaped as assailant sat drinking wine, it was
reasonable for police to consider assailant's identification and apprehension so imperative that entry of the first
apartment was justified, when no one responded to their knock. Durham v. United States, 237 A.2d 830
(D.C.App. 1968).
Officers informed by victim's employer that victim was dead or dying
90 Nev. 10, 15 (1974) State v. Hardin
inquiry into an unsolved crime, provided they have reasonable grounds to believe that there is
an urgent need for such assistance and protective action, or to promptly launch a criminal
investigation involving a substantial threat of imminent danger to either life, health, or
property, and provided, further, that they do not enter with an accompanying intent to either
arrest or search. If, while on the premises, they inadvertently discover incriminating evidence
in plain view, or as a result of some activity on their part that bears a material relevance to the
initial purpose for their entry, they may lawfully seize it without a warrant. E. Mascolo, The
Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment,
22 Buff.L.Rev. 419, 426-427 (1973).
[Headnote 3]
We note that in the instant case the police officers were confronted, not merely with a
violent homicide, but one which reasonably justified fears that its perpetrator constituted a
substantial threat of imminent danger" to life.
____________________
of head wound properly entered apartment shared by victim and defendant to give aid, and thus seizure of
articles in plain view near victim was lawful. Patrick v. State, 227 A.2d 486 (Del. 1967).
Where police found defendant unconscious in car, an attempted suicide, and received no response from wife
after knocking on door of their home, and thereupon shone light through a window and observed feet protruding
from bedding covering the rest of an apparent human figure, officers' entry was justified. Webster v. State, 201
So.2d 789 (Fla. App. 1967).
Where two policemen had been killed by forger, whose female confederate was captured and told their mutual
place of abode, saying murderer might return there, other officers were justified in entering to stake it out and
to seek clues to murderer's true identity and possible whereabouts. People v. Smith, 409 P.2d 222 (Cal. 1966).
Where police heard screams emanating from apartment, demanded entry, looked through apartment for female
in distress, and thus observed and seized scraps of counterfeit money floating in commode, their actions were
lawful. United States v. Barone, 330 F.2d 543 (2d. Cir. 1964).
Officers called to investigate brutally beaten human body at rear of house, who through window saw feet of
other person inside, but could not determine whether feet were those of person in distress, justifiably effected
warrantless entry. Davis v. State, 204 A.2d 76 (Md. 1964).
Where officers investigating burglary satisfied trier of fact that they believed they heard moans while knocking
on door of apartment where defendant's girlfriend lived, and gained admittance from manager in good faith to
provide aid, thereupon finding contraband in plain view, their actions were justified. People v. Roberts, 303 P.2d
721 (Cal. 1956).
See also: People v. Somas, 327 N.Y.S.2d 779 (Nassau Co. Ct. 1972); State v. Phillips, 272 N.E.2d 347 (Ohio
1971); People v. Plane, 78 Cal. Rptr. 528 (Cal.App. 1969); Parman v. United States, 399 F.2d 559 (D.C.Cir.
1968); Wilson v. State, 217 N.E.2d 147 (Ind. 1966); and State v. Thompson, 139 N.W.2d 490 (Minn. 1966).
90 Nev. 10, 16 (1974) State v. Hardin
substantial threat of imminent danger to life. The condition of the victim and his room
suggested a killer who might strike repeatedly if not apprehended. These facts obviously
provided the police grounds to believe there was urgent need to launch and pursue their
investigation.
Clearly, after interviews with more distant neighbors of the victim proved unproductive,
and after other methods of gaining respondent's attention proved unavailing, opening the door
to seek an audience was both reasonably directed toward and confined to the officers'
legitimate, nonexploratory, emergency purpose. In our view, therefore, this conduct did not
constitute an unreasonable search in the constitutional dimension. The ensuing arrest
clearly was on probable cause, and respondent tenders no suggestion that the incident search
exceeded the scope approved in Chimel v. California, 395 U.S. 752 (1969).
3. Respondent relies heavily on Horack v. Superior Court of Orange County, 478 P.2d 1
(Cal. 1970). In that case, police attempted to justify entering and going throughout a home
where a large stereo was playing loudly, by testifying that a neighbor, whose reliability they
had not confirmed, called in a report that she had seen two hippie-type' individuals with
sleeping bags enter what she believed to be the vacant residence. Id. at 2. Not surprisingly,
the California Supreme Court held this demonstrated no emergency, and therefore suppressed
a small plastic baggie of marijuana found on the bedroom closet shelf, and more marijuana
and a piece of hashish found in a shoe box on the linen closet's bottom shelf. The court noted
that [t]he only property to be protected was the bare carpeted house containing a stereo
system, and the officers saw nothing to indicate any threat of damage or destruction, and
observed further that even the most vivid imagination would be unable to contrive imminent
danger to human life. Id. at 4.
Respondent also relies on People v. Smith, 496 P.2d 1261 (Cal. 1972), in which a
policeman sought to justify entering and going through a woman's apartment although a
neighbor had informed him she was away, and although her child was safe with the neighbor,
by testifying he was looking for the woman and for the child's jacket. Again, the California
Supreme Court held no emergency was demonstrated, and suppressed marijuana seized in the
mother's bedroom.
Manifestly, the significant facts of these cases are totally unlike those here concerned.
[Headnote 4]
4. Respondent's counsel have repeatedly alluded to the fact that the officers had already
been investigating the crime scene for some 2 1J2 hours, before they opened respondent's
door.
90 Nev. 10, 17 (1974) State v. Hardin
for some 2 1/2 hours, before they opened respondent's door. To us, why counsel consider that
time lapse so compelling remains obscure, but they may think it somehow shows there
remained no urgency to interview respondent. With that, we could not agree.
The investigation continued all the while, with three identification officers processing for
and collecting physical evidence, and at least two detectives conducting interviews. Since this
investigative team had no suspect after 2 1/2 hours, and after interviews with tenants whose
rooms were more remote from the victim's, then considering that the killer's likelihood of
escape was increasing each minute, we do not perceive how need to interview respondent can
be said to have expired.
The district court's order suppressing evidence is hereby reversed.
Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 17, 17 (1974) Cline v. State
LAMARR THEODORE CLINE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 7211
January 17, 1974 518 P.2d 159
Appeal from an order denying post-conviction relief, First Judicial District Court, Lyon
County; James D. Santini, Judge.
The Supreme Court held that petitioner was precluded from raising issue that his
confession had been coerced as ground to set aside guilty plea and that he failed to establish
inadequacy of trial counsel.
Affirmed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, Carson City, and Ronald T. Banta, District Attorney, Lyon
County, for Respondent.
1. Criminal Law.
On motion for post-conviction relief, prisoner was precluded from raising issue that his confession had
been coerced as a ground to set aside his guilty plea.
90 Nev. 17, 18 (1974) Cline v. State
2. Criminal Law.
Petitioner seeking post-conviction relief failed to establish inadequacy of trial counsel.
OPINION
Per Curiam:
On January 31, 1959, a jury convicted appellant and a co-defendant of murder and
assessed the death penalty against both men. The convictions were set aside, because of
improprieties on the part of the jury and a new trial was ordered. Prior to the scheduled new
trial the co-defendant entered a guilty plea and was sentenced to life imprisonment with the
possibility of parole. Plea bargaining was then commenced between appellant's counsel and
the prosecutor and as a result, appellant withdrew his plea of not guilty. On March 4, 1959, he
pleaded guilty to the charged crime, and on the prosecutor's recommendation, was sentenced
to life imprisonment with the possibility of parole.
The crime had occurred on June 14, 1958, and on June 23, 1958, appellant, after custodial
interrogation, confessed to the authorities.
Almost twelve (12) years after he was incarcerated in the state prison, appellant, in proper
person, filed several motions and a petition for habeas corpus for post-conviction relief,
alleging generally that his constitutional rights were violated during the proceedings leading
to the plea of guilty. Counsel was appointed and after an extensive evidentiary hearing, the
trial court concluded appellant's contentions were without merit.
In this appeal we are asked to reverse on the grounds that appellant was deprived of due
process because (1) his confession on June 23, 1958, was coerced, and (2) his counsel was
inadequate. We reject both contentions.
[Headnote 1]
1. We need not consider if the June 23, 1958, confession was coerced because appellant is
precluded from raising that issue as a ground to set aside his guilty plea. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973), where the High Court said: [A] guilty plea represents
a break in the chain of events which has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea."
90 Nev. 17, 19 (1974) Cline v. State
of constitutional rights that occurred prior to the entry of the guilty plea. [Emphasis added.]
1

[Headnote 2]
2. Appellant's claim of inadequacy of counsel finds no support in the record. See Lundy v.
Warden, 89 Nev. 419, 514 P.2d 212 (1973), where we said: A reading of the transcript . . .
shows that counsel did all that could be expected of him. See also, Founts v. Warden, 89
Nev. 280, 511 P.2d 111 (1973), and cases cited therein.
Affirmed.
____________________

1
Cf. Brady v. United States, 397 U.S. 742 (1970), McMann v. Richardson, 397 U.S. 759 (1970), and Parker
v. North Carolina, 397 U.S. 790 (1970), each of which dealt with challenges to the guilty plea itself. The issue in
those cases was whether the guilty plea had been made intelligently and voluntarily with the advice of
competent counsel. Tollett v. Henderson, 411 U.S. at 265. That issue is only peripherally involved in the instant
case and is not seriously argued.
____________
90 Nev. 19, 19 (1974) Johnson v. Sheriff
GEORGE JOHNSON, Jr., Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7527
January 17, 1974 518 P.2d 161
Appeal from an order denying a pretrial petition for a writ of habeas corpus, Eighth
Judicial District Court, Clark County; William P. Compton, Judge.
Petitioner, who was ordered to stand trial for escape, filed a petition for habeas corpus
challenging the efficacy of the charged offense. The district court entered an order denying
relief, and petitioner appealed. The Supreme Court, Batjer, J., held that where grocery store
employee observed petitioner taking steaks and hiding them under his coat, where the
employee, after petitioner left the store without paying for the merchandise, apprehended him
and returned him to the store manager, who advised petitioner that he was under arrest and
that the police had been summoned, and where a confederate of the petitioner then entered the
store and, with the aid of a small calibre revolver, effected petitioner's release, the petitioner
was subject to prosecution for escape, despite the fact that, at the time in question, his
freedom had not been curtailed by formal judicial proceedings.
Affirmed.
90 Nev. 19, 20 (1974) Johnson v. Sheriff
Morgan D. Harris, Public Defender, and Martin R. Boyers, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
Escape.
Where grocery store employee observed petitioner taking steaks and hiding them under his coat, where
the employee, after petitioner left the store without paying for the merchandise, apprehended him and
returned him to the store manager, who advised him that he was under arrest and that the police had been
summoned, and where a confederate of the petitioner then entered the store and, with the aid of a small
calibre revolver, effected petitioner's release, the petitioner was subject to prosecution for escape, despite
the fact that, at the time in question, his freedom had not been curtailed by formal judicial proceedings.
NRS 171.126, 212.090, 598.030, subd. 3.
OPINION
By the Court, Batjer, J.:
On March 19, 1973, an employee of a grocery store located in Las Vegas, Nevada,
observed appellant taking steaks and hiding them under his coat. When appellant left the store
without paying for the merchandise the employee followed, apprehended him, returned him
to the premises and delivered him to the store manager, who advised him that he was under
arrest and that the police had been summoned.
A confederate of the appellant then entered the store and, with the aid of a small calibre
revolver, effected appellant's release. The two men fled from the store but were later
apprehended by the police in another grocery store, at which time a small calibre revolver was
found on the person of the confederate.
Appellant was ordered to stand trial for escape (NRS 212.090).
1
Thereafter, he filed a
petition for habeas corpus in the district court challenging the efficacy of the charged
offense.
____________________

1
Escape of one lawfully in custody was recognized as a distinct and separate crime under the common law.
Escape first appeared as a statutory crime in this state on March 1, 1866, when the legislature enacted, in three
separate sections, An Act supplementary to an Act entitled An Act concerning Crimes and Punishments,'
approved [by the Territorial Legislature] November twenty-sixth, eighteen hundred and sixty-one. See Stats. of
Nev. 1866, p. 166. This statute was subsequently codified in Gen. Stats. of Nev. 4748-4750, p. 1055-1056;
the three separate offenses were rewritten as two offenses and codified in Cutting,
90 Nev. 19, 21 (1974) Johnson v. Sheriff
district court challenging the efficacy of the charged offense. This appeal is taken from the
order denying the requested relief.
Appellant's contention on appeal is that he was only a suspected shoplifter being forcibly
detained by store employees; and not subject to prosecution under NRS 212.090 because the
application of that statute is limited to one whose freedom has been curtailed by formal
judicial proceedings. In support of his contention he argues that the opinion of this court in
State v. Angelo, 18 Nev. 425, 4 P. 1080 (1884), requires that the prisoner making the escape
be lawfully incarcerated pursuant to a judgment of imprisonment.
1. Appellant reliance on Angelo is misplaced because there the accused was an inmate of
the state prison at the time he escaped. He was charged under the section of Stats. of Nev.
1866, p. 166, which provided penal sanctions for the specific offense of escape from the state
prison.
2
The next section of the same statute provided penal sanctions for the escape of any
person lawfully confined in a county jail, or in the custody of any officer or person, under a
lawful arrest, . . . Stats. of Nev. 1866, p. 166, 2.
3
Angelo is inapposite to the factual
context of this proceedings. Cf. Ex Parte Ah Bau, 10 Nev. 264 (1875).
____________________
Comp. Laws of Nev., 1861-1900, as 4839 and 4840. In the 1911 statutory revision the separate offenses were
combined into a single statute which read: Every prisoner confined in a prison, or being in the lawful custody
of an officer or other person, who shall escape or attempt to escape from such prison or custody . . . Rev. Laws
of Nev., 1912, 6339. The identical language was carried forward as 10023, Nev. Comp. Laws, 1929, and by
Stats. of Nev. 1967, ch. 211, 226, p. 524, now codified as NRS 212.090.

2
Section 1. Every person lawfully confined in the State Prison of the State of Nevada, under judgment of
imprisonment in said prison. who shall escape therefrom, or break out of such prison, or make any overt attempt
to escape from or break out of such prison, shall, on conviction thereof be punished by imprisonment in the State
Prison not less than one nor more than ten years.

3
Sec. 2. Every person lawfully confined in a county jail, or in the custody of any officer or person, under a
lawful arrest, who shall escape or break away from such officer or person, or shall escape from or break out of,
or attempt to escape from or break out of, such jail, shall, on conviction thereof, be punished by a fine of not less
than one hundred and not more than five thousand dollars, or by imprisonment in the county jail for a term not
less than one month, and not more than one year, or by both such fine and imprisonment; and in case such
person is under arrest, or confined in jail, upon a charge of felony, and so escape, or break away from, such
arrest, or escape from, or break out of, or attempt to break out of, such jail, then, upon conviction, he shall be
punished by imprisonment in the state prison not less than one nor more than ten years.
90 Nev. 19, 22 (1974) Johnson v. Sheriff
Appellant does not suggest the store employees lacked probable cause to take him into
custody and detain him. Neither does he challenge the reasonableness of his detention.
Furthermore, during argument at the hearing in district court, appellant's counsel
acknowledged that a citizen's arrest of appellant would have been permissible under NRS
171.126.
4

On the date of the charged crime NRS 598.030(3) provided: Any merchant who has
probable cause for believing that merchandise has been wrongfully taken by an individual and
that he can recover such merchandise by taking such individual into custody and detaining
him may, for the purpose of attempting to effect such recovery or for the purpose of
informing a peace officer of the circumstances of such detention, take the individual into
custody and detain him, on the premises, in a reasonable manner and for a reasonable length
of time. Such taking into custody and detention by a merchant shall not render such merchant
criminally or civilly liable for false arrest, false imprisonment, slander or unlawful detention
unless such taking into custody and detention are unreasonable under all circumstances.
5

If at the time appellant escaped he was in the custody of the store manager and under
lawful arrest then he was subject to prosecution under NRS 212.090 and a formal or judicial
charge against appellant was not required.
[Custody] is very elastic and may mean actual imprisonment or physical detention or
mere power, legal or physical of imprisonment or of taking manual possession.
Custody' means a keeping, guardianship, the state of being held in keeping or under
guard, restraint of liberty, imprisonment, . . . See Black's Law Dictionary, 460-461 (4th Rev.
Ed. 1968).
Under the facts of this case it is clear that, pursuant to NRS 598.030(3), the store manager
had the authority to place appellant under arrest and when he escaped he was chargeable
with a violation of NRS 212.090.
____________________

4
171.126 ARRESTS BY PRIVATE PERSONS. A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to
have committed it.

5
The last session of our legislature deleted the requirement of probable cause for believing that merchandise
had been wrongfully taken and substituted therefor, reason to believe that merchandise was wrongfully
taken. See Stats. of Nev. 1973, ch. 305, p. 376.
90 Nev. 19, 23 (1974) Johnson v. Sheriff
appellant under arrest and when he escaped he was chargeable with a violation of NRS
212.090. Ex Parte Ah Bau, supra.
Affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________
90 Nev. 23, 23 (1974) Alexander v. Simmons
ALVIN G. ALEXANDER and SHIRLEY A. ALEXANDER,
Appellants, v. SYLVIA A. SIMMONS, Respondent.
No. 7291
January 17, 1974 518 P.2d 160
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action was brought for money damages allegedly resulting from defendants' failure to
perform certain repairs on residential premises sold to plaintiff. The district court admitted
evidence of collateral oral agreements, found that they were relied upon to the detriment of
plaintiff and awarded damages accordingly, and defendants appealed. The Supreme Court
held that where the court had not been favored with a transcript of proceedings in the district
court, and appellants had not submitted a settled and approved statement of the evidence or
proceedings, the court was not able to decide whether under facts of case the admission of
parol evidence was erroneous, and, absent showing that judgment was clearly erroneous or
that it was not based upon substantial evidence, judgment would be affirmed.
Affirmed.
M. Gene Matteucci, of Las Vegas, for Appellants.
Alan R. Johns, of Las Vegas, for Respondent.
1. Evidence.
Mere existence of a written contract is insufficient to prevent a party from showing a separate and
independent contemporaneous oral agreement.
2. Evidence.
Existence of a separate oral agreement as to any matter on which a written contract is silent, and which is
not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular
case it may properly be inferred that the parties did not intend the written paper to
be a complete and final statement of the whole of the transaction between them.
90 Nev. 23, 24 (1974) Alexander v. Simmons
of the particular case it may properly be inferred that the parties did not intend the written paper to be a
complete and final statement of the whole of the transaction between them.
3. Appeal and Error.
Where the Supreme Court had not been favored with a transcript of proceedings in the district court, and
appellants had not submitted a settled and approved statement of the evidence or proceedings, the Supreme
Court was not able to decide whether under facts of case the admission of parol evidence was erroneous,
and, absent showing that judgment of trial court was clearly erroneous or that it was not based upon
substantial evidence, judgment would be affirmed. NRAP 10(c)(e).
OPINION
Per Curiam:
Sylvia Simmons brought an action against the appellants for money damages allegedly
resulting from the latter's failure to perform certain repairs on residential premises sold to her.
Appellants alleged that an agreement dated February 21, 1970 explained the complete
understanding of the parties and that the appellants had performed each and every covenant
and condition on their part. Sylvia in turn denied that the written contract between the parties
represented their entire agreement and claimed that she had relied upon oral representations
of the appellants to her detriment.
The lower court admitted evidence of collateral oral agreements, found that they were
relied upon to the detriment of the respondent and awarded damages accordingly.
[Headnotes 1, 2]
1. The appellants now contend that the trial court erred in admitting evidence of the
oral agreements. The case law is clear that the mere existence of a written contract is
insufficient to prevent a party from showing a separate and independent contemporaneous
oral agreement. Douglass v. Thompson, 35 Nev. 196, 127 P. 561 (1912). Undoubtedly the
existence of a separate oral agreement as to any matter on which a written contract is silent,
and which is not inconsistent with its terms, may be proven by parol, if under the
circumstances of the particular case it may properly be inferred that the parties did not intend
the written paper to be a complete and final statement of the whole of the transaction between
them. Seitz v. Brewers' Refrigerating Machine Co., 141 U.S. 510, 517 (1891).
[Headnote 3]
2. We are unable to decide whether under the facts of this case the admission of parol
evidence was erroneous because this court has not been favored with a transcript of the
proceedings in the district court, nor have the appellants submitted a settled and
approved statement of the evidence or proceedings.
90 Nev. 23, 25 (1974) Alexander v. Simmons
court has not been favored with a transcript of the proceedings in the district court, nor have
the appellants submitted a settled and approved statement of the evidence or proceedings.
Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973); NRAP l0(c)(e). There has been no
showing by the appellants that the judgment of the trial court was clearly erroneous or that it
was not based upon substantial evidence. B & C Enterprises v. Utter, 88 Nev. 433, 498 P.2d
1327 (1972).
Affirmed.
____________
90 Nev. 25, 25 (1974) Ute, Inc. v. Apfel
UTE, INC., a Nevada Corporation, Appellant, v.
WILLIAM APFEL, Respondent.
No. 7304
January 17, 1974 518 P.2d 156
Appeal from an order setting aside a default judgment, Eighth Judicial District Court,
Clark County; William P. Compton, Judge.
The Supreme Court held that, in absence of transcript or statement of proceedings to
enlighten Supreme Court about what occurred at hearing to set aside default judgment,
Supreme Court must presume that requirements for setting aside default had been met and
that the district court's ruling setting aside default was correct.
Affirmed.
[Rehearing denied February 19, 1974]
L. Earl Hawley, of Las Vegas, for Appellant.
James L. Buchanan, II, of Las Vegas, for Respondent.
1. Appeal and Error.
The Supreme Court will not disturb order setting aside default judgment unless there has been an abuse of
discretion by trial court.
2. Judgment.
To set aside default judgment, there must be showing of mistake, inadvertence, surprise or excusable
neglect and a showing of meritorious defense to claim for relief.
3. Appeal and Error.
In absence of transcript or statement of proceedings to enlighten Supreme Court about what occurred at
hearing to set aside default judgment, Supreme Court must presume that requirements
for setting aside default had been met and that the district court's ruling setting aside
default was correct.
90 Nev. 25, 26 (1974) Ute, Inc. v. Apfel
aside default judgment, Supreme Court must presume that requirements for setting aside default had been
met and that the district court's ruling setting aside default was correct. NRAP 10(c).
OPINION
Per Curiam:
Suit was filed by appellant and service of process was made upon respondent on February
1, 1973. On February 22, 1973, default was entered against respondent. Four days later he
filed a motion to set aside the default. That motion was accompanied by respondent's affidavit
alleging that he had misinformed his counsel as to the date of service of process.
A hearing was held March 21, 1973, and an order was entered setting aside the default
judgment and allowing respondent five days in which to answer.
1
The record is devoid of
any transcript or other document which might reveal what occurred at the hearing held on
March 21, 1973.
[Headnote 1]
This appeal is taken from the order setting aside the default judgment. We will not disturb
such an order unless there has been an abuse of discretion by the trial court. Minton v. Roliff,
86 Nev. 478, 471 P.2d 209 (1970); Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel
Last Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963); Blakeney v. Fremont
Hotel, Inc., 77 Nev. 191, 360 P.2d 1039 (1961).
[Headnote 2]
In Hotel Last Frontier v. Frontier Properties, supra, this court established guidelines to be
followed in setting aside a default. First, there must be a showing of mistake, inadvertence,
surprise or excusable neglect. 79 Nev. at 154. See also Blundin v. Blundin, 38 Nev. 212, 147
P. 1083 (1915). Secondly, there must be a showing of a meritorious defense to the claim for
relief. 79 Nev. at 154. See also Ogle v. Miller, 87 Nev. 573, 491 P.2d 40 (1971), and in the
absence of showing of meritorious defense the motion to set aside the judgment will fail.
Kelso v. Kelso, 78 Nev. 99, 369 P.2d 668 (1962); Guardia v. Guardia, 48 Nev. 230, 229
P.386 (1924); Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979 (1959).
____________________

1
The proceeding on March 21, 1973 was entitled a hearing on the motion to set aside default judgment.
Apparently an oral motion to set aside the default judgment had been made that day and considered instead of
the previous motion to set aside the default.
90 Nev. 25, 27 (1974) Ute, Inc. v. Apfel
[Headnote 3]
In the absence of a transcript or a statement of the proceedings pursuant to NRAP 10(c) to
enlighten us about what occurred at the hearing to set aside the default judgment, we must
presume that the requirements of Hotel Last Frontier, supra, have been met and that the
district court's ruling is correct. Prins v. Prins, 88 Nev. 261, 496 P.2d 165 (1972); Johnson v.
Johnson, 87 Nev. 244, 484 P.2d 1072 (1971); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701
(1970); Quinn v. Quinn, 27 Nev. 156, 74 P. 5 (1903).
Affirmed.
____________
90 Nev. 27, 27 (1974) F.P.D., Inc. v. Long
F.P.D., INC., a Nevada Corporation, dba FAMOUS PERFUMES DISTRIBUTORS,
Appellant, v. ZEBA NELL LONG, dba LONG DISTRIBUTING SERVICE, Respondent.
No. 7375
January 17, 1974 518 P.2d 155
Appeal from judgment for the respondent in her action to recover for breach of a
repurchase agreement rendered by the Eighth Judicial District Court, Clark County; Thomas
J. O'Donnell, Judge.
Suit involving a distributor agreement. The district court entered judgment from which
appeal was taken. The Supreme Court held that where record included neither a transcript of
lower court proceedings nor an agreed statement of facts, the Supreme Court was unable to
review appellant's challenge to finding of substantial performance of the agreement.
Affirmed.
Embry & Shaner, of Las Vegas, for Appellant.
David Canter, of Las Vegas, for Respondent.
Appeal and Error.
Where record included neither a transcript of lower court proceedings nor an agreed statement of facts,
the Supreme Court was unable to review appellant's challenge to finding of substantial performance of
distributor agreement.
OPINION
Per Curiam:
On or about May 21, 1968, Zeba Nell Long and F.P.D., Inc., entered into a Distributor
Agreement giving Mrs. Long the right to act as the appellant's exclusive distributor in
Lubbock County, Texas.
90 Nev. 27, 28 (1974) F.P.D., Inc. v. Long
the right to act as the appellant's exclusive distributor in Lubbock County, Texas. Mrs. Long
purchased fifty counter vendors and a large number of samplettes from the appellant which
she thereafter placed and maintained in various retail outlets.
The distributor agreement included a repurchase provision which obligated the appellant to
buy back the counter vendors and any remaining samplettes if the vendors were continuously
maintained and serviced at retail outlets for a period of one year.
The lower court found, in effect, that Mrs. Long had substantially performed her duties
under the contract and ordered the appellant to repurchase all of her remaining inventory.
The record before this court includes neither a transcript of the lower court proceedings
nor an agreed statement of facts. Under these circumstances we are unable to review the
appellant's challenge to the finding of substantial performance. Turner v. Staggs, 89 Nev. 230,
510 P.2d 879 (1973).
Affirmed.
____________
90 Nev. 28, 28 (1974) Burdick v. Pope
THEO FIELD BURDICK, Executrix of the Estate of MARY EMELINE POPE, and the
ESTATE OF MARY EMELINE POPE, Appellant, v. WALTER N. POPE, Executor of the
Estate of FRANK W. POPE, and DORIS V. DENNIS, Respondents.
No. 6934
January 17, 1974 518 P.2d 146
Appeal from a judgment of the First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Action seeking declaration that property is community property. The district court found
against plaintiffs and they appealed. The Supreme Court held that words her sole and
separate property written in deed conveying property to married woman was insufficient to
overcome presumption that property was community property.
Affirmed.
Virgil A. Bucchianeri, of Carson City, for Appellant.
Kermitt L. Waters, of Las Vegas, and Richard G. Edwards, of Carson City, for
Respondents.
1. Husband and wife.
Properties acquired during marriage are presumed to be community property, and presumption
can only be overcome by clear and certain proof.
90 Nev. 28, 29 (1974) Burdick v. Pope
community property, and presumption can only be overcome by clear and certain proof. NRS 123.130,
123.220.
2. Husband and Wife.
Words her sole and separate property written in deed to married woman was insufficient to overcome
presumption that property was community property. NRS 123.130, 123.220.
OPINION
Per Curiam:
Mary Emeline and Frank W. Pope were married on October 22, 1955. On January 25,
1956, William F. Skidmore conveyed a parcel of real property located adjacent to U.S.
Highway 50 in Ormsby County [now Carson City], Nevada, to Mary E. Johnson Pope, a
married woman, with a recitation in the deed that it was to be her sole and separate
property.
Mary Emeline Pope died on January 3, 1964. Under the terms of her will, she bequeathed
the sum of $2,500.00 to her husband, Frank W. Pope. The residue of the estate was left to her
daughter, Theo Field Burdick, the appellant. Frank Pope died in 1967, and the respondents
brought an action for declaratory relief requesting that the parcel located on U.S. Highway 50
be declared community property and that an undivided one-half interest be set over as a part
of the estate of Frank W. Pope, deceased.
The trial court found the parcel to be community property and ordered that it be equally
divided between the two estates. This appeal followed.
The only evidence in the record that might tend to support the appellant's contention that
the parcel of real property was Mrs. Pope's separate property is the recitation in the deed that
it was conveyed to her as her sole and separate property. All the other evidence in the
record amounts to either surmise or conjecture.
[Headnote 1]
Properties acquired during marriage are presumed to be community property,
1
and the
presumption can only be overcome by clear and certain proof. Todkill v. Todkill, 88 Nev.
____________________

1
NRS 123.130: 1. All property of the wife owned by her before marriage, and that acquired by her
afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.
2. All property of the husband owned by him before marriage, and that acquired by him afterwards by gift,
bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.
NRS 123.220: All property, other than that stated in NRS 123.130, acquired after marriage by either
husband or wife, or both, except as provided in NRS 123.180 and 123.190, is community property.
90 Nev. 28, 30 (1974) Burdick v. Pope
231, 495 P.2d 629 (1972); see Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Lake
v. Bender, 18 Nev. 361, 7 P. 74 (1884).
[Headnote 2]
Appellant has presented no authority and we have found none which would support her
contention that the words her sole and separate property written in the deed are sufficient to
overcome the presumption that this parcel acquired during coverture was community
property.
We believe that the phrase her sole and separate property standing alone, without
supporting evidence, is not the clear and certain proof required to overcome the presumption.
The judgment of the district court is affirmed.
____________
90 Nev. 30, 30 (1974) Thoene v. Warden
FRED THOENE, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 7046
January 17, 1974 517 P.2d 794
Appeal from order denying petition for writ of habeas corpus and order dismissing second
petition for writ of habeas corpus in the First Judicial District Court, Carson City; Frank B.
Gregory, Judge, and Thomas J. O'Donnell, Judge.
Affirmed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, Carson
City, for Respondent.
OPINION
Per Curiam:
This appeal is without merit.
The orders of the lower court are affirmed.
____________
90 Nev. 31, 31 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
ONE 1970 CHEVROLET MOTOR VEHICLE, IDENTIFICATION NO. 13670L125718
BEARING NEVADA LICENSE NO. CL4947, Appellant, v. THE COUNTY OF NYE,
STATE OF NEVADA, Respondent.
No. 7133
January 17, 1974 518 P.2d 38
Appeal from judgment of the Fifth Judicial District Court, Nye County; Kenneth L. Mann,
Judge.
The district court ordered forfeiture of automobile allegedly used in violation of narcotic
laws, and appeal was taken. The Supreme Court, Mowbray, J., held that testimony by officers
that they had search warrant was sufficient to establish existence of warrant, and that denial
of motion to suppress made at trial was not an abuse of discretion.
Affirmed.
Gunderson, J., dissented.
Goodman and Snyder and Douglas G. Crosby, of Las Vegas, for Appellant.
William P. Beko, District Attorney, and Peter L. Knight, Assistant District Attorney, Nye
County, for Respondent.
1. Forfeitures.
Evidence illegally obtained in contravention of Fourth and Fourteenth Amendments is excluded in
forfeiture proceedings as well as in criminal proceedings. NRS 453.301 et seq.; U.S.C.A.Const.
Amends. 4, 14.
2. Searches and Seizures.
If warrant is regular on its face, it will be presumed that magistrate properly discharged his duties in
issuing it.
3. Evidence.
Best evidence rule is designed to prevent proof of contents of writing by secondary evidence. NRS
52.235.
4. Evidence.
To make reference to document by its common designation is not a violation of best evidence rule. NRS
52.235.
5. Searches and Seizures.
Testimony of officers that they had search warrant was sufficient to prove existence of warrant.
6. Forfeitures.
Where there was no showing of lack of opportunity to make pretrial motion to suppress evidence or lack
of awareness of grounds for motion to suppress, trial court did not abuse its discretion in refusing to
entertain motion to suppress which was made at trial of forfeiture proceeding.
90 Nev. 31, 32 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
7. Evidence.
An inference is a deduction which trier of facts may determine from proven facts.
8. Drugs and Narcotics.
Substantive violations of Uniform Narcotic Drug Act which required proof of knowledge of presence of
drugs and knowledge of their narcotic character do not demand proof of such elements by direct evidence.
NRS 453.010 et seq., 453.145.
OPINION
By the Court, Mowbray, J.:
Nye County filed forfeiture proceedings against a Chevrolet automobile being used in
violation of NRS 453.145 of the Uniform Narcotic Drug Act.1 This appeal is from an order
adjudging forfeiture.
1. Prior to the seizure of the car, Nye County officers had maintained a loose surveillance
of the activities of several persons in the Pahrump Valley, including appellant's owner
(Harold Dittmer) and a juvenile. On June 28, 1971, the juvenile was taken into custody. She
readily admitted using dangerous drugs and marijuana. She confirmed the officers' suspicions
that she had been receiving pills, which she believed to be illegal drugs, from Dittmer during
his visits to Pahrump Valley. She advised the officers of the locations in Dittmer's car and on
his person where the drugs were normally concealed. She also advised the officers that she
expected Dittmer to be in Pahrump on June 29, 1971, as he called her just prior to her arrest
and she had asked him to come to Pahrump the night of June 29. Further information given to
the officers was that Dittmer was to meet the juvenile at the Pahrump Restaurant and that she
expected him to have some pills, as he usually did. The juvenile testified at the trial that she
had known Dittmer for some time, both in Las Vegas and in Pahrump, and that he had
furnished her with pills on a number of trips to Pahrump.
A lieutenant and a deputy sheriff of the Nye County Sheriff's office were on patrol south of
Pahrump on the evening of June 29, 1971, when they observed the vehicle being driven on a
public highway headed toward Pahrump. They followed the car to the Pahrump Restaurant,
and when Dittmer came out of the restaurant and returned to the car, one of the officers
advised him they were going to search his car.
____________________

1
The subject of forfeitures is now governed by NRS 453.301 et seq. of the Uniform Controlled Substances
Act.
90 Nev. 31, 33 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
advised him they were going to search his car. The officer testified that he exhibited the
original of a search warrant to Dittmer and handed him a copy. The search of the car
disclosed a number of items, some of which were later identified by an expert witness as
secobarbital, a derivative of barbituric acid; amphetamines; and leaf marijuana or Cannibis
Sativa L. Dittmer was placed under arrest and given a receipt for the items taken in the
search. Further testimony disclosed that the search warrant was issued by a justice of the
peace of Pahrump Township, predicated on an affidavit signed by the officer who was the
resident deputy sheriff in Pahrump and who had taken the juvenile into custody.
The trial judge admitted into evidence, over appellant's objection, the narcotics obtained in
the search. Appellant assigns error, claiming that Nye County was required to produce the
search warrant and the supporting affidavit as a condition to offering in evidence the fruits of
the search.
[Headnote 1]
2. Evidence illegally obtained in contravention of the Fourth and Fourteenth Amendments
of the United States Constitution is excluded in forfeiture proceedings as well as in criminal
prosecutions. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). It is
uncontradicted that a search warrant was issued in this case. Castle v. United States, 287 F.2d
657 (5th Cir. 1961); United States v. Burkhart, 347 F.2d 772 (6th Cir. 1965).
In Schnepp v. State, 82 Nev. 257, 260, 415 P.2d 619, 621 (1966), this court stated:
Ordinarily, the burden of showing an illegal search and seizure is on the moving party.
Lyles v. States, 330 P.2d 734 (Okla. [App.] 1958). . . .
The court then noted a distinction in this burden that it has always observed where the
evidence was obtained by means other than a search warrant. In such cases, the burden is on
the State to prove the evidence was lawfully obtained, as where the search was incident to an
arrest, as was the case in Schnepp, supra, or where there is a claimed consent to search, as in
Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965).
[Headnote 2]
It is a well established principle that the party seeking to impeach a search warrant has the
burden of establishing the matters complained of and that, if the warrant is regular on its face,
it will be presumed that the magistrate properly discharged his duties in issuing it. United
States v. Thompson, 421 F.2d 373 {5th Cir 1970); State v. Yates, 449 P.2d 575 {Kan.
1969), cert. denied, 396 U.S. 996 {1969); State v.
90 Nev. 31, 34 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
421 F.2d 373 (5th Cir 1970); State v. Yates, 449 P.2d 575 (Kan. 1969), cert. denied, 396 U.S.
996 (1969); State v. Kelly, 407 P.2d 95 (Ariz. 1965). Cf. Aguilar v. Texas, 378 U.S. 108
(1964).
Contrary to appellant's contention on appeal, it was its burden to prove the illegality of the
search and seizure, and it was not the obligation of the respondent to prove affirmatively that
the warrant was regularly issued on the basis of an affidavit showing probable cause.
3. Additionally, appellant asserts a disregard of the best evidence rule as error, claiming
that the search warrant itself must be produced to establish the authority of the seizure.
[Headnotes 3-5]
The best evidence rule is designed to prevent the proof of the contents of a writing by
secondary evidence. NRS 52.235. The testimony of the officers that they obtained a search
warrant, exhibited it to Dittmer, gave him a copy, and conducted a search does not amount to
testimony proving what was in the warrant. To make reference to a document by its common
designation is not a violation of the best evidence rule. Chicago & N.W. Ry. Co. v. Green,
164 F.2d 55 (8th Cir. 1947). The testimony of the officers that they had a warrant is sufficient
to prove its existence. Castle v. United States, supra; United States v. Burkhart, supra.
4. After the respondent, Nye County, rested its case in the proceedings below, appellant
sought to introduce copies of the search warrant and the officer's affidavit that was the
predicate for the warrant in an effort to prove that the affidavit did not establish probable
cause for the issuance of the warrant and that the warrant itself was improperly issued. The
trial judge rejected the offer, on the grounds that it amounted to a motion to suppress
evidence, which had not been made prior to trial, and that no good cause was shown for
failure to make a timely motion. Appellant claims the rejected offer constitutes reversible
error.
The issuance of search warrants in Nevada is governed by NRS 179.015 to NRS 179.115.
NRS 179.085 controls the procedure to be followed to suppress evidence or to recover
property that was illegally seized.
2
Here, the motion to suppress was not made before trial.
____________________

2
NRS 179.085, in relevant part:
3. The motion to suppress evidence may also be made in the court where the trial is to be had. The motion
shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of
the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
90 Nev. 31, 35 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
Here, the motion to suppress was not made before trial. Appellant made no showing to the
trial court that it had no opportunity to make the motion before trial, or that it was unaware of
the grounds for the motion, though given an opportunity to do so. Actually, the main thrust of
the appellant's approach below was that the petitioner-plaintiff had the burden to prove the
legality of the search and that appellant was under no duty to take any affirmative action in
this regard.
[Headnote 6]
Since appellant made no factual representation to the trial court that it did not have an
opportunity to make a pretrial motion to suppress or that it was not aware of the grounds for
the motion, we are unable to hold that the trial court abused its discretion in refusing to
entertain the motion at the trial. United States v. Romero, 249 F.2d 371 (2d Cir. 1957);
United States v. Di Donato, 301 F.2d 383 (2d Cir. 1962).
[Headnote 7]
5. Finally, the appellant challenges the sufficiency of the evidence upon which the trial
judge predicated his finding that appellant was used to violate a provision of the then existing
Uniform Narcotic Drug Act. NRS 453.145 of the Uniform Narcotic Drug Act then in effect
provided in part: No vehicle, boat or aircraft shall be forfeited unless the owner thereof
authorized or knowingly permitted its use in violation of NRS 453.010 to 453.240,
inclusive. Appellant makes much of the fact that the trial judge, in his written decision,
stated in part: The evidence supports an inference that Dittmer had knowledge of the
presence of such substances [marijuana and dangerous drugs]; . . . Appellant argues that a
mere inference is insufficient to support the requisite knowledge required by the statute. An
inference is a deduction which the trier of facts may determine from proven facts. It is often
used in evaluating circumstantial evidence. The trial judge did not characterize the case as
one in which there was only an inference that a crime had been committed. Rather, the court
found that a crime had been committed, the proof of some of the elements of which were
deduced from proven facts supported by the record.
3
[Headnote S]
[Headnote S]
____________________

3
The trial judge, in the second paragraph of his written decision, stated:
In the opinion of the Court, there was ample evidence to support the allegations of the petition. That is, the
car was owned by Harold Melvin Dittmer; it was seized on or about June 29, 1971, in Nye County, Nevada; it
was being operated and driven by Dittmer; marijuana and dangerous drugs were found therein. The evidence
supports
90 Nev. 31, 36 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
[Headnote 8]
Substantive violations of the Uniform Narcotic Drug Act, which require proof of
knowledge of the presence of the drugs and knowledge of their narcotic character, do not
demand proof of these elements by direct evidence. This court said, in Fairman v. Warden, 83
Nev. 332, 336, 431 P.2d 660, 663 (1967):
In order to hold one for narcotics possession, it is necessary to show dominion and
control over the substance (Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966)) and knowledge
that it is of a narcotic character (Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962), citing
Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961)). These elements may be shown by direct
evidence or by circumstantial evidence and reasonably drawn inferences. People v. Lunbeck,
303 P.2d 1082 (Cal. [App.] 1956). . . . See also Woerner v. State, 85 Nev. 281, 453 P.2d
1004 (1969).
The forfeiture order of the district court is affirmed.
Thompson, C. J., and Zenoff, J., concur.
Batjer, J., concurring:
I concur in the result reached by the majority and agree that the judgment of the district
court should be affirmed, however, I disagree with the reasoning of both the majority and the
district judge in reaching that result. The right result was reached for the wrong reason.
Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963); Foster v. Lewis, 78 Nev. 330, 372
P.2d 679 (1962); Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402 (1961).
At trial the appellant faced a two phase problem. First it was required to show that the
search warrant was wrongly issued and improperly served, and secondly it was required to
convince the trial court that the evidence seized pursuant to the warrant should be suppressed.
Cf. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
The trial court erred when it relied on NRS 179.085(3) as the basis to deny appellant's
offer to introduce into evidence copies of the search warrant and accompanying affidavit to
show lack of probable cause for issuance of the warrant. Every avenue should have been
open and available to the appellant to show invalidity in the warrant.
____________________
an inference that Dittmer had knowledge of the presence of such substances; such substances were in his
possession and were being transported by him and that he had knowledge of their character; and that the quantity
of the substance was sufficient to produce the narcotic or chemical effect normally associated with such
narcotics or drugs.
90 Nev. 31, 37 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
avenue should have been open and available to the appellant to show invalidity in the
warrant.
It is anomalous for the majority to assert that it is the obligation and burden of the
appellant to prove the illegality of the search and seizure and yet to approve the denial by the
trial court of appellant's attempt to introduce evidence needed to carry its burden.
The majority supports its position by saying: It is a well established principle that the
party seeking to impeach a search warrant has the burden of establishing the matters
complained of and that, if the warrant is regular on its face, it will be presumed that the
magistrate properly discharged his duties in issuing it. United States v. Thompson, 421 F.2d
373 (5th Cir. 1970); State v. Yates, 449 P.2d 575 (Kan. 1969), cert. denied, 396 U.S. 996
(1969); State v. Kelly, 407 P.2d 95 (1965). Yet it approves the trial court's decision to
exclude the search warrant and its supporting affidavit from evidence. Thus making it
impossible to examine the warrant to determine if it is regular on its face.
In spite of the error committed by the trial court. I believe it to be harmless. See NRS
178.598.
1

Even if the appellant had been able to prove that the affidavit supporting the search
warrant was insufficient, and as a consequence the search warrant was improperly issued, or
that the search warrant was improperly served, it nevertheless had the obligation to move
before trial to suppress the evidence. (NRS 179.085(3).) This the appellant failed to do.
Therefore, it became discretionary with the trial court to refuse to hear appellant's motion to
suppress made at the time of trial. In this phase of the proceeding I see no such abuse of
discretion as would require us to reverse.
Gunderson, J., dissenting:
I agree with Mr. Justice Batjer's observation that the majority's legal position is
anomalous; however, I cannot excuse anomalies in the district court's actions, as does
Justice Batjer, by invoking the words harmless error.
The majority say that [t]o make reference to a document by its common designation is not
a violation of the best evidence rule. Perhaps not, but it does not follow that such a reference
conclusively proves such a document exists which was regular on its face. Personally, I
believe alluding to a document as a "warrant" constitutes no evidence whatever that the
"warrant" was regular on its face; however, all must agree that such a reference is not
irrebuttable evidence, so strong as to foreclose an attempt to show the "warrant" was in
fact irregular.
____________________

1
NRS 173.598: Any error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.
90 Nev. 31, 38 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
warrant constitutes no evidence whatever that the warrant was regular on its face;
however, all must agree that such a reference is not irrebuttable evidence, so strong as to
foreclose an attempt to show the warrant was in fact irregular.
Thus, assuming appellant's Fourth Amendment rights were raised in timely fashion, the
warrant manifestly was relevant to whether that document was regular on its face, and
hence to whether respondent had the burden of attacking it. Furthermore, again assuming the
Fourth Amendment issue was timely raised, and assuming further that the warrant was
regular on its face and thus placed the burden of proof on appellant, the warrant and
underlying affidavit still were competent evidence on the ultimate issue of legality. In short,
whether appellant had the burden of proof seems unimportant here, for the court foreclosed
appellant from demonstrating that the warrant was unlawfully issued, and thereby from
discharging whatever burden appellant had.
As I see it, the sole issue is whether we properly may hold that appellant's counsel have
forfeited their client's rights by failing to employ in this nonjury civil case a statute from our
code of criminal procedure, which was primarily intended to avoid delays in the course of
criminal jury trials. See: NRS 179.085. To me, such a Procrustean construction of NRS
179.085 not only denies appellant procedural due process, but is totally unfair to appellant's
counsel, for in effect it brands them as derelict, when in fact they were nothing of the sort.
I perceive no language in NRS 179.085 to place appellant's counsel on notice that they
must seek a bifurcated trial on the search issue, by filing a motion to suppress. That statute
does not apply to civil proceedings, either by its terms, by its policy, or by necessary
implication.
NRS 179.085 is included in the Nevada Revised Statutes as part of Title 14, which is
headed in bold, capital letters: PROCEDURE IN CRIMINAL CASES. It was enacted in
1967 as part of a lengthy Act summarized as: AN ACT to regulate proceedings in criminal
cases in this state; . . . Nev. Stats. 1967, ch. 523; emphasis added. That Act provided, inter
alia: This Title may be known and cited as the Nevada Criminal Procedure Law. Sec. 2;
emphasis added. Said Act next declared: This Title governs the procedure in the courts of
the State of Nevada and before magistrates in all criminal proceedings, . . . Sec. 3; emphasis
added. The Act provided further: This Title is intended to provide for the just determination
of every criminal proceeding. . . . Sec. 4; emphasis added. Said Act is almost 100 pages in
length, contains 468 sections, and countless sub-sections.
90 Nev. 31, 39 (1974) One 1970 Chevrolet Motor Vehicle v. County of Nye
sections, and countless sub-sections. So far as appears none, including the one the majority
invoke here, have application to anything other than the processing of criminal accusations.
There is, of course, nothing to prevent us from declaring motions to suppress requisite in
civil forfeiture proceedings, although in such cases the procedure seems nonutilitarian if not
counterproductive. However, if we are to make motions to suppress part of Nevada's civil
procedure, let us do so prospectively so that, having notice of this requirement, litigants will
enjoy procedural due process, and their lawyers will not be branded as negligent for failure to
use criminal statutes imported into the civil law by this court on an ad hoc basis.
____________
90 Nev. 39, 39 (1974) Marshall v. Sheriff
ROLAND MARSHALL, Appellant, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 7540
January 17, 1974 518 P.2d 157
Appeal from an order denying a pretrial petition for a writ of habeas corpus, Eighth
Judicial District Court, Clark County; William P. Compton, Judge.
Defendant, accused of murdering a store night clerk, filed a pretrial petition for habeas
corpus charging that the evidence adduced at his preliminary examination was insufficient to
establish probable cause and hold him for trial. The district court denied the petition, and the
accused appealed. The Supreme Court held that probable cause was established by proof that
the body of the night clerk had been found in rest rooms used by store employees only, and
that fingerprints and palmprints of the accused were found in and about that area.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Proof that body of store night clerk was found in rest rooms used by store employees only, that there were
four bullet wounds in body of victim, and that fingerprints and palmprints of accused
were found in and about area reserved for employees, was sufficient to show
probable cause to hold accused for trial for murder.
90 Nev. 39, 40 (1974) Marshall v. Sheriff
in body of victim, and that fingerprints and palmprints of accused were found in and about area reserved
for employees, was sufficient to show probable cause to hold accused for trial for murder. NRS 200.010.
OPINION
Per Curiam:
About 1:15 a.m., on the morning of March 20, 1973, the Clark County Sheriff's office
received a report that the 7-11 grocery store located at 3707 E. Flamingo Blvd. was open, but
unattended.
When the officers who responded to the call arrived at the store they observed the cash
drawer, empty and on the floor. The dead body of James Hunter, the night clerk, was found
slumped, in a pool of blood, against the door of the ladies' rest room. During the ensuing
investigation fingerprints and palmprints, later identified as those of appellant, were found on
the cash drawer, the foyer leading into the rest room area and on both the inside and outside
of the door of the ladies' rest room.
Appellant was charged with the homicide and, after a preliminary examination, was
ordered to stand trial for murder (NRS 200.010).
In a pretrial petition for habeas corpus the single contention was that the evidence adduced
at the preliminary examination was insufficient to establish probable cause to hold appellant
for trial. This appeal is from the trial court order denying habeas corpus relief.
The record before us shows that, at the preliminary examination, the prosecutor
established, inter alia, that the rest rooms were located in the rear of the store and were for
the use of the store employees only; that there were four bullet wounds in the body of the
victim, any one of which could have been the cause of death; and, that the fingerprints and
palmprints of appellant were found in and about the area reserved for employees.
The thrust of appellant's argument suggests that the presence of his fingerprints and
palmprints at the scene of the homicide is insufficient to sustain the charge of murder. In
support of this argument he cites McLain v. State, 24 So.2d 15 (Miss. 1945), and People v.
Flores, 137 P.2d 767 (Cal.App. 1943), both of which held that evidence of the accused's
fingerprints in a stolen car did not establish his guilt beyond a reasonable doubt, when a
conviction for theft was challenged on appeal.
These authorities are inapposite. Here we are only concerned with probable cause to hold
appellant for trial.
90 Nev. 39, 41 (1974) Marshall v. Sheriff
with probable cause to hold appellant for trial. We deem the evidence herein sufficient to
meet the standard of probable cause contemplated by NRS 171.206. State v. von Brincken, 86
Nev. 769, 476 P.2d 733 (1970). See McKenna v. Sheriff, 85 Nev. 524, 458 P.2d 358 (1969).
[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.
____________
90 Nev. 41, 41 (1974) Paulson v. Civil Service Commission
PAUL S. PAULSON, Appellant, v. CIVIL SERVICE
COMMISSION OF THE CITY OF RENO, Respondent.
No. 7147
January 18, 1974 518 P.2d 148
Appeal from order dismissing petition for writ of certiorari in the Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
Appeal from a ruling of the district court dismissing a petition for writ of certiorari to
review the Reno Civil Service Commission's ruling upholding dismissal of the city's Deputy
Assistant Chief of Police. The Supreme Court, Mowbray, J., held that the Deputy Assistant
Chief's failure to report for duty for 1 month and 21 days after expiration of a leave of
absence was legal cause for his dismissal, despite fact that he had made applications for
vacation time and sick leave for the period in question, which had been turned down.
Affirmed.
[Rehearing denied May 29, 1974]
Legarza, Lee & Barengo, of Reno, for Appellant.
Robert L. Van Wagoner, City Attorney, of Reno, for Respondent.
Municipal Corporations.
Failure of Deputy Assistant Chief of Police to report for duty for 1 month and 21 days after expiration of
leave of absence was legal cause for his dismissal despite fact that he had made applications for
vacation time and sick leave for period in question, which were turned down.
90 Nev. 41, 42 (1974) Paulson v. Civil Service Commission
applications for vacation time and sick leave for period in question, which were turned down.
OPINION
By the Court, Mowbray, J.:
Appellant, Paul Paulson, was employed by the Reno Police Department as Deputy
Assistant Chief of Police. Early in 1969, Paulson inquired into the possibility of personally
attending Northwestern University Traffic Institute Police Administration Training School.
He applied for admission to the school and in August of 1971 met the necessary admission
requirements.
As a prerequisite to attending the 9 months of classes, Paulson was required to have an
agreement with his employer that he would remain on the payroll and that his employer
would pay the necessary expenses incurred in his attending the school.
Therefore, in late July and early August of 1971, Paulson appeared before the Reno City
Council, requesting that he be allowed to attend the school for approximately 1 year; that the
city pay his tuition, fees, and lodging while at school; and that he remain on full salary while
in attendance at Northwestern.
This request was denied by the Reno City Council because the necessary expenses for the
city would be approximately $22,000 and there was a shortage in top administrative
personnel in the police department, due to the departure of the then Chief of Police, Elmer
Briscoe.
Paulson then appeared before the Reno Civil Service Commission and requested a
2-month leave of absence beginning September 1, 1971, and ending October 31, 1971, to
collect his thoughts. This request was granted.
Paulson was required to return to work on November 1, 1971. He failed to report on that
day and also on November 2, 1971. On November 3, 1971, Acting Chief of Police Bev
Waller received a request for vacation time for Paulson through Paulson's attorney. This
request was denied on November 15, 1971. Waller then received a request for sick leave
directly from Paulson on November 19, 1971. This request was also denied.
On December 21, 1971, 1 month and 21 days after Paulson was to report for work, Reno
City Manager Joe Latimore, on recommendation from Chief Waller, terminated Paulson.
Paulson appealed Latimore's action to the Reno Civil Service Commission, and a hearing was
held. The Commission upheld Paulson's dismissal, and Paulson appealed to the Second
Judicial District Court by writ of certiorari.
90 Nev. 41, 43 (1974) Paulson v. Civil Service Commission
Paulson's dismissal, and Paulson appealed to the Second Judicial District Court by writ of
certiorari. A hearing on the writ was held, and the lower court denied its issuance, finding that
there was legal cause for Paulson's dismissal.
The only issue which we find necessary to discuss is whether there was legal cause for
Paulson's dismissal. The function of this court in making that determination is limited to the
record of evidence presented to the Commission. Meinhold v. Clark County School Dist., 89
Nev. 56, 506 P.2d 420 (1973).
What constituted legal cause was announced by this court in the case of State ex rel.
Whalen v. Welliver, 60 Nev. 154, 104 P.2d 188 (1940), and reiterated in Hardison v.
Carmany, 88 Nev. 670, 504 P.2d 1 (1972). We indicated in Whalen, 60 Nev. at 159, 104 P.2d
at 190-191, quoting Sausbier v. Wheeler, 252 App.Div. 267, 299 N.Y.S. 466, 472:
Cause, or sufficient cause means 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.' See also
Richardson v. Board of Regents, 70 Nev. 347, 269 P.2d 265 (1954).
One reason specified for Paulson's dismissal was that Paulson did not return to his
employment at the end of his leave of absence and failed to explain the reasons for the delay
or request further leave. Certainly the fact that Paulson failed to report for duty on November
1 and November 2, 1971, and continued to remain away from work until his dismissal on
December 21, 1971, is within the grounds for dismissal as set forth in Title XX, Section 19,
page C-101, of the Reno City Charter, and we find that it constituted sufficient legal cause
for his dismissal.
That Paulson submitted applications for vacation time or sick leave does not mean that
such time is automatically granted from the date such applications are submitted. The
procedure for granting these requests is such that leave time does not begin on the date the
applications are submitted, but rather starts only when the request is granted.
90 Nev. 41, 44 (1974) Paulson v. Civil Service Commission
starts only when the request is granted. Therefore, because Paulson's requests for leave time
were never granted, it follows that Paulson was absent without leave at least from the time the
applications were submitted until the date the requests were denied.
This is not a case of dismissal for unsubstantiated reasons, as in Hardison v. Carmany,
supra, or summary dismissal, as in State ex rel. Whalen v. Welliver, supra. Here, we have
disregard by a high administrative officer in the Reno City Police Department for the needs of
his department and the proper administrative procedures for the granting of leave time.
Paulson failed to report to work at the conclusion of his leave of absence and remained away
from work without authorization from the Acting Chief of Police.
The trial court correctly found that there was substantial evidence in the record to support
the Commission's finding that there was cause for Paulson's dismissal. Accordingly, we
affirm the decision of the lower court. City of North Las Vegas v. Public Serv. Comm'n, 83
Nev. 278, 281, 429 P.2d 66, 67 (1967).
The other issue raised in this appeal is without merit.
Thompson, C. J., and Batjer and Zenoff, JJ., concur.
Gunderson, J., concurring:
I reluctantly agree that the record may be read to support the discharge of Paulson, whose
offense was briefly to place his own life-long ambitions and long-term interests ahead of
short-term concerns of Reno, a city he admittedly had served faithfully for over 17 years.
I will not endeavor to state all of the equities of Paulson's position that the majority
opinion does not mention. Still, I think it should be said that, prior to his making plans to
attend Northwestern, Paulson's superiors had informally advised him he could have leave;
that Paulson's age made 1971 the last year he could attend the school; that there is evidence
his application to utilize his vacation time was prepared in mid-October, although not
received until after November 1; that quite arguably Paulson reasonably believed the city
would at least authorize him to take vacation time he had already earned; and that evidence
suggested his superiors did not initially view Paulson's absence without leave as particularly
serious, and arguably led him to believe such absence was being condoned.
Unfortunately for Paulson, the Reno Civil Service Commission did not accord these
equities the weight they arguably deserved. However, although the Commission's decision
was not clearly erroneous, I think our opinion should at least note that a decision in
Paulson's favor would have been quite justified also.
90 Nev. 41, 45 (1974) Paulson v. Civil Service Commission
not clearly erroneous, I think our opinion should at least note that a decision in Paulson's
favor would have been quite justified also.
____________
90 Nev. 45, 45 (1974) Jones v. State
RUSSELL JONES, Appellant, v.
STATE OF NEVADA, Respondent.
No. 6980
January 21, 1974 518 P.2d 164
Appeal from judgment of conviction and sentence of the Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Prosecution wherein defendant was convicted in the district court of selling or disposing of
hashish. Defendant appealed. The Supreme Court held that denial of continuance, sought on
the morning of trial, on the ground that private defense counsel who had been substituted for
court-appointed counsel a few days before desired more time to prepare was not shown to be
error.
Affirmed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and
Gregory D. Corn, Deputy District Attorney, Elko County, for Respondent.
Criminal Law.
Denial of continuance, sought on the morning of trial, on the ground that private defense counsel who had
been substituted for court-appointed counsel a few days before desired more time to prepare was not shown
to be error in drug prosecution. NRS 453.030.
OPINION
Per Curiam:
Appellant stands convicted of three counts of selling or disposing of hashish in violation
of NRS 453.030.
His foremost assignment of error is that the district court improperly denied a motion for
continuance, made the morning trial began. That motion was grounded on the desire of
appellant's private defense counsel, who had been substituted for court-appointed
counsel a few days before, to have more time to prepare.
90 Nev. 45, 46 (1974) Jones v. State
appellant's private defense counsel, who had been substituted for court-appointed counsel a
few days before, to have more time to prepare. In the facts of this case, we find no error. See:
Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955).
A subsidiary assignment of error seems to be that a motion to disqualify the trial judge,
made the morning trial began and denied as untimely, would have become timely if the court
had not erroneously denied appellant's motion for continuance. Our disposition of appellant's
first point disposes of this one also.
Other assignments of error have been considered, and are deemed equally without merit.
Affirmed.
____________
90 Nev. 46, 46 (1974) Mirin v. Clark County Taxicab Authority
WILLIAM MIRIN, Appellant, v. THE CLARK COUNTY TAXICAB AUTHORITY and
VEGAS-WESTERN CAB, INC., a Nevada Corporation, Respondents.
No. 7095
January 23, 1974 518 P.2d 597
Appeal from order granting summary judgment; Eighth Judicial District Court, Clark
County; Carl J. Christensen. Judge.
Suit to review action of county taxicab authority in ordering transfer of a certificate of
public convenience and necessity, that had been levied upon by Internal Revenue Service.
The district court granted motion for summary judgment of party to whom certificate was
transferred, and original holder of certificate appealed. The Supreme Court, Mowbray, J.,
held that certificate of public convenience and necessity was properly classifiable as
property or rights to property within lien provision of Internal Revenue Code and, as
such, was subject to seizure by Internal Revenue Service for failure to pay federal
withholding taxes.
Affirmed.
Kermitt L. Waters and Oscar Goodman, of Las Vegas, for Appellant.
Robert List, Attorney General, and Gary Logan, Chief Deputy Attorney General, Carson
City, for Respondent Clark County Taxicab Authority.
90 Nev. 46, 47 (1974) Mirin v. Clark County Taxicab Authority
Galane, Tingey & Shearing, of Las Vegas, for Respondent Vegas-Western Cab, Inc.
1. Internal Revenue.
Determination of property or rights to property, within Internal Revenue Code providing that if any
person liable to pay any tax neglects or refuses to pay same after demand, amount shall be a lien in favor of
the United States upon all property and rights to property, whether real or personal, belonging to such
person, is a matter of state law. 26 U.S.C.A. (I.R.C. 1954) 6321.
2. Internal Revenue.
Regulation which governs service and safety of motor carrier operations and which states, in part, that no
grant of authority for either common or contract carriage shall carry with it implication or intent of
investing the holders thereof with any property right refers, not to property or rights to property within
lien provision of Internal Revenue Code, but to situation where Public Service Commission revokes a
certificate or refuses to approve transfer thereof and holder raises a constitutional question as to his
property rights in certificate. NRS 706.660, subd. 1; 26 U.S.C.A. (I.R.C. 1954) 6321.
3. Carriers; Execution.
Regulation conferring upon Public Service Commission power and authority to regulate operating rights
evidenced by a certificate of public convenience and necessity impliedly recognizes that a transfer of such
rights may occur by involuntary action; thus, there must be a proprietary interest capable of being
transferred and subject to levy. NRS 706.660, subd. 1; 26 U.S.C.A. (I.R.C. 1954) 6321.
4. Internal Revenue.
Certificate of public convenience and necessity was properly classifiable as property or rights to
property within lien provision of Internal Revenue Code and, as such, was subject to seizure by Internal
Revenue Service for failure to pay federal withholding taxes. NRS 706.660, subd. 1; 26 U.S.C.A. (I.R.C.
1954) 6321.
OPINION
By the Court, Mowbray, J.:
William Mirin, Appellant, was the holder of Certificate of Public Convenience and
Necessity CPC A 883 Sub 3, issued by the Public Service Commission of Nevada (PSC),
effective December 26, 1967, authorizing the operation of a taxicab business. The United
States Internal Revenue Service (IRS) levied on this certificate for Mirin's failure to pay
federal withholding taxes. Notice of seizure was served on the PSC on April 22, 1969. A
public sale was then had, and the certificate was sold to Respondent Vegas-Western Cab,
Inc., for approximately $21,000, subject to approval by Respondent Clark County Taxicab
Authority {the Authority).1
90 Nev. 46, 48 (1974) Mirin v. Clark County Taxicab Authority
was sold to Respondent Vegas-Western Cab, Inc., for approximately $21,000, subject to
approval by Respondent Clark County Taxicab Authority (the Authority).
1

An application was filed with the Authority by the IRS, requesting the transfer of the
certificate that had been seized from Mirin. A public hearing, attended by both Mirin and his
attorney, was held on February 26, 1970, and on March 27, 1970, the Authority entered its
order transferring the certificate.
Mirin filed suit in the district court against the Authority and, by amended complaint,
against Vegas-Western Cab, Inc., and the IRS, seeking a review of the Authority's action and
an injunction against interference with his operation. On June 28, 1972, Vegas-Western filed
a motion for summary judgment. The motion was granted on August 17, 1972, after a full
hearing; it is from this order that Mirin appeals.
Mirin contends that his certificate of public convenience and necessity was not subject to
seizure by the IRS because it was not property or a right to property as defined in the
Internal Revenue Code. The Internal Revenue Code, 26 U.S.C. 6321, states:
[Headnote 1]
If any person liable to pay any tax neglects or refuses to pay the same after demand, the
amount . . . shall be a lien in favor of the United States upon all property and rights to
property, whether real or personal, belonging to such person. The determination of
property or rights to property within the meaning of the statute is a matter of state law.
Aquilino v. United States, 363 U.S. 509 (1960); Kirby v. United States, 329 F.2d 735, 736
(10th Cir. 1964); United States v. Bess, 357 U.S. 51, 55 (1958); Morgan v. Commissioner,
309 U.S. 78 (1939); John Hancock Mut. Life Ins. Co. v. Hetzel, 341 P.2d 1002, 1009 (Kan.
1959); United States v. Ryan, 124 F.Supp. 1 (D.Minn. 1954).
Most jurisdictions have early recognized that a certificate of public convenience and
necessity is property or rights to property within the meaning of the statute. Barutha v.
Prentice, 189 F.2d 29 (7th Cir. 1951), cert. denied, 342 U.S. 841 (1951); Richardson v.
National Acceptance Co., 179 F.2d 1 (7th Cir. 1950), cert. denied, 339 U.S. 981 (1950).
Mirin's certificate of public convenience and necessity was issued by the PSC at a time
when the "Rules and Regulations Governing Service and Safety of Operations of Motor
Carriers within the State of Nevada", adopted by General Order No.
____________________

1
Administrative jurisdiction over the subject matter of the application was vested in the Clark County
Taxicab Authority pursuant to NRS 706.881 to 706.885, especially NRS 706.8819(3).
90 Nev. 46, 49 (1974) Mirin v. Clark County Taxicab Authority
issued by the PSC at a time when the Rules and Regulations Governing Service and Safety
of Operations of Motor Carriers within the State of Nevada, adopted by General Order No.
5, effective December 1, 1962, were in effect. Rule 223 indicated: No grant of authority for
either common or contract carriage hereafter granted shall carry with it the implication or
intent of investing the holder thereof with any property right.
[Headnote 2]
Appellant urges that this provision is controlling in support of the proposition that no
property right that could be the subject of levy exists in the certificate of public convenience
and necessity. We believe the better view is that this provision is available to the PSC in the
event that it becomes necessary, in the proper administration of its authority, to revoke a
certificate or refuse to approve the transfer thereof, and the holder raises a constitutional
question as to his property rights in his certificate. Barutha v. Prentice, supra, NRS 706.660
(1).
Rule 222(1), adopted by PSC General Order No. 5, states:
No transfer of any operating right shall be effective except upon full compliance with
these rules and regulations and until after the Public Service Commission has approved such
transfer as herein provided. The mere execution of a chattel mortgage, deed of trust, or other
similar document, does not constitute a transfer within the meaning of these rules. A
proposed transfer of operating rights by means of the foreclosure of a mortgage or deed of
trust or other lien upon such rights, or by in execution of satisfaction of any judgment or
claim against the holder thereof, shall not be effective without compliance with these rules
and regulations and the prior approval of the Commission.
[Headnote 3]
The purpose of this section is to confer upon the PSC the power and authority to regulate
operating rights evidenced by a certificate of public convenience and necessity. The rule
impliedly recognizes that a transfer of these rights may occur by involuntary action and thus
there must be a proprietary interest capable of being transferred and subject to levy. Barutha
v. Prentice, supra; McCray v. Chrucky, 173 A.2d 39 (N.J. 1961). One of the most recent
cases on this issue is Fidler v. United States, 72-2 U.S. Tax Cas. para. 9506 at 85, 108-85,
112 (N.D.N.Y. 1972). The court stated at 85, 111-85, 112:
To hold that either the Public Service Commission or Interstate Commerce Commission
certificates are not property to which the government's tax lien attaches is to fly in the face
of reality.
90 Nev. 46, 50 (1974) Mirin v. Clark County Taxicab Authority
which the government's tax lien attaches is to fly in the face of reality. Experience with
bankruptcy of common carriers demonstrates that often the most valuable assets disposed of
by the trustee are the operating rights evidenced by the Public Service Commission and
Interstate Commerce Commission certificates. It is difficult to conceive of them as not being
property or rights to property in the broad sense of 26 U.S.C. 6331 when they may be
mortgaged, transferred, leased, and must be condemned with the payment of just
compensation by the government. (Footnotes omitted.)
[Headnote 4]
Therefore, we conclude that Mirin's certificate of public convenience and necessity was
subject to levy and transfer by operation of law. The order of the district court granting
summary judgment in favor of Vegas-Western Cab, Inc., and against Appellant William
Mirin is affirmed.
Thompson, C. J., and Batjer and Zenoff, JJ., and Forman, D. J., concur.
____________
90 Nev. 50, 50 (1974) Elsbury v. State
MICHAEL LANE ELSBURY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7071
January 31, 1974 518 P.2d 599
Appeal from a judgment, Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Defendant was convicted in the district court of willfully and unlawfully selling a
proscribed narcotic, hashish, and he appealed. The Supreme Court, Batjer, J., held that where
defendant testified that he sold hashish to certain persons on the alleged dates, allegedly
because he was afraid of one of them, and did not assert that he did not know the narcotic
nature of the substance sold, it was error to admit rebuttal testimony to the effect that one of
such persons purchased contraband from another party at defendant's abode in defendant's
presence, but such error was harmless in light of the very substantial evidence of defendant's
guilt.
Affirmed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public Defender,
Carson City, for Appellant.
90 Nev. 50, 51 (1974) Elsbury v. State
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney and
Gregory D. Corn, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Evidence of other crimes, wrongs or acts is generally not admissible to prove the character of a person,
but may be introduced to show motives, common scheme or plan, or, in the case of a narcotic offense,
knowledge of narcotic nature of substance. NRS 48.045, subd. 2.
2. Criminal Law.
Determination of whether to admit evidence of separate and independent criminal acts rests within the
sound discretion of the trial court, but it is the duty of that court to strike a proper balance between the
probative value of the evidence and its prejudicial dangers. NRS 48.045, subd. 2.
3. Criminal Law.
Generally, evidence of other crimes, committed by other persons, is not admissible.
4. Criminal Law.
Where defendant testified that he sold hashish to certain persons on the alleged dates, allegedly because
he was afraid of one of them, and did not assert that he did not know the narcotic nature of the substance
sold, it was error to admit rebuttal testimony to the effect that one of such persons purchased contraband
from another party at defendant's abode in defendant's presence but such error was harmless in light of the
very substantial evidence of defendant's guilt. NRS 48.045, subd. 2, 178.598, 453.096, 453.161, subd.
4(j), 453.336.
OPINION
By the Court, Batjer, J.:
Two grand jury indictments returned against the appellant on December 16, 1971 were
consolidated for trial. One indictment charged the appellant with willfully and unlawfully
selling a proscribed narcotic, hashish, to Harvey L. Olson on November 4, 1971.
1
The other
indictment charged the same offense for a sale to Ralph Henry Clay, Jr., on November 8,
1971.
Appellant was found guilty on both charges and sentenced to a term of four years in
prison.
In asking this court to overturn his conviction, appellant's only contention is that the trial
court committed reversible error when it permitted the prosecution to present evidence
that on November 19, 1971, Clay purchased contraband from another party at appellant's
abode.
____________________

1
On the dates involved hashish was classified as a proscribed narcotic. Since January 1, 1972, hashish has
been classified as a controlled substance. NRS 453.096, NRS 453.161(4)(j), and NRS 453.336. See Stats. of
Nev. 1971, ch. 667, p. 1999 et seq.
90 Nev. 50, 52 (1974) Elsbury v. State
error when it permitted the prosecution to present evidence that on November 19, 1971, Clay
purchased contraband from another party at appellant's abode.
At trial, appellant testified that Olson was present at both of the sales for which he was
charged, that he knew Olson as a violent and dangerous person, and that he feared him and
made the sales only under the duress of Olson's presence.
The challenged evidence was offered in rebuttal by the prosecution. They proposed to call
Clay to testify that, on a subsequent occasion, he and Olson had gone to appellant's house
seeking to buy some hashish. The appellant was there, and Clay asked him if he had any more
of that particular contraband. Appellant turned to a companion and asked: Do you have any
of that stuff on you? Thereafter, his companion transacted a sale of a quantity of hashish to
Clay.
The lower court, prior to admitting this evidence, excused the jury from the courtroom,
heard the testimony, and then ruled that the evidence would be admitted for the limited
purpose of showing intent and knowledge as an exception to NRS 48.045(2). Upon
conclusion of Clay's challenged testimony the trial court instructed the jury that the evidence
was being admitted for the limited purpose of showing intent or knowledge relating to the
two sales for which appellant had been indicted.
[Headnote 1]
Evidence of other crimes, wrongs or acts are generally not admissible to prove the
character of a person. NRS 48.045(2).
2

Nevertheless, such evidence may be introduced to show motives, State v. Cerfoglio, 46
Nev. 331, 201 P. 322 (1923); intent, Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965);
identity, Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959); or a common scheme or
plan, Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967). [W]here the charge is a narcotic
offense, other prior similar offenses may sometimes be received to show the defendant's
knowledge of the narcotic nature of the substance sold. Lindsay v. State, 87 Nev. 1, 478 P.2d
1022 (1971).
[Headnote 2]
Although the determination of whether to admit or exclude evidence of separate and
independent criminal acts rests within the sound discretion of the trial court, it is,
nevertheless, the duty of court to strike a proper balance between the probative value of
the evidence and its prejudicial dangers.
____________________

2
NRS 48.045(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.
90 Nev. 50, 53 (1974) Elsbury v. State
evidence of separate and independent criminal acts rests within the sound discretion of the
trial court, it is, nevertheless, the duty of court to strike a proper balance between the
probative value of the evidence and its prejudicial dangers. Brown v. State, 81 Nev. 397, 404
P.2d 428 (1965); State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963); Nester v. State of
Nevada, supra.
At trial, appellant testified that he had sold hashish to Olson and Clay on the alleged dates.
3
Nowhere in the record does he contend that he did not know the narcotic nature of the
substance sold. In Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 213 (1970), this court said:
We perceive no harm in the requirement that the state prove, as an element of the offence,
the defendant's knowledge of the narcotic character of marijuana. This does not inevitably
require proof of other offense. In those cases where such proof is not needed, the trial court,
in its discretion, should rule out that evidence since its prejudicial effect would outweigh
probative value.
[Headnote 3]
Since appellant admitted the charged sales, additional evidence was not needed to prove
that he knew the narcotic nature of the substance sold or that he intended to commit the
criminal act.
4
Furthermore, it is the general rule that evidence of other crimes, committed by
other persons, is not admissible. Conforte v. State, 77 Nev. 269, 362 P.2d 274 (1961);
Cranford v. State, 76 Nev. 113, 349 P.2d 1051 {1960); State v. Helm, 66 Nev. 2S6
____________________

3
In response to a direct question by his attorney concerning the sale of hashish on November 4, 1971, the
appellant testified:
Mr. Olson asked me if I would sell him a gram of hash and I figures the only way to get rid of him and get
him out of my house beside telling him to go, because that might create some ill feelings with him, I just sold
him a gram. I sold him a gram to get him out of my house.
In response to a direct question by his attorney concerning the sale of hashish on November 8, 1971, the
appellant testified:
Well I told him no. Then Olson told me that this friend of his, he didn't use his name of Ralph Clay, he said
this friend came all the was up from Las Vegas and he was in town visiting Harvey that night and he wanted to
get stoned. And so I told him, it was sort of a sob story, you know, a friend coming all the way up, and I told
him, to try to get rid of them, to try to get them out of my house. I told him that I would sell it to them for $10.00
a gram, which was an outrageous price and hoping that they might leave. And Olson said Well Five sounds like
a more reasonable price.' And so I said, Sure, ok, Five.' And I had 3 grams on my possession and I told him I
would give him 3 for Fifteen Dollars.

4
Cf. the Glosen v. Sheriff cases, 85 Nev. 145, 451 P.2d 841 (1969), and 85 Nev. 166, 451 P.2d 843 (1969),
where the accused represented that he was selling contraband.
90 Nev. 50, 54 (1974) Elsbury v. State
Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960); State v. Helm, 66 Nev. 286, 209 P.2d
187 (1949).
[Headnote 4]
Although the trial court erred in admitting the rebutted testimony of Clay, a review of the
record reveals very substantial evidence of the appellant's guilt. Had the error not been
committed it is apparent that the same result would have been reached. See NRS 178.598.
5

The judgment is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________________

5
NRS 178.598: Any error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.
____________
90 Nev. 54, 54 (1974) Turner v. Saka
TONDELAYO S. J. JACKSON TURNER and KENNETH
TURNER, Appellants, v. ELIAS SAKA, Respondent.
No. 7220
February 4, 1974 518 P.2d 608
Appeal from order granting petition for writ of habeas corpus relating to child custody,
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Habeas corpus proceeding respecting custody of children, where putative father sought to
enforce New Jersey order requiring delivery of custody to father in New Jersey. The district
court granted petition, and respondent appealed. The Supreme Court, Gunderson, J., held that
New Jersey court's ex parte order to show cause, which purported to indefinitely divest
mother of custody of her allegedly illegitimate children, was void for lack of notice required
by due process, where no facts were presented to New Jersey court demonstrating any real
danger to immediate and irreparable injury either to children or to claimed rights of putative
New Jersey father of proportions sufficiently grave to require mother who was residing in
Nevada to deliver children to punitive father in New Jersey.
Reversed with instructions to dismiss petition; respondent's application for stay
order denied.
[Rehearing denied March 6, 1974] Peter L.
90 Nev. 54, 55 (1974) Turner v. Saka
Peter L. Flangas, of Las Vegas, for Appellants.
Robert N. Peccole, of Las Vegas, and Joel D. Siegal, of Newark, N.J., for Respondent.
1. Habeas Corpus.
District court order honoring ex parte New Jersey court order as a matter of comity, and on that basis
granting father temporary custody of children through writ of habeas corpus, was appealable. NRAP 3A.
2. Constitutional Law.
New Jersey court's ex parte order to show cause, which purported to indefinitely divest mother of custody
of her allegedly illegitimate children, was void for lack of notice required by due process, where no facts
were presented to New Jersey court demonstrating any real danger of immediate and irreparable injury
either to children or to claimed rights of putative New Jersey father of proportions sufficiently grave to
require mother who was residing in Nevada to deliver children to punitive father in New Jersey.
3. Bastards.
In Nevada, custodial rights as to illegitimate children repose in mother from time of birth, although
such rights may be judicially terminated if she be proved unfit.
4. Bastards.
Under Nevada and New Jersey law, father of illegitimate child is permitted to establish his paternity and
to have his parental obligations and visitation privileges declared.
5. Parent and Child.
Rule relating to temporary restraining orders does not dispense with requirement that there be either
notice or showing of necessity before existing custody rights are disturbed. NRCP 65(f).
6. Courts.
Even if New Jersey court could constitutionally enter ex parte order requiring mother of allegedly
illegitimate children to deliver such children to putative father in New Jersey from where they resided in
Nevada, such order would not be enforced as a matter of comity by Nevada court, at least where no danger
of immediate and irreparable injury appeared.
OPINION
By the Court, Gunderson, J.:
[Headnotes 1, 2]
The mother of two illegitimate children here challenges an order of our district court
which honored an ex parte New Jersey court order as a matter of comity, and on that basis
granted the father temporary custody through a writ of habeas corpus.1 In our view, the
New Jersey court's order is not entitled to "comity," because it was entered under
circumstances offensive to our understanding of procedural due process.
90 Nev. 54, 56 (1974) Turner v. Saka
habeas corpus.
1
In our view, the New Jersey court's order is not entitled to comity, because
it was entered under circumstances offensive to our understanding of procedural due process.
Hence, we reverse with instructions to dismiss the father's petition. We also deny an
application the father has filed in this court, asking us to stay adoption proceedings in the
court below.
From pleadings filed in our district court, it seems that about 1965 respondent Saka, a
married man in his forties, commenced a relationship with appellant Tondelayo (Jackson)
Turner, seventeen, which resulted in the birth of a girl in 1966, and a boy in 1967. For
disputed periods of time, Tondelayo left the children with Saka and his wife in New Jersey.
Ultimately, she met and married appellant Kenneth Turner in Nevada. Then, apparently, Mrs.
Turner felt able to care for her children. Her husband desired to adopt them. Together, they
journeyed to New Jersey, recovered possession of the children on December 26, 1972, and
returned with them to Nevada.
On January 3, more than a week later, Saka and his wife filed a Verified Complaint in
the Superior Court for Monmouth County, New Jersey, purporting to institute a civil action
entitled: ELIAS SAKA and SOLANGE SAKA, his wife, Plaintiffs, vs. KENNETH
TURNER and TONDELAYO S. J. JACKSON TURNER, his wife, Defendants. In addition
to rather vague allegations made on information and belief which apparently were intended
to show Mrs. Turner's bad character, the complaint's first count recited that having
abandoned her children to the Sakas, she thereafter had fraudulently regained their
possession and, with Kenneth Turner, had illegally removed them from New Jersey,
contrary to their best interests. The second count alleged that, as a result, the Turners were
guilty of the tort of fraud and deceit herein. The third count incorporated prior averments,
with the further allegation that [t]his cruel abuse of the children by reason of their false
imprisonment has caused plaintiffs considerable anguish, pain and suffering and is contrary to
the best interests of the children. The prayer asked (a) permanent care and custody; (b)
temporary care and custody pending determination of the action; (c) immediate return of the
children; {d) a permanent injunction against taking the children; {e) a temporary
injunction; and {f) damages, costs and attorneys' fees.
____________________

1
Our district court's order is appealable. NRAP 3A; Dean v. Kimbrough, 88 Nev. 102, 492 P.2d 988 (1972).
Pending appeal, the writ has been stayed.
90 Nev. 54, 57 (1974) Turner v. Saka
children; (d) a permanent injunction against taking the children; (e) a temporary injunction;
and (f) damages, costs and attorneys' fees.
Also on January 3, with the ostensible justification that an immediate emergency existed,
the Sakas' counsel induced the New Jersey court to execute an Order to Show Cause, based
on assertions set forth in the Sakas' complaint and in affidavits filed therewith.
2
Entered ex
parte without any hearing or notice whatever, this Order to Show Cause purportedly
required the Turners to deliver the children to Saka in New Jersey immediately, enjoined
them from taking the children from Saka's custody, and directed them to show cause on
January 26 why such relief should not remain in full force and effect pending the final
determination by this Court of the matter set forth in the Complaint herein.
3
The Order to
Show Cause" also purported to require the Turners to answer the complaint,4 and to
grant them leave to seek dissolution or modification of the ex parte order.5
____________________

2
As set forth later, we believe that even as presented to the New Jersey court, the circumstances of the case
reflected no emergency of sufficient proportions to justify entry of this ex parte order. Moreover, it appears the
Sakas' New Jersey counsel omitted to reveal facts a court might well wish to take into account in determining
whether, indeed, an immediate threat existed to the well-being of the children in question. In oral argument to us,
counsel acknowledged knowing that Mrs. Turner's husband was Dr. Kenneth Turner, who has been a physician
in Las Vegas for a number of years. Counsel also acknowledged that a friendly relationship had prevailed
between Saka and Dr. Turner, that Saka had introduced the Turners and indeed had been the best man at their
wedding. In the documents counsel prepared to induce the New Jersey court to enter its ex parte order, however,
he revealed none of this, and even avoided intimating Dr. Turner's professional status to the court, by alluding to
him as Mr. Turner.
In passing we also note, only to illustrate the dangers of deciding facts ex parte, and not intending to engage
in the practice ourselves, that the document Saka's New Jersey counsel presented to the New Jersey court may
also have been inaccurate in depicting Saka as a pillar of his community. Our file contains a copy of a police
officer's affidavit, originally prepared to obtain a warrant for Saka's arrest after he attempted to take the children
from the Turners by force, in company with a local prostitute and a reputed thug. That affidavit, brought to our
attention as part of the Turners' opposition to an application by Saka for dissolution of our district court's stay
order, recites: It should also be noted that ELIAS SAKA aka LEWIS SAKA has an extensive arrest record
dating from 1939 to 1969, and for a convicted person for Theft in an Interstate Commerce, . . .

3
ORDERED that defendants, Kenneth Turner and Tondelayo S. J. Jackson Turner, their agents and
servants, be and they are hereby directed to return said children immediately to the actual care and custody of
plaintiff Elias Saka at the residence of Mr. Saka and his wife, Solange Saka, at 83 Poplar Avenue, Deal, New
Jersey pending a
90 Nev. 54, 58 (1974) Turner v. Saka
Cause also purported to require the Turners to answer the complaint,
4
and to grant them
leave to seek dissolution or modification of the ex parte order.
5

On January 4, copies of the Order to Show Cause were delivered to the Turners, together
with copies of the Sakas' Verified Complaint. Then, on January 8, Saka's Petition for Writ
of Habeas Corpus was filed in our Eighth Judicial District Court, alleging Saka legally
entitled to the children's custody by virtue of the Order to Show Cause.
6
Our district
court's master calendar judge ordered the Turners to file a return to Saka's petition, which
they did January 10, denying allegations concerning Mrs.
____________________
determination by this Court of the return day of this Order to Show Cause; and it is further
ORDERED that the defendants, their agents and servants, be and they are hereby enjoined and restrained
from taking said children from plaintiff Elias Saka's custody without the order of this Court, and from in anywise
threatening or planning so to do pending said determination by this Court on the return day herein; and it is
further
ORDERED that defendants show cause before the Superior Court of New Jersey, Chancery Division on the
26th day of January, 1973 at 9:00 o'clock in the forenoon at the second floor of the Monmouth County Court
House in the Borough of Freehold, County of Monmouth and State of New Jersey, why the defendants should
not be enjoined and restrained in accordance with the demands in the said Complaint and more particularly, why
the relief granted above should not remain in full force and effect pending the final determination by this Court
of the matter set forth in the Complaint herein, . . .

4
ORDERED that defendants are required to serve upon Hellring, Lindeman & Landau, Esqs., whose
address is 1180 Raymond Boulevard, Newark, New Jersey 07102, Attorneys for plaintiffs, an Answer to the
Complaint within thirty-five (35) days after service of this Order to Show Cause, exclusive of the day of service
and that said defendants are required to file their Answer and proof of service in duplicate, with the Clerk of the
Superior Court, State House Annex, Trenton, New Jersey, . . .

5
ORDERED that defendants shall have leave to move to dissolve or modify the relief herein imposed upon
not more than two (2) days' notice; . . .

6
After alleging facts concerning the children's birth, supposed abandonment, and deceitful repossession,
the petition recited:
7. Upon obtaining the removal of the said minor children from Petitioner's home, TONDELAYO S. J.
JACKSON TURNER and her husband, KENNETH TURNER, removed the two minor children from the State
of New Jersey to Clark County, Nevada, where said minor children are presently being held against their will
and in violation of a New Jersey Court Order.
Thereafter, the petition recited details of the entry and service of the Order to Show Cause, and the
Turners' supposed violation of it. The petition revealed no clear theory for Saka's claim to the children, except
that the New Jersey court had granted him their custody by its ex parte order. In response to the Turners'
contentions that our district court erred in ruling without an evidentiary hearing, his New Jersey
90 Nev. 54, 59 (1974) Turner v. Saka
return to Saka's petition, which they did January 10, denying allegations concerning Mrs.
Turner's character, supposed abandonment of the children, and deceitful methods of
recovering them. In addition, the Turners' counsel filed legal Points and Authorities,
contending that the New Jersey court's order was void for want of jurisdiction. Without
treating that contention, on January 23 our district court foreclosed an evidentiary hearing
and, relying principally on Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966), enforced the
New Jersey court's order on the basis of comity.
We believe our district court erred in failing to address the threshold issue of jurisdiction.
1. We do not deem Lyerla v. Ramsay, cited above, to be controlling here. In that case, we
held Nevada properly could ignore a Kansas order which purported to grant a father full
custody of a minor child, in derogation of a binding Nevada order entered shortly before.
7
Discussion of comity was unnecessary to our decision. See: 82 Nev. at 254, 415 P.2d at
625.
More important, in Lyerla v. Ramsay, we prefaced our discussion of full faith and credit
and of comity with the observation that "[a]t the various times involved each court had
due process jurisdiction to rule, as both parents appeared and the child was present
within the state where a change in custody was sought."
____________________
counsel advised us, in essence, that Saka's habeas petition was grounded solely on the ex parte order. In oral
argument counsel stated:
The ancient writ can have two purposes. You can go into a state and use habeas corpus to obtain a final
determination on custody, if you want to, or you can bring a complaint to determine custody. This is not what we
did. . . . All we did is, consistent with all the authorities and cases, is to use the writ of habeas corpusand
drafted it very carefully to make sure that we were using it properlywas to have the infants released from their
improper, from the way that they were improperly held at the time, which is the traditional notion of habeas
corpus. And they were being improperly held at that time because of an order from the State of New Jersey, from
a court of competent jurisdiction. . . .
We therefore assume that Saka's habeas petition was based on no grounds other than that his counsel now
claims; hence, it presents no factual issue requiring remand for an evidentiary hearing.

7
In this regard, we said:
Yet there is nothing in the record to show that a change of circumstances occurred between July 6, 1964,
when Nevada ruled, and July 28, 1964, when Kansas vested full custody in the father. Therefore, it is clear that
Kansas did not give the Nevada order the protection of full faith and credit. The very circumstances Kansas
considered had been litigated and decided in Nevada just 22 days earlier.
If full faith is to be accorded a child custody order, Kansas was without power to change custody on July
28, 1964, absent a showing of changed circumstances. That showing was not made. Therefore, we are free to
disregard the Kansas order. [Citations omitted.] 82 Nev. at 253, 415 P.2d at 624-625.
90 Nev. 54, 60 (1974) Turner v. Saka
observation that [a]t the various times involved each court had due process jurisdiction to
rule, as both parents appeared and the child was present within the state where a change in
custody was sought. 82 Nev. at 251, 415 P.2d at 623. Here, when the New Jersey court
entered its ex parte order, the facts were otherwise.
[Headnotes 3, 4]
2. In Nevada and, it seems, under New Jersey law, custodial rights as to illegitimate
children repose in the mother from the time of birth, although such rights may be judicially
terminated if she be proved unfit, and although both states permit the father to establish his
paternity, and to have his parental obligations and visitation privileges declared.
8
The
Turners contend that, with Mrs. Turner and her children in Nevada, the New Jersey court
could not obtain jurisdiction
____________________

8
A New Jersey statute declares:
The mother of an illegitimate child, whether married or single, shall have the exclusive right to its custody
and control and the putative father of such child shall have no right of custody, control or access to such child
without the mother's consent. If, however, it is proved that the mother is unfit to have the custody and control of
such child, the Superior Court or any other court which may have jurisdiction in the premises may make any
order touching the custody or control of such child which might heretofore have been made.
This section is intended to be declaratory of the existing law upon this subject and it shall, under no
circumstances, be construed as an implication that the rights of such a mother have hitherto been less than as
herein above defined.
Thus, adoption of an illegitimate child based on the mother's consent is binding on the father. In Re T., 230
A.2d 526 (N.J.App.Div. 1967). However, it seems a father may bring an action to establish his paternity, and to
have his parental obligations and visitation rights declared. R. v. F., 273 A.2d 808 (N.J. Juv. & Dom. Rel. Ct.
1971).
Although Nevada has not defined the custodial rights of unwed mothers so specifically as has New Jersey,
we believe that here also such rights initially repose in the mother, from time of birth. Several Nevada statutes
recognize that, at least until paternity is judicially determined, the mother of an illegitimate child is the prime
repository of parental rights. Consent to adoption may be given by [t]he mother only of a child born out of
wedlock except that if parental rights have been established in a court of competent jurisdiction by the father of
such a child, pursuant to NRS 41.530, his consent shall be required; . . . NRS 127.040(c); cf. Flowers v. Scott,
88 Nev. 254, 495 P.2d 610 (1972). The mother and her heirs have the sole right to inherit from an illegitimate
child who dies intestate, unless the child is acknowledged or legitimatized before its death. NRS 134.170; NRS
134.180. In addition, in the case of any child of tender years, the mother is the preferred custodian unless she is
unfit. Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969).
See also: Z v. A, 320 N.Y.S.2d 997 (N.Y.App.Div. 1971).
90 Nev. 54, 61 (1974) Turner v. Saka
to affect her parental rights. Cf. May v. Anderson, 345 U.S. 528 (1953). To the contrary, Saka
contends that New Jersey could obtain in personam jurisdiction over the Turners, because
New Jersey has a long-arm statute applicable to the counts in the Sakas' Verified
Complaint. Also, the Sakas contend that, inasmuch as the children previously were present
there, New Jersey could assume in rem jurisdiction over them to provide for their well-being,
even if out-of-state process would not provide such in personam jurisdiction over the Turners
as would justify a money judgment. We need not resolve these questions, which would impel
us to search for the New Jersey long-arm statute alluded to by counsel, to consider its
applicability to counts in the Verified Complaint, to ponder the constitutionality of
applying it in these facts, and to reflect about the suggested in rem power of the New
Jersey court over Mrs. Turner's children. Here, our decision may rest on the fact that the
Sakas gave Mrs. Turner no notice whatever, before asking the New Jersey court to enter its ex
parte Order to Show Cause, divesting her temporarily of her parental rights.
For present purposes, we may assume the Sakas' Verified Complaint states a cause of
action, concerning which New Jersey has authorized service of process elsewhere; that, if
such action be in personam, the Turners' venture into New Jersey, to retrieve the children,
was sufficient contact with that state to justify personal service in Nevada; or that the
children's prior presence provides a basis for jurisdiction in rem. Assuming all this, still we
must consider whether the New Jersey court, on the basis of the ex parte application and
showing made by Saka's counsel, could enter the order it did, prior to and not based on any
service of process whatever, mandating Mrs. Turner to deliver her children to Saka, 3,000
miles from her home in Nevada. If that ex parte order was contrary to procedural due process,
as we understand that concept, then we believe we must hold that our district court erred in
honoring such order as a matter of comity.
3. Regarding the question thus posed, decisions of this court, holdings of the United
States Supreme Court, and (from what Saka's counsel tell us) New Jersey law also, all impel
the conclusion that ex parte entry of the Order to Show Cause was impermissible. In
Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972), we recently reiterated how this
court historically has viewed ex parte orders:
For a century, our settled law has been that any special' motion involving judicial
discretion that affects the rights of another, as contrasted to motions 'of course,' must be
made on notice even where no rule expressly requires notice to obtain the particular
order sought, except only when this requirement is altered to meet extraordinary
situations such as those concerned in NRCP 65{b).
90 Nev. 54, 62 (1974) Turner v. Saka
another, as contrasted to motions of course,' must be made on notice even where no rule
expressly requires notice to obtain the particular order sought, except only when this
requirement is altered to meet extraordinary situations such as those concerned in NRCP
65(b). Pratt v. Rice, 7 Nev. 123 (1871); NRCP 6(d). It is also fundamental that although an
order's subject matter would lie within the court's jurisdiction if properly applied for, it is void
if entered without required notice. Our authorities establishing this principle are as old as
Wilde v. Wilde, 2 Nev. 306 (1866), and as recent as Reno Raceway, Inc. v. Sierra Paving,
Inc., 87 Nev. 619, 492 P.2d 127 (1971). It makes no difference that a void order may concern
a matter committed to the court's discretion, such as discovery,' regarding which the court
might have granted protective orders had a proper application been made. Cf. Checker, Inc. v.
Public Serv. Commn., 84 Nev. 623, 446 P.2d 981 (1968); Cf. Ray v. Stecher, 79 Nev. 304,
383 P.2d 372 (1963); cf. Whitney v. District Court, 68 Nev. 176, 227 P.2d 960 (1951); cf.
Abell v. District Court, 58 Nev. 89, 71 P.2d 111 (1937). 88 Nev. at 34, 493 P.2d at 714.
9

These Nevada standards of procedural due process seem consistent with pronouncements
of the United States Supreme Court. Most of that tribunal's recent decisions on the subject are
cited and discussed in Fuentes v. Shevin, 407 U.S. 67 (1972), in which the Court said:
For more than a century the central meaning of procedural due process has been clear:
Parties whose rights are to be affected are entitled to be heard; and in order that they may
enjoy that right they must first be notified.' Id. at 80. If the right to notice and a hearing is to
serve its full purpose, then, it is clear that it must be granted at a time when the deprivation
can still be prevented. Id. at 81. This Court has not . . . embraced the general proposition
that a wrong may be done if it can be undone. Id. at 82. That the hearing required by due
process is subject to waiver, and is not fixed in form does not affect its root requirement that
an individual be given an opportunity for a hearing before he is deprived . . . except for
extraordinary situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event." Id. at S2; emphasis in original. "[I]t is now
well settled that a temporary, nonfinal deprivation . . . is nonetheless a 'deprivation' in the
terms of the Fourteenth Amendment." Id. at S4-S5. "The Fourteenth Amendment draws
no bright lines around three-day, 10-day or 50-day deprivations . . ." Id. at S6. "[U]ltimate
right to continued possession was, of course, in dispute. . . .
____________________

9
In regard to ex parte orders generally, and the circumstances under which notice and hearing properly may
be dispensed with or deferred, see especially: Pratt v. Rice, 7 Nev. 123 (1871).
With regard specifically to ex parte orders affecting established custody rights, see: Abell v. District Court, 58
Nev. 89, 71 P.2d 111 (1937); Whitney v. District Court, 68 Nev. 176, 227 P.2d 960 (1951); and NRS 125.060.
90 Nev. 54, 63 (1974) Turner v. Saka
after the event. Id. at 82; emphasis in original. [I]t is now well settled that a temporary,
nonfinal deprivation . . . is nonetheless a deprivation' in the terms of the Fourteenth
Amendment. Id. at 84-85. The Fourteenth Amendment draws no bright lines around
three-day, 10-day or 50-day deprivations . . . Id. at 86. [U]ltimate right to continued
possession was, of course, in dispute. . . . But . . . that is immaterial here. The right to be
heard does not depend upon an advance showing that one will surely prevail at the hearing.
Id. at 87. There are extraordinary situations' that justify postponing notice and opportunity
for a hearing. . . . These situations, however, must be truly unusual. Only in a few limited
situations has this Court allowed outright seizure without opportunity for a prior hearing. Id.
at 90-91.
[Headnote 5]
Saka's counsel has not suggested to us that New Jersey has less stringent standards; indeed,
counsel concedes New Jersey's rule concerning restraining orders is couched in substantially
the same language as Nevada Rule of Civil Procedure 65.
10
Thus, we turn to consider
whether the "Verified Complaint" and affidavits presented to the New Jersey court set
forth specific facts clearly demonstrating a real danger of immediate and irreparable
injury either to the children, or to Saka's claimed rights, of proportions sufficiently grave
to justify entry of the particular order in question, without notice.
____________________

10
NRCP 65(b) provides, inter alia:
Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted
without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts
shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result
to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's
attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the
reasons supporting his claim that notice should not be required. . . . On 2 days' notice to the party who obtained
the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe,
the adverse party may appear and move its dissolution or modification and in that event the court shall proceed
to hear and determine such motion as expeditiously as the ends of justice require.
New Jersey Court Rule 4:52-1(a) provides in part:
. . . The order to show cause shall not, however, include any temporary restraints against the defendant unless
he has either been given notice of the application or consents thereto or it appears from specific facts shown by
affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before
notice can be served or informally given and a hearing had thereon. . . .
A Comment in Gann Law Books' annotated edition of the 1969 New Jersey Court Rules indicates that,
therefore, not only must the probable immediate and irreparable damage be substantial, but because of the
extremity of the remedy of a restraint without notice, the revised rule requires that the restraint not be granted ex
parte it immediate informal notice can be given. We note that the Turners
90 Nev. 54, 64 (1974) Turner v. Saka
Thus, we turn to consider whether the Verified Complaint and affidavits presented to the
New Jersey court set forth specific facts clearly demonstrating a real danger of immediate and
irreparable injury either to the children, or to Saka's claimed rights, of proportions sufficiently
grave to justify entry of the particular order in question, without notice.
In our view, no such showing was made. Instead, it clearly appeared that the Turners had
an established residence in Las Vegas, where the children had been more than a week.
Although Saka's affidavit recited hearsay that the children had been seen crying, it presented
no substantial basis for believing they were uncared for, or would be subject to any enduring
injury or trauma because of being with their mother. True, the documents attempted to show
Mrs. Turner was of poor character, referring to alleged prior promiscuity, and to a violent
altercation with another juvenile which supposedly caused Mrs. Turner's protective detention
at age 15; but we doubt New Jersey would consider those facts, even if ultimately proved,
present evidence of Mrs. Turner's unfitness. Cf. Ex Parte Malley, 25 A.2d 630 (N.J. Ch.
1942). In any event, we have no doubt that the creative prose of Saka's New Jersey counsel
fell short of establishing such an emergency as would justify ordering a mother, with prima
facie legal right to her children, to deliver them to a putative father some 3,000 miles away.
On the facts of this case, we believe such counsel could not properly dispense with notice and
proceed ex parte.
[Headnote 6]
4. In view of the foregoing, we consider the New Jersey court's Order to Show Cause
void for want of notice insofar as it purported to divest Mrs.
____________________
were not given even informal notice although the Sakas' application was not presented to the New Jersey court
for eight days after the Turners departed with the children, and although the Turners' whereabouts were so well
known that they could be served in Nevada with the ex parte order the day following its entry in new Jersey.
In oral argument before this court, Saka's New Jersey counsel alluded to (but did not cite) another New Jersey
rule, which he says is similar to our NRCP 65(f). Our rule provides:
When Inapplicable. This rule is not applicable to suits for divorce, alimony, separate maintenance or custody
of children. In such suits, the court may make prohibitive or mandatory orders, with or without notice or bond, as
may be just.
Although NRCP 65(f) may be read to envision somewhat greater flexibility and less formality in domestic
matters than in other litigations, still we do not read it as dispensing with the requirement that there be either
notice or a showing of necessity before existing custody rights are disturbed. An order entered without one or the
other simply is not just.
90 Nev. 54, 65 (1974) Turner v. Saka
as it purported to divest Mrs. Turner temporarily (i.e. indefinitely) of custody of her
children. Cf. In re Groen, 60 P. 123 (Wash. 1900). Of course, we would not permit our court
to enforce an unconstitutional order. Moreover, even assuming the New Jersey court could
constitutionally proceed without notice as it did, we would decline to enforce that order as a
matter of comity; for we consider the entry of an ex parte order so radical, on a showing so
minimal, to offend sound public policy. Cf. Fantony v. Fantony, 122 A.2d 593, 596-597 (N.J.
1956).
The order appealed from is reversed; the district court is instructed to dismiss Saka's
petition for writ of habeas corpus; respondent Saka's application for a stay of adoption
proceedings is denied. In accord with NRS 18.060, appellants are allowed their costs on
appeal, upon proper filing of a cost bill.
Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 65, 65 (1974) Hernandez v. State
LUIS LORENZO HERNANDEZ, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7426
February 6, 1974 519 P.2d 107
Appeal from certification proceeding; Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
From an order of the district court certifying juvenile to stand trial as an adult for crime of
involuntary manslaughter, juvenile appealed. The Supreme Court held that juvenile was
charged with a felony for purposes of permitting him to be certified.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.
Garner, Chief Deputy District Attorney, and Addeliar D. Guy, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Prior to judgment, an offense which is punishable either by imprisonment in state prison or confinement
in county jail is deemed a felony for all purposes and remains a felony until court
imposes a lesser sentence.
90 Nev. 65, 66 (1974) Hernandez v. State
deemed a felony for all purposes and remains a felony until court imposes a lesser sentence.
2. Infants.
Though district court may impose lesser sentence than imprisonment in state prison for involuntary
manslaughter offense, juvenile charged with such offense was charged with a felony for purposes of
permitting him to be certified to stand trial as an adult. NRS 62.080, 193.120, subd 2, 200.090.
OPINION
Per Curiam:
The appellant, a juvenile, was certified to stand trial as an adult for the crime of
involuntary manslaughter. Certification is authorized if the crime charged would be a felony
if committed by an adult, NRS 62.080. Since the punishment for involuntary manslaughter
may be either state prison confinement, a felony, or county jail confinement, a gross
misdemeanor [NRS 200.090], the appellant contends that certification is impermissible. This
contention ignores NRS 193.120(2) which provides that every crime which may be punished
by death or imprisonment in the state prison is a felony.
[Headnotes 1, 2]
Prior to judgment, an offense which is punishable either by imprisonment in the state
prison or confinement in the county jail is deemed a felony for all purposes and remains a
felony until the court imposes a lesser sentence. Brooks v. Superior Court, 48 Cal.Rptr. 762,
764 (Cal.App. 1966); People v. Cline, 75 Cal.Rptr. 459, 462 (Cal.App. 1969). Since
involuntary manslaughter may be punished by imprisonment in the state prison it is a felony
for the purposes of certification even though the district court may decide to impose a lesser
sentence.
Affirmed.
____________
90 Nev. 67, 67 (1974) McCorquodale v. Holiday, Inc.
MYRTIS McCORQUODALE, as Administratrix of the Estate of FELTON D.
McCORQUODALE, Deceased, Appellant, v. HOLIDAY, INC., a Nevada Corporation,
Respondent.
No. 7144
February 6, 1974 518 P.2d 1097
Appellant, as the administratrix of the estate of Felton D. McCorquodale, deceased,
commenced an action for the purpose of recovering 8,100 shares of the capital stock of
respondent Holiday, Inc. on behalf of the estate. Appeal is from judgment of the Second
Judicial District Court, Washoe County, Thomas O. Craven, Judge, denying appellant's claim
to the stock.
The Supreme Court, Zenoff, J., held that a security interest under Uniform Commercial
Code will not attach until there is an agreement that it attach, value is given, and debtor has
rights in the collateral, and that evidence supported finding that agreement between owner of
stock and deceased for purchase of stock by deceased was subject to condition precedent that
stock would not be delivered to deceased until note was paid in full.
Affirmed.
[Rehearing denied March 14, 1974]
Wiener, Goldwater & Galatz, Ltd., Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of
Las Vegas, for Appellant.
Bradley & Drendel, Ltd., of Reno, for Respondent.
1. Secured Transactions.
A security interest under Uniform Commercial Code will not attach until there is an agreement that it
attach, value is given, and debtor has rights in the collateral. NRS 104.1101 et seq., 104.9204.
2. Contracts.
Promisor's purpose in attaching a condition precedent to his promise and legal effect in doing so is to
narrow promisor's obligation so that he will not have to perform if event fails and can never happen.
3. Corporations.
In action by administratrix of estate of deceased to recover corporate capital stock, evidence supported
finding that agreement between owner of stock and deceased for purchase of stock by deceased was subject
to condition precedent that stock would not be delivered to deceased until note was paid in full. NRS
104.1101 et seq., 104.9204.
90 Nev. 67, 68 (1974) McCorquodale v. Holiday, Inc.
4. Corporations.
Where delivery of stock already made out in purchaser's name was conditioned upon purchaser or his
estate tendering payment of purchase price, fact that stock was issued in purchaser's name alone was
insufficient to establish delivery vesting rights in purchaser. NRS 104.8301, 104.8313.
5. Corporations.
Where, under agreement, stock was to be retained in bank's possession and not to be delivered to buyer
until note was paid in full by buyer, without delivery to buyer, he had no right in stock nor would he
receive any rights in form of remedies until be or his estate tendered payment of purchase price. NRS
104.8301, 104.8313.
6. Corporations.
Where stock was to be retained in bank's possession and not to be delivered to buyer until note given by
buyer was paid in full, seller retained ownership of stock and was entitled to return certificate to
corporation for cancellation when administratrix of buyer failed to tender payment on due date.
OPINION
By the Court, Zenoff, J.:
Thomas C. Moore and Austin Hemphill became owners of the Holiday Hotel in Reno, the
trade name for Holiday, Inc., which included a casino entity known as Carda Hotels, Inc.
Felton McCorquodale was in charge of the poker game operated in the casino. He had a
family history of early death from heart condition and was already very ill at the time the
events that led to this litigation took place.
Concerned for the welfare of his wife should he die, he entered into two deals, one
documented with Carda for the purchase of a small percentage of the casino operation and
another, undocumented, for the purchase of a three percent ownership in Holiday, Inc. For
each transaction, McCorquodale executed a promissory note for the agreed price. The notes
together with the certificates showing the number of shares in the respective corporations
were placed in the possession of the Valley National Bank for safekeeping. The agreement in
each case was that when McCorquodale paid his obligation the certificate already made out in
his name would be delivered to him. The transaction in Carda was completed and there is no
issue as to it.
However, the Holiday obligation fell due shortly after McCorquodale died and the bank
having received no payment on the note prior to the due date of April 1, 1970 delivered the
stock in Holiday, Inc. to Moore's representative.
90 Nev. 67, 69 (1974) McCorquodale v. Holiday, Inc.
the stock in Holiday, Inc. to Moore's representative. The certificate was then cancelled by the
corporation.
Appellant does not challenge the trial court's finding that the Holiday note was never paid,
but instead alleges that Moore held a security interest in the stock which was destroyed when
he wrongfully resorted to the security by transferring it to the corporation for cancellation.
Whether Moore held a security interest in the Holiday stock which was the subject of the
purchase agreement between Moore and McCorquodale is the decisive issue on appeal.
Appellant seeks to convert this transaction into a silk purse from a sow's ear by arguing
that the Moore-McCorquodale agreement was a secured transaction.
[Headnote 1]
A security interest under the Uniform Commercial Code will not attach until there is (1) an
agreement that it attach, (2) value is given, and (3) the debtor has rights in the collateral. NRS
104.9204; Bramble Transportation Inc. v. Sam Senter Sales, Inc., 294 A.2d 97, 10 UCC Rep.
939 (Del. Super. 1971). An initial requirement for the creation of a security interest is absent
in this case. McCorquodale's promissory note does not contain language creating a security
interest and the evidence fails to establish an agreement, either oral or written, which would
give rise to an implication that a security interest in the stock was ever created.
[Headnotes 2, 3]
The trial court concluded that the stock was to be retained in Moore's possession and that
it would not be delivered to McCorquodale until the note was paid in full not later than April
1, 1970. If the note were not paid at that time, Moore was to retain the stock. A promisor's
purpose in attaching a condition precedent to his promise and the legal effect in doing so is to
narrow the promisor's obligation so that he will not have to perform if the event fails and can
never happen. Simpson on Contracts, 144 (2d ed. 1965). The trial court's finding that the
agreement between Moore and McCorquodale was one subject to a condition precedent
receives substantial support in the record and will not be disturbed on appeal. Schieve v.
Warren, 89 Nev. 268, 510 P.2d 1367 (1973).
[Headnotes 4-6]
Furthermore there is no evidence that McCorquodale received any rights in the stock
which are alleged to have served as collateral. In Nevada the purchaser of a security acquires
upon delivery the rights in the security which his transferor had or had actual authority to
convey.
90 Nev. 67, 70 (1974) McCorquodale v. Holiday, Inc.
acquires upon delivery the rights in the security which his transferor had or had actual
authority to convey. NRS 104.8301. Delivery to a purchaser may occur when he or a person
designated by him acquires possession of the security. NRS 104.8313. The record is devoid of
evidence of delivery to McCorquodale or his agent. The fact that the stock was issued in
McCorquodale's name is alone insufficient to establish delivery. Without delivery
McCorquodale had no rights in the stock nor would he receive any rights in the form of
remedies until he or his estate tendered payment of the purchase price.
We therefore find that Moore retained ownership of the stock and was entitled to return
the certificate to the corporation for cancellation when the appellant failed to tender payment
on the due date.
Affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________
90 Nev. 70, 70 (1974) Johnson v. Marketti
EARL F. JOHNSON, Appellant, v. NORMA M.
MARKETTI, Respondent.
No. 7139
February 6, 1974 518 P.2d 1244
Appeal from judgment of the Second Judicial District Court, Washoe County; Joseph O.
McDaniel, Judge.
Action arising out of automobile accident. The district court entered judgment in favor of
plaintiff, and defendant appealed. The Supreme Court held that fact that accident occurred at
an intersection did not of itself preclude a last clear chance instruction, in view of
substantial evidence that a last clear opportunity existed for defendant to avoid the accident,
and that claim that necessary language was omitted from last clear chance instruction
amounted to a claim of nonjurisdictional error, and, where raised for first time on appeal,
would not be considered.
Affirmed.
Hibbs & Bullis, Ltd., of Reno, for Appellant.
Breen, Young, Whitehead & Hoy, Chartered, and David R. Belding, of Reno, for
Respondent.
90 Nev. 70, 71 (1974) Johnson v. Marketti
1. Automobiles.
Fact that accident occurred at an intersection did not of itself preclude a last clear chance instruction, in
view of substantial evidence that a last clear opportunity existed for defendant to avoid the accident.
2. Appeal and Error.
Claim that necessary language was omitted from last clear chance instruction amounted to a claim of
nonjurisdictional error, and, where raised for first time on appeal, would not be considered.
OPINION
Per Curiam:
This appeal is from a judgment awarding respondent $6,674.20 damages sustained in an
automobile collision in 1970, entered upon a jury verdict, and awarding $1,500 as an attorney
fee.
[Headnote 1]
Appellant's prime contention is that the trial court erred in instructing the jury on the last
clear chance doctrine. In our view, however, the record contains substantial evidence that a
last clear opportunity existed for appellant to avoid the accident. That being so, the fact that
the accident occurred at an intersection did not of itself preclude a last clear chance
instruction. Cf. Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105 (1959).
[Headnote 2]
Appellant also contends necessary language was omitted from the court's last clear
chance instruction. We decline to consider this claim of nonjurisdictional error, raised for
the first time on appeal. Cummings v. City of Las Vegas Mun. Corp., 88 Nev. 479, 499 P.2d
650 (1972); Britz v. Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971).
Other assignments of error have been considered. Upon review of the record, we find no
error affecting substantial rights of the parties. NRCP 61.
Affirmed.
____________
90 Nev. 72, 72 (1974) Led-Mil of Nev. v. Skyland Realty & Ins.
LED-MIL OF NEVADA, INC., and JACK P. LEDYARD, Appellants and
Cross-Respondents, v. SKYLAND REALTY AND INSURANCE, INC., C. J. BLEDSOE
and PAUL SWIFT, Respondents and Cross-Appellants.
No. 7187
February 6, 1974 518 P.2d 606
Appeal from judgment, and cross-appeal from summary judgment, of the First Judicial
District Court, Douglas County; Frank B. Gregory, Judge.
Action by real estate brokers on defendants alleged continuing oral promise to allow
brokers exclusive right to sell subdivided land as brokers. The district court granted
defendants summary judgment denying brokers' commission on land they had already sold,
but entered judgment for brokers for the reasonable value of their alleged work and services,
and defendants appealed from judgment, and brokers cross-appealed from summary
judgment. The Supreme Court held that the brokers could not recover either on the agreement
or in quantum meruit for the reasonable value of their alleged work and services.
On appeal, judgment reversed; on cross-appeal, summary judgment affirmed.
Laxalt, Berry & Allison, of Carson City, for Appellants and Cross-Respondents.
Daniel R. Walsh, of Carson City, for Respondents and Cross-Appellants.
1. Brokers.
Real estate brokers, acting under an exclusive listing agreement insufficient under statute requiring
exclusive listing agreement to be in writing, could not recover damages on oral promises to allow them
exclusive right to sell subdivided land as brokers. NRS 645.320.
2. Brokers.
Real estate brokers, who had no written exclusive listing agreement as required by statute and who had no
understanding or expectation that they would be paid, other than as brokers if and when they should
consummate sales of defendant's property, could not recover under quantum meruit theory on defendant's
alleged continuing oral promise to allow brokers exclusive rights to sell subdivided
land as brokers.
90 Nev. 72, 73 (1974) Led-Mil of Nev. v. Skyland Realty & Ins.
continuing oral promise to allow brokers exclusive rights to sell subdivided land as brokers. NRS
645.320.
OPINION
Per Curiam:
In Chapter 645 of the Nevada Revised Statutes. which governs the professional conduct
and activities of real estate brokers and salesmen, NRS 645.320 declares that every
exclusive listing agreement shall be in writing.
1
The instant appeal and cross-appeal are
both directly controlled by this legislative declaration of policy, as heretofore interpreted in
Bangle v. Holland Realty Inv. Co., 80 Nev. 331, 393 P.2d 138 (1964). Bangle v. Holland
decided that a broker acting under an insufficient exclusive listing agreement cannot recover
from the property owner with whom he has allegedly contracted, either on the agreement, or
in quantum meruit.
2
Respondents' Complaint contained three alternate claims, all alleging
respondents are licensed real estate brokers who have expended some 1700 hours
helping appellants subdivide their property, upon appellants' continuing oral promises to
allow respondents exclusive right to sell the subdivided land as brokers.
____________________

1
NRS 645.320 provides:
Exclusive listings: Requirements. Every exclusive listing shall:
1. Be in writing.
2. Have set forth in its terms a definite, specified and complete termination.
3. Contain no provision requiring the person signing such listing to notify the real estate broker of his
intention to cancel the exclusive features of such listing after such expiration date.
4. Be signed by both the listing property owner or his duly authorized representative and the listing agent or
his duly authorized representative in order to be enforcible.

2
In Bangle v. Holland, we said:
Before the enactment of NRS 645.320 we recognized that a property owner could be found liable upon
quantum meruit for the commission of a real estate broker to whom an oral exclusive listing was given. Close v.
Redelius, 67 Nev. 158, 215 P.2d 659. Relying upon that opinion Holland [the broker] contends that, should we
declare his exclusive listing agreement with Bangle [the owner with whom broker Holland contracted]
unenforcible (which we have done), nonetheless quantum meruit relief is available to him. He should be treated
simply as a broker who had performed services for Bangle and should be compensated. On the other hand,
Bangle argues that, by passing the exclusive listing law in 1955, the legislative intent was to forbid any recovery
by a broker who had been granted an exclusive right to sell, unless the statutory requirements are fully met. Each
argument is persuasive. However, the weight of case authority construing similar statutes precludes a quantum
meruit recovery reasoning that, if the broker were entitled to obtain the value of services, the statute would not
have the effect intended and the legislative purpose would be frustrated. Restatement, Agency, 2d 468(2);
Annot., 41 A.L.R. 2d 905; Restatement, Contracts 355(3). We choose to adopt this view. It seems to
90 Nev. 72, 74 (1974) Led-Mil of Nev. v. Skyland Realty & Ins.
Respondents' Complaint contained three alternate claims, all alleging respondents are
licensed real estate brokers who have expended some 1700 hours helping appellants
subdivide their property, upon appellants' continuing oral promises to allow respondents
exclusive right to sell the subdivided land as brokers. As damages, Count I of their
Complaint asked commissions on land appellants have already sold, plus anticipatory
damages equal to commissions on land yet unsold. Count II sought commissions on land
already sold, and specific performance to allow respondents to act as brokers for the unsold
land. Count III requested damages in quantum meruit for the reasonable value of
respondents' alleged work and services.
[Headnotes 1, 2]
Relying on NRS 645.320, the district court correctly granted appellants summary judgment
on Counts I and II, which ruling is the subject of respondents' cross-appeal. However, after
allowing a trial on Count III, the court erroneously granted respondents judgment for $24,200,
which is the subject of the appeal itself. From the pleadings and from the testimony of
respondent Swift it is clear that, when performing the acts for which they seek compensation,
respondents had no understanding or expectation that they would be paid, other than as
brokers if and when they should consummate sales of appellants' property.
As to the appeal, the judgment in respondents' favor is reversed, with instructions to
dismiss Count III of respondents' Complaint. As to the cross-appeal, the summary judgment
against respondents and cross-appellants on Count I and Count II of their Complaint is
affirmed.
____________________
us that the purpose of NRS 645.320 is best served by denying any relief to a broker or salesman, who claims an
exclusive agency to sell, unless the requirements of the statute are complied with. 80 Nev. at 335-336, 393 P.2d
at 140-141.
____________
90 Nev. 75, 75 (1974) McDowell Constr. Supply v. Williams
McDOWELL CONSTRUCTION SUPPLY CORP.,
Appellant, v. THOMAS MARK WILLIAMS, Respondent.
No. 7096
February 6, 1974 518 P.2d 604
Appeal from jury verdict and from order of court denying motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial; Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
Action against construction supply company for injuries sustained by employee of general
contractor when he was struck by falling plywood which had been delivered to jobsite by
employee of defendant, who stacked plywood pursuant to instructions given by job
superintendent. The case was tried before a jury in the district court which returned verdict in
favor of plaintiff, and defendant appealed from the verdict and from order denying its motion
for judgment notwithstanding the verdict or for new trial. The Supreme Court, Mowbray J.,
held that defendant's employee was not a loaned servant of the general contractor and thus
defendant could not avoid liability under loaned servant doctrine.
Affirmed.
Austin, Thorndal & Liles, of Las Vegas, for Appellant.
Wiener, Goldwater & Galatz, Ltd., Harland C. Hubbard, and J. Charles Thompson, of Las
Vegas, for Respondent.
1. Master and Servant.
Construction supply corporation employee who delivered plywood to construction site was merely a
deliveryman and not a loaned servant of general contractor, even though he placed the plywood at
various places at construction site indicated by the job superintendent, where supply corporation had the
sole right to hire and fire deliveryman, pay him, fix his hours of work, tell him where to work, and control
operation of forklift and loading and unloading of plywood; thus, supply corporation could not escape
liability for injuries sustained by employee of general contractor when plywood fell on him, on basis of
loaned servant doctrine.
2. Master and Servant.
When the facts bearing upon the question of the loaned servant doctrine are undisputed, the
determination of the issue is for the court.
OPINION
By the Court, Mowbray, J.:
Thomas Mark Williams, the plaintiff-respondent, commenced this action in the district
court to recover damages from the appellant-defendant, McDowell Construction Supply
Corp., for injuries Williams received when he was struck by a large stack of plywood that
fell from the rafters of a partially constructed church.
90 Nev. 75, 76 (1974) McDowell Constr. Supply v. Williams
from the appellant-defendant, McDowell Construction Supply Corp., for injuries Williams
received when he was struck by a large stack of plywood that fell from the rafters of a
partially constructed church. The plywood had been delivered to the job site by a McDowell
employee, Michael Foard, who unloaded the plywood through the use of a forklift. Pursuant
to instructions given by the superintendent of the general contractor, Tobler and Oliver
Construction Company, Foard placed the plywood on a special support in the rafters of the
church. Williams claimed that Foard's negligence in stacking the plywood in the rafters
caused the lumber to fall 3 days later, which resulted in the injuries Williams sustained while
working on the job.
The case was tried to a jury, which returned a verdict in favor of Williams and against
McDowell for the sum of $372,000. McDowell filed a motion for a judgment
notwithstanding the verdict or, in the alternative, for a new trial; the trial judge denied the
motion. McDowell has appealed from the verdict and the order denying its motion, specifying
several assignments of error, which we reject as meritless. We affirm the judgment below.
McDowell's principal complaint on appeal is that the trial judge committed reversible error
in instructing the jury. Appellant's defense to the action was based on the theory that Foard,
when he acted under the instructions of Tobler and Oliver's general superintendent in stacking
the plywood in the rafters of the church, became a special employee of Tobler and Oliver
and that he was then in the same employ as Williams; that, as such, Williams was
precluded from recovery under the common law tort action against McDowell and, rather,
was limited to compensation under the Industrial Insurance Act. See NRS 616.370
1
and
NRS 616.560.
2
The rejected instructions described, in general, a general employee, a special
employee, an independent contractor, and a subcontractor, and their relationship for industrial
compensation purposes.
McDowell's contention that Foard was a special employee of Tobler and Oliver is
predicated on the "loaned servant" doctrine.
____________________

1
NRS 616.370, in relevant part:
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.

2
NRS 616.560, in relevant part:
1. When am employee coming under the provisions of this chapter receives an injury for which
compensation is payable under this chapter
90 Nev. 75, 77 (1974) McDowell Constr. Supply v. Williams
Tobler and Oliver is predicated on the loaned servant doctrine. The courts have applied two
tests in deciding the question of the loaded servant: (1) the control test, which
emphasizes who has the right to control the borrowed employee and equipment used in
performing the service; and (2) the whose business test, which stresses who receives the
benefits from the service, as well as whether the service was within the normal scope of either
employment. See Landis v. McGowan, 165 P.2d 180, 184 (Colo. 1946).
In Landis, the court ruled that the preferred line of authorities was the control test. The
court said, 165 P.2d at 185:
We believe that the better line of authorities, based upon our general concept of
employer-employee relation, stems from the opinion of the New York Court of Appeals in the
decision written by the late Mr. Justice Cardozo, then a judge of that court and subsequently
an associate justice of the United States Supreme Court, in Charles v. Barrett, 233 N.Y. 127,
135 N.E. 199 [N.Y. 1922], based, as we understand, largely on the control' rule. . . .
. . . The rule now is that, as long as the employee is furthering the business of his
general employer by the service rendered to another, there will be no inference of a new
relation unless command has been surrendered, and no inference of its surrender from the
mere fact of its division. . . .'
[Headnote 1]
We turn to examine the record in the instant case. The record shows that Foard's duties as
a deliveryman for McDowell are undisputed. He was obligated to deliver plywood to the
construction site of Tobler and Oliver. For this delivery service, Tobler and Oliver paid an
additional $2 per thousand square feet of lumber delivered. The delivery included placing the
plywood at various places at the construction site, which areas were indicated to the
deliveryman, Foard, by the job superintendent. This is the total amount of control that Tobler
and Oliver had over the activities of Foard. In contrast, McDowell had the sole right to hire
and fire Foard, pay him, fix his hours of work, tell him where to work, and control his
operation of the forklift in the loading and unloading of the plywood. We agree with
Respondent Williams that Foard was merely a deliveryman for McDowell and that placing
the plywood at the various locations on the job as directed by the superintendent did not
make Foard a special employee of Tobler and Oliver.
____________________
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:
(a) The injured employee, or in case of death, his dependents, may take proceedings against that person to
recover damages, . . . (Emphasis added.)
90 Nev. 75, 78 (1974) McDowell Constr. Supply v. Williams
merely a deliveryman for McDowell and that placing the plywood at the various locations on
the job as directed by the superintendent did not make Foard a special employee of Tobler
and Oliver. Standard Oil Co. v. Anderson, 212 U.S. 215 (1908).
As the Colorado Supreme Court stated in Landis, supra, 165 P.2d at 188:
Ordinarily the Landises [plaintiffs] would be entitled to have a jury to determine the
question as to whether Zook [the negligent employee] was their employee, or the employee of
the Pikes Peak Company [a loaned servant']; however, as we read the record there is no
disputed fact bearing upon this question. Under these circumstances, the determination of the
issue was for the court, and consequently the Landises were not entitled to have it submitted
to the jury.
[Headnote 2]
Likewise, we hold that, when the facts bearing upon the question of the loaned servant
doctrine are undisputed, as in the instant case, the determination of the issue is for the court
and that the trial judge properly ruled as a matter of law that Foard was not the loaned
servant of Tobler and Oliver. Landis v. McGowan, supra; Rocky Mountain Trucking Co. v.
Taylor, 335 P.2d 448, 456 (Wyo. 1959). Therefore, the trial judge did not err in refusing to
give the instructions requested by McDowell on the loaned servant issue.
The remaining assignments of error concern matters to which objection was not made at
trial and which, if error at all, cannot reasonably be deemed to have affected substantial
rights. See NRCP 61.
We affirm the verdict below and the order of the district court denying McDowell's motion
for judgment notwithstanding the verdict or, in the alternative, for a new trial.
Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 79, 79 (1974) Hill v. Summa Corporation
DENNIS HILL, Appellant, v. SUMMA CORPORATION,
a Delaware Corporation, Respondent.
No. 7319
February 6, 1974 518 P.2d 1094
Appeal from order denying motion for change of venue, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
The Supreme Court, Gunderson, J., held that by virtue of rule providing that party whose
name is not known may be designated by any name and, when his true name is discovered,
pleading may be amended accordingly, designated John Doe defendants were already
parties in legal contemplation and subsequent amendment stating their actual names related
back to commencement of action and such designation did not constitute adding a party
which may only be accomplished on motion.
Affirmed.
Beko & Knight, of Tonopah, for Appellant.
Morse, Foley and Wadsworth, and Roland S. Ericsson, of Las Vegas, for Respondent.
Parties.
By virtue of rule providing that party whose name is not known may be designated by any name and,
when his true name is discovered, pleading may be amended accordingly, designated John Doe
defendants were already parties in legal contemplation and subsequent amendment stating their actual
names related back to commencement of action and such designation did not constitute adding a party
which may only be accomplished on motion. NRCP 10(a), 15(a), 21; NRS 13.040.
OPINION
By the Court, Gunderson, J.:
Appellant Hill, one of several defendants in an action respondent Summa Corporation
commenced in Clark County, has appealed an order denying his motion to change venue to
Nye County, where he resides.
1
We affirm the district court.
In addition to designating appellant Hill and several others as defendants under their actual
names, the complaint by which respondent Summa Corporation commenced its action also
designated a number of "John Doe" defendants by fictitious names, as permitted by NRCP
10{a).2 Thereafter, since no named defendant lived in Clark County, appellant demanded
a change of venue to Nye County, and filed a motion invoking NRS 13.040.3 Later the
same day, respondent filed a "First Amended Complaint," substituting the name of a Clark
County resident for a "John Doe" designation.
____________________

1
The order is appealable. NRAP 3A(b)(2).
90 Nev. 79, 80 (1974) Hill v. Summa Corporation
respondent Summa Corporation commenced its action also designated a number of John
Doe defendants by fictitious names, as permitted by NRCP 10(a).
2
Thereafter, since no
named defendant lived in Clark County, appellant demanded a change of venue to Nye
County, and filed a motion invoking NRS 13.040.
3
Later the same day, respondent filed a
First Amended Complaint, substituting the name of a Clark County resident for a John
Doe designation. Respondent's counsel did not first seek leave of court, apparently relying
on NRCP 15(a).
4
Later, when appellant's motion was heard, the district court denied it, on
the ground that one of the defendants was a Clark County resident.
Appellant challenges the district court's ruling, contending that respondent's new pleading
involved more than a mere amendment of the kind NRCP 15(a) permits once as a matter
of course at any time before a responsive pleading is served. Rather, appellant contends,
respondent actually sought to add a party which may only be accomplished on motion
pursuant to NRCP 21, and therefore respondent's First Amended Complaint was ineffective
to defeat appellant's motion for change of venue.
5
We disagree.
Of course, if it cannot be said that a resident of Clark County was properly a defendant,
then absent consent or waiver, NRS 13.040 vests the true parties defendant with a right to
object to the action proceeding there. See, for example: Stocks v. Stocks, 64 Nev. 431, 183
P.2d 617 (1947); Williams v. Keller, 6 Nev. 141 (1870). On the other hand, in Byers v.
Graton, 82 Nev. 92, 94-95, 411 P.2d 480, 481 (1966), this court declared:
The pertinent words of NRS 13.040 state that the action shall be tried in the county in
which the defendants, or any one of them, may reside at the commencement of the
action.' That language means that a defendant is not entitled to have the action removed
to the county of his residence unless it appears that none of the other defendants are
residents of the county where the action is brought."
____________________

2
NRCP 10(a) provides:
Caption; Names of Parties. . . . 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.

3
NRS 13.040 provides:
Venue in other cases. In all other cases [than those concerned in prior sections], the action shall be tried in
the county in which the defendants, or any one of them, may reside at the commencement of the action;. . .

4
NRCP 15(a) provides:
Amendments. A party may amend his pleading once as a matter of course at any time before a responsive
pleading is served. . . .

5
NRCP 21 provides:
. . . Parties may be dropped or added by order of the court on motion of any party or of its own initiative at
any stage of the action and on such terms as are just. . .
90 Nev. 79, 81 (1974) Hill v. Summa Corporation
shall be tried in the county in which the defendants, or any one of them, may reside at the
commencement of the action.' That language means that a defendant is not entitled to have
the action removed to the county of his residence unless it appears that none of the other
defendants are residents of the county where the action is brought.
To support the proposition that NRCP 21 precludes adding parties through an amended
pleading filed of course under NRCP 15(a), appellant cites several decisions, most from
federal district courts. See: Rash v. C. & M. Corporation, 218 A.2d 670 (Del. 1966); Zackery
v. Mutual Security Savings & Loan Ass'n, 206 A.2d 580 (D.C.App. 1965); International Bro.
of Teamsters v. American Fed. of Labor, 32 F.R.D. 441 (E.D.Mich. S.D. 1963); Pacific Gas
& Electric Co. v. Fibreboard Products, 116 F.Supp. 377 (N.D. Cal. S.D. 1953); National
Maritime Union of America v. Curran, 87 F.Supp. 423 (S.D.N.Y. 1949); Mitchell v.
Carborundum Co., 7 F.R.D. 523 (W.D.N.Y. 1947). None are in point; for none concerned a
rule like NRCP 10(a), which this court adopted upon recommendation of our Advisory
Committee. Here, we need not decide whether the reasoning of such cases is valid. We would
have analogous facts only if respondent's counsel had not originally employed the pleading
privilege granted by NRCP 10 (a).
In our view, when a plaintiff's counsel has properly utilized NRCP 10(a), adequately
alleging intended defendants and present uncertainty as to their names, stating the names later
in an amended pleading cannot be equated with adding totally new parties to the action. Cf.
Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973). Then, at least, there is no
reason an amendment stating the names should be regarded differently under NRCP 15(a)
than any other facts counsel may wish to correct or clarify by filing an amended pleading
once as a matter of course. By virtue of NRCP 10(a), the designated but unnamed
defendants are already parties in legal contemplation. A subsequent amendment, stating their
actual names, therefore relates back to commencement of the action as provided in NRCP
15(c).
6

We do not wish to suggest that we would here adopt the interpretation of NRCP 21 for
which appellant contends, and reverse the district court, had plaintiff's counsel not
designated unnamed defendants pursuant to NRCP 10{a).
____________________

6
NRCP 15(c) provides:
Relation Back of Amendments. 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.
90 Nev. 79, 82 (1974) Hill v. Summa Corporation
interpretation of NRCP 21 for which appellant contends, and reverse the district court, had
plaintiff's counsel not designated unnamed defendants pursuant to NRCP 10(a). On the facts
of this case, that is not so; for the record does not reveal that appellant served notice of his
motion on other litigants in the case, who would be affected by a ruling on it. As we said in
Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972):
For a century, our settled law has been that any special' motion involving judicial
discretion that affects the rights of another, as contrasted to motions of course,' must be made
on notice even where no rule expressly requires notice to obtain the particular order sought,
except only when this requirement is altered to meet extraordinary situations such as those
concerned in NRCP 65(b). 88 Nev. at 34, 493 P.2d at 714; Turner v. Saka, 90 Nev. 54, 518
P.2d 608 (1974).
Moreover, we are not entirely persuaded that it would be useful or appropriate in Nevada
to read NRCP 21 as ever limiting the right to add parties, when an amended pleading is
filed of course . . . before a responsive pleading is served. At least one justification federal
courts assign for their view, i.e. that otherwise a plaintiff could oust the court's diversity
jurisdiction at will, cf. Pacific Gas & Electric Co. v. Fibreboard Products, supra, lacks
significance in proceedings neither commenced in nor removed to federal court. As another
state court has noted, the purpose of protecting diversity jurisdiction, of course, was not
carried over in our adoption of the Rule [21]. Rash v. C. & M. Corporation, supra, at 672.
From the record on appeal, it does not appear that other contentions concerning the
propriety and bona fides of respondent's pleadings were raised in the court below. Hence, we
will not consider such matters on appeal. Cummings v. City of Las Vegas Mun. Corp., 88
Nev. 479, 499 P.2d 650 (1972); Britz v. Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d
911 (1971).
Affirmed.
Mowbray, Batjer, and Zenoff f, JJ., concur.
Thompson, C. J., concurring:
I wish to emphasize that today's opinion does not purport to determine the meaning of
Rule 10(a).
1
It assumes the
____________________

1
Rule 10(a) is the successor to NCL 8641 which, in turn, was borrowed from Cal. C.C.P. 474, presumably
with the construction given it by the California court. State ex rel. Brennan v. Bowman, 88 Nev. 582, 585, 503
P.2d 454 (1972).
The rule does not refer to a party who is not known. It does refer
90 Nev. 79, 83 (1974) Hill v. Summa Corporation
applicability of that Rule to the instant matter since the issue of its pertinence was not
tendered to the district court. Neither does the opinion foreclose the possible persuasive force
of the federal cases therein cited to a case that does not fall within the intendment of Rule
l0(a), but does concern the relationship of Rule 15(a) to Rule 21.
____________________
to a party whose name is not known. Thus, it appears to embrace the case where the plaintiff has in mind the
identity or description of the fictitiously named defendant, but not his true name. Mercantile Trust Co. v.
Stockton Terminal & R. Co., 186 P. 1049 (Cal.App. 1919); Day v. Western Loan & Bldg. Co., 108 P.2d 702
(Cal.App. 1940).
The primary purpose of the Rule apparently is to enable the plaintiff to bring suit before it is barred by
limitations. Austin v. Massachusetts Bonding & Insurance Co., 364 P.2d 681, 684 (Cal. 1961); cf. Servatius v.
United Resort Hotel, 85 Nev. 371, 455 P.2d 621 (1969).
When the case truly is one within Rule 10(a) and the true name of a defendant is substituted for the fictitious
name, then, and only then, is he to be considered a party to the action from its commencement. The opposite is
true when the case does not fall within the intendment of the Rule and the complaint is amended to add the true
name of a defendant. Stephens v. Berry, 57 Cal.Rptr. 505 (Cal.App. 1967); Lipman v. Bhend, 28 Cal.Rptr. 800
(Cal.App. 1963). See also: Herschfelt v. Knowles-Raymond Granite Company, 279 P.2d 104 (Cal.App. 1955),
involving a motion to change venue.
____________
90 Nev. 83, 83 (1974) Grimaldi v. State
TIMOTHY WENDELL GRIMALDI, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6982
February 6, 1974 518 P.2d 615
Appeal from conviction of first degree murder in the Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The Supreme Court, Zenoff, J., held that failure to instruct jury that part of its function was
to decide the voluntariness of defendant's written confession was error; that in the light of the
overwhelming evidence of defendant's guilt, such error was harmless; that there was no
constitutional requirement that both judge and jury pass upon the admissibility of evidence
even though constitutional grounds were asserted for excluding it; that the question of
whether or not harmless error rule applied was a question of state law; that where defendant's
sanity for the purposes of his capacity to assist in his defense was tested and upheld,
discussion of his diminished responsibility was inappropriate; and that probable cause
existed to arrest defendant for carrying a concealed weapon.
90 Nev. 83, 84 (1974) Grimaldi v. State
was tested and upheld, discussion of his diminished responsibility was inappropriate; and that
probable cause existed to arrest defendant for carrying a concealed weapon.
Affirmed.
Thompson, C. J., and Mowbray, J., dissented.
Jerrold Courtney and Don Ashworth, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure to instruct jury that it was part of the jury function to decide the voluntariness of defendant's
written confession was error.
2. CriminaL Law.
There is no constitutional requirement that both judge and jury pass upon the admissibility of evidence,
even though constitutional grounds are asserted for excluding it.
3. Constitutional Law.
Due process mandate of Fourteenth Amendment require a judicial scrutiny on voluntariness of a
confession before it can be admitted into evidence and no obligation is imposed to have a jury as well as
the court pass upon the voluntariness. U.S.C.A.Const. Amend. 14.
4. Criminal Law.
Since alleged error in failing to instruct jury that it should consider the voluntariness of defendant's
confession was not one of constitutional dimension, question of whether or not the harmless error rule
applied was a question of state law. NRS 178.598.
5. Criminal Law.
Evidence that defendant and his companion hailed a cab, forced the driver to leave it, attempted to shoot
him only to discover that one gun would not fire, slit the cab driver's throat, shot the cab driver three times
with a shotgun and drove the cab into another state was so great that defendant's confession could not have
altered or affected the result of trial and failure to instruct jury that it should consider the voluntariness of
defendant's confession was harmless. NRS 178.598.
6. Criminal Law.
Given a state of facts where the issue of voluntariness of a confession, or guilt, is doubtful, failure to
afford the jury the opportunity to pass on the question of the voluntariness of a confession will risk
reversal.
7. Arrest.
Where officer approached car in which defendant and a companion were riding because he had been
informed that they had come through border inspection station without stopping, where officer saw
defendant in the back seat making a motion towards the seat and where, when defendant and
his companion got out of the car, officer observed a pistol where defendant had been
sitting and a knife where his companion had been sitting and a shotgun on the rear
floor, probable cause existed to arrest defendant on charges of carrying a concealed
weapon.
90 Nev. 83, 85 (1974) Grimaldi v. State
the seat and where, when defendant and his companion got out of the car, officer observed a pistol where
defendant had been sitting and a knife where his companion had been sitting and a shotgun on the rear
floor, probable cause existed to arrest defendant on charges of carrying a concealed weapon.
OPINION
By the Court, Zenoff, J.:
[Headnote 1]
Timothy Wendell Grimaldi, sentenced to life imprisonment without possibility of parole
for the murder of a taxicab driver in Clark County, appeals his conviction on several grounds
but principally because neither the trial court nor the prosecutor caused the jury to be
instructed that it was part of the jury function to decide the voluntariness of Grimaldi's written
confession. In appropriate pretrial proceedings the court ruled the confession was freely and
voluntarily given but the jury was not called upon to pass on that question. Failure to instruct
them to do so was error. Whether the error is harmless is the principal focus of this appeal.
Other questions for appellate review are that the court failed to instruct the jury on the
concept and application of diminished responsibility and the contention that Grimaldi was
arrested without probable cause and that evidence obtained as a result thereof including the
confession is the fruit of the poisonous tree and inadmissible.
1. In the case of Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968), Nevada adopted the
Massachusetts rule regarding the admissibility of confessions. According to that rule the trial
judge first hears the evidence of voluntariness and if the court finds it was voluntary, then the
jury is instructed that it must also find that the confession was voluntary before it may be
considered.
Some errors are harmless and will not warrant reversal. The federal harmless error rule
found in 28 U.S.C. 2111 and Nevada's harmless error statute, NRS 178.598, are very
similar. The latter provides that any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded.
[Headnotes 2-4]
There is no constitutional requirement that both judge and jury pass upon the admissibility
of evidence even though constitutional grounds are asserted for excluding it. Lego v.
Twomey, 404 U.S. 477, 490 {1972); see also page 4S9, citing therein Jackson v. Denno,
37S U.S. 36S {1964).
90 Nev. 83, 86 (1974) Grimaldi v. State
Twomey, 404 U.S. 477, 490 (1972); see also page 489, citing therein Jackson v. Denno, 378
U.S. 368 (1964). The due process mandate of the 14th Amendment requires only a judicial
scrutiny on voluntariness of a confession before it can be admitted into evidence. No
obligation is imposed to have a jury as well as the court pass upon the issue by constitutional
right. State v. Hampton, 294 A.2d 23, 31 (N.J. 1972). The error therefore not being one of
constitutional dimension whether or not the harmless error rule applies is a state question
because it involves only a error of state procedure or state law. Chapman v. California, 386
U.S. 18 (1967).
The question of guilt or innocence in this case is not a close one. The facts are as follows:
Grimaldi and John Michael Tiffany hailed a Yellow Cab driven by Glen Wood Kelley at
1:30 in the early morning of New Year's Day, 1971, while outside a tavern ostensibly
intending to hitchhike to Arizona after attending a New Year's Eve party. Part of their gear
included a shotgun, pistol, a knife and some ammunition. Near Henderson they ordered the
cab to stop and Kelley to get out of the cab. While Grimaldi stayed at the cab, Tiffany, with
Kelley pleading for his life, pulled the trigger of the pistol six times, but it failed to fire.
Without going into further details whether it was Tiffany or Grimaldi who then cut Kelley's
throat with the knife it is enough to know that it was done. Then when Kelley tried to struggle
with Tiffany, he was shot three times, once in front and twice in his back, from the shotgun.
The two drove the cab ultimately through the Nevada-Arizona border point of entry
without stopping. They were arrested by a Kingman police officer at a gas station just outside
Kingman. From the moment of arrest they were treated with due deference by law
enforcement officers, including an FBI agent. On several occasions in Kingman the Miranda
warnings were given them. Grimaldi admitted that he was fed when hungry, slept several
times, was rested and in no way maltreated. His claim of false inducement consists of his
unsupported statement that one of the officers told him he'd only be charged with involuntary
manslaughter if he confessed, that another officer said that he'd be held alone in a room to rot
if he didn't confess.
[Headnote 5]
Even though Grimaldi passed the sanity tests of knowing the difference between right and
wrong and being able to assist in his own defense his mental instability is apparent
throughout the record.
90 Nev. 83, 87 (1974) Grimaldi v. State
the record. There is simply no doubt his accusations did not and could not stand up before the
jury any more than they did before the judge. Other than his rambling comments there is no
proof or suspicions that his accusations against the officers are true. He testified at the
trialthe jury had ample opportunity to adjudge his credibility. He was there for the jurors to
see and evaluate. The proof against him was so great that the confession could not have
altered or affected the result of the trial.
After all, he and Tiffany, 17 and 18 years old at the time, had driven through the port of
entry without stopping as required, were in possession of a marked Yellow Cab, neither was
in the uniform of a cab driver and they were in possession of three dangerous weapons at the
time of their arrest. From that point it was not difficult for the authorities to trace ownership
of the automobile bearing Nevada license plates, learn of Kelley and discover his murder.
Witnesses included their companions at the New Year's Eve party where possession of the
weapons was established as well as their expressed intentions; the taxicab company personnel
who presented the information of Kelley's pickups and deliveries on the night he disappeared
and then his disappearance; and evidence from the crime itself that led to the shotgun found
in the possession of Tiffany and Grimaldi.
[Headnote 6]
Because someone in the functional process of a trial has erred is not sufficient reason to
overload the judicial process or punish the taxpayers. We will not automatically mandate a
new trial without regard to the circumstances despite citations to the contrary. Cf. State v.
Pulliam, 349 P.2d 781 (Ariz. 1960). The point has been well made that certain safeguards
must be observed, such as the rules of arrest, search and seizure, jury selection and the taking
of admissions and confessions. Almost without exception law enforcement officers and
prosecutors have accepted and are adhering to those rules. They were so respected in this case
that only Grimaldi's unsupported statements would say otherwise. Given a state of facts
where the issue of voluntariness, or guilt, is doubtful failure to afford the jury the opportunity
to pass on that question will risk reversal but such facts are not present in this case.
We do not dispute Chief Justice Thompson when he states in his dissent that when a
confession is in fact coerced the case must be reversed. Grimaldi, however, does not show
that the confession was anything but voluntary.
90 Nev. 83, 88 (1974) Grimaldi v. State
confession was anything but voluntary. He only says it was. The facts contradict him.
There is fault in the failure of the court to complete the requirement that the jury pass
judgment on the voluntariness of the confession, but we refuse to adopt a hard attitude that
will bring unnecessary expense to the community over this trial court error. The totality of
the circumstances announced in Chief Justice Thompson's authorities from the U.S.
Supreme Court do not show fraud, undue influence or coercion in the taking of Grimaldi's
confession nor doubt of his guilt for the crime.
2. Grimaldi's sanity for the purposes of his capacity to assist in his defense was tested and
upheld. The discussion of his diminished responsibility is inappropriate. Fox v. State, 73 Nev.
241, 316 P.2d 924 (1957).
3. Grimaldi contends there was absence of probable cause to arrest him for carrying a
concealed weapon. Grimaldi and his associate, Tiffany, were arrested by officer Freed who
had been radioed to track them down because they had come through the inspection station
and port of entry at the Nevada-Arizona border without stopping. When they stopped at a gas
station on the outskirts of Kingman, officers Freed and Mosqueda of the Kingman Police
Department were directed to stop the vehicle, check it out and return it to the port.
Officer Freed approached the taxi that Grimaldi and Tiffany had appropriated after the
driver was killed. As Freed approached he saw Grimaldi in the back seat make a motion
toward the seat. Freed stepped behind the gas pump and asked the two to get out, which they
did. Freed then observed a pistol where Grimaldi had been sitting and the knife near Tiffany.
A shotgun was on the rear floor of the cab. Freed arrested Grimaldi and Tiffany on charges of
carrying a concealed weapon, advised them of their Miranda rights and took them to jail.
[Headnote 7]
The issue of probable cause for the arrest depends upon the circumstances existing at the
time the arrest was made. Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966). Probable
cause sufficient to arrest for several offenses existed here. Appellant's objections that the
arresting officer told him that he was being arrested for carrying concealed weapons is not
well-founded.
Affirmed.
Gunderson and Batjer, JJ., concur.
90 Nev. 83, 89 (1974) Grimaldi v. State
Thompson C. J. with whom Mowbray, J., agrees, dissenting:
The failure of the trial court to allow the jury to decide whether the defendant's confessions
were freely and voluntarily given should be deemed prejudicial error. Indeed, every
jurisdiction which follows the Massachusetts Rule in the handling of confessions holds that
the failure to instruct the jury that it must decide whether the confessions were voluntary, and
to disregard them if it determined that they were not voluntarily given, is reversible error.
State v. Pulliam, 349 P.2d 781 (Ariz. 1960); United States v. Inman, 352 F.2d 954 (4th Cir.
1965); State v. Brewton, 395 P.2d 874, 879 (Ore. 1964); People v. Huntley, 204 N.E.2d 179
(N.Y. 1965); People v. Mials, 278 N.Y.S.2d 1020, 1022 (Sp. Ct. N.Y. 1967); People v.
Bevins, 351 P.2d 776, 779-80 (Cal. 1960); State v. Breaker, 136 N.W.2d 161 (Neb. 1965).
The defendant need not request such instruction. The court must give it sua sponte. State v.
Pulliam, supra; People v. Mials, supra; State v. Breaker, supra; People v. Bevins, supra;
United States v. Inman, supra.
Confessions possess a shattering force. Reversal is automatic if a confession is in fact
coerced. Payne v. Arkansas, 356 U.S. 560, 568 (1958); Haynes v. Washington, 373 U.S. 503
(1963); Lynumn v. Illinois, 372 U.S. 528, 537 (1963); Clewis v. Texas, 386 U.S. 707 (1967);
Davis v. North Carolina, 384 U.S. 737 (1966); Spano v. New York, 360 U.S. 315 (1959).
Since it is the jury, not the court, that decides the defendant's fate, it seems only fair that the
defendant should have the opportunity before the jury itself to challenge his confessions.
People v. Huntley, supra. His right to a jury trial on this critical issue should be preserved.
State v. Brewton, supra. This court adopted the Massachusetts Rule in preference to other
ways of handling confessions at trial. Carlson v. State, 84 Nev. 534, 536, 445 P.2d 157
(1968). We should not now ignore its violation as meaningless.
The defendant took the stand and testified fully. His testimony, if believed, gave the jury a
basis to decide that his confessions were the product of coercion. The jury was precluded
from making that decision. This, the majority calls harmless error since only the accused
testified that his confessions were involuntary! Does this mean that in a criminal case the
uncorroborated evidence offered by an accused need not be considered by the jury? This
evaluation of evidence and of the credibility of witnesses is a activity in which this court
should not indulge. In fact, it is prohibited by Nev. Const. art. 6, 4,
90 Nev. 83, 90 (1974) Grimaldi v. State
which declares that our appellate jurisdiction over a criminal case is limited to questions of
law alone.
____________
90 Nev. 90, 90 (1974) Sheriff v. Nevada National Bank
SHERIFF OF LANDER COUNTY, NEVADA, and DISTRICT ATTORNEY OF LANDER
COUNTY, NEVADA, Appellants, v. NEVADA NATIONAL BANK, a National Banking
Association, Respondent.
No. 7153
February 7, 1974 518 P.2d 602
Appeal from order grating a permanent injunction; Third Judicial District Court, Lander
County; Llewellyn A. Young, Judge.
Action to enjoin sheriff from executing search warrant. The district court granted
injunction, and sheriff appealed. The Supreme Court held that search sought by sheriff was
nothing more than fishing expedition in search of unspecified and unknown criminal
evidence, and that such search was proper subject of injunction.
Affirmed.
[Rehearing denied March 8, 1974]
Robert List, Attorney General, Carson City; and T. David Horton, District Attorney,
Lander County, for Appellants.
Guild, Hagen & Clark, Ltd., of Reno, for Respondent.
1. Searches and Seizures.
Requirements of probable cause and particularity of description of Fourth Amendment are meant to limit
searches to items that are involved in crime, and to prevent general searches that are intended to produce
incriminating evidence against possible accused. U.S.C.A.Const. Amend. 4.
2. Searches and Seizures.
Sheriff's affidavit reciting that reliable informant had disclosed that specified checks payable to county
had been deposited to personal account of public employee, and that although such checks were in
possession of sheriff, sheriff believed that other county funds had also been deposited to personal accounts
of employee or other depositors named, did not provide probable cause for issuance of search warrant
authorizing sheriff to search bank records. U.S.C.A.Const. Amend. 4.
90 Nev. 90, 91 (1974) Sheriff v. Nevada National Bank
3. Injunction.
Where search warrant is invalid on its face and demands therein violate constitutional rights, equitable
jurisdiction may be invoked to prevent unconstitutional or unreasonable search and seizure.
OPINION
Per Curiam:
On September 27, 1972, Justice of the Peace Frank A. Bertrand of Austin Township issued
a search warrant authorizing the sheriff of Lander County, George E. Schwin, appellant
herein, to conduct a search any time of the day or night of the bank records of three
depositors of the Nevada National Bank in Austin, Nevada, respondent in this appeal.
The search warrant was supported by an affidavit of Schwin, indicating that a reliable
informant had disclosed the deposit of two specified checks otherwise payable to Lander
County to the personal account of a certain public employee. Although the two checks were
in Schwin's possession, Schwin believed that other county funds had also been deposited to
the personal accounts of the employee or other depositors named in the search warrant.
The respondent Bank, indicating its willingness to comply with a subpoena, but
unwillingness to comply with the search warrant, filed a complaint requesting that Schwin be
restrained and enjoined from conducting a search of the records. A temporary restraining
order issued, and a hearing was held on October 16, 1972.
The testimony elicited at the hearing from Schwin indicated that there was no concrete
evidence for which he intended to search, but that he was seeking to conduct an investigation
to determine whether there was a crime and to gather information that might shed some light
on it. The lower court ordered a permanent injunction at the conclusion of the hearing.
Appellant urges a reversal of this order on appeal and contends that there was probable
cause to support the issuance of the search warrant and that an injunction is a improper
remedy in this case. We find no merit in these contentions and therefore affirm the order of
the lower court.
1. The Validity of the Search Warrant.
. . . [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
90 Nev. 90, 92 (1974) Sheriff v. Nevada National Bank
[Headnotes 1, 2]
The requirements of probable cause and particularity of description are meat to limit
searches to items that are involved in a crime and to prevent general searches that are
intended to produce incriminating evidence against a possible accused. Adams v. State, 89
Nev. 422, 514 P.2d 208 (1973); Giordenello v. United States, 357 U.S. 480 (1958); Brex v.
Smith, 146 A.34 (N.J. 1929).
From the record before us, it is evident that the lower court could determine that the
warrant was invalid on its face. Not only had no criminal complaint been filed, but the only
evidence of a possible crime consisted of the checks already in Schwin's possession.
2. The Injunction.
[Headnote 3]
Where a search warrant is invalid on its face and the demands therein violate constitutional
rights, equitable jurisdiction may be invoked to prevent an unconstitutional or unreasonable
search and seizure. See Annenberg v. Roberts, 2 A.2d 612 (Pa. 1938), dealing with other
questions of unreasonable search and seizure.
Although the general rule is that a court of equity will not enjoin a criminal prosecution,
State ex rel. Pearson v. Hansen, 409 P.2d 769 (Wyo. 1966), most courts recognize that there
is an exception to the general rule and that equity will enjoin arbitrary or unlawful acts of
prosecuting officers charged with the duty of enforcing criminal laws, in order to prevent
unlawful interference with property rights. Board of Regents v. City of Tempe, 356 P.2d 399
(Ariz. 1960); Frey v. Dixon, 58 A.2d 86 (N.J. 1948) (distinguishing between search warrants
and subpoenas); State ex rel. Wiley v. District Court, 164 P.2d 358 (Mont. 1945); Brex v.
Smith, supra, State ex rel. Freebourn v. Carrol, 279 P. 234 (Mont. 1924) (holding that
whether certain action constitutes a crime is a question for a criminal court and not a court of
equity); 42 Am.Jur.2d, Injunction 238, at 1025, 1028 (1969).
Since we find that the search sought by Appellant Schwin was nothing more than a
fishing expedition in search of unspecified and unknown criminal evidence, we affirm the
order of the lower court. Barnato v. State, 88 Nev. 508, 501 P.2d 643 (1972).
____________
90 Nev. 93, 93 (1974) Shepley v. Warden
KENNETH EDWARD SHEPLEY, Appellant, v.
WARDEN, NEVADA STATE PRISON, Respondent.
No. 7215
February 7, 1974 518 P.2d 619
Appeal from order denying petition for writ of habeas corpus; First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
The Supreme Court held that petitioner was not entitled to benefit of statute reducing
maximum penalty for burglary, which statute was enacted after sentencing; and that presence
of representative of district attorney's office at hearing on parole did not interfere with
petitioner's constitutional rights.
Affirmed.
Gary A. Sheerin, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; and Michael Fondi, District Attorney, Carson
City, for Respondent.
1. Burglary.
Petitioner who was sentenced up to 15 years in State Prison on conviction of burglary was not entitled to
benefit of statute which subsequently took effect and which reduced maximum penalty from 15 to 12 years
imprisonment. NRS 205.060.
2. Pardon and Parole.
Petitioner was not deprived of any constitutional rights by presence of representative of District
Attorney's office, who testified and presented evidence, at hearing to consider petitioner's eligibility for
parole.
OPINION
Per Curiam:
Kenneth Edward Shepley, appellant, was convicted of first-degree burglary on a plea of
guilty and sentenced to from 1 to 15 years in the Nevada State Prison. The crime was
committed on February 16, 1967, in Carson City, Nevada, and in March of that same year the
Nevada Legislature amended the burglary statute, NRS 205.060, by reducing the maximum
penalty for first-degree burglary from 15 to 12 years. Shepley was sentenced on May 12,
1967, and the amendment to NRS 205.060 became effective July 1, 1967.
In May 1968, the Nevada State Board of Parole Commissioners considered appellant's
eligibility for parole. At the hearing thereon, a representative of the Carson City District
Attorney's office appeared, testified, and presented evidence against granting parole to
appellant.
90 Nev. 93, 94 (1974) Shepley v. Warden
hearing thereon, a representative of the Carson City District Attorney's office appeared,
testified, and presented evidence against granting parole to appellant. Appellant's request for
parole was subsequently denied by the Parole Board.
Thereafter, appellant filed his petition for writ of habeas corpus, alleging as error the
imposition of a sentence for a maximum term of 15 years in light of the amended statute and
the presence of a member of the District Attorney's office at the parole hearing. We find both
contentions to be without merit, and we affirm the decision of the lower court.
[Headnote 1]
1. The amendment to NRS 205.060 became effective July 1, 1967. Stats. Nev. 1967, ch.
211, 701, at 667. Until that date, the former provisions of the statute remained in force.
Moreover, there is no indication that the Legislature intended the amendment to apply
retroactively. Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968); Fitch v. Elko County, 8 Nev.
271 (1893). Since appellant's offense and his conviction therefor occurred prior to the
effective date of the amendment to NRS 205.060, the provisions of the amendment do not
apply to that offense and conviction. NRS 193.130(1).
[Headnote 2]
2. Raggio v. Campbell, 80 Nev. 418, 395 P.2d 625 (1964), is dispositive of the second
issue propounded appellant. This court held therein that the District Attorney is a person
beneficially interested in the parole proceedings. Thus, the presence of a representative of
the Carson City District Attorney's office at appellant's parole hearing did not interfere with
appellant's constitutional rights.
Accordingly, we affirm the order of the lower court.
____________
90 Nev. 95, 95 (1974) Holbrook v. State
MICHAEL RAY HOLBROOK, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7007
February 12, 1974 518 P.2d 1242
Appeal from judgment of conviction; First Judicial District Court, Lyon County; Richard
L. Waters, Jr., Judge.
Defendant, after being allowed to withdraw plea of guilty on which a six-year sentence had
been imposed, was convicted in the district court of grand larceny and sentenced to eight
years' imprisonment and he appealed. The Supreme Court, Thompson, C. J., held that
defendant's testimony to the effect that he did not possess an intent to permanently deprive
the owner of possession of the automobile he was charged with stealing did not supply an
evidentiary basis for an instruction on statute prohibiting tampering with an automobile; but
that record of second sentencing was insufficient to justify imposition of longer sentence and
sentence would be modified to six years, the term originally imposed.
Conviction affirmed; sentence modified.
Gary A. Sheerin, State Public Defender, for Appellant.
Ronald T. Banta, District Attorney, Lyon County, for Respondent.
1. Indictment and Information.
If the offense charged cannot be committed without necessarily committing another offense, the latter is a
necessarily included offense and defendant may be found guilty of such an included offense. NRS
175.501.
2. Criminal Law.
In view of fact that defendant was arrested while driving stolen automobile four hours after the theft,
testimony by defendant, charged with grand larceny in the theft of an automobile, to the effect that he did
not possess an intent to permanently deprive the owner of possession of the automobile did not supply an
evidentiary basis for an instruction on statute prohibiting tampering with an automobile as a lesser included
offense. NRS 205.220, 205.274, subd. 2.
3. Criminal Law.
Whenever a more severe sentence is imposed after a new trial, the reasons for such sentence must
affirmatively appear and must be based upon objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original sentencing.
4. Criminal Law.
Factual data upon which the imposition of an increased sentence after a new trial is based must be made a
part of the record, so that the constitutional legitimacy of the increased sentence may be
fully reviewed on appeal.
90 Nev. 95, 96 (1974) Holbrook v. State
so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
5. Criminal Law.
Where only relevant conduct of defendant between the time of imposition of six-year sentence for grand
larceny upon plea of guilty and imposition of eight-year sentence upon conviction after a jury trial was
defendant's desire to plea bargain, record of second sentencing was insufficient to justify imposition of
longer sentence and sentence would be modified to six years. NRS 177.265.
OPINION
By the Court, Thompson, C. J.:
The appellant, convicted of the theft of an automobile, asks that we annul his conviction
on the ground that the trial court refused to instruct the jury regarding the lesser offense of
tampering with a vehicle. He contends that the misdemeanor of tampering, NRS 205.274(2),
is included within the felony of grand larceny, NRS 205.220. Moreover, he challenges the
sentence imposed.
The appellant misappropriated an automobile from the Yerington High School parking lot.
About four hours later he was arrested in Tonopah, Nevada, since the automobile he was
driving matched the description of the purloined car. He waived preliminary examination, and
in the district court he waived his right to counsel and pleaded guilty to an information
charging him with grand larceny. He was sentenced to serve a term of six years in the state
prison. Subsequently, the district court honored his petition to withdraw his guilty plea and to
set aside conviction and sentence entered thereon since the court was persuaded that he was
under the influence of drugs when he pleaded guilty. Following a jury trial upon his later plea
of not guilty, he was found guilty of grand larceny and sentenced to serve a term of eight
years in the state prison.
In his opening statement to the jury the public defender acknowledged that his client was
guilty of a crime, but a crime of lesser significance than grand larceny. The evidence offered
by the accused centered on that proposition. He admitted taking the vehicle without
permission, but denied any intention to deprive the owner permanently of his property. On
this aspect the accused testified that he intended only to drive the car to Las Vegas and leave
it there, and that he intended then to advise the fire department of the location of the car.
[Headnote 1]
1. If the offense charged cannot be committed without necessarily committing another
offense, the latter is a necessarily included offense.
90 Nev. 95, 97 (1974) Holbrook v. State
necessarily committing another offense, the latter is a necessarily included offense. Lisby v.
State, 82 Nev. 183, 414 P.2d 592 (1966); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966).
Statute declares that a defendant may be found guilty of an offense included within the
offense charged. NRS 175.501.
The crime charged to the appellant occurred in 1971. At that time the grand larceny
statute, NRS 205.220, provided that every person who shall feloniously steal, take . . . and
drive away the personal . . . 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. . . . The tampering statute, NRS 205.274(2), provided that
any person who shall without the consent of the owner or person in charge of a vehicle climb
into or upon such vehicle with the intent to commit any crime, malicious mischief, or injury
thereto, or who while a vehicle is at rest and unattended shall attempt to manipulate any of the
levers, starting crank or other starting device, brakes or other mechanism thereof, or to set
such vehicle in motion, shall be guilty of a misdemeanor.
It is the appellant's contention that one cannot enter the car of another and drive it away
without necessarily manipulating its levers and attempting to set the vehicle in motion.
Consequently, he contends that tampering is necessarily included within grand larceny.
From a literal reading of the two statutes his position is arguable, so far as it goes. However,
it would not follow that appellant was entitled to a tampering instruction; for in this case,
the evidence clearly showed appellant's conduct had gone beyond that encompassed by the
tampering statute. Cf. Lisby v. State and Holland v. State, supra.
[Headnote 2]
In 1961 our legislature determined to place wrongful takings of vehicles all in one
category, regardless of whether the wrongdoer had intent permanently or only temporarily to
deprive the owner of his property. Whether such permanent intent was present or absent, the
first wrongful taking was declared a gross misdemeanor; a subsequent wrongful taking by one
previously convicted, a felony.
1
At the same time, and as a part of the same legislative act,
the offense of tampering was added to our law. Reading the sections of that enactment in
sequence, it is obvious that the tampering provisions were not intended to encompass any
taking of a vehicle, since all wrongful takings were therein declared to be more serious
crimes regardless of accompanying intent.
____________________

1
Stats. Nev. 1961, ch. 171, pp. 268, 269. Section 2 of that statute, NRS 205.272, was repeated in 1969. See:
Stats. Nev. 1969, ch. 305, p. 531.
90 Nev. 95, 98 (1974) Holbrook v. State
not intended to encompass any taking of a vehicle, since all wrongful takings were therein
declared to be more serious crimes regardless of accompanying intent. Consequently,
appellant's testimony to the effect that he did not possess an intent to permanently deprive the
owner of possession of his car did not supply an evidentiary basis for an instruction on
tampering.
2
The court properly refused to instruct on that subject.
[Headnotes 3, 4]
2. The appellant contends that the sentence he presently is serving is unconstitutional
since it is harsher than the sentence originally imposed and later set aside.
3
The controlling
authority on this subject is North Carolina v. Pearce, 395 U.S. 711 (1969). The court noted
that due process of law requires that vindictiveness against a defendant must play no part in
the sentence he receives after a new trial, since the fear of such vindictiveness may
unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his
first conviction. Accordingly, whenever a more severe sentence is imposed after a new trial
the reasons for doing so must affirmatively appear. Those reasons must be based upon
objective information concerning identifiable conduct on the part of the defendant occurring
after the time of the original sentencing proceeding. And the factual data upon which the
increased sentence is based must be made a part of the record, so that the constitutional
legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 726.
[Headnote 5]
The record of the second sentencing does not satisfy that standard. It does not show
identifiable conduct by the defendant occurring after the original sentence which would
justify a more severe sentence. The only relevant conduct of the defendant noted by the court
was his desire to plea bargain to avoid the expense to the county of trial and to obtain an
advantage for himself. This was the defendant's right. All other conduct referred to by the
judge was before the court when the first sentence was imposed.
____________________

2
Although the grand larceny statute, NRS 205.220, does not mention, as an element of the offense, an intent
permanently to deprive the owner of his property, the trial court instructed the jury that such a specific intent was
a necessary element of the crime charged. Neither party has questioned the propriety of that instruction.

3
When pronouncing the second sentence, the court gave full credit for time already served, thereby honoring
the constitutional guarantee against multiple punishments for the same offense. North Carolina v. Pearce, 395
U.S. 711 at 718, 719 (1969).
90 Nev. 95, 99 (1974) Holbrook v. State
For the reasons expressed we affirm the conviction for grand larceny, but modify the
sentence to six years, the term originally imposed. NRS 177.265; Spillers v. State, 84 Nev.
23, 31, 436 P.2d 18 (1968).
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 99, 99 (1974) Maupin v. Sheriff
BARBARA J. MAUPIN, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7538
March 5, 1974 520 P.2d 237
Appeal from an order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Leonard I. Gang, Judge.
Accused was charged with attempted murder and ordered to stand trial. The district court
denied accused's petition for habeas corpus and accused appealed. The Supreme Court held
that evidence that accused knocked on the front door of a residence and told person who
answered the door that she wanted to talk to him and that another person then approached the
residence with a pistol in his hand and fired four shots into the house showed probable cause
to believe that accused was guilty of attempted murder; and that court was not concerned with
prospect that the evidence might be insufficient to sustain conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas D. Beatty, Chief Deputy Public
Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence that accused went to the front door of a residence, told person who answered the door that she
wanted to talk to him and that another person then approached the residence with a pistol in his hand, and,
after persons inside shut the door and fell to the floor, fired four bullets into the house was sufficient to
show probable cause to believe that accused was guilty of attempted murder.
90 Nev. 99, 100 (1974) Maupin v. Sheriff
2. Habeas Corpus.
Supreme Court in reviewing denial of petition for habeas corpus which alleged that there was no probable
cause to hold accused on charge of attempted murder, was not concerned with prospect that the evidence
presently in the record might, by itself, be insufficient to sustain a conviction.
OPINION
Per Curiam:
Appellant and Larry Hanrahan were charged with attempted murder and, after preliminary
examination, ordered to stand trial. Appellant then filed a pretrial petition for habeas corpus
contending the evidence adduced before the magistrate was insufficient to establish probable
cause to hold her for trial. Her argument in support of the habeas petition suggests our
decision in Sheriff v. Hicks, 89 Nev. 78, 506 P.2d 766 (1973), is dispositive of her
contention.
The trial court concluded that probable cause was shown and denied the habeas petition.
This appeal was perfected and the same contention is reurged.
The record before us reflects, inter alia, that about 5:30 a.m., April 27, 1973, Michael
Morabito, Jr., was awakened by appellant knocking on the front door of his residence.
Identifying appellant through a peephole, he asked the purpose of her visit; she stated that
she wanted to talk to him. He opened the door and observed Larry Hanrahan approaching the
door with a pistol in his hand. Michael Morabito, Jr. slammed the door and, together with his
father, Michael Morabito, Sr., who had just entered the room, hit the floor. Hanrahan then
fired four bullets into the house: two into the door knob, one through the door below the door
knob and one through the living room window and into the kitchen.
Appellant's reliance on Hicks is misplaced. There the homicide was accomplished by an
intended victim of a thwarted burglary attempt. In that case we rejected the State's contention
that the felony-murder rule would have permitted the homicide charges against proponents of
the burglary and said: the felony-murder rule does not apply when the killing is done by the
victim of the crime, because in such a case the malice aforethought necessary for murder is
not attributable to the accomplice felon. 89 Nev. at 81-82, 506 P.2d at 768. Nothing in the
record before us suggests appellant to be an intended victim not subject to prosecution under
the Hicks rationale.
In Hicks the prosecution also sought to charge those appellants with attempted murder,
based on the amount of force they used in their effort to gain entry.
90 Nev. 99, 101 (1974) Maupin v. Sheriff
they used in their effort to gain entry. The evidence showed that one of the cohorts involved
in the burglary effort struck the intended victim on the head with a gun knocking him to the
floor. We noted that the trial judge correctly concluded that such assault and battery was not
sufficient evidence to support an attempted murder charge.
In the instant case the recited facts are not remotely akin to those in Hicks; instead, they
more appropriately fall within our decision in Robertson v. Sheriff, 85 Nev. 681, 462 P.2d
528 (1969), where we said that presence, companionship, and conduct before and after the
offense are circumstances from which one's participation in the criminal intent may be
inferred. 85 Nev. at 683, 462 P.2d at 529.
[Headnotes 1, 2]
The trial court concluded that the state met its burden of showing probable cause to sustain
the charge and we find no error in that determination. [W]e are not now concerned with the
prospect that the evidence presently in the record may, by itself, be insufficient to sustain a
conviction. McDonald v. Sheriff, 89 Nev. 326, 327, 512 P.2d 774, 775 (1973).
Affirmed.
____________
90 Nev. 101, 101 (1974) Justice v. Warden
HOWARD WILLIAM JUSTICE, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 7240
March 26, 1974 520 P.2d 600
Appeal from an order denying post-conviction relief; First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
Prisoner petitioned for post-conviction relief to reduce concurrent sentences for
convictions on two counts of robbery. The district court entered a judgment denying relief
and the prisoner appealed. The Supreme Court held that under the circumstances the incorrect
statement in presentence report that defendant had been convicted of two prior felonies when
in fact he had been convicted of only one did not deny due process.
Affirmed.
Gary A. Sheerin, State Public Defender, Carson City, for Appellant.
90 Nev. 101, 102 (1974) Justice v. Warden
Robert List, Attorney General, Carson City; and Michael E. Fondi, District Attorney,
Carson City, for Respondent.
Constitutional Law.
Where record showed that recommendation of those who prepared presentence report on defendant
which showed that he had been convicted of two prior felonies although he had been convicted of only one,
would have been the same and that judge did not primarily rely on such incorrect information in imposing
sentence since he considered fact that defendant was on parole when he committed robberies and used the
firearm in committing them, there was no denial of due process because of error in presentence report.
OPINION
Per Curiam:
The district court denied the post-conviction petition of Justice to reduce concurrent
sentences for convictions of two counts of robbery. Justice claimed that his sentence was the
result of an incorrect presentence report which reflected that he had been convicted of two
prior felonies when in fact he had only been convicted of one. Consequently, he contends that
he was denied due process.
The record shows that the recommendation of those who prepared the presentence report
would have been the same not withstanding the mistake. Moreover, it is clear that the judge
did not primarily rely upon the incorrect information. He considered the fact that Justice was
on parole when he committed the robberies and used a firearm in committing them. In these
circumstances we do not perceive a denial of due process.
Affirmed.
____________
90 Nev. 102, 102 (1974) McCann v. Paul
MARION R. McCANN, Appellant, v. ROSE S.
PAUL, Respondent.
No. 7209
March 26, 1974 520 P.2d 610
Appeal from judgment denying specific performance; Eighth Judicial District Court, Clark
County; Leonard I. Gang, Judge.
Appeal by purchaser from a judgment of the district court denying specific performance of
a real estate contract made with vendor. The Supreme Court held that denial of specific
performance was not an abuse of discretion absent evidence that purchaser had paid a
considerable portion of purchase price, had entered upon property and enhanced its value by
placing improvements thereon, or some other similar circumstance as would constitute a
forfeiture of substance if relief were not granted.
90 Nev. 102, 103 (1974) McCann v. Paul
placing improvements thereon, or some other similar circumstance as would constitute a
forfeiture of substance if relief were not granted.
Affirmed.
Lionel Sawyer Collins & Wartman, and Steve Morris, of Las Vegas, for Appellant.
Wiener, Goldwater & Galatz, Ltd., of Las Vegas, for Respondent.
1. Vendor and Purchaser.
Specific performance may be granted a defaulting purchaser who later tenders performance without
unreasonable delay if circumstances have not intervened to make it inequitable to give such relief.
2. Appeal and Error; Specific Performance.
Decision to either grant or refuse specific performance is addressed to sound discretion of trial court and
will not be disturbed on appeal unless an abuse of discretion is shown.
3. Vendor and Purchaser.
Denial of specific performance of real estate contract was not an abuse of discretion absent evidence that
purchaser had paid a considerable portion of purchase price, had entered upon property and enhanced its
value by placing of improvements thereon, or some other similar circumstance as would constitute a
forfeiture of substance if relief were not granted.
OPINION
Per Curiam:
Marion McCann, purchaser, appeals from a judgment denying him specific performance of
a contract made with Rose Paul, seller, for the purchase of unimproved real property. He had
paid $250 for an option to purchase the property, exercised that option, and paid an additional
$500 when escrow was opened. However, he failed to tender the balance of the purchase
price, $6,250 when it was due. He did tender the balance twenty-nine days later. It is his
contention that the district court should have granted him equitable relief since his late tender
of payment did not prejudice the seller.
[Headnotes 1-3]
Specific performance may be granted a defaulting purchaser who later tenders
performance without unreasonable delay, if circumstances have not intervened to make it
inequitable to give such relief. Slobe v. Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 (1968);
Moore v. Prindle, 80 Nev. 369, 394 P.2d 352 (1964). Of course, the decision to either grant or
refuse specific performance is addressed to the sound discretion of the trial court and will
not be disturbed on appeal unless an abuse of discretion is shown.
90 Nev. 102, 104 (1974) McCann v. Paul
the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. In
those instances where equitable relief is granted to the purchaser, we normally find that he
has paid a considerable portion of the purchase price, or has entered upon the property and
enhanced its value by the placing of improvements thereon, or some other similar
circumstance that would constitute a forfeiture of substance, if such relief were not given.
Slobe v. Kirby Stone, Inc., supra; Moore v. Prindle, supra; Mosso v. Lee, et al., 53 Nev. 176,
295 P. 776 (1931); Canepa v. Durham, 62 Nev. 417, 153 P.2d 899 (1944). Such
circumstances do not appear in the record before us, and we are, therefore, unable to rule that
the district court abused its discretion in denying equitable relief to the defaulting purchaser.
Affirmed.
____________
90 Nev. 104, 104 (1974) Ramsay's Inc. v. Nat'l Cash Register Co.
RAMSAY'S, INC., dba RAMSAY'S GIFT SHOP and 7-11 FASHIONS, Appellant, v.
NATIONAL CASH REGISTER COMPANY, a Corporation, Respondent.
No. 7249
March 26, 1974 520 P.2d 237
Appeal from judgment; Eighth Judicial District Court, Clark County; Leonard I. Gang
Judge.
Action by seller to recover on contract for installment purchase of cash registers. The
district court rendered judgment for plaintiff and defendant appealed. The Supreme Court
held that evidence supported finding adverse to buyer's contention that goods were not
merchantable or fit for purpose intended.
Affirmed.
[Rehearing denied April 19, 1974]
Foley Brothers, of Las Vegas, for Appellant.
J. Forest Cahlan, of Las Vegas, for Respondent.
Sales.
Evidence in seller's action to recover on contract for sale of cash registers supported finding adverse to
buyer's contention that goods were not merchantable or fit for purpose intended.
OPINION
Per Curiam:
This action by National Cash Register Company against Ramsay's, Inc., was brought to
recover money remaining due upon contracts for the installment purchase of cash
registers.
90 Nev. 104, 105 (1974) Ramsay's Inc. v. Nat'l Cash Register Co.
upon contracts for the installment purchase of cash registers. The district court denied
Ramsay's contention that the goods were neither merchantable nor fit for the purpose
intended, and entered judgment for National Cash Register. That contention tendered fact
issues which the court resolved against Ramsay. Since substantial evidence supports that
determination we must affirm.
Affirmed.
____________
90 Nev. 105, 105 (1974) Univ. of Nev. v. State Employees Ass'n
UNIVERSITY OF NEVADA and FRED M. ANDERSON, LOUIS E. LOMBARDI, JAMES
L. BUCHANAN, II, PAUL D. McDERMOTT, WILLIAM W. MORRIS, HELEN
THOMPSON, FLORA DUNGAN, HAROLD J. JACOBSEN and MEL STENINGER, The
Board of Regents of the University of Nevada, Appellants, v. STATE OF NEVADA
EMPLOYEES ASSOCIATION, INC., a Nevada Corporation, and GILBERT A. VELARDE,
EUGENE HILL, JOSE I. MAESTAS, MARIE ELSPETH SCHULT, JESSIE DAY,
HARRISON TAYLOR, KENNETH L. STREET, CHRISTOPHER STONE McKENNEY,
CARRIE ETHEL CLARK, JERYL DEAN JESSOP, BARBARA SUE SEAL, CORDELIA
P. TATUM, LUCILLE D. CAFFARATTI, ALICE L. BENEVIDES, FLORENCE B. RIDGE,
MARGARET G. TODD, IRENE FRANCES POSCH, LUCINDA MARIE HARRIS,
MERLE HORTENSE NORTON, MARY FRANCES RAYHILL, GEORGIA ELDORA
RECAMI, SVEND D. PETERSEN, FERN ESTELLA HUTTON, THELMA GEORGIA
OREBUCK, KARL ROBERT BURKHART, CHRISTOPHER DEAN PEIRCE, INEZ
JULIA BONI, EILEEN BROWN, SYDNEY MOISANT, MAUDIE D. BEERS and MARY
DOROTHY KUNSCH, Respondents.
No. 7460
March 26, 1974 520 P.2d 602
Appeal from order granting permanent injunction, Second Judicial District Court, Washoe
County; Emile J. Gezelin, Judge.
Action to enjoin University from laying off state employees. The district court granted
permanent injunction, and defendants appealed. The Supreme Court, Gunderson, J., held that
record established that University officials proceeded in absolute good faith, upon mature
deliberation, for highly substantial not compelling reasons, and with respect for legal
rights and personal well-being of classified employees in terminating state-managed food
service and in contracting to obtain meals through private contractor.
90 Nev. 105, 106 (1974) Univ. of Nev. v. State Employees Ass'n
good faith, upon mature deliberation, for highly substantial not compelling reasons, and with
respect for legal rights and personal well-being of classified employees in terminating
state-managed food service and in contracting to obtain meals through private contractor.
Reversed.
Robert List, Attorney General, Carson City, and Procter Hug, Jr., Special Deputy Attorney
General, Reno, for Appellants.
Sanford, Sanford, Fahrenkopf & Mousel, of Reno, for Respondents.
1. Officers.
Mere intentions, good will, or good faith by state cannot justify supplanting permanent civil service
employees through reorganization functionally equivalent to sham abolition of existing positions.
2. Officers.
Even good-faith abolition of classified positions may be unlawful if done without sufficient, legally
cognizable reason.
3. Officers.
Appointing authority may not abolish civil service positions and obtain substitute services through private
contractor, unless it not only acts in good faith, to effect real and not fundamentally sham reorganization,
but also for substantial rather than arbitrary and capricious reasons. NRS 47.250, subd. 9, 284.010 et
seq., 284.173, subd. 1, 284.380, subd. 1.
4. Officers.
Substantiality of reasons motivating substitution of services, previously performed by classified
employees, through private contractor must be considered in context with ideals and goals of civil service
law, and no such action can be justified by reference to supposed advantages derived from eliminating
tangible or intangible emoluments which law intends classified state employees to have. NRS 47.250,
subd. 9, 284.010 et seq., 284.173 subd. 1, 284.380, subd. 1.
5. Officers.
Record established that University officials proceeded in absolute good faith, upon mature deliberation,
for highly substantial if not compelling reasons, and with respect for legal rights and personal well-being of
classified employees in terminating state-managed food service and in contracting to obtain meals through
private contractor. NRS 47.250, subd. 9, 284.010 et seq., 284.173, subd. 1, 284.380, subd. 1.
OPINION
By the Court, Gunderson, J.:
In this action instituted by 31 classified state civil service employees and their bargaining
agent, the district court permanently enjoined the University of Nevada and its Board of
Regents from contracting for food service at the University's Reno campus with anyone
except classified state employees, and from laying off classified employees in order to
obtain food service from anyone else.
90 Nev. 105, 107 (1974) Univ. of Nev. v. State Employees Ass'n
employees and their bargaining agent, the district court permanently enjoined the University
of Nevada and its Board of Regents from contracting for food service at the University's Reno
campus with anyone except classified state employees, and from laying off classified
employees in order to obtain food service from anyone else. On appeal, the University and
Regents contend that in the circumstances prevailing, they lawfully may terminate the
existing state-managed food service, lay off its classified employees, and thenceforth obtain
meals through a private contractor. Having reviewed the record, consisting of unchallenged
documentary evidence and stipulations of fact, we agree.
The food service is evidently intended to be self-sustaining; the Legislature appropriates
no subsidy; dormitory residents remit lump-sum fees each semester; guests and faculty pay
per meal. On the University's Las Vegas campus, food service has always been obtained
through an independent contractor, without deficit. However, at Reno, the state-managed
food service has for several years incurred an increasing deficit, exceeding $220,000 for fiscal
1972-73. Thus, the Regents ultimately felt constrained to consider eliminating these deficits
by increasing student fees, or by organizational changes.
To study alternatives, a joint student-administration committee was created, which
suggested abolishing the existing food service, and purchasing meals as in Las Vegas, from a
private entity bearing the risk of profit or loss. The President of the University of Nevada,
Reno, with the concurrence of the Chancellor, recommended this plan to the Board of
Regents, which approved it. Accordingly, the University negotiated a contract to obtain
prepared meals through a private contractor at agreed prices, relying on a state personnel law
which declares that institutions may contract for the services of persons as independent
contractors. NRS 284.173(1). Then, on May 29, 1973, the University notified food service
employees at the Reno campus that effective June 30 they would be laid off, subject to civil
service bumping and reemployment rights. Appellants predicated these layoffs on another
personnel statute which provides that an appointing authority may lay off an employee in the
classified service whenever he deems it necessary by reason of shortage of work or funds or
the abolition of a position or of other material changes in duties or organization. NRS
284.380(1).
1

On June 18, respondents brought this action, contending the contemplated layoffs would
derogate civil service principles embodied in NRS Chapter 2S4 as a whole, and the district
court agreed.2 On appeal, the University and Regents urge inter alia that, as the district
court applied it, NRS Chapter 2S4 infringes the Regents' constitutional right and duty to
"control and manage the affairs of the University and the funds of the same."
____________________

1
To assure its workers their civil service reemployment preferences, the University contacted other state
agencies, and before the scheduled
90 Nev. 105, 108 (1974) Univ. of Nev. v. State Employees Ass'n
contemplated layoffs would derogate civil service principles embodied in NRS Chapter 284
as a whole, and the district court agreed.
2
On appeal, the University and Regents urge inter
alia that, as the district court applied it, NRS Chapter 284 infringes the Regents'
constitutional right and duty to control and manage the affairs of the University and the
funds of the same. Nev. Const. art. XI, 7; see also, art. XI, 4; cf. King v. Board of
Regents, 65 Nev. 533, 200 P.2d 221 (1948). Without reaching constitutional arguments, we
reverse the district court, holding that on the facts disclosed by the record, appellants' actions
do not appear to violate either the letter or the spirit of Nevada's merit system laws, as
contained in NRS Chapter 284.
1. Respondents contend that, despite good faith and superficial conformity with NRS
284.173(1) and NRS 284.380(1), a functional analysis shows that appellants' plan is
tantamount to a sham abolition of established civil service positions, merely supplanting
classified employees with outside personnel. In this regard, respondents rely on City of
Phoenix v. Powers, 113 P.2d 353 (Ariz. 1941), and Winslow v. Bull, 275 P. 974 (Cal.App.
1929), in which civil servants were ousted by abolishing their positions and designating
others to perform substantially the same duties under different titles. In each case, although
the appointing authority claimed to have acted for reasons of economy, the court found
otherwise, holding no actual abolition of the position had occurred, and intimating that the
appointing authority was really merely circumventing the civil service laws. The courts
ordered the original incumbents reinstated.
[Headnote 1]
On their facts, these decisions appear sound. Moreover, we agree with respondents that
mere good intentions, good will, or good faith on appellants' part cannot justify supplanting
permanent civil service employees through a reorganization functionally equivalent to a
sham abolition of existing positions.3 Still, in this case, we cannot agree that appellants'
reorganization plan is functionally a mere sham abolition of existing positions.
____________________
layoff date had arranged transfers for 15 of the 31 affected employees, all but one at the same pay-rate and
classification. Several other employees received offers, but would not discuss reemployment. Those not offered
new jobs had relatively little time in classified service.

2
Concerning the general intent of NRS Chapter 284, the statutory provisions considered most significant by
respondents and the district court recognize the goal that personnel in classified state service shall be employed
on the basis of merit and fitness. See, for example: NRS 284.010; NRS 284.150; NRS 284.205; NRS 284.280.
In its written Decision, the district court said, inter alia, that NRS Chapter 284 was offended because the
claimed reorganization' was purely and simply the replacement' of civil servants by independent personnel in
positions which were in no sense of the word abolished.
90 Nev. 105, 109 (1974) Univ. of Nev. v. State Employees Ass'n
permanent civil service employees through a reorganization functionally equivalent to a sham
abolition of existing positions.
3
Still, in this case, we cannot agree that appellants'
reorganization plan is functionally a mere sham abolition of existing positions.
After all, we cannot assume that the private contractor's methods of operation will
duplicate those the University has utilized. Apparently, it is expected that the contractor's
expert approach will be quite different; for merely eliminating civil service status for
employees could not, of itself, correct a deficit now approaching $1/4 million per year.
Except for requiring that students be employed as needed for certain unskilled work, the
contemplated agreement affords the contractor a free choice of methods. It may select new
material sources, use its own buying techniques, utilize its own inventory and accounting
procedures, and provide greater or less supervision for employees different in training,
function and number from those now employed. In short, the agreement does not envision
that the contractor will merely supply services of substantially the same kind as those now
provided by classified personnel. Instead, the contractor is to supply prepared meals, at
stipulated prices, meeting its own material costs, management salaries, employees' wages,
industrial and liability insurance premiums, and other expenses.
Thus, in our view, a functional analysis does not establish appellants' contemplated
actions to be equivalent to a sham abolition of the existing positions.
[Headnote 2]
2. We would agree, however, that even a good faith, actual abolition of classified
positions may be unlawful if done without a sufficient, legally cognizable reason.
____________________

3
Rather than speaking in terms of a functional analysis, some authorities have said that good faith in such
a case is not a question of fact but one of law. H. Elliot Kaplan, Adjunct Professor of Public Administration,
New York University, who long was Executive Director and General Counsel to the National Civil Service
League, has said:
. . . Most courts have held that the issue of good faith on the part of an administrative official is one of law
solely for the court to pass on, and not an issue of tact which may be submitted to a jury for determination. . . .
As a general rule, where positions are purported to be eliminated and incumbents laid off, and thereafter
identical or similar positions are re-established and the positions filled by others not entitled under the civil
service law and rules to such employments, the courts will not hesitate to order re-employment of the laid off
employees. H. Kaplan, The Law of Civil Service, 214-215 (1958).
Whatever vocabulary is employed to express the thought, it seems clear that a public employee's rights
should not turn on whether his ouster was undertaken with good or evil motives.
90 Nev. 105, 110 (1974) Univ. of Nev. v. State Employees Ass'n
without a sufficient, legally cognizable reason. This point may be illustrated by contrasting
the case on which respondents rely most heavily, Cunningham v. Community College District
No. 3, 489 P.2d 891 (Wash. 1971), with three that approve layoff of civil servants and
subsequent utilization of a private contractor.
In the Cunningham case, college authorities decided to lay off civil servants, and to engage
a private contractor, because they considered their existing staff inadequate to expand an
already profitable food service operation. The employees challenged these actions under a
rule that authorized layoffs only because of lack of funds or curtailment of work. Focusing
on this language, the Washington Supreme Court determined from the record that no data
existed to show lack of funds. Work was being expanded, not curtailed. Thus, the court held
the layoffs unlawful, saying:
We recognize that the trustees of institutions of higher education are charged with the
primary duty of providing the best possible education at a reasonable cost. But, in the area of
personnel, the [civil service law] is the statutory scheme within which their responsibility
must be fulfilled. Id. at 897.
Although we cannot fault this reasoning, we must measure the facts of our own case
against the layoff provisions in our own merit system laws. In this regard, one might argue
that the record before us shows shortage of funds within the meaning of NRS 284.380(1),
but since appellants have not done so, we look to other grounds for layoffs set forth in that
statute, to wit: abolition of a position or of other material changes in duties or organization.
In essence, appellants contend that an appointing authority comes within this legislative
authorization if it acts in good faith to effect an actual abolition of positions, in a true and not
fundamentally sham reorganization. We agree, provided it does not appear that the authority
is acting arbitrarily, capriciously, or for insubstantial reasons.
Corwin v. Farrell, 100 N.E.2d 135 (N.Y. 1951), is the judicial precedent decided upon
facts we consider most analogous to those before us, and which best articulates our views.
Therein, the New York Court of Appeals approved abolishing an uneconomic
government-operated title department to enter a contract with a private abstract company,
saying:
Under the circumstances here presented, . . . we are of the view that the Authority's action
here was within its power, that it was not exercised in bad faith, arbitrarily or capriciously,
nor in an attempt to evade the civil service laws. It has not appointed individuals in the
places of those dismissed but, because of the unusual situation it faced, to which we have
already adverted, it entered into a normal modern business practice of purchasing
abstracts and certifications of title at a fixed price.
90 Nev. 105, 111 (1974) Univ. of Nev. v. State Employees Ass'n
not appointed individuals in the places of those dismissed but, because of the unusual
situation it faced, to which we have already adverted, it entered into a normal modern
business practice of purchasing abstracts and certifications of title at a fixed price. The
Authority does not select, control or even approve the officers or employees of the contractor;
does not fix their compensation or their hours of work; does not engage them exclusively nor
restrict them from engaging in their regular business with anyone they choose; there is no
employer-employee relationship whatever; and these contracts do not constitute an
appointment' in the civil service.
This is not to say that any type of service performed by civil service employees may be
contracted to private firms, and where such contracts are employed as a scheme to oust civil
service employees simply to make room for others, or to mask a true employment
relationship, or to circumvent the civil service laws, even if not made in bad faith, we shall
not hesitate to strike them down. . . . Id. at 139.
These views, we think, would impel the same result as the Washington court reached in
the Cunningham case, wherein the record showed that no substantial reason to supplant
classified personnel existed. Such views also seem compatible with those the Maryland Court
of Appeals expressed in Ball v. Board of Trustees of State Colleges, 248 A.2d 650 (Md.
1968), when approving termination of a state-managed food service: Authorities universally
affirm the proposition that the executive departments of government may lay off a merit
system employee by abolishing the position which he holds, with the limitation that it be for a
bona fide reason and not a subterfuge to evade the merit system laws. Id. at 654. To us, it is
significant that the court spoke not merely of good faith, but of a bona fide reason, which
we take to mean a substantial and legally cognizable reason.
Of course, most states presume the regularity of official action. See: NRS 47.250(9).
Therefore, persons challenging the abolition of classified positions must make it appear that
the action is in bad faith, fundamentally a sham, or is undertaken arbitrarily, capriciously or
for insubstantial reasons. Accordingly, in Connecticut State Employees Association v. Board
of Trustees (Conn. 1974), a university's trustees terminated a state-managed food service to
obtain meals through a private contractor. The Connecticut Supreme Court upheld the
trustees, noting that the record indicated they were acting for reasons cognizable under
Connecticut's layoff statute, and observing: Moreover, since the board was acting in its
official capacity, it is presumed, until the contrary appears, that it acted legally and
properly.
90 Nev. 105, 112 (1974) Univ. of Nev. v. State Employees Ass'n
capacity, it is presumed, until the contrary appears, that it acted legally and properly. [Citing
authorities.] The burden of rebutting this presumption . . . thus clearly devolved upon the
plaintiffs.
[Headnotes 3, 4]
3. In summary, then, NRS 284.380(1) and NRS 284.173(1) do not combine to afford an
absolute alternative to Nevada's civil service system. We reject any suggestion that good
faith alone will justify substituting a private contractor for an existing and stable
state-operated service. To the contrary, we believe that under NRS Chapter 284 an appointing
authority may not abolish civil service positions and obtain substitute services through a
private contractor, unless it not only acts in good faith, to effect a real and not fundamentally
sham reorganization, but also for substantial rather than arbitrary and capricious reasons.
Moreover, we believe that the substantiality of reasons motivating such a substitution must be
considered in context with the ideals and goals of NRS Chapter 284, and that therefore no
such action can be justified by reference to supposed advantages derived from eliminating
tangible or intangible emoluments which Nevada law intends classified state employees to
have.
[Headnote 5]
Notwithstanding all this, we believe the record before us fails to show that appellants have
offended these criteria, and instead it shows that they have proceeded in absolute good faith,
upon mature deliberation, for highly substantial if not compelling reasons, and with respect
for their employees' legal rights and personal well-being. Therefore, the judgment of the
district court is reversed, without costs.
Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 112, 112 (1974) Rouseau v. Dieleman
SILVITA ROUSEAU, Appellant, v. JAKE DIELEMAN and JAKE'S CRANE & RIGGING,
INC., a Corporation, Respondents.
No. 7212
March 26, 1974 519 P.2d 1135
Appeal from judgment dismissing action under NRCP 41(b), Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
Affirmed.
90 Nev. 112, 113 (1974) Rouseau v. Dieleman
Eric Zubel, of Las Vegas, for Appellant.
Ralph L. Denton, of Las Vegas, for Respondents.
OPINION
Per Curiam:
We find no reversible error in the trial court's order, which dismissed plaintiff's action
pursuant to NRCP 41(b), after presentation of her evidence. On review of the record, we
believe the trial judge could properly determine, not only that plaintiff failed to prove any
actual damage by reason of the defendants' alleged trespass upon her land, but also that she
failed to prove either of them was indeed responsible for the alleged trespass.
Affirmed.
____________
90 Nev. 113, 113 (1974) Stern v. Jacobson
MARTIN STERN, Jr., Appellant, v. NATHAN
JACOBSON, Respondent.
No. 7234
March 26, 1974 520 P.2d 614
Appeal from summary judgment for defendant; Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
In action to recover money for architectural services, the district court rendered summary
judgment in favor of defendant, and plaintiff appealed. The Supreme Court held that genuine
issues of material fact, precluding summary judgment, existed as to, inter alia, the capacity in
which defendant acted and whether plaintiff rendered services in reliance on defendant's
personal financial responsibility.
Reversed.
Cromer and Barker, of Las Vegas, and Erickson & Thorpe, of Reno, for Appellant.
Thomas R. Sheridan, of Los Angeles, California, and Petersen and Petersen, of Reno, for
Respondent.
Judgment.
In action to recover money for architectural services, genuine issues of material fact, precluding summary
judgment, existed as to, inter alia, whether defendant was principal or agent for a
principal whose identity had been disclosed or undisclosed and whether, in any event,
services were rendered in reliance on defendant's personal financial responsibility.
90 Nev. 113, 114 (1974) Stern v. Jacobson
to, inter alia, whether defendant was principal or agent for a principal whose identity had been disclosed or
undisclosed and whether, in any event, services were rendered in reliance on defendant's personal financial
responsibility.
OPINION
Per Curiam:
Martin Stern, Jr., commenced this action to recover money for architectural services
rendered to Nathan Jacobson. After issue was joined, Jacobson moved for summary judgment
on the ground that in dealing with Stern, he, Jacobson, was acting solely in a representative
capacity and as agent for Lake Enterprises, Inc., the general partner of Kings Castle Limited
Partnership, a disclosed principal and, therefore, was not personally liable to Stern. The
district court granted that motion, and this appeal followed.
It is apparent from the record that genuine issues of mate rial fact exist with regard to
numerous matters, including, but not limited to the capacity in which Jacobson acted, whether
Jacobson was in fact the principal, or an agent for a principal whose identity was disclosed or
undisclosed, and whether, in any event, Stern rendered services in reliance upon Jacobson's
personal financial responsibility and was justified in looking to him for payment.
Reversed and remanded for trial.
____________
90 Nev. 114, 114 (1974) Mohasco Indus. v. Anderson Halverson Corp.
MOHASCO INDUSTRIES, INC., a New York Corporation Which Does Business as
Alexander Smith Carpets, Appellant, v. ANDERSON HALVERSON CORPORATION, a
Nevada Corporation, and UNITED RESORT HOTELS, INC., Which Does Business as
Stardust Hotel, a Nevada Corporation, Respondents.
No. 7136
March 26, 1974 520 P.2d 234
Appeal from judgment for defendants; Eighth Judicial District Court, Clark County;
Leonard I. Gang, Judge.
Action by seller of carpet for price of carpet installed in defendant's hotel. The district
court entered judgment for defendants, and plaintiff appealed. The Supreme Court,
Thompson, C. J., held that seller did not breach express or implied warranties.
90 Nev. 114, 115 (1974) Mohasco Indus. v. Anderson Halverson Corp.
Thompson, C. J., held that seller did not breach express or implied warranties.
Reversed with directions.
Streeter, Sala & McAuliffe, of Reno, and L. Earl Hawley, of Las Vegas, for Appellant.
Jones, Jones, Close, Bilbray, Kaufman & Olsen, Ltd., of Las Vegas, for Respondent
United Resort Hotels, Inc.
Foley Brothers, of Las Vegas, for Respondent Anderson Halverson.
1. Sales.
Whether sale of carpet to hotel be deemed sale by description or by sample, where installed carpet
conformed precisely to description of goods contained in purchase order, express warranty or conformity
was met.
2. Sales.
Fact that installed carpet shaded to degree not anticipated by buyer or its representative did not result in
breach of express warranty of conformity with description or sample where carpet delivered was precisely
that which buyer selected and ordered. NRS 104.2313.
3. Sales.
Implied warranty of merchantability is limited by express warranty of conformity to precise description
by buyer, and if latter warranty is not breached, neither is former; accordingly, where carpet installed in
hotel conformed to specifications given seller, there was no breach of implied warranty of merchantability,
even though carpet shaded to extent not anticipated by hotel. NRS 104.2314.
4. Sales.
Where hotel which ordered carpet made its own selection and supplied seller with detailed specifications
which omitted twist yarn there was no implied warranty of fitness. NRS 104.2315.
OPINION
By the Court, Thompson, C. J.:
Alexander Smith Carpets, a division of Mohasco Industries, Inc., brought this action to
recover $18,242.50 for specially fabricated carpet which it manufactured and delivered for
installation in the hotel lobby and casino showroom of the Stardust Hotel at Las Vegas,
Nevada.
1
The Stardust had refused to pay since the carpet shaded excessively giving it a
mottled effect and the appearance of being water stained.
____________________

1
The defendants were United Resort Hotels, Inc., doing business as Stardust Hotel, and Anderson Halverson
Corporation, the retail seller and installer of the carpet.
90 Nev. 114, 116 (1974) Mohasco Indus. v. Anderson Halverson Corp.
a mottled effect and the appearance of being water stained. The trial court found that its
refusal to pay was justified, and denied recovery to the plaintiff. This appeal followed.
1. The relevant facts are these. One Fritz Eden, an interior decorator selected and hired by
Stardust, designed a pattern for the carpet to be used in the hotel lobby and casino showroom.
A sample run of the chosen pattern was taken to the hotel by Eden, and was approved. Eden
then specified the material and grade of carpet which the Stardust also approved. The Stardust
then issued a detailed purchase order designating the type and length of yarn, weight per
square yard, type of weave, color and pattern. No affirmation of fact or promise was made by
any representative of Alexander Smith Carpets, the seller, to Stardust, the buyer. The carpet
which was manufactured, delivered and installed was consistent with the sample (cf. Mobile
Housing, Inc. v. Stone, 490 S.W.2d 611 (Tex.Civ. App. 1973)), and precisely conformed to
the detailed purchase order. There were no manufacturing defects in the carpet. Cf. Santor v.
A. and M. Karaghensia, Inc., 207 A.2d 305 (N.J. 1965).
Upon installation, however, the carpet did shade and, apparently, to a much greater extent
than the Stardust or its representative had anticipated. It is clear from the testimony that
shading is an inherent characteristic of all pile carpeting.
When the tufts of the carpet are bent in different angeles, the light reflection causes
portions of the carpet to appear in different shades of the same color. The only explanation in
the record for the excessive shading was that Fritz Eden, the decorator for Stardust, decided
not to specify the more expensive twist yarn. That type yarn causes the tufts to stick straight
up (or at least tends to do so) thus aiding in the elimination of excessive shading.
The trial court found that the sale of the carpet was a sale by sample which was made a
part of the basis of the bargain and created an express warranty that the carpet delivered for
installation would conform to the sample. Moreover, that the express warranty was breached
by the seller, thus precluding its claim for relief.
2
The judgment entered rests squarely upon
that finding.
____________________

2
NRS 104.2313. 1. Express warranties by the seller are created as follows:
(a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes
part of the basis of the bargain
90 Nev. 114, 117 (1974) Mohasco Indus. v. Anderson Halverson Corp.
[Headnote 1]
That finding is clearly erroneous. The installed carpet conformed precisely to the
description of the goods contained in the purchase order. Moreover it conformed precisely to
the sample which the buyer approved. Whether the sale be deemed a sale by description or by
sample, in either event the express warranty of conformity was met. The seller delivered the
very carpet which the buyer selected and ordered.
[Headnote 2]
Although there is substantial evidence to support the trial court's finding that the installed
carpet shaded excessively, that consequence may not be equated with a breach of an express
warranty since the seller delivered and installed the very item which the buyer selected and
ordered. Had the buyer, through its interior decorator, selected the more expensive carpet
with twist yarn, perhaps this controversy would not have arisen. The buyer, not the seller,
must bear the consequence of that mistake.
[Headnote 3]
2. As already noted, the judgment below rests upon an erroneous finding that the seller
breached an express warranty that the whole of the carpet would conform to the sample which
the buyer had approved. The buyer suggests, however, that the judgment should be sustained
in any event since it is otherwise clear that the seller breached the implied warranties of
merchantability and fitness. We turn to consider this contention.
a. Unless excluded, or modified, a warranty of merchantability is implied in a contract if
the seller is a merchant with respect to the goods in question.
3
We have not, heretofore, had
occasion to consider the impact, if any, of the implied warranty of merchantability upon a
case where the goods are sold by sample or description and the buyer's specifications are
so complete that it is reasonable to conclude that he had relied upon himself and not the
seller with regard to the merchantability of the goods.
____________________
creates an express warranty that the goods shall conform to the affirmation or promise.
(b) any description of the goods which is made part of the basis of the bargain creates an express warranty
that the goods shall conform to the description.
(c) any sample or model which is made part of the basis of the bargain creates an express warranty that the
whole of the goods shall conform to the sample or model.

3
NRS 104.2314. 1. Unless excluded or modified (NRS 104.2316), a warranty that the goods shall be
merchantable is implied in a contract for their sale it the seller is a merchant with respect to goods of that kind.
Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a
sale.
2. Goods to be merchantable must be at least such as:
90 Nev. 114, 118 (1974) Mohasco Indus. v. Anderson Halverson Corp.
occasion to consider the impact, if any, of the implied warranty of merchantability upon a
case where the goods are sold by sample or description and the buyer's specifications are so
complete that it is reasonable to conclude that he had relied upon himself and not the seller
with regard to the merchantability of the goods. In a related context, that of a building
contractor who performed his work in accordance with detailed plans and specifications
supplied by the owner, we have ruled that he may recover for his services even though his
work may not have fully accomplished the purposes intended. Home Furniture, Inc. v.
Brunzell Construction Company, 84 Nev. 309, 314, 440 P.2d 398 (1968).
It is apparent that in a case where the sample or description of the goods may, for some
reason, result in an undesirable product, the seller is placed in a dilemma. In Hawkland, A
Transactional Guide to the Uniform Commercial Code, sec. 1.190206, at 65, the following
example is given. Suppose a buyer provides his seller with minute specifications of the
material, design and method of construction to be utilized in preparation of an order of shoes,
and the seller delivers to the buyer shoes which exactly conform to the specifications. If the
blueprints are in fact designs of defective shoes, the buyer should not be able to complain that
the shoes are defective. For such an order might put the seller in the dilemma of being forced
to breach either the express warranty of description or the implied warranty of
merchantability.
The matter at hand is similar to the example just given. Although the carpet was not
defective, it did shade excessively and was, in the view of the buyer, an undesirable product.
Yet, it was the product which the buyer specified and ordered. The manufacturer-seller was
not at liberty to add twist yarn and charge a higher price. The buyer relied upon its
decorator, Fritz Eden, and the seller performed as directed.
____________________
(a) Pass without objection in the trade under the contract description; and
(b) In the case of fungible goods, are of fair average quality within the description; and
(c) Are fit for the ordinary purposes for which such goods are used; and
(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit
and among all units involved; and
(e) Are adequately contained, packaged and labeled as the agreement may require; and
(f) Conform to the promises or affirmations of fact made on the container or label if any.
3. Unless excluded or modified (NRS 104.2316) other implied warranties may arise from course of dealing or
usage of trade.
90 Nev. 114, 119 (1974) Mohasco Indus. v. Anderson Halverson Corp.
Fritz Eden, and the seller performed as directed. In these limited circumstances we conclude
that the reasoning of Home Furniture, Inc. v. Brunzell Construction Company, supra, applies
with equal force to this case. More precisely, we hold that the implied warranty of
merchantability is limited by an express warranty of conformity to a precise description
supplied by the buyer, and if the latter warranty is not breached, neither is the former.
[Headnote 4]
b. Where the seller at the time of contracting had reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller's skill or judgment
to select or furnish suitable goods, there is unless excluded or modified . . . an implied
warranty that the goods shall be fit for such purpose. NRS 104.2315.
Buyer reliance is lacking in this case. The buyer used its own judgment, made its own
selection and supplied the seller with detailed specifications which omitted twist yarn. A
warranty of fitness may not be implied in these circumstances.
3. The judgment for United Resort Hotels, Inc., doing business as Stardust Hotel is
reversed, and since there is no dispute concerning the amount of the plaintiff's claim, the
cause is remanded to the district court to enter judgment for the plaintiff against the said
defendant for $18,242.50, together with appropriate interest and costs.
The plaintiff also sued Anderson Halverson Corporation, the retail seller and installer of
the carpet. Since the findings of fact do not apprise this court of the view of the trial court on
this claim for relief, we set aside the judgment for that defendant in order that appropriate
findings and judgment may be made and entered on this aspect of the case.
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 119, 119 (1974) Flournoy v. McKinnon Ford Sales
MIKE FLOURNOY, Appellant, v. McKINNON
FORD SALES, Respondent.
No. 7395
March 28, 1974 520 P.2d 600
Appeal from order granting change of venue; Second Judicial District Court, Washoe
County; Thomas O. Craven, Judge.
90 Nev. 119, 120 (1974) Flournoy v. McKinnon Ford Sales
The Supreme Court, Thompson, C. J., held that corporate designation of principal place of
business in official documents on file, and relied upon by plaintiff, was conclusive as to
corporation insofar as venue of action was concerned, despite fact that actual place of
business was in another county.
Reversed.
McCune and Williams, of Reno, for Appellant.
Erickson and Thorpe and George W. Swainston, of Reno, for Respondent.
1. Corporations.
As with a natural person, a domestic corporation is deemed to have residence at some place in state and
that place is generally regarded as being one in which principal office or place of business is located. NRS
13.040, 13.050, subd. 2(b), (c), 78.035, 78.090, subd. 1.
2. Corporations.
Corporate designation of principal place of business in official documents on file, and relied upon by
plaintiff, was conclusive as to corporation insofar as venue of action was concerned, despite fact that actual
place of business was in another county. NRS 13.040, 13.050 subd. 2(b), (c), 78.035, 78.055, 78.090,
subd. 1, 78.110.
3. Corporations.
With respect to venue, statute directing that certified copy of articles of incorporation shall be received in
all courts as prima facie evidence of facts therein stated permits controverting evidence from a party other
than corporation. NRS 78.055.
OPINION
By the Court, Thompson, C. J.:
This action to recover damages for the negligent repair of a truck was commenced in
Washoe County by Mike Flournoy. The defendant McKinnon Ford Sales, a domestic
corporation, timely filed a demand and motion to change venue to Pershing County, the only
county in Nevada where it does business. The defendant's articles of incorporation designated
an address in Reno, Washoe County, Nevada, as its principal office or place of business, and
the certificate of the resident agent in charge of its principal office also specified an address in
Washoe County.
1
The conflict between the corporate defendant's actual place of business,
Pershing County, and its principal place of business reflected by its official corporate
documents on file and of record, Washoe County, tenders the issue of this appeal.
____________________

1
NRS 78.035: The certificate or articles of incorporation shall set forth:
1. . . . .
90 Nev. 119, 121 (1974) Flournoy v. McKinnon Ford Sales
place of business, Pershing County, and its principal place of business reflected by its official
corporate documents on file and of record, Washoe County, tenders the issue of this appeal.
The district court ruled for the defendant and transferred the cause to Pershing County.
It is the plaintiff's position that he is privileged to rely upon official records of the
corporate defendant for the purposes of venue, and that such defendant may not be heard to
assert that its corporate residence or principal place of business is other than reflected by such
records.
2
The defendant insists that the determination of its residence within the
contemplation of the venue statute is a question of fact in each case, and that it is not
foreclosed by the designation in official documents which it caused to be prepared and filed.
[Headnotes 1, 2]
As with a natural person, a domestic corporation is deemed to have a residence at some
place in the state and that place is generally regarded as being the one at which the principal
office or place of business is located. State v. Circuit Court for Multnomah County, 211 P.2d
994, 999 (Ore. 1949). The parties to this case acknowledge this to be so. The issue, then, is
whether the corporate designation of a principal place of business in official documents on
file, and relied upon by the plaintiff, is conclusive as to the corporation insofar as venue of
that action is concerned. We hold that it is.
[Headnote 3]
The authorities elsewhere are not uniform. See Annot., 175 A.L.R. 1092.
____________________
2. The name of the county, and of the city or town, and of the place within the county, city or town in which
its principal office or place of business is to be located in this state, giving the street and number wherever
practicable; . . . .
NRS 78.090(1): Every corporation shall have a resident agent, who may either be an individual or a
corporation, resident or located in this state, in charge of its principal office.

2
Unlike many states, Nevada does not have a venue statute dealing solely with in action against a domestic
corporation. Consequently, the general venue statute applies. Insofar as the instant case is concerned the
controlling statute is NRS 13.040 which in relevant part provides: In all other cases 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 Washoe County court could have entertained a timely motion to change venue upon the discretionary
grounds specified in NRS 13.050(2)(b)(c). Fabbi v. First National Bank, 62 Nev. 405, 153 P.2d 122 (1944);
Stocks v. Stocks, 64 Nev. 431, 438, 183 P.2d 617 (1947). The defendant did not base its motion on such
grounds, but chose to rely solely upon NRS 13.040.
90 Nev. 119, 122 (1974) Flournoy v. McKinnon Ford Sales
A.L.R. 1092. The leading case on point is Higgins v. Hampshire Products, 30 N.W.2d 390
(Mich. 1948). The court held that the designation in the articles of incorporation of the
principal place of business was conclusive as to the corporation for purposes of venue,
although such designation may not be binding on other parties.
3
It reasoned that one of the
legislative purposes in requiring that the articles of incorporation specify the address of the
corporation's principal place of business was to fix its location or residence under the venue
statutes, and concluded that those searching the records should be entitled to rely upon the
representations therein contained. This reasoning appeals to us. A corporation is charged with
a duty to see that its records speak the truth. It should not be permitted to frustrate the
legislative purpose by offering evidence in contradiction of its official documents. Should the
corporation desire to change its principal place of business from time to time, it may do so by
appropriate amendment to its articles, or by board resolution certified and filed with the
Office of the Secretary of State. NRS 78.110.
We reverse the order changing the place of trial and direct that the cause be returned to the
Second Judicial District Court for Washoe County.
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________________

3
NRS 78.055 provides that a certified copy of articles of incorporation shall be received in all courts as
prima facie evidence of the facts therein stated. Thus, it would seem that controverting evidence may be
received. As to venue, we construe that statute to allow controverting evidence from a party other than the
corporation.
____________
90 Nev. 122, 122 (1974) Moore v. Miller
JAMES B. MOORE, Appellant, v. GEORGE E. MILLER, Nevada State Welfare
Administrator; and the NEVADA STATE WELFARE BOARD, Respondents.
No. 7017
March 28, 1974 520 P.2d 612
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Petition for review of denial of medical assistance under aid to the permanently and totally
disabled program. The district court denied relief and petitioner appealed. The Supreme Court
held that evidence supported findings that claimant was neither permanently nor totally
disabled and that petitioner had no right to cross-examine welfare board's medical review
team, where it appeared that team had performed a purely adjudicative function and that
members of team were not "adverse witnesses."
90 Nev. 122, 123 (1974) Moore v. Miller
Court held that evidence supported findings that claimant was neither permanently nor totally
disabled and that petitioner had no right to cross-examine welfare board's medical review
team, where it appeared that team had performed a purely adjudicative function and that
members of team were not adverse witnesses.
Affirmed.
B. Mahlon Brown, III, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, and Marilyn V. Romanelli, Deputy Attorney
General, of Las Vegas, for Respondents.
1. Social Security and Public Welfare.
Evidence supported findings that claimant seeking medical assistance under aid to the permanently and
totally disabled program was neither permanently nor totally disabled. NRS 428.270, subd. 2(c).
2. Social Security and Public Welfare.
In proceeding for review of denial of medical assistance under aid to the permanently and totally disabled
program, petitioner had no right to cross-examine welfare board's medical review team, where it appeared
that the team had performed a purely adjudicative function and that members of team were not adverse
witnesses.
OPINION
Per Curiam:
Denied medical assistance under Nevada's program for aid to the permanently and totally
disabled (APTD), appellant petitioned the district court for review. See: NRS 428.270(2)(c).
Again denied relief, appellant contends the court erred: (1) in determining that the aforesaid
denial of assistance was supported by substantial evidence; (2) in its [the court's] support of
the Nevada State Welfare Department's policy of denying APTD benefits to those suffering
from alcoholism; and (3) in ruling appellant had no right to cross-examine respondents'
medical review team. His counsel also complains of departmental delay in processing
appellant's application, but concedes that delay constitutes no basis for us to order benefits
paid.
January 1 of this year, a federal program operating under federal guidelines supplanted
Nevada's APTD program. Respondents' counsel therefore suggests this appeal is moot,
because respondents have no liability for future medical bills and, they assert, appellant in
fact has no bills for past services.
90 Nev. 122, 124 (1974) Moore v. Miller
and, they assert, appellant in fact has no bills for past services. The record does not reflect
what bills appellant has heretofore incurred, and therefore does not permit us to say the
appeal is totally moot. However, this Opinion obviously can have little value as precedent,
and we therefore state our reasons for affirming the district court as briefly as possible.
[Headnote 1]
1. Appellant has leveled no legal attack on respondents' definitions of disability,
permanency, and totality. Applying such definitions, we think the record supports
findings that appellant was neither permanently nor totally disabled.
2. The record also justifies rejection of appellant's contention that respondents pursued a
policy of denying benefits to those suffering from alcoholism. Cf. Rosas v. Montgomery, 88
Cal.Rptr. 907 (Cal.App. 1970). We perceive nothing to indicate that the district court found
such a policy existed, or that the court supported it.
[Headnote 2]
3. On the record, the district court could properly determine that in this case the medical
review team had performed a purely adjudicative function, and were not adverse witnesses.
Cf. Goldberg v. Kelly, 397 U.S. 254, 268 (1970).
Affirmed.
____________
90 Nev. 124, 124 (1974) Nalls v. State
DONALD NALLS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 7256
March 28, 1974 520 P.2d 611
Appeal from judgment of conviction and sentence of the Second Judicial District Court,
Washoe County; Emile J. Gezelin, Judge.
Defendant was convicted in the district court of battery with a deadly weapon, and he
appealed. The Supreme Court held that color photographs of wound were admissible, despite
contention that they were immaterial since defendant did not dispute wound's severity, where,
inter alia, defendant claimed accident and photographs tended to show angle and force of
knife thrust, which jury was entitled to consider in determining whether wound was
intentionally inflicted.
90 Nev. 124, 125 (1974) Nalls v. State
knife thrust, which jury was entitled to consider in determining whether wound was
intentionally inflicted.
Affirmed.
James W. Johnson, Jr., of Reno, for Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Photographic evidence is generally liberally admitted, so long as it sheds light on some material inquiry.
2. Criminal Law.
In prosecution for battery with a deadly weapon arising from incident in which defendant slashed his
wife's face with a knife, color photographs of the wound were admissible despite contention that they were
inflammatory and were immaterial since defendant claimed he inflicted the wound accidentally and did not
dispute the wound's severity, where wife supported defendant and minimized severity of wound and
photographs tended to show angle and force of knife thrust and thus were relevant in determining whether
to believe witnesses other than defendant and his wife concerning the wound's severity and the allegedly
intentional manner in which it was inflicted.
OPINION
Per Curiam:
Convicted by a jury of committing battery with a deadly weapon (slashing his wife's face
with a knife), appellant contends the trial court erred by admitting into evidence two color
photographs of the wound, which he claims were offered solely to inflame the passions of the
jury. Appellant's defense was that he lacked criminal intent, having inflicted the wound
accidentally. Therefore, he argues, since he did not dispute the wound's severity, the
photographs were immaterial to the issues at trial.
[Headnotes 1, 2]
Photographic evidence is generally liberally admitted, so long as it sheds light upon some
material inquiry. Alsup v. State, 87 Nev. 500, 489 P.2d 679 (1971); Langley v. State, 84 Nev.
295, 439 P.2d 986 (1968). The fact that appellant did not dispute the seriousness of the
wound did not negate the photographs' materiality. At trial, the victim supported appellant's
defense that the wound was accidentally inflicted, and minimized its severity.
90 Nev. 124, 126 (1974) Nalls v. State
and minimized its severity. The photographs tended to show the angle and force of the knife
thrust, which the jury were entitled to consider in determining whether to disbelieve appellant
and the victim, and to believe other witnesses concerning the wound's severity and the
intentional manner in which it was inflicted.
Appellant's remaining assignments of error are equally without merit.
Affirmed.
____________
90 Nev. 126, 126 (1974) Parson v. Miller
MARGARET PARSON, Appellant, v. GEORGE E. MILLER, State Welfare Administrator;
and the NEVADA STATE WELFARE BOARD, Respondents.
No. 7266
March 28, 1974 520 P.2d 607
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Appeal from a judgment of the district court affirming the action of the Welfare Division
of the Department of Human Resources in determining that appellant was not entitled to
receive AFDC payments because she owned real property in Florida of a value exceeding the
maximum limits established by law for qualification for such aid. The Supreme Court, Batjer,
J., held that where appellant's one-half interest in the Florida property was held in co-tenancy
with a widow and her minor children and was unmarketable it was not currently available
for appellant's needs and therefore could not serve as basis for disqualifying her as AFDC
recipient.
Reversed.
B. Mahlon Brown, III and Jack P. Anderson, Clark County Legal Services Program, for
Appellant.
Robert List, Attorney General, Carson City, and Marilyn Romanelli, Deputy Attorney
General, of Las Vegas, for Respondents.
Social Security and Public Welfare.
Where applicant for AFDC benefits owned undivided one-half interest in Florida property occupied by
co-tenant widow and her minor children, applicant's interest was unmarketable and attempts at obtaining
loan against interest had been unsuccessful, property was not "currently available" to applicant
so as to serve as proper ground for her disqualification to receive AFDC benefits. NRS
425.010 et seq., 425.0S0, subd.
90 Nev. 126, 127 (1974) Parson v. Miller
was not currently available to applicant so as to serve as proper ground for her
disqualification to receive AFDC benefits. NRS 425.010 et seq., 425.080, subd. 1,
425.120, subds. 2, 3; F.S.A. 222.01 et seq., 744.17, 745.05-745.15; F.S.A. Const., art.
10, 1; Social Security Act, 402(a)(7), 1102, 42 U.S.C.A. 602(a)(7), 1302;
U.S.C.A.Const. art. 6, cl. 2.
OPINION
By the Court, Batjer, J.:
On June 1, 1967, the appellant, Margaret Parson, began receiving Aid For Dependent
Children (AFDC) benefits under NRS Ch. 425. In May of 1972, that assistance was
terminated because the Welfare Division of the Department of Human Resources of the State
of Nevada determined that appellant owned real property in Florida of a value exceeding the
limits of NRS 425.080(1).
1

Appellant and S. W. Parson were divorced in 1962. He remarried, and at the time of his
death left surviving a widow, Zelma Parson, and their child, as well as the children of his
marriage to Margaret. At the time of the divorce, appellant was awarded one-half of the real
property located at 2598 N.W. 15th Street, Block 46, lot 4, Washington Park, Fort
Lauderdale, Florida. The appellant and S. W. Parson held that property as tenants-in-common
at the time of his death. This realty is subject to an encumbrance of $1,800. The assessed
value of the property on May 1, 1972 was $4,380.
After her AFDC benefits were terminated, appellant asked for and received a fair hearing
in June of 1972. NRS 425.120(2). The hearing officer denied her appeal. Appellant then
petitioned the district court for a review of the decision of the welfare division. NRS
425.120(3). The district court affirmed the decision of the welfare division, entered judgment
accordingly, and this appeal followed.
In King v. Smith, 392 U.S. 309, 316, 317 (1968), the United States Supreme Court said:
States are not required to participate in the program (AFDC), but those which desire to take
advantage of the substantial federal funds available for distribution to needy children are
required to submit an AFDC plan for the approval of the Secretary of Health, Education
and Welfare {HEW).
____________________

1
NRS 425.080(1): No assistance under this chapter shall be granted or paid to any dependent child who
owns, or whose needy relative owns, personal property or marketable non-income-producing real property, the
combined cash value of which exceeds $500 at the time application for assistance is made, or while in receipt of
such assistance. For each additional dependent child in the same home or in the same family, the $500 limitation
herein described may be increased by $150.
90 Nev. 126, 128 (1974) Parson v. Miller
distribution to needy children are required to submit an AFDC plan for the approval of the
Secretary of Health, Education and Welfare (HEW). 49 Stat. 627, 42 U.S.C. 601, 602, 603
and 604. See Advisory Commission Report, at 21-23.
2
The plan must conform with several
requirements of the Social Security Act and with rules and regulations promulgated by HEW.
49 Stat. 627, as amended, 42 U.S.C. 602 (1964 ed., Supp. II).
In King, the High Court considering the provisions of 42 U.S.C. 602(a)(7) (1964 ed.,
Supp. II) stated: This regulation properly excludes from consideration resources which are
merely assumed to be available to the needy individual. 392 U.S. at 319, footnote 16. See
also HEW, Handbook of Public Assistance Administration, pt. IV, 3131, 7 and 3120,
3123, 3124, 3131(10) and 3131(11).
In Lewis v. Martin, 397 U.S. 552, 555 (1970), the United States Supreme Court again
considered what resources could be considered in determining eligibility for assistance, and
stated: [O]nly income and resources that are, in fact, available to an applicant or recipient for
current use on a regular basis will be taken into consideration in determining need and the
amount of payment.
45 CFR 233.20(a)(3)(ii)(c) and (d) provides: [T]hat in establishing financial eligibility .
. . (c) only currently available resources will be considered; . . . and (d) income and resources
will be reasonably evaluated.
Now we are called upon to determine whether the welfare division, acting by and through
its hearing officer at the fair hearing, acted arbitrarily, capriciously and in abuse of its
discretion in assuming that the appellant's real property located in Florida was currently
available. Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968). In reviewing the decision
of the welfare division we are limited to the same scope of review as the district court. It is
our function as well as that of the district court to review the evidence presented to the
welfare division at the fair hearing and to determine whether that division of the Department
of Human Resources acted arbitrarily, capriciously, or contrary to the law. We must then go
one step farther and determine whether error was committed by the district court in affirming
the decision of the welfare division. Southwest Gas v. Public Serv. Comm'n, 86 Nev. 662,
474 P.2d 379 (1970); Miller v. West, 88 Nev. 105, 493 P.2d 1332 {1972). Bd. Chiropractic
Exam'rs v. Babtkis, S3 Nev. 3S5
____________________

2
U.S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls
Associated with Federal Grants for Public Assistance 5-7 (1964).
90 Nev. 126, 129 (1974) Parson v. Miller
(1972). Bd. Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967); No. Las
Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967).
At the fair hearing, the welfare division's representative, purporting to follow the division's
manual,
3
announced that the current availability of the Florida property would have no effect
on the agency's decision to terminate. That interpretation is obviously contrary to the
pronouncement of the United States Supreme Court and the provisions of the Code of Federal
Regulations. King v. Smith, supra; Lewis v. Martin, supra; 45 CFR 233.20(a)(3)(ii)(c) and
(d). The current utility of an asset must be considered in judging the valuation of the property
reserve described in NRS 425.080 (1).
The district court found the appellant to be the owner of marketable non-income
producing real property having a value in excess of $500, which real property is currently
available as a resource to petitioners. The record does not support that finding. It would be
difficult to imagine a piece of real property less marketable or whose value was less
currently available.
We have, under consideration, a parcel of non-income producing real property, located in
the State of Florida and governed by the laws of that state. It is occupied by a widow and her
minor child. Its title is purported to be held in co-tenancy with 50 percent belonging to the
appellant, as the ex-wife of S. M. Parson, deceased, and 50 percent subject to the dower rights
of his widow, and the rights of his minor children. If the decedent's interest in the real
property is not subject to probate and has somehow passed, by operation of law, to his widow
and his minor children, then any sale or other disposition of the interest of the minor children
would be subject to the guardianship laws of the State of Florida.
The record is devoid of any evidence to indicate that the appellant's undivided 50 percent
interest is marketable. The record shows that unsuccessful attempts were made to procure a
loan against the real property, as well as to sell it. No reasonable person could be expected to
purchase the appellant's undivided 50 percent interest, at any price, in light of the obvious
state of the title. Furthermore, the hidden legal entanglement that may exist confounds the
mind. See Florida Statutes Annotated, Title XIV, Homestead and Exemptions, Ch. 222, and
the Florida State Constitution, Art. 10, Sec. 1.
Even if all the legal problems which appear to plague the title were to be cleared up, the
practical problems of a widow, an ex-wife and the guardians of the minor children,
agreeing upon an asking price for the property and procuring a ready, willing and able
buyer, are of considerable magnitude.
____________________

3
Nevada State Welfare Division Manual, Sec. 204.22 reads in pertinent part: To ascertain the personal
property resources, the total value less encumbrances is used.
90 Nev. 126, 130 (1974) Parson v. Miller
title were to be cleared up, the practical problems of a widow, an ex-wife and the guardians of
the minor children, agreeing upon an asking price for the property and procuring a ready,
willing and able buyer, are of considerable magnitude. Not to mention approval by the
appropriate court in the State of Florida which would be required before the minors' interests
could be disposed of. Florida Statutes Annotated 745.05-745.15 and 744.17.
In one of the letters in evidence, written by Florida counsel to the widow, Zelma Parson,
he advised in part: The circumstances of your title are too complex to try to explain. . . .
That observation indeed sums up the condition of the title to the Florida real property as it
existed on May 9, 1972, when the Welfare Division of the Department of Human Resources
of the State of Nevada notified the appellant that they intended to terminate her grant under
AFDC.
This is a classic case to illustrate the necessity for the standards announced by the United
States Supreme Court and the Office of Health, Education and Welfare, allowing only
currently available resources to be considered in establishing eligibility for AFDC assistance.
King v. Smith, supra; Lewis v. Martin, supra; 45 CFR, 344.30(a)(3)(ii)(c) and (d). If the
minor children of the appellant are otherwise entitled to AFDC assistance it shall not be
denied to them upon the possibility that at some future date the Florida property might be
marketable.
Although the Nevada State Welfare Manual, Sec. 204.22,
4
provides that the total value,
less encumbrances is to be used to ascertain the personal property resources of an applicant
for AFDC benefits, that section must be interpreted to mean currently available resources in
conformity with the HEW Handbook of Public Assistance Administration, pt. IV, 3131.7.
King v. Smith, supra; Lewis v. Martin, supra.
5

The judgment of the district court entered on the 2nd day of January 1973, is reversed,
and the case is remanded with instructions to the district court to reverse the decision of
the Welfare Division of the Department of Human Resources dated May 9, 1972,
terminating the appellant's AFDC grant, and to remand the case to the Welfare Division
for the purpose of reinstating the appellant, Margaret Parsons, to AFDC benefits under
NRS Ch.
____________________

4
See footnote 3, supra.

5
If we were to give Nevada State Welfare Manual, Sec. 204.22, the literal interpretation urged by respondent,
the regulation would be in violation of the Supremacy Clause of the Constitution of the United States. United
States Constitution, Art. VI, Cl. 2.
42 U.S.C A. 602(a)(7) of the Social Security Act, reads in part:
(a) A State plan for aid and services to needy families with children must. . .
(7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining
need, take into consideration any other income and resources of any child or relative claiming aid to families
with dependent children, or of any other individual . . . whose
90 Nev. 126, 131 (1974) Parson v. Miller
January 1973, is reversed, and the case is remanded with instructions to the district court to
reverse the decision of the Welfare Division of the Department of Human Resources dated
May 9, 1972, terminating the appellant's AFDC grant, and to remand the case to the Welfare
Division for the purpose of reinstating the appellant, Margaret Parsons, to AFDC benefits
under NRS Ch. 425, from the date of termination and for such further proceedings in
conformity with such order of the district court and this opinion as may be deemed necessary.
NRS 425.120(3).
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________________
needs the State determines should be considered in determining the need of the child or relative claiming such
aid, as well as any expenses reasonably attributable to the earning of any such income.
The Secretary of HEW is empowered to promulgate regulations consistent with the Social Security Act. 42
U.S.C.A. 1302.
HEW's regulation provides that only currently available resources will be considered. 45 CFR
233.20(a)(3)(ii)(c). See Green v. Barnes, 485 F.2d 242 (10th Cir. 1973); Wilczynski v. Harder, 323 F.Supp. 509
(D.Conn. 1971).
____________
90 Nev. 131, 131 (1974) Gragson v. Toco
ORAN K. GRAGSON, Mayor, PAUL J. CHRISTENSEN, RON LURIE, GEORGE E.
FRANKLIN, HAROLD F. MORELLI and SCOTCH-EIGHTY, INC., Appellants, v. JOHN
B. TOCO and IRMA E. TOCO, Respondents.
No. 7553
March 29, 1974 520 P.2d 616
Appeal from amended judgment granting a writ of mandate by the Eighth Judicial District
Court, Clark County, Joseph S. Pavlikowski, Judge, directing the Las Vegas Board of City
Commissioners to grant the appellants' request for a change of business location and liquor
license.
The Supreme Court held that evidence supported board of city commissioners' denial of
application, even considering the economic hardship suffered by owners as result of that
denial.
Reversed.
Carl E. Lovell, Jr., City Attorney, and Janson F. Stewart, Deputy City Attorney, of Las
Vegas, for Appellants Oran K.
90 Nev. 131, 132 (1974) Gragson v. Toco
Gragson, Mayor, Paul J. Christensen, Ron Lurie, George E. Franklin and Harold F. Morelli.
Wiener, Goldwater & Galatz, Ltd., and Thomas W. Biggar, of Las Vegas, for Appellant
Scotch-Eighty, Inc.
Raymond E. Sutton, of Las Vegas, for Respondents.
1. Intoxicating Liquors.
There is no inherent right in a citizen to sell intoxicants.
2. Intoxicating Liquors.
There is no vested right in a liquor licensee to move location of his business.
3. Intoxicating Liquors.
Mere fact that a liquor business cannot be conducted profitably at licensed premises is not a ground for
mandating a transfer to some other location.
4. Mandamus.
Generally, mandamus will lie to enforce ministerial acts or duties and to require exercise of discretion,
but it will not serve to control the discretion; an exception may apply when the granting or refusing of an
application is exercised arbitrarily or through mere caprice; burden of proof to show capriciousness is on
the applicant.
5. Intoxicating Liquors.
Evidence supported board of city commissioners' denial of application to move bar and liquor business,
even considering the economic hardship suffered by owners as result of that denial.
OPINION
Per Curiam:
John and Irma Toco own a bar and liquor business at 9 West Charleston Boulevard in Las
Vegas. They petitioned the Las Vegas Board of City Commissioners several times for
permission to move their business and license to 1801 West Charleston Boulevard. They
alleged economic necessity brought on by poor business conditions in the present location
and much better business prospects at the location they now desire as the reason for their
request.
Minutes of the several hearings held before the board of commissioners reveal that the
neighboring residents were against having the bar-restaurant in such proximity to the
residential area, that there was a church and day-care center for children nearby and that a
cocktail lounge was not characteristic of the type of development considered by the board
appropriate for that side of West Charleston. The Tocos' petitions were denied.
90 Nev. 131, 133 (1974) Gragson v. Toco
Respondents then petitioned the trial court for mandamus to compel the Las Vegas Board
of City Commissioners to issue the transfer permit and following a hearing, the trial court so
ordered. On December 20, 1973 this court stayed enforcement of the writ of mandate issued
by the trial court pending this appeal.
[Headnotes 1-3]
There is no inherent right in a citizen to sell intoxicants, Hansen v. State Board of
Equalization, 110 P.2d 453 (Cal. App. 1941), nor is there a vested right in a liquor licensee to
move the location of his business. MacArthur v. Martelli, 255 P.2d 969 (Colo. 1953). Merely
because a liquor business cannot be conducted profitably at the licensed premises is not
ground for mandating a transfer to some other location. Lenward Liquor Corp. v. New York
State Liquor Auth., 241 N.Y.S.2d 11 (1963); MacArthur v. Martelli, supra.
[Headnote 4]
The Las Vegas Municipal Code gives the board of commissioners broad discretion in
granting or withholding liquor licenses.
1
As a general rule, while mandamus will lie to
enforce ministerial acts or duties and to require the exercise of discretion, it will not serve to
control the discretion. Mihocka v. Ziegler, 274 N.E.2d 583 (Ohio C. P. 1971); Teeter v.
Eighth Judicial District Court, 64 Nev. 256, 180 P.2d 590 (1947); McQuillin, Municipal
Corporations 51.16, pp. 498-500 (Rev. 3d ed.). An exception may apply when the granting
or refusal of an application is exercised arbitrarily or through mere caprice. Henderson v.
Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961). The burden of proof to show the
capriciousness is on the applicant. Whitesides v. Council of City of Cheyenne, 319 P.2d 520
(Wyo. 1957); State ex rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570
(1931).
____________________

1
Title V, Chapter 18, Sec. 12(A)(B), Las Vegas Municipal Code, 1960 Edition:
(A) The Board of Commissioners may, if the applicant for a license under this Chapter is qualified to carry
on such business, approve such application and authorize the Director of License and Revenue to issue such
license; provided, however, the Board shall have the right to deny any application for any reason deemed
sufficient by the Board and refuse to license any applicant.
(B) The Board shall have the right to limit the number of licenses which may be issued, based upon
population as determined by any formula deemed sufficient by the Board, and to determine where and under
what conditions alcoholic liquor may be sold, served, given away or distributed in the City.
90 Nev. 131, 134 (1974) Gragson v. Toco
[Headnote 5]
Without further citation of the many authorities we need only state that there is abundant
evidence to support the denial of the Tocos' transfer application even considering the
economic hardship suffered by the Tocos as a result of that denial. Boards are vested with a
high degree of discretion and clear abuse must appear before the courts will interfere. Hansen
v. State Board of Equalization, supra.
Reversed.
____________
90 Nev. 134, 134 (1974) Cleveland v. Hopper
BOB CLEVELAND, aka BOB L. CLEVELAND: DOROTHY CLEVELAND: DON BIRD
and ROE CORPORATIONS, Appellants, v. MORRIS HOPPER and ALICE HOPPER,
Respondents.
No. 7261
March 29, 1974 520 P.2d 614
Appeal is from denial of a motion for a new trial and to amend the findings of fact and
conclusions of law following judgment rendered by the Eighth Judicial District Court, Clark
County; James D. Santini, Judge.
Partners in business enterprise who had delivered title to truck to defendant partner to
secure capital contribution to partnership brought action for conversion of truck which was
pledged to codefendant as security for a loan. The district court rendered judgment for
plaintiffs and denied motion for new trial and to amend findings of fact and conclusions of
law and defendants appealed. The Supreme Court held that finding that defendant partner was
without authority to pledge the truck as security for a loan and that codefendant who took
pledge did not have ground to believe that partner had such authority was based upon
substantial evidence.
Affirmed.
Embry & Shaner, of Las Vegas, for Appellant Don Bird.
Raymond E. Sutton, of Las Vegas, for Appellants Bob and Dorothy Cleveland.
Pursel & Pursel, Ltd., of Las Vegas, for Respondents.
90 Nev. 134, 135 (1974) Cleveland v. Hopper
Partnership.
Finding that defendant partner who was given title to truck by plaintiff partners to secure plaintiffs'
capital contribution to partnership was without authority to pledge the truck as security for a loan and that
codefendant who took pledge was without ground to believe that defendant partner had such authority was
based upon substantial evidence. NRS 87.090, subds. 2, 3(a).
OPINION
Per Curiam:
In March of 1967, respondent Morris and Alice Hopper entered into a partnership
arrangement with Bob and Dorothy Cleveland, known as M & B Charcoal Company. To
secure their capital contribution to the partnership, respondents delivered title to a 1960
International diesel truck to Bob Cleveland, who thereafter pledged the vehicle to Bird as
security for a personal loan. When Cleveland defaulted, Bird sold the truck in satisfaction of
the debt.
The lower court found that the pledge was made without the knowledge or consent of the
respondents and was not in furtherance of the partnership business. The court further found
that appellant Bird knew that the truck was an asset of the partnership and that the title to the
truck was vested in the Hoppers.
The trial court awarded damages to the respondents for conversion of their truck including
consequential damages for loss of business. The principal ground for the decision is that Bob
Cleveland was without authority to pledge the truck as security for a loan and that Bird was
without ground to believe that Cleveland had such authority.
NRS 87.090(2) provides that an act of a partner which is not apparently for the carrying
on of the business of the partnership in the usual way does not bind the partnership unless
authorized by the other partners. The lower court concluded as a matter of law that . . . no
title or interest as against Plaintiffs was conveyed by the said pledge. NRS 87.090(3)(a).
1
There has been no showing by the appellant that the judgment of the trial court was clearly
erroneous or that it was not based upon substantial evidence.
____________________

1
NRS 87.090(3) Unless authorized by the other partners or unless they have abandoned the business, one or
more but less than all the partners have no authority to:
(a) Assign the partnership property in trust for creditors or on the assignee's promise to pay the debts of the
partnership. . . .
90 Nev. 134, 136 (1974) Cleveland v. Hopper
not based upon substantial evidence. B & C Enterprises v. Utter, 88 Nev. 433, 498 P.2d 1327
(1972).
Even assuming that the truck was a partnership asset which could be pledged, the lower
court held that Bird's purported security interest was ineffectual under the Uniform
Commercial Code as adopted in Nevada. We are unable to decide whether the appellant held
a valid security interest under the facts of this case because this court has not been favored
with a transcript of the proceedings in the district court, nor has the appellant submitted a
settled and approved statement of the evidence or proceedings. Turner v. Staggs, 89 Nev.
230, 510 P.2d 879 (1973); NRAP 10(c)(e).
Respondents are allowed their costs on appeal and attorney fees in the amount of $300.00.
NRAP 38(b).
Affirmed.
____________
90 Nev. 136, 136 (1974) Lightford v. State
CALVIN CHESTER LIGHTFORD, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 7372
April 1, 1974 520 P.2d 955
Appeal from judgments of conviction and sentences of the Eighth Judicial District Court,
Clark County; James D. Santini, Judge.
Defendant was convicted in the district court of two separate charges of unlawful
possession of heroin, and he appealed. The Supreme Court, Mowbray, J., held that search of
defendant at time he was arrested and taken into custody was a reasonable search, and heroin
discovered from defendant's person at that time was properly admitted into evidence, but that
search of defendant's residence was improper and heroin seized there should have been
suppressed.
Affirmed in part and reversed in part.
Raymond E. Sutton, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.
Garner, Chief Deputy District Attorney, and Daniel M. Seaton, Deputy District Attorney,
Clark County, for Respondent.
90 Nev. 136, 137 (1974) Lightford v. State
1. Arrest; Criminal Law.
Once officers effected a custody arrest of defendant pursuant to a valid warrant, they had authority to
effect a full search of defendant, and therefore search of defendant at time he was arrested and taken into
custody was a reasonable search, and heroin discovered from defendant's person at that time was properly
admitted into evidence. U.S.C.A.Const. Amend. 4.
2. Searches and Seizures.
A person may validly consent to a search even though the person is in custody, but voluntariness of that
search must be proved by the State by clear and convincing evidence.
3. Criminal Law; Searches and Seizures.
In light of fact that one of attending officers had suggested possibility of kicking defendant's door in if
defendant refused an admission to search house, any subsequent consent given by defendant was tainted,
and search of defendant's residence was improper and seized heroin should have been suppressed.
OPINION
By the Court, Mowbray, J.:
Appellant Calvin Chester Lightford was indicted by the Clark County Grand Jury on two
separate charges of unlawful possession of heroin. The cases were consolidated and tried to a
jury. Lightford was found guilty on both charges. He has appealed, claiming the trial judge
committed reversible error in permitting the heroin to be received in evidence.
1. The Facts.
Las Vegas Police Detectives Moody and Baggett observed Lightford driving an
automobile on Washington Street in Las Vegas, Nevada. The officers, who had a warrant for
Lightford's arrest for the sale of narcotics, followed his vehicle. When Lightford stopped and
stepped out of his car, the officers arrested him. Detective Moody, who knew Lightford,
escorted him to the front of the police vehicle and requested Lightford to place his hands on
the hood of the car, so that he could be searched. Lightford cooperated with the officers.
Moody's search revealed five balloons in Lightford's left jacket pocket, and a house key. The
balloons contained heroin capsules. Moody advised Lightford that he was under arrest for
unlawful possession of narcotics and gave him the Miranda warning.
The officers then proceeded to Lightford's residence, where they conducted a warrantless
search of the premises. The search disclosed additional heroin located in Lightford's bedroom
dresser drawer. This heroin became the predicate for the second indictment for unlawful
possession of narcotics.
90 Nev. 136, 138 (1974) Lightford v. State
second indictment for unlawful possession of narcotics. The State claims that Lightford
consented to the house search. At the pretrial hearing on the motion to suppress, and again at
trial, Lightford denied giving any such consent. However, Police Officer Dingle, who arrived
after Lightford's arrest, testified that Lightford did in fact hand him the house key and tell him
he could search the house. Detective Mathis corroborated Dingle's testimony, stating that
Lightford said he didn't care if they searched the house because he was very ill and was going
to die anyway. However, prior to giving his consent to the house search, it appears that one
of the officers in effect threatened to kick in the door if Lightford refused them admission.
1

2. The Search of Lightford's Person.
The recent companion cases of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467
(1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488 (1973), are dispositive of the
question on the admissibility of the heroin found on Lightford during the search of his person.
The High Court held that in a lawful custodial arrest a full search of the person is not only
an exception to the warrant requirement of the Fourth Amendment to the United States
Constitution, but is also a reasonable search under that Amendment.
[Headnote 1]
In Lightford's case, the officers effected a custody arrest of appellant pursuant to a valid
warrant. Once this was done, they had the authority under Robinson and Gustafson to effect a
full search of appellant. Therefore, the search of Lightford at the time he was arrested and
taken into custody was a reasonable search, and the heroin seized from his person at that time
was properly admitted into evidence.
3. The Search of Lightford's Residence.
We reach a different conclusion, however, regarding the evidence seized during the search
of Lightford's home. The admissibility of the heroin found therein depended entirely upon
the voluntariness of the consent of appellant to the search, since the arresting officers did
not have a search warrant for the premises.
____________________

1
Officer Moody testified as follows:
Q Now, after this conversation took place, what did you personally observe concerning Mr. Lightford?
What was done with him at that point?
A Well, we were sitting around there waiting for the arrival of the tow truck to care for the vehicle, his
vehicle, and there were other officers talking to him and during this time, I think one of the officers asked him
for the key to his house, reference to getting entrance to the house to search the house, rather than kick the door
in, so to speak.
90 Nev. 136, 139 (1974) Lightford v. State
upon the voluntariness of the consent of appellant to the search, since the arresting officers
did not have a search warrant for the premises.
[Headnote 2]
While it is true that a person may validly consent to a search even though the person is in
custody, State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964), the voluntariness of that consent
must be proved by the State by clear and convincing evidence. Thurlow v. State, 81 Nev. 510,
515, 406 P.2d 918, 921 (1965).
In Thurlow v. State, supra, we said:
The burden of proving consent rests with the state. Clear and persuasive evidence is
required, particularly when the suspect is under arrest. [Citations omitted.] In such
circumstances a court must distinguish between the peaceful submission by the arrested
suspect to the authority of a law enforcement officer, from an intelligent and intentional
waiver of a constitutional right. [Citations omitted.]
[Headnote 3]
As in Thurlow, we do not feel that the State has sustained its burden of demonstrating by
clear and persuasive evidence that Lightford's consent was given freely and voluntarily,
especially when viewed in the light of Officer Moody's testimony that one of the attending
officers had suggested the possibility of kicking the appellant's door in if the door key was
refused. Any subsequent consent given by Lightford was tainted by the coercive threat of
the officer. Channel v. United States, 285 F.2d 217 (9th Cir. 1960). The search of Lightford's
residence was improper, and the seized heroin should have been suppressed.
We affirm Lightford's conviction of the unlawful possession of heroin found on his person,
and we reverse the remaining charge.
Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur.
____________
90 Nev. 140, 140 (1974) Kockos v. Bank of Nevada
JOHN H. KOCKOS, Appellant, v. BANK OF NEVADA, a Nevada Banking Corporation, as
Administrator With the Will Annexed of the ESTATE OF
ROBERT F. IVERSEN, Deceased, Respondent.
No. 6926
April 4, 1974 520 P.2d 1359
Appeal from two judgments of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski and John F. Mendoza, Judges.
Appeal from two judgments entered by the district court in quiet title action. The Supreme
Court, Batjer, J., held that where grantee never acquired a valid interest in property sold to it
by plaintiff due to a total failure of consideration, so that it did not own property at time
defendant's judgment against it was recorded in note action, decree quieting title to property
in plaintiff was warranted.
Affirmed.
Louis I. Mallette, of San Francisco, California, and Alan B. Andrews, of Las Vegas, for
Appellant.
Coulthard, Smith & O'Brien, of Las Vegas, for Respondent.
1. Appeal and Error.
Even if defendant, having recorded a lien against plaintiff's grantee for amount of default judgment in
note action, had standing to appeal from decree against grantee and in favor of plaintiff in quiet title action,
where defendant had not furnished a transcript or a statement of proceeding, Supreme Court was precluded
from considering issues raised by defendant on appeal. NRAP 4(a), 10(c).
2. Appeal and Error.
Where a question of fact has been determined by trial court, Supreme Court will not reverse unless
judgment is clearly erroneous and not based on substantial evidence.
3. Quieting Title.
Where grantee never acquired a valid interest in property sold to it by plaintiff due to a total failure of
consideration, so that it did not own property at time defendant's judgment against it was recorded in note
action, decree quieting title to property in plaintiff was warranted.
OPINION
By the Court, Batjer, J.:
On August 16, 1966, Robert F. Iversen and Margaret Iversen, husband and wife, entered
into a contract with Pioneer Mortgage Bankers, a Nevada Corporation, hereinafter referred
to as Pioneer, agreeing to sell to that corporation certain real property located at 711
Campbell Drive, Las Vegas, Clark County, Nevada, for the sum of $130,000.
90 Nev. 140, 141 (1974) Kockos v. Bank of Nevada
Mortgage Bankers, a Nevada Corporation, hereinafter referred to as Pioneer, agreeing to sell
to that corporation certain real property located at 711 Campbell Drive, Las Vegas, Clark
County, Nevada, for the sum of $130,000. Pioneer made no down payment and the total
indebtedness was to have been evidenced by three promissory notes secured by a deed of
trust. On that same date Iversen and his wife executed a grant deed conveying the property to
Pioneer, and on August 17, 1966, the deed and agreement were both recorded in the official
records of Clark County, Nevada.
On November 4, 1966, appellant commenced an action against Pioneer Mortgage Bankers,
a Nevada corporation, Frontier Escrow [Company], and others, to collect $20,000 on certain
delinquent promissory notes, together with costs and attorney fees, and to set aside several
conveyances including a deed from Pioneer to Frontier, dated August 29, 1966, and recorded
as Document No. 596010 in Book 742 of Official Records in the office of the County
Recorder of Clark County, Nevada.
1
The appellant simultaneously recorded a lis pendens
against all real property owned by Pioneer at that time. On September 23, 1971, appellant
amended his complaint, seeking to collect $80,701.50, together with costs and attorney fees,
and filed an amended lis pendens. On October 29, 1971, he recorded in the official records of
Clark County, Nevada, a default judgment against Pioneer in the sum of $80,701.50, together
with costs in the sum of $52.80, and attorney fees in the sum of $10,000. NRS 17.150(2).
2
On January 2S, 1970, several months before appellant recorded his judgment, respondent
commenced its action to quiet title to the subject property, and at that time recorded its
lis pendens.
____________________

1
On August 29, 1966, Pioneer Bankers Mortgage conveyed the subject parcel to Frontier Escrow Company,
even though Frontier's corporate charter had been revoked in 1964 by the Secretary of State of Nevada, for
failure to file the required list of officers. In the default judgment entered on October 29, 1971, in favor of John
H. Kockos and against Pioneer, the Honorable Carl J. Christensen, District Judge, ordered that the deed from
Pioneer to Frontier be set aside and held for naught. In the decree entered on December 17, 1971, in favor of
the respondent and against Pioneer and Frontier, the Honorable Joseph S. Pavlikowski, District Judge, found that
Frontier was not a purchaser, either in good faith or for value received and ordered the same deed set aside
and held for naught.

2
NRS 17.150(2), reads in pertinent part: A transcript of the original docket or an abstract or copy of any
judgment or decree of a district court of the State of Nevada or the District Court or other court of the United
States in and for the District of Nevada, the enforcement of which has not been stayed on appeal, certified by the
clerk of the county where the judgment or decree was rendered, may be recorded in the office of the county
recorder in any county, and when so recorded it shall become a lien upon all the real property of the judgment
debtor not exempt from execution in such county, owned by him at the time, or which he may afterward acquire,
until the lien expires. . . .
90 Nev. 140, 142 (1974) Kockos v. Bank of Nevada
On January 28, 1970, several months before appellant recorded his judgment, respondent
commenced its action to quiet title to the subject property, and at that time recorded its lis
pendens. Although appellant, who was named as one of several defendants, answered, two of
the other defendants, Pioneer and Frontier, defaulted, and on December 17, 1971, a decree
quieting title in respondent was entered against them. Before entering the judgment [decree],
the Honorable Joseph S. Pavlikowski, District Judge, heard testimony, received evidence,
found there had been a total failure of consideration, and therefore decreed that Pioneer had
no valid title or interest in the property.
Appellant received no notice to appear at that hearing, however, on January 24, 1972, a
trial was held before the Honorable John F. Mendoza, District Judge, to determine appellant's
rights and interest, if any, in the subject property. At that trial appellant offered no evidence
and indicated that he would rely solely upon the recorded deed from Robert F. Iversen and
Margaret Iversen to Pioneer Mortgage Bankers, and the rights and interest arising from his
judgment recorded on October 29, 1971.
Respondent, on the other hand, introduced evidence that the three promissory notes were
not in existence, and a Lee Potter testified on behalf of the respondent that a Mr. Jongeward,
who was one of the multiple defendants, had admitted to him that Pioneer had paid nothing
on their obligation to Robert F. Iversen.
Judge Mendoza concluded that appellant's lienee,
3
Pioneer, never acquired any interest in
the subject property, and as a result the appellant had no valid clam.
A judgment [decree] was entered declaring the respondent, as a legal representative of
Robert F. Iversen, deceased, to be the true and lawful owner of the land and its title was
quieted against all claims, demands or pretensions of the appellant.
This appeal is taken not only from that judgment, but also from the judgment [decree]
entered in the district court on December 17, 1971, in favor of the respondent and against
Pioneer and Frontier.
1. The record contains no evidence to show that appellant was ever served with a notice of
entry of judgment [decree] against Pioneer and Frontier.
____________________

3
In Zubieta v. Tarner, 76 Nev. 243, 351 P.2d 982 [1960], this court said: That they [personal property and
water taxes] became a lien upon all of appellant's real property amounts to nothing more than providing a better
and surer method of collection.
90 Nev. 140, 143 (1974) Kockos v. Bank of Nevada
against Pioneer and Frontier. Although his right to file and serve a notice of appeal on March
3, 1972, had not been extinguished, it is not clear whether he was an aggrieved party with
standing to appeal. NRAP 4(a), formerly NRCP 73(a). However, we need not decide that
question because he has not furnished this court with a transcript of the proceeding, or a
statement of the proceeding, as authorized by NRAP 10(c), formerly NRCP 75(n). 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).
[Headnote 1]
Thus, even if appellant be conceded standing to appeal the judgment against Pioneer, lack
of a trial record precludes our consideration of the issues appellant seeks to raise. Turner v.
Staggs, 89 Nev. 230, 510 P.2d 879 (1973).
2. When trial was held on January 24, 1972, before the Honorable John F. Mendoza,
District Judge, the respondent introduced evidence to show failure of consideration in the
transaction between Pioneer and the Iversens. The appellant offered no evidence. He did not
place into the record any evidence of the recorded deed from the Iversens to Pioneer, or his
recorded judgment against Pioneer, upon which he relies. Those items of evidence are only
inferentially in the record through evidence introduced by the respondent. Judge Mendoza, in
finding that the appellant's claim was of no force and effect, indicated that he agreed with
Judge Pavlikowski, who had previously determined that there had been a total failure of
consideration and had ruled that Pioneer had no valid title or interest in the property.
[Headnote 2]
Where a question of fact has been determined by the trial court, this court will not reverse
unless the judgment is clearly erroneous and not based on substantial evidence. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); B & C Enterprises v. Utter, 88 Nev. 433, 498
P.2d 1327 (1972); Savini Constr. Co. v. A. & K. Earthmovers, Inc., 88 Nev. 5, 7, 492 P.2d
125, 126 (1972); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Richfield Oil
Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969).
[Headnote 3]
The judgment [decree quieting title] entered in the district court on February 3, 1972, in
favor of the respondent and against the appellant is supported by substantial evidence
which stands unrefuted.
90 Nev. 140, 144 (1974) Kockos v. Bank of Nevada
against the appellant is supported by substantial evidence which stands unrefuted.
Judge Mendoza further found that because the default judgment entered on October 29,
1971, in favor of the appellant and against Pioneer, was limited to Pioneer's interest in the
subject property that appellant acquired no rights, title or interest therein. This conclusion is
supported in NRS 17.150(2), which allows: . . . [A] lien upon all real property of the
judgment debtor not exempt from execution in such county, owned by him at the time [of
recordation]. . . . Pioneer never acquired a valid interest in the subject property, therefore it
did not own the property at the time appellant's judgment against Pioneer was recorded.
The judgment entered in this case by the district court on February 3, 1972, is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________
90 Nev. 144, 144 (1974) State v. Clark
THE STATE OF NEVADA, Appellant, v. MICHAEL
GEORGE CLARK, Respondent.
No. 7533
April 5, 1974 520 P.2d 1361
Appeal from a judgment correcting a prison sentence. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
After he was convicted of unlawful sale of narcotics and sentenced to four years'
imprisonment, and after parole was denied after one year of the sentence had been served, a
prisoner brought an action for post-conviction relief. The district court corrected petitioner's
sentence nunc pro tunc to a term of one year and three months, and the State appealed. The
Supreme Court, Zenoff, J., held that correction of the judgment was improper, even though it
had been based on the trial judge's misunderstanding as to parole practices, since it violated
the intent and purpose of parole statutes and constituted an invasion of the legislative and
executive functions of government.
Reversed.
Batjer and Mowbray, JJ., dissented.
90 Nev. 144, 145 (1974) State v. Clark
Robert List, Attorney General, Herbert P. Ahlswede, Chief Deputy Attorney General,
Carson City; and Roy A. Woofter, District Attorney, Clark County, for Appellant.
Morgan Harris, Public Defender, and Robert L. Stott, Deputy Public Defender, Clark
County, for Respondent.
Criminal Law.
Even though trial court may have imposed original four-year criminal sentence because of mistaken
conception as to parole practices, court erred in its later action, taken after defendant had served one year
of term and been denied parole, in correcting sentence nunc pro tunc to one of one year and three months;
such action violated intent and purpose of parole statutes and constituted invasion of legislative and
executive functions of government. NRS 177.315 et seq., 213.010, 213.100, 213.1099, 213.110,
213.120.
OPINION
By the Court, Zenoff, J.:
This appeal is taken by the State from an order entered by the district court granting
post-conviction relief correcting respondent's sentence to a term of one year and three months
from an original sentence of four years for the unlawful sale of narcotics.
At the time sentence was first pronounced against the appellant the district judge had
before him a memorandum from the chief parole and probation officer of the board of parole
commissioners, which he interpreted to suggest that most inmates need supervision and
guidance when released from prison, that such service could not be rendered to prisoners
serving out short sentences but could be rendered to prisoners who were serving sentences up
to six years and who would be eligible for parole for actually serving, in a successful manner,
one year or less at the state prison.
The trial judge, believing that parole would very likely be granted after one year if
appellant served that year in an exemplary manner, pronounced a four-year sentence.
After serving one year appellant was denied parole. He then petitioned the district court for
post-conviction relief pursuant to NRS 177.315 et seq., and the matter came before the
district judge who had imposed the original sentence. During the course of the
post-conviction hearing the district judge learned that while incarcerated appellant had
conducted himself in an exemplary manner and had been given recommendation for parole by
the prison authorities.
90 Nev. 144, 146 (1974) State v. Clark
Relying upon United States v. Myers, 374 F.2d 707, 710 (3rd Cir. 1967), and other cases
of similar stature, the district judge changed the sentence from four years to one year, three
months, nunc pro tunc, and said: [I] am correcting it because this Court considered a
decision of policy which apparently is not a policy considered by the parole commissioners.
And had this Court been aware that this would have been the fact, it would not have imposed
the sentence of 4 years in the Nevada State Prison.
The State urges that the determination of the trial court constitutes an unlawful invasion
into one of the functions of the legislative branches of the government and therefore is
invalid.
1. This court ruled in Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967), that when a
trial court errs in rendering a judgment and that mistake is one of fact, the trial court can
correct its own mistake. Some errors are clerical, for instance, the insertion of a wrong date
allowing nunc pro tunc correction; or the imposition of a sentence not provided by statute,
such as in Peters, supra, who was sentenced for a completed crime instead of an attempt to
commit the crime. The incorrect sentence was modified to impose the penalty for the attempt
to commit that crime. Compelling a defendant to serve a period of incarceration longer than
the penalty provided is manifestly unfair and constitutionally infirm.
Nowhere, however, does the parole department bulletin, relied upon by the trial court,
guarantee the amount of time to be served. The experienced trial judge knew that after
sentencing the matter of parole is in the hands of the parole board subject to the rules and
discretion of that body. The court was aware that Clark was subject to the board's function of
review in stating that if Clark conducted himself as a good inmate and had the
recommendation of the prison authorities that very likely he would be paroled after the term
of one year. The term very likely shows that court's awareness that Clark's release was
subject to the parole board's approval. Despite the favorable recommendation of the prison
authorities the board's refusal was based on solid reasons which included Clark's past record
for the same or similar offense for which he was convicted and now serving time.
2. If the judge was of the opinion at the time of sentencing that Clark should spend only
one year in prison, he did not so state in the record nor did he communicate his suggestion to
the parole board as is sometimes done. Such a recommendation while not binding might have
been of assistance in the board's consideration of the case.
90 Nev. 144, 147 (1974) State v. Clark
Nevertheless, the sentence when imposed was statutorily proper. Now by subsequent
action a trial court cannot do indirectly what we stated in State v. District Court, 85 Nev. 485,
457 P.2d 217 (1969), cannot be done directly. This action violates the intent and purpose of
parole statutes and constitutes an invasion of the legislative and executive functions of
government. State v. District Court, supra, p. 488. In this State the granting of relief from
incarceration is authorized by the legislature and performed by the state board as an executive
function. NRS 213.1099; NRS 213.110; NRS 213.120.
If, of course, an inequity can be shown, it is possible that Clark can seek immediate relief
before the State Board of Pardons Commissioners. (NRS 213.010; NRS 213.100.) That
constitutional body is distinctive and separate from the parole department.
Reversed.
Thompson, C. J., and Gunderson, J., concur.
Batjer, J., with whom Mowbray, J., agrees, dissenting:
I respectfully dissent from the majority opinion filed in this case.
In Townsend v. Burke, 334 U.S. 736 (1948), the United States Supreme Court remanded
for re-sentencing where it appeared that the defendant was sentenced on the basis of
assumptions concerning his criminal record which were materially untrue, and where the
High Court declared: Such a result, whether caused by carelessness or design, is inconsistent
with due process of law, and such a conviction cannot stand. 334 U.S. at 741. The High
Court made it clear that a sentence cannot be predicated on false information.
In each of the cases cited and relied upon by the respondent, it was necessary for the
appellate court to examine the record and to structure therefrom an opinion that the sentence
given by the trial judge had been influenced either by erroneous material or a
misinterpretation of accurate material resulting in a violation of the convicted person's right to
due process. Here we face no such task because the trial judge has acknowledged his
misconception of a policy of the parole board and has admitted that upon that misconception
he gave the appellant a sentence of four years rather than the one year that he would have
given.
It is not the misinformation that results in the denial of due process, but the attitude of the
trial judge at the time of sentencing either based upon, or colored by, misinformation or a
misinterpretation that results in an error of constitutional magnitude.
90 Nev. 144, 148 (1974) State v. Clark
misinterpretation that results in an error of constitutional magnitude.
This is not a case of judicial invasion into the legislative and executive fields in
contravention of Article 3, Section 1 of the Nevada Constitution.
1
Neither is it granting a
relief from punishment after incarceration, which is an executive function authorized by the
legislature and performed by the state board of parole commissioners, (NRS
213.107-213.160), or by the state board of pardons commissioners. (NRS 213.010-213.100.)
Unlike the facts in State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969), where the
district judge did not follow the statutory provisions governing probation and attempted to
suspend part of a prison sentence and place the defendant on probation after he had served a
period of time in prison, the district judge here followed the statutory provisions and
corrected a sentence which he believed violated the appellant's right to due process. NRS
177.320.
2
See also, Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967).
3

The facts in this case are more akin to those found in Crowe v. State, 194 N.W.2d 234
(S.D. 1972), where the trial judge misread an accurate F.B.I. report. There, although the
post-conviction court found no error in the trial court's sentence, the appellate court, relying
on United States v. Tucker, 404 U.S. 443 (1972), found that the petitioner's right to due
process had been violated, and remanded for sentencing.
4
Although a district court judge
may exercise a wide discretion in the sources and type of information used to assist him
in determining an appropriate, just and enlightened sentence, Williams v. New York, 337
U.S. 241 {1949), the sentencing procedure is not immune from scrutiny under the Due
Process Clause.5 See Townsend v.
____________________

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

2
NRS 177.320: The jurisdiction of the district court in post-conviction relief hearings to find in favor of a
petitioner is limited to those cases in which the court finds that there has been a specific denial of the petitioner's
constitutional rights with respect to his conviction or sentence.

3
In Warden v. Peters, supra, this Court, in announcing the rule that a trial court possessed the power to set
aside a judgment of conviction after a plea of guilty, and commencement of sentence in a proper case for
correction of sentence, said: The fact remains that courts which make a mistake in rendering a judgment which
works to the extreme detriment of the defendant will not allow it to stand uncorrected. 83 Nev. at 301, 429 P.2d
at 551.

4
In United States v. Tucker, supra, the High Court said: . . . we deal here, not with a sentence imposed in the
informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of
constitutional magnitude. 404 U.S. at 447.
90 Nev. 144, 149 (1974) State v. Clark
Although a district court judge may exercise a wide discretion in the sources and type of
information used to assist him in determining an appropriate, just and enlightened sentence,
Williams v. New York, 337 U.S. 241 (1949), the sentencing procedure is not immune from
scrutiny under the Due Process Clause.
5
See Townsend v. Burke, supra.
. . . [M]aterial false assumptions as to any facts relevant to sentencing, renders the entire
sentencing procedure invalid as a violation of due process. United States v. Malcolm, 432
F.2d 809, 816 (1970). United States v. Tucker, supra; Townsend v. Burke, supra.
I would affirm the judgment of the district court.
____________________

5
Nevada Constitution, Article 1, 3. The Fifth Amendment of the United States Constitution made
applicable to the States by the Fourteenth Amendment.
____________
90 Nev. 149, 149 (1974) White v. Sheriff
ROBIN THOMAS WHITE, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7255
April 11, 1974 520 P.2d 959
Appeal from an order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
Petitioner, who had been indicted for involuntary manslaughter, sought pretrial writ of
habeas corpus. The district court denied the petition and the petitioner appealed. The Supreme
Court held that petitioner was not subject to prosecution by indictment where the same charge
had previously been dismissed in the justice court.
Reversed.
Morgan D. Harris, Public Defender, and Robert L. Stott, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Accused was not subject to prosecution by indictment for involuntary manslaughter where the
same charge had previously been dismissed in the justice court.
90 Nev. 149, 150 (1974) White v. Sheriff
involuntary manslaughter where the same charge had previously been dismissed in the justice court. NRS
178.562, subd. 1.
OPINION
Per Curiam:
Indicted for involuntary manslaughter by the Clark County Grand Jury, appellant sought
pretrial habeas relief in the district court. In this appeal from the order denying that relief the
central contention is that under NRS 178.562(1) he is not subject to prosecution by
indictment because the same charge had previously been dismissed in the justice court.
The controlling issue in this case was discussed at length and resolved by our recent
decision in McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973); therefore, for the same
reasons stated in that opinion, we reverse the order of the district court.
1
Appellant shall be
discharged from custody forthwith.
____________________

1
This appeal originated and appellant's brief was filed prior to our decision in McNair.
____________
90 Nev. 150, 150 (1974) Gordon v. Warden
JOHN HARVEY GORDON, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 7360
April 11, 1974 520 P.2d 957
Appeal is from denial of application for post-conviction relief heard in the Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
The Supreme Court held that guilty plea was properly accepted where defendant, who was
represented by counsel, told the trial court that he understood his constitutional rights,
admitted that plea was not coerced and was not result of any promise of leniency, court
informed defendant of range of possible punishments, and defendant admitted that he
understood the nature of the crime and that he was guilty.
Affirmed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, of Carson City, for Appellant.
90 Nev. 150, 151 (1974) Gordon v. Warden
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
1. Courts.
Both United States Supreme Court decision announcing rule that record should affirmatively show that
defendant who pleaded guilty entered his plea understandingly and voluntarily and subsequent Nevada
Supreme Court decision adopting such rule governed guilty plea taken during interim period between such
decisions.
2. Criminal Law.
Guilty plea was properly accepted where defendant, who was represented by counsel, told the trial court
that be understood his constitutional rights, admitted that plea was not coerced and was not result of any
promise of leniency, court informed defendant of range of possible punishments, and defendant admitted
that he understood the nature of the crime and that he was guilty.
OPINION
Per Curiam:
On September 14, 1970 appellant plead guilty to the charge of assault with a deadly
weapon for which he was sentenced to five years in the Nevada State Prison. The defendant
was represented at that time by a Deputy Public Defender of Washoe County. He was asked if
he was familiar with the charge to which he was pleading guilty, to which he responded:
Yes, sir. Gordon then admitted guilt of the crime charged. The court then inquired if he
were fully aware of his constitutional rights and whether he had discussed the matter fully
with his attorney, to which appellant answered that he had.
Gordon expressly waived his right to jury trial. He was told that the possible penalty for
the crime of assault with a deadly weapon is from one to six years in the Nevada State Prison.
At the hearing on his application for post-conviction relief, the defendant testified that his
attorney had informed him that there were eight additional felony counts pending against him
when his plea was entered and that all of them were dismissed following his plea. Appellant
testified that he did not understand his constitutional rights when his attorney discussed with
him the consequences of his guilty plea, but he failed to convince the trial court that his plea
was not voluntarily and willingly entered.
[Headnote 1]
Appellant's contention before this court is that his guilty plea was taken in violation of the
requirements of Boykin v. Alabama, 395 U.S. 23S {1969), and Higby v. Sheriff, S6 Nev. 774
90 Nev. 150, 152 (1974) Gordon v. Warden
Alabama, 395 U.S. 238 (1969), and Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970).
Appellant's plea was made in the district court two months before Higby was decided but
after Boykin was handed down by the Supreme Court. Under Nevada law both decisions
cover the guilty pleas taken during this interim period. Brown v. Warden, 88 Nev. 166, 494
P.2d 959 (1972).
Higby adopts the rule of Boykin while expressly declining to give the latter decision
retroactive effect. See also Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970).
1

Higby has been construed and the holding narrowed in two recent decisions of this court.
In Heffley v. Warden, 89 Nev. 645, 516 P.2d 1403 (1973), this court upheld the validity of a
guilty plea although the defendant had not been canvassed regarding the privilege against
self-incrimination. We required only that the record must affirmatively disclose that a
defendant who pleaded guilty entered his plea understandingly and voluntarily. See Brady v.
United States, 397 U.S. 742, 747-748 (1970).
In Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974), we concluded that there need
not be an express articulation and waiver of the three constitutional trial rights mentioned in
Boykin when a defendant who is represented by counsel pleads guilty and it appears from the
record that his plea was voluntarily and intelligently entered with knowledge of its
consequences.
[Headnote 2]
Appellant's plea meets the tests of Higby and subsequent cases. Gordon, who was
represented by counsel, told the trial court that he understood his constitutional rights. He
admitted that the plea was not coerced and was not the result of a promise of leniency. The
judge informed Gordon of the range of possible punishments.
____________________

1
In Higby, at page 781, this court said that the record should affirmatively show:
1. The defendant knowingly and understandingly waived (a) the privilege against self-incrimination, (b) the
right to trial by jury, and (c) the right to confront his accusers. . . .
2. The plea was voluntary, was not coerced, and was not the result of a promise of leniency.
3. The defendant understands the consequences of his plea. The judge should inform the defendant of the
range of punishments that may be imposed and then ask whether it is his intention to plead guilty.
4. The defendant understands the nature of the charge itself, i.e., the elements' of the crime to which he is
pleading guilty.
90 Nev. 150, 153 (1974) Gordon v. Warden
possible punishments. Appellant admitted that he understood the nature of the crime and that
he was guilty.
Affirmed.
____________
90 Nev. 153, 153 (1974) State ex rel. Santini v. Swackhamer
STATE OF NEVADA, on the Relation of JAMES D. SANTINI, Petitioner, v. WILLIAM D.
SWACKHAMER, Secretary of State of the STATE OF NEVADA, Respondent.
No. 7642
April 12, 1974 521 P.2d 568
Original petition for writ of mandamus.
Proceedings on original application for writ of mandamus by candidate for United States
House of Representatives seeking to compel Secretary of State to accept his declaration. The
Supreme Court held that state constitutional provision making judges ineligible to hold other
offices during term for which they shall have been elected or appointed did not apply to
federal offices and did not preclude judge from seeking election to Congress.
Peremptory writ issued.
George Rudiak, Chartered, of Las Vegas, for Petitioner.
Robert List, Attorney General, and Donald Klasic, Deputy Attorney General, Carson City,
for Respondent.
1. Constitutional Law.
When state law or constitutional provision may be construed in two ways, one offensive to Federal
Constitution and one not, court will ordinarily adopt construction which favors constitutionality, thereby
permitting state law or constitutional provision to operate to extent compatible with Federal Constitution.
U.S.C.A.Const. art. 6, cl. 2.
2. Officers.
State constitutional provision making judges ineligible to hold other offices during term for which they
shall have been elected or appointed did not apply to federal offices and did not preclude judge from
seeking election to Congress. Const. art. 6, 11; U.S.C.A.Const. art. 1, 4.
OPINION
Per Curiam:
At the general election in November, 1972, petitioner Santini was elected a judge of this
state's Eighth Judicial District Court with a term ending the first Monday in January, 1975.
90 Nev. 153, 154 (1974) State ex rel. Santini v. Swackhamer
Court with a term ending the first Monday in January, 1975. On March 8 1974, petitioner
resigned and, on March 12, he presented to the respondent Secretary of State a declaration of
candidacy for the office of Representative in the Congress of the United States, to seek
nomination for such office in the forthcoming Democratic primary election. The Secretary of
State refused to accept and file this declaration on the ground that petitioner is ineligible
under Article 6, 11 of our Nevada Constitution, which provides:
Judges ineligible to other offices. The justices of the supreme court and the district
judges shall be ineligible to any office, other than a judicial office, during the term for which
they shall have been elected or appointed; and all elections or appointments of any such
judges by the people, legislature, or otherwise, during said period, to any office other than
judicial, shall be void.
Petitioner therefore asks this Court to issue a writ of mandamus, compelling the Secretary
of State to accept his declaration of candidacy and filing fee, in order that his name may be
placed on the primary ballots in the several counties of this state. Accordingly, we must
determine whether Art. 6, 11 of the Nevada Constitution may and should be construed and
applied to preclude petitioner from seeking and holding the federal office in question.
Of course, the words any office in Art. 6, 11 of the Nevada Constitution arguably
might refer not merely to any office under our state government, but to any office under
either the state or federal government. Indeed, it is quite consistent with our Constitution's
language to assume that Art. 6, 11 was intended to control federal and state offices, whether
appointive or elective. If such assumption be made, then it would seem Nevada's founding
fathers undertook not only to decree who might serve the United States as Senator,
Representative, President, or Vice President, but also who should be eligible or ineligible to
such offices as Ambassador, Attorney General, Solicitor General, U.S. Attorney, and Director
of the F.B.I. We are satisfied that some narrower construction must be accorded the words
any office than this broad but quite literal interpretation of that phrase.
Available evidence indicates that those who framed Nevada's Constitution did not
contemplate that Art. 6, 11 would, or could, control eligibility to federal office. From the
Reports of the 1863 Constitutional Convention of the Territory of Nevada, it appears that
words which would have made Art. 6. 11 expressly applicable to federal elective offices
were eliminated by the Convention, following discussion of their presumed
unconstitutionality under the U.S. Constitution.1 And in eliminating such language from
our state Constitution, it seems Nevada's founders acted in accord with recognized
doctrine because, in the very earliest days of our nation, Mr.
90 Nev. 153, 155 (1974) State ex rel. Santini v. Swackhamer
eliminated by the Convention, following discussion of their presumed unconstitutionality
under the U.S. Constitution.
1
And in eliminating such language from our state Constitution,
it seems Nevada's founders acted in accord with recognized doctrine because, in the very
earliest days of our nation, Mr. Justice Story of the United States Supreme Court had made
this often quoted pronouncement:
The truth is, that the States can exercise no powers whatsoever, which exclusively spring
out of the existence of the national government, which the Constitution does not delegate to
them. They have just as much right, and no more, to prescribe new qualifications for a
representative, as they have for a President. Each is an officer of the Union, deriving his
powers and qualifications from the Constitution, and neither created by, dependent upon, nor
controllable by the States. It is no original prerogative of State power to appoint a
representative, a senator, or President for the Union. Those officers owe their existence and
functions to the united voice of the whole, not of a portion of the people. Before a state can
assert the right, it must show that the constitution has delegated and recognized it. No state
can say that it has reserved what it never possessed. 1 Story on the Constitution, 5th Ed.
627.
Throughout ensuing history, it seems that every constitutional scholar who has discussed
the question has endorsed Justice Story's view.
2
With one exception, every court wherein the
question has directly been litigated has held in accord.3 On the one recorded occasion
when a state court deviated from accepted Constitutional doctrine, the United States
Supreme Court, acting through Mr.
____________________

1
As proposed in the 1863 Constitutional Convention, the Article on the Judiciary contained a section
identical to Art. 6, 11, except that it originally concluded with the following phrase: . . . whether such office
be created by the Constitution and laws of the State or the Constitution or laws of the United States. In response
to an inquiry concerning what offices the words or the Constitution or laws of the United States referred to,
one delegate observed that the only intention was to render judges ineligible to the office of United States
Senator. Thereupon, a motion was made to strike out the words, on the ground that the Constitution of a State
could not prescribe the qualifications of a Senator. At the time, the motion failed. Reports of the 1863
Constitutional Convention 220 (1972 Ed.). However, although the mechanics do not clearly appear, it does
appear that ultimately the views of those favoring deletion of the phrase in contention prevailed. The phrase
ultimately was deleted, apparently during final corrections and amendments which were not reported verbatim,
but which are reflected by the proposed 1863 Constitution's final form. See: Id., at 427. As finally agreed to in
1863, the section just discussed was the progenitor of Art. 6, 11 of our present Constitution.

2
See for example: 1 Kent's Commentaries 229 (12th Ed. 1873); Cooley, General Principles or Constitutional
Law in the United States of America 285, 290 (3rd Ed. 1898); Burdick, The Law of the American Constitution
64.
90 Nev. 153, 156 (1974) State ex rel. Santini v. Swackhamer
the question has directly been litigated has held in accord.
3
On the one recorded occasion
when a state court deviated from accepted Constitutional doctrine, the United States Supreme
Court, acting through Mr. Justice Black, stayed the state court's action with an order evincing
Black's belief that the full Supreme Court would follow Story's view.
4
In related areas of
concern, federal authorities are consistent.
5
This court's ruling in Cannon v. Laxalt was
compatible.
6
An opinion of a prior Nevada Attorney General, issued years before this
litigation, also recognized that neither Nevada nor any state may super-add qualifications for
any federal office, such as the one here involved.
7

In opposition to this plethora of authority, counsel for respondent suggests that Mr. Justice
Story's view was wrong and self-serving, and that all subsequent authorities have
undiscerningly followed Justice Story and have thus been led into error. Clearly, this Court
could not make such an idea the basis for rejecting the uniform pronouncements of all
recognized authorities.
____________________

3
Among state court decisions supporting the proposition that a state may not superimpose additional
qualifications upon the right to federal office are: State ex rel. Chavez v. Evans, 446 P.2d 445 (N.M. 1968):
State v. Senner, 375 P.2d 728 (Ariz. 1962); State v. Crane, 197 P.2d 864 (Wyo. 1948); State v. Zimmerman, 24
N.W.2d 504 (Wis. 1946); People v. Sischo, 144 P.2d 785 (Cal. 1943); State v. Thorson, 6 N.W.2d 89 (N.D.
1942); Stockton v. McFarland, 106 P.2d 328 (Ariz. 1940); Ekwall v. Stadelman, 30 P.2d 1037 (Ore. 1934);
State v. Howell, 175 P. 569 (Wash. 1918). Zimmerman, Stockton, Ekwall, and Howell, cited above, all were
specifically concerned with state constitutional or statutory provisions purporting to preclude state judges from
seeking federal office.
Among federal court decisions to the same effect are: Dillon v. Fiorina, 340 F.Supp. 729 (D.N.M. 1972);
Stack v. Adams, 315 F.Supp. 1295 (N.D. Fla. 1970); Exon v. Tiemann, 279 F.Supp. 609 (D. Neb. 1968).
When the issue has been presented to the houses of the Congress, the same result has been reached. Turney
v. Marshall, 2 Cong. El. Cas. 167 (1856); Trumbull's Case, 2 Cong. El. Cas. 618 (1856); Barney v. McCreery, 1
Cong. El. Cas. 167 (1808).
The rationale underlying these holdings, which to us appears compelling, is that the Constitution of the
United States declares: This Constitution . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding. U.S. Const., Art. VI, cl. 2.

4
Davis v. Adams, 400 U.S. 1203 (1970).

5
See, for example, Powell v. McCormack, 395 U.S. 486 (1968).

6
80 Nev. 588, 397 P.2d 466 (1964).

7
Op. Att'y Gen. No. 897 (March 29, 1950).
90 Nev. 153, 157 (1974) State ex rel. Santini v. Swackhamer
[Headnote 1]
When a state law or constitutional provision may be construed in two ways, one offensive
to the U.S. Constitution and one not, this Court will ordinarily adopt the construction which
favors constitutionality, thus permitting the state law or constitutional provision to operate to
the extent compatible with the U.S. Constitution. Orr Ditch Co. v. Dist. Ct., 64 Nev. 138, 178
P.2d 558 (1947). This course seems particularly appropriate as to Art. 6, 11, in light of the
1863 debates relative to the Nevada Constitution, mentioned above.
[Headnote 2]
Accordingly, we hold that Art. 6, 11 of the Nevada Constitution has no application to
federal offices, and therefore constitutes no bar to petitioner Santini's candidacy for the office
of Representative in the Congress of the United States. A peremptory writ of mandamus will
therefore issue forthwith, in accord with the prayer of the petition on file herein.
8

____________________

8
It should be noted that the U.S. Constitution declares: The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. Art. I, 4.
Therefore, it has been held that states may fix procedural or regulatory conditions for the conduct of elections for
federal office, as distinguished from adding qualifications for candidacy. For example, Storer v. Brown, 415 U.
S. 724, 42 Law Week 4440 (March 26, 1974), and Good, Wise and Hayakawa v. Brown,...... F.Supp....... (Case
No. C-74-0535 RFP, N.D. Cal. March 27, 1974), upheld the constitutionality of statutes relating to political
affiliation. Fowler v. Adams, 315 F.Supp. 592 (M.D. Fla. 1970), held a state's imposition of filing fees did not
constitute an imposition of a qualification.
____________
90 Nev. 158, 158 (1974) De Luca Importing Co. v. Buckingham Corp.
DE LUCA IMPORTING CO., INC., a Corporation, Appellant, v. THE BUCKINGHAM
CORPORATION, a Corporation; BUCKINGHAM DISTRIBUTORS, INC., a Corporation;
BUCKINGHAM DISTRIBUTORS, a Corporation;
BEST BRANDS, INC., a Corporation, Respondents.
No. 6960
April 15, 1974 520 P.2d 1365
Appeal from orders of the Eighth Judicial District Court; Carl J. Christensen, Judge.
Appeal from an order of the district court dismissing portions of complaint seeking
injunctive relief and from an order denying motion for preliminary injunction. The Supreme
Court held that order dismissing portions of complaint seeking injunctive relief was not a
final appealable order and that denial of motion for preliminary injunction, without affording
plaintiff opportunity to be heard, was error.
Dismissed in part and reversed in part with instructions.
Galane, Tingey & Shearing, of Las Vegas; and J. Albert Hutchinson, of San Francisco,
California, for Appellant.
Dickerson, Miles & Pico, and Morse, Foley & Wadsworth, of Las Vegas; Levin and
Saphier, and Gibson, Dunn & Crutcher, of Los Angeles, California, for Respondents.
1. Appeal and Error.
Where complaint sought an accounting, damages and an injunction and order of trial court dismissing
portion of complaint seeking injunctive relief did not contain express determination that there was no just
reason for delay, order dismissing such portion of complaint was not a final appealable order. NRCP
54(b); NRAP 3A(b).
2. Appeal and Error.
An appeal may be taken from an order denying a motion for injunction without any express determination
that there is no just reason for delay. NRCP 54(b); NRAP 3A(b)(2).
3. Franchises.
An exclusive distributorship in an exclusive territory is entitled to protection equal to that of exclusive
franchise.
4. Injunction.
Denial of motion for preliminary injunction to enjoin corporate defendants from defeating corporate
plaintiff's alleged exclusive right to sell and distribute particular brand of whiskey within an exclusive
territory, without affording plaintiff an opportunity to be heard, was error.
90 Nev. 158, 159 (1974) De Luca Importing Co. v. Buckingham Corp.
an exclusive territory, without affording plaintiff an opportunity to be heard, was error.
OPINION
Per Curiam:
In this case the appellant not only seeks an accounting and damages, but also an
injunction.
This appeal is taken from an order of the district court dismissing portions of appellant's
complaint seeking injunctive relief against the respondents, and from an order denying
appellant's motion for a preliminary injunction.
[Headnote 1]
1. Nowhere in the order of the district court dismissing those portions of appellant's
complaint seeking injunctive relief, is there an express determination that there is no just
reason for delay, as required by NRCP 54(b),
1
before an appeal can be taken where
multiple claims are involved. An order dismissing a claim where more than one claim for
relief is presented without an express determination by the district court, that there is no just
reason for delay, is not a final order appealable under NRAP 3A(b), formerly NRCP 72(b)(1).
See King v. Baskin, 89 Nev. 290, 511 P.2d 115 (1973); Cascade Drinking Waters v. Central
Tel., 88 Nev. 702, 504 P.2d 697 (1972); Hill v. State ex rel. Dep't Hwys., 86 Nev. 37, 464
P.2d 468 (1970).
[Headnote 2]
2. An appeal may be taken from an order denying a motion for an injunction without any
express determination that there is no just reason for delay as required by NRCP 54(b).
NRAP 3A(b)(2). See Atlantic Richfield Co. v. Oil, Chemical & A. Wkrs. Int. U., 447 F.2d
945 (7th Cir. 1971); Build of Buffalo Inc. v.
____________________

1
NRCP 54(b): When more than one claim for relief is presented in an action, whether as a claim,
counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and the rights and inabilities of all the parties.
90 Nev. 158, 160 (1974) De Luca Importing Co. v. Buckingham Corp.
Build of Buffalo Inc. v. Sedita, 441 F.2d 284 (2nd Cir. 1971); Western Geophysical Co. of
Amer. v. Bolt Associates, Inc., 440 F.2d 765 (2nd Cir. 1971); Rains v. Cascade Industries,
Inc., 402 F.2d 241 (3rd Cir. 1968); Alloyd General Corp. v. Building Leasing Corp., 361 F.2d
359 (1st Cir. 1966); George P. Converse & Co. v. Polaroid Corporation, 242 F.2d 116 (1st
Cir. 1957); Pang-Tsu Mow v. Republic of China, 201 F.2d 195 (D.C.Cir. 1952); 91
U.S.App.D.C. 324, cert. denied 345 U.S. 925.
In its order denying appellant's motion for preliminary injunction, the district court
assumed that all of the allegations of the appellant's complaint were supported by probative
evidence and accepted them as proven fact, and took such facts in their interpretation and
inference most favorable to the appellant.
In its complaint, the appellant alleged that during the year 1946, and on or before the first
day of July, 1946, the appellant and the respondent, Buckingham Corporation, entered into an
oral agreement for the sale, purchase, resale and wholesale distribution in a portion of the
State of Nevada of the alcoholic beverage products held by Buckingham for sale in the United
States and open to lawful sale as such in the State of Nevada, particularly including imported
Scotch whiskey named and labeled Cutty Sark; that by the terms of the agreement, it was
expressly understood and agreed that Buckingham would and did appoint appellant its sole
and exclusive distributor and purchaser for resale at wholesale to licensed dealers in alcoholic
beverages in appellant's exclusive territory, and that plaintiff should have the exclusive right
of purchase for resale and the exclusive right of sale to licensed persons within appellant's
exclusive territory of said alcoholic beverage products held for sale by Buckingham and open
to lawful sale in the State of Nevada.
Appellant further alleged that on or about February 16, 1972, without its consent,
Buckingham advised appellant that after April 1, 1972, it would no longer recognize
appellant as the exclusive distributor in the appellant's exclusive territory, and that it had
appointed the respondent, Best Brands, Inc., as an additional distributor of Cutty Sark in
plaintiff's exclusive territory.
Appellant's motion before the district court sought to enjoin and restrain Buckingham from
delivering Cutty Sark Scotch Whiskey to Best Brands, Inc., and from in any way defeating its
exclusive right to sell Cutty Sark whiskey within its exclusive territory. In addition, the
motion sought to restrain Best Brands, Inc., from in any way inducing or aiding
Buckingham in its proposed breach.
90 Nev. 158, 161 (1974) De Luca Importing Co. v. Buckingham Corp.
Brands, Inc., from in any way inducing or aiding Buckingham in its proposed breach.
[Headnote 3]
In Harmon v. Tanner Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963), this Court said: An
exclusive franchise is a property right. Injunctive relief is available to prohibit interference
with it. (Citations omitted.) Equitable intervention is needed to protect the vitality of an
exclusive franchise, for the moment the right becomes common the franchise ceases to exist.
An exclusive distributorship in an exclusive territory is entitled to protection equal to that of
an exclusive franchise.
[Headnote 4]
In the light of Harmon v. Tanner Motor Tours, supra, the district court erred in summarily
denying the appellant's motion for a preliminary injunction without affording it an
opportunity to be heard.
This case is remanded to the district court for a hearing on the appellant's motion for a
preliminary injunction and for a reconsideration, in light of Tanner, of its order dismissing
those portions of appellant's complaint seeking injunctive relief.
The appeal from that order dismissing portions of the appellant's complaint is dismissed
without prejudice to the right of the appellant to reinstate it or to appeal any other issues after
final determination of the complaint by the district court.
____________
90 Nev. 161, 161 (1974) Roseneau v. State
MARVIN JAMES ROSENEAU, Appellant, v.
STATE OF NEVADA, Respondent.
No. 7422
April 19, 1974 521 P.2d 369
Appeal from denial of petition for correction of sentence heard in the Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
The Supreme Court held that objection to filing of amended information was waived
where not asserted in pretrial motion nor on direct appeal from conviction.
Affirmed.
James W. Johnson, Jr., of Reno, for Appellant.
90 Nev. 161, 162 (1974) Roseneau v. State
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
Indictment and Information.
Objection to filing of amended information was waived where not asserted in pretrial motion nor on
direct appeal from conviction. NRS 174.105.
OPINION
Per Curiam:
On September 25, 1968 appellant was charged by information with having committed a
crime against nature on a person under the age of 18 years, the penalty for which is life with
the possibility of parole after five years. Appellant plead not guilty to this charge. On
February 28, 1969 the district court permitted the prosecution to file an amended information
charging a crime against nature, the penalty for which is not less than one nor more than six
years. Petitioner entered a plea of nolo contendere to this charge.
On May 12, 1969 the court granted appellant permission to change his nolo plea to that of
not guilty. At the same time the State moved that the amended information be withdrawn and
that the case proceed on the information originally filed on September 25, 1968. The court
denied this motion, but granted the State leave to file another Amended Information setting
forth the facts contained in the original Information. A second amended information
charging the original offense was filed and the case proceeded to jury trial. The jury returned
a verdict of guilty and the appellant was subsequently sentenced to the appropriate penalty for
the crime charged. There was a direct appeal from this conviction which was affirmed in
Roseneau v. State, 87 Nev. 463, 488 P.2d 917 (1971). The issue raised in the lower court was
not presented in that appeal.
Appellant urges that the State violated the provisions of NRS 173.095
1
when it filed the
second amended information upon which he was tried, and that he should have been
sentenced to the penalty of one to six years provided for the crime charged in the first
amended information.
Appellant failed to challenge the information as amended in a pretrial motion. NRS
174.105. Failure to present any defense or objection as provided in this section constitutes
a waiver thereof unless the court is moved to grant relief for good cause shown.
____________________

1
The court may permit an information to be amended at any time before verdict or finding if no additional or
different offense is charged and if substantial rights of the defendant are not prejudiced.
90 Nev. 161, 163 (1974) Roseneau v. State
or objection as provided in this section constitutes a waiver thereof unless the court is moved
to grant relief for good cause shown. NRS 174.105(2). Appellant offers no reason for his
failure to present this motion before trial.
Furthermore, appellant failed to raise this issue in a prior appeal to this court. In Craig v.
Warden, 87 Nev. 39, 482 P.2d 325 (1971), this court affirmed the denial of the defendant's
application for post-conviction relief on the ground that the asserted error was not presented
in his earlier appeal and no reason was given to explain the omission. See also Sanchez v.
Warden, 89 Nev. 273, 510 P.2d 1362 (1973); NRS 177.375.
Because appellant failed to follow appropriate procedures, we decline to address the issue
raised.
Affirmed.
____________
90 Nev. 163, 163 (1974) Adams v. State
HUGH BELIN ADAMS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7495
April 19, 1974 521 P.2d 365
Appeal from a conviction for possession of marijuana. First Judicial District Court, Lyon
County; Richard L. Waters, Jr., Judge.
The Supreme Court held that where defendant's friend was arrested for a parole violation
and requested the arresting officers to secure his house trailer, where, in doing so, the officers
confronted defendant inside the trailer holding a bottle of wine, where one of the officers
asked him for the wine since the parolee was not to have intoxicants in his residence, where
defendant was reluctant and the officer took the bottle from his hand, where defendant then
closed his hand and moved it away as if to conceal something, where the officer, believing
that defendant might be holding a weapon or a controlled substance, asked him to open his
hand, and where, when he complied, the officer observed what appeared to be hand-rolled
marijuana cigarette, whereupon the officer placed defendant under arrest, there was no Fourth
Amendment violation in respect to the search and seizure of the cigarette.
Affirmed.
Rodlin Goff, State Public Defender, Carson City, for Appellant.
90 Nev. 163, 164 (1974) Adams v. State
Ronald T. Banta, District Attorney, Lyon County, for Respondent.
Searches and Seizures.
Where defendant's friend was arrested for a parole violation and requested officers to secure his house
trailer, where, in doing so, the officers confronted defendant inside trailer holding a bottle of wine, where
one officer asked him for the wine since the parolee was not to have intoxicants in his residence, where
defendant was reluctant and the officer took the bottle, where defendant then closed his hand and moved it
away as if to conceal something, where the officer, believing that defendant might be holding a weapon or
a controlled substance, asked him to open his hand, and where, when he complied, the officer observed
what appeared to be a marijuana cigarette, there was no Fourth Amendment violation in respect to the
search and seizure of the cigarette. U.S.C.A.Const. Amend. 4; NRS 171.1232, subd. 1.
OPINION
Per Curiam:
The appellant asks this court to set aside his conviction for possession of marijuana on the
ground that the evidence received to prove the offense was the product of an illegal search
and seizure. His friend had just been arrested for parole violation and had requested the
arresting officers to secure his house trailer. In the process of doing so, the officers confronted
the appellant inside the trailer. The appellant was holding a bottle of wine in his hand. One of
the officers asked him for the bottle of wine since the appellant's friend, the owner of the
house trailer, was not to have intoxicants in his residence. The appellant was reluctant to give
the officer the wine and the officer took it from his hand. The appellant then closed his hand
and moved it away as if to conceal something. The officer requested him to open his hand
since he believed that the appellant may be holding a weapon or controlled substance. The
appellant complied, and the officer observed what appeared to be a hand-rolled marijuana
cigarette. The officer then placed the appellant under arrest. The Fourth Amendment was not
offended. NRS 171.1232(1); Wright v. State, 88 Nev. 460, 466, 499 P.2d 1216 (1972). Other
claimed errors are without merit.
Affirmed.
____________
90 Nev. 165, 165 (1974) Grist v. Osgood
ROBERT LEE GRIST Appellant, v.
EVELYN G. OSGOOD Respondent.
No. 7184
April 19, 1974 521 P.2d 368
Appeal from judgment for money and other relief; Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The Supreme Court held that obligation of drawer of dishonored uncertified checks to pay
the same was not discharged by payee's holding the checks for more than 30 days after date or
issue before presenting checks for payment where drawee bank did not become insolvent
during the delay.
Affirmed.
Janson F. Stewart, of Las Vegas, for Appellant.
Deaner and Deaner, of Las Vegas, for Respondent.
Bills and Notes.
Obligation of drawer of dishonered uncertified checks to pay same was not discharged by payee's holding
checks for more than 30 days after date or issue before presenting checks for payment where drawee bank
did not become insolvent during the delay. NRS 104.3502, 104.3503, subd. 2.
OPINION
Per Curiam:
At issue is whether the obligation of a drawer of dishonored uncertified checks to pay the
same is discharged by failure of the payee to demand payment thereof within a reasonable
time. The district court ruled that his obligation was not discharged and entered judgment for
the payee.
The checks were held by the payee for more than 30 days after the date or issue
1
and,
when finally presented for payment, were returned for lack of sufficient funds. This tardy
presentment, however, does not per se discharge the drawer since the record does not show
that the drawee bank became insolvent during the delay thereby depriving the drawer of
funds with which to cover the checks.2
____________________

1
NRS 104.3503(2): A reasonable time for presentment is determined by the nature of the instrument, any
usage of banking or trade and the facts of the particular case. In the case of an uncertified check which is drawn
and payable within the United States and which is not a draft drawn by a bank the following are presumed to be
reasonable periods within which to present for payment or to initiate bank collection:
(a) With respect to the liability of the drawer, 30 days after date or issue whichever is later; . . . .
90 Nev. 165, 166 (1974) Grist v. Osgood
the record does not show that the drawee bank became insolvent during the delay thereby
depriving the drawer of funds with which to cover the checks.
2

The claimed error with respect to the allowance of attorney fees and costs is not
entertained since it is tendered without supporting authority. General Electric Co. v. Bush, 88
Nev. 360, 368, 498 P.2d 366 (1972).
Affirmed.
____________________

2
NRS 104.3502: 1. Where without excuse any necessary presentment or notice of dishonor is delayed
beyond the time when it is due:
(a) Any endorser is discharged; and
(b) Any drawer or the acceptor of a draft payable at a bank or the maker of a note payable at a bank who
because the drawee or payor bank becomes insolvent during the delay is deprived of funds maintained with the
drawee or payor bank to cover the instrument may discharge his liability by written assignment to the holder of
his rights against the drawee or payor bank in respect of such funds, but such drawer, acceptor or maker is not
otherwise discharged.
2. Where without excuse a necessary protest is delayed beyond the time when it is due any drawer or
endorser is discharged.
____________
90 Nev. 166, 166 (1974) Fine v. Warden
EDDIE JOHN FINE, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 7122
April 19, 1974 521 P.2d 374
Appeal from an order of the Fourth Judicial District Court, Elko County, denying petition
for post-conviction relief; Joseph O. McDaniel, Judge.
The Supreme Court held that petitioner who had been sentenced to serve 6 years for
burglary was entitled to evidentiary hearing on his claim that his plea of nolo contendere had
been predicated on representation of prosecuting authorities that he would not be sent to
prison, but would be placed on probation.
Reversed and remanded.
Gary A. Sheerin, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and
Gregory D. Corn, Deputy District Attorney, Elko County, for Respondent.
90 Nev. 166, 167 (1974) Fine v. Warden
Criminal Law.
Post-conviction relief petitioner, who had been sentenced to serve 6 years for burglary, was entitled to
evidentiary hearing on his claim that his plea of nolo contendere had been predicated on representation of
prosecuting authorities that he would not be sent to prison, but would be placed on probation.
OPINION
Per Curiam:
Eddie John Fine was charged by information with the crime of burglary. Upon his plea of
nolo contendere, the district judge found him guilty of the offense. Fine was sentenced to
serve 6 years in the Nevada State Prison. He has now filed a petition for post-conviction
relief, claiming inter alia that his plea was predicated on the representation of the
prosecuting authorities that he would not be sentenced to prison but would be placed on
probation; . . . The district judge who presided at Fine's arraignment and sentencing
summarily denied Fine's petition without affording him an evidentiary hearing.
1
Schoultz v.
Hocker, 469 F.2d 681 (9th Cir. 1972), is controlling in the instant case. Schoultz, who was a
Nevada State prisoner, filed, after exhausting his state remedies, a habeas petition in the
United States District Court for the District of Nevada. The habeas petition was denied
without an evidentiary hearing. One of Schoultz's contentions, as is Fine's, was that he was
induced to plead guilty in the state court because the prosecuting attorney made the promise
that . . . he would be sentenced to a period of confinement not exceeding five to seven years.
Schoultz was sentenced to 10 years. In reversing and remanding the case, the Ninth Circuit
held:
It is well-established that if an accused enters a plea of guilty upon the basis of a promise
made by an official representing the prosecution, and the promise is unequivocal, then he is
entitled to withdraw his plea if the promise is unfulfilled. See, e.g., Hilliard v. Beto, 465 F.2d
829 (5th Cir. 1972). Cf. Santobello v. New York, 404 U.S. 257 (1971). Accordingly, Schoultz
is entitled to an evidentiary hearing for the determination of the truth or falsity of the
allegation as to the alleged promise. If the allegation is true, then he is entitled to plead anew
in the state court.
____________________

1
Apparently the district judge who, at the arraignment, had complied with the requirements of Higby v.
Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), then in full effect, concluded from a review of the transcript of those
proceedings that Fine's petition was meritless.
90 Nev. 166, 168 (1974) Fine v. Warden
anew in the state court. Macon v. Craven, 457 F.2d 342 (9th Cir. 1972). . . .
2

We, therefore, in following the ruling of Schoultz, reverse the order of the district judge
and remand the case for an evidentiary hearing to determine the truth or falsity of Fine's
allegation of the alleged promise.
____________________

2
Although the ruling in Schoultz does not bind this court, we choose to follow it in the instant case, since to
do otherwise would place an unnecessary burden upon the United States District Court in processing
post-conviction applications asserting this particular ground for relief. Rahn v. Warden, 88 Nev. 429, 498 P.2d
1344 (1972).
____________
90 Nev. 168, 168 (1974) Bright v. Sheriff
REX BRIGHT and DAYE CALVERT, Appellants, v.
SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 7613
April 19, 1974 521 P.2d 371
Appeal from order denying pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; James J. Guinan, Judge.
After being indicted for the crime of obtaining money under false pretenses, defendants
filed a pretrial habeas proceeding in which they contended that the evidence presented to the
grand jury was insufficient to establish probable cause to hold them for trial. The district
court denied habeas, and defendants appealed. The Supreme Court held that the charges were
supported by evidence that defendants, while active in a corporation formed to build homes,
formed a fictitious company which purchased plumbing supplies at distributor prices and then
resold the supplies to the home building corporation for at least 100 percent profit.
Affirmed.
Legarza, Lee & Barengo, of Reno, for Appellants.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Thomas
C. McNally, Deputy District Attorney, Washoe County, for Respondent.
1. False Pretenses.
Elements of crime of obtaining money by false pretenses are intent to defraud, false representation,
reliance on that representation, and that victim be defrauded. NRS 205.380.
90 Nev. 168, 169 (1974) Bright v. Sheriff
2. False Pretenses.
Whether false representation is made in direct manner or through subterfuge of concealment or
nondisclosure is neither determinative of, nor critical to, issue of whether or not crime was committed.
NRS 205.380.
3. False Pretenses.
False pretense is representation of some fact or circumstance which is not true and is calculated to
mislead; representation may be implied from conduct or may consist of concealment or nondisclosure
where there is duty to speak, and may consist of any acts, work, symbol or token calculated and intended to
deceive. NRS 205.380.
4. Indictment and Information.
Indictment for crime of false pretense was supported by evidence that defendants, while active in
corporation engaged in building homes, formed fictitious company which purchased plumbing supplies at
distributor/contractor price and then resold supplies to home building corporation at more than 100 percent
profit. NRS 205.380.
OPINION
Per Curiam:
Appellants were indicted for the crime of obtaining money under false pretenses (NRS
205.380). In a pretrial habeas proceeding in the district court they contended the evidence
presented to the grand jury was insufficient to establish probable cause to hold them for trial.
The district court denied habeas and this appeal was perfected.
The record reflects that Alfred J. Banford, together with appellant Calvert and others,
formed a corporation, Silver Pine Homes, Inc. Its stated purpose: the building of homes.
Banford's responsibility was to acquire the land; Calvert's: to handle the construction.
Appellant Bright was subsequently brought into the operation; his function: plumbing.
Bright and Calvert then, secretly and without Banford's knowledge, set up a fictitious
company, A & X Building Supply. All plumbing supplies for the Silver Pines construction
were acquired through A & X; all A & X delivery slips and invoices were submitted over the
signature of J. B. King, a nonexistent person; they were approved by either Bright or Calvert
and passed on as bona fide bills, to Banford, who caused them to be paid with Silver Pine
funds.
Bright, using his personal checks, purchased the various supplies at the
distributor/contractor price, and through the A & X conduit, charged Silver Pines an average
of at least 100 percent more than the original purchase price. During the 14-month period
involved Silver Pines paid some $30,000.00 more than its cost would have been, absent the
scheme.
90 Nev. 168, 170 (1974) Bright v. Sheriff
[Headnote 1]
Our statute makes it a crime to obtain money by false pretenses.
1
Elements of the crime
are: (1) intent to defraud; (2) a false representation; (3) reliance on that representation; and,
(4) that the victim be defrauded. The single issue before us is whether the record contains
evidence of the second element, a false representation.
[Headnote 2]
Appellant's entire argument is directed to the fact that there was no evidence that they
made direct false representations to Silver Pines (and Banford); therefore, they suggest that
absent such proof they cannot be subjected to trial. The contention is without merit. Whether
a false representation is made in a direct manner, or through the subterfuge of concealment or
non-disclosure, is neither determinative of, nor critical to, the issue of whether or not the
crime was committed.
[Headnote 3]
A false pretense may be defined as a representation of some fact or circumstance which is
not true and is calculated to mislead. The representation may be implied from conduct, or may
consist of concealment or non-disclosure where there is a duty to speak. A false pretense may
consist of any act, word, symbol or token calculated and intended to deceive. It may be made
either expressly, or by implication.
Many cases have followed this very broad definition of false representations. Generally,
any words or conduct which create any false circumstance will satisfy the statute. Although
no cases were cited which involved the exact scheme presented in this case, and we found
none, many remarkably analogous schemes have been held to constitute the crime. Illustrative
is Montez v. People, 132 P.2d 970 (Colo. 1942), where defendants, deputy county treasurers,
learned through their official capacity that a delinquent taxpayer was seeking redemption of a
tax sale certificate. Under a fictitious name they requested assignment of the certificate at a
reduced price. The county commissioners, unaware of the impending redemption, granted the
assignment for one-half the amount the county would have received had it waited for the
redemption. The taxpayer then paid the full redemption amount to defendants, "as a result
of which the loss to the county of the difference was as definite and tangible as if the
money had been removed from the cash drawer in the treasurer's office."
____________________

1
205.380 reads in part: Every person who shall knowingly and designedly, by any false pretense or
pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects or
other valuable thing, with intent to cheat or defraud any person or persons of the same, is a cheat, and on
conviction shall be imprisoned . . .
90 Nev. 168, 171 (1974) Bright v. Sheriff
paid the full redemption amount to defendants, as a result of which the loss to the county of
the difference was as definite and tangible as if the money had been removed from the cash
drawer in the treasurer's office. 132 P.2d at 974.
In State v. Aiken, 254 P.2d 264 (Kan. 1953), a conviction was sustained where an
insurance solicitor represented to insureds that the annual premium for a certain policy was
$68.50; he collected that amount and kept the difference between such amount and the actual
premium of $33. A conviction was upheld in Thompson v. State, 19 S.E.2d 777 (Ga. 1942),
where defendant, an inspector in the city water department altered the consumer's water meter
in order to reduce the water bill, and then received, from the consumer, one-half the amount
saved. People v. Baird, 286 P.2d 832 (Cal.App. 1955), upheld conviction of a defendant who
induced the prosecuting witness to enter into a joint venture for the purchase of surplus
machine gun cases; defendant produced a purported copy of a bid form showing the cost to be
12 1/2 each. In fact the cost was only 5 3/4 each. A conviction was also affirmed in People
v. Carpenter, 297 P.2d 498 (Cal.App. 1956), where a theater employee, who was supposed to
draw a ticket at random, palmed the ticket of a confederate and pretended it to be the one
drawn from a container.
The cited cases are similar in that they involve a false circumstance or fact which has been
created to mislead. The method for the creation and execution of the fraudulent scheme may
be by express representations: Aiken, supra, Baird, supra; by conduct: Thompson, supra,
Carpenter, supra; or indirectly and by non-disclosure: Montez, supra.
[Headnote 4]
In the present case, appellants submitted a false claim. They would have been criminally
liable if they had overcharged by including items on the vouchers and invoices that had not
actually been purchased. State v. Zeek, 199 A. 713 (N.J. 1938). If they had overcharged by
expressly misrepresenting the cost that the corporation had paid for an item, they would be
criminally liable: Aiken, supra; Baird, supra. They are just as criminally responsible where
the same result is reached indirectly, through the representation that A & X was a bona fide
plumbing supply business and that J. B. King had submitted vouchers from A & X for
payment. Montez, supra.
The order of the trial court is affirmed.
____________
90 Nev. 172, 172 (1974) Harris v. State
ARTHUR LEE HARRIS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7322
April 19, 1974 521 P.2d 367
Appeal from conviction and sentence of the Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
Defendant was convicted in the district court of battery with use of deadly weapon, and he
appealed. The Supreme Court held that any error that may have occurred in production of gun
and testimony relating to it was harmless, where eyewitness testimony and testimony of
victim overwhelmingly supported verdict of guilty.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner and Dan M. Seaton, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Record disclosed no intentional prosecutorial misconduct regarding testimony and display of gun in
prosecution for battery with use of deadly weapon. NRS 200.481, subd. 2(d).
2. Criminal Law.
Any error that may have occurred in production of gun and testimony relating to it was harmless in
prosecution for battery with use of deadly weapon, where eyewitness testimony and testimony of victim
overwhelmingly supported verdict of guilty. NRS 200.481, subd. 2(d).
OPINION
Per Curiam:
A jury found Arthur Lee Harris guilty of battery with the use of a deadly weapon, in
violation of NRS 200.481, subsection 2(d).
1
He seeks reversal of his judgment of conviction
on the ground that he was prejudiced by the State's unsuccessful attempt to introduce in
evidence the weapon allegedly used by Harris in the commission of the offense, after it
had been examined by witnesses and viewed by the jurors during the trial.
____________________

1
NRS 200.481, in relevant part:
2. Any person convicted of a battery shall be punished:
. . . .
(d) It the battery is committed with the use of a deadly weapon, by imprisonment in the state prison for not
less than 2 years nor more than 10 years.
90 Nev. 172, 173 (1974) Harris v. State
attempt to introduce in evidence the weapon allegedly used by Harris in the commission of
the offense, after it had been examined by witnesses and viewed by the jurors during the trial.
On July 30, 1972, Harris and Arthur Carter were at a liquor store in Las Vegas where a
pool tournament was in progress. Harris and Carter made a bet on one of the games. Harris
won, and Carter reneged on the bet. Harris pulled a revolver from under his shirt and shot
Carter.
Testimony of two eyewitnesses to the shooting showed that Harris fired two shots from a
steel-blue revolver, hitting Carter in the leg and chest. A security guard testified that he saw
Harris with a revolver in his hand and commanded him to stop shooting Carter.
No objection, either to the aforementioned testimony or to the display of the gun, was
offered by appellant. When the State attempted to introduce the gun in evidence, appellant
objected on the ground of an insufficient foundation. The trial judge sustained appellant's
objection. Appellant did not move to have the testimony regarding the gun stricken and to
have the jury instructed to disregard it, but rather moved the court for a mistrial, which
motion was denied.
[Headnotes 1, 2]
We have reviewed the record, and we find no intentional prosecutorial misconduct
regarding the testimony and the display of the gun. Further, since the eyewitness testimony
and the testimony of the victim overwhelmingly support the verdict of guilty, any error that
may have occurred in the production of the gun and the testimony relating to it may be
considered harmless. Chapman v. California, 386 U.S. 18 (1967); Layton v. State, 87 Nev.
598, 491 P.2d 45 (1971).
Accordingly, we affirm the conviction and sentence in the lower court.
____________
90 Nev. 174, 174 (1974) Venable v. Sanford
DOUGLAS J. VENABLE, Appellant, v.
MARY B. SANFORD, Respondent.
No. 7298
April 19, 1974 520 P.2d 959
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Affirmed.
Michael L. Hines, of Las Vegas, for Appellant.
Douglas R. Pike, of Las Vegas, for Respondent.
OPINION
Per Curiam:
Mary B. Sanford commenced this action in the district court to recover $7,050, which she
claimed was due and owing her from appellant, Douglas J. Venable. The court, sitting
without a jury, found in favor of Mary. Douglas has appealed, seeking reversal on the ground
that the judgment was not supported by the record.
The sole issue presented is whether there is substantial evidence in the proceedings below
to support the findings of the court. Sala & Ruthe Realty, Inc. v. Deneen, 89 Nev. 98, 507
P.2d 140 (1973). We have reviewed the record, and we find that such evidence does exist.
Therefore, we affirm.
____________
90 Nev. 174, 174 (1974) Wellman v. Sheriff
JOANNE HELEN WELLMAN, aka FRANKLIN, Appellant,
v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 7628
April 19, 1974 521 P.2d 365
Appeal from order denying pretrial petition for habeas corpus, Eighth Judicial District
Court, Clark County; William P. Compton, Judge.
The Supreme Court held that uncorroborated accomplice testimony was insufficient to
establish probable cause for binding defendant over for trial.
Reversed.
90 Nev. 174, 175 (1974) Wellman v. Sheriff
Douglas J. Shoemaker, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney and Joel M.
Cooper, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Uncorroborated accomplice testimony was insufficient to establish probable cause for binding defendant
over for trial. NRS 200.010.
OPINION
Per Curiam:
After a preliminary examination, appellant was ordered to stand trial for the murder of her
husband. NRS 200.010. Thereafter, by petition for habeas corpus, she challenged the
sufficiency of the evidence to show probable cause, contending that the only evidence against
her was the testimony of Roosevelt Swift, who admitted having committed the homicide
himself but who asserted he had done so at appellant's instance.
In the court below, the State acknowledged that Swift was shown to be an accomplice by
his own testimony, which was not corroborated as required by NRS 175.271 and our holding
in Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971). However, the State argues that the test
of corroboration, as enunciated in Austin and authorities there cited, applies only at the trial
stage. The State suggests that Lamb v. Bennett, 87 Nev. 89, 482 P.2d 298 (1971), supports
this contention. We do not so read that opinion. In fact, in Lamb we said: The requirement
that the testimony of an accomplice be corroborated is applicable to preliminary hearings. 87
Nev. at 91, 482 P.2d at 299. Accordingly, the committing magistrate was without authority
to bind over petitioner for trial. Ex parte Hutchinson, 76 Nev. 478, 482, 357 P.2d 589, 591
(1960).
Excluding the incriminating testimony given by Swift, the record does not connect
appellant with the homicide. Accordingly, we reverse the order of the trial court, and direct
that appellant be freed from custody unless, within 30 days time, the State elects to bring new
charges.
____________
90 Nev. 176, 176 (1974) Moen v. Las Vegas Int'l Hotel, Inc.
ROBERT WALLACE MOEN, JOSEPH FRANK VILLANI and FRED ANGELOH,
Appellants, v. LAS VEGAS INTERNATIONAL HOTEL, INC., Formerly Known as
NEVADA INTERNATIONAL HOTEL, INC., Doing Business as the LAS VEGAS
HILTON; JAMES NEWMAN; BUD HAINES and BARRON HILTON, Respondents.
No. 7431
April 19, 1974 521 P.2d 370
Appeal from summary judgment entered in the Eighth Judicial District Court; Howard W.
Babcock, Judge.
Three 21 dealers formerly employed by hotel brought combined actions claiming wrongful
discharge, false imprisonment and defamation. The district court entered summary judgment
for defendants, and plaintiffs appealed. The Supreme Court, Zenoff, J., held that dealers who
submitted to questioning from fear of losing their jobs during investigation of cheating ring
were not entitled to recover for false imprisonment and fact that dealers were discharged
during well-publicized investigation into the cheating did not by itself amount to a slanderous
accusation.
Affirmed.
Robert K. Dorsey, of Las Vegas, for Appellants.
Lionel Sawyer Collins & Wartman, and Steve Morris, of Las Vegas, for Respondents.
1. False Imprisonment.
Submission to mere verbal direction of another unaccompanied by force or threats of any character does
not constitute false imprisonment.
2. False Imprisonment.
Apprehension that one might in the future lose one's job or be prosecuted for theft is not force or threat of
force necessary to establish false imprisonment.
3. False Imprisonment.
Three 21 dealers who submitted to questioning from fear of losing their jobs during investigation of
cheating ring were not entitled to recover on theory of false imprisonment.
4. Libel and Slander.
Fact that three 21 dealers were discharged from employment by hotel during well-publicized
investigation into cheating did not by itself amount to a slanderous accusation.
90 Nev. 176, 177 (1974) Moen v. Las Vegas Int'l Hotel, Inc.
by hotel during well-publicized investigation into cheating did not by itself amount to a slanderous
accusation.
OPINION
By the Court, Zenoff, J.:
Robert Wallace Moen, Joseph Frank Villani and Fred Angeloh are three 21 dealers
formerly employed by the Las Vegas Hilton Hotel in Las Vegas. They were discharged in
June of 1972 at a time when the Clark County Sheriff's office was investigating a cheating
ring said to be operating within the county. Extensive news coverage attended the
investigation. While it was in progress several dealers and management of some of the
casinos in the area were interrogated by investigators from the sheriff's department.
Appellants were discharged at the time the investigation was under way. They brought
these combined actions upon their asserted claims that each of them was wrongfully
discharged from his employment, falsely imprisoned and maliciously defamed because of
their alleged or implied association with the cheating ring.
1. None of the appellants alleges use of force, threats or violence against him and all of
them acknowledge that they submitted to questioning and that their only fear was the loss of
their jobs.
[Headnotes 1-3]
Submission to mere verbal direction of another unaccompanied by force or threats of any
character does not constitute false imprisonment. Lerner Shops v. Marin, 83 Nev. 75, 423
P.2d 398 (1967); NRS 200.460(1). Apprehension that one might in the future lose one's job or
be prosecuted for theft is not force or the threat of force which is necessary to establish false
imprisonment. Roberts v. Coleman, 365 P.2d 79 (Ore. 1961).
[Headnote 4]
2. Moen, Villani and Angeloh charged the respondents with having made false and
defamatory statements affecting their professional reputations. The record does not
substantiate their accusations. The most that can be discerned is that whatever comments
were made, if any, were spoken by sheriff's deputies who were acting independently of these
respondents.
90 Nev. 176, 178 (1974) Moen v. Las Vegas Int'l Hotel, Inc.
Even though the three dealers were discharged during a well publicized investigation into
cheating, the fact of discharge by itself does not amount to a slanderous accusation. Wells v.
Shop Rite Foods, Inc., 474 F.2d 838 (5th Cir. 1973). The timing of a discharge is not alone
sufficient to support an action of slander.
Other issues raised are equally without merit. The appellants were unable to set forth
specific facts showing there was a genuine issue for trial. The summary judgment of the trial
court is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________
90 Nev. 178, 178 (1974) City of Las Vegas v. Southwest Gas
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v. SOUTHWEST
GAS CORPORATION, a California Corporation, Respondent.
No. 7044
April 30, 1974 521 P.2d 1229
Appeal from an order of dismissal, Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
After successfully opposing a gas company's application for an increase in natural gas
rates, a city brought an action against the gas company to recover the expenses, including
attorney's fees and expert witness fees, incurred in opposing the application. The district court
dismissed the complaint with prejudice, and the city appealed. The Supreme Court held that
city could not recover such expenses.
Affirmed.
Earl P. Gripentrog, City Attorney, and Kermitt L. Waters, Deputy City Attorney, of Las
Vegas, for Appellant.
Darrell L. Clark and Charles H. McCrea, of Las Vegas, for Respondent.
1. Gas.
City, after successfully opposing gas company's application for increase in natural gas rates, could not
recover expenses incurred in opposing application, including attorney's fees and expert witness fees. NRS
704.110; Const. art. 3, 1.
90 Nev. 178, 179 (1974) City of Las Vegas v. Southwest Gas
2. Constitutional Law.
Provision of Nevada Constitution providing for separation of legislative, executive and judicial
departments of government precludes court, without specific constitutional or legislative authority, from
awarding costs or attorney's fees to any party appearing at legislative hearing. Const. art. 3, 1.
OPINION
Per Curiam:
In March of 1971, the respondent, Southwest Gas Corporation, applied to the Nevada
Public Service Commission for an increase in natural gas rates. That application was opposed
in part by appellant, City of Las Vegas, Nevada, and other consumers. Appellant employed
counsel, hired expert witnesses and apparently incurred substantial expense in opposing the
application.
On December 6, 1971, the Commission denied respondent's application for increased
rates. Subsequently appellant filed a complaint in district court against respondent seeking to
recover expenses incurred in opposing respondent's application including attorney's fees and
expert witness fees. Upon respondent's motion, the district court dismissed the complaint
with prejudice for failure to state a claim upon which relief could be granted.
[Headnote 1]
We are called upon to decide whether a successful intervenor in an administrative
proceeding involving a request to increase utility rates is entitled to a award of attorney's fees
and costs.
Absent statutory authority authorizing the recovery of costs and attorney's fees, those
expenses are not recoverable. Dearden v. Galli, 71 Nev. 199, 284 P.2d 384 (1955); Dixon v.
District Court, 44 Nev. 98, 190 P. 352 (1920). Appellant has cited no authority from this or
any other jurisdiction, nor has independent research revealed any authorizing such an award.
The fixing of rates is a legislative act. Pacific Telephone & Tel. Co. v. Public Utilities
Com'n, 401 P.2d 353, 360 (Cal. 7965); Mandel Bros. v. Chicago Tunnel Terminal Co., 117
N.E.2d 774, 776 (Ill. 1954); Michigan Bell Tel. Co. v. Michigan Pub. Serv. Com'n., 24
N.W.2d 200, 205 (Mich. 1946). A rate hearing conducted by the Commission pursuant to
NRS 704.110 is legislative in nature.
90 Nev. 178, 180 (1974) City of Las Vegas v. Southwest Gas
[Headnote 2]
Article 3, Section 1 of the Nevada Constitution
1
precludes a court, without specific
constitutional or legislative authority, from awarding costs or attorney fees to any party
appearing at a legislative hearing.
The appellant's reliance upon cases which espouse the common fund
2
and
quasi-common fund doctrine is entirely misplaced. In each case where an award of attorney
fees has been made the proceedings were entirely judicial in nature.
Furthermore appellant has cited no case in which the common fund doctrine has been
applied, and an attorney's fee awarded in the absence of a fund. Hempstead v. Meadville
Theological School, 134 A. 103 (Pa. 1926). Here there is no fund before the district court.
The quasi-common fund doctrine has been founded in federal civil rights cases
involving bad faith, overreaching, or exceptional circumstances and dominating reasons.
Brewer v. School Board of City of Norfolk, Virginia, 456 F.2d 943 (4th Cir. 1972); Sims v.
Amos, 340 F.Supp. 691 (M.D.Ala. 1972); Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968). None of those extenuating circumstances exist in this record.
The order of the district court dismissing appellant's complaint with prejudice is affirmed.
____________________

1
Art. 3 Sec. 1, Nevada Constitution: 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.

2
Sprague v. Ticonic Bank, 307 U.S. 161 (1939); 49 ALR 1149.
____________
90 Nev. 180, 180 (1974) Summers v. Sheriff
CHRIS SUMMERS, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7631
May 8, 1974 521 P.2d 1228
Appeal from order denying pretrial petition for habeas corpus, Eighth Judicial District
Court, Clark County; William P. Compton, Judge.
90 Nev. 180, 181 (1974) Summers v. Sheriff
Petitioner, charged with lewdness with a minor, sought habeas corpus. The district court
denied the petition and appeal was taken. The Supreme Court held that the word lewd is not
unconstitutionally vague; and that testimony of 12-year-old girl that petitioner pulled lower
part of her bathing suit down to her knees was sufficient to meet test of probable cause to
hold petitioner for trial.
Affirmed.
Roy L. Nelson II, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Gary
Redmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
The word lewd in statute prohibiting lewd or lascivious act upon or with body of child under age of 14
years has sufficient certainty of definition that individual of ordinary intelligence would have fair notice of
what conduct is lewd. NRS 201.230.
2. Criminal Law.
Testimony that petitioner pulled lower part of 12-year-old girl's bathing suit down to her knees was
sufficient to meet test of probable cause to hold petitioner for trial on charge of lewdness with a minor.
NRS 171.206, 201.230.
OPINION
Per Curiam:
Appellant, charged with lewdness with a minor (NRS 201.230), was ordered to stand
trial at the conclusion of a preliminary examination. He then sought habeas corpus in the
district court and now appeals from the order denying that relief.
The alleged victim, a 12-year-old girl, testified, inter alia, that during the afternoon of
June 28, 1973, she was clad in a two-piece bathing suit and, while chatting with appellant, he
invited her into his dwelling so that he could obtain his camera and photograph her. After
entering the house she was asked to get on the bed and appellant, after taking several pictures,
pulled the lower part of her bathing suit down to her knees, took several more pictures and
then, while standing beside the bed, masturbated while the girl watched.
In asking us to reverse, appellant's first contention suggests that the word lewd is
unconstitutionally vague because it does not have sufficient certainty of definition so that
an individual of ordinary intelligence would have fair notice as to what conduct is lewd.1
We reject the contention.
90 Nev. 180, 182 (1974) Summers v. Sheriff
does not have sufficient certainty of definition so that an individual of ordinary intelligence
would have fair notice as to what conduct is lewd.
1
We reject the contention.
[Headnote 1]
While lewd is not specifically defined in our statutes, the word conveys sufficiently
definite warning as to the proscribed conduct when measured by common understanding and
practices. Roth v. United States, 354 U.S. 476, 491 (1957), quoting from United States v.
Petrillo, 332 U.S. 1, 8 (1947). The Constitution requires no more. Petrillo, supra, at 8. No
case has been cited by appellant in support of the argument and we note courts in other
jurisdictions have determined that the word lewd has sufficient constitutional certainty to
meet the requirement of Due Process. See, for example: State v. Jensen, 458 P.2d 782 (Mont.
1969); People v. Loignon, 325 P.2d 541 (Cal.App. 1958); and, United States ex rel. Huguley
v. Martin, 325 F.Supp. 489 (N.D. Ga. 1971).
Appellant also contends that the evidence adduced before the magistrate is insufficient to
meet the test of probable cause to hold him for trial. The thrust of his argument is that the
lack of physical contact with the girl proscribes the charge.
[Headnote 2]
We need not decide whether actual physical contact between appellant and the victim is an
essential element of the crime because here there was physical contact when the bottom
portion of the bathing suit was lowered. See People v. Lanham, 31 P.2d 410 (Cal.App. 1934),
where the defendant placed his hands under the clothing of a child and removed her panties.
In affirming the conviction the court said: It is common knowledge and common experience
to conclude that in removing the panties of the child the hands of the one removing the
panties would necessarily and undoubtedly come in contact with the body of the child so
outraged. 31 P.2d at 412.
In People v. Halistik, 230 P. 972 (Cal.App. 1924), a conviction was affirmed where the
accused had placed his hand between the child's legs without placing it under the clothing.
The court observed that [i]t would be unreasonable to hold that the act charged could be
committed only by placing the hand upon the bare flesh of the girl's body, . . ."
____________________

1
The applicable portion of NRS 201.230 reads:
1. Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts
constituting the crime of rape and the infamous crime against nature, upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of such person or of such child, shall be punished . . .
90 Nev. 180, 183 (1974) Summers v. Sheriff
upon the bare flesh of the girl's body, . . . 230 P. at 973. Compare State v. Kocher, 119 P.2d
35 (Mont. 1941), which affirmed a conviction where the defendant has placed his hand on the
victim's shoulder in an attempt to unbutton her dress. The court noted that even though there
was no flesh to flesh contact the conduct was within the lewd act with a minor statute.
In the factual context of this case, the testimony of the alleged victim, if true, is sufficient
to meet the probable cause requirement of NRS 171.206. See concurring opinion by Zenoff,
J., in Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973).
[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.
____________
90 Nev. 183, 183 (1974) International Union v. Bing Constr. Co.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 3, and
TEAMSTERS UNION LOCAL NO. 533, Appellants, v. BING CONSTRUCTION
COMPANY OF NEVADA, Doing Business as BING MATERIALS, Respondent.
No. 7032
May 9, 1974 521 P.2d 1231
Appeal from an order of the First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Appeal by union from an order of the district court granting motion of contractor for
preliminary injunction prohibiting picketing and interference with its plant. The Supreme
Court, Batjer, J., held that question as to whether facts in record showed a labor dispute in
respect to contractor's refusal to pay union scale was at least arguable, and where nothing in
record indicated that National Labor Relations Board would have declined to assert
jurisdiction over controversy, district court was not free to exercise powers reserved to state
courts in National Labor Relations Act and was without jurisdiction to prohibit picketing by
union of contractor's plant.
Reversed and remanded with instructions.
90 Nev. 183, 184 (1974) International Union v. Bing Constr. Co.
Echeverria & Osborne and Lew W. Carnahan, of Reno; and Robert LeProhn Law Corp.,
of San Francisco, California, for Appellants.
Abbott & McKibben, of Minden, for Respondent.
1. Labor Relations.
It is not within competence of a state court to determine whether acts by a labor union or an employer
amount to an unfair labor practice protected or prohibited by National labor Relations Act, and if activity is
arguably within protection or prohibition of Act, determination lies exclusively within jurisdiction of
National Labor Relations Board and any state action is precluded. National Labor Relations Act 7, 8,
14(c)(1, 2) as amended 29 U.S.C.A. 157, 158, 164(c)(1, 2).
2. Labor Relations.
If labor dispute has been established and it can be shown that National Labor Relations Board has
declined or would decline to entertain matter, then the state court would have jurisdiction to order a
preliminary injunction. National Labor Relations Act 7, 8, 14(c)(1, 2) as amended 29 U.S.C.A. 157,
158. 164(c) (1,2).
3. Labor Relations.
Question as to whether facts in record showed a labor dispute in respect to contractor's refusal to pay
union scale was at least arguable, and where nothing in record indicated that National Labor Relations
Board would have declined to assert jurisdiction over controversy, district court was not free to exercise
powers reserved to state courts in National Labor Relations Act and was without jurisdiction to prohibit
picketing by union of contractor's plant. NRS 613.230-613.300; Labor Management Relations Act,
1947, 1, 501-503, 212, 301, 29 U.S.C.A. 141-144, 171-187; National Labor Relations Act 1-18,
7, 8, 14(c) (1, 2) as amended 29 U.S.C.A. 151-168, 157, 158, 164(c)(1, 2).
OPINION
By the Court, Batjer, J.:
This is an appeal from an order granting respondent's motion for a preliminary injunction
entered pursuant to NRS 613.300,
1
prohibiting picketing and interference with respondent's
building material plant.
The record indicates that the appellant union sought to obtain respondent's signature on an
Associated General Contractors (A.G.C.) collective bargaining agreement and that the
respondent refused.
____________________

1
NRS 613.300: Any person injured or threatened with injury by an act declared illegal by NRS 613.230 to
613.300, inclusive, shall, notwithstanding any other provision of the law to the contrary, be entitled to injunctive
relief therefrom.
90 Nev. 183, 185 (1974) International Union v. Bing Constr. Co.
respondent refused. The rejected agreement would have in part, required the respondent to
pay 90 percent of the A.G.C. pay scale. On June 6, 1972, after respondent refused to sign the
agreement, the appellants began peaceful picketing. Before entering its order granting a
preliminary injunction the district court apparently found that the picketing was designed to
compel respondent to enter into a union security agreement in violation of Nevada's right to
work laws. NRS 613.230-613.300.
Appellants contend that the district court was without jurisdiction to enter its order
because the National Labor Relations Board had exclusive jurisdiction over the matter.
It is conceded that the respondent's business operation affects commerce within the
meaning of the National Labor Relations Act. 29 U.S.C. 141-187.
In San Diego Council v. Garmon, 359 U.S. 236 (1959), the United States Supreme Court
held that where an action is arguably subject to 7 or 8 of the Act [Taft-Hartley] the States
as well as the federal courts must defer to the exclusive competence of the National Labor
Relations Board. . . . 359 U.S. at 245.
In Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963), the High Court pointed out that: . .
. [P]icketing in order to get an employer to execute an agreement to hire all-union labor in
violation of a state union-security statute lies exclusively in the federal domain (Local Union
429 v. Farnsworth & Chambers Co., 353 U.S. 969, and Local No. 438 v. Curry, 371 U.S.
542), because state power, recognized by 14(b) [Taft-Hartley Act, 61 Stat. 151, 29 U.S.C.
164(b)] begins only with actual negotiation and execution of the type of agreement described
by 14(b). Absent such an agreement, conduct arguably an unfair labor practice would be a
matter for the National Labor Relations Board under Garmon. 375 U.S. at 105.
In Liner v. Jafco, 375 U.S. 301 (1963), labor unions authorized the picketing of a
construction site to protest the payment of wages lower than the union scale. A state court
enjoined the picketing and was affirmed by a state appellate court. Certiorari was granted by
the High Court and in its opinion it said: We hold that the issuance of the injunction was
beyond the power of the Tennessee courts and therefore reverse the judgment. . . . Congress
has invested the National Labor Relations Board with the exclusive power to adjudicate
conduct arguably protected or prohibited by the National Labor Relations Act. (citations
omitted) If the peaceful picketing complained of in this case is such conduct, Congress has
ordained . . . that only the federal agency shall deal with it. . . . This would be true even if the
picketing were prohibited conduct. . . .
90 Nev. 183, 186 (1974) International Union v. Bing Constr. Co.
conduct. . . . Whether or not the facts showed a labor dispute' within the meaning of 29
U.S.C. 152(9) is certainly at least arguable. Consequently, as we said in Curry, the state
court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay
within the exclusive powers of the National Labor Relations Board.'
No actual negotiations and execution of the type of agreement described by 14(b) of the
Taft-Hartley Act appear in this record. State power recognized by 14(b) begins only with
such actual negotiations and execution. Absent such an agreement, conduct arguably an
unfair labor practice, would be a matter for the National Labor Relations Board. Retail Clerks
v. Schermerhorn, supra; San Diego Council v. Garmon, supra; Painter's Local v. Tom Joyce
Floors, 81 Nev. 1, 398 P.2d 245 (1965).
[Headnote 1]
It is not within the competence of a state court to determine whether or not acts by a labor
union or an employer amount to an unfair labor practice protected by 7 or prohibited by 8
of the Taft-Hartley Act. If the activity is arguably within the protection or prohibition of the
act, the determination lies exclusively within the jurisdiction of the N.L.R.B., and any state
action is precluded.
Whether or not the facts in this record show a labor dispute within the meaning of 29
U.S.C. 152(9)
2
is at least arguable.
[Headnote 2]
If a labor dispute has been established and it can be shown that the National Labor
Relations Board has declined or would decline to entertain the matter, then a state court
would have the jurisdiction to order a preliminary injunction. Vegas Franchises v. Culinary
Workers, 83 Nev. 236, 427 P.2d 959 (1967); Russell v. Electrical Workers Local 569, 409
P.2d 926 (Cal. 1966); Continental Slip F. Bldrs., Inc. v. Brotherhood of C. & G., 393 P.2d
1004 (Kan. 1964). See also 29 U.S. C. 164(c)(1)(2).
3
[Headnote 3]
[Headnote 3]
____________________

2
29 U.S.C. 152(9): The term labor dispute' includes any controversy concerning terms, tenure or conditions
of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in
the proximate relation of employer and employee.

3
29 U.S.C. 164(c)(1)(2): The Board, in its discretion, may, by rule of decision or by published rules
adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute
involving any class or category of employers, where, in the opinion
90 Nev. 183, 187 (1974) International Union v. Bing Constr. Co.
[Headnote 3]
There is nothing in this record which would indicate that the National Labor Relations
Board would decline to assert jurisdiction (29 U.S.C. 164(c)(1)) over this controversy,
therefore the district court was not free to exercise the powers reserved to state courts in 29
U.S.C. 164(c)(2).
The order of the district court granting the respondent a preliminary injunction is reversed
and the case is remanded to the district court with instructions to dissolve its preliminary
injunction and dismiss the action for want of jurisdiction.
Thompson, C. J., and Mowbray, Gunderson and Zenoff, JJ., concur.
____________________
of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise
of its jurisdiction: Provided, That the board shall not decline to assert jurisdiction over any labor dispute over
which it would assert jurisdiction under the standards prevailing upon August 1, 1959.
Nothing in this subchapter shall be deemed to prevent or bar any agency or the courts of any State or
Territory (including the Commonwealth of Puerto Rico, Guam, and the Virgin Islands), from assuming and
asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this
subsection, to assert jurisdiction. (July 5, 1935, ch. 372, 14, 49 Stat. 457; June 23, 1947, title 1, 101, 61 Stat.
151; Sept. 14, 1959, Pub.L. 86-257, title VII, 701(a), 73 Stat. 541.)
____________
90 Nev. 187, 187 (1974) Huntley v. Sheriff
CHARLES JOHN HUNTLEY, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7562
May 13, 1974 522 P.2d 147
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; William P. Compton, Judge.
Appeal was taken from an order of the district court denying pretrial petition for writ of
habeas corpus with respect to defendant who had been ordered to stand trial for robbery and
for murder committed during robbery. The Supreme Court held that state which had not
produced sufficient evidence at preliminary hearing to sustain robbery charge was entitled to
short-circuit habeas corpus by filing amended information charging murder, and there was
sufficient proof at preliminary hearing to constitute probable cause on charge of killing
deceased by shooting her with a firearm.
90 Nev. 187, 188 (1974) Huntley v. Sheriff
preliminary hearing to constitute probable cause on charge of killing deceased by shooting her
with a firearm.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
State which admitted in return to pretrial petition for writ of habeas corpus that at preliminary
examination it had not presented sufficient evidence to establish robbery charge could short-circuit
petition for writ of habeas corpus and render it moot by filing an amended information charging murder
committed during robbery, notwithstanding petitioner's claim that felony murder charge could not stand
because it was conditioned on the robbery charge. NRS 173.095, 200.030, subd. 2(b), 200.380.
2. Criminal Law.
Quantum of admissible evidence in transcript of defendant's preliminary examination was sufficient to
meet standard of probable cause with respect to charge for murder committed during robbery. NRS
171.206, 200.030, subd. 2(b).
OPINION
Per Curiam:
Appellant was ordered to stand trial for robbery (NRS 200.380), and for murder committed
during the robbery (NRS 200.030(2)(b).
1

A pretrial petition for habeas corpus contended the state failed to present evidence of
robbery at the preliminary examination, thus the robbery charge must fail; and, since the
felony-murder charge was conditioned on the robbery, that charge could not stand.
In its return to the habeas petition the state candidly conceded that it had not presented
sufficient evidence to establish the robbery charge; however, it moved for permission to file
an amended information, charging Huntley with killing the deceased by shooting her with a
firearm.
____________________

1
200.030 provides in part:
2. Murder of first degree is murder which is:
(b) Committed in the perpetration of rape, kidnaping, arson, robbery, . . .
90 Nev. 187, 189 (1974) Huntley v. Sheriff
[Headnote 1]
The trial court granted the motion to file the amended information, concluded the issue in
the habeas petition was thus rendered moot, and denied habeas. In this appeal appellant's
central contention argues the state is proscribed from short circuiting a valid habeas petition
by filing an amended information. Appellant cites no authority in support of this contention;
therefore, it is rejected. See Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971); cf. NRS
173.095.
[Headnote 2]
In the alternative, appellant argues that the quantum of admissible evidence in the
transcript of his preliminary examination is insufficient to meet the standard of probable
cause contemplated by NRS 171.206. We also reject this contention as we deem the content
of the record meets that standard. See State v. von Brincken, 86 Nev. 769, 476 P.2d 1733
(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.
____________
90 Nev. 189, 189 (1974) Morales v. Westergard
ANGELO MORALES and RAMSEY NAIFY, Petitioners, v. ROLAND D. WESTERGARD,
as State Engineer, or His Successor in Interest, and DIRECTOR OF THE BUREAU OF
ENVIRONMENTAL HEALTH OF THE DIVISION OF HEALTH, DEPARTMENT OF
HUMAN RESOURCES, Respondents.
No. 7704
May 29, 1974 522 P.2d 1224
Original proceeding in mandamus.
Developers of condominium apartments sought mandamus to compel Director of Bureau
of Environmental Health to approve the condominium map. The Supreme Court, Thompson,
C. J., held that where all water which would be used by condominiums would come from
within the Lake Tahoe Basin and would, except for minimal amounts used for lawn care, be
returned by natural gravity to the basin, there was no violation of underlying purpose of
California-Nevada Interstate Compact pertaining to the basin and developers were thus
entitled to approval of the map.
90 Nev. 189, 190 (1974) Morales v. Westergard
Compact pertaining to the basin and developers were thus entitled to approval of the map.
Writ issued.
Breen, Young, Whitehead & Hoy, and Milos Terzich, of Reno, for Petitioners.
Robert List, Attorney General, and Ross de Lipkau, Deputy Attorney General, for
Respondents.
States.
Where all water to be used in connection with condominium apartments came from within Lake Tahoe
Basin and would, except for minimal amounts used for lawn care, be returned by natural gravity to the
basin, use of the water to service the apartments would not violate underlying purpose of
California-Nevada Interstate Compact relating to the Lake Tahoe Basin and condominium developers were
entitled to approval of the condominium map. NRS 117.027, subd. 3, 538.600, 538.600, arts. I, II.
OPINION
By the Court, Thompson, C. J.:
The respondents have refused to approve a condominium map which the petitioners
submitted pursuant to NRS 117.027(3). Consequently, the petitioners initiated this original
proceeding in mandamus to compel the respondents' approval thereof. Following oral
argument, we ordered that a writ of mandate issue forthwith. This opinion is in explanation of
that order.
The petitioners own Lot 555 in the Summit Village Subdivision, Douglas County, on
which they have caused to be constructed the Tramway Condominium Apartments. The
project is within the Kingsbury General Improvement District. The Kingsbury Water Corp. is
authorized to supply water to Lot 555 and has certified that it has an adequate water supply
for the entire Summit Village Subdivision. Presently, there is being constructed a closed in
sewer system for servicing the area within the improvement district. The system has received
the approval of proper federal and state agencies and will be completed by the fall of this
year. There is no suggestion of pollution, inadequate water quality or quantity. All water used
by the Tramway Condominium Apartments comes from the Lake Tahoe Basin and will be
returned to the Lake Tahoe Basin by natural gravity through the closed sewer system with the
exception of minimal amounts used for lawn care.
90 Nev. 189, 191 (1974) Morales v. Westergard
The condominium units were constructed at great expense to the petitioners. The
construction loan therefor, together with accrued interest is past due. The lending institution
threatens immediate foreclosure unless the delinquency is cured, or the requisite
condominium map approval is secured from the respondents to allow the sale of the
condominium units as originally contemplated by the petitioners.
The facts which we have related are not in dispute. The respondents, however, assert that
if they were to grant approval of the condominium map in accordance with NRS 117.027(3),
1
they would somehow violate the California-Nevada Interstate Compact, NRS 538.600,
insofar as it pertains to the Lake Tahoe Basin. The term Lake Tahoe Basin is, by the
compact, designated to be the drainage area naturally tributary to Lake Tahoe. . . . Art. II.
One of the main purposes of the compact is to permit the orderly integrated and
comprehensive development, use, conservation and control of water within the Lake Tahoe
Basin. Art. I. Since all water to be used by the petitioners comes from within the Lake Tahoe
Basin and will, except for minimal amounts used for lawn care, be returned by natural gravity
to the Lake Tahoe Basin, there would appear to be no violation of the underlying purpose of
the compact. We shall not speculate whether the Tramway Condominium Apartments are
themselves wholly or only partially within the Lake Tahoe Basin since relevant factual data
on that subject is not contained in the record before us.
The appropriate certificate from the health division of the department of human resources
approving the condominium map concerning sewage disposal, water pollution, and water
quality shall be given, and the state engineer shall, by his review, approve the water quantity
therefor.
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________________

1
NRS 117.027(3). At the time any condominium map or plan is presented to the county recorder for
recording the following certificates shall be presented to be recorded immediately prior to such map or plan:
1. . . . .
2. . . . .
3. A certificate from the health division of the department of human resources showing that the health
division has approved the map or plan concerning sewage disposal, water pollution, water quality and, subject to
review by the state engineer, water quantity.
____________
90 Nev. 192, 192 (1974) Wells v. Bank of Nevada
ELIZABETH WELLS, JOE CARSON WELLS, and WESLEE WELLS, Appellants, v.
BANK OF NEVADA, a Nevada Corporation, Special Administrator With the Will
Annexed of the Estate of Joe Wesley Wells, Deceased, Respondent.
No. 7374
May 29, 1974 522 P.2d 1014
Appeal from declaratory judgment; Eighth Judicial District Court, Clark County; James D.
Santini, Judge.
Administrator brought action for declaration of validity of agreement entered into between
decedent, his brothers, a family corporation and bank. The district court entered judgment
declaring the agreement to be invalid and that widow did not have community interest in
shares of stock of family corporation held by decedent at his death and widow and surviving
daughter and son appealed. The Supreme Court, Thompson, C. J., held that no part of
increase in value of decedent's stock in family corporation, which stock was decedent's
separate property, could be apportioned to the community where widow did not offer
evidence to establish the community's living expenses. The Court also held that as daughter
and son had no rights, duties or obligations under the agreement, they did not have standing
as interested persons to challenge the agreement.
Affirmed.
[Rehearing denied August 9, 1974]
Carl F. Martillaro and Arthur J. Bayer, Jr., of Carson City, for Appellant Elizabeth Wells.
John Tom Ross and Robert A. Grayson, of Carson City, for Appellants Joe Carson Wells
and Weslee Wells.
James E. Ordowski, of Las Vegas, for Respondent Bank of Nevada.
Guild, Hagen & Clark, Ltd., of Reno, for Howard A. Wells, R. C. Wells, Wells Cargo,
Inc., and First National Bank of Nevada.
1. Husband and Wife.
If increase in value of decedent's separate stock ownership in family corporation following his marriage
came mainly from the natural growth of that enterprise and the combined efforts of decedent's brothers and
staff, the entire increase would be designated as separate property. NRS 78.070, 123.130, subd. 2,
123.250.
90 Nev. 192, 193 (1974) Wells v. Bank of Nevada
2. Husband and Wife.
To be entitled to apportionment to community of increase in value of decedent's stock in family
corporation which was his separate property at time of marriage, widow was obligated to offer evidence to
establish the community's living expenses. NRS 78.070, 123.130, subd. 2, 123.250.
3. Husband and Wife.
Absent any evidence establishing the community's living expenses, there was no basis from which court
could make an apportionment to the community of the increase in value of decedent's separate stock
ownership in family corporation. NRS 78.070, 123.130, subd. 2, 123.250.
4. Declaratory Judgment.
Controversies arising under an agreement properly are to be determined and settled by parties to the
agreement or their assigns.
5. Declaratory Judgment.
Inasmuch as daughter and son of decedent had no rights, duties, or obligations under agreement between
decedent, his brother and family corporation under which the corporation was to acquire the shares of stock
held by one of the brothers in the event of his death, they did not have standing of interested persons to
challenge the contract in a declaratory judgment action. NRS 30.040, 30.130.
OPINION
By the Court, Thompson, C. J.:
Joe Wells died May 18, 1967. This action, commenced by The Bank of Nevada as
administrator with the will annexed of his estate, seeks a court declaration of the validity of
an agreement entered into on June 30, 1960, between Joe Wells, his brothers Howard and
Robert, the family corporation Wells Cargo, Inc., which Joe, Howard and Robert managed
and controlled, and the First National Bank of Nevada. The district court entered judgment
declaring that agreement to be valid and enforceable. Moreover, the court found that
Elizabeth Wells, the surviving wife to whom Joe had been married for eleven years before the
agreement was entered into, did not have a community interest in the shares of stock of Wells
Cargo held by Joe at his death. Elizabeth Wells, the surviving wife, and Weslee Wells and
Joe Carson Wells, a surviving daughter and son respectively, have appealed therefrom,
requesting that we set aside the judgment thus entered and void the agreement of June 30,
1960.
The agreement in issue was designed to provide the terms upon which the family
corporation, Wells Cargo, was to acquire the shares of stock held by one of the brothers in the
event of his death and thereby maintain a continuity of management of the corporation.
90 Nev. 192, 194 (1974) Wells v. Bank of Nevada
event of his death and thereby maintain a continuity of management of the corporation. In
brief, the corporation was to pay the estate of the deceased brother 125 percent of the book
value of the shares of such deceased brother, and designated a schedule for such payment.
Since the death of Joe, the corporation has met the terms of that agreement.
When the agreement was made, Joe and Howard Wells each held 11,745.25 shares of
Wells Cargo, and Robert owned 2,532.07 shares. The agreement recited that Joe held his
shares as separate property, and that Howard and Robert held theirs as community property.
Consequently, the wives of Howard and Robert waived any objection to the execution of the
agreement by their spouses and to its eventual consummation. Such a waiver was not secured
from Elizabeth Wells to whom Joe had been married since January 28, 1949, as he believed
his stock ownership in Wells Cargo was his separate property.
Shares of stock in the corporation were never issued to Elizabeth Wells, Weslee Wells and
Joe Carson Wells, the complaining appellants. Elizabeth Wells, as the surviving wife,
contends that she enjoyed a community interest in the stock held by Joe at his death, and that
one-half thereof belongs to her.
1
Moreover, she argues that, in any event, the June 30, 1960,
agreement is void for several reasons which later will be mentioned. Weslee Wells and Joe
Carson Wells join Elizabeth in this contention.
1. The corporation was formed in January 1936 under the name of Wells, Inc., and
thereafter engaged primarily in the business of trucking-transportation and construction. The
articles of incorporation expressly authorized the company to purchase shares of its own
capital stock so long as its capital was not impaired. Of course, such corporate power is
statutorily authorized whether expressed in the articles or not.
2
In 1947, the name of the
company was changed to Wells Cargo, Inc.
____________________

1
NRS 123.250: Upon the death of either husband or wife, one-half of the community property belongs to
the surviving spouse; . . . .

2
NRS 78.070: Subject to such limitations, if any, as may be contained in its certificate or articles of
incorporation, or any amendment thereof, every corporation shall have the following powers:
1. . . . .
2. . . . .
3. To purchase, hold, sell and transfer shares of its own capital stock, and use therefor its capital, capital
surplus, surplus, or other property or funds; provided: (a) that no corporation shall use its funds or property for
the purchase of its own shares of capital stock when such use would cause any impairment of the capital of the
corporation,. . . .
90 Nev. 192, 195 (1974) Wells v. Bank of Nevada
The corporation experienced substantial growth. As of December 31, 1967, its total assets
were listed at $10,030,033.66, and its total liabilities at $7,320,956.35. Much of that growth
occurred after 1949 when Joe married Elizabeth and was, in part, due to his efforts on behalf
of the company.
Joe owned the stock in question prior to his marriage and thus when he and Elizabeth were
married, his stock interest in Wells Cargo was his separate property.
3
The issue therefore
was the classification of the increase in value of his stock interest thereafter. The district court
found that although Joe contributed in part to the corporate growth, his activity for the
corporation was substantially reduced because of other business involvement and that during
the later years most of the increase in the stock's value must be ascribed to other sources.
Moreover, the court noted that during their married life, Joe was paid $50,000 to $60,000 per
year for services rendered to the corporation and received a large expense account.
Consequently, the court ruled that the community was fully compensated for the decedent's
community labor through his annual salary and related benefits.
The judgment below was filed April 27, 1973. At that time, Lake v. Bender, 18 Nev. 361,
4 P. 711 (1894), was viable. The court there declared that if profits from separate property
come mainly from the property rather than from the joint efforts of the husband and wife, or
either of them, they belong to the owner of the property, although the labor and skill of one or
both may have been given to the business. On the other hand, if profits come mainly from the
efforts or skill of one or both, they belong to the community.
Pending this appeal we decided Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973),
wherein we departed from the doctrine of Lake v. Bender and declared that the increase in the
value of separate property during marriage should be apportioned between the separate estate
of the owner and the community property of the spouses in accordance with either of the
approaches expressed in the California cases of Pereira v. Pereira, 103 P. 488 (1909), and
Van Camp v. Van Camp, 199 P. 885 (1921). The trial court was granted discretion to select
which approach to apportionment would achieve substantial justice.
Whether our disposition of this case is to be governed by the doctrine of Lake v. Bender
or that of Johnson v.
____________________

3
NRS 123.130(2): All property of the husband owned by him before marriage, . . . with the rents, issues and
profits thereof, is his separate property.
90 Nev. 192, 196 (1974) Wells v. Bank of Nevada
doctrine of Lake v. Bender or that of Johnson v. Johnson (because of the change of law
pending appeal) need not be resolved since, in either instance, the decision of the trial court
may be affirmed.
4

[Headnote 1]
With regard to the doctrine of Lake v. Bender, the record may be read to show that the
increase in value of Joe's separate stock ownership in Wells Cargo following his marriage to
Elizabeth came mainly from the natural growth of that enterprise and the combined efforts of
the Wells brothers and staff. Consequently, the entire increase would be designated as
separate property.
As to apportionment within the concept of Johnson v. Johnson, the Van Camp v. Van
Camp approach to allocation of the increase in value would require affirmance. Under that
test, community income is determined by designating a reasonable value to the services
performed by the husband in connection with his separate property. Once that amount is
determined, the community's living expenses are deducted therefrom to determine the balance
of the community property. Beam v. Bank of America, 490 P.2d 257, 263 (Cal. 1971).
[Headnotes 2, 3]
In the case at hand, the trial court found that the husband was paid $50,000 to $60,000 per
year for his services to the corporation and that the community was fully compensated for his
services through such salary and related benefits. The record is void of evidence to establish
the community's living expenses. It was Elizabeth's obligation to offer such evidence. She did
not testify, nor was evidence otherwise proffered on the point.
5
Absent such evidence the
court had no base from which to make an allocation or apportionment to the community, and
may not be faulted for not doing so. Therefore, we affirm the determination that the stock
interest of Joe Wells in Wells Cargo, Inc., and the increase in the value thereof during his
marriage to Elizabeth was and is his separate property.
____________________

4
Regarding change of law after trial court decision and pending appeal see: Annot., 111 A.L.R. 1317;
McCabe v. Pearson, 89 Nev. 177, 510 P.2d 875 (1973); cf. Lightenburger v. Gordon, 89 Nev. 226, 510 P.2d
865 (1973); see also: Gabel v. Time Insurance Company, 478 P.2d 368 (Ore. 1970); Denison v. Goforth, 454
P.2d 218 (Wash. 1969); Arnold v. Knettle, 460 P.2d 45 (Ariz.App. 1969).

5
The trial court was bothered by the absence of such evidence. It stated: There is insufficient evidence . . . to
attempt the dissection of a community interest in the subject stock. Certainly an arbitrary assessment, e.g., 50/50
. . . would be grossly inequitable in view of the dissipating corporate activity of decedent between 1955 and
1960 and his large annual salary from the corporation. The evidence in this case does not justify such a result.
90 Nev. 192, 197 (1974) Wells v. Bank of Nevada
Cargo, Inc., and the increase in the value thereof during his marriage to Elizabeth was and is
his separate property.
2. The district court not only denied a claimed community interest to Elizabeth, but also
rejected several challenges urged by her, Weslee and Joe Carson Wells to the validity and
enforceability of the June 30, 1960, agreement.
6
They claim the right to challenge solely by
reason of their relationship to the decedent.
[Headnote 4]
None of them owns stock in Wells Cargo, is a party to the agreement, cf. Woods v.
Bromley, 69 Nev. 96, 241 P.2d 1103 (1952), or an assignee of a party to the agreement. Cf.
Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948). Controversies arising under an agreement
properly are to be determined and settled by parties to the agreement or their assigns, that is,
by those who have legal rights or duties thereunder. Absent evidence of a third party
beneficiary status, an assignment of contract rights or a delegation of contract duties, neither
Elizabeth, Weslee nor Joe Carson Wells has rights, duties or obligations under the agreement.
A dispute does not exist between the parties to the agreement. They ask that it be performed
according to its terms.
[Headnote 5]
The question of standing to challenge the agreement was not tendered to the district court
and consequently it proceeded to determine all attacks directed to the validity of the
document and the consequences to be expected if the agreement is consummated. This court
raised the issue of standing and called for briefs on the point. In response, the complaining
heirs cite NRS 30.040 and NRS 30.130 of the Uniform Declaratory Judgments Act as
supportive of standing since their inheritance would be affected by the court determination
in a practical, as distinguished from a legal sense.
7
The Act, however, is directed only to
those who enjoy a legal interest in the agreement under scrutiny.
____________________

6
They assert, among other things, that the agreement was not properly authenticated, contained illusory
promises, was executed without Board approval, and if consummated, would impair the capital of the
corporation.

7
NRS 30.040: Any person interested under a deed, will, written contract or other writings constituting a
contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or
franchise, may have determined any question of construction or validity arising under the instrument, statute,
ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
NRS 30.130: when declaratory relief is sought, all persons shall be made parties who have or claim any
interest which would be affected
90 Nev. 192, 198 (1974) Wells v. Bank of Nevada
directed only to those who enjoy a legal interest in the agreement under scrutiny. Schriber
Sheet Metal & Roofers v. Shook, 28 N.E.2d 699, 703 (Ct.App.Ohio, 1940). As noted, the
complaining heirs have no rights, duties or obligations under the 1960 agreement and thus do
not have standing as interested persons to challenge the contract in a declaratory judgment
action.
Affirmed.
Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.
____________________
by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any
proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a
party, and shall be entitled to be heard, and it the statute, ordinance or franchise is alleged to be unconstitutional,
the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.
____________
90 Nev. 198, 198 (1974) Independent Guard Ass'n v. Wackenhut Servs.
INDEPENDENT GUARD ASSOCIATION, Local Number 1, Appellant, v. WACKENHUT
SERVICES, INC., a Florida Corporation, and MORRIS T. RAGSDALE, Respondents.
No. 6966
May 29, 1974 522 P.2d 1010
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Labor organization sought declaratory judgment that its union security agency shop
agreement with employer was legal, binding and enforceable. The district court denied relief
and labor organization appealed. The Supreme Court, Batjer, J., held that union security
arrangements were subject to prohibition by laws of the states; and that contract in which
labor organization and employer had agreed that each employee who was not a member of the
organization on or after the 30th day of his employment would be required to contribute to
the organization a sum equal to current dues was the equivalent of an agreement excluding
persons from employment based on nonmembership in a labor organization and thus violative
of state right to work law.
Affirmed.
90 Nev. 198, 199 (1974) Independent Guard Ass'n v. Wackenhut Servs.
Larry C. Johns, of Las Vegas, for Appellant.
Deaner & Deaner and Jonathan C. Gibson, of Las Vegas, for Respondent Morris T.
Ragsdale; Coulthard, Smith and O'Brien, of Las Vegas, for Respondent Wackenhut Services,
Inc.
James Newton Wilhoit, III, National Right to Work Legal Defense Foundation, 1900 L
Street, N.W., Washington, D.C. and Jack J. Pursel, of Las Vegas, Amicus Curiae.
1. Labor Relations.
Union security arrangements, under which employee, even if he does not join union, must pay an amount
equal to current union dues to the union, are subject to prohibition by state law. NRS 613.230-613.300;
National Labor Relations Act 8(a)(1, 3), 14(b) as amended 29 U.S.C.A. 158(a)(1, 3), 164(b).
2. Labor Relations.
Contract in which labor organization and employer agreed that employee who was not member of the
organization on or after the 30th day of his employment would be required to contribute to the organization
a sum equal to current dues, excluding initiation fees and/or assessments, was the equivalent of an
agreement which excluded persons from employment or continuation of employment based on
nonmembership in a labor organization and was violative of state right to work law. National Labor
Relations Act 8(a)(3), 14(b) as amended 29 U.S.C.A. 158(a)(3), 164(b); NRS 613.300.
OPINION
By the Court, Batjer, J.:
Appellant sought a declaratory judgment to determine whether its union-security agency
shop, agreement entered into on October 1, 1968 with the respondent, Wackenhut Services,
Inc., was legal and binding, and whether it was enforceable or unenforceable. The district
court found certain sections of the union-security agreement invalid and violative of Nevada's
right to work law, NRS 613.230 through 613.300, and denied appellant's request for relief.
This appeal followed.
Prior to August 8, 1966, the respondent, Morris T. Ragsdale, was a member of the
appellant union. During his union membership he signed the necessary documents
authorizing as a periodic deduction from his wages a sum equal to the amount of his union
dues.
90 Nev. 198, 200 (1974) Independent Guard Ass'n v. Wackenhut Servs.
Although Ragsdale resigned from the union on August 8, 1966, an amount equal to his
union dues continued to be extracted from his wages pursuant to the agreement between
appellant and the respondent, Wackenhut Services, Inc.
On October 1, 1968, the appellant union and respondent employer, Wackenhut, entered
into a collective bargaining agreement. The pertinent clauses of that agreement provide: 3.4
The parties recognize that while the benefits of this Agreement will be extended to both
members and nonmembers of the Association, the expense of negotiating this Agreement, as
well as the continuing expense of enforcing its provisions and of processing claims and
grievances hereunder, has been and will continue to be borne by the Association. For these
reasons, the Company agrees that each employee covered by this Agreement who is not a
member of the Association on or after the 30th day of his employment, shall be required to
contribute to the Association a sum equal to current dues, excluding initiation fees and/or
assessments. 3.5 It is agreed that the Company will provide opportunity to the Association
to explain this obligation to each new employee during the initial training period and to
request dues deduction from wages in the appropriate amounts. However, no employee shall
be discriminated against for refusal to sign such an authorization, but shall, in the event of
refusal, be obligated personally to make such payment to the Association.
In February of 1971, Ragsdale refused to sign a renewal authorization for the salary
deduction, and since that date no further sums have been subtracted from his earnings.
Because Ragsdale refused to pay the equivalent of union dues, the appellant has requested
that the respondent employer either terminate Ragsdale's employment, or forfeit his seniority
rights.
NRS 613.250 provides: No person shall be denied the opportunity to obtain or retain
employment because of nonmembership in a labor organization, or shall the state, or any
subdivision thereof or any corporation, individual or association of any kind enter into any
agreement, written or oral, which excludes any person from employment or continuation of
employment because of nonmembership in a labor organization.
The National Labor Relations Act, 8(a)(1) and (3), 29 U.S.C. 158(a)(1) and (3), makes
illegal an agreement under which an employer can neither hire nor keep in his employ,
persons not members of the union, although it expressly permits an agreement requiring
employees, after the thirtieth day following their employment to become members of the
union.
90 Nev. 198, 201 (1974) Independent Guard Ass'n v. Wackenhut Servs.
the thirtieth day following their employment to become members of the union. However, the
employer is forbidden to discharge an employee for nonmembership in the union if the union
refused to admit him as a member for any reason other than a failure to tender the regular
initiation fee and dues. In other words 8(a)(3) forbids the closed shop but permits the
union shop.
The sanction of the union shop is qualified by 14(b) of the Act, 29 U.S.C. 164(b), which
says: Nothing in this subchapter shall be construed as authorizing the execution or
application of agreements requiring membership in a labor organization as a condition of
employment in any State or Territory in which such execution or application is prohibited by
State or Territorial Law.
[Headnote 1]
The agreement involved here is within the scope of 14(b). From its language, 14(b)
was designed to prevent other sections of the Act from completely extinguishing state power
over certain union-security arrangements. By federal law, such arrangements are subject to
their prohibition by the laws of a state.
An agency shop arrangement is the equivalent of a membership agreement permitted under
8(a)(3), of the National Labor Relations Act, and 14(b) subjects to state law the
membership agreements or their equivalent, which are permitted by 8(a)(3). Labor Board v.
General Motors, 373 U.S. 734 (1963); Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963).
In Labor Board v. General Motors, supra, the High Court held that the agency shop
arrangement which imposes on employees the only membership obligation enforceable under
8(a)(3) by discharge, namely the obligation to pay initiation fees and regular dues is the
practical equivalent of agreement requiring membership in a labor organization as a
condition of employment. 373 U.S. at 743.
In Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963), the union and the employer
negotiated a collective bargaining agreement that contained an agency shop clause
providing that the employees covered by the agreement who chose not to join the union were
required to pay as a condition of employment an initial service fee and a monthly service fee
to the union. Non-union employees brought suit in a Florida court to have the agency shop
clause declared illegal, for an injunction against enforcement of it, and for an accounting. The
Florida Supreme Court held that the negotiated and executed union-security agreement
violated the "right to work" provision of the Florida Constitution1 and that the state
courts have jurisdiction to afford a remedy.
90 Nev. 198, 202 (1974) Independent Guard Ass'n v. Wackenhut Servs.
union-security agreement violated the right to work provision of the Florida Constitution
1
and that the state courts have jurisdiction to afford a remedy. (See Schermerhorn v. Local
1625 of Retail Clerks Int. Ass'n., 141 So.2d 269 (1962).) The United States Supreme Court
agreed with that view.
Before the General Motors case or the Schermerhorn cases were decided by the High
Court, Judge John Ross in Amalgamated Ass'n. v. Las Vegas-Tonopah-Reno Stage Lines,
202 F.Supp. 726 (D.C.Nev. 1962), said: Section 14(b) would be bereft of meaning if we
were to construe it in a fashion which would render the states powerless to make illegal that
type of union-security agreement which imposes liabilities on the workingman which,
realistically, are the same liabilities which, under the section, the states may remove. 202
F.Supp. at 732.
In affirming Amalgamated Ass'n., Etc. v. Las Vegas-Tonopah-Reno Stage L., 319 F.2d
783 (9th Cir. 1963), that court said: The June 3, 1963 decisions of the Supreme Court of the
United States in General Motors and in Schermerhorn seem to us to be of significance on our
question of construction of the Nevada statute. In those cases, the Supreme Court construed
8(a)(3) and 14(b) of the federal statute, each section being written in terms of membership,'
as including agency shop provisions which did not require membership, but only the payment
of union charges. . . . They seem to indicate that the interpretation which the district court in
our case, and the state courts and attorneys general in the other cases which took the same
view, is the natural and logical interpretation of the language in question. 319 F.2d at 787.
Appellant's contention that there is nothing in the language of 14(b) of the National
Labor Relations Act that even remotely infers that an agency shop clause in a union-security
agreement is prohibited, misses the point completely.
2
That section subjects to state law the
membership agreements or their equivalent which are permitted by 8(a)(3) of the Act.
____________________

1
Florida Constitution 12 as of April 1963: The right of persons to work shall not be denied or abridged on
account of membership or non-membership in any labor union, or labor organization; provided, that this clause
shall not be construed to deny or abridge the right of employees by and through a labor organization or labor
union to bargain collectively with their employer.

2
The appellant relies heavily upon Meade Electric Company v. Hagberg, 159 N.E.2d 408 (Ind.App. 1959),
where the Appellate Court of Indiana declared that its right to work law did not prohibit the agency shop. We
cannot follow that case which was decided tour years before
90 Nev. 198, 203 (1974) Independent Guard Ass'n v. Wackenhut Servs.
[Headnote 2]
Our right to work law (NRS 613.250-NRS 613.300) declares that any agreement which
excludes any person from employment or continuation of employment because of
nonmembership in a labor union is illegal and void. The sections of the October 1, 1966
agreement between the appellant and Wackenhut are the equivalent of an agreement
authorized by 8(a)(3) of the National Labor Relations Act and subject to the laws of this
state which have declared them to be illegal and void.
In Retail Clerks v. Schermerhorn, supra, the United States Supreme Court held that under
29 U.S.C. 164(b), the states could prohibit union security-agreement and once having
enacted such a prohibition the state courts could enforce the prohibitive measures.
Because an agreement to pay money to a labor organization in lieu of membership dues
which is a condition of employment is the equivalent of an agreement which excludes persons
from employment or continuation of employment based on nonmembership in a labor
organization, the trial court correctly found the union security-agreement between appellant
and Wackenhut violative of Nevada's right to work law, and invalid under NRS 613.300.
The judgment of the trial court is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________________
the United States Supreme Court construed 8(a)(3) and 14(b) of the National Labor Relations Act in Labor
Board v. General Motors Corp., supra, and Retail Clerks v. Schermerborn, supra, and found that the terms of
membership written in each section included agency shop provisions which did not require membership, but
only the payment of union charges. Furthermore, Indiana's right to work law contained a penal provision. In
Hagberg, the Indiana Court said: The law is well settled that penal statutes will be strictly construed, and not
construed to include anything beyond its letter, though within its spirit, and it cannot be enlarged by
construction, implication or intendment beyond the fair meaning of the language used. 159 N.E.2d at 412.
Nevada's right to work law in itself, NRS 613.230 to 613.300, does not contain any such penal provisions,
only in NRS 613.130 which was first enacted in 1911, and amended in 1967, can a penal provision be found.
____________
90 Nev. 204, 204 (1974) Engelstad v. Matheson
RALPH ENGELSTAD, BETTY ENGELSTAD, APACHE CONSTRUCTION CO., INC.,
and LAS VEGAS AIR TERMINAL, INC., Appellants, v. HOMER L. MATHESON and
MARGARET MATHESON, Respondents.
No. 7151
May 29, 1974 522 P.2d 1018
Appeal from judgment on stipulation and issues reserved for the court rendered by the
Eighth Judicial District Court, Clark County, James D. Santini, Judge, following jury verdict
for the respondents in their action to recover for fraud and deceit.
Former joint venturer brought action against other joint venturer seeking, in the
alternative, rescission of agreement dissolving joint venture or damages for fraud in
inducement of such agreement. The district court, following oral stipulation reserving to court
decision of validity of tenders made pursuant to promissory notes, held tenders by defendants
on notes were defective, and defendants appealed. The Supreme Court, Zenoff, J., held that
record did not support trial court's finding on tenders.
Reversed in part as to the $10,000 discount; affirmed in all other respects.
W. Owen Nitz and George A. Cromer, of Las Vegas, for Appellants.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Respondents.
1. Stipulations.
Where stipulation of parties was contained in colloquy between court and counsel and was not in writing
nor set forth in a minute order and where meaning of stipulation was not clear, such stipulation could be
disregarded. DCR 24.
2. Bills and Notes.
Record in action brought by former joint venturer against other joint venturer seeking, in the alternative,
rescission of agreement dissolving joint venture or damages for fraud in inducement of such agreement did
not warrant trial court's finding that defendant's tenders of payment made in effort to quality for $10,000
discount on promissory notes given pursuant to dissolution agreement were conditional.
OPINION
By the Court, Zenoff, J.:
In 1965, Homer Matheson and Ralph Engelstad formed a joint venture for the purchase
and operation of an airport near Las Vegas, Nevada, known as Thunderbird Field.
90 Nev. 204, 205 (1974) Engelstad v. Matheson
near Las Vegas, Nevada, known as Thunderbird Field. On August 25, 1967, the parties
entered into an agreement to dissolve this arrangement. In consideration of the dissolution
agreement appellants agreed to pay the Mathesons the sum of $176,500. Matheson received
$50,000 upon execution of the agreement and a promissory note for the balance of $126,500.
The promissory note provided for payment on April 1, 1968 of $12,500 together with 7
percent interest from April 1, 1967. The sum of $104,000 was to be paid on or before April 1,
1969, which if paid on time, would give the Engelstads the benefit of a $10,000 discount on
the balance. Failure to tender payment of this amount would result in the loss of the discount
and the unpaid balance on $126,000 would thereafter bear interest at 7 percent per annum.
Pursuant to the dissolution agreement, Matheson agreed to remain liable on a previously
executed promissory note in favor of Ralph Engelstad in the amount of $12,578.12.
Following execution of the dissolution agreement, the Mathesons discovered that the
Engelstads had executed an option to sell the airfield for a sum in excess of two million
dollars. The Mathesons brought an action seeking in the alternative rescission of the
dissolution agreement or damages for fraud in the inducement of said agreement.
The case was tried to a jury whose consideration was restricted to the issue of fraud.
Matheson affirmed the dissolution agreement and the parties entered into an oral stipulation
reserving to the trial judge decision of the validity of tenders made pursuant to the promissory
notes. Following submission of blind memoranda and oral argument on the issue of tender,
the trial court held that all tenders were defective. The Engelstads were awarded the principal
and accrued interest on the Matheson note to be deducted from the amount owing to the
respondents. The trial judge awarded the Mathesons the sum of $126,500 with interest at the
rate of 7 percent per annum to the date of judgment.
The appellants are contending on appeal that the stipulation of the parties limited the court
to consideration of whether the Engelstads were entitled to the benefit of the $10,000 by
reason of various tenders and that the stipulation was exceeded when the court awarded
interest to the date of judgment. They argue that because the Mathesons' action did not seek
recovery on the promissory note, the court could not decide this question without reference to
the stipulation.
[Headnotes 1, 2]
The stipulation of the parties is reflected in a colloquy between court and counsel
following final argument to the jury.
90 Nev. 204, 206 (1974) Engelstad v. Matheson
between court and counsel following final argument to the jury. It is not at all clear to what
the parties stipulated. The agreement was not in writing nor was it set forth in a minute order.
1
However, the lower court's finding that all of the Engelstads' tenders were conditional is not
supported by the record and they are entitled to the $10,000 discount originally agreed upon.
Nor are the Engelstads obliged to pay interest on the obligation after April 1, 1969.
Reversed in part as to the $10,000 discount and interest; affirmed in all other respects.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________________

1
Rule 24 of the Rules of the District Courts:
No agreement or stipulation between the parties in a cause or their attorneys, in respect to proceedings therein,
will be regarded unless the same shall, by consent, be entered in the minutes in the form of an order, or unless
the same shall be in writing subscribed by the party against whom the same shall be alleged, or by his attorney.
____________
90 Nev. 206, 206 (1974) Warden v. Gaines
WARDEN, NEVADA STATE PRISON, Appellant, v.
CHARLES O. GAINES, Respondent.
No. 7015
May 29, 1974 522 P.2d 1009
Appeal from judgment granting post-conviction relief in the Second Judicial District
Court, Washoe County; John F. Sexton, Judge.
Prisoner sought writ of habeas corpus to secure his release from imprisonment for
violation of probation after extension of period of probation. The district court granted
prisoner his release and the prison warden appealed. The Supreme Court, Zenoff, J., held that
prisoner was entitled to hearing prior to extension of term of his probation for noncompliance
with condition that he make restitution.
Affirmed.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for Appellant.
Gary A. Sheerin, State Public Defender, Carson City, and A. D. Demetras, of Reno, for
Respondent.
90 Nev. 206, 207 (1974) Warden v. Gaines
1. Criminal Law.
Accused who had been convicted of embezzlement and placed on probation on condition that he make
restitution was entitled to hearing prior to extension of probation for failure to make restitution in order to
show that he did not violate the condition that he make restitution or that, if he did, circumstances
suggested that he came within provision requiring that a probationer whose term has expired and who has
failed to make restitution without verified showing of economic hardship be given general discharge except
for civil liability for amount of the unpaid restitution. NRS 176.225, 176.235.
2. Constitutional Law.
There is no difference relevant to guarantee of due process between revocation of parole or probation and
the extension thereof; loss of liberty is typical of all three.
OPINION
By the Court, Zenoff, J.:
The question presented in this appeal is whether a previously sentenced probationer is
entitled to a hearing when his probation is extended for noncompliance with one of the
conditions of his probation.
Charles O. Gaines was sentenced to the Nevada State Prison for not less than two years
nor more than 14 years for embezzlement of $700.00 from the Ho Hum Hotel of which he
was a co-manager. He was granted probation on the condition that he serve one year in the
Washoe County jail and thereafter remain on probation for two years. As a condition of
probation he was required to repay the embezzled money to his former employer. During the
two years of his probation he made $1,638.32 in the first year and $1,225.78 the second. His
probation officer directed that he pay $20 per month on the amount taken but after two
payments he failed to make any more.
Two weeks before his probation was to expire the Parole and Probation Department filed a
report with the district court that respondent appeared to have made a satisfactory adjustment
but failed to make restitution. Pursuant to the request contained in the report the court
extended the probation period to the full five-year statutory limit or until restitution was
made. Gaines was not notified of the proceedings. He continued on probation for another year
when his probation was revoked for leaving Nevada without permission.
After being incarcerated in prison he petitioned for a writ of habeas corpus on the ground
that the court order extending his probation was invalid.
90 Nev. 206, 208 (1974) Warden v. Gaines
his probation was invalid. From an order granting the writ of habeas corpus the State
appealed.
1. NRS 176.235 in essence provides that a probationer who has failed to make restitution
as ordered by the court without a verified showing of economic hardship shall be given a
general discharge except that a civil liability remains for any unpaid restitution. That statute
affects those probationers whose term has expired.
1
The extension of Gaines' probation took
place two weeks before it was scheduled to expire. Since the treatment of Gaines' case was on
the basis that his period of restraint was nearing an end the statute is considered to apply as if
the probation had terminated.
[Headnotes 1, 2]
2. The probationer whose liberty is at stake must have an opportunity to be heard and to
show, if he can, that he did not violate the condition or if he did, that the circumstances
suggest that he comes within that part of the statute reducing the restitution to a civil liability.
Morrissey v. Brewer, 408 U.S. 471 (1972). NRS 176.225 added in 1967, the year before the
order extending Gaines' probation was entered, provides that a defendant who has
demonstrated his fitness for honorable discharge but because of economic hardship verified
by a parole and probation officer has been unable to make restitution as ordered by the court
is nevertheless eligible for an honorable discharge from probation. The order extending
Gaines' probation on the recommendation of the Parole and Probation Department and
without a hearing deprived Gaines of the opportunity to demonstrate his eligibility under this
provision. There is no difference relevant to the guarantee of due process between the
revocation of parole (Morrissey v. Brewer, supra) or probation and the extension thereof.
Loss of liberty is typical of all three. Jones v. Cunningham, 371 U.S. 236 (1963); Garnick v.
Miller, 81 Nev. 372, 403 P.2d 850 (1965); Gagnon v. Scarpelli, 411 U.S. 778 (1973).
____________________

1
NRS 176.235
1. Every defendant whose term of probation has expired and:
(a) Who has failed to make restitution in full as ordered by the court, without a verified showing of economic
hardship; or
. . .
2. Such general discharge releases the probationer from any further obligation, except a civil liability arising
on the date of discharge for any unpaid restitution, but does not entitle the probationer to any privilege conferred
by NRS 176.225.
90 Nev. 206, 209 (1974) Warden v. Gaines
Gaines was apprehended for leaving the state without permission after the extended period
had started. That extension being invalid, his imprisonment was invalid. The order granting
his release is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________
90 Nev. 209, 209 (1974) Buchanan v. Buchanan
DENYSE DIANE BUCHANAN, Appellant, v.
JAMES L. BUCHANAN, II, Respondent.
No. 7306
June 5, 1974 523 P.2d 1
Appeal from portions of a judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
The district court awarded wife a divorce and custody of children and child support and
denied her alimony, and she appealed. The Supreme Court, Noel E. Manoukian, D. J., held
that evidence supported trial court's determination awarding wife $150 per month per child
for child support and denying her alimony and that Court would decline to consider motion to
hold husband in contempt for failure to comply with order regarding payment of support.
Affirmed.
Wiener, Goldwater & Galatz, Ltd., of Las Vegas, for Appellant.
Douglas Joe Shoemaker, of Las Vegas, for Respondent.
1. Parent and Child.
In determining amount a husband should be required to contribute for support of child, court should
consider what child reasonably requires to maintain its standard of living and what husband can reasonably
afford to pay.
2. Divorce.
Fact that a husband may be able to pay more for support for a child than established by trial court in
divorce decree is matter within judicial discretion and does not result in an absolute right of child.
3. Divorce.
Exercise of discretion by trial court in awarding support for minor child in divorce decree will not be
disturbed unless there is a clear abuse of discretion.
90 Nev. 209, 210 (1974) Buchanan v. Buchanan
4. Parent and Child.
Evidence as to expenses and husband's income supported trial court's determination that husband should
pay $150 per month per child for their support. NRS 125.140, subd. 1.
5. Divorce.
In determining whether alimony should be paid, as well as amount thereof, courts are vested with wide
range of discretion but power of determination can be neither arbitrary nor uncontrolled.
6. Divorce.
Factors to be considered in determining whether alimony should be paid and the amount thereof are the
financial condition of parties, nature and value of their respective properties, contribution of each to any
property held by them as tenants by the entirety, duration of marriage, husband's income, his earning
capacity, age, health and ability to labor and wife's age, health, station and ability to earn a living.
7. Divorce.
Appellate court in reviewing denial of alimony to divorced wife would presume that proper regard was
given by trial court to matters addressed to its consideration.
8. Divorce.
Evidence, in divorce action, supported determination of trial judge that wife who was awarded child
support and $3,600 as part of property settlement and who was in good health, and employable was not
entitled to alimony from husband with whom she had lived three years. NRS 125.150. subd. 1.
9. Appeal and Error.
Function of Supreme Court does not include nor contemplate resolution of evidentiary matters.
10. Divorce.
Supreme Court would decline to consider wife's motion to hold former husband in contempt for failure to
comply with its order requiring husband to pay support for wife and children while wife's appeal regarding
award of alimony and child support was in progress but would transfer motion to district court for
evidentiary hearing and disposition.
OPINION
By the Court, Manoukian D. J.:
1

The parties, married May 20, 1967, are parents of twin girls, who were approximately 2
1J2 years of age when appellant, alleging incompatibility, initiated this action for divorce
in October, 1971.
____________________

1
Mr. Justice Mowbray and Mr. Justice Gunderson voluntarily disqualified themselves and took no part in this
decision. The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judges Noel E.
Manoukian and William N. Forman, to sit in their stead.
90 Nev. 209, 211 (1974) Buchanan v. Buchanan
who were approximately 2 1/2 years of age when appellant, alleging incompatibility, initiated
this action for divorce in October, 1971.
On January 31, 1973, the trial court granted appellant the divorce, custody of the twins,
divided property of the parties, ordered respondent to pay $150.00 per month per child for
their support, and specifically ruled that respondent was not obligated to pay [appellant] any
sum whatsoever as and for her support.
Only the amount of child support and the refusal of the trial court to award alimony are
contested in this appeal.
In her first assignment of error, appellant contends that the trial court abused its discretion
of allowing only $150.00 per month, per child, for their support and, secondly urges that the
trial court abused its discretion in refusing to allow her alimony.
As we understand appellant's position, she does not seriously contend that the judgment
below is not supported by substantial evidence. Instead, it is strongly urged there was a
showing of absolute unfairness because the trial court violated the spirit of NRS 125.140(1)
and [NRS] 125.150(1). We are not inclined to this view.
[Headnote 1]
1. The trial court in providing for child support, did so in exercise of discretionary powers
conferred upon it by NRS 125.140(1).
2
The question then, is what is a proper sum to require
the father to contribute for the support of his children under existing conditions? This requires
an answer to two subordinate questions: (1) what does the child reasonably require to
maintain its standard of living?; and, (2) what can the father reasonably afford to pay? At
trial, appellant's counsel inquired of appellant whether her exhibit one (1) accurately reflected
the expenditures she incurred during the effective period of the order on preliminary
allowances, namely September, October and November of 1972. Appellant answered in the
affirmative, pointing out that clothing and perhaps some other miscellaneous items of
expense were not included therein.3 In reviewing the exhibit it appears that the trial court
made a reasonable determination in awarding child support in light of the expense
allocations as and for said children set forth in the exhibit.
____________________

2
NRS 125.140(1): The court, in granting a divorce, shall make such disposition of, and provision for, the
children, as shall appear most expedient under all the circumstances, and most for the present comfort and future
well-being of such children.
90 Nev. 209, 212 (1974) Buchanan v. Buchanan
therein.
3
In reviewing the exhibit it appears that the trial court made a reasonable
determination in awarding child support in light of the expense allocations as and for said
children set forth in the exhibit.
In considering respondent's ability to contribute, the record reflects that in 1969 he had a
taxable income of less than $5,000.00; 1970, some $12,000.00; and, in 1971, the approximate
sum of $23,000.00. For the year 1972, before the payment of taxes, his income was
approximately $52,000.00 from the practice of law, and $18,990.00 from the sale of an
interest in real property. The record also shows that 1972 was an exceptional year due to
respondent's receipt of two major, or extraordinary, attorney's fees. It was further
demonstrated the respondent's gross earnings for 1973 would be approximately $48,000.00,
before income taxes and expenses; that he pays $339.00 per month for the house payment,
plus utilities; $50.00 per month to keep, or maintain, two horses; a car lease installment of
$213.00 per month; that he had other loan payments in the vicinity of $1,000.00 per month;
that he pays $200.00 to $300.00 monthly on various community accounts; that his other fixed
expenses (excluding his law office), amounted to several hundred dollars per month for rental
real property payments; $192.00 per month for electricity, maid, water, garbage and related
expenses; $100.00 to $125.00 per month on other accumulated bills, and that he had an
approximate $10,000.00 liability on debts of a closed business.
____________________

3
The exhibit, dated November 20, 1972, reads:
Nov. to
Expenses Sept. Oct. 11/17/72
Groceries 222.70 188.36 108.50
(No eating out expenses included)
School 51.00 51.00 51.00
Dance School 8.35 8.35 8.30
Dentist payments 200.00 100.00
Back one month Electric 64.83 29.28 42.35
House Pay. 318.00 318.00 318.00
Garden 28.00 28.00 28.00
Exterminator 7.00 7.00 7.00
Milk (Anderson) 15.00 15.00 15.00
Took 300.00 Phone 21.22 24.85 42.87
Mo. Savings Housekeeper 200.00 200.00 200.00
Pool 45.00 45.00 45.00
Water 32.46 36.40 15.67

______

______

______

1112.86 1050.88
Dentist balance $1160.00 No Provision for Clothes.
Misc. Dinners Movies 50-100 Mo. Dr. Bills 30-40 Mo.
Beauty Shop 35. Mo. Car Main. 50. Mo. 7-10 Wk. Gas House Main. 25-35 Mo. Drugs, etc.
15 Mo. (Vitamins Fluoridation & Medicine
Children)
90 Nev. 209, 213 (1974) Buchanan v. Buchanan
month on other accumulated bills, and that he had an approximate $10,000.00 liability on
debts of a closed business. These obligations approximate $2,500.00 monthly expense.
In Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1972), there was an agreement between the
parties that there would be no reference to child support, and the mother in fact declined
support. The court nonetheless awarded child support and the husband appealed, arguing that
the trial court was without jurisdiction to award child support in light of the understanding
and agreement between the parties. This court, in approving the trial court's determination,
relied on Rev. Laws 5840, 24, which is identical to NRS 125.140(1), saying: The basis of
the power conferred on the court by this statute to exercise a broad discretion as to custody
and support, lies in the reason that it is not the rights of the parties which are to be
determined, but the best interests of the child. This is universally held to be of paramount
consideration, and arises from state's interest in the training, education, and general welfare of
the children. 50 Nev. at 337, 259 P. at 289. Accord: Goodman v. Goodman, 68 Nev. 484,
236 P.2d 305 (1951); Edwards v. Edwards, 82 Nev. 392, 419 P.2d 637 (1966); Fenkell v.
Fenkell, 86 Nev. 397, 469 P.2d 701 (1970).
[Headnote 2]
While the record can be read to show respondent was able to pay more in the way of child
support, there is no showing that $150.00 per month, per child, is an insufficient sum. The
fact that a father may be able to pay more for support for a child than that established by the
trial court, is a matter within judicial discretion, not an absolute right of the child. See
Goodman v. Goodman, supra, at 487.
[Headnotes 3, 4]
The exercise of discretion by the trial court, in awarding support for a minor child, will not
be disturbed unless there is a clear case of abuse. Cosner v. Cosner, 78 Nev. 242, 371 P.2d
278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960); Goodman, supra. This
record supports the determination made by the trial judge and it was well within both his
discretion, and the spirit of NRS 125.140(1).
2. Appellant next contends error because the trial court refused to award her alimony. In
fact, in her opening brief, she states a finding on the subject of alimony is conspicuously
absent from the findings of fact filed by the court. It should be noted that the Findings of
Fact and Conclusions of Law relating to the payment of $3,600.00, [a portion of the
property settlement] at $300.00 per month, states that the same "is to be part of the
property settlementnot alimony"; the identical language is carried forward in the decree
of divorce.
90 Nev. 209, 214 (1974) Buchanan v. Buchanan
noted that the Findings of Fact and Conclusions of Law relating to the payment of $3,600.00,
[a portion of the property settlement] at $300.00 per month, states that the same is to be part
of the property settlementnot alimony; the identical language is carried forward in the
decree of divorce. Though conclusionary, the referenced language can be read to show, and
certainly evidences, an intention on the part of the trial judge to make an express
determination relative to the issue of alimony. This is emphasized by the specific language
contained in the judgment which stated that respondent was not obligated to pay any sum
whatsoever for appellant's support. In further support of this court's affirmation of the trial
court's determination see Dillon v. Dillon, 68 Nev. 151, 154, 227 P.2d 783, 784 (1951),
where the court quotes from Dutertre v. Shallenberger, 21 Nev. 507, 34 P. 449 (1893), saying:
that upon all facts properly pleaded, in the absence of any express findings, this court will
imply a finding in favor of the judgment of the trial court. [Citation omitted]: . . . [W]here a
judgment is rendered for plaintiff upon certain findings in his favor without reference to the
findings of fact upon certain issues raised in defendant's answer, it will be presumed that such
findings were found.'
Appellant's brief states: It is not the contention of appellant that an award should have
been made for alimony for an unlimited period of time but rather that the court, because of
the inadequacy of the totality of its ruling, should have provided at least enough money
which, together with the support for the children, would have entitled appellant to adjust to
the situation. The trial court's ordering that respondent make the additional payment of
$3,600.00 at the rate of $300.00 per month, though as part of the property settlement and not
as alimony, to this court, is a showing of a reasonable effort on the part of the trial court to
allow appellant to adjust to the situation.
In support of her claim for alimony appellant states that this court has long held the right
of the wife, who has been given the divorce, to such support as to the court shall appear
adequate in view of the financial conditions of the parties, cannot be questioned. While the
statement is correct, this court has also said: In our opinion, these words mean simply that
the action of the trial court in awarding alimony in a proper case will not be disturbed on
appeal. They do not mean that in all cases where the wife is granted a divorce she is entitled
to alimony as a matter or right. Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265
(1963). [Emphasis added.] [Headnotes 5, 6]
90 Nev. 209, 215 (1974) Buchanan v. Buchanan
[Headnotes 5, 6]
In determining whether alimony should be paid, as well as the amount thereof, courts are
vested with a wide range of discretion. This power of determination is neither arbitrary nor
uncontrolled. Much depends upon the particular facts of the individual case. Among the
matters to be considered are: the financial condition of the parties; the nature and value of
their respective property; the contribution of each to any property held by them as tenants by
the entirety; the duration of the marriage; the husband's income, his earning capacity, his age,
health and ability to labor; and the wife's age, health, station and ability to earn a living. See
Siebert v. Siebert, 199 P.2d 659 (Ore. 1948).
The record shows, inter alia, that in the aggregate appellant and respondent co-habited as
husband and wife for a period of three years; that appellant was thirty-one years of age at the
time of the trial of this matter; that beginning in August 1972, some 16 months after she
instituted the divorce action, she worked as a model one day a week earning $20.00 per day,
with sporadic other modeling work; that except for remedial dental work, which is not shown
to be continually required, there is no evidence showing that she was in ill health or in any
way infirm; that there was neither effort nor desire on her part to seek steady or full-time
employment; that she required a live-in housekeeper at $200.00 per month because she was
accustomed to having one; that there is no showing that she could not adjust to other
employment, or become more gainfully preoccupied with modeling. The record also shows
that during the three year period the parties lived together respondent's gross income averaged
less than $13,500.00 annually.
NRS 125.150(1) provides guidance to a trial court in making an award of alimony or
denying the same, and this record reflects that the trial judge adhered to the standards set out
in that statute.
4

[Headnotes 7, 8]
Had the trial court granted reasonable alimony for a reasonable period of time, this record
would have supported the award and it would not have constituted an abuse of discretion.
____________________

4
The statute reads: Alimony and adjudication of property rights; award of attorney's fee; subsequent
modification by court on stipulation of parties.
(1) In granting a divorce, the court may award such alimony to the wife and shall make such disposition of
the community property of the parties as shall appear just and equitable, having regard to the respective merits of
the parties and to the condition in which they will be left by such divorce, and to the party through whom the
property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children.
90 Nev. 209, 216 (1974) Buchanan v. Buchanan
award and it would not have constituted an abuse of discretion. Each case must be judged and
taken upon its own merits. The record shows that the trial court gave due regard and
consideration to all facts bearing on the issue of alimony and support for appellant. Further, it
has long been the view of this court that we must presume in the case before us that proper
regard was given by the trial court to a matter addressed to its consideration. Cf. Dillon,
supra. The rulings are supported by substantial evidence and we are not prepared to say that
the trial court abused its discretion. In other words, such abuse does not plainly appear.
Cunningham v. Cunningham, 61 Nev. 93, 95, 116 P.2d 188, 189 (1941).
The judgment of the lower court is affirmed. Each party shall bear their own costs upon
this appeal.
After the appeal was perfected, and on appellant's motion, we reinstated the trial court
pendente lite order and ordered respondent to pay appellant the sum of $450.00 per month for
her support, and $150.00 per month per child for their support while the appeal was in
progress. We also allowed attorney's fees and travel expense for her counsel.
[Headnotes 9, 10]
Appellant has recently filed in this court, a motion to hold respondent in contempt alleging
that he had failed to fully comply with our order. The function of this court neither includes
nor contemplates the resolution of evidentiary matters; therefore, we decline to consider the
motion to hold respondent in contempt and
ORDER the motion transferred to the Eighth Judicial District Court, forthwith, for the
purpose of conducting an evidentiary hearing and disposition. The motion should be given
appropriate priority in the district court.
Thompson, C. J., and Batjer and Zenoff, JJ., and Forman, D.J., concur.
____________
90 Nev. 216, 216 (1974) Singleton v. State
GEORGE D. SINGLETON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7228
June 6, 1974 522 P.2d 1221
Appeal from conviction of first degree murder rendered in the Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
90 Nev. 216, 217 (1974) Singleton v. State
The Supreme Court, Zenoff, J., held that defendant waived any objection on basis of
attorney-client privilege to former attorney's testimony by calling various attorneys who had
previously represented him to testify on sanity issue, that question impeaching credibility of a
source relied upon by clinical psychologist was proper, that trial court's failure to give certain
instructions involving the state of mind doctrine was not prejudicial error, that record did not
support a conclusion that defendant could be classified as an idiot according to the legal
definition, and that a pathologist was competent to testify to the maximum and minimum
caliber weapon that killed the victim.
Affirmed.
Morgan D. Harris, Public Defender, and Michael A. Cherry, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Daniel
M. Seaton, Chief Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Claim, in murder prosecution wherein defendant based his defense almost entirely on that of insanity, that
testimony of former attorney of defendant that defendant was not always truthful and that he always found
defendant to be a lucid individual violated the attorney-client privilege was waived when defendant called
various attorneys who had previously represented him to testify on sanity issue, and thus attorney's
testimony was proper rebuttal. NRS 49.095.
2. Criminal Law.
Question, put to clinical psychologist who was called by the defense to testify regarding defendant's
mental health and who testified that his results were confirmed by earlier tests conducted by another
psychologist, as to whether he was aware that the other psychologist's certificate was under review for
allegedly representing that he had certain educational qualifications that he in fact did not have was proper
impeachment, under statute governing disclosure of facts and data underlying expert opinion, in that the
credibility of a source used by the clinical psychologist in arriving at his opinion was in underlying fact
which could be pursued on cross-examination. NRS 50.305.
3. Criminal Law.
Failure of trial court, in murder prosecution of defendant whose defense was based almost entirely on that
of insanity, to give certain instructions involving the state of mind doctrine was not prejudicial error in
that defendant's capacity to premeditate was implicit in jury's failure to render a verdict of not guilty by
reason of insanity and that there was no evidence of circumstances which would compel the court to give
the requested instruction.
90 Nev. 216, 218 (1974) Singleton v. State
4. Criminal Law.
A mental disorder less than insanity does not of itself destroy the capacity to premeditate or to entertain
the requisite intent.
5. Criminal Law.
An instruction need not be given where there is no proof in the record to support it.
6. Criminal Law; Mental Health.
An idiot is a person destitute of mind at birth or a person of such weak and feeble mind existing from
birth as renders him incapable of knowing right from wrong or, knowing, has not by reason of such mental
condition the will power to resist.
7. Criminal Law.
Record, in murder prosecution of defendant whose defense was based almost entirely on that of insanity,
established that defendant could not be classified as an idiot according to the legal definition and that
question of whether defendant was able to distinguish right from wrong was adequately covered by the
instruction on insanity. NRS 194.010.
8. Criminal Law.
Experience of pathologist who had treated hundreds of gunshot wounds and was familiar with certain
caliber weapons was sufficient to establish pathologist's competency to testify to the maximum and
minimum caliber weapon that killed victim.
9. Criminal Law.
The competency of an expert is for the trial court to determine and will not be grounds for reversal absent
a clear showing of abuse.
OPINION
By the Court, Zenoff, J.:
Appellant George D. Singleton was convicted of the killing of Carl Arthur Benson in Las
Vegas and was sentenced to life imprisonment without possibility of parole.
The volume of proof of his complicity was abundant. His defense was based almost
entirely on that of insanity. The jury, however, accepted the expert testimony that Singleton
knew the difference between right and wrong when he committed the killing.
The issues raised on appeal deal not with the weight of the evidence but with certain
purported errors.
[Headnote 1]
1. One question concerns the privilege of the attorney client relationship. Robert Archie,
an attorney who at one time represented Singleton in matters other than this offense, testified
on rebuttal that Singleton was his client during 1970, that it was his opinion that Singleton
wasn't always truthful and that he always found Singleton to be a lucid individual. The
defense objects that Archie's testimony constituted a violation of the attorney-client
privilege.1 The State, on the other hand, contends that the testimony offered by Mr.
90 Nev. 216, 219 (1974) Singleton v. State
of the attorney-client privilege.
1
The State, on the other hand, contends that the testimony
offered by Mr. Archie does not fall within the protection of the attorney-client privilege. We
need not decide this question because we hold that Mr. Singleton waived the privilege when
he called various attorneys who had previously represented him to testify on the sanity issue.
2
Mr. Singleton placed in issue both his sanity and his credibility and Mr. Archie's testimony
was proper rebuttal.
[Headnote 2]
2. Dr. Hess, a clinical psychologist, was called by the defense to testify regarding
Singleton's mental health. He testified that his results were confirmed by earlier tests
conducted by Mr. Long. On cross-examination Dr. Hess was asked if he was aware that Mr.
Long's certificate to act as a psychologist in Nevada was under review for allegedly
representing that he had certain educational qualifications that he in fact did not have.
Appellant objected that this was improper impeachment of the witness.
The question was proper under NRS 50.305.
3
The statute is dispositive. The credibility of
a source used by Dr. Hess in arriving at his opinion was an underlying fact which could be
pursued on cross-examination. See Hope v. Arrowhead & Puritas Waters, Inc., 344 P.2d 428
(Cal.App. 1959).
[Headnotes 3, 4]
3. Appellant claims prejudicial error for failure of the trial court to give certain
instructions involving the state of mind doctrine. This doctrine was a subject of discussion
by this court in Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957), wherein the court was
concerned with two separate factual issues. (1) Was the mind of the defendant capable of
premeditating? (2) Assuming that the defendant was capable of premeditating, did he in fact
premeditate?
____________________

1
NRS 49.095: General rule of privilege. A client has a privilege to refuse to disclose, and to prevent any
other person from disclosing, confidential communications:
1. Between himself or his representative and his lawyer or his lawyer's representative.

2
This court does not view favorably the practice of calling attorneys to testify concerning their impressions or
relationships with clients who have become litigants. This observation is subject, of course, to established
exceptions.

3
NRS 50.305 Disclosure of facts, data underlying expert opinion. The expert may testify in terms of opinion
or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the
judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on
cross-examination.
90 Nev. 216, 220 (1974) Singleton v. State
premeditating, did he in fact premeditate? That Singleton had the capacity to premeditate is
implicit in the jury's failure to render a verdict of not guilty by reason of insanity. A mental
disorder less than insanity does not of itself destroy the capacity to premeditate or to entertain
the requisite intent. Fox v. State, supra.
[Headnote 5]
There is no evidence of tensional circumstances described in Fox, supra, which would
compel the court to give the requested instruction. An instruction need not be given when
there is no proof in the record to support it. State v. Parr, 283 P.2d 1086 (Mont. 1955);
Velasquez v. United States, 244 F.2d 416 (10th Cir. 1957); cf. Barger v. State, 81 Nev. 548,
407 P.2d 584 (1965).
4. Dr. William O'Gorman, following his initial examination of the defendant, indicated
that Singleton's I.Q. was in the idiot level range but revised his opinion concerning
Singleton's sanity after receiving additional information. Since NRS 194.010 removes idiots,
lunatics and insane persons from the class of persons who may be punished for crime,
appellant contends that O'Gorman's testimony brought him within the statute.
[Headnote 6]
An idiot is a person destitute of mind at birth or a person of such weak and feeble mind
existing from birth as renders him incapable of knowing right from wrong or, knowing, has
not by reason of such mental condition the will power to resist. Jones v. Commonwealth, 159
S.W. 568, 569 (Ky.App. 1913); Hauber v. Leibold, 107 N.W. 1042, 1044 (Neb. 1906).
[Headnote 7]
The record does not support a conclusion that Singleton can be classified as an idiot
according to the legal definition. Whether he was able to distinguish right from wrong was
adequately covered by the instruction on insanity.
[Headnotes 8, 9]
5. Appellant also raises the issue that he was denied equal time in his closing argument to
the jury. There is no merit to that contention nor to his objection that Dr. James Clarke, a
pathologist, was not competent to testify to the maximum and minimum caliber weapon that
killed the victim. Dr. Clarke's experience in treating hundreds of gunshot wounds and his
familiarity with certain caliber weapons was sufficient to establish his competency to testify.
Cf. People v. Anderson, 518 P.2d S2S {Colo.
90 Nev. 216, 221 (1974) Singleton v. State
P.2d 828 (Colo. 1974). The competency of an expert is for the trial court to determine and
will not be grounds for reversal absent a clear showing of abuse.
Affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________
90 Nev. 221, 221 (1974) Warden v. Lischko
WARDEN, NEVADA STATE PRISON, Appellant, v.
JOSEPH LISCHKO, Respondent.
No. 7088
June 10, 1974 523 P.2d 6
Appeal from order grating post-conviction relief; Second Judicial District Court, Washoe
County; Emile J. Gezelin, Judge.
The district court entered order granting relief in form of another trial and State appealed.
The Supreme Court, Thompson, C. J., held that trial counsel's decision not to offer petitioner
as a witness at kidnapping trial, counsel's alleged refusal to permit petitioner to take a lie
detector test before trial, and failure of private investigator to corroborate petition's story of a
hoax did not establish that counsel's representation was of such low caliber as to reduce trial
to a sham, farce or pretense.
Reversed.
Mowbray, J., dissented.
[Rehearing denied August 6, 1974]
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Chief Deputy District Attorney, Washoe County, for Appellant.
Vargas, Bartlett & Dixon, and J. Rayner Kjeldsen, of Reno, for Respondent.
1. Criminal Law.
It was within court's discretion to entertain post-conviction petition asserting incompetency of trial
counsel even though the claim was not urged upon direct appeal from conviction. NRS 177.375, subd.
2(b).
2. Criminal Law.
Where trial court entertains post-conviction petition even though it raises claim not raised upon direct
appeal, reviewing court must review the merits also. NRS 177.375, subd. 2(b).
90 Nev. 221, 222 (1974) Warden v. Lischko
3. Criminal Law.
Standard by which claim of incompetency of trial counsel is to be tested is whether the effectiveness of
counsel was of such low caliber as to reduce the trial to a sham, farce or a pretense.
4. Criminal Law.
It is presumed that trial counsel fully discharged his duties, and that presumption can only be overcome
by strong and convincing proof.
5. Criminal Law.
Neither narco-interrogation nor the lie-detector method has received court recognition as possessing the
trustworthiness and reliability needed to accord the results the status of competent evidence.
6. Criminal Law.
Failure of retained private counsel to offer petitioner as witness at kidnapping trial, counsel's alleged
refusal to permit petitioner to take a lie detector test before trial, and alleged inadequacy of investigation of
case before trial did not render representation of such low caliber as to reduce the trial to a sham, farce or
pretense.
OPINION
By the Court, Thompson, C. J.:
This appeal by the State is from an order of the district court granting post-conviction
relief in the form of another trial. That court found that Joseph Lischko was denied the
effective assistance of counsel in connection with his 1970 trial upon the charge of
kidnapping. He was then represented by privately retained counsel. A jury found him guilty as
charged and judgment was duly entered upon the verdict. Different counsel was appointed to
prosecute an appeal to this court. The judgment of conviction was affirmed. Lischko v. State,
87 Nev. 493, 489 P.2d 89 (1971). On appeal, he did not assert that he had been denied the
effective assistance of counsel at trial. The present post-conviction proceeding was instituted
through still another attorney of Lischko's choice, and after an evidentiary hearing thereon,
resulted in the order granting another trial from which the State has taken this appeal.
[Headnotes 1, 2]
1. Although the district court properly may have refused to entertain Lischko's
post-conviction petition because of his failure to urge the incompetency of trial counsel as a
claim of error upon direct appeal,
1
it chose instead to conduct an
____________________

1
See: NRS 177.375(2)(b); Roseneau v. State, 90 Nev. 161, 521 P.2d 369 (1974); Johnson v. Warden, 89
Nev. 476, 515 P.2d 63 (1973); Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971).
90 Nev. 221, 223 (1974) Warden v. Lischko
evidentiary hearing and rule upon the merits. That choice fell within its discretionary power.
Consequently, we must review the merits also and decide, as a matter of law, whether due
process was denied Lischko at trial by reason of the alleged ineffective assistance of counsel.
[Headnotes 3, 4]
2. The standard by which such a claim is to be tested is whether the effectiveness of
counsel was of such low caliber as to reduce the trial to a sham, a farce, or a pretense. Layton
v. State, 87 Nev. 598, 602, 491 P.2d 45 (1971); Smithart v. State, 86 Nev. 925, 931, 478 P.2d
576 (1970); Bean v. State, 86 Nev. 80, 92, 465 P.2d 133 (1970). It is presumed that counsel
fully discharged his duties, and that presumption can only be overcome by strong and
convincing proof to the contrary. Smithart v. State, supra. Measured by this standard we are
wholly unable to find, as did the district court, that trial counsel's handling of the case was
ineffective and inadequate, and resulted in the deprivation of constitutional rights. We turn to
express our view in this regard.
Preliminarily, we note that in October 1969, Lischko and William McCoole jointly were
charged with having kidnapped one, Dean Petersen, for the purpose of ransom. Lischko
retained private counsel. McCoole was represented by the Public Defender of Washoe
County. Neither defendant testified at the trial. Each was convicted and sentenced to prison.
Sometime later, a third participant in the offense, a Robert Sheridan, was apprehended, tried
and convicted. Lischko's appeal to this court was denied. Almost three years later, this
post-conviction proceeding was commenced in which, for the first time, trial counsel is
charged with incompetency. The charge is premised mainly upon the fact that counsel elected
not to have Lischko testify on his own behalf and tell the story that the whole affair was a
hoax planned by the victim's sister, Faye Petersen.
At the evidentiary hearing counsel stated several reasons for his decision not to offer
Lischko as a witness. Faye Petersen, who according to Lischko, set up the kidnapping plot,
was the person who initiated steps which culminated in a report to law enforcement and the
subsequent arrests. Counsel could not square that conduct on her part with his client's tale that
she had planned the hoax. Moreover, counsel knew of a recorded statement given by Lischko
after his arrest to the district attorney, which could be used to impeach Lischko were he to
testify. Finally, the private investigator counsel had hired before trial in an effort to uncover
evidence to corroborate Lischko's story found nothing of value.
90 Nev. 221, 224 (1974) Warden v. Lischko
trial in an effort to uncover evidence to corroborate Lischko's story found nothing of value.
For these reasons and others counsel elected not to offer Lischko as a witness. Counsel had
practiced law for many years and had extensive experience in the handling of criminal cases.
Contrary to the view of the district court, we find it quite impossible at this late date to
declare counsel's trial strategy an indicia of ineffective or inadequate representation.
[Headnote 5]
The lower court apparently gave weight to the following bits of evidence in deciding that
Lischko should have another trial. Lischko testified that he wished to take a lie detector test
before trial, but that his counsel would not permit him to do so. Counsel did not recall
Lischko having expressed that wish. In April 1972 long after the trial, a lie detector test was
administered to Lischko and the examiner was of the opinion that his responses to questions
were truthful. This was followed in May 1972 by an interview of Lischko while under sodium
amytal and the doctor concluded that the descriptions given are at a high level of validity.
Although the results of those tests may weigh in favor of the petitioner's truthfulness, neither
narco-interrogation nor the lie detector method has received court recognition as possessing
the trustworthiness and reliability needed to accord the results the status of competent
evidence. Vol. 3A, Wigmore, Chadbourn Revision, 998, 999 (1970). Moreover, it is
evident that the test results have no bearing at all upon the charge that trial counsel was
ineffective. Counsel accepted his client's story as the truth and urged the defense of a hoax
during his closing argument to the jury. Had the test results been available before trial, they
would not have been admissible evidence during trial, nor may we assume that counsel's
decision not to offer Lischko as a witness would have been altered thereby.
Finally, the district court believed that counsel failed to adequately investigate the case
before trial. The record does not demonstrate this to be so. It reveals only that counsel hired a
private investigator who was unable to corroborate Lischko's story of a hoax. The
investigator's reports are not in the record. We are not informed as to the details of his work,
nor as to the extent of his investigation. There was nothing of substance before the court upon
which it properly could charge counsel with an inadequate pretrial investigation.
[Headnote 6]
In short, the record before us does not show by clear and convincing evidence that
counsel's representation was of such low caliber as to reduce the trial to a sham, a farce,
or a pretense.
90 Nev. 221, 225 (1974) Warden v. Lischko
convincing evidence that counsel's representation was of such low caliber as to reduce the
trial to a sham, a farce, or a pretense.
Reversed.
Batjer, J., and Compton, D. J., and McDaniel, D. J., concur.
Mowbray, J., dissenting:
Respectfully, I dissent.
This is an appeal from an order of the district court granting Joseph Lischko's petition for
post-conviction relief and ordering a new trial.
Lischko was tried before a jury and convicted of first-degree kidnapping. He was
sentenced to serve 20 years in the Nevada State Prison. At the time of his arrest, Lischko
secured private counsel, who represented him throughout his trial. Lischko did not take the
stand, nor were any witnesses called in his behalf. His conviction was appealed by
court-appointed counsel. This court affirmed, rejecting the issues upon which the direct
appeal was then predicated. Lischko v. State, 87 Nev. 493, 489 P.2d 89 (1971).
On July 20, 1972, Lischko, through his present counsel, filed a petition for post-conviction
relief in the district court. He claimed that he was denied effective assistance of counsel
during his jury trial, in derogation of his rights under the Sixth and Fourteenth Amendments
to the United States Constitution.
The petition was heard before the late Judge Emile Gezelin, who had presided at Lischko's
jury trial. Judge Gezelin, after conducting a extensive evidentiary hearing, held that the
petition was meritorious and granted Lischko a new trial. He specifically found that Lischko's
trial counsel had failed to properly investigate certain alleged facts and circumstances which,
because they would have gone to the impeachment of statements made by the prosecution's
witnesses, fatally impaired counsel's ability to make informed decisions on behalf of his
client. The judge carefully distinguished between those cases involving failure to make a
careful inquiry in order to present an adequate defense, and those cases where counsel, having
made such an inquiry, then made tactical or strategic errors in his handling of the case. Judge
Gezelin did not consider the evidence presented to him at the post-conviction relief hearing in
a vacuum, but rather against the background of the entire case. He presided over the trial
resulting in the conviction of Lischko, and he thereafter determined, in light of all the facts
before him, from his impressions at the trial, and from the evidence produced at the
hearing, that Lischko's basic rights had been violated.1
90 Nev. 221, 226 (1974) Warden v. Lischko
before him, from his impressions at the trial, and from the evidence produced at the hearing,
that Lischko's basic rights had been violated.
1

The majority would now substitute its opinion on a factual determination as to the
effectiveness of counsel for that of the trial judge in his role as trier of fact. This court, in
State v. Sorenson, 73 Nev. 218, 315 P.2d 508 (1957), cited and quoted with approval People
v. Canfield, 173 Cal. 309, 159 P. 1046, 1047:
. . . It was for the judge of the trial court to say what had been the effect of the evidence
upon the jury, and whether or not the defendant, in view of all the facts, had been given a fair
trial. . . . The judge, who presided at the trial of the cause, who heard the testimony, who
observed the jurors and had an opportunity also of testing the truth of the defendant's
statements by noticing his demeanor, was in a peculiarly favorable position for determining
justly the question whether or not the defendant had been accorded a fair trial. . . . We can
hardly manufacture in fancy an hypothetical situation in which a reviewing court would be
justified in questioning the discretion of the trial court who should grant a new trial in a case
involving a criminal charge. . . .' (Emphasis added.) State v. Sorenson, supra, at 223-224.
See also, State v. Varga, 66 Nev. 102, 124, 205 P.2d 803 (1949).
The views expressed in Sorenson parallel my position in this case. We know nothing
regarding the ultimate merit of Lischko's story, but we do know that the trial judge, who
presided at Lischko's jury trial and who sentenced him to the state penitentiary, did conclude,
after carefully considering Lischko's petition and the evidence adduced at the hearing thereon,
that justice demanded Lischko be given a new trial. In the conceded absence of any judicial
irregularity, I would not interfere with that conclusion.
A review of the record below shows no abuse of discretion by the district judge, but,
rather, substantial evidence to support his order.
____________________

1
Judge Gezelin ruled, inter alia, in his decision:
It was the Judge of this court who presided at the original trial. The impressions received at the original trial
and which are now supplemented with the allegations of the petition, together with evidence presented at the
evidentiary hearing[,] convince the Court that the matters complained of resulted from a failure on the part of
counsel to adequately inquire and investigate facts and circumstances in order to be in a position to make
informed decisions on behalf of his client. Counsel's decisions based upon lack of information denied the
petitioner the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of
the United States Constitution.
90 Nev. 221, 227 (1974) Warden v. Lischko
by the district judge, but, rather, substantial evidence to support his order. In my opinion,
such a order should not be disturbed on appeal. Wallace v. State, 88 Nev. 549, 550, 501 P.2d
1036 (1972). I would affirm the order of the district court granting the petition for
post-conviction relief and ordering a new trial.
____________
90 Nev. 227, 227 (1974) Shuman v. Sheriff
RAYMOND WALLACE SHUMAN, Appellant, v. SHERIFF
OF CARSON CITY, NEVADA, Respondent.
No. 7640
June 20, 1974 523 P.2d 841
Appeal from order denying pretrial petition for habeas corpus, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
The Supreme Court held that trial and conviction of an inmate who has previously been
disciplined by prison authorities for the same offense do not constitute double jeopardy.
Affirmed.
Horace R. Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Herbert F. Ahlswede, Chief Deputy Attorney General,
Carson City; and Michael E. Fondi, District Attorney, Carson City, for Respondent.
1. Habeas Corpus.
That alleged dying declarations assertedly did not properly qualify as such was not ground for release on
pretrial habeas corpus where other evidence, unchallenged, was sufficient to show probable cause to hold
defendant for trial for murder. NRS 51.335, 171.206, 200.010, 200.030, subd. 1(b).
2. Criminal Law.
Trial and conviction of inmate who has previously been disciplined by prison authorities for same offense
do not constitute double jeopardy.
3. Criminal Law.
Jeopardy does not attach until accused has been placed upon trial, upon valid indictment, before
competent court, and jury duly empaneled, sworn and charged with the case.
OPINION
Per Curiam:
In this appeal from an order denying a pretrial petition for habeas corpus we are asked to
reverse because, (1) there was insufficient evidence to establish probable cause to hold
appellant for trial for murder {NRS 200.010, NRS 200.030{1){b)); and, {2) the charge is
proscribed because the prison disciplinary committee has already assessed appellant 29
days punishment "in the hole" for his involvement in the event.
90 Nev. 227, 228 (1974) Shuman v. Sheriff
insufficient evidence to establish probable cause to hold appellant for trial for murder (NRS
200.010, NRS 200.030(1)(b)); and, (2) the charge is proscribed because the prison
disciplinary committee has already assessed appellant 29 days punishment in the hole for
his involvement in the event. We reject both contentions.
[Headnote 1]
1. The challenge to the sufficiency of the evidence is directed to several statements made
by the deceased and admitted in evidence as dying declarations under NRS 51.335. Appellant
argues the statements were not properly qualified as dying declarations because when they
were made the deceased did not specifically say that he knew he was going to die.
Even if we assume, arguendo, the challenged statements were improperly admitted in
evidence, other evidence in the record, which is not challenged, is sufficient to meet the
requirement of NRS 171.206, that the charged offense was committed by appellant.
[Headnotes 2, 3]
2. The trial and conviction of an inmate who has previously been disciplined by prison
authorities for the same offense does not constitute double jeopardy. State v. Williams, 493
P.2d 258 (Kan. 1972); State v. Bowling, 459 P.2d 454 (Ore. 1969); United States v.
Williamson, 469 F.2d 88 (5th Cir. 1972); United States v. Hedges, 458 F.2d 188 (10th Cir.
1972); United States v. Apker, 419 F.2d 388 (9th Cir. 1969); Patterson v. United States, 183
F.2d 327 (4th Cir. 1950), cert. denied, 340 U.S. 893 (1950).
Jeopardy does not attach until the accused has been placed upon trial, upon a valid
indictment, before a competent court, and a jury duly impaneled, sworn, and charged with the
case, . . . Ex Parte Maxwell, 11 Nev. 428, 434 (1876).
The order of the trial court is affirmed.
____________
90 Nev. 229, 229 (1974) Charmicor, Inc. v. Winder
CHARMICOR, INC. Appellant, v. CHARLES WINDER
and AGNES C. WINDER, Respondents.
No. 7408
June 20, 1974 523 P.2d 840
Appeal from order dismissing appellant's motion to vacate a judgment of dismissal entered
in the Eighth Judicial District Court, Clark County; James D. Santini, Judge.
The Supreme Court held that where no timely appeal was taken from the judgment of
dismissal, the appeal taken ostensibly from the order denying motion to vacate was, in effect,
a request to review the judgment of dismissal and was, therefore, untimely.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondents.
Appeal and Error.
Where no timely appeal was taken from judgment of dismissal, appeal taken ostensibly from order
denying motion to vacate was, in effect, request to review judgment of dismissal and was, therefore,
untimely. NRCP 41(e); NRAP 3A(a)(b), 4.
OPINION
Per Curiam:
On March 17, 1967, appellant commenced an action against the respondents in the Eighth
Judicial District Court. On April 14, 1972, the respondents filed a motion to dismiss the
action under NRCP 41(e) on the ground that the case had not been brought to trial within five
years. The motion was granted and a judgment of dismissal was entered on May 1, 1972. On
May 5, 1972, the notice of entry of judgment was filed and served on the appellant. No appeal
was taken from this judgment. On April 1, 1973, nearly a year later, appellant moved the
court to vacate the judgment of dismissal. This motion was denied.
The judgment of dismissal for lack of prosecution was an appealable determination.
NRAP 3A(b), former NRCP 72(b); see also Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729
(1963). The present appeal, while ostensibly from the order denying the motion to vacate,
requests this court to review the judgment of dismissal and is, therefore, untimely.
90 Nev. 229, 230 (1974) Charmicor, Inc. v. Winder
judgment of dismissal and is, therefore, untimely. See NRAP 3A(a) former NRCP 72(a), and
NRAP 4, former NRCP 73(a).
The judgment of the lower court is affirmed.
____________
90 Nev. 230, 230 (1974) Bogart v. Lathrop
PUNTY J. BOGART, Appellant, v. JAMES H. LATHROP
and YVONNE LATHROP, His Wife, Respondents.
No. 7140
June 20, 1974 523 P.2d 838
Appeal from order granting motion for summary judgment; First Judicial District Court,
Lyon County; Frank B. Gregory, Judge.
Suit by property owners seeking to set aside as void a certain tax sale of real property. The
district court entered summary judgment in favor of property owners, and defendant appealed.
The Supreme Court, Mowbray, J., held that minimum requirements of due process were not
satisfied where no notice whatsoever was ever mailed to property owners whose taxes were
allegedly delinquent.
Affirmed.
[Rehearing denied July 24, 1974]
William W. Harrison, of Reno, for Appellant.
Stokes & Eck, Ltd., of Carson City, for Respondents.
1. Taxation.
Although notice by publication is all that is required by statute to inform taxpayers of date taxes are due
and penalties for nonpayment thereof, another statute further requires that notice be given by publication to
all persons whose taxes are delinquent, and that notice by mail be given to each respective taxpayer at such
person's last known address, and a failure to give the statutorily required notice renders a subsequent tax
deed void. NRS 361.480, 361.565.
2. Constitutional Law.
Failure to comply with statutory requirements of notice of tax delinquencies deprived taxpayer-owners of
the property of minimum due process. NRS 361.480, 361.565.
3. Taxation.
Fact that address of taxpayer was not immediately known or available would not mean that no further
inquiry as to address was required before taxpayer's property could be sold for tax
delinquency; the better rule of law would be to require a reasonable inquiry to
determine address of taxpayer.
90 Nev. 230, 231 (1974) Bogart v. Lathrop
was required before taxpayer's property could be sold for tax delinquency; the better rule of law would be
to require a reasonable inquiry to determine address of taxpayer.
4. Taxation.
Failure to send proper notice of tax delinquency to taxpayers, before sale of their property for delinquent
taxes, resulted in a jurisdictional defect which rendered all subsequent proceedings void. NRS 361.480,
361.565.
5. Taxation.
While defects of form are cured by curative statute relating to tax assessments, jurisdictional defects,
such as those which would arise out of failure to give any notice to taxpayers before their property was sold
for tax delinquency, would not be affected by the curative statute. NRS 361.590.
6. Taxation.
Where tax deed and sale are void because of a jurisdictional defect the three-year statute of limitations
does not apply. NRS 361.600.
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order granting summary judgment in favor of the respondents,
James H. Lathrop and his wife, Yvonne Lathrop, who had commenced this action in the
district court to set aside as void a certain tax sale of real property to the appellant, Punty J.
Bogart, which property the Lathrops had previously purchased from the United States.
1. The Facts.
On August 1, 1960, the Administrator of General Services, acting for the United States of
America, executed a quitclaim deed conveying a parcel of land located in Lyon County,
Nevada, to the Lathrops as grantees. A purchase money promissory note secured by a deed of
trust covering the property was executed by the Lathrops on the same day. Both instruments
were recorded on September 26, 1960. The deed of trust contained the Lathrops' address. The
quitclaim deed did not.
It is agreed that approximately 1 year later Respondent James Lathrop contacted the Lyon
County Assessor's office in an effort to determine whether taxes had been assessed on the
property. He was informed that the property was not on the tax rolls; that if and when it was
assessed he would be so informed. It was further suggested to Lathrop that, since the United
States retained a security interest in the property by virtue of the aforementioned trust deed, a
tax liability would not accrue until the security interest was extinguished.
90 Nev. 230, 232 (1974) Bogart v. Lathrop
not accrue until the security interest was extinguished. Nevertheless, soon thereafter the
property was assessed and placed on the tax rolls. Taxes were never paid. A tax deed was
executed by the Ex-officio Tax Receiver, transferring the property to the County Treasurer as
Trustee for Lyon County. On December 5, 1965, Appellant Bogart purchased the property at
a tax sale. It is conceded that no notice of the assessments, delinquencies, tax deed, the sale or
redemption rights was ever mailed to the Lathrops.
In 1970, after the Lathrops had paid the promissory note to the United States and the
property had been reconveyed to them, they, having never received any notice from the
county regarding their property taxes, once again contacted the Assessor, seeking information
regarding their tax liability. It was at this juncture that the Lathrops were informed that their
property had been sold in 1965 to Appellant Bogart for delinquent taxes.
2. The Issues.
Where a motion for summary judgment has been granted, the question on appeal is
whether genuine issues of fact were created by the pleadings, affidavits, and proof offered.
Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970); Brooks
Rent-A-Car Co. v. Allied Credit Bureau, Inc., 83 Nev. 119, 423 P.2d 883 (1967).
We find, as did the lower court, that no genuine issues of fact were created by the
pleadings, affidavits, and proof contained in the record. The property was purchased by the
Lathrops in 1960. Taxes were first assessed on the property in 1961. Taxes thereafter became
delinquent, and a tax deed transferred the property to the Treasurer of Lyon County as Trustee
for Lyon County. In 1965, a tax sale was had, and the property was transferred to appellant.
No actual notice of the assessments, delinquency, tax deed, tax sale, or redemption rights of
respondents was ever given to respondents between 1960 and 1970.
[Headnote 1]
Although notice by publication is all that is required by NRS 361.480 to inform the
taxpayer of the date taxes are due and the penalties for nonpayment thereof, NRS 361.565
further requires that notice be given by publication to all persons whose taxes are delinquent
and that notice by mail be given to each respective taxpayer at such person's last known
address. A failure to give the statutorily required notice renders a subsequent tax deed void.
90 Nev. 230, 233 (1974) Bogart v. Lathrop
a subsequent tax deed void. 16 McQuillin, Municipal Corporations 44.156, at 439 (3d ed.
1972). Jones v. Walker, 118 P.2d 299 (Cal.App. 1941).
[Headnote 2]
In Jackson v. Harris, 64 Nev. 339, 183 P.2d 161 (1947), and Provenzano v. Clark County,
73 Nev. 348, 319 P.2d 855 (1957), we held that an inadequate description of the property on
which the tax was delinquent rendered a tax deed and the subsequent sale void because
adequate notice was not given to the taxpayer. In the instant case, no notice whatsoever was
ever mailed to the respondents-taxpayers. In order to satisfy the minimum requirements of
due process, there must be a compliance with the statutory requirements of notice.
[Headnote 3]
Appellant contends that if the address of the taxpayer was not immediately known or
available, no inquiry as to that address was required. We feel that the better rule of law is that
a reasonable inquiry to determine the address of the taxpayer is required. Fivas v. Petersen,
300 P.2d 635 (Utah 1956). In this instance, the address of the respondents was a matter of
public record in Lyon County. A simple inquiry by the Tax Receiver would have revealed an
address to which notice could have been mailed.
[Headnote 4]
Failure to send such notice resulted in a jurisdictional defect, which rendered all
subsequent proceedings void. Jackson v. Harris, supra, Davison v. Gowen, 69 Nev. 273, 249
P.2d 225 (1952), recognizing the general rule.
[Headnote 5]
Appellant urges that any defect in notice or failure to comply with the notice requirements
of the statute are cured by NRS 361.590.
1
Appellant has failed to distinguish between
jurisdictional defects, which render void a subsequent tax deed and sale, and defects in
the form or mode of notice, which do not make a subsequent tax deed and sale void.
____________________

1
NRS 361.590 provides in pertinent part:
. . .
6. No tax assessed before or after July 1, 1955, upon any property, or sale therefor, shall be held invalid by
any court of this state on account of:
. . .
(c) Any other irregularity, informality, omission, mistake or want of any matter of form or substance in any
proceedings which the legislature might have dispensed with in the first place if it had seen fit so to do, and that
does not affect the substantial property rights of persons whose property is taxed.
All such proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be
presumed by all the courts of this state to be legal until the contrary is shown affirmatively.
90 Nev. 230, 234 (1974) Bogart v. Lathrop
jurisdictional defects, which render void a subsequent tax deed and sale, and defects in the
form or mode of notice, which do not make a subsequent tax deed and sale void.
Defects of form are cured by our curative statute, NRS 361.590, whereas jurisdictional
defects are not affected by the statute. Haskins v. Roseberry, 119 F.2d 803 (9th Cir. 1941);
Davison v. Gowen, supra; Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49 (1928); Pender v.
Clark County, 71 Nev. 47, 279 P.2d 659 (1955). To hold otherwise . . . would be to deprive
the taxpayer of his estate without due or any process of law, by a mere legislative rescript,
pronouncing to be valid a sale which, under the law of the land, was absolutely void when it
was made. . . .' . . . Jones v. Walker, supra, 118 P.2d at 302, citing Harper v. Rowe, 53 Cal.
233, 237-238 (1878).
[Headnote 6]
Finally, appellant argues that the Lathrops were barred from commencing the instant
action by the 3-year statute of limitation provision of NRS 361.600.
2
Not so. Where the tax
deed and sale are void because of a jurisdictional defect, the 3-year limitation does not apply.
Davison v. Gowen, supra.
The order granting summary judgment is affirmed.
Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur.
____________________

2
NRS 361.600 provides:
No action or counterclaim for the recovery of lands sold for taxes shall lie unless the same be brought or
interposed within 3 years after the execution and delivery of the deed therefor by the county treasurer, any law to
the contrary notwithstanding.
____________
90 Nev. 234, 234 (1974) Cascade Drinking Waters v. Central Tel.
CASCADE DRINKING WATERS, INC., a Nevada Corporation, Appellant, v. CENTRAL
TELEPHONE COMPANY, a Delaware Corporation, AK'WA PURE CORPORATION, a
Nevada Corporation, and GENERAL TELEPHONE DIRECTORY COMPANY, a Delaware
Corporation, Respondents.
No. 6910
June 25, 1974 523 P.2d 837
Appeal from order granting respondents' motion to dismiss, Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
90 Nev. 234, 235 (1974) Cascade Drinking Waters v. Central Tel.
Plaintiff filed complaint for alleged loss of business income founded upon telephone
company's claimed breach of agreement to advertise plaintiff's product, bottled water, in
telephone directory under special heading when telephone company also advertised another
type of product, water purifiers, under same heading. The district court entered an order
which granted defendants' motion to dismiss, and plaintiff appealed. The Supreme Court held
that complaint failed to state a cause of action.
Affirmed.
Lee and Beasey, of Las Vegas, for Appellant.
Rose, Norwood & Edwards, Ltd., of Las Vegas, for Respondents.
Telecommunications.
Plaintiff's complaint for alleged loss of business income founded upon telephone company's claimed
breach of agreement to advertise plaintiff's product, bottled water, in telephone directory under special
heading when telephone company also advertised another type of product, water purifiers, under same
heading failed to state a cause of action.
OPINION
Per Curiam:
The first appeal of this case was dismissed without prejudice to the right of appellant to
reinstate the appeal after final determination of its complaint. Cascade Drinking Waters v.
Central Tel., 88 Nev. 702, 504 P.2d 697 (1972). The validity of the complaint was finally
determined and the appeal reinstated. We now must decide the propriety of judgment for the
defendants entered for failure of plaintiff to plead or otherwise show a claim for relief.
The plaintiff Cascade Drinking Waters, Inc., alleges that it entered into a written
agreement with the defendant Central Telephone Company acting through its agent General
Telephone Directory Company to advertise Cascade's produce, bottled water, in the Water
Companies-Bottled portion of the classified directory of Central Telephone Company; that
the advertisement was placed therein as agreed by the defendants; but that the defendants
breached an implied covenant of their written agreement by also advertising in the same part
of the telephone directory the product of AK'WA Pure Corporation, which sold water
purifiers rather than bottled water, all to the plaintiff's damage.
90 Nev. 234, 236 (1974) Cascade Drinking Waters v. Central Tel.
plaintiff's damage. Moreover, the plaintiff alleged that the defendants were negligent in
advertising the product of AK'WA Pure as it did.
In our view, plaintiff has failed to demonstrate error in the district court's action,
dismissing plaintiff's said complaint. No substantial, relevant authority has been tendered to
establish that a telephone company's promise to advertise a given business under a certain
heading raises such a duty not to advertise other types of business under that heading, as will
support an action for alleged loss of business income. We have discovered no such authority.
Affirmed.
____________
90 Nev. 236, 236 (1974) Maines v. State
GREGORY MAINES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7345
June 25, 1974 523 P.2d 420
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; Leonard I. Gang, Judge.
The Supreme Court held that the trial court had adequately canvassed defendant to assure
that his guilty plea was made voluntarily and with understanding of the nature of the charge
and consequences of the plea, and that where a count in the information was dismissed as part
of a bargained plea which was later repudiated by defendant, the charge could be reinstated
against him.
Affirmed.
Rodlin Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Court adequately canvassed defendant to assure that his guilty plea was made voluntarily and with
understanding of nature or charge and consequences of plea. NRS 174.035, subd. 1, 177.315-177.385,
177.375, subd. 1.
90 Nev. 236, 237 (1974) Maines v. State
2. Criminal Law.
Where count was dismissed as part of bargained plea which was later repudiated by defendant, charge
could be reinstated against him.
OPINION
Per Curiam:
This appeal is from an order denying a petition for habeas relief, presented under the
provisions of Nevada's post-conviction procedure statutes. NRS 177.315 to NRS 177.385.
[Headnote 1]
NRS 177.375(1) provides: If the petitioner's conviction was upon a plea of guilty, all
claims for post-conviction relief are waived except the claim that the plea was involuntarily
entered. In our view, when the district court accepted appellant's plea of guilty to Counts I
and II of the information against him, the court adequately canvassed him to assure that the
plea was made voluntarily with understanding of the nature of the charge and consequences
of the plea. NRS 174.035(1); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969); Heffley v. Warden, 89 Nev. 645, 516 P.2d 1403 (1973).
[Headnote 2]
Moreover, appellant's further contention, that he possessed a legal defense to Count II of
the information, because it had once been dismissed pursuant to bargained plea of guilty to
Count I of the information, is not well taken. Where, as occurred in this case, the count is
dismissed as part of a bargained plea which is later repudiated by a defendant, the charge may
be reinstated against him. See: People v. Kirkpatrick, 498 P.2d 992 (Cal. 1972); In Re
Sutherland, 493 P.2d 857 (Cal. 1972).
Affirmed.
____________
90 Nev. 237, 237 (1974) Guion v. Terra Marketing of Nev., Inc.
WALT GUION, Appellant, v. TERRA MARKETING
OF NEVADA, INC., Respondent.
No. 7354
June 28, 1974 523 P.2d 847
Appeal from the grant of a preliminary injunction in the Eighth Judicial District Court,
Clark County; Leonard I. Gang, Judge.
90 Nev. 237, 238 (1974) Guion v. Terra Marketing of Nev., Inc.
Corporate land seller brought action to enjoin defendant from displaying allegedly
defamatory signs in front of seller's business location. The district court granted plaintiff a
preliminary injunction and the defendant appealed. The Supreme Court, Zenoff, J., held that
evidence sustained determination that statements appearing on signs placed in front of
corporation's business location, that corporation's representative had threatened to kill
defendant, that defendant regretted having done business with a representative of the
corporation and that doing so had introduced defendant to a new low in ethics, were false
and malicious and authorized issuance of injunction.
Affirmed.
C. A. Jack Nelson, Chartered, of Las Vegas, for Appellant.
Albright & McGimsey, of Las Vegas, for Respondent.
1. Injunction.
Evidence sustained determination that statements appearing on signs which defendant placed in front of
corporate land seller's business location, that corporate representative had threatened to kill defendant, that
defendant regretted having done business with a representative of the corporation and that doing so
introduced defendant to a new low in ethics were false and malicious and authorized issuance of
preliminary injunction restraining display of the signs.
2. Injunction.
Publication of unjust and malicious matter will not be restrained simply upon showing of its falsity.
3. Injunction.
Equity will restrain tortious acts where it is essential to preserve a business or property interest and will
restrain publication of false and defamatory words where publication is the means or incident of such
tortious conduct.
4. Injunction.
Right to carry on lawful business without obstruction is a property right and acts which are committed
without just cause or excuse and which interfere with the carrying on of a business or destroy its custom,
credit or profits do an irreparable injury and authorize issuance of injunction.
OPINION
By the Court, Zenoff, J.:
The appellant, Walt Guion, is the manager of Kitty's Place, a gift shop located in Las
Vegas, Nevada. In September of 1972, Rick Johnson entered into an agreement with
Mirabelli, Inc., permitting him to place a "land booth" in the shop.
90 Nev. 237, 239 (1974) Guion v. Terra Marketing of Nev., Inc.
1972, Rick Johnson entered into an agreement with Mirabelli, Inc., permitting him to place a
land booth in the shop. From the booth location, Mr. Johnson invited customers of Kitty's
Place to attend land sales presentations of the respondent corporation. Terra Marketing, a
subsidiary of Terracor Corporation, paid Mr. Johnson a standard fee for each out-of-state
married couple attending a presentation at his behest.
Prior to the expiration of his contract with Mirabelli, Inc., the appellant asked Mr. Johnson
to remove his booth from Kitty's Place. When Johnson refused to do so, Mr. Guion displayed
several signs, which were attached to his car, in front of Terra Marketing's business location.
These signs, clearly visible to persons entering the building to attend the land sales
presentations, bore the following statements:
A Terracor representative threatened to kill me! What next, Rick Johnson. I regret having
done business with a Terracor representative. Doing business with a Terracor
representative introduced me to a new low in ethics.
Mr. Guion testified that the alleged threat to kill him was based upon words spoken to him
by Mr. Johnson in front of the Terra Marketing offices to the effect that he threatened to
knock my (blank) head off my shoulders.
Mr. Guion appeals from the grant of a preliminary injunction restraining him from
displaying the above-mentioned signs.
[Headnote 1]
The lower court concluded from substantial evidence in the record that the statements
appearing on Mr. Guion's signs were false
1
and malicious and that they tended to discourage
prospective customers from doing business with the respondent.
[Headnotes 2-4]
It is a long-standing rule of equity that publication of unjust and malicious matter will not
be restrained simply upon a showing of its falsity.
____________________

1
Appellant argues at length that Richard Johnson was in fact a Terracor representative, and that this being
true, he has an absolute defense to a claim that his remarks were defamatory. We need not decide whether Mr.
Johnson acted in a representative capacity with respect to potential customers of the respondent. The thrust of
the defamation is that Johnson, acting on behalf of Terracor, threatened to kill the appellant and that his alleged
unethical conduct was imparted to him or encouraged by the respondent. The evidence is clearly to the contrary.
Terra Marketing exercised no control over Mr. Johnson's choice of location or the operation of his land booth.
Terra Marketing was not a party to the Mirabelli contract which is the focus of the dispute between Mr. Guion
and Mr. Johnson.
90 Nev. 237, 240 (1974) Guion v. Terra Marketing of Nev., Inc.
showing of its falsity. Equity will, however, restrain tortious acts where it is essential to
preserve a business or property interests and also restrain the publication of false and
defamatory words where it is the means or an incident of such tortious conduct. Wolf v. Gold,
193 N.Y.S.2d 36, 38 (1959). The right to carry on a lawful business without obstruction is a
property right, and acts committed without just cause or excuse which interfere with the
carrying on of plaintiff's business or destroy its custom, its credit or its profits, do an
irreparable injury and thus authorize the issuance of an injunction. Tappan Motors, Inc. v.
Waterbury, 318 N.Y.S.2d 125 (1971).
Affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.
____________
90 Nev. 240, 240 (1974) Western Cab Co. v. Kellar
WESTERN CAB COMPANY, a Nevada Corporation, and JOHNNIE CROCKETT,
Appellants and Cross-Respondents, v. CHARLES L. KELLAR and CORNELIA KELLAR,
Respondents and Cross-Appellants.
No. 7295
June 28, 1974 523 P.2d 842
Appeal and cross-appeal from judgment of the Eighth Judicial District Court, Clark
County; James D. Santini, Judge.
A husband and wife brought an action against a corporation and one of its shareholders in
which the wife alleged that she was sole owner of the corporation by virtue of a transfer of its
stock to her by her husband and the husband alleged that he was entitled under an oral
agreement to enforce certain promises made to him in exchange for his testifying on behalf of
the corporation's application for operating authority as a taxicab company. The district court
found insufficient credible evidence to support a claim of ownership on behalf of the wife,
but awarded recovery to the husband, and cross-appeals were filed by the parties. The
Supreme Court, Zenoff, J., held that the evidence refuted the wife's assertion that she had
acquired ownership of the corporation's stock; that the husband was estopped by his actions
from denying the validity of a prior transaction in which he was alleged to have sold the
company's stock to the individual defendant; and that the alleged oral agreement, under
which the husband was to receive money and stock in exchange for supporting the
company's application for operating authority and for forebearing from asserting any
claim of ownership in the company, was unenforceable as being against public policy.
90 Nev. 240, 241 (1974) Western Cab Co. v. Kellar
agreement, under which the husband was to receive money and stock in exchange for
supporting the company's application for operating authority and for forebearing from
asserting any claim of ownership in the company, was unenforceable as being against public
policy.
Reversed in part; affirmed in part.
Breen, D. J., dissented.
[Rehearing denied July 26, 1974]
Boyd, Leavitt & Freedman, of Las Vegas, for Appellants and Cross-respondents.
Charles L. Kellar and Kermitt L. Waters, of Las Vegas, for Respondents and
Cross-appellants.
1. Evidence; Husband and Wife.
Wife's assertion that she acquired sole ownership of stock in corporation from husband was refuted by
evidence that husband executed agreement, notarized by wife, stating that husband was sole owner of
corporation and purporting to convey all of his interest to third party; by husband's sworn testimony to
same effect during hearings on corporation's application for operating authority as taxicab company; and by
tact that original date of endorsement had been erased and changed in certificate for company's stock
endorsed to wife.
2. Estoppel.
Stockholder was estopped to deny validity of transfer of his shares to another on grounds that stock
certificate was not delivered to transferee where he first purported in written agreement for transfer of stock
to convey all ownership in corporation to transferee and then subsequently testified under oath that he had
done so and where neither he nor his wife, who claimed to have acquired same shares from him, asserted
ownership rights in corporation while company was being operated by transferee for some two years after
transfer.
3. Contracts.
Contract to pay witness for testifying, coupled with condition that right of witness to compensation
depends upon result of suit in which testimony is to be used, is contrary to public policy and void for
reason that such contract tends to lead to perjury and perversion of justice.
4. Contracts.
Contract was unenforceable as being against public policy which provided that, in exchange for certain
payments in money and transfer of corporate stock, person formerly interested in taxicab company would
testify in support of company's pending application for operating authority and would forebear asserting
any claim of ownership in company, payment to be contingent on granting of company's pending
application.
90 Nev. 240, 242 (1974) Western Cab Co. v. Kellar
5. Contracts.
All contracts the purpose of which is to create situation which tends to operate to detriment of public
interest are against public policy and void, whether in a particular case the purpose of the contract is
effectuated.
OPINION
By the Court, Zenoff, J.:
The genesis of the appellant corporation occurred in the early 1950's when Western
Enterprises, Inc. was organized to operate the franchise of Western Cab Company. During a
subsequent reorganization of Western Enterprises following various financial difficulties,
respondent and cross-appellant Charles Kellar obtained an ownership interest in the
corporation and assumed responsibility as a corporate officer. Further financial difficulties led
to the transfer of all of the corporation's right, title and interest in the franchise to operate the
cab company to Kellar. This occurred in July of 1964. In 1966, the corporation's charter was
revoked by the state.
Thereafter, appellant Crockett, one of the founders of the business, sought to reactivate the
then defunct corporation. In consideration of Crockett's payment of $500.00 and assumption
of outstanding obligations of Western Enterprises, Charles Kellar executed an instrument
dated May 16, 1968 purporting to convey all of his interest in the business. The agreement,
which recited that Kellar was the sole owner of Western Enterprises, was notarized by
respondent and cross-appellant, Cornelia Kellar.
Crockett then proceeded to reactivate the company. The corporation's charter was
reinstated with the Secretary of State in June of 1968 at which time the corporation's name
was changed to Western Cab Company. With the assistance of a substantial cash investment
by Herbert Tobman, one of the defendants in the lower court, business was resumed. From
June of 1968 through July of 1970, Crockett, Tobman and Myron Leavitt, also a defendant in
the lower court action, engaged in the exclusive ownership and management of the cab
company. At no time during this interval was any ownership interest asserted for or on behalf
of either Charles or Cornelia Kellar.
Respondents first put forth a claim of ownership in June of 1970 when the defendants filed
an application with the Taxicab Authority to change the name listed on the certificates of
public convenience and necessity to conform with the new name of the corporation and
for authority to issue stock.
90 Nev. 240, 243 (1974) Western Cab Co. v. Kellar
public convenience and necessity to conform with the new name of the corporation and for
authority to issue stock. Charles Kellar appeared at a hearing on the application with the
apparent intention of contesting the defendants' ownership of the corporation. That same day,
during a luncheon meeting with Tobman, Crockett and Leavitt, it was agreed on behalf of the
corporation to pay Kellar $6,000.00 cash and to reimburse him for monies expended on
behalf of the corporation between May 16, 1968 and July 16, 1970. In addition, appellant
Crockett promised to transfer five hundred of his shares in the corporation to Kellar. In
consideration of these promises, Charles Kellar agreed to support the application then
pending before the Taxicab Authority and to forbear asserting any claim of ownership in the
cab company. In furtherance of this agreement, Kellar appeared before the Authority and gave
sworn testimony acknowledging the agreement of May 16, 1968 and receipt of Crockett's
$500.00 payment. At that time he represented that on the date of sale he was the sole owner
of Western Enterprises, Inc.
Upon failure of the corporation's officers to execute a written memorandum of the
luncheon agreement or to pay the agreed consideration, an action was filed on September 24,
1970, on behalf of Cornelia Kellar alleging that by virtue of a transfer from her husband of all
stock in Western Enterprises, Inc. in 1964, she was the sole owner of the corporation.
Following protracted litigation, the lower court found insufficient credible evidence to
support a claim of ownership on behalf of Cornelia Kellar but awarded recovery to her
husband Charles on the basis of the agreement relative to his testimony before the Taxicab
Authority.
[Headnote 1]
1. There is abundant evidence in the record to refute respondent and cross-appellant
Cornelia Kellar's assertion that she acquired the sole ownership of the stock in Western
Enterprises, Inc. on December 1, 1964. This evidence includes: (1) an agreement executed by
Charles Kellar on May 16, 1968, and notarized by his wife, which states that Charles Kellar is
the sole owner of all rights, interests of Western Enterprises, Inc. . . . (2) Charles Kellar's
sworn testimony before the Taxicab Authority of the State of Nevada to the same effect, and
(3) a stock certificate representing 200 shares of stock in Western Enterprises, Inc. endorsed
to Cornelia Kellar wherein it appears that the original date of the endorsement has been
erased and changed. The trial court's finding, supported by substantial evidence in the
record, will not be disturbed on appeal.
90 Nev. 240, 244 (1974) Western Cab Co. v. Kellar
supported by substantial evidence in the record, will not be disturbed on appeal. Briggs v.
Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
[Headnote 2]
2. Respondent Kellar asserts as error the lower court's conclusion that the agreement of
May 16, 1968 effectively conveyed his interest in the corporation to Crockett for the reason
that a stock certificate representing 200 shares in Western Enterprises was not delivered to
Crockett. We hold that Kellar is estopped to deny the validity of the transfer by reason of his
conduct. On two occasions, in 1966 when the agreement of sale was executed and in 1970
before the Taxicab Authority, Kellar first purported to convey all ownership in Western
Enterprises and then testified under oath that he had done so. From June of 1968 to July of
1970, when the cab company was being operated by Crockett, Tobman and Leavitt, the
Kellars asserted no ownership rights in the corporation. By virtue of the 1968 agreement, both
Charles and Cornelia Kellar had knowledge of the transfer. To entertain a defense of
nondelivery at this late stage would be manifestly unjust and tantamount to permitting the
perpetration of fraud upon the defendant parties.
3. The trial court erred however in allowing Kellar to recover on the basis of the July 1970
agreement. In consideration of this agreement the lower court found that Charles Kellar's
obligations were twofold: (1) to support the application then pending before the Taxicab
Authority and (2) to forbear asserting any claim of ownership in Western Cab Company.
According to Charles Kellar's own memorandum of the agreement, payment was contingent
on the successful outcome of the defendants' application then pending before the Taxicab
Authority. Kellar testified in open court that in advance of his testimony before the Authority,
he had agreed to testify precisely in the manner suggested by the defendants.
[Headnotes 3, 4]
A contract to pay a witness for testifying coupled with the condition that the right of the
witness to compensation depends upon the result of the suit in which his testimony is to be
used, is contrary to public policy and void for the reason that it is the tendency of such a
contract to lead to perjury and the perversion of justice. Burchell v. Ledford, 10 S.W.2d 622
(Ky. App. 1928); see also Apter v. Joffo, 189 N.W.2d 7 (Mich. 1971); Goodyear Tire &
Rubber Co. v. Overman Cushion Tire Co., 95 F.2d 978 (6th Cir. 1937). We do not hesitate to
apply this rule when, as in the present case the witness's only interest in the outcome of
the litigation is that created by contract.
90 Nev. 240, 245 (1974) Western Cab Co. v. Kellar
this rule when, as in the present case the witness's only interest in the outcome of the
litigation is that created by contract. See M. Farbman and Sons, Inc. v. Continental Casualty
Co., 308 N.Y.S.2d 493, aff'd 319 N.Y.S.2d 775 (1971). Whatever initial interest Kellar may
have had in the outcome of the application before the Taxicab Authority, it was superseded
by the July 16 agreement promising payment in the event of approval.
[Headnote 5]
All contracts the purpose of which is to create a situation which tends to operate to the
detriment of the public interest are against public policy and void whether in a particular case
the purpose of the contract is effectuated. King v. Randall, 44 Nev. 118, 190 P. 979 (1920).
For this reason we reverse that part of the decision in the lower court granting recovery to
Charles Kellar and affirm in all other respects.
Thompson, C. J., and Mowbray and Batjer, JJ., concur.
Breen, D. J., dissenting:
I dissent.
I disagree with that part of the majority opinion which reverses the lower court. I agree
with the proposition that a contract made by a witness who testified for a consideration which
is contingent upon the outcome of litigation is void as against public policy. However, where
that witness is otherwise interested in the result of the litigation; where the witness has a
legitimate and otherwise potentially valid claim pertaining to the subject matter of the
litigation which he also gives up, there is sufficient consideration to support an enforceable
contract.
It is true that Mr. Kellar's testimony was given for a consideration which was, in part,
contingent on the outcome of the taxicab proceedings. In addition to that, Mr. Kellar agreed
to forbear asserting a claim of right. I do not believe this contract is against public policy
because the policy considerations are absent in such a case.
I do not think perjury is promoted any more in this case than testimony which is the result
of a compromise of a divorce case or any other compromise litigation between the parties.
When one testifies for a consideration, at least three possibilities arise with respect to that
person's status toward the litigation.
If the person has no independent interest in the subject matter, nor the outcome of the
proceedings, he is a stranger to the litigation and perhaps the general rule would apply. But
one may be an adverse party to the proceedings or one may stand to gain or lose rights as a
result of the proceedings and thus be an "interested witness."
90 Nev. 240, 246 (1974) Western Cab Co. v. Kellar
to gain or lose rights as a result of the proceedings and thus be an interested witness. In
these cases, the fact that part of the consideration itself may have illegal aspects won't defeat
the agreement. There is ample authority for this proposition of law. Johnson v. Country Life
Insurance Co., 300 N.E.2d 11 (1973); Schara v. Thiede, 206 N.W.2d 129 (1973); Ingle v.
Perkins, 510 P.2d 480 (1973); Wilson v. Maryland Cas. Co., 269 So.2d 562 (1972); Seufert v.
Greenfield, 496 P.2d 197 (1972); River Garden Farms v. Superior Court, 103 Cal.Rptr. 498,
26 Cal.App.3d 986 (1972); Willcher v. Willcher, 294 A.2d 486 (1972); Ferro v. Bologna, 334
N.Y.S.2d 856, 286 N.E.2d 244 (1972); Sealy Mattress Co. v. Sealy, Inc., 346 F.Supp. 353
(1972); Cox v. Hope, 498 S.W.2d 436 (1973); Thatcher v. Darr, 199 P. 938; Dodge v. Stiles,
26 Conn. 463 (1857).
I believe there was substantial evidence to conclude that part of the consideration for the
July 16, 1970 contract was good faith forbearance to assert a prior existing disputed claim. If
this were the case, the agreement would be valid and enforceable. For example, at the time of
the agreement in Western Cab Company in question, Kellar or his wife were stockholders of
record and had been notified of the proceedings before the Taxicab Authority.
The majority's view that Kellar's only interest was created by the contract itself amounts to
a substitution of its view of the evidence for that of the trial court. This violates the
proposition, used by the majority opinion, that a trial court's finding, if supported by
substantial evidence in the record, will not be disturbed on appeal. Briggs v. Zamalloa, 83
Nev. 400, 432 P.2d 672 (1967).
The majority opinion concludes that Kellar's only interest in the outcome of the litigation
was created by the July 16 contract, which they say is illegal. Yet they also say that whatever
prior interest Kellar may have had in the outcome of the application before the Taxicab
Authority, it was superseded by the July 16 agreement promising payment in the event of
approval. This is confusing to me because it appears to make the agreement both valid and
invalid in order to support the conclusion reached. If the July 16 agreement superseded any
prior interest, and I agree it did, it must have been supported by good and sufficient
consideration otherwise it would not be enforceable.
I would affirm the lower court because its conclusion is supported by substantial evidence
in the record and sound legal theory.
____________
90 Nev. 247, 247 (1974) Nevada Land & Mortgage Co. v. Lamb
NEVADA LAND AND MORTGAGE COMPANY, a Dissolved Corporation, HUGH E.
TAYLOR, PHIL KAHN and RALPH DYMOND, Appellants, v. FRANK W. LAMB,
Respondent.
No. 7382
July 3, 1974 524 P.2d 326
Appeal of judgment rendered in the Eighth Judicial District Court, Clark County; Michael
J. Wendell, Judge.
Suit by creditor of corporation against directors who dissolved corporation after
exchanging most of its assets for stock in another corporation and distributing such stock to
shareholders. The district court found for creditor and defendants appealed. The Supreme
Court, Zenoff, J., held that action was governed by four-year statute of limitations not
three-year statute applicable to liability of directors for unlawful payment of dividends, and
that directors were personally liable.
Affirmed.
Morse, Foley and Wadsworth, of Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondent.
1. Limitation of Actions.
Where action was brought against directors as trustees of dissolved corporation who distributed proceeds
from sale of corporation's property without providing for payment of a creditor, action was governed by
four-year statute of limitations and not three-year statute of limitations applicable to liability of directors
for unlawful payment of dividends. NRS 11.220, 78.300, 78.595.
2. Corporations.
If corporate officers divide assets among stockholders when corporation is insolvent or where corporation
is thereby rendered insolvent, such officers are personally liable for corporation's debts or at least to extent
of amount of assets received by them. NRS 78.595.
3. Corporations.
Record did not establish that creditor of corporation was guilty of laches precluding maintaining suit
against directors as trustees of dissolved corporation who distributed proceeds from sale of corporation's
property without providing for payment to him.
4. Corporations.
Where corporate officers and directors, without paying creditor, dissolved corporation after having
exchanged most of its assets for shares of another corporation which was then distributed to shareholders,
directors were jointly and severally liable to creditor. NRS 78.590, subd. 1, 78.595.
90 Nev. 247, 248 (1974) Nevada Land & Mortgage Co. v. Lamb
5. Appeal and Error.
Appeal is available only to aggrieved party.
6. Appeal and Error.
Appellants could not complain that trial court granted relief against persons who were to parties to action.
7. Costs.
Creditor who successfully prosecuted suit against directors of corporation who dissolved corporation
without payment to creditor was entitled to award of $500 attorney's fees. NRAP 38.
OPINION
By the Court, Zenoff, J.:
Nevada Land and Mortgage Company, a corporation now dissolved, acknowledged that it
was indebted to Frank Lamb for the sum of $15,083.87. Although recognizing its obligation
to pay Lamb, the corporation through its officers and directors without making payment or
arrangements therefore transferred the bulk of its assets to Leroy Corporation in exchange for
36,158 shares of Leroy's stock which were then distributed to Nevada Land and Mortgage
stockholders.
The distribution of the stock to the stockholders took place either in July or August of
1965. The corporation resolution to do so was enacted on June 28, 1965. The evidence
indicates that the point when the assets of Nevada Land and Mortgage were insufficient to
pay Lamb's debt was between July 9, 1965 and August 21, 1965. On August 21, 1965 the
board of directors of Nevada Land and Mortgage resolved to dissolve the corporation.
Appellants Dymond, Kahn and Taylor received Leroy stock from the distribution to the
stockholders of Nevada Land and Mortgage.
The trial court found that the action of the officers and directors of Nevada Land and
Mortgage in distributing the assets of the corporation among the stockholders without making
provision for payment to Lamb violated their duties as trustees of the dissolved corporation
and adjudged them personally liable for the corporate debt to Lamb.
[Headnote 1]
1. As their principal claim of error appellants contend that the action is barred by NRS
78.300, the three-year limitation period for actions to recover for unlawful payment of
dividends.1 They are in error.
90 Nev. 247, 249 (1974) Nevada Land & Mortgage Co. v. Lamb
period for actions to recover for unlawful payment of dividends.
1
They are in error. The
controlling period is four years. NRS 11.220.
2
This is an action against directors as trustees
of a dissolved corporation who distributed proceeds from the sale of the company's property
without providing for the payment of a creditor. It is not, as appellants claim, an action to
recover unlawful dividends paid out of capital of a going concern. Beatty v.
Patterson-Garfield-Lodi Bus Co., 9 A.2d 686 (N.J. Eq. 1939). This state contemplated the
distinction by its separate statutory sections relating to liability for the unlawful payment of
dividends (NRS 78.300) and the liability of directors of a dissolved corporation to unpaid
creditors. (NRS 78.595.)
3
Cf. Calkins v. Wire Hardware Co., 165 N. E. 889 (Mass. 1929);
King v. Coosa Valley Mineral Products Co., 215 So.2d 275 (Ala. 1968).
[Headnote 2]
If corporate officers divide the assets among stockholders when the corporation is
insolvent or where the corporation is thereby rendered insolvent, such officers are personally
liable for the corporation's debts, or at least to the extent of the amount of assets
received by them.
____________________

1
NRS 78.300 Liability of directors for unlawful payment of dividends; exoneration from liability.
1. The directors of a corporation shall not make dividends or other distributions to stockholders except as
provided by this chapter.
2. In case of any willful or negligent violation of the provisions of this section, the directors under whose
administration the same may have happened, except those who may have caused their dissent therefrom to be
entered upon the minutes of the meeting of the directors at the time, or who not then being present shall have
caused their dissent therefrom to be entered on learning of such action, shall jointly and severally be liable, at
any time within 3 years after each such violation, to the corporation, and, in the event of its dissolution or
insolvency, to its creditors at the time of the violation, or any of them, to the lesser of the full amount of the
dividend made or of any loss sustained by the corporation by reason of such dividend or other distribution to
stockholders.

2
NRS 11.220 Action for relief not hereinbefore provided for. An action for relief, not hereinbefore provided
for, must be commenced within 4 years after the cause of action shall have accrued.

3
NRS 78.595 Trustees of dissolved corporation: Authority to sue and be sued; joint and several
responsibility. The persons constituted trustees as provided in NRS 78.590 shall have authority to sue for and
recover the debts and property therein mentioned, by the name of the trustees of the corporation, describing it by
its corporate name, and shall be suable by the same name for the debts owing by the corporation at the time of its
dissolution, and shall be jointly and severally responsible for such debts, to the amounts of the moneys and
property of the corporation which shall come into their hands or possession.
90 Nev. 247, 250 (1974) Nevada Land & Mortgage Co. v. Lamb
for the corporation's debts, or at least to the extent of the amount of assets received by them. 3
Fletcher Cyclopedia Corporations 1186, pp. 899-900 (Rev'd Vol. 1965); Gaskins v. Bonfils,
79 F.2d 352 (10th Cir. 1935); cf. Realty Exchange Corp. v. Cadillac Land & Dev. Co., 475
P.2d 522 (Ariz.App. 1970).
2. Appellants contend also that the period of limitations of NRS 11.190(3)(a) applies and
that this action is barred because it was not brought within three years.
4
The liability is not
one created by statute. Gonzales v. Pacific Fruit Express Co., 99 F.Supp. 1012 (Nev. 1951).
The lower court correctly applied NRS 11.220 providing for the four-year period.
[Headnote 3]
3. Appelants also urge the doctrine of laches, but the strong circumstances needed to
warrant reliance upon laches were not shown. Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891
(1966).
[Headnote 4]
4. Another question is whether the trial court erred in imposing individual liability on the
appellants. In Nevada the directors of a dissolved corporation become trustees. NRS
78.590(1).
5
Where at the time of dissolution, the corporation has outstanding debts, the
directors are jointly and severally liable for such debts to the extent of corporate property
which comes into their possession. NRS 78.595. In spite of Lamb's repeated demands for
payment, the appellants, officers and directors of Nevada Land and Mortgage, distributed the
stock of Leroy Corporation among the stockholders of Nevada Land and Mortgage and
thereafter dissolved the corporation. The distribution rendered Nevada Land and Mortgage
insolvent. Appellants' liability has been clearly established under NRS 78.595. See also King
v. Coosa Valley Mineral Products Company, supra; Turp v. Dickinson, 134 A. 888 (N.J.Eq.
1926).
____________________

4
NRS 11.190(3) Within 3 years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.

5
NRS 78.590 Directors to be trustees of dissolved corporation: Powers.
1. Upon the dissolution of any corporation under the provisions of NRS 78.580, or upon the expiration of
the period of its corporate existence, limited by its certificate or articles of incorporation, the directors shall be
trustees thereof, with full power to settle the affairs, collect the outstanding debts, sell and convey the property,
real and personal, and divide the moneys and other property among the stockholders, after paying or adequately
providing for the payment of its liabilities and obligations.
90 Nev. 247, 251 (1974) Nevada Land & Mortgage Co. v. Lamb
[Headnotes 5, 6]
5. It is also claimed that the trial court granted relief against persons who were not parties
to this action, never served with process and who did not appear before the court. The
reference is, of course, to the assessment of the other stockholders of Nevada Land and
Mortgage not involved in this action. However, an appeal is available only to an aggrieved
party. Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192 (1940). Appellants are without standing
to raise this issue.
[Headnote 7]
The findings of the trial court are supported by the record. This appeal indicates that relief
to the respondent in some measure toward his attorney's fees is warranted. He shall be paid
the sum of $500.00 in addition to interest and his costs. NRAP 38.
Affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., Concur.
____________
90 Nev. 251, 251 (1974) Dabovich v. State
WILLIAM G. DABOVICH, Sr., Appellant, v.
STATE OF NEVADA, Respondent.
No. 7413
July 3, 1974 524 P.2d 544
Appeal from judgment of conviction for embezzlement; First Judicial District Court,
Douglas County; Richard L. Waters, Jr., Judge.
The Supreme Court held that substantial evidence supported defendant's conviction of
embezzlement of money and merchandise from place where he was employed; that error, if
any, in defendant's arraignment upon an amended information filed without leave of court
was waived, where defendant's counsel did not object; and that record did not suggest that
defendant was denied effective assistance of counsel to extent that trial was reduced to a
sham, a farce, or a pretense.
Affirmed.
Seymour Patt and James I. Barnes, III, of Reno, for Appellant.
Howard D. McKibben, District Attorney, Douglas County, for Respondent.
90 Nev. 251, 252 (1974) Dabovich v. State
1. Embezzlement.
In prosecution for embezzlement, evidence supported defendant's conviction of embezzlement of money
and merchandise from place of his employment.
2. Indictment and Information.
Error, if any, in defendant's arraignment upon an amended information filed without leave of court was
waived, where defendant's counsel did not object.
3. Criminal Law.
Record did not suggest that defendant was denied effective assistance of counsel to extent that trial was
reduced to a sham, a farce, or a pretense.
OPINION
Per Curiam:
[Headnotes 1-3]
A jury convicted the appellant of the embezzlement of money and merchandise from
Harrah's, Inc., while there employed. Contrary to his assertion, the record contains substantial
evidence of his guilt. Although he was arraigned upon an amended information filed without
leave of court, his counsel did not object, and the error, if any, was waived. Sherman v. State,
89 Nev. 77, 506 P.2d 417 (1973). Neither does the record suggest that he was denied the
effective assistance of counsel to the extent that the trial was reduced to a sham, a farce, or a
pretense. Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974). Other claimed errors similarly
are without merit.
Affirmed.
____________
90 Nev. 252, 252 (1974) Hamm v. Sheriff
CARL HAMM, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 7689
July 3, 1974 523 P.2d 1301
Appeal from order denying pretrial petition for habeas corpus, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
The Supreme Court held that sales slips, which allegedly represented unauthorized
purchases made by petitioner, were not admissible under business records exception to
hearsay rule, where manager of store in which alleged unauthorized purchases were made was
neither shown to be custodian of records not otherwise qualified to identify them;
accordingly, evidence adduced before magistrate was not sufficient to establish probable
cause for holding petitioner for trial and relief by way of habeas corpus should have been
granted.
90 Nev. 252, 253 (1974) Hamm v. Sheriff
evidence adduced before magistrate was not sufficient to establish probable cause for holding
petitioner for trial and relief by way of habeas corpus should have been granted.
Reversed, without prejudice.
Morgan D. Harris, Public Defender, and George E. Holt, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Sales slips, which allegedly represented unauthorized purchases made by defendant, were not admissible
under business records exception to hearsay rule in prosecution on felony charge of fraudulent use of a
credit card, where manager of store in which alleged unauthorized purchases were made was neither shown
to be custodian of records nor otherwise qualified to identify them. NRS 51.135, 205.760.
2. Habeas Corpus.
Evidence adduced before magistrate was not sufficient to establish probable cause for holing petitioner
for trial on felony charge of fraudulent use of a credit card, and relief by way of habeas corpus should have
been granted, where sales slips representing alleged unauthorized purchases were erroneously admitted in
evidence because prosecutor failed to lay foundation required under business records exception to hearsay
rule. NRS 34.480, 51.135, 171.206, 205.760.
OPINION
Per Curiam:
In this appeal from an order denying habeas corpus the sole issue is whether the evidence
adduced before the magistrate was sufficient to establish probable cause, as required by NRS
171.206, to hold appellant for trial on the felony charge of fraudulent use of a credit card
(NRS 205.760).
1
The information charged that on February 19, 1973, Carl Hamm made
unauthorized purchases of a combined value of more than $100.00.
____________________

1
The applicable portion of NRS 205.760 reads:
1. Any person who, with intent to defraud: . . .
(b) Obtains . . . goods . . . or anything else of value by representing, without the consent of the cardholder, that
he is the authorized holder of a specified card . . . is guilty of a public offense and shall be punished . . .
2. Where the amount of money or the value of the goods, property, services or other things of value so
obtained in any 6-month period is:
(a) $100 or more, the violator 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.
(b) Less than $100, the violator shall be punished for a misdemeanor.
90 Nev. 252, 254 (1974) Hamm v. Sheriff
The information charged that on February 19, 1973, Carl Hamm made unauthorized
purchases of a combined value of more than $100.00. The purchases were: (1) Vern Little
Service Station, $15.70; (2) Karl's Shoe Store, $53.80; (3) Karl's Shoe Store, $10.34; and, (4)
The Pant Tree, $37.26a total of $117.10. Copies of charge slips on the four sales were
admitted in evidence at the preliminary examination.
[Headnote 1]
Appellant, contending the evidence does not justify a felony charge, argues the two Karl's
Shoe Store sales slips were erroneously admitted into evidence because the prosecutor failed
to lay the foundation required under NRS 51.135, the business records exception to the
hearsay rule.
2
We agree.
Raymond Bolliger, manager of the shoe store at the time of the preliminary examination,
was the only witness called by the district attorney to connect appellant with the alleged shoe
store purchases. Bolliger testified, inter alia: that although the shoe store symbol appeared on
the two sales slips, he had not been the store manager when the purchases were made; that he
had never seen the sales slips until he walked into the court room; that he had no knowledge
of where they came from; and, that he could not identify anyone involved in the alleged
transaction.
[Headnote 2]
As Bolliger was neither shown to be the custodian of the records, nor otherwise qualified
to identify them, the magistrate improperly admitted the two Karl's sales slips. The remaining
evidence relating to probable cause consisted of the station charge ($15.70), and the Pant Tree
charge (37.26), a total of $52.96 which, under NRS 205.760(2)(b), would support only a
misdemeanor charge. The district judge should have granted habeas. NRS 34.480.
Accordingly, we reverse and order the felony charge dismissed, without prejudice to the
right of the state to institute new proceedings against appellant within fifteen days after
remittitur issues.
____________________

2
51.135 HEARSAY EXCEPTIONS: RECORDS OF REGULARLY CONDUCTED ACTIVITY. A
memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses,
made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a
regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, is not
inadmissible under the hearsay rule unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. (Emphasis added.)
90 Nev. 252, 255 (1974) Hamm v. Sheriff
new proceedings against appellant within fifteen days after remittitur issues.
____________
90 Nev. 255, 255 (1974) Edwards v. State
CHARLES RAY EDWARDS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 7273
July 3, 1974 524 P.2d 328
Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
court, Gunderson, J., held that the evidence was sufficient to find defendant guilty beyond a
reasonable doubt; that the prosecutor's reference to defendant's exercise of his Fifth
Amendment right to remain silent was harmless error; and that defendant's trial counsel did
not make timely objection to the prosecutor's cross-examination of defendant regarding his
prior criminal record.
Affirmed.
Thompson, C. J., dissented.
Morgan D. Harris, Public Defender, Brian L. Greenspun and Howard N. Ecker, Deputy
Public Defenders, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.
Garner and Daniel M. Seaton, Chief Appellate Deputies, Clark County, for Respondent.
1. Burglary.
Because burglary is commonly committed in secret, often at night, it frequently must be proved by
circumstantial evidence.
2. Criminal Law.
Every person concerned in committing an offense, whether he directly commits the act constituting the
offense, or aids or abets it, is a principal and liable as such. NRS 195.020.
3. Criminal Law.
Test for sufficiency of evidence upon appellate review is not whether Supreme Court is convinced of
defendant's guilt beyond reasonable doubt, but whether the jury, acting reasonably, could be convinced to
that certitude by evidence it had a right to accept.
90 Nev. 255, 256 (1974) Edwards v. State
4. Burglary.
Evidence, including act that police captured defendant on roof of burglarized premises near point of
forced entry and pole of stolen goods, that defendant attempted to flee, and that defendant's accomplice's
testimony that he had acted alone was inherently incredible, was sufficient to establish defendant's guilt of
burglary beyond a reasonable doubt.
5. Criminal Law.
A legal presumption exists that an unlawful act is done with unlawful intent. NRS 47.250, subd. 1.
6. Criminal Law.
Defendant's attempt to flee when police arrived was a circumstance supportive of an inference of guilt.
7. Criminal Law.
Law presumes that willfully suppressed testimony would be adverse. NRS 47.250, subd.4.
8. Criminal Law.
Where prosecutor's reference to fact that defendant claimed privilege to remain silent in face of custodial
interrogation had no impact on the trial, such reference was harmless error.
9. Witnesses.
While Evidence Code declares a prior felony conviction may be admitted for impeachment, Code also
contemplates that a court should exclude such evidence if its probative value is substantially outweighed by
danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
needless presentation of cumulative evidence. NRS 48.035, subds. 1, 2, 50.095.
10. Criminal Law.
Where defendant made no objection that admission of prior felony record for impeachment purposes
would be outweighed by other considerations, he did not properly preserve claim of error. NRS 47.040,
subds. 1, 1(a).
OPINION
By the Court, Gunderson, J.:
About dawn, July 8, 1972, Las Vegas police answering a silent alarm captured appellant
on the roof of Roxy's Cleaners. Appellant was charged with burglary, and as an habitual
criminal because he twice had been convicted of robbery. See: NRS 205.060 and 207.010.
Although the jury found appellant guilty of burglary, no transcript existed to show he had
counsel when sentenced for one of the prior robberies. Hence, our district court sentenced
appellant for burglary without enhancement, to 5 years concurrently with a recent jail
sentence for a gross misdemeanor. On appeal, appellant's prime contention, which we reject,
is that the evidence was insufficient to sustain the jury's determination of guilt.
90 Nev. 255, 257 (1974) Edwards v. State
Officer O'Hair testified he and Officer Lee arrived at Roxy's within two minutes of a radio
dispatch. Arriving some 5 seconds earlier, Officers Rose and Norberg covered the front or
west side of the multi-business complex. O'Hair and Lee took the rear side to the east. In
O'Hair's words: As we pulled around in back and stopped, . . . I observed [appellant] come
up from the roof linehe was below the roof line and he raised up. He turned and saw these
officers and immediately turned and ran across the roof line west, towards the front of the
business.
Lee testified that as he and O'Hair alighted from their vehicle, O'Hair announced seeing a
man on the roof. As Lee climbed to the roof, he saw appellant near the roof's west edge and
ordered him to stand still. Then, Lee finished getting up on the roof and approached the
subject and advised him that he was being placed under arrest for burglary. Five to seven
feet from an open vent hole in the roof, he saw stacked clothing, later proved stolen from the
cleaners. Lee gave a Miranda warning and directed appellant to climb down to O'Hair
whom Norberg had joined. Later, when one of the officers below told him a man named
Bruce was in the cleaners, Lee climbed down through the vent hole and arrested James
Bruce Bolden.
Norberg testified that while guarding the front (west) side with Rose, he heard a voice say
someone was on the roof. Then, appellant appeared, and as Norberg testified: We told him
to halt. We told him to place his hands above his head and held him there until Officer Lee
could get on the roof and restrain the suspect. Next, Norberg went around the back of the
building to assist Officer Lee and Officer O'Hair to bring the subject down from the roof.
Thereafter, Norberg [p]laced him in handcuffs and escorted him around to the front and
placed him in the police vehicle where I had read him his Miranda Rights. Thereupon,
Norberg testified, appellant waived his right to silence, saying someone named Bruce was
with him in the building.
1

Rose testified to being with Norberg when appellant was stopped at the front of the
building, and later when Norberg advised appellant of his rights. Rose also said he helped
impound clothing stacked on the roof "maybe five feet away from the hole."
____________________

1
NORBERG: I asked him if he wished to waive these rights, and he nodded his head to me in affirmation and
then I asked him if there was anyone else with him. PROSECUTOR: Did he respond to that question?
DEFENSE COUNSEL: Your Honor, I object; no foundation. THE COURT: Objection overruled.
PROSECUTOR: You may answer the question. NORBERG: He stated that there was someone else with
90 Nev. 255, 258 (1974) Edwards v. State
impound clothing stacked on the roof maybe five feet away from the hole.
Aside from Officer Adams, who photographed the scene, and unsuccessfully processed for
fingerprints, the State's only other witness was Mrs. Jenkins, owner of Roxy's. She testified
that when she locked the premises the night before, items later found on the roof were inside,
and that she had not given Edwards or Bolden permission to enter. On cross-examination, she
said the alarm which alerted the police was activated by an electric eye inside the premises,
and on redirect examination, without objection, testified to a prior experience in which about
ten minutes had been necessary for a police response.
Appellant contended he became a victim of circumstances, upon climbing on the roof to
warn Bolden he had been spotted and the police might be coming.
2
As witnesses, appellant's
counsel called Bolden (who had pleaded guilty to the burglary), appellant's wife, one Thelma
Banks, and finally appellant himself. Evidently, the jury chose not to believe them.
[Headnotes 1-3]
1. Because burglary is commonly committed in secret, often at night, if frequently must be
proved by circumstantial evidence. People v. Naughton, 75 Cal.Rptr. 451, 455 (Cal.App.
1969); People v. Huber, 37 Cal.Rptr. 512, 514 (Cal.App. 1964);People v. Jordan, 22
Cal.Rptr. 731, 734 (Cal.App. 1962); People v. Nichols, 16 Cal.Rptr. 328, 330 (Cal.App.
1961). As the court instructed the jury, every person concerned in committing an offense,
whether he directly commits the act constituting the offense, or aids or abets it, is a principal
and liable as such. NRS 195.020; cf. People v. Jordan, cited above. Moreover, the test for
sufficiency upon appellate review is not whether this court is convinced of the defendant's
guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could be
convinced to that certitude by evidence it had a right to accept.
____________________
him in the building, and I says Who, and he says, Bruce. I says, Bruce what? and he says, I don't know his
last name, but his name was Bruce. I informed Officer Lee on the roof and the rest of the people in the area.
PROSECUTOR: Did you have any further discussion with the defendant at that time? NORBERG: No sir.
PROSECUTOR: Did the defendant offer you any explanation of why he was on the roof? NORBERG: No, sir,
he didn't say anything about that.

2
Since we conclude evidence was ample to convict appellant of burglary as a principal, we need not consider
that his own testimony arguably showed him at least an accessory within NRS 195.030(1), to wit: a person not
standing in the relation of husband or wife, brother or sister, parent or grandparent, child or grandchild, who
[a]fter the commission of a felony harbors, conceals or aids such offender with intent that he may avoid or
escape from arrest, trial, conviction or punishment, having knowledge that such offender has committed a felony
or is liable to arrest. (Emphasis added.)
90 Nev. 255, 259 (1974) Edwards v. State
defendant's guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could be
convinced to that certitude by evidence it had a right to accept. Crowe v. State, 84 Nev. 358,
441 P.2d 90 (1968). Accordingly, we must decide if the jury acted unreasonably in
determining there was no reasonable doubt of appellant's guilt. In doing so, we must
remember, as the jury was instructed: 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. NRS 175.211(1).
[Headnote 4]
Judge possess no unique faculty for perceiving relationships, discerning contradictions,
drawing inferences, and making measured judgments. Accordingly, by noting salient aspects
of the evidence, which we believe combine to justify the jury's verdict, we do not suggest the
record contains no further support.
[Headnote 5]
First, police captured appellant, not on the ground, but on the roof of looted premises, near
the loot and the point of forced entrya place one not criminally involved was unlikely to be,
and a place appellant had no right to be. Quite aside from inferences the jury might draw from
these facts, a legal presumption exists that an unlawful act is done with unlawful intent. NRS
47.250(1).
Second, from testimony of three policemen, supported by a photograph, the jury could
decide the loot was so far from the vent hole that Bolden could not merely have trust himself
up through the hole and stacked the clothing, as he testified.
3
Although appellant and Bolden
both asserted the clothing was next to the vent, the jury could properly believe the officers
instead. Then, the jury could decide it would be unnatural for Bolden, working alone and in
haste, to climb completely out onto the roof to place the clothing where it was
foundparticularly since Bolden did not say he did so, and since no reason appears for a
lone burglar to proceed thus.
____________________

3
PROSECUTOR: Would you please stand up and by your hands show the ladies and gentlemen of the jury
where the top of the vent reached on you? BOLDEN: Approximately here (indicating); I had to raise myself up.
PROSECUTOR: May the record indicate that Mr. Bolden has indicated just slightly below his armpits. THE
COURT: The record may show. DEFENSE COUNSEL: It's closer to the bottom of
90 Nev. 255, 260 (1974) Edwards v. State
onto the roof to place the clothing where it was foundparticularly since Bolden did not say
he did so, and since no reason appears for a lone burglar to proceed thus. Hence, an inference
would permissibly follow that appellant, the only person on the roof, had received and
stacked the clothing, actively participating in the burglary with Bolden.
[Headnote 6]
Third, that appellant attempted to flee when the police arrived is a circumstance supportive
of an inference of guilt. McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970); Williams v.
State, 85 Nev. 169, 451 P.2d 848 (1969).
Fourth, although appellant testified he attempted to dissuade Bolden from the burglary in
question, he admittedly was with Bolden shortly before the crime, discussing its advisability.
This court previously has held [p]resence, companionship, and conduct before and after the
offense are circumstances from which one's participation in the criminal intent may be
inferred. 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); In this
regard, it should particularly be noted that Office Norberg testified appellant waived his right
to silence, saying he was with a man named Bruce who was inside the premises, but falsely
saying he did not know Bruce's last name.
Such facts, taken together, we think establish a prima facie case, which the testimony of
appellant and his witnesses did not of necessity dispel. Appellant's justification for his
presence on the roof required the jury to believe: (1) that appellant innocently learned Bolden
was considering a burglary of Roxy's; (2) that appellant fortuitously discovered Bolden was
proceeding with his unlawful purpose, by overhearing two men not produced as witnesses;
and (3) that appellant improvidently and perhaps unnecessarily went onto the roof to warn
Bolden he had been seen, although appellant recognized the police might well be on the
way.
____________________
the rib cage. THE COURT: Would you put a mark there again, please? BOLDEN: Approximately here
(indicating). THE COURT: It's a little lower than the armpits; it's right across the top part of his diaphragm.
State's Exhibit 3 shows the vent hole, with its cover pried back, and two stacks of clothing, the nearest
seemingly to far to have been placed there by a man with his chest thrust up through the vent hole to diaphragm
height. The farther stack appears at least 6 feet from the hole.
90 Nev. 255, 261 (1974) Edwards v. State
might well be on the way. On every phase of this explanation, the testimony of appellant and
his witnesses was inconsistent, fraught with inherent improbabilities, and contradicted in
material respects by the police who testified.
First, for example, the explanation's initial phase suffered because Bolden said he did not
discuss burglary prospects with appellant; whereas, appellant and his wife said burglary was
discussed at Henry's Bar, next door to the crime scene, but differed on what was said.
Appellant's wife said appellant opposed burglary of Roxy's as penitentiary bait. Appellant
did not claim to have opposed the burglary on legal or ethical grounds, but because it wasn't
worth it.
[Headnote 7]
Second, regarding the explanation's next phase, i.e. how appellant learned Bolden had
proceeded to the roof, the jury could find much to ponder. Appellant's wife testified that, after
Bolden left Henry's Bar, two blacks she had seen there on very many occasions entered and
said the Bruce that just left out of here was on the roof. The jury might be puzzled how two
men arriving through the front door of Henry's would know that a man already on the roof of
Roxy's had just left out of here. Unlike his wife, appellant testified Bolden was identified
by his las name.
4
The jury could well wonder about this contradiction, and also why
appellant later told arresting officers he did not know that name. Moreover, since the two men
who ostensibly spotted Bolden were supposedly habitues of Henry's, known on sight to
appellant's wife, the jury had some evidentiary basis to believe that if appellant's explanation
were true, he could have located and called them as disinterested, corroborating witnesses. As
he did not, the jury might determine that the testimony of such men, if they existed, would not
support appellant. Our law presumes that willfully suppressed testimony would be adverse.
NRS 47.250(4).
Third, evidence concerning appellant's conduct after leaving Henry's also presented grist
for the jury's intellectual inquiry. For example, as the prosecutor's cross-examination of
appellant suggested, the jury might question why appellant had not adopted the simple and
safe expedient of merely going out Henry's front door and calling up to Bolden, if indeed two
men had told him Bolden was there.5 Moreover, as mentioned, from the testimony of
appellant's wife, it would seem that the two unidentified men who saw Bolden on the roof
had seen him leave Henry's Bar as they approached.
____________________

4
APPELLANT: Well, I just overheard this conversation, Bruce Bolden, Bruce was on top of the building.
DEFENSE COUNSEL: Did they say Bruce Bolden? APPELLANT: They said Bruce, and I said, Bruce who?
And the guy said, Bruce Bolden.
90 Nev. 255, 262 (1974) Edwards v. State
had told him Bolden was there.
5
Moreover, as mentioned, from the testimony of appellant's
wife, it would seem that the two unidentified men who saw Bolden on the roof had seen him
leave Henry's Bar as they approached. Both Bolden and appellant testified that they did not
see one another that evening, other than in the bar, until after their arrest. Appellant and his
wife testified he immediately left the bar to warn Bolden, as soon as the unidentified men
entered and made their discovery known. Appellant said he went directly to the roof. For all
of this to be true, the jury might notice that Bolden seemingly had the briefest span of time in
which to force the vent open, climb down into the cleaners to select armloads of cloths, twice
climb completely out onto the roof to stack the clothing there, and then climb back down into
the cleaners a third time, before appellant could get to the roof. The jury could possibly
decide that this sequence of events was intrinsically doubtful.
Without attempting to catalog all other testimony the jury may have considered, we note
that appellant and Bolden acknowledged being close associates. Each responded
affirmatively when asked if he had previously been convicted of a felony. Appellant called a
witness, Mrs. Thelma Banks, who testified he was standing in front of the cleaners when the
police arrived.
6
Yet subsequently, when appellant testified, he acknowledged that he was
apprehended on the roof, during an attempt to flee.
7

In view of all this, we think that, after comparison and consideration of all the evidence,
the jury could quite reasonably feel an abiding conviction of appellant's guilt, and thus decide
the prosecution had met its burden of proof. Compare: Tellis v. State, S5 Nev. 679
____________________

5
PROSECUTOR: Why didn't you yell from the ground instead of going to the roof yourself? APPELLANT:
I assumed he was off in the building. PROSECUTOR: How did you assume that he was in the building if they
told you he was on the roof? APPELLANT: Because if he was thinking about burglarizing the place, he'd be
going on the roof and not from inside. PROSECUTOR: Did anybody tell you that he was in the building?
APPELLANT: No, they say he was on the roof.

6
PROSECUTOR: Were you still in the area when the police came? MRS. BANKS: Yes. PROSECUTOR:
How soon was that after you saw Charles [appellant] standing in front of the building? MRS. BANKS: Oh, it
was about a minute, I guess, about a minute. PROSECUTOR: Was Charles still standing there when they came?
MRS. BANKS: Yes. PROSECUTOR: Are you sure of that? MRS. BANKS: Yes.

7
APPELLANT: So, as I go down, there was a police car there. PROSECUTOR: So what did you do?
APPELLANT: So I went to the front, and when I went to the front, the officer down there pulled his pistol and
he told me to hold it right there on the edge of the roof.
90 Nev. 255, 263 (1974) Edwards v. State
v. State, 85 Nev. 679, 462 P.2d 526 (1969). To hold otherwise would, we think, be to say that
as a matter of law no participant in a burglary is ever subject to conviction so long as his
accomplice supports his claim of innocence. Were we to adopt such a view here, then such a
defense must also be honored as a matter of law, even if a defendant were captured inside
looted premises. Manifestly, appellant's story would not, inherently, be significantly less
plausible had he been captured inside, rather than while attempting to flee from the roof
where entry was accomplished.
[Headnote 8]
2. Appellant also contends the prosecutor improperly commented on appellant's
exercise of his Fifth Amendment right to remain silent, by asking witnesses if appellant had
explained his presence at the scene. As we previously noted, some courts consider Miranda
v. Arizona, 384 U.S. 436 (1966), to forbid reference to the fact that the privilege to remain
silent was claimed in the face of custodial interrogation, and reverse without regard to the rule
of harmless error. Shepp v. State, 87 Nev. 179, 181, 484 P.2d 563, 564 (1971). Nonetheless,
we continue to believe, as we said in Shepp, that mere reference to such silence, without
more, does not mandate an automatic reversal, and that the consequences should be
governed by a consideration of the trial as a whole. 87 Nev. at 181, 484 P.2d at 564. For
many reasons, some of which we mentioned in Shepp, we believe that in this case such
references had no impact on the trial, and were therefore harmless.
[Headnote 9, 10]
3. Finally, appellant contends the district court improperly permitted the prosecutor to
impeach appellant, by asking if he had previously been convicted of a felony. Nevada's
Evidence Code, adopted in 1971, provides that with specified limitations, evidence of a
felony conviction is admissible to attack a witness's credibility. NRS 50.095. Still, appellant
urges that a trial judge has discretion to deny such impeachment, and that the court here erred
by failing to exercise its discretion.
We agree that although our Evidence Code declares a prior felony conviction may be
admitted for impeachment, the Code also contemplates that a court should exclude such
evidence, if its probative value is substantially outweighed by danger of unfair prejudice,
confusion of the issues, or misleading the jury, NRS 48.035(1); or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence, NRS +8.03S{2).
90 Nev. 255, 264 (1974) Edwards v. State
48.035(2). Other courts applying similar provisions likewise recognize that, when timely
called to do so by appropriate objection, a trial court should weigh such considerations.
People v. Beagle, 492 P.2d 1 (Cal. 1972); Brown v. United States, 370 F.2d 242 (D.C.Cir.
1966); Luck v. United States, 348 F.2d 763 (D.C.Cir. 1965). If any declaration this court
made before adoption of the Evidence Code may be read otherwise, it is disapproved.
Nonetheless, the Code also provides that error may not ordinarily be predicated upon a
ruling admitting evidence, unless a timely objection or motion to strike appears of record,
stating the specific ground of objection. NRS 47.040(1)(a). Thus, if a defendant seeks to
raise and preserve a claim that admitting a prior felony conviction for impeachment purposes
would be outweighed by other considerations, he should bring such considerations to the trial
court's attention, stating specific grounds of objection as our law requires. This was not done.
Here, no plain error affecting substantial rights appears. NRS 47.040(1). Upon review of
the record, we think defense counsel competently represented appellant, proffering
appropriate objections whenever any realistic prospect existed that the court might allow
them.
Affirmed.
Mowbray, Batjer, and Zenoff, JJ., concur.
Thompson, C. J., dissenting:
This court is requested to release Charles Ray Edwards from prison for the reason that his
guilt of the offense of burglary was not proved beyond a reasonable doubt. The evidence
against him was wholly circumstantial and the issue is whether the circumstances were
sufficiently strong to exclude every reasonable hypothesis of innocence. I would hold that
they were not of that character and, therefore, would reverse his conviction and order his
immediate release from confinement. State v. Gray, 23 Nev. 301, 303, 46 P. 801 (1896); State
v. Cerfoglio, 46 Nev. 332, 350, 213 P. 102 (1923); Roybal v. People, 496 P.2d 1019 (Colo.
1972).
At approximately 5:30 a.m. on July 8, 1972, police officers, in response to a silent burglar
alarm, were dispatched to the premises of Roxy's Cleaners and Laundry in Las Vegas. Upon
arrival, they saw Edwards on the roof of that establishment. One of the officers climbed onto
the roof, noticed an open vent and a pile of clothing five to seven feet from the vent. Edwards
was immediately arrested for burglary. His acquaintance, James Bruce Bolden, was caught
inside the building with money from the cash register in his possession.
90 Nev. 255, 265 (1974) Edwards v. State
James Bruce Bolden, was caught inside the building with money from the cash register in his
possession. He also was arrested for burglary and subsequently pleaded guilty.
At the trial of Edwards, Bolden testified that he, Bolden, had entered the cleaners through
the roof vent and had place the clothes on the roof himself. Edwards testified that shortly
before the incident, and while drinking with his wife and Bolden at Henry's Bar, he had
advised Bolden against looking at Roxy's. Nonetheless, he learned soon thereafter that
Bolden was seen on the roof of Roxy's. Consequently he, Edwards, left the bar to get Bolden
off the roof.
Dusting for fingerprints around the vent and cash register was not productive. Edwards
was not seen to either enter or leave the building. He was not in actual possession of the
clothes on the roof of the building or of any article belonging to the cleaning establishment or
its customers. Cf. State v. Watkins, 11 Nev. 30, 37 (1876). Neither was there direct evidence
that he aided or abetted Bolden in committing the burglary. NRS 195.020; State v. Logan, 59
Nev. 24, 31, 83 P.2d 1035 (1938); McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971).
Edwards' presence on the roof of Roxy's near the pile of clothes along with his
acquaintance with Bolden were, without question, highly suspicious circumstances. Yet, they
do not prove beyond a reasonable doubt his entry into the building. Such proof is required as
an essential element of burglary. NRS 205.060(1). Of course, circumstantial evidence may
possess such strength as to establish entry beyond a reasonable doubt. State v. Watkins, supra
(where the defendant was in actual possession of articles which could only have been
obtained by entering the structure); Burkett v. State, 82 Nev. 383, 418 p.2d 991 (1966). That
character of evidence does not appear in the record before us.
In 1923, this court wrote: . . . there can be no conviction where the circumstances, though
they create a strong suspicion of guilt, are as consistent with the theory of innocence as they
are with the theory of guilt. In this case the State's testimony is consistent with the theory of
guilt, but is also consistent with that of innocence. For the reason given, the verdict and
judgment are reversed, and the trial court is directed to dismiss the case and discharge the
defendant. State v. Cerfoglio, 46 Nev. 332, 350, 213 P. 102 (1923).
Proof that stands no higher than the level of suspicion, surmise or conjecture has
insufficient substance to form the basis for a conviction beyond a reasonable doubt.
90 Nev. 255, 266 (1974) Edwards v. State
for a conviction beyond a reasonable doubt. Roybal v. People, 496 P.2d 1019 (Colo. 1972).
Respectfully, I dissent.
____________
90 Nev. 266, 266 (1974) Jackson v. State
ROBERT FRANKLIN JACKSON, Appellant, v.
STATE OF NEVADA, Respondent.
No. 7124
July 8, 1974 523 P.2d 850
Appeal from a judgment and conviction, Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
The Supreme Court held that officers who, at 1:30 a.m., observed defendant leave
apartment building and drop plastic bag when he observed officers, were justified in stopping
and detaining defendant.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Stott, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
Arrest.
Officers who, at 1:30 a.m., observed defendant leave apartment building and drop plastic bag when he
observed officers, were justified in stopping and detaining defendant. NRS 171.123, subd. 1.
OPINION
Per Curiam:
While on a routine patrol at approximately 1:30 a.m. on the morning of August 7, 1970, in
the vicinity of Jackson and H Streets in Las Vegas, Nevada, two police officers observed the
appellant leaving an apartment complex. There were no other persons in the vicinity. As he
walked along the sidewalk on H Street the officers observed a plastic baggie in his hand.
Appellant looked in the direction of the police officer, dropped the baggie and proceeded
along the sidewalk to a car parked at the curbside.
90 Nev. 266, 267 (1974) Jackson v. State
Keeping appellant under constant visual surveillance, the officers turned their patrol car
around and pulled in behind the parked vehicle, commanded him to step away from the
vehicle, and requested his identification. One of the officers immediately retrieved the
discarded plastic baggie, opened it and found several toy balloons containing capsules which
appeared to be heroin. Appellant was advised that he was under arrest for possession of
narcotics.
In this appeal Jackson urges that his identification by the officers stemmed from an illegal
stop and detention. This contention is without merit.
NRS 171.123(1) allows a police officer to detain any person whom such officer
encounters under circumstances which reasonably indicate that such person has committed, is
committing or is about to commit a crime. Here the conduct of the appellant was sufficient
to lead the officers reasonably to conclude in light of his [their] experience that criminal
activity may [might] be afoot. . . . Terry v. Ohio, 392 U.S. 1, 30 (1967). See also Wright v.
State, 88 Nev. 460, 499 P.2d 1216 (1972).
The record contains substantial evidence to support the finding of probable cause to stop
and detain. Terry v. Ohio, supra, Wright v. State, supra.
NRS 171.123(1) requires only a reasonable indication of criminal activity to justify a stop
and detention. Here the officers, with some training in the detection of narcotics violations,
were reasonably prompted to stop and detain appellant upon viewing his act of dropping the
plastic baggie when he became aware of their presence.
The judgment and conviction is affirmed.
____________
90 Nev. 267, 267 (1974) Hoffman v. District Court
GEORGE HOFFMAN, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, Respondent.
No. 7340
July 8, 1974 523 P.2d 848
Original petition for a Writ of Mandamus.
Action was brought for alleged breach of contract to sell real estate. A motion by a seller
for summary judgment was denied by the district court and he sought by original
proceeding in the Supreme Court to compel the entry of a summary judgment by
mandamus. The Supreme Court, Batjer, J., held that mandamus will lie to compel entry of
a summary judgment where the law and facts so require, but that questions of fact as to
whether or when an escrow was opened, whether there was a breach of offer and
acceptance agreement, and if so who caused the breach, whether the was material or
minor and what interpretation the parties placed upon the agreement precluded summary
judgment.
90 Nev. 267, 268 (1974) Hoffman v. District Court
denied by the district court and he sought by original proceeding in the Supreme Court to
compel the entry of a summary judgment by mandamus. The Supreme Court, Batjer, J., held
that mandamus will lie to compel entry of a summary judgment where the law and facts so
require, but that questions of fact as to whether or when an escrow was opened, whether there
was a breach of offer and acceptance agreement, and if so who caused the breach, whether the
was material or minor and what interpretation the parties placed upon the agreement
precluded summary judgment.
Writ denied.
Wiener, Goldwater & Galatz, R. Gardner Jolley and J. Charles Thompson, of Las Vegas,
of Petitioner.
John G. Spann, of Las Vegas, for Respondent.
1. Mandamus.
Mandamus will lie to compel entry of summary judgment where law and facts so require, but legal right
to entry of summary judgment must be clear, complete and not open to reasonable doubt; it will lie only
where there remain no genuine issues of fact to be resolved and where it is compelled as a matter of law.
2. Escrows.
For valid escrow agreement, there must be contract between seller and buyer agreeing to conditions of
deposit, there must be delivery of items and deposit to escrow agent, and he must agree to perform function
of receiving and disbursing the items.
3. Judgment.
In action against real property owners for alleged breach of contract to sell, questions of fact as to
whether or when escrow was opened, whether there was breach of offer and acceptance agreement, and if
so who caused breach, whether breach was material or minor and what interpretation parties placed upon
the agreement precluded summary judgment.
OPINION
By the Court, Batjer, J.:
On February 8, 1972 an offer and acceptance agreement for the sale of real property was
executed by the Petitioner, George Hoffman, as the seller, and Everett A. McGhie, as the
buyer. The agreement provided for the release to the seller, within five days after escrow
opened, of the sum of $250 from the $500 earnest money deposited with Norman Kaye Real
Estate Company.
No money was ever release to the seller. When documents were sent to him on or about
March 9, 1972, he refused to sign them and complete the sale, contending that there had
been a breach of the offer and acceptance agreement because he had not received $250
within five days after escrow had opened on February 2S, 1972.
90 Nev. 267, 269 (1974) Hoffman v. District Court
sign them and complete the sale, contending that there had been a breach of the offer and
acceptance agreement because he had not received $250 within five days after escrow had
opened on February 28, 1972.
Everett A. McGhie, as the agent of Chermac Builders and Norman Kaye Real Estate
Company filed a complaint against George Hoffman and Margie Hoffman, seeking damages,
and attorney's fee and a real estate commission. Only George Hoffman answered and then he
moved for summary judgment upon the grounds that the plaintiff had failed to live up to the
conditions of the offer and acceptance agreement, and as a result had forfeited the moneys on
deposit and was precluded from maintaining this action.
After a hearing, the district court denied Hoffman's motion for summary judgment. He
now seeks a writ of mandamus in this court to compel the district court to grant summary
judgment.
[Headnote 1]
Mandamus will lie to compel entry of a summary judgment where the law and the facts so
require. Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971); Dzack v. Marshall, 80 Nev.
345, 393 P.2d 610 (1964). However, the legal right of a petitioner to the entry of a summary
judgment must be clear, complete and not open to reasonable doubt. Garaventa v. Garaventa,
61 Nev. 407, 131 P.2d 513 (1942). It will lie only where there remains no genuine issues of
fact to be resolved and where it is compelled as a matter of law. Berryman v. Int'l. Bhd. of
Elec. Workers, 85 Nev. 13, 449 P.2d 250 (1969); Whiston v. McDonald, 85 Nev. 508, 458
P.2d 107 (1969); Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676 (1962).
The offer and acceptance agreement is ambiguous regarding the question when an escrow
was to open. Petitioner relies on the conclusory answer to interrogatories given by Everett A.
McGhie to the effect that escrow opened on February 28, 1972.
[Headnote 2,3]
The threshold question is whether an escrow was ever opened. The plaintiffs, as the parties
against whom summary judgment was requested must be afforded all favorable intendments.
Taken in this favorable light, the facts found in this case fall completely short of establishing
the existence of an escrow. Polk v. MacMillan, 87 Nev. 526, 490 P.2d 218 (1971); Abbott v.
Miller, 80 Nev. 174, 390 P.2d 429 (1964).
90 Nev. 267, 270 (1974) Hoffman v. District Court
Although the plaintiffs below alleged in their complaint that as a result of the execution of
said offer and acceptance agreement, plaintiffs opened an escrow with the Stewart Title
Insurance Company of Nevada to handle the sale of said land, the petitioner, in his answer
denied that allegation. The record contains no escrow instructions and there is nothing to
indicate that Stewart Title Insurance Company of Nevada ever accepted the alleged escrow.
A valid escrow agreement is a triangular arrangement. First there must be a contract
between the seller and buyer agreeing to the conditions of a deposit, then there must be
delivery of the items on deposit to the escrow agent, and he must agree to perform the
function of receiving and dispersing the items. The agreement by the seller and buyer to all
the terms of the escrow instructions and the acceptance by the escrow agent of the position of
depository create the escrow. Kennedy v. District-Realty Title Insurance Corp., 306 A.2d. 655
(D.C.Cir. 1973); House v. Lala, 4 Cal.Rptr. 366 (Cal.App. 1960); Cloud v. Winn, 303 P.2d
305 (Okla. 1956); Security-First Nat. Bank of Los Angeles v. Clark, 48 P.2d 167 (Cal.App.
1935); Home Ins. Co. of New York v. Wilson, 275 S.W. 691 (Ky. 1925).
Without an escrow the conclusory admission by McGhie that one was opened on February
28, 1972, is meaningless. Whether an escrow was created is an undetermined question of fact
not answered in this record. Cloud v. Winn, supra.
Furthermore, whether there was a breach of the offer and acceptance agreement, and if so
who caused the breach, whether the breach was material or minor, and what interpretation the
parties placed upon the agreement, are all unresolved questions of fact.
Petitioner's prayer that a writ of mandamus issue is denied.
Thompson, C.J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
____________
90 Nev. 270, 270 (1974) Johnson v. Johnson
ROBERT G. JOHNSON, Appellant, v. PATRICIA
JANE JOHNSON, Respondent.
No. 7325
July 17, 1974 524 P.2d 544
Appeal from a judgment for the payment of educational expenses; Eighth Judicial District
Court, Clark County; Leonard I. Gang, Judge.
90 Nev. 270, 271 (1974) Johnson v. Johnson
Proceeding on motion of mother, awarded custody of children by divorce decree which
provided for their support and required the father to pay college expenses of each child, for an
order to compel payment of expenses of oldest child who was attending college. The district
court entered an order compelling payment of college expenses and the father appealed. The
Supreme Court held that the objection for the first time on appeal that the district court should
not have considered the supportive papers since they were not in affidavit form was too late.
Affirmed.
George E. Graziadei and Jeffrey D. Sobel, of Las Vegas, for Appellant.
Rose, Norwood & Edwards, Ltd., of Las Vegas, for Respondent.
Divorce.
Objection for the first time on appeal that district court, hearing motion to compel father to pay college
expenses of child in accordance with support provision of divorce decree, had no right to consider the
supportive papers which were not in affidavit form came too late and his acquiescence in court below to
consideration of such documents waived right to complain.
OPINION
Per Curiam:
A divorce decree awarded the mother, Patricia, custody of seven children, provided for
their support, and ordered the father also to pay the college expenses of each child.
Subsequently, the mother moved the court for an order to compel payment for the expenses of
the oldest child who was attending college. The motion was supported by informational
letters from deans of the college as to the child's academic standing, and by the child's written
statement of expenses. The father, his counsel, and the mother's counsel appeared at the
hearing on the motion. No objection was made to the form or content of the letters and
statement offered in support of the motion. The court entered judgment against the father for
college expenses.
On this appeal it is asserted, for the first time, that the district court had no right to
consider the supportive papers since they were not in affidavit form. The objection comes too
late. His acquiescence below waived any right to later complain.
90 Nev. 270, 272 (1974) Johnson v. Johnson
Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419, 425, 488 P.2d 917 (1971);
Scapecchi v. Harold's Club, 78 Nev. 290, 297, 371 P.2d 815 (1962).
Affirmed.
____________
90 Nev. 272, 272 (1974) State ex re. List v. County of Douglas
THE STATE OF NEVADA, Ex Rel. Robert List, Attorney General of the State of Nevada,
Petitioner, v. THE COUNTY OF DOUGLAS, a Political subdivision of the State of Nevada,
and ROY GODECKE, HAROLD DAYTON and CHARLES MENELEY, Individually and as
County Commissioners of Douglas County, Respondents.
No. 7683
July 22, 1974 524 P.2d 1271
Original proceeding for a writ of mandate.
Attorney General commenced an original proceeding, on behalf of people of state, for a
writ of mandate to compel county to pay its apportioned share of expenses to Tahoe Regional
Planning Agency in order that the Agency might be assisted in carrying out its purposes and
activities. The Supreme Court, Thompson, C. J., held that Attorney General was authorized to
institute such proceeding, that mandamus was a proper procedural vehicle, that Tahoe
Regional Planning Compact was constitutional and imposed a clear duty upon county to pay
to Tahoe Regional Planning Agency the sums allotted as county's apportioned share of
expenses, and that petition would be dismissed against county commissioners individually.
Writ granted.
Robert List, Attorney General, and James H. Thompson, Chief Deputy Attorney General,
for Petitioner.
Howard McKibben, District Attorney, Douglas County, for Respondents.
1. Attorney General.
Authority of Attorney General to commence a civil proceeding extends to a proceeding in the Supreme
Court, and is not limited to proceeding in the district and justice's courts.
90 Nev. 272, 273 (1974) State ex re. List v. County of Douglas
to proceeding in the district and justice's courts. NRS 228.170, subds. 1, 2.
2. Mandamus.
Although Tahoe Regional Planning Agency itself could have instituted proceeding to compel county to
pay its apportioned share of expenses of Agency, state was not without standing to do so. NRS 34.170,
228.170, 277.200, arts. 3, 6(e); NRCP 17(a).
3. Mandamus.
Attorney General, on behalf of people of state, was authorized to institute original proceeding for a writ
of mandate to compel county to pay its authorized share of expenses to Tahoe Regional Planning Agency
in order that the Agency could be assisted in carrying out its purposes and activities. NRS 34.170,
228.170, 228.170, subds. 1, 2, 277.200, arts. 3, 6(e); NRCP 17(a).
4. Mandamus.
Mere existence of other possible remedies does not necessarily preclude mandamus.
5. Mandamus.
Original proceeding for a writ of mandate was a proper procedural vehicle to compel county to pay its
apportioned share of expenses to Tahoe Regional Planning Agency in order that the Agency could be
assisted in carrying out its purposes and activities. NRS 277.200, arts. 1, 1(c), 3, 4, 6, 7.
6. States.
Legislative determination that it was expedient and advisable to enter into an interstate compact with
California in order to preserve integrity of Lake Tahoe Basin as a natural resource was properly within its
province to make.
7. Statutes.
Preservation of region of Lake Tahoe Basin as a natural resource for enjoyment of all people set Tahoe
Regional Planning Compact apart from embrace of constitutional commands against local or special laws.
Const. art. 4, 20, 21.
8. Statutes.
Power of initiative and referendum with respect to local, special and municipal legislation was not affected
by Tahoe Regional Planning Compact. NRS 277.200, arts. 1,(c), 3, 4, 6, 7; Const. art. 19, 4.
9. Constitutional Law
County, as a political subdivision of state, lacked standing to interpose Fourteenth Amendment
challenges to state action. U.S.C.A.Const. Amend. 14.
10. Constitutional Law.
Principle of one man, one vote has no relevancy to appointive boards.
11. Constitutional Law.
Doctrine prohibiting delegation of legislative power is not offered if legislature makes fundamental
policy decisions, and leaves to another body the task of achieving legislative goals.
12. Constitutional Law; States.
Tahoe Regional Planning Compact was not unconstitutional on theory that it offended doctrine
prohibiting delegations of legislative power.
90 Nev. 272, 274 (1974) State ex re. List v. County of Douglas
on theory that it offended doctrine prohibiting delegations of legislative power. NRS 227.200, arts. 1,
1(c), 3, 4, 6, 7.
OPINION
By the Court, Thompson, C.J.:
This original proceeding, commenced by the Attorney General on behalf of the people of
the state of Nevada, seeks a writ of mandate to compel Douglas County to pay its apportioned
share of expenses to the Tahoe Regional Planning Agency in order that the Agency may be
assisted in carrying out its purposes and activities.
The States of Nevada and California entered into the Tahoe Regional Planning Compact
which the Congress of the United States has approved. 83 Stats. 360. The findings and
declarations of policy are specified in Article I of the Compact (NRS 277.200) in the
following words:
(a) It is found and declared that the waters of Lake Tahoe and other resources of the Lake
Tahoe region are threatened with deterioration or degeneration, which may endanger the
natural beauty and economic productivity of the region.
(b) It is further declared that by virtue of the special conditions and circumstances of the
natural ecology, developmental pattern, population distribution and human needs in the Lake
Tahoe region, the region is experiencing problems of resource use and deficiencies of
environmental control.
(c) It is further found and declared that there is a need to maintain an equilibrium between
the region's natural endowment and its manmade environment, to preserve the scenic beauty
and recreational opportunities of the region, and it is recognized that for the purpose of
enhancing the efficiency and governmental effectiveness of the region, it is imperative that
there be established an areawide planning agency with power to adopt and enforce a regional
plan of resource conservation and orderly development, to exercise effective environmental
controls and to perform other essential functions, as enumerated in this title.
As noted in paragraph (c) just quoted, it was, by the two states and Congress, deemed
imperative to establish an area-wide planning agency with the power to adopt and enforce a
regional plan of resource conservation and orderly development, to exercise effective
environmental controls and to perform other essential functions. Accordingly, the Compact
established the Tahoe Regional Planning Agency, specified its membership, delineated its
powers, and provided a method by which the activities of the Agency were to be financed.
90 Nev. 272, 275 (1974) State ex re. List v. County of Douglas
membership, delineated its powers, and provided a method by which the activities of the
Agency were to be financed. See Articles III, IV, VI and VII of the Compact.
With regard to financing the activities of the Agency, the Compact provides that on or
before December 30 of each calendar year the Agency shall establish the amount of money
necessary to support its activities for the next succeeding fiscal year commencing July 1 or
the following year. The agency shall apportion not more than $150,000 of this amount among
the counties within the region on the same ration to the total sum required as the full cash
valuation of taxable property within the region in each county bears to the total full cash
valuation of taxable property within the region. Each county in California shall pay the sum
allotted to it by the Agency from any funds available therefor and may levy a tax on any
taxable property within its boundaries sufficient to pay the amount so allocated to it. Each
county in Nevada shall pay such sum from its general fund or from any other money available
therefor. . . . The Agency shall then allot such amount among the several counties . . . and
each county shall pay such amount.
With respect to Douglas County, the amount apportioned to it by the Agency for the
1973-74 fiscal year is 15.55 percent of $150,000 or the sum of $23,325, of which amount the
County has refused to pay $11,662.50. Hence, this proceeding to compel payment. The
County challenges the constitutionality of the Compact on several grounds, thereby seeking to
justify its refusal to contribute its proportionate share to the Agency. Before reaching the
constitutional challenges, however, we first must resolve the County's attack upon the
authority of the state through the Attorney General to bring this proceeding, and the propriety
of mandamus.
1. The Attorney General is a constitutional officer in the executive branch of our
government and shall perform such duties as may be prescribed by law. Nev. Const. art. 5,
19. The Constitution does not itself define those duties. Consequently, they are to be found
only in legislative enactment. Ryan v. District Court, 88 Nev. 638, 642, 503 P.2d 842 (1972).
[Headnote 1]
a. The main contention of Douglas County is that the legislature has not granted authority
to the Attorney General to commence a civil proceeding in the Supreme Court, but rather, has
limited his authority to commence such a proceeding to the district and justice's courts. This
contention rests upon the wording of NRS 22S.170.1 Subsection 1 of the statute expressly
grants authority to commence suit in "any court."
90 Nev. 272, 276 (1974) State ex re. List v. County of Douglas
wording of NRS 228.170.
1
Subsection 1 of the statute expressly grants authority to
commence suit in any court. That authority is not diminished or limited by the permissive
language of subsection 2 mentioning the district and justice's court. The highest legal officer
of this state has access to and may invoke the original jurisdiction of the state's highest court.
[Headnote 2]
b. Subordinately, Douglas County argues that since the Tahoe Regional Planning Agency
is, by the Compact, established as a separate legal entity (Art. III) with the power to bring an
action in court (Art. VI(e)), that Agency, rather than the state, is the real party in interest.
2
Although the Agency itself may have instituted this proceeding, it does not follow that the
state is without standing to do so. The interest of the state is manifest. It is a party to the
interstate Compact with California and definitely concerned with making certain that its
obligations thereunder are honored. As noted by the California Supreme Court, the state, as
a party to the interstate Compact, and as an entity which contributes funds to the Agency, has
an important interest in securing the success of the Agency. People ex rel. Younger v.
County of El Dorado, 487 P.2d 1193, 1199 (Cal. 1971).
[Headnote 3]
Accordingly, we hold that the Attorney General, on behalf of the people of the state of
Nevada, is authorized to institute this proceeding.
[Headnote 4]
2. The decision as to whether an application for a writ of mandate will be entertained lies
within the discretion of the court.
3
Usually, this court prefers that such an application be
addressed to the discretion of the appropriate district court, since that court also is
invested with the power of mandamus.
____________________

1
NRS 228.170: 1. Whenever the governor shall direct, or, in the opinion of the attorney general, to protect
and secure the interest of the state it is necessary that a suit be commenced or defended in any court, the attorney
general shall commence such action or make such defense.
2. Such actions may be instituted in any district court in the state, or in any justice's court of the proper
county.
As noted in Ryan v. District Court, supra, this section embraces only civil matters and does not bear upon
criminal prosecutions. Id. at 641.

2
NRCP 17(a): Every action shall be prosecuted in the name of the real party in interest. . . . .
NRS 34.170: The writ . . . shall be issued upon affidavit, on the application of the party beneficially
interested.

3
NRS 34.160: A writ may be issued by the Supreme Court. . . . (Underscoring added.)
NRAP 21(b): If the court is of the opinion that the writ should not be granted, it may deny the petition. . . .
90 Nev. 272, 277 (1974) State ex re. List v. County of Douglas
addressed to the discretion of the appropriate district court, since that court also is invested
with the power of mandamus. Nev. Const. art. 6, 6; NRS 34.160. However, since the
counties of Washoe, Carson City (Ormsby), and Douglas border the Nevada side of Lake
Tahoe, and since the district courts serving those counties may possibly have different views
about the issue here tendered, we chose to entertain this application rather than to direct its
filing in a district court. Moreover, since this application concerns the integrity of the Tahoe
Regional Planning Compact, a matter of grave public concern, we thought it wise to entertain
it and avoid the delay which a different course would entail. And, of course, it is established
that the mere existence of other possible remedies does not necessarily preclude mandamus.
Armstrong v. State Bd. Examiners, 78 Nev. 495, 498, 376 P.2d 492 (1962).
[Headnote 5]
One function of a writ of mandate is to compel the performance of an act which the law
especially enjoins as a duty resulting from an office. NRS 34.160. The Compact provides that
each county in Nevada shall pay the sum allotted to it by the Agency. Art. VII(a). No
discretion is granted to the counties. Payment, therefore, is a duty enjoined by law and
amenable to the remedy of mandamus.
3. Several challenges premised upon certain provisions of our Nevada Constitution are
tendered. Additionally, the County contends that the Interstate Compact violates the Due
Process and Equal Protection Clauses of the Federal Constitution. Finally, it is asserted that
there is an unlawful delegation of legislative power to the Tahoe Regional Planning Agency.
[Headnote 6]
The power of Nevada and California, with the consent of Congress, to enter into the
Interstate Compact is not questioned. U.S. Const. art. 1, 10. The Nevada legislative
determination that it was expedient and advisable to so contract with California in order to
preserve the integrity of the Lake Tahoe Basin as a natural resource was properly within its
province to make. Marlette Lake Co. v. Sawyer, 79 Nev. 334, 338, 383 P.2d 369 (1963).
Since the Basin lies within two states, the concept of the Compact is regional in character.
Its purpose is to protect and preserve the entire Basin for the benefit, use and enjoyment of
present and future generations. This purpose is to be achieved through the auspices of the
Tahoe Regional Planning Agency. That Agency is to provide for the region as a whole the
planning, conservation and resource development essential to accommodate a growing
population within the region's relatively small area without destroying the environment."
90 Nev. 272, 278 (1974) State ex re. List v. County of Douglas
planning, conservation and resource development essential to accommodate a growing
population within the region's relatively small area without destroying the environment.
People ex rel. Younger v. County of Eldorado, 487 P.2d 1193, 1196 (Cal. 1971).
Our Constitution explicitly recognizes the importance of protecting and preserving the
natural resources of this state. Nev. Const. art. 9, 3. The second paragraph of that article and
section enables the legislature, without regard to the debt ceiling established by the first
paragraph thereof, to enter into a Compact with another state for the purpose of protecting
and preserving property or natural resources located within the Geographical limits of
Nevada. Marlette Lake Co. v. Sawyer, 79 Nev. 334, 338, 383 369 (1963).
The regional character of the Compact and the constitutional recognition of the need for
legislative power to preserve and protect the natural resources of this state, provide the
background for our evaluation of the several challenges to the Compact proffered by Douglas
County.
a. Our state constitution declares, among other things, that the legislature shall not pass
local or special laws for the regulation of county and township business, for the punishment
of crimes and misdemeanors, or for the assessment and connection of taxes for state, county
and township purposes. All such laws are to be general and of uniform application throughout
the state. Nev. Const. art. 4, 20, 21.
The Interstate Compact does empower the Tahoe Regional Planning Agency to enact
ordinances concerning many matters including subdivision, zoning, was disposal, air
pollution, water purity, outdoor advertising, and the Compact does declare that a violation of
any ordinance of the Agency is a misdemeanor. Moreover, the Nevada counties bordering
Lake Tahoe are to pay apportioned shares to the Agency from their general funds.
Consequently, Douglas County contends that the Compact necessarily violates the
aforementioned constitutional prohibitions.
Essentially, the same contentions were presented to the California Supreme Court by the
California county of El Dorado and were, by that court, flatly rejected. People ex rel. Younger
v. County of El Dorado, 487 P.2d 1193 (Cal. 1971). That court repeatedly emphasized the
fact that the Compact was enacted to achieve regional goals in conserving the natural
resources of the entire Lake Tahoe Basin, rather than local goals and, therefore, did not offend
substantially similar provisions of the California constitution.
90 Nev. 272, 279 (1974) State ex re. List v. County of Douglas
The following statement of the California court in People ex rel. Younger v. County of El
Dorado, supra, is especially apt: The water that the Agency is to purify cannot be confined
within one county or state; it circulates freely throughout Lake Tahoe. The air which the
Agency must preserve from pollution knows no political boundaries. The wildlife which the
Agency should protect ranges freely from one local jurisdiction to another. Nor can the
population and explosive development which threatens the region be contained by any of the
local authorities which govern parts of the Tahoe Basin. Only an agency transcending local
boundaries can devise, adopt and put into operation solutions for the problems besetting the
region as a whole. Indeed, the fact that the Compact is the product of the cooperative efforts
and mutual agreement of two states is impressive proof that its subject matter and objectives
are of regional rather than local concern. Id. at 1201.
[Headnote 7]
We agree with the quoted statement, and hold that the preservation of the region of the
Lake Tahoe Basin as a natural resource for the enjoyment of all people sets it apart from the
embrace of the commands of art. 4, 20 and 21 of our State Constitution. Were we to rule
otherwise, every interstate compact proposing to protect and preserve a common natural
resource through an agency empowered to enact laws would be a nullity. We are wholly
unable to attribute such an intention to those who wrote the prohibitions of 20 and 21 of
art. 4.
[Headnote 8]
b. Nev. Const. art. 19, 4, reserves to the registered voters of each county and
municipality the powers of initiative and referendum as to all local, special and municipal
legislation. . . . As just noted, ordinances enacted by the Tahoe Regional Planning Agency
are not local or special laws within the contemplation of art. 4, 20. The same reasoning
applies with equal force to deny the contention of Douglas County that the power of initiative
and referendum with respect to local, special and municipal legislation is affected by the
Compact.
c. The Fourteenth Amendment to the United States Constitution commands that no state
shall deprive any person of life, liberty or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the laws. Although Douglas County
contends that these prohibitions are violated by the Compact, it lacks standing to challenge
Nevada on these grounds.
90 Nev. 272, 280 (1974) State ex re. List v. County of Douglas
[Headnote 9]
Douglas County, as a political subdivision of the State of Nevada, may not invoke the
proscriptions of the Fourteenth Amendment in opposition to the will of its creator. Williams
v. Baltimore, 289 U.S. 36 (1933); Trenton v. New Jersey, 262 U.S. 182 (1923). It may not
complain of state action upon the ground that it has been deprived of its property without due
process of law. The basic principles were summarized in the case of Hunter v. Pittsburgh, 207
U.S. 161 (1907):
It would be unnecessary and unprofitable to analyze these decisions or quote from
the opinions rendered. We think the following principles have been established by them
and have become settled doctrines of this court, to be acted upon wherever they are
applicable. Municipal corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers of the state as may
be entrusted to them. For the purpose of executing these powers properly and efficiently
they usually are given the power to acquire, hold, and manage personal and real
property. The number, nature and duration of the powers conferred upon these
corporations and the territory over which they shall be exercised rests in the absolute
discretion of the State. Neither their charters, nor any law conferring governmental
powers or vesting in them property to be used for governmental purposes, or
authorizing them to hold or manage such property of exempting them from taxation
upon it, constitutes a contract with the State within the meaning of the Federal
Constitution. The State, therefore, at its pleasure may modify or withdraw all such
powers, may take without compensation such property, hold it itself, or vest it in other
agencies, expand or contract the territorial area, unite the whole or a part of it with
another municipality, repeal the charter and destroy the corporation. All this may be
done, conditionally or unconditionally, with or without the consent of the citizens, or
even against their protest. In all these respects the State is supreme, and its legislative
body, conforming its action to the state constitution, may do as it will, unrestrained by
any provision of the Constitution of the United States. Although the inhabitants and
property owners may by such changes suffer inconvenience, and their property may
be lessened in value by the burden of increased taxation, or for any other reason,
they have no right by contract or otherwise in the unaltered or continued existence
of the corporation or its powers, and there is nothing in the Federal Constitution
which protects them from these injurious consequences.
90 Nev. 272, 281 (1974) State ex re. List v. County of Douglas
by such changes suffer inconvenience, and their property may be lessened in value by
the burden of increased taxation, or for any other reason, they have no right by contract
or otherwise in the unaltered or continued existence of the corporation or its powers,
and there is nothing in the Federal Constitution which protects them from these
injurious consequences. The power is in the State and those who legislate for the State
are alone responsible for any unjust or oppressive exercise of it. Id. at 178-179.
[Headnote 10]
Although the County's lack of standing to interpose Fourteenth Amendment challenges to
state action is dispositive, we add a caveat with regard to the challenge premised upon the
equal protection clause. It is asserted that equal protection is denied because the method of
selecting the governing body of the Tahoe Regional Planning Agency violates the one man,
one vote rule. The members of the governing board are appointed. The principle of one
man, one vote has no relevancy to appointive boards. Sailors v. Board of Education, 387
U.S. 105 (1967); Hadley v. Junior College District, 397 U.S. 50, 58 (1970); People ex rel.
Younger v. County of El Dorado, 487 P.2d 1193, 1208, 1209 (Cal. 1971).
[Headnote 11, 12]
d. The final attack upon the Compact is that the power therein granted to the Tahoe
Regional Planning Agency is an unconstitutional delegation of legislative power for want of
sufficient standards. The doctrine prohibiting delegations of legislative power is not offended
if the legislature makes the fundamental policy decisions, and leaves to another body the task
of achieving the legislative goals. People ex rel. Younger v. County of El Dorado, 487 P.2d
1193, 1210 (Cal. 1971); Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 127, 379 P.2d 466
(1963); McLaughlin v. L.V.H.A., 68 Nev. 84, 96, 227 P.2d 206 (1951).
The legislatures of Nevada and California, and the Congress of the United States have
declared the policy and the goals to be achieved by the Compact in Article 1 thereof. Such
goals are to be attained by the formulation of a regional plan (Article V(b)), powers are
granted to effectuate such plan (Article VI), and the duty to carry it out is delegated to the
Agency. This scheme is common and quite permissible. Urban Renewal Agency v. Iacometti,
supra; McLaughlin v. L.V.H.A., supra.
We, therefore, conclude that the Tahoe Regional Planning Compact is constitutional, and
imposes a clear duty upon Douglas County to pay to the Tahoe Regional Planning Agency
the sums allotted as the County's apportioned share of expenses.
90 Nev. 272, 282 (1974) State ex re. List v. County of Douglas
Compact is constitutional, and imposes a clear duty upon Douglas County to pay to the Tahoe
Regional Planning Agency the sums allotted as the County's apportioned share of expenses.
Accordingly, we order the issuance of a peremptory writ of mandate to compel such payment.
3. We also are requested to issue a writ of prohibition. The petitioner alleges that Douglas
County is acting in excess of its jurisdiction by failing to obtain the approval of the Tahoe
Regional Planning Agency prior to the construction of the proposed Loop Road in the
Stateline area.
The Compact provides that all public works projects shall be reviewed prior to
construction and approved by the Agency as to the project's compliance with the adopted
regional general plan. See Article VI(c). Douglas County denies having violated this
requirement.
This dispute is not ripe for decision. The record before us shows only that the executive
officer of the Agency is informed that Douglas County intends to proceed with construction
of the Loop Road without first submitting that project to the Agency for its review and
approval. We are confident that the County will comply with the Compact requirement.
Consequently, we deny the request for prohibition.
4. The petition designates Roy Godecke, Harold Dayton and Charles Meneley,
individually, and as County Commissioners of Douglas County, as respondents. We are asked
to dismiss the petition against those just named in their individual capacities. The writ of
mandate which we have ordered to issue is to compel the county commissioners to perform
an act which the law especially enjoins as a duty resulting from an office, trust, or station.
NRS 34.160. Clearly, the duty is imposed upon the commissioners acting in their official
capacities, and not otherwise. Accordingly, the petition is dismissed against Godecke, Dayton
and Meneley individually.
Mowbray, Batjer, and Gunderson, JJ., and Goldman, D. J., concur.
____________
90 Nev. 282, 282 (1974) St. Pierre, Appellant, v. Sheriff
LOUIS ST. PIERRE, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 7743
July 26, 1974 524 P.2d 1278
Appeal from order denying petition for writ of habeas corpus, Second judicial District
Court, Washoe County; William N. Forman, Judge.
90 Nev. 282, 283 (1974) St. Pierre, Appellant, v. Sheriff
Habeas Corpus petition for bail was filed by individual charged with first degree murder. The
district court denied petition, and appeal was taken. The Supreme Court, Zenoff, J., held that
legislative prerogative to implement bail provisions of Constitution does not encompass
inclusion of a non-capital offense as non-bailable, that bail statute defining a capital offense
to include any murder defined in a certain statute was unconstitutional as being in conflict
with constitutional provision relating to bail, and that only those persons charged with newly
designated capital offenses could be denied bail when proof was evident or presumption
great.
Reversed and remanded.
Gunderson and Mowbray, JJ., dissented.
Roger L. Wright, of Reno, for appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Mills
Lane, Deputy District Attorney, Washoe County, for Respondent.
1. Bail.
It is not constitutionally permissible for legislature to make a non-capital crime non-bailable after it has
realigned capital offenses. Const. art. 1, 7.
2. Bail.
Legislative prerogative to implement bail provisions of Constitution does not encompass inclusion of a
non-capital offense offenses. Const. art. 1, 7.
3. Bail.
Bail statute defining a capital offense to include any murder defined in a certain statute was
unconstitutional as being in conflict with constitutional provision relating to bail, and only those persons
charged with newly designated capital offenses could be denied bail when proof was evident or
presumption great. NRS 200.030, subd. 2; Const. art. 1, 7.
OPINION
By the Court, Zenoff, J.:
An indictment returned by the Washoe County Grand Jury charged appellant with first
degree murder (NRS 200.030 (2)). This appeal is from a district court order denying his
habeas corpus petition for bail and the sole contention is that since first degree murder is no
longer denominated as a capital offense, we are compelled to admit him to bail because of
the provisions of Nev. Const.,
90 Nev. 282, 284 (1974) St. Pierre, Appellant, v. Sheriff
offense, we are compelled to admit him to bail because of the provisions of Nev. Const., Art.
1, 7.
1

Historically, first degree murder was one of the capital offenses enumerated in the statutes
and the offense was almost universally non-bailable, when the proof was evident of the
presumption great.
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court of the United States
effectively proscribed the death penalty under then existing statutory provisions and many
jurisdictions were soon flooded with applications for bail from those charged with crimes
previously denominated capital offenses. Some jurisdictions resolved the issue in favor of
those charged by concluding that the abolition of the death penalty eliminated capital
offenses; therefore, all offenses became bailable. Eg: Ex Parte Contella, 485 S.W.2d 910
(Tex.Crim.App. 1972); Edinger v. Metzger, 290 N.E.2d 577 (Ohio App. 1972).
When the issue reached this court we declined to accept that view and adopted the
pre-Furman rationale enunciated in People v. Anderson, 493 P.2d 880 (Cal. 1972), saying;
[t]he underlying gravity of [capital] offenses endures and the determination of their gravity
for the purpose of bail continues unaffected by this decision . . . we hold they remain as
offenses for which bail should be denied . . . when the proof of guilt is evident or the
presumption thereof great. Jones v. Sheriff, 89 Nev. 175, 176, 509 P.2d 824 (1973).
In 1973, in line with at least 25 other states, our legislature specifically enumerated
particular homicides as capital. See Stats. of Nev. 1973, ch. 798 5, p. 1803 (codified as a
part of NRS 200.030).
2

In exercising its prerogative to restructure capital offenses the legislature also amended the
bail statute, NRS 178.484, by including in its definition of capital offenses, any murder
defined in NRS ch. 200
____________________

1
Nev. Const., Art. 1, 7 reads:
BAIL; CAPITAL OFFENSES. All persons shall be bailable by sufficient sureties; unless for Capital
Offenses when the proof is evident, or the presumption great. [Emphasis added.]

2
NRS 200.030(1) reads:
Capital murder is murder which is perpetrated by:
(a) Killing a peace officer or fireman:
(1) While such officer or fireman is acting in his official capacity or by reason of an act performed in his
official capacity; and
(2) With knowledge that the victim is or was a peace officer or fireman. For purposes of this paragraph
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
90 Nev. 282, 285 (1974) St. Pierre, Appellant, v. Sheriff
by including in its definition of capital offenses, any murder defined in NRS ch. 200.
3
See
Stats. of Nev. 1973, ch. 798, 2.5, pp. 1802-1803.
The thrust of appellant's argument is that NRS 178.484(2)(b) is in conflict with the
constitutional provision relating to bail.
[Headnote 1]
The issue we must resolve is whether it is constitutionally permissible for the legislature to
make a non-capital crime non-bailable after it has realigned capital offenses. We think not;
otherwise, we would be saying that first degree murder [or any murder defined in NRS ch.
200] is a capital crime for purposes of bail, but is non-capital for purposes of punishment.
Such construction is untenable from a constitutional standpoint. State v. Pett, 92 N.W.2d
205, 206 (Minn., 1958).
The California Supreme Court recently reevaluated the Anderson rationale in In re Boyle,
520 P.2d 723 (Cal. 1974), after the California legislature (1) enacted a procedural statute
forbidding bail in capital cases in which the proof is evident or the presumption great . . .
and (2) delineated the class of such cases by substantive provisions imposing the death
penalty for specified offenses."
____________________
highway patrol when exercising the police powers specified in NRS 481.150 and 481.180, and the warden,
deputy warden, correctional officers and other employees of the Nevada state prison when carrying out any
duties prescribed by the warden of the Nevada state prison.
(b) A person who is under sentence of life imprisonment without possibility of parole.
(c) Executing a contract to kill. For purposes of this paragraph contact to kill' means an agreement, with or
without consideration, whereby one or more of the parties to the agreement commits murder. All parties to a
contract to kill are guilty as principals.
(d) Use or detonation of a bomb or explosive device.
(e) Killing more than one person as the result of a common plan, scheme or design.

3
The applicable portion of NRS 178.484 now reads:
RIGHT TO BAIL BEFORE CONVICTION; RELEASE WITHOUT BAIL.
1. A person arrested for an offense other than a capital offense as defined in subsection 2 shall be admitted to
bail.
2. A person arrested for a capital offense may be admitted to bail unless the proof is evident or the
presumption great by any competent court or magistrate authorized by law to do so in the exercise of discretion,
giving due weight to the evidence and to the nature and circumstances of the offense. For the purposes of this
subsection capital offense' means:
(a) Capital murder as defined in NRS 200.030; or
(b) Murder as defined in chapter 200 of NRS. [Emphasis added.]
Other sections of NRS ch. 200 relate to non-capital homicides, including first degree murder.
90 Nev. 282, 286 (1974) St. Pierre, Appellant, v. Sheriff
of such cases by substantive provisions imposing the death penalty for specified offenses.
Mr. Justice Mosk, speaking for the California court, noted that the Anderson rationale
[which we adopted in Jones] was not intended to govern a situation in which the legislature
acts to declare a new and different class of capital offenses,' yet that is the precise situation
before us. Boyle, supra.
[Headnote 2, 3]
The legislative prerogative to implement the bail provisions of our Constitution does not
encompass inclusion of our Constitution does not encompass inclusion of a non-capital
offense as non-bailable; accordingly, we hold 2(b) of NRS 178.484 unconstitutional. Only
those persons charged with the newly designated capital offenses may now be denied bail,
when the proof is evident, or the presumption great. Nev. Const., Art. 1, 7.
We reverse the order of the district court and remand for the purpose of a hearing to set
bail.
Thompson, C. J., and Batjer, J., concur.
Gunderson, J., with whom Mowbray, J., agrees, dissenting:
With due deference, I dissent.
In Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824 (1973), this court held that notwithstanding
the U.S. Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), Nevada
statutes declaring certain offenses capital would remain viable for purposes of defining
which are capital within the meaning of the Nevada Constitution. Thus, any first degree
murder under NRS ch. 200 remained nonbailable, if proof of guilt was evident or the
presumption thereof great.
Both the Nevada Constitution and the U.S. Constitution remain now as when we decided
Jones v. Sheriff. Accordingly, if Nevada law concerning what offenses are bailable has been
altered, that seemingly only could have resulted from some legislative Act.
Yet, clearly our legislature has not intentionally removed any first degree murder from the
nonbailable category. Quite the contrary, the legislature has expressly declared its intent that
such murder shall remain capital, within the meaning of our Constitution's bail provisions.
Notwithstanding this, however, the majority hold the legislature has defeated its own clear
intent, by enacting a statute endeavoring to impose the death penalty for some types of
aggravated murder.
I had always understood that, where not unconstitutional, manifest legislative intent
should be given effect.
90 Nev. 282, 287 (1974) St. Pierre, Appellant, v. Sheriff
manifest legislative intent should be given effect. Therefore I am unable to perceive why the
legislature cannot constitutionally declare the death penalty for some types of aggravated
murder, without involuntarily making all other types of murder bailable as a matter of right.
____________
90 Nev. 287, 287 (1974) Anglin v. State
MORRIS EDWIN ANGLIN, Jr., MARTIN FRANK BAILEY, DAVID BEARD, KENNETH
BRITT, CHARLES CALBERT, MAURICE R. CHASSE, ROBERT MILTON GARRETT,
ALVIN GORMAN HARPER, JAMES CLIFFORD HIGGINS, JOSEPH K. McGRANE,
LEWIS L. SANDLIAN, DENNIS WARREN, LA VAL FISHER and RICHARD SCOTT,
Appellants, v. THE STATE OF NEVADA AND WARDEN, NEVADA STATE PRISON,
Respondents.
Nos. 7331, 7397, 7355, 7330, 7348, 7389, 7356, 7347, 7361,
7349, 7388, 7398, 7229, 7390
July 26, 1974 525 P.2d 34
Appeal from orders denying petitions for post-conviction relief requesting credit on
sentences for presentence jail confinement; First, Second, and Eighth Judicial District Court,
for Lyon, Washoe, and Clark Counties, respectively; Waters, JudgeLyon County; Barrett,
Bowen, Craven, and Gezelin, JudgesWashoe County; and Christensen, JudgeClark
County.
The Supreme Court, Mowbray, J., held that a defendant is entitled to credit for presentence
confinement prior to arrival at state prison, where bail has been set and where defendant has
been financially unable to post bail, and such credit shall be applied in the determination of
maximum and minimum terms, good time, and eligibility for eligibility for parole, and shall
be applied retroactively.
Reversed and remanded, with instructions.
Gunderson, J., concurred in part, dissented in part.
Gary A. Sheerin and H. Rodlin Goff, State Public Defender, Carson City, for Appellants.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe county, for
Respondents.
90 Nev. 287, 288 (1974) Anglin v. State
Chief Deputy District Attorney, Washoe county, for Respondents.
Morgan D. Harris, Public Defender, and Thomas D. Beatty, Assistant Public Defender,
Clark County, Amici Curiae.
1. Criminal Law.
Under statute, person sentenced to term in state prison is entitled to credit for confinement prior to arrival
at state prison where bail has been set for such defendant and defendant has been financially unable to post
the bail, and such credit shall be applied in determination of both maximum and minimum terms and of
good time credit. NRS 176.055, 209.280, 209.285; Const. Art. 4, 21.
2. Criminal Law.
Presentence credit for those financially unable to make bail shall be retroactively applied to those
sentenced prior to time when statute was amended to expressly provide for credit on state prison sentences.
NRS 176.055
3. Criminal Law.
Presentence credit for those financially unable to make bail may not be used toward an unrelated
sentence.
4. Pardon and Parole.
Presentence credit for those financially unable to make bail shall be applied in the computation of parole
eligibility as if such presentence confinement was served after the date of imposition of sentence. NRS
176.055, 176.355, subd. 3, 213.120.
OPINION
By the Court, Mowbray, J.:
The main issue presented in each of these appeals is whether an indigent defendant who is
financially unable to post bail should be given credit on his prison term for detention in the
county jail pending his trial and sentencing.
The appeal of Morris Edwin Anglin, Jr., No. 7331, was the principal case argued before
the court. The remaining 13 appeals, involving the same or related issues, have been
consolidated herein for disposition. Our opinion, however, will be anchored on the factual
history of the Anglin case.
1. The facts.
Anglin was convicted of forgery on April 19, 1969. He was sentenced to life imprisonment
as an habitual criminal. The sentence was later commuted to 10 years, the statutory maximum
for the crime of forgery.
Anglin was never given any credit for the 99 days he spent in the Washoe County jail
while awaiting trial. Although bail had been fixed, Anglin was financially unable to post the
required bail.
90 Nev. 287, 289 (1974) Anglin v. State
had been fixed, Anglin was financially unable to post the required bail. The issue presented is
what credit, if any, Anglin should be allowed for his presentence detention on his 10-year
prison term.
Both this court and the Legislature have considered the general question of sentence credit,
but not in the context of a person financially unable to post bail.
2. The Legislative Background.
In 1967, our Legislature granted discretion to our district courts to order that credit be
allowed on county jail sentences for time spent in the jail prior to conviction. NRS 176.055
(1967).
1
In 1971, credit for pretrial confinement was extended to state prison commitment.
NRS 176.055 (1971).
2
In 1973, the statute was amended to provide that, while credit may be
applied to the duration of the sentence, credit so allowed may not alter the date from which
the term of imprisonment is computed.
3

Since the enactment of NRS 176.055 in 1967, the Legislature has expanded the scope of
its coverage by giving the district courts the power to allow presentence credit on prison
terms. By so doing, our Legislature has implemented a suggestion of the American Law
Institute Model Penal Code 7.09 {Proposed Official Draft, May 4, 1962),4 and has
followed the action of the Federal Government, which permits a similar sentence credit
under the Bail Reform act of 1966.
____________________

1
NRS 176.055 (1967):
Whenever a sentence of imprisonment in the county jail is imposed, the court may in its discretion order that
credit be allowed against such sentence, including any minimum term thereof which may be prescribed by law,
for the amount of time actually spent by the defendant in confinement prior to conviction, unless such
confinement was pursuant to a judgment of conviction for another offense.

2
NRS 176.055 (1971):
Whenever a sentence of imprisonment in the county jail or state prison is imposed, the court may in its
discretion order that credit be allowed against such sentence, including any minimum term thereof which may be
prescribed by law, for the amount of time actually spent by the defendant in confinement prior to conviction,
unless such confinement was pursuant to a judgment of conviction for another offense. (Emphasis indicates new
language added to this statute in 1971 that was not in the original, 1967 statute.).

3
NRS 176.055 (current version, as amended in 1973):
Whenever a sentence of imprisonment in the county jail or state prison is imposed, the court may in its
discretion order that credit be allowed against the duration of such sentence, including any minimum term
thereof which may be prescribed by law, for the amount of time actually spent by the defendant in confinement
prior to conviction, unless such confinement was pursuant to a judgment of conviction for another offense.
Credit allowed pursuant to this section does not alter the date from which the term of imprisonment is
computed. (Emphasis indicates language added in 1973.)
90 Nev. 287, 290 (1974) Anglin v. State
7.09 (Proposed Official Draft, May 4, 1962),
4
and has followed the action of the Federal
Government, which permits a similar sentence credit under the Bail Reform act of 1966. 18
U.S.C. 3568.
5
Further, this legislation comports with ABA Standards Relating to
Sentencing Alternatives and Procedures 3.6(a) (Approved Draft, 1968).
6

Presentence detention is behind-bars confinement. Legal categories do not remove the
punitive aspects of the rigors and restraints of detention. As legal commentators have noted,
the denial of credit for dead timetime spent in incarceration before delivery of the
defendant to the state prisonis basically a failure to recognize the punitive aspect of
predispositional confinement.
7
Sensitive to these concerns, our Nevada Legislature has
afforded the district courts an opportunity to grant credit for presentence deprivation of
liberty.
3. The Court Background.
Anglin predicates his constitutional claim for the 99 days' presentence jail detention
credit on the ground that he was an indigent and therefore unable to secure a bond for his
predispositional release.
____________________

4
Model Penal Code 7.09 (Proposed Official Draft, May 4, 1962) provides in part:
(1) When a defendant who is sentenced to imprisonment has previously been detained in any state or local
correctional or other institution following his [conviction of] [arrest for] the crime for which such sentence is
imposed, such period of detention following his [conviction] [arrest] shall be deducted from the maximum term,
and from the minimum, if any, of such sentence. . . .

5
18 U.S.C. 3568 was amended to provide:
The sentence of imprisonment of any person convicted of an offense shall commence to run form the date
on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The
Attorney General shall give any such person credit toward service of his sentence for any days spent in custody
in connection with the offense or acts for which sentence was imposed. . . . Pub. L. 89-465, 4 (June 22, 1966),
80 Stat. 217 (1966). See also 1966 Cong. and Adm. News 2306.

6
Section 3.6(a) of ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft,
1968) provides:
Credit against the maximum term and any minimum term should be given to a defendant for all time spent
in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct
on which such a charge is based. This should specifically include credit for time spent in custody prior to trial,
during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which
the defendant has been committed.

7
See Schornhorst, Presentence Confinement and the Constitution: The Burial of Dead Time, 23 Hast. L.J.
1041-1042 (1972); Note: Sentence Crediting for the State Criminal DefendantA Constitutional Requirement,
34 Ohio State L.J. 586 (1973); and Note: Credit for Time Served Between Arrest and Sentencing, 121 U.Pa.
L.Rev. 1148 (1973).
90 Nev. 287, 291 (1974) Anglin v. State
presentence jail detention credit on the ground that he was an indigent and therefore unable to
secure a bond for his predispositional release.
The claim of invidious discrimination because of lack of wealth is based upon the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution as
announced in Tate v. Short, 401 U.S. 395 (1971), and Williams v. Illinois, 399 U.S. 235
(1970).
8

Williams v. Illinois, supra, applied the well established doctrine of Griffin v. Illinois, 351
U.S. 12 (1956), prohibiting invidious discrimination against a defendant without funds so as
to preclude his incarceration beyond the statutory maximum for confinement because of a
default on a fine. Williams was a precursor of Tate v. Short, supra, which extended the
williams holding to preclude Texas from confining a traffic offender who had received fines
totaling $425 but who was financially unable to pay the fines. In each case, the State was
prohibited from exploiting the impecuniarity of the defendant. The rules announced on these
cases are relevant to a consideration of the presentence confinement of an indigent defendant.
Although the United States Supreme Court has not directly ruled on the issue, the action of
the Court in Gaines v. United States, 402 U.S. 1006 (1971), provides guidance in the instant
case. Bernard Gaines was sentenced to serve 2 years on a federal narcotics charge, and then
he was delivered to the New York authorities to answer State murder and robbery charges.
More than a year after Gaines was first jailed by the State without bail, the State court set bail
in the amount of $7,500, but Gaines was unable to post it. On a federal post-conviction
petition, Gaines requested the federal authorities to credit his federal sentence for the time
spent in State custody, because he was financially unable to post bail. The federal district
court and the United States Court of Appeals denied relief because the federal statute, 18
U.S.C. 3568, did not provide for such credit. In response to Gaines' petition for certiorari
before the United States Supreme Court, the Solicitor General acknowledged that the express
terms of the aforementioned statute did not grant to the federal authorities the right to give
credit for time spent in State custody for nonfederal purposes, but the Solicitor General did
state:
. . . To construe Section 3568 to deny Nelson [a petitioner similarly situated to Gaines]
relief under these circumstances would be inconsistent with the spirit of numerous
decisions of this Court requiring that justice be applied to al persons equally and not on
the basis of ability to pay.
____________________

8
Such a claim may also be asserted under our State Constitution, art. 4, 21, which provides: . . .[A]ll laws
shall be general and of uniform operation throughout the State.
90 Nev. 287, 292 (1974) Anglin v. State
similarly situated to Gaines] relief under these circumstances would be inconsistent with the
spirit of numerous decisions of this Court requiring that justice be applied to al persons
equally and not on the basis of ability to pay. Williams v. Illinois, 399 U.S. 235, 241; cf.
Rinaldi v. Yeager, 384 U.S. 305; Hardy v. United States, 375 U.S. 277; Draper v.
Washington, 372 U.S. 487; Lane v. Brown, 372 U.S. 477; Douglas v. California, 372 U.S.
353; Gideon v. Wainwright, 372 U.S. 335; Coppedge v. United States, 369 U.S. 438; Smith
v. Bennett, 365 U.S. 708; Eskridge v. Washington Prison Board, 357 U.S. 214; Griffin v.
Illinois, 351 U.S. 12. Section 3568 is in our view not so inflexible in its provisions as to be
incompatible with an interpretation that would give Nelson the relief he seeks. (Footnote
omitted.) Memorandum for the United States at 14, 15, Nelson v. United States, 402 U.S.
1006 (1971).
Upon remand to the Court of Appeals, the High Court held:
. . . Gaines' lack of wealth has resulted in his having to serve a sentence that a richer man
would not have had to serve, an impermissible discrimination according to Tate and Williams.
Accordingly, Gaines ought to be credited with the time spent in state custody after bail was
set.
9
United States v. Gaines, 449 F.2d 143, 144 (2d Cir. 1971).
[Headnote 1]
We agree with the Court's reasoning in Gaines and therefore hold that our statute NRS
176.055, should also be construed to provide credit for confinement prior to a defendant's
arrival at the state prison, where (1) bail has been set for the defendant and (2) the defendant
was financially unable to post the bail. Under such circumstances, the district courts must
allow such credit. To provide otherwise would tolerate invidious discrimination based upon a
defendant's financial status.
Our decision in Ibsen v. Warden, 86 Nev. 540, 471 P.2d 229 (1970), does not direct a
contrary result. The statute applicable at that time did not permit a credit on a state prison
sentence, and, more importantly, we there were concerned with a defendant charged with
murder who prior to his trial and retrial, had been held without bail. The granting of credit in
cases such as Ibsen more properly falls within the general guidelines of Summers v. Warden,
84 Nev. 326, 440 P.2d 388 (1968).
____________________

9
The Court did not give credit for the substantial period of time Gaines was held by the State authorities
without bail, because even if he had funds he would have been unable to secure his release.
90 Nev. 287, 293 (1974) Anglin v. State
The authorities relied upon by the State to deny the credit Anglin seeks, including Ibsen,
either antedate Gaines or fail to discuss its ruling. The fair impact of Williams and Tate are to
place the indigent defendant, insofar as possible, on a par with the affluent defendant. If the
moneyed defendant may secure release prior to trial, then the indigent defendant who stands
convicted should be able to offset his term of imprisonment in all respects as if the
confinement served prior to sentencing was served after sentence.
10

Presentence confinement under the circumstances presented shall be applied in the
determination of the maximum duration or term of imprisonment, the minimum term, good
time credits under NRS 209.2801
1
and 209.285,
12
and good time credits for county jail
time.
13

____________________

10
The State has urged a different construction of the 1973 amendment to NRS 176.055, but we chose to
adopt a statutory interpretation that avoids constitutional violation.

11
NRS 209.280:
1. Every convict who is sentenced to the state prison on or before June 30, 1969, who shall have no serious
infraction of the rules and regulations of the prison, 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 his term a deduction
of 2 months in each of the first 2 years, 4 months in each of the next 2 years, and 5 months in each of the
remaining years of the term, and pro rata for any part of a year where the sentence is for more or less than a year.
2. The mode of reckoning credits shall be as shown in the following table:
SCHEDULE OF CREDITS
Number of years Good time Total good Time to be served if
of sentence granted. time made. full time is made.
1st year.................................... 2 months 2 months 10 months
2nd year.................................. 2 months 4 months 1 year, 8 months
3rd year.................................. 4 months 8 months 2 years,4
months
4th year.................................. 4 months 1 year, 3 years,
5th year.................................. 5 months 1 year, 5 months 3 years,7
months
6th year.................................. 5 months 1 years, 10 months 4 years,2
months
7th year.................................. 5 months 2 years, 3 months 4 years,9
months
8th year.................................. 5 months 2 years, 8 months 5 years,4
months
9th year.................................. 5 months 3 years, 1 month 5 years,11
months
10th year................................ 5 months 3 years, 6 months 6 years,6
months
and so on through as many years as may be the term of the sentence.
3. In addition to the credits for good behavior provided for in subsection 1, the board may adopt
regulations allowing credits for convicts whose diligence in labor or study merits such credits and for convicts
who donate their blood for charitable purposes.

12
NRS 209.285:
1. Every convict who is sentenced to the state prison after June 30, 1969, who has no serious infraction of
the rules and regulations of
90 Nev. 287, 294 (1974) Anglin v. State
4. Retroactive Sentence Credit.
[Headnote 2, 3]
Anglin was sentenced in 1969, when NRS 175.055 did not expressly provide for credit on
a state prison sentence. Ibsen v. Warden, supra.
____________________
the prison, 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 year, 4 months for each of the next 2 year, 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 years Good time Total good time
served. granted. made.
1 year.................................................... 2 months 2months
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 years, 10 months
7 years.......................................................... 5 months 2 years, 3 months
8 years.......................................................... 5 months 2 years, 8 months
9 years.......................................................... 5 months 3 years, 1 month
10 years........................................................ 5 months 3 years, 6 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 in
NRS 213.120.
3. In addition to the credits for good behavior provided for in subsection 1, the board may adopt
regulations allowing credits for convicts whose diligence in labor or study merits such credits and for convicts
who donate their blood for charitable purposes.
4. No convict allowed to go outside the prison walls on parole may earn the credits herein provided after
the effective date of his release upon parole.
5. Each convict is entitled to the deductions allowed by this section if he has satisfied the conditions of
subsection 1 as determined by the warden.

13
The language of a federal district court in an order granted in Steele v. North Carolina, 348 F.Supp. 1023,
1025 (W.D.N.C. 1972), is appropriate to the issue before us:
The credit shall be computed as though petitioner had begun serving his sentence on the first day he was
incarcerated and shall be credited at the front end of sentence, rather than being reserved for credit against the
last part of the sentence; that is, the prisoner's time served as of now shall be computed by treating as his first
time served the time spent in jail awaiting trial, and this time shall be fully counted for all purposes, including
good time, gain time, parole, visitations, work release and all other privileges, emoluments, advantages or
benefits, whether of not named or thought of herein [Citation omitted.]
90 Nev. 287, 295 (1974) Anglin v. State
v. Warden, supra. Our Legislature had provided for a sentence credit if the sentence was to
the county jail, and later, in 1971, extended this credit to state prison sentences. A similar
situation arose in California. In In re Young, 32 Cal.App.3d 68 (1973), a prisoner sought the
advantage of a statute providing that pretrial or probationary jail time should be credited to a
minimum prison term but expressly excepted prisoners delivered to the prison before its
effective date. The court, resting its conclusion on both federal and state constitutional
grounds, granted Young credit for his presentence confinement toward his minimum term (3
years), at which time he would become eligible for parole. In Thompson v. State, 496 P.2d
651, 656-657 (Alaska 1972), the court, on dictates of fairness, granted a credit for presentence
confinement of a defendant financially unable to make a $2,500 bail, even though the
sentencing occurred prior to the legislation granting such credit. See also Ham v. North
Carolina, 471 F.,2d 406 (4th Cir. 1973), and Mott v. Dail, 337 F.Supp. 731 (E.D.N.C. 1972),
appeal dismissed, 473 R.ed 908 (4th Cir. 1973). We therefore conclude that presentence
credit for those financially unable to make bail shall be retroactive.
14

5. Sentence Credit Toward Parole Eligibility.
[Headnote 4]
Sentence credit applies toward the computation of the length of confinement as well as to
parole eligibility. NRS 176.055 allows credit toward the duration of the sentence, including
any minimum term thereof which may be prescribed by law. . . . Eligibility for parole is set
forth in NRS 213.120, which provides:
Except as otherwise limited by statute for certain specified offenses, a prisoner may be
paroled when he has served:
1. One-fourth of the definite period of time for which he has been sentenced pursuant to
nrs 176.033, less good time credits; or
2. One year,
whichever is longer.
The sentence credit given to the indigent prisoner unable to make bail shall be allowed as
if he had served such confinement after the date of imposition of sentence.
15

The California court in In re Young, supra, applied 62 days of presentence confinement
toward Young's minimum term, so that he would be eligible for parole.
____________________

14
Credit should be allowed to all prisoners now serving a sentence of confinement, but any such available
credit may not, of course, be used toward an unrelated sentence.

15
Subsection 3 of NRS 176.335 provides that the term of imprisonment commences on the date of
sentencing.
90 Nev. 287, 296 (1974) Anglin v. State
days of presentence confinement toward Young's minimum term, so that he would be eligible
for parole. In White v. Gilligan, 351 F.Supp. 1012 (S.D. Ohio 1972), a three-judge federal
court, in reviewing a statutory scheme that provided for a discretionary grant of sentence
credit, held that, where a defendant remains in jail prior to his trial, he must be given credit on
his sentence for all periods of actual confinement, saying, This will result both in earlier
parole consideration and in an earlier expiration of his maximum sentence. 351 F.Supp. at
1014.
16
Under this construction, a prisoner may be paroled after completion of one-fourth of
his designated sentence minus presentence credit and good time credit, or after one year
minus presentence credit whichever of the two periods is longer. Any good time credit shall
apply only to subsection 1 of NRS 213.120, permitting a prisoner to be paroled after serving
one-fourth of his fixed sentence. So also the additional credits for convicts whose diligence
in labor or study merits such credits and for convicts who donate their blood for charitable
purposes. See NRS 209.280(3) and NRS 209.285(3). See also NRS 209.430 for road work
credit.
The State has relied rather heavily upon McGinnis v. Royster, 410 U.S. 263 (1973), as
authority for the proposition that sentence credit may not be applied toward parole eligibility.
However, in that case the New York Correction Law granted a sentence credit against a full
period of incarceration, but the statute explicitly denied such a credit to be applied toward a
minimum parole date. The New York statutory scheme differentiated and provided separate
treatment of sentence credit toward a maximum term and parole eligibility. No similar
statutory scheme exists in Nevada. On the contrary, NRS 176.055, supra, directs that credit
be allowed against any minimum term. By giving a full credit for presentence confinement,
we are merely implementing the letter and spirit of the statute.
We therefore reverse and remand Anglin's case to the court below with instructions to
enter an appropriate order granting Anglin 99 days' credit on his 10-year prison term.
Since the issues presented in cases numbered 7397, 7355, 7330, 7348, 7389, 7356, 7347,
7361, 7349, 7388, 7398, 7229, and 7390 relate to the issues presented in Anglin's appeal, we
reverse and remand those cases to the district courts with instructions to enter appropriate
orders in each case consistent with the views set forth herein.
____________________

16
In State v. Little, 296 N.S.2d 574, 577 (Ohio App. 1973), the state court acknowledged that the federal
court's ruling mandated that dead time be applied to parole eligibility.
90 Nev. 287, 297 (1974) Anglin v. State
courts with instructions to enter appropriate orders in each case consistent with the views set
forth herein.
Thompson, C.J., and Batjer, and Zenoff, JJ., concur.
Gunderson, J., concurring and dissenting:
I agree that if an indigent is incarcerated because he cannot post bail, in circumstances
where an affluent person could have purchased pretrial freedom, our Constitution often
requires that jail-time be credited against his sentence. Cf. Tate v. Short, 401 U.S. 395 (1971),
and Williams v. Illinois, 399 U.S. 235 (1970). However, I do not agree that the majority
opinion adequately resolves the permutations of the problem, either in the abstract or as they
appear in the cases before us.
____________
90 Nev. 297, 297 (1974) Dearing v. State
STANLEY C. DEARING, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7194
July 26, 1974 525 P.2d 601
Appeal from order of the Eighth Judicial District Court, Clark County, denying petition for
post-conviction relief; Howard W. Babcock, Judge.
The Supreme Court held that statute exempting from sentence credit confinement . . .
pursuant to a judgment of conviction for another offense. was applicable, and defendant was
not entitled to credit on his burglary prison term for time he spent in custody on the parole
warrant.
Affirmed.
Gary A. Sheerin and H. Rodlin Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where defendant was arrested for burglary in Nevada, after being detained for one day defendant posted
bond, two days later defendant was arrested on a violation of a parole warrant from another state, and
no bail was set, statute exempting from sentence credit "confinement
. . . pursuant to a judgment of conviction for another offense." was applicable, and
defendant was not entitled to credit on his burglary prison term for time he spent in
custody on the parole warrant.
90 Nev. 297, 298 (1974) Dearing v. State
another state, and no bail was set, statute exempting from sentence credit confinement
. . . pursuant to a judgment of conviction for another offense. was applicable, and defendant was not
entitled to credit on his burglary prison term for time he spent in custody on the parole warrant. NRS
176.055.
2. Criminal Law.
Statute exempting from sentence credit confinement . . . pursuant to a judgment of conviction for
another offense. is both rational and reasonable. NRS 176.055.
OPINION
Per Curiam:
Dearing was arrested for burglary in Las Vegas. After being detained for 1 day, he posted
bond. Two days later, he was arrested on a violation of a parole warrant from California. No
bail was set. Dearing now seeks credit on his burglary prison term for the time he spent in
custody on the parole warrant.
[Headnotes 1, 2]
The instant case does not satisfy the requirements set forth in Anglin v. State, 90 Nev. 287,
525 P.2d 34 (1974), that bail be set. California recently held that a parolee has no right to bail
when arrested or held for a parole violation. In re Law, 10 Cal.3d 21 (1973). NRS 176.055
exempts from sentence credit confinement . . . pursuant to a judgment of conviction for
another offense. Since parole is granted subsequent to a conviction, the statutory exclusion
applies, and this state characterization is both rational and reasonable. McGinnis v. Royster,
410 U.S. 263 (1973).
The order of the district court denying Dearing's petition is affirmed.
____________
90 Nev. 298, 298 (1974) Scott v. State
SYLVESTER G. SCOTT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 7440
July 26, 1974 525 P.2d 600
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court held that record refuted claim of petitioner that his plea of guilty to
armed robbery charge was induced by promises which were not kept.
Affirmed.
90 Nev. 298, 299 (1974) Scott v. State
H. Rodlin Goff, State Public Defender, for Appellant.
Roy A. Woofter, District Attorney, and Daniel M. Seaton, Chief Appellate Deputy District
Attorney, Clark County, for Respondent.
Criminal Law.
Record on appeal from denial of post-conviction relief refuted contention of petitioner that his plea of
guilty to charge of armed robbery was induced by promises by prosecution which were not kept.
OPINION
Per Curiam:
The record on this appeal from the denial of post-conviction relief refutes the appellant's
contention that his plea of guilty to the charge of armed robbery was induced by promises that
were not kept. The prosecution honored its promises to dismiss other pending charges and not
to oppose probation, or any attempt by the appellant to be admitted to a drug treatment
program. Cf. Riley v. Warden, 89 Nev. 510, 515 P.2d 1269 (1973).
Affirmed.
____________
90 Nev. 299, 299 (1974) Price v. Goldman
PAUL PRICE, Petitioner, v. THE HONORABLE PAUL GOLDMAN, District Judge,
Department No. X, of the Eighth Judicial District Court of the State of Nevada in and for the
County of Clark, Respondent.
No. 7783
July 30, 1974 525 P.2d 598
Original Proceeding in Prohibition.
Prohibition to arrest proceedings which district court had undertaken, seeking to
investigate unauthorized disclosure of information police allegedly obtained through a
telephone wiretap. The Supreme Court held that district attorney, within statute authorizing
attorney general or district attorney of any county to apply for authorization to intercept
communications, does not include deputies of district attorney and authorization order
prompted on application of deputy was void.
Writ granted.
90 Nev. 299, 300 (1974) Price v. Goldman
Ralph Denton and Brian L. Greenspun, of Las Vegas, for Petitioner.
George M. Dickerson, of Las Vegas, for Respondent.
1. Telecommunications.
District attorney within statute authorizing attorney general or district attorney of any county to apply
for authorization to intercept communications, does not include deputies of district attorney and
authorization order prompted on application of deputy was void. NRS 179.460.
2. Prohibition.
Prohibition lies to arrest proceedings in aid of a void order.
OPINION
Per Curiam:
Paul Price, a journalist, has petitioned for a writ of prohibition. He asks this court to arrest
proceedings which the Eighth Judicial District Court has undertaken, seeking to investigate
unauthorized disclosure of information police allegedly obtained through a telephone wiretap
that the District Court purportedly authorized pursuant to NRS 179.460.
1
If the Attorney
General or the district attorney of any county had properly applied to the respondent court for
an order authorizing the interception of communications, as NRS 179.460 provides, we are
inclined to think respondent would, after entry of such order, have continuing jurisdiction to
investigate apparent abuses thereof. NRS 179.465 to 179.490; cf. Farr v. Superior Court,
County of Los Angeles, 99 Cal.Rptr. 342 (Cap.App. 1972). See also, In re Farr, 111 Cal.Rptr.
649 (Cal.App. 1974). However, the district attorney did not properly invoke the respondent
court's jurisdiction in the initial instance and, indeed, later acknowledged to the court that he
had no knowledge whatever of the court's order, until after one of his deputies had prompted
its purported entry.
2
NRS 179.460 is virtually a verbatim copy of the federal statute
defining the circumstances under which an enforcement agency may seek authorization
for the interception of communications, except that our statute authorizes the "attorney
general or the district attorney of any county" to apply therefor, whereas the federal
statute provides the "Attorney General, or any Assistant Attorney General specifically
designated by the Attorney General, may authorize. . ."
____________________

1
179.460 CASES IN WHICH INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS MAY BE
AUTHORIZED.
1. The attorney general or the district attorney or any county may apply to a supreme court justice or to a
district judge in the county where the interception is to take place for an order authorizing the interception of
wire or oral communications, . . . (Emphasis added.)

2
After portions of the intercepted communications, which had been transcribed, appeared under petitioner's
by-line in a Las Vegas newspaper, respondent initiated a closed investigatory inquiry during which Roy A.
Woofter, the Clark County District Attorney testified:
90 Nev. 299, 301 (1974) Price v. Goldman
NRS 179.460 is virtually a verbatim copy of the federal statute defining the circumstances
under which an enforcement agency may seek authorization for the interception of
communications, except that our statute authorizes the attorney general or the district
attorney of any county to apply therefor, whereas the federal statute provides the Attorney
General, or any Assistant Attorney General specifically designated by the Attorney General,
may authorize. . . 18 USC 2516(1).
Interpreting the federal statute, the United States Supreme Court has recently held that
where a person not specifically mentioned in the statute presumes to authorize the
interception of wire or oral communications that such authorization is outside the statute's
sanction and utterly void. United States v. Giordano, 411 U.S. 952, 94 S.Ct. 1820 (1974).
Such holding was in accord with a long line of federal court decisions, decided well prior
to the time the district attorney's deputy in this case, without the district attorney's knowledge,
prompted the respondent court to enter the order the court is now seeking to vindicate.3
respondent court to enter
____________________
Counsel: Q You are a duly elected and qualified District Attorney of Clark County, Nevada, are you not?
District Attorney: A Yes.
Counsel: Q In that capacity, have you had occasion to have called to your attention a request for an electronic
surveillance order out of your office?
District Attorney: A Not prior to the order being issued.
* * *
Counsel: Q Did you have any personal knowledge of the officer's report which formed the foundation for the
preparation of the affidavit in support of the application?
District Attorney: A None at all.
Counsel: Q Have you ever seen it?
District Attorney: A No.
Counsel: Q Have you seen any of the moving papers that were presented to the Court for the purpose of
securing this order initially?
District Attorney: A No, I haven't.
Counsel: Q Have you seen any of the subsequent papers that were prepared and presented to the Court for the
purpose of getting a thirty-day extension order?
District Attorney: A No, I haven't.
Counsel: Q Have you seen any of the products of the surveillance order by way of transcript of intercepted
communications between parties that resulted from that order?
District Attorney: A No, I haven't.
Counsel: Q You have never, in your office, viewed the file on the . . . matter that contains all of these
matters?
District Attorney: A No, I haven't.
Counsel: Q Have you had an opportunity to observe in your office any individuals not connected with your
office reviewing any files relating to this matter?
District Attorney: A No, I haven't.
90 Nev. 299, 302 (1974) Price v. Goldman
prompted the respondent court to enter the order the court is now seeking to vindicate.
3

[Headnotes 1, 2]
Without endeavoring to enumerate all the reasons the federal courts have given for
confining the power to request wiretap authorizations to those persons specifically
enumerated by law, we note our view that such reasons appear sound.
4
In NRS 179.460, we
think, the context requires that the term district attorney not be construed to include his
deputies. See: NRS 169.045 and 169.075. Prohibition lies to arrest proceedings in aid of a
void order.
____________________

3
United States v. King, 478 F.2d 494 (9th Cir. 1973);
United States v. Mantello, 478 F.2d 671 (D.C.Cir. 1973);
United States v. Roberts, 477 F.2d 57 (7th Cir. 1973);
United States v. Robinson, 468 F.2d 189 (5th Cir. 1972);
United States v. Sklaroff, 360 F.Supp. 353 (D.C.Ga. 1973);
United States v. Robinson, 359 F.Supp. 52 (D.C.Fla. 1973);
United States v. Fox, 349 F.Supp. 1258 (D.C.Ill. 1972);
United States v. Vasquez, 348 F.Supp. 532 (D.C.Cal. 1972);
United States v. Boone, 348 F.Supp. 168 (D.C.Va. 1972);
United States v. Narducci, 341 F.Supp. 1107 (D.C.Pa. 1972);
United States v. Doolittle, 341 F.Supp. 163 (D.C.Ga. 1972);
United States v. Baldassari, 338 F.Supp. 904 (D.C.Pa. 1972).
Interpreting substantially similar statutory language, at least three state courts, in pre-Giordano decisions,
concluded wiretap orders issued on the authorization or application of an assistant prosecuting attorney were
fatally detective. Eg: Application of Olander, 515 P.2d 1211 (Kan. 1973); State v. Frink, 206 N.W.2d 664
(Minn. 1973); and, State v. Cocuzza, 301 A.2d 204 (Essex Co. Ct. N.J., 1973).

4
In Giordano, the Court relies on Congress' clearly expressed desire that an official, responsible to the
political process, should make the decision authorizing electronic surveillance and bear the scrutiny of Congress
and the public for that decision. As noted, the Senate Report which accompanied Title III to Congress stated that
2516 centralizes in a publicly responsible official subject to the political process' the formulation of electronic
surveillance policy so that [s]hould abuses occur, the lines of responsibility lead to an identifiable person. This
provision in itself should go a long way toward guaranteeing that no abuses will happen.' S. Rep. No. 1097, 90th
Cong., 1st Sess., 97 (1968), U.S. Code Cong. & Admin. News, p. 2185. Similarly, Senator Long, in support of
the bill read from a report which stated We agree that responsibility should be focused on those public officials
who will be principally accountable to the courts and the public for their actions.' Speaking to a related provision
requiring that politically responsible state prosecuting officials authorize state applications, Professor Blakely of
Notre Dame, instrumental in the drafting of Title III, stated:
Now, the reason [for this requirement] is that unless we involve someone in the process of using this
equipment who is politically responsible, that is, someone who must return to the people periodically and
be reelected, it seems to me we miss a significant check on possible abuse.
As a practical matter, if there is police abuse, the remedies we
90 Nev. 299, 303 (1974) Price v. Goldman
proceedings in aid of a void order. Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972);
State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965); Culinary Workers v.
Court, 66 Nev. 166, 207 P.2d 990 (1949). Whether independent contempt proceedings or
other action might be instituted in the instant circumstances is not a question before us.
A peremptory writ of prohibition will issue forthwith.
____________________
can take against them are limited. If we involve the responsible judgment of a political official in the use
of this equipment, and it is then abused, the people have a very quick and effective remedy at the next
election.'
United States v. Chavez, 412 U.S. 905, 94 S.Ct. 1858, 1864-1865 (1974).
____________
90 Nev. 303, 303 (1974) American Gen. Finance v. First Coml. Title
AMERICAN GENERAL FINANCE CORPORATION, a Nevada Corporation, and ALFRED
N. BALLARD, an Individual, Appellants, v. FIRST COMMERCIAL TITLE, INC., a Nevada
Corporation, Respondent.
No. 7406
August 1, 1974 524 P.2d 1270
Appeal from summary judgment entered by the Second Judicial District Court, Washoe
County; Grant L. Bowen. Judge.
The district court granted plaintiff's motion for summary judgment, without requiring a
hearing on notice to defendants, for deficiency allegedly remaining after foreclosure sale of
real property pursuant to terms of deed of trust, and defendants appealed. The Supreme Court
held that district court could not deny alleged debtor right to full hearing on issue of value
where alleged debtor had not either expressly or by implication waived his right to
cross-examine the plaintiff's witnesses or to present his own.
Reversed and remanded.
Morse, Foley and Wadsworth, of Las Vegas, for Appellants.
Stewart and Horton, Ltd., of Reno, for Respondent.
1. Mortgages.
In action to recover deficiency allegedly remaining after foreclosure of deed of trust, where plaintiff's
counsel inadvertently omitted to serve defendants' counsel with notice of hearing,
proceedings at purported hearing were void.
90 Nev. 303, 304 (1974) American Gen. Finance v. First Coml. Title
omitted to serve defendants' counsel with notice of hearing, proceedings at purported hearing were void.
NRS 40.457, subd. 1.
2. Mortgages.
In action for deficiency judgment after foreclosure of deed of trust, district court could not deny an
alleged debtor the right to full hearing on issue of value with regard to deficiency judgment where alleged
debtor had not expressly or by implication waived his right to cross-examine plaintiff's witnesses or to
present his own. NRS 40.457, subd. 1.
OPINION
Per Curiam:
This case began with a complaint seeking judgment for a deficiency allegedly remaining
after foreclosure sale of real property pursuant to the terms of a deed of trust. The district
court granted the plaintiff-respondent's motion for summary judgment in the sum of
$74,648.95 plus interest, without requiring a hearing on notice to the defendant-appellants, as
NRS 40.457(1) expressly requires, and this appeal follows.
1

[Headnote 1]
It seems that prior to entry of summary judgment, a purported hearing was held, but that
the plaintiff-respondent's counsel inadvertently omitted to serve the defendant-appellants'
then counsel with notice thereof. Manifestly, the proceedings at that purported hearing were
void. Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974); Maheu v. District Court, 88 Nev. 26,
493 P.2d 709 (1972); Reno Raceway, Inc. v. Sierra Paving, 87 Nev. 619, 492 P.2d 127
(1971).
[Headnote 2]
Subsequently, on the basis of expert testimony concerning value taken at such hearing,
counsel for the plaintiff-respondent moved for summary judgment, this time giving notice. In
opposition, counsel for the defendant-appellants submitted the affidavit of the individual
defendant, clearly stating that a hearing was desired and that opposing expert testimony
regarding value was available. However, notwithstanding this, the district court entered
summary judgment, without permitting a hearing.
____________________

1
NRS 40.457(1) provides:
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 or trustee's sale. Notice of such hearing shall be served upon all defendants who have appeared
in the action and against whom a deficiency judgment is sought, or upon their attorneys of record, at least 15
days before the date set for hearing.
90 Nev. 303, 305 (1974) American Gen. Finance v. First Coml. Title
district court entered summary judgment, without permitting a hearing.
This was error. In our view, a district court may not deny an alleged debtor the right to a
full hearing on the issue of value, which NRS 40.457(1) envisions, at least where the alleged
debtor has not either expressly or by implication waived his right to cross-examine the
plaintiff's witnesses or to present his own.
Reversed and remanded.
____________
90 Nev. 305, 305 (1974) Village Development Co. v. Filice
VILLAGE DEVELOPMENT CO., a Corporation, Appellant, v. GENNARO A. FILICE and
MERLE FILICE, Respondents.
No. 6759
GENNARO A. FILICE And MERLE FILICE, Appellants, v. VILLAGE DEVELOPMENT
CO., A Corporation, and G. R. CAMPBELL, Respondents.
No. 6596
August 27, 1974 526 P.2d 83
Case No. 6759, appeal from judgment entered upon jury verdict, Second Judicial District
Court, Washoe County; Emile J. Gezelin, Judge. Compensatory damage award affirmed;
punitive damage award reversed.
[Rehearing in Case No. 6759 denied November 5, 1974]
Case No. 6596, appeal from summary judgments, Second Judicial District Court, Washoe
County; John W. Barrett, Judge. Appeal dismissed.
Lot purchasers, whose home was destroyed by flood, brought action to recover against
vendor on theory that such loss was occasioned by sale of residential lot situated in flood
plain of mountain stream. The district court awarded purchasers compensatory and punitive
damages and, in another case, granted summary judgment absolving vendor's agent of
liability and precluding trial against vendor on theory of strict liability, and appeals were
taken. The Supreme Court, Gunderson, J. held that evidence established that vendor was
negligent in failing to warn purchasers that proposed location of their home was unsafe and
was not the building site contemplated by vendor when subdividing the land, that refusal to
instruct that a vendor has no liability for a condition which comes into existence after
vendee has taken possession was proper, that refusal to give another proposed
instruction was not prejudicial error and that evidence was insufficient to warrant finding
of express or implied oppression, fraud or malice.
90 Nev. 305, 306 (1974) Village Development Co. v. Filice
instruct that a vendor has no liability for a condition which comes into existence after vendee
has taken possession was proper, that refusal to give another proposed instruction was not
prejudicial error and that evidence was insufficient to warrant finding of express or implied
oppression, fraud or malice.
Thompson, C. J., dissented in part.
McDonald, Carano, Wilson & Bergin, of Reno, for Village Development Co.
Cox, Cummins, Rinehart & Lamphere, of Martinez, California, and Sinai and Sinai, of
Reno, for Gennaro and Merle Filice.
Breen, Young, Whitehead & Hoy, Chartered, of Reno, for G. R. Campbell.
1. Negligence.
Evidence, in action by lot purchasers whose home was destroyed by flood, to recover against vendor on
theory that such loss was occasioned by sale of residential lot situated in flood plain of mountain stream,
established that, independent of any negligence imputable from vendor's agent, vendor was negligent in
failing to warn purchasers that proposed location of their home was unsafe and was not the building site
contemplated by vendor when subdividing the land.
2. Negligence.
Refusal, in action by lot purchasers, whose home was destroyed by flood, to recover against vendor on
theory that such loss was occasioned by sale of residential lot situated in flood plain of mountain stream, to
instruct that a vendor has no liability for a condition which comes into existence after vendee has taken
possession was proper, in that dangerous condition of property, i.e., its location within flood plain, came
into existence before transfer of possession.
3. Trial.
An instruction need not be given when there is no proof in record to support it.
4. Appeal and Error.
Refusal to give requested instruction on vendor's duty to disclose conditions was not prejudicial error
where jury was given such information in other instructions.
5. Damages; Fraud.
In action by lot purchasers, whose home was destroyed by flood, to recover against vendor on theory that
such loss was occasioned by sale of residential lot situated on flood plain of mountain stream, evidence was
insufficient, for purpose of permitting an award of punitive damages, to warrant a finding of express or
implied oppression, fraud or malice. NRS 42.010.
90 Nev. 305, 307 (1974) Village Development Co. v. Filice
6. Damages.
To be entitled to recover punitive damages, there must be substantial evidence of malice in fact. NRS
42.010.
OPINION
By the Court, Gunderson, J.:
Appealing a judgment entered upon a jury verdict for $99,157.41 compensatory and
$50,000 punitive damages, occasioned by selling respondents Gennaro and Merle Filice a
residential building lot situated in the flood plain of a mountain stream, the appellant in Case
No. 6759, Village Development Co., contends the district court erred in these ways, among
others:
(1) in denying Village Development Co. a summary judgment after granting one to its
sales agent, G. R. Campbell;
(2) in instructing the jury concerning the Filices' claim of negligence; and
(3) in permitting the jury to award punitive damages.
In addition to evidence of negligence imputable from Campbell, we think the record
contains substantial evidence to show Village Development Co. negligently failed to warn the
Filices that the proposed location of their home was unsafe and not the building site Village
Development Co. contemplated when subdividing the land. Accordingly, perceiving no
prejudicial error in presenting negligence issues to the jury, we affirm the compensatory
damage award. However, perceiving no misconduct of sufficient magnitude to warrant
imposition of punitive damages, we reverse that portion of the judgment.
Second Creek, at Incline Village, Lake Tahoe, is usually quite narrow. However, according
to studies one John Webster Brown made for Washoe County, and according to the Filices'
expert witness Jones, the width of the stream will vary radically under various storm
conditions of given return frequencies. As the record explains, a return frequency is the
statistically calculated chance that a given runoff volume will occur. A 100-year storm would
be expected once every 100 years; a 25-year storm, every 25 years. There would be a 4
percent chance of a 25-year storm, in any given year. These are merely statistics. A 5-year
storm could occur every year for 5 consecutive years, or oftener.
Witness Brown's study included a calculation made approximately 100 feet upstream from
the property Village Development Co. sold to the Filices, determining the creek would
spread westerly from the mid-point of its bed, 56 and 39 feet under 100 and 25-year
return frequencies, respectively.
90 Nev. 305, 308 (1974) Village Development Co. v. Filice
spread westerly from the mid-point of its bed, 56 and 39 feet under 100 and 25-year return
frequencies, respectively. Using Brown's data, witness Jones calculated the same westerly
spread at the Filice property. According to Jones, the entire area occupied by the Filice house,
constructed on the property Village Development Co. sold them, lay within the drainage-way
for the 5-year storm. In other words, statistically, one cognizant of the danger might expect
the home to be inundated on an average of once every 5 years.
Responsible officers of Village Development Co. knew at least generally of the danger.
While employed as the corporation's vice president, Raymond Smith designed the
subdivision. He described the central portion of the property, where respondents built their
home, as being below the first terrace adjacent to the street. Smith testified he believed the
flood plain extended up to the first terrace, and Jones confirmed this belief, testifying:
This whole area in here, from somewhere near the rear property line to where the ground
approaching the street evens up, has every appearance of what I would determine a creek bed,
although I can certainly see that people investing in this property would think of the smaller
v' perhaps as being just the creek bed, because this is the part of the whole width, which
would be occupied by the water most of the time and, in fact, a small babbling creek coming
down to the property.
However, despite a westerly spread of more than 56 feet under the 100-year storm
condition (almost equally bad in a 5-year storm), and despite Smith's knowledge of the area's
flood plain character, Village Development Co. imposed no building restrictions other than
one requiring that building plans be submitted to its Architectural Control Committee.
Apparently, a county ordinance imposes a 30-foot setback requirement, applicable to the front
of the property. The record reflects that the creek bed is actually in front of this setback line
for most of its course through the property. The developer provided no warning of the
condition on any document or map.
Knowing the flood hazard, Village Development Co. envisioned the highest possible site.
Smith, its designer and vice president, testified he customarily designed lots with building
sites in mind, and that for the property sold the Filices he contemplated construction on the
terrace adjacent to the road. However, admittedly he informed no one of this, although he
recognized the potentiality of inundation from the creek. He said he considered that the
building sites close to the road, in which the normal building site is located, would escape
flood damage.
90 Nev. 305, 309 (1974) Village Development Co. v. Filice
in which the normal building site is located, would escape flood damage.
1
(To build on
what Smith called the normal building site, the Filices would have had to apply for a
zoning variance, relieving them of setback requirements, another fact never revealed to them.)
Village Development Co.'s president, Arthur Wood, likewise testified that although he
believed the home would have escaped damage if built on the terrace as he also thought
advisable, he never told the Filices his thoughts concerning this proper building site. In short,
the corporation's highest management personnel failed to warn of the danger although they
well knew the Filices were planning to build in the flood plain, as evidence now to be
summarized shows.
The record reflects that during a Christmas holiday at Lake Tahoe, the Filices met
Campbell, the sales agent, and explained to him a desire for a building lot affording
seclusion, tree cover, and a creek-side setting. About a week later, Campbell telephoned the
Filices at their home in Orinda, California, telling them he had property he thought met their
desires. Ultimately, the Filices purchased the property Campbell suggested, after he took
them to it, directed their attention to the low, flat area beside the creek, and assured them that
he had lived there for some years and that he had talked with other people and that the creek
never varied more than a few inches, season by season, year by year.
The Filices retained a local architect to prepare plans. However, before construction, the
plans had to be approved by Village Development Co.'s Architectural Control Committee,
established pursuant to restrictions contained in every deed. When the Filices' plans were
submitted, this committee consisted of Mr. Wood, Mr. Harold Tiller, and Mr. Leonard
Bowser. Customarily, plans were primarily reviewed by Bowser, an employee of Village
Development Co. who testified to being a licensed land surveyor in California and Nevada,
and a member of the Nevada State Board of Registered Engineers. The explanation for
Bowser's primary role in reviewing plans was his engineering background. The committee's
approval was indicated with his initials. By virtue of the recorded restrictions, the committee
had power to withhold approval upon reasonable dissatisfaction with location of the
structure upon the building site.2
____________________

1
Inter alia, Smith testified: Q. And so, could it be said that you did think of the potentiality of some
inundation to the creek, but the building sites close to the road were high enough that it wouldn't be affected by
such a flooding? A. Yes. Q. Mr. Smith, did you ever convey your thought in that regard to anyone? A. No.
90 Nev. 305, 310 (1974) Village Development Co. v. Filice
reasonable dissatisfaction with location of the structure upon the building site.
2

It seems that during its review, the Architectural Control Committee discussed the
proposed location of the Filices' home, and Wood urged Bowser to tell them to build higher
on the lot.
3
Although Bowser testified he did not recall this conversation with Wood, he
remembered approving the Filices' plans. Village Development Co.'s former vice president,
Smith, testified he believed an architectural review provision should take into account
protection of a residence from a possible flood. Still, despite recognized potentiality of
flooding to the property sold to the Filices, it seems clear the corporation's Architectural
Control Committee approved their plans with no warning whatever.
On August 25, 1967, the Filice residence was destroyed by a flow of water carrying a great
amount of mud, trees and other debris. In briefs and oral argument, Village Development
Co.'s counsel dwell on the supposed fact that the particular storm which destroyed the
dwelling was of unusual size. Yet, according to testimony in the record, had the house been
inundated by any of the many floods reasonably to be anticipated, substantial destruction was
to be anticipated, even without taking into account the inevitable debris such flood waters
contain.
[Headnote 1]
1. Where no basis exists to charge an employer, other than vicarious liability for the
imputed negligence of its agent, courts often have held that a judgment on the merits in the
agent's favor bars further action against the employer. Kraft v. Montgomery Ward & Co., 348
P.2d 239, 248 (Ore. 1959); Brink v. Martin, 310 P.2d 870, 871 (Wash. 1957); Spruce v.
Wellman, 219 P.2d 472, 474-475 (Cal.App. 1950); Freeman v. Churchill, 1S3 P.2d 4, S {Cal.
____________________

2
The recorded restrictions stated:
Committee approval may be withheld . . . (b) because of the reasonable dissatisfaction of the Committee
with the location of the structure on the building site . . .

3
Wood testified:
Q. Sir, do you recall, that when Mr. Filice's plans were submitted to the Architectural Control Committee,
did you discuss it? A. They were discussed. Q. They were discussed. Now, is it true, Mr. wood, that, in
reviewing Mr. Filice's plan for approval, in the architectural Control Committee, you urged Mr. Bowser to tell
Mr. Filice to build higher on the lot? A. Yes. . . . Q. All right. Do you know whether Mr. Bowser conveyed your
thoughts, in that regard to the Filices? A. I do not know. Q. Or any agent of the Filices? A. I do not know.
90 Nev. 305, 311 (1974) Village Development Co. v. Filice
Churchill, 183 P.2d 4, 8 (Cal. 1947). Here, however, contrary to Village Development
Co.'s contention, this rule could find no application; for as indicated above there is ample
evidence of the corporation's negligence, independent of any on the part of its agent
Campbell. Cf. Eckleberry v. Kaiser Foundation Northern Hospitals, 359 P.2d 1090,
1096-1097 (Ore. 1961).
2. Village Development Co. further contends the trial court erred by refusing to give its
proposed Instruction E, which contains language taken from Sections 352 and 353 of the
American Law Institute's Restatement of Torts, concerning a land vendor's duty to warn the
purchaser of concealed danger.
4
Our brother Thompson, who agrees, apparently also thinks
the trial court should have instructed in the language of Section 351.
Concerning the court's instructions relating to a land vendor's liability, at the outset we
note that it may be questioned whether any claim of error has properly been preserved for
review.
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4
Village Development Co.'s proposed Instruction E recited:
Except as stated below, a vendor of land is not liable for physical harm caused to his vendee while upon the
land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which
existed at the time that the vendee took possession:
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or
artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee or his
subvendee for physical harm caused by the condition after the vendee has taken possession, if,
(a) the vend