90 Nev. 1, 1 (1974)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 90 ______
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.
Je rry 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 90 Nev. 1, 2 (1974) Rhodes v. Rhodes
1 the trial court's property distribution; the decree is in all respects affirmed.
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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.
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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.
90 Nev. 2, 3 (1974) Paulette v. Sheriff
1 Sheriff, 89 Nev. 506, 515 P.2d 397 (1973). 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.
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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.
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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 !
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 " !
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.
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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.
Hal ley 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. W here 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 # " $ " ! 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 " "
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.
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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 ! ! %
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.
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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 ! ! "
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. Bu rden 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 1 State has appealed. 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 " & " "
Q "" ( ) * )
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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 Amendment—subject 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.+ ** ,- .* . /-(
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 2 situations. 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 # ! ! ! ! ! " !
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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 !P
______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 -1-
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. Th e 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 ! ! P
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. 1 Appellant was ordered to stand trial for escape (NRS 212.090). Thereafter, he filed a petition for habeas corpus in the !! !
______
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 2 prison. 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 3 lawful arrest, . . .” Stats. of Nev. 1866, p. 166, § 2. 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 4 171.126. 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 5 unless such taking into custody and detention are unreasonable under all circumstances.” 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 " " ! " 2--
______
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 " " "
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 " ! !
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 $ ! ( # ! ! ! "
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 1 judgment and allowing respondent five days in which to answer. 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 ! 3 4 5( 63
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
Appe al 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
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] 1 Properties acquired during marriage are presumed to be community property, 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.
Will iam 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 "! !
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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, .-,-*7*/ (7 8 9 ..:- 7 /; 8 * ) / 8
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 2 property that was illegally seized. % "
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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 3 deduced from proven facts supported by the record. <% = <% =
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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 " "
______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 1 178.598. 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 O"P " O"P" ! " ! ! "O"P" !
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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 ?
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.
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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 ! " " "
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 "
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.
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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 5 # " " "
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 : : @ A ( "
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 "# !
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 B5 : " # $
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 " ? " 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 .
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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 " 2 C! ?D ( B 3E- $ 2 (5( 63 F /F 8
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 1 approval by Respondent Clark County Taxicab Authority (the Authority). 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 :( "O2 2! G ! H I ( " P GH
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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 " ! 3
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.
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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 1 selling a proscribed narcotic, hashish, to Harvey L. Olson on November 4, 1971. 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 " 7(
______
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 2 character of a person. NRS 48.045(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 " 5 " $ !
______
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 4 criminal act. 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); ( 7 **.:- / 8 % -
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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 5 committed it is apparent that the same result would have been reached. See NRS 178.598. The judgment is affirmed.
Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.
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5 NRS 178.598: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
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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] :4
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. P arent 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 B " "@ O P " !
90 Nev. 54, 56 (1974) Turner v. Saka
1 habeas corpus. 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 /8$ ! 5! /8 $ /8!
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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 2 on assertions set forth in the Sakas' complaint and in affidavits filed therewith. 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 3 determination by this Court of the matter set forth in the Complaint herein.” The “Order to Show ( P # 6 " . ! 5 3 ______
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
4 Cause” also purported to require the Turners to answer the complaint, and to grant them 5 leave to seek dissolution or modification of the ex parte order. 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 6 entitled to the children's custody by virtue of the “Order to Show Cause.” Our district court's master calendar judge ordered the Turners to file a 5 " @ !! !I
______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 7 custody of a minor child, in derogation of a binding Nevada order entered shortly before. 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 O<= $ " " " ! " !P
______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 corpus—and drafted it very carefully to make sure that we were using it properly—was 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 8 paternity, and to have his parental obligations and visitation privileges declared. 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 Q " 3 # !3 " # 3 2(: /8
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. 9 Abell v. District Court, 58 Nev. 89, 71 P.2d 111 (1937).” 88 Nev. at 34, 493 P.2d at 714. 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 PB- !O ______ 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 10 the same language as Nevada Rule of Civil Procedure 65. 6 " "OC( P "@ !! $ 5 ! ! $ # " ______ 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 I ______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 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. [Rehear ing 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 5% B I 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 # ! " 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. C laim 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 ! " 5 3 ! 5 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 1 “exclusive listing” agreement shall be in writing. 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 2 in quantum meruit. 2 ( !! 5 " 3 7 ! ! " 3 ! 5 ______ 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 ?I A "( ( $ D "" 5! 5 " 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, 1 was limited to compensation under the Industrial Insurance Act. See NRS 616.370 and 2 NRS 616.560. 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 6 H O P ______ 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 I A " ! " $ 5, 6 H ______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. W e 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 1 Nye County, where he resides. We affirm the district court. In addition to designating appellant Hill and several others as defendants under their actual names, the complaint by which ( ! O@ A P 2(: /8-6 (5( ! ( 5! 2* . *4 O, F( P ! (5 ( O@ A P ! ______ 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 2 Doe” defendants by fictitious names, as permitted by NRCP 10(a). Thereafter, since no named defendant lived in Clark County, appellant demanded a change of venue to Nye 3 County, and filed a motion invoking NRS 13.040. 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 4 on NRCP 15(a). 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 5 to defeat appellant's motion for change of venue. 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 " 6! ! " !P ______ 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 2(:- " ! 2(: /8 ______ 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 1 Rule 10(a). 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 " " 3 ! " 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 "" ! " !5" ! ! 3 ! ! " 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. 6" . .).77. /7-8 !. !@ 5 A *7)* / .8 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 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 trial—the 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. Afte r 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 " ! 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. Burglar y. 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 ! ( (A F ! !! 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, ! " 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 ! 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 1 previously convicted, a felony. 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 5! " ! 5! " ! ! ______ 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 2 “tampering.” 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 3 since it is harsher than the sentence originally imposed and later set aside. 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 ! 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] Th e 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 ! " " ! 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 " " 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 ! 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 ! ! ! " ! ! "?! ! ?! ! ! 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 !! ! $ ) + 2! ! ) 2 " 3 ! 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 1 284.380(1). On June 18, respondents brought this action, contending the " ! 2(-. " !-H) 2! ! 2(-.! 2! ! O ! ) P ______ 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 2 as a whole, and the district court agreed. 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 ! !& # 3 ! * " ! !& 3 ! ______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 3 abolition of existing positions. 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 " ! !& ______ 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 " " ! 3 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 ! 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 "" ! " " " 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, 6 (@ 3 " 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.: Alexan der 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, 1 Nevada. The Stardust had refused to pay since the carpet “shaded” excessively giving it !" ______ 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 2 by the seller, thus precluding its claim for relief. 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 3 the seller is a merchant with respect to the goods in question. We have not, heretofore, had " "! "! ! ______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, ,&J ______ (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 1 Washoe County. The conflict between the corporate defendant's actual : !( D ( ______ 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 2 records. 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 F42 - ______ 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, 3 although such designation may not be binding on other parties. 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 ( ! " ! ?3" " " $ " O " P 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 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 5 " $ " !"" " 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, & 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 " O P ! # F,A( 2 .- #.- 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 1 limits of NRS 425.080(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 # F,A( %J D/%JD8 ______ 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 2 and 604. See Advisory Commission Report, at 21-23. 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 /7-8+( J3 +5 * * ______ 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 3 manual, 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 " " "3?"! !! 5! !"! ! ______ 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. 4 Although the Nevada State Welfare Manual, Sec. 204.22, 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. 5 King v. Smith, supra; Lewis v. Martin, supra. The judgment of the district court entered on the 2nd day of @ 7* " DA A % 2 I7- ! F,A(! DA !I!: F,A( 2( ______ 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. Into xicating 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 1 granting or withholding liquor licenses. 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 1 title or interest as against Plaintiffs was conveyed by the said pledge.” NRS 87.090(3)(a). There has been no showing by the appellant that the judgment of the trial court was clearly erroneous or that it was ______ 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 " 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 1 of the officers in effect threatened to kick in the door if Lightford refused them admission. 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 ! " ______ 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. L ouis 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 I !!+5 ( : !! 7 (A 4 C! (5( E* 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 1 Recorder of Clark County, Nevada. 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 2 with costs in the sum of $52.80, and attorney fees in the sum of $10,000. NRS 17.150(2). H@ -7 $ ! # $ ______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. 3 Judge Mendoza concluded that appellant's lienee, 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] ! : , ______ 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 ! " 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 ! 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 1 contravention of Article 3, Section 1 of the Nevada Constitution. 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.) Un like 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 2 3 177.320. See also, Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). 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 4 process had been violated, and remanded for sentencing. F ! $ ! 3 " ! $ ! D "9 5**7 )-./.8 ! A : ( 6 " ______ 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 5 scrutiny under the Due Process Clause. 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 !" ! $ 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 1 reasons stated in that opinion, we reverse the order of the district court. 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. Crimi nal 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.F* )-*/ 8%! 77. 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 1 retroactive effect. See also Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970). 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 ______ 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 ( "! I @ 7 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 ( "! )( F! ! ! ( " !& I 90 Nev. 153, 155 (1974) State ex rel. Santini v. Swackhamer eliminated by the Convention, following discussion of their presumed unconstitutionality 1 under the U.S. Constitution. 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 2 the question has endorsed Justice Story's view. With one exception, every court wherein # ! *H " ( ) ( ! !I ______ 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 3 the question has directly been litigated has held in accord. 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 4 Black's belief that the full Supreme Court would follow Story's view. In related areas of 5 concern, federal authorities are consistent. This court's ruling in Cannon v. Laxalt was 6 compatible. 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 7 any federal office, such as the one here involved. 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 8 therefore issue forthwith, in accord with the prayer of the petition on file herein. ______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. In junction. 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 3 " ! " 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); + + B ______ 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 + B " ! ! + 5! 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. Th e 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. 1 Appellant urges that the State violated the provisions of NRS 173.095 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 $ " ! ! " ______ 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. 1 The checks were held by the payee for more than 30 days after the date or issue 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 " "5 ! !" "" 5 - ______ 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 2 depriving the drawer of funds with which to cover the checks. 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 1 summarily denied Fine's petition without affording him an evidentiary hearing. 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 " ______ 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 2 anew in the state court. Macon v. Craven, 457 F.2d 342 (9th Cir. 1972). . . .” 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. “F alse 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] 1 Our statute makes it a crime to obtain money by false pretenses. 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 O " " ! " P ______ 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 Pe r Curiam: A jury found Arthur Lee Harris guilty of battery with the use of a deadly weapon, in 1 violation of NRS 200.481, subsection 2(d). He seeks reversal of his judgment of conviction on the ground that he was prejudiced by the State's unsuccessful " ! % 3" "$ ! ______ 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 !"? & ! ! 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] 1 Article 3, Section 1 of the Nevada Constitution precludes a court, without specific constitutional or legislative authority, from awarding costs or attorney fees to any party appearing at a legislative hearing. 2 The appellant's reliance upon cases which espouse the “common fund” 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 ! " " " D$ 90 Nev. 180, 182 (1974) Summers v. Sheriff does not have sufficient certainty of definition so that an individual of ordinary intelligence 1 would have fair notice as to what conduct is lewd. 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 ! P ______ 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 1 entered pursuant to NRS 613.300, 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 ______ 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 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 2 U.S.C. § 152(9) 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 3 1004 (Kan. 1964). See also 29 U.S. C. § 164(c)(1)(2). <% *= <% *= ______ 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 ! ! 5! !" 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 1 during the robbery (NRS 200.030(2)(b). 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 Ma y 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 ( ! " 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 1 if they were to grant approval of the condominium map in accordance with NRS 117.027(3), 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. Declarato ry 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 ! 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 1 one-half thereof belongs to her. 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 2 statutorily authorized whether expressed in the articles or not. 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 3 married, his stock interest in Wells Cargo was his separate property. 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 45 + @ ______ 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 4 may be affirmed. [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 5 not testify, nor was evidence otherwise proffered on the point. 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 (! B ! ! J&" ______ 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 6 enforceability of the June 30, 1960, agreement. 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 7 in a practical, as distinguished from a legal sense. The Act, however, is " $ ! ! ______ 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 "! 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 ? ! O! " 5P , ( $ 90 Nev. 198, 202 (1974) Independent Guard Ass'n v. Wackenhut Servs. 1 union-security agreement violated the “right to work” provision of the Florida Constitution 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 2 agreement is prohibited, misses the point completely. 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 4 C! 5 " 6 , 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 " "!! $ 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 " 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 1 affects those probationers whose term has expired. 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. Ex ercise 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. Ev idence, 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 1 By the Court, Manoukian D. J.: The parties, married May 20, 1967, are parents of twin girls, " " 3- 1- !"!! H 7 ______ 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 2 conferred upon it by NRS 125.140(1). 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 *B "!3 "! ! 3 3 ______ 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 3 therein. 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 3E ______ 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 200.0 0 100.00 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 ,! , ( 4"! E* < =E* O N P ! ! " 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 settlement—not 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.] <% = 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 4 in that statute. [Headnotes 7, 8] Had the trial court granted reasonable alimony for a reasonable period of time, this record would have supported the "" ______ 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. C riminal 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 ? !6 I 90 Nev. 216, 219 (1974) Singleton v. State 1 of the attorney-client privilege. 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 2 he called various attorneys who had previously represented him to testify on the sanity issue. 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. 3 The question was proper under NRS 50.305. 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 ! L ______ 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 :--/( 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 1 claim of error upon direct appeal, 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 4 5 ! 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 ! " " 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 !4 5 ! 90 Nev. 221, 226 (1974) Warden v. Lischko before him, from his impressions at the trial, and from the evidence produced at the hearing, 1 that Lischko's basic rights had been violated. 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 $ ! ______ 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 / 2- 2- * /8/88/-8 ! - O P 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 $ ! 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. Co nstitutional 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 " # 3 3 # "" # # 3 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 " 3! 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 # 3 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 1 of the statute are cured by NRS 361.590. Appellant has failed to distinguish between $ " # 3 " 5 # 3 ______ 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 2 action by the 3-year statute of limitation provision of NRS 361.600. 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 Ju ne 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. Le e 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 ! 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 7-2 5@ !" IB ! O P 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 1 appearing on Mr. Guion's signs were false 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 "! ______ 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 ! " " 53 ! ! ! ! ! " " !! 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 "" 5 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, " 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 " " ! 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 ! ! ! O " P 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 " 6 90 Nev. 247, 249 (1974) Nevada Land & Mortgage Co. v. Lamb 1 period for actions to recover for unlawful payment of dividends. They are in error. The 2 controlling period is four years. NRS 11.220. 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 3 creditors. (NRS 78.595.) 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 3 ______ 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 4 that this action is barred because it was not brought within three years. 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 5 78.590(1). 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. Affirm ed. 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, ! " ! " ! 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 1 (NRS 205.760). 6 ! , 7*(% & E ______ 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, $37.26—a 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 2 hearsay rule. 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 " ! ! " ______ 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 line—he 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 1 with him in the building. R ose 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 ! 5 O " P ______ 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 2 warn Bolden he had been spotted and the police might be coming. 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 ! "$ ! ! ______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 entry—a 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 3 up through the hole and stacked the clothing, as he testified. 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 !"" N + ! ______ 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 found—particularly 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 !" " ______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 4 by his las name. 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 + " I "" " " "+ % + ______ 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 5 had told him Bolden was there. 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 6 police arrived. Yet subsequently, when appellant testified, he acknowledged that he was 7 apprehended on the roof, during an attempt to flee. 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 7 ______ 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, /-8 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, @ + + " ! !" ! 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 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 ! ! ! ( $ ! 6 ( +$@ " $ !"" # # " " "" "" ! " "" " ! $ ! 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 ! ! ! E- " " , -7- 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 ! $ 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 !! ! " 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 " " F! " 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 " ! 2--7 3 ! O P 90 Nev. 272, 276 (1974) State ex re. List v. County of Douglas 1 wording of NRS 228.170. 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 2 action in court (Art. VI(e)), that Agency, rather than the state, is the real party in interest. 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 3 within the discretion of the court. Usually, this court prefers that such an application be " " ______ 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 ! ! "! "! " ! P 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 ! 3 ! " 3 " !,( " $ # 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 ( A ! ( 6 2! :!F! ( 3 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. Ro bert 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 " ( 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 1, § 7. 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 2 part of NRS 200.030). In exercising its prerogative to restructure capital offenses the legislature also amended the bail statute, NRS 178.484, ! 2 - ______ 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 3 by including in its definition of capital offenses, any murder defined in NRS ch. 200. 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 ! P ______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, ! ! 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, Judge—Lyon County; Barrett, Bowen, Craven, and Gezelin, Judges—Washoe County; and Christensen, Judge—Clark 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 (A A F D 2 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 3F!" # 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 1 (1967). In 1971, credit for pretrial confinement was extended to state prison commitment. 2 NRS 176.055 (1971). 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 3 the term of imprisonment is computed. 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 /: H AI. -8. " ,G " +2 ______ 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 4 7.09 (Proposed Official Draft, May 4, 1962), and has followed the action of the Federal Government, which permits a similar sentence credit under the Bail Reform act of 1966. 18 5 U.S.C. § 3568. Further, this legislation comports with ABA Standards Relating to 6 Sentencing Alternatives and Procedures § 3.6(a) (Approved Draft, 1968). 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 time”—time spent in incarceration before delivery of the defendant to the state prison—is basically a failure to recognize the punitive aspect of 7 predispositional confinement. 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' $ ! " ! ______ 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 Defendant—A 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 8 (1970). 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 $7,500, but Gaines was unable to post it. On a federal post-conviction petition, Gaines requested the federal authorities to credit his federal sentence for the time spent in State custody, because he was financially unable to post bail. The federal district court and the United States Court of Appeals denied relief because the federal statute, 18 U.S.C. § 3568, did not provide for such credit. In response to Gaines' petition for certiorari before the United States Supreme Court, the Solicitor General acknowledged that the express terms of the aforementioned statute did not grant to the federal authorities the right to give credit for time spent in State custody for nonfederal purposes, but the Solicitor General did state: “. . . To construe Section 3568 to deny Nelson [a petitioner G = " " ( # !$ # ______ 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 9 set.” 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 10 confinement served prior to sentencing was served after sentence. Presentence confinement under the circumstances presented shall be applied in the determination of the maximum duration or term of imprisonment, the minimum term, “good 1 12 time” credits under NRS 209.2801 and 209.285, and “good time” credits for county jail 13 time. ______ 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 D ______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 14 credit for those financially unable to make bail shall be retroactive. 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 15 if he had served such confinement after the date of imposition of sentence. The California court in In re Young, supra, applied 62 "9 ! " ! ______ 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 16 1014. 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 " " " ______ 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 " 3! O $ ! P" " ! " 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: De aring 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 1 that the District Court purportedly authorized pursuant to NRS 179.460. 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 2 its purported entry. 27. ! " ! 5 & 3 & O ! P " OF G F F G !F G &P ______ 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, " 5! * ______ 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 3 prompted the respondent court to enter the order the court is now seeking to vindicate. [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 4 enumerated by law, we note our view that such reasons appear sound. 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 ! ______ 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 " ! ! !" 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 1 NRS 40.457(1) expressly requires, and this appeal follows. [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 $ !" !! ______ 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 " 3 5 " ! " $ " "! 3 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 " ? * - ? # 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, " ! " ! 90 Nev. 305, 309 (1974) Village Development Co. v. Filice 1 in which the normal building site is located, would escape flood damage.” (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 " ! - ______ 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 2 reasonable dissatisfaction with location of the structure upon the building site. 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 3 on the lot. 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.( *:-./( ______ 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 4 purchaser of concealed danger. 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 " " ______ 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 vendee does not know or have reason to know of the condition or the risk involved, and “(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk. “(2) If the vendor actively conceals the condition, the liability stated above continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.” In Kimberlin v. Lear, 88 Nev. 492, 495, 500 P.2d 1022 (1972), this court recognized that failure to disclose a concealed condition involving unreasonable danger, which the vendee may not discover, may render the vendor liable for resulting injury to the vendee and others upon the land with the vendee's consent. However, although the majority opinion alluded to Section 353 of the Restatement, it of course never suggested that a court must always advise the jury of every limitation upon the vendor's liability which the American Law Institute's abstract recapitulation of the law includes. Nor does our Kimberlin decision mandate only instructions in the words which the American Law Institute saw fit to employ. 90 Nev. 305, 312 (1974) Village Development Co. v. Filice whether any claim of error has properly been preserved for review. NRCP 51 declares no party may assign the giving or failure to give an instruction as error, unless in objecting thereto he states “distinctly the matter to which he objects and the grounds of his objection.” A general objection made by Village Development Co.'s counsel (i.e. that the trial court's Instruction No. 24 was “not a proper statement of the applicable law” and that proposed Instruction E was) arguably failed to comply with NRCP 51. See, for example, Apperwhite v. Illinois Central Railroad Company, 239 F.2d 306, 310 (8 Cir. 1957): “Moreover, the objection made to the charge, that is was ‘not the true law', did not comply with Rule 51 of Fed. Rules Civ. Proc., and, in reality, the point is not properly preserved for our review.” However, we prefer to pass any issue of this kind, and to treat the merits of the issues that concern our dissenting brother. [Headnote 2] As noted, Chief Justice Thompson believes the jury should have been instructed in the language of Section 351, which recites the rather obvious and here inapplicable rule that a vendor has no liability for a condition “which comes into existence after the vendee has taken possession.” In this case, clearly, the dangerous condition of the property, i.e. its location within the flood plain of Second Creek, came into existence before and not after transfer of possession. [Headnote 3] In a unanimous opinion, less than three months ago, this court reiterated the universally recognized principle that “[a]n instruction need not be given when there is no proof in the record to support it.” Singleton v. State, 90 Nev. 216, 220, 522 P.2d 1221, 1223 (1974). As another court recently said in facts closely analogous to those here concerned: “There can be no error in refusing to instruct on a proposition of law that has no application to the facts of the case.” Williams v. Goodman, 29 Cal.Rptr. 877, 885-886 (1963). Quite to the contrary under many authorities, it would have been improper, and might have been prejudicial error, to instruct on the legal principles stated in Section 351. For example, in a unanimous in bank opinion the California Supreme Court recently said that generally: “Even though an instruction is couched in proper language it is improper, if it finds no support in the evidence, and the giving of it constitutes prejudicial error if it is calculated to mislead the jury.” Solgaard v. Guy F. Atkinson ( .:--- /( 90 Nev. 305, 313 (1974) Village Development Co. v. Filice 5 Company, 491 P.2d 821, 826 (Cal. 1971). Thus, we fail to see how absence of an instruction on conditions arising after transfer could be prejudicial error. [Headnote 4] Next, we turn to the trial court's refusal to give proposed Instruction E, containing language from Sections 352 and 353 of the Restatement. Section 352 states that as to conditions existing when the vendee takes possession, the vendor only has liability as stated in Section 353. Section 353(1) goes on to declare that a vendor who conceals or fails to tell his vendee of any condition, natural or artificial, involving unreasonable risk, is liable to the vendee and others on the land with consent if: “(a) the vendee does not know or have reason to know of the condition or the risk involved, and “(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.” So far as we can perceive (and there has been no attempt to show otherwise), the trial 6 court's Instruction No. 24 told the jury all of this. Although counsel for Village Development ( ! B ______ 5 In accord, see also: Clawson v. Stockton Golf and Country Club, 34 Cal.Rptr. 184, 191 (Cal.App. 1963): “It is clear, of course, that the court must instruct only on material issues disputed by relevant and conflicting evidence . . . and it is erroneous to instruct on issues resolved by undisputed evidence.” DeGeorge v. Crimmins, 62 Cal.Rptr. 394, 396 (Cal.App. 1967): “Such instructions, unrelated to the issues, and unsupported by the evidence, in our opinion, were likely to confuse and mislead the jury. . . . ‘An instruction if not applicable to the facts proved and the issues raised by the pleadings may easily mislead the jury.' [Citing authorities].” Decker v. Korth, 219 F.2d 732, 738 (10 Cir. 1955): “Instructions must be predicated on the evidence. They may not deal with general or abstract propositions not immediately connected with and applicable to the facts before the jury.” Popejoy v. Hannon, 231 P.2d 484, 489 (Cal. 1951): “The evidence is uncontradicted that, when the lumber started to fall, Popejoy was on the hyster and operating it to the mutual benefit of Sugerman and the Hannons. The record, therefore, includes no evidence which would justify giving the instructions requested by the Hannons to the effect that the invitation to Popejoy to be upon the premises excluded his operation of the hyster.” 6 Instruction No. 24 recited as follows: “One who designs, develops and sells a lot in a residential subdivision directly or through a third person, for another to buy and use for the construction of a residence which the developer knows or has reason to 90 Nev. 305, 314 (1974) Village Development Co. v. Filice Co. has vaguely complained that Instruction No. 24 imposes “strict liability,” it seems to us that, like the Restatement's Section 353(1), Instruction No. 24 declares liability exists only if (a) it does not appear the vendee will realize the danger, and (b) the vendor knows or has reason to know of the danger. Moreover, in the usual way, the trial court instructed the jury that contributory negligence on the part of the Filices would bar any recovery. Thus, concerning any linguistic difference between Sections 352 and 353(1), and the court's Instruction 24, the words of our brother Thompson in Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963), seem apposite: “As a general proposition the number of instructions to be given is discretionary with the court. If one instruction adequately covers a given theory of liability or defense, it is preferable that the court refuse additional instructions relating to the same theory, though couched in different language.” 79 Nev. at 460; 386 P.2d at 737. In accord, see opinion of Thompson, C. J., in Eikelberger v. State ex rel. Dep't Hwys., 83 Nev. 306, 429 P.2d 555 7 (1967). ," B J "! ! * */-8 2 "M ______know is dangerous or is likely to be dangerous for that use, has a duty to use reasonable care to give warning of the dangerous condition of the lot or of facts which make it likely to be dangerous to those whom he should expect to use the lot. A failure to fulfill that duty is negligence. If, however, the developer has reason to believe that the user of the lot will realize its dangerous condition, he has no duty to warn. “A lot is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary purchaser who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Emphasis added.) 7 “Also in accord, see: Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d 135, 139 (1970): “Appellant complains the given portion [of a proposed instruction] is couched in negative terms, while the omitted portion imports the positive duty. While we would have been inclined to state the invitor's duty in positive rather than negative terms, the trial court did not commit error in refusing to do so. [Citing authorities.]” Southern Pacific Co. v. Watkins, 83 Nev. 471, 493, 435 P.2d 498, 512 (1967): “A reading of these instructions shows that the jury was adequately instructed in this case. It is not error to refuse instruction where its substance is adequately covered in other instructions. [Citing authorities.]” Cucamonga County Water Dist. v. Southwest Water Co., 99 Cal. Rptr. 557, 573 (Cal.App. 1971); Wright v. Marzo, 427 F.2d 907, 910-911 (10 Cir. 1970); Arkwright Mutual Insurance Co. v. Philadelphia Electric Co., 427 F.2d 1273, 1277 (3 Cir. 1970); Shaw v. Lauritzen, 428 F.2d 247, 251 (3 Cir. 1970); Wolff v. Commonwealth of Puerto Rico, 341 F.2d 945, 946 (1st Cir. 1965); Alexander v. Kramer Bros. Freight Lines, Inc., 273 F.2d 373, 375 (2 Cir. 1959). 90 Nev. 305, 315 (1974) Village Development Co. v. Filice Finally, we note appellant's proposed Instruction E concluded with language from Section 353(2) of the Restatement, to wit: “If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.” In the instant case, the record does not indicate the Filices had reason to anticipate danger, before their home was destroyed. Nothing indicates they had “a reasonable opportunity to take effective precautions”; indeed, nothing establishes “effective precautions” were possible once Village Development Co. permitted the Filices to build their home in the flood plain. Moreover, as noted, a contributory negligence instruction was given in the usual form. Therefore here, so far as we can see, an instruction in the language of Section 353(2) was not essential to performance of the jury's duty. Cf. American Cas. v. Propane Sales & Service, 89 Nev. 398, 513 P.2d 1226 (1973). As appellant, of course, Village Development Co. has the burden of demonstrating prejudicial error. Meinhold v. Clark County School Dist., 89 Nev. 56, 61, 506 P.2d 420, 423 (1973). In our view, this burden has not been met, in regard to the court's instructions concerning land vendors' duties. 3. We have considered appellant's other assignments of error, and believe none require discussion, except for Village Development Co.'s contention that its conduct does not warrant punitive damages, which we believe has merit. [Headnotes 5, 6] The record contains evidence to show negligence and unconscionable irresponsibility. Still, after careful consideration and extensive debate, we find insufficient evidence to support a finding of “oppression, fraud or malice, express or implied.” NRS 42.010. We have heretofore sustained awards of punitive damages where evidence showed the wrong was willful, and damage either intended or a necessary consequence. Here, however, the evidence does not to us appear quite sufficient to meet our previously established requirement that more must be shown than malice in law, and that there must be substantial evidence of malice in fact. See: Nevada Credit Rating Bureau D *:-/7-8 (( 4 ..7 90 Nev. 305, 316 (1974) Village Development Co. v. Filice v. Williams 88 Nev. 601, 503 P.2d 9 (1972); Nevada Cement Company v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). In view of the foregoing, therefore, in Case No. 6759 the judgment for compensatory damages is affirmed, and the judgment for punitive damages is reversed. In Case No. 6596, the Filices have appealed a summary judgment absolving Campbell of liability and, as well, a summary judgment precluding trial against any defendant on a theory of strict liability. In accord with statements of the Filices' counsel that Case No. 6596 was docketed in this Court solely in anticipation of the appeal in Case No. 6759, Case No. 6596 is hereby dismissed. As to both appeals, the parties will bear their own costs. Mowbray, Batjer, and Zenoff, JJ., concur. Thompson , C. J., dissenting in part: On August 25, 1967, a convective storm occurred causing a flash flood of water, mud and debris to overflow the channel of Second Creek and totally destroy the summer home of Gennaro and Merle Filice at Incline Village, Lake Tahoe, Nevada. They commenced this action to recover compensatory and punitive damages for their loss. 1 Among others, they named as defendants Village Development Co. and G. R. Campbell. Village Development planned and developed the subdivision within which the Filice home was constructed. G. R. Campbell was the sales representative of Village Development who sold the subdivided lots to Mr. and Mrs. Filice. As to each, the plaintiffs asserted alternate theories for recovery; fraudulent misrepresentation, negligence and strict liability. Before trial, the district court granted summary judgment to Campbell on all theories of liability asserted against him, and also granted summary judgment for Village Development as to the strict liability count. The case proceeded to jury trial against Village Development on two theories, fraudulent misrepresentation and negligence. The jury returned a general verdict for the plaintiffs awarding compensatory damages of $99,157.41 and punitive damages in the amount of $50,000. The Filices have appealed from the summary judgment absolving Campbell of liability and, as well, from the summary judgment precluding trial upon its theory of strict liability ! C!A ______ 1 Village Development succeeded to the interest of Crystal Bay Development with whom the plaintiffs dealt. For simplicity, I shall refer throughout only to Village Development. 90 Nev. 305, 317 (1974) Village Development Co. v. Filice against Village Development. Village Development has appealed from the judgment entered upon jury verdict. The two appeals were consolidated for argument and decision. 1. Appeal No. 6759: Village Development v. Filice. (A). One of the several assignments of error concerns the basic instruction given to the jury on the negligence theory of liability together with the refusal of the court to instruct on that subject in the manner proposed by Village Development. It is Nevada law that substantial error in the charge of the court as to one of the alternative theories of liability requires remand for another trial if the jury returned a general verdict thus rendering it impossible to determine the basis for the jury result. Lightenburger v. Gordon, 81 Nev. 553, 579, 407 P.2d 728 (1965); Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855 (1969). In capsule form, the facts relevant to negligence are these. In 1963, the Filices looked for property to buy in the Lake Tahoe Basin. They desired a home set back from the street with tree cover and a creek. They contacted Campbell, a sales representative of Village Development, who showed them two lots in Ponderosa Subdivision No. 4 at Incline Village. That subdivision had been designed, planned and developed by Village Development. The lots pleased the Filices since Second Creek coursed through them and there was adequate tree cover. Before deciding to purchase, they inquired of Campbell as to whether the creek would pose a problem with regard to “rising and falling,” and were told by Campbell 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, and year by year.” They purchased the lots, one from Village Development directly, and the other from a third person, and hired an architect to prepare plans and specifications for a home on the low portion of the property near Second Creek. Those plans were submitted to the Architectural Control Committee of the subdivider for its approval, and were approved. Arthur Wood, one of the three members of the Committee wished to have the home built on the higher part of the property in order that it would be more readily visible, and thus aid in selling other lots. His desire, however, was not transmitted to the Filices. Raymond Smith, who was employed by Village Development to lay out the subdivision, acknowledged the potentiality of some inundation of Second Creek even though there had been no history of its ever having flooded. 90 Nev. 305, 318 (1974) Village Development Co. v. Filice The Filices then employed a contractor to build their home. They used the home for about two years and then listed it for sale. Before a sale was made the home was demolished by the August 1967 flood. The convective storm commenced above the elevation where development activity had taken place. There was no recorded history of a similar occurrence on Second Creek. However, after the flood, expert witness hypothesized statistical information from which the jury arguably could infer that representatives of the subdivider should have known that the proposed location of the Filice home was within the flood plain of Second Creek. Moreover, there was substantial evidence to indicate that had their home been built on the elevated portion of their property it would have escaped damage. These circumstances called for an instruction regarding the liability of a vendor of land who has parted with title, possession and control to his vendee, with regard to any concealed conditions known to the vendor which involve an unreasonable danger, and which he may anticipate that the vendee may not discover. Kimberlin v. Lear, 88 Nev. 492, 495, 500 P.2d 1022 (1972). Village Development offered such an instruction couched in language borrowed 2 from Rest., Torts, 2d ed., §§ 351, 353. That instruction was refused. In lieu thereof the court gave a products liability instruction [BAJI 9.20; Rest., Torts, 2d ed., § 388] apparently on the assumption that one " ______ 2 Sec. 351: “A vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land by any dangerous condition, whether natural or artificial, which comes into existence after the vendee has taken possession.” Sec. 353: “(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 and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if (a) the vendee does not know or have reason to know of the condition or the risk involved, and (b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk. “(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.” 90 Nev. 305, 319 (1974) Village Development Co. v. Filice who develops and sells subdivided land stands in the same position as the manufacturer and seller of chattels. That instruction was reworded to make needed substitutions. 3 The law does not treat the vendor of land in the same manner as a seller of chattels. Their duties and liabilities are not precisely the same. This error may not be cast aside as harmless since it bears directly upon duty and liability. Murdock v. Petersen, 74 Nev. 363, 332 P.2d 649 (1958). (B). The possible liability of Village Development based upon fraudulent misrepresentation also was presented to the jury. As to this claim for relief it is asserted, among other things, that the evidence offered simply was too slim to allow any recovery. ______ 3 Prosser, Torts, 4th ed., at 412-413: “The vendor of real property who parts with title, possession and control of it ceases to be either an owner or an occupier. Ordinarily, therefore, he is permitted to step out of the picture and shift all responsibility for the condition of the land to the purchaser. As to sales of land the ancient doctrine of caveat emptor lingered on, and is still very largely in force; and it is only in recent years, and then to a very limited extent that the implied warranties which have grown up around the sale of chattels have been paralleled as to land. This was perhaps for the reason that great importance is attached to the deed of conveyance, which is taken to represent the full agreement of the parties, and to exclude all other terms; the lack of any standard marketable quality, or even standard use, of land; and the fact that the vendee normally inspects the property before purchase, and so is assumed to have accepted it as it is. Thus in the absence of express agreement or misrepresentation the purchaser is expected to make his own examination and draw his own conclusions as to the condition of the land; and the vendor is, in general, not liable for any harm resulting to him from any defects existing at the time of transfer. Still less is he liable to other persons who may come upon the land. “With the passage of time, an increased regard for human safety, and a sadly needed improvement in bargaining business ethics, have led to the development of two exceptions to this once universal rule. One of them, which finds support in the cases of lessors, and in the Restatement of Torts, is that the vendor is at least under a duty to disclose to the vendee any concealed conditions known to him which involve an unreasonable danger to the health, or safety of those upon the premises, and which be may anticipate that the vendee will not discover. If he fails to make such disclosure, he becomes liable for injury resulting from such conditions to the vendee, or to members of his family, or others upon the land in the right of the vendee. The older view was to the contrary, and there are still courts whose latest decisions deny even this obligation; but the duty should certainly exist, if only because of the analogy to the “something like fraud” in permitting even a licensee to enter in the face of a concealed and undisclosed hazard, and because the risk to the vendee is clearly great in proportion to the relatively slight burden of disclosure cast upon the vendor. “The recognition of this duty of disclosure has thus far ended the progress of any negligence liability of the vendor.” 90 Nev. 305, 320 (1974) Village Development Co. v. Filice Clear and convincing proof must support a claim of fraud. Miller v. Lewis, 80 Nev. 402, 395 P.2d 386 (1964); Tallman v. First Nat. Bank, 66 Nev. 248, 208 P.2d 302 (1949); Gruber v. Baker, 20 Nev. 453, 23 P. 858 (1890). And, as we stated in Clark Sanitation v. Sun Valley Disposal, 87 Nev. 338, 341, 487 P.2d 337 (1971), “although this is primarily a trial court standard, its view of the matter is not necessarily conclusive since, upon review, we must consider the sufficiency of the evidence in the light of that standard, and where there exists no more than a paucity of evidence to support the charge of fraud, we will not hesitate to reverse. Nevada Mining & Exp. Co. v. Rae, 47 Nev. 182, 223 P. 825 (1924).” The quoted language suits this case. The charge of fraud rested mainly upon two items of evidence. First, the statement of Campbell, as the sales representative of Village Development, that Second Creek did not vary more than a few inches year to year. Second, the concealment by Village Development of a material fact about which, inferentially, it should have had knowledge, namely, that the proposed location of the Filice home was within the flood plain of Second Creek. There is no suggestion that Campbell's statement did not reflect his honest belief. Neither did representatives of Village Development know of prior floods of Second Creek. The evidence is otherwise. Cf. Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409 (1954), where the failure to disclose the material fact of a known marriage was held to be fraudulent concealment. There was no history of similar floods on Second Creek. Whether the subdivider should have known and, therefore, foreseen the possibility of a convective storm and flood which would damage homes along Second Creek is a question bearing upon the issue of negligence. It does not give a basis for fraud. (C). The jury assessed punitive damages of $50,000. This award is challenged as unlawful. NRS 42.010 allows punitive damages “in an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, express or implied.” For reasons already expressed, I perceive no oppression or fraud in this case. The term “malice” as used in the statute means malice in fact and denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it. Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 610, 503 P.2d 9 (1972). It contemplates willful and intentional conduct done in reckless disregard of possible results. Nevada Cement Company v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). An award of punitive damages was approved in the Nevada (2! " 3 " " ! 90 Nev. 305, 321 (1974) Village Development Co. v. Filice Credit Ratting case because the attachment of property there involved was far in excess of the debt and was made with the intent of pressuring payment. And, in the Lemler case, the defendant knew that if it continued to spew dust from its cement kiln that damage would ensue, but did so notwithstanding such knowledge. In each instance there existed a reasonable basis for the contention that the defendant's conduct was carried out in reckless disregard of the rights of the plaintiff. Evidence of that kind is absent from the record before us. As a matter of law, punitive damages are not recoverable. To this extent, I agree with the majority opinion. I would set aside the judgment upon jury verdict against Village Development and remand the case for a new trial on the issue of negligence alone. 2. Appeal No. 6596. Filice v. Village Development and Campbell. In view of the majority opinion with regard to Appeal No. 6759, it is not useful to express my thoughts as to this appeal. ______ 90 Nev. 321, 321 (1974) Abbott v. Harrah ROBERT L. ABBOTT and MARY ALICE ABBOTT, Husband and Wife, Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA and HONORABLE GRANT L. BOWEN, Judge Thereof, Respondents. SCHERRY HARRAH, Real Party in Interest. No. 7186 August 29, 1974 526 P.2d 75 Petition for a peremptory writ of prohibition to restrain the trial court from proceeding further in an action commenced by Scherry Harrah against Robert L. Abbott and Mary Alice Abbott, husband and wife, upon a promissory note. A copy of the summons and complaint were personally served on Robert Abbott at his home in San Francisco, California, the lawsuit on the note having been commenced in the Second Judicial District Court of Nevada in Reno. The trial court denied petitioner's motion to quash service of process and petitioner now seeks prohibition from this court. Both parties concede the propriety of prohibition as the proper remedy. 90 Nev. 321, 322 (1974) Abbott v. Harrah The Supreme Court, Zenoff, J., held that, even though note was signed by defendant in California, where defendant was a principal in stock ownership and operation of business of Nevada corporation in Nevada, he acted as executive head of committee formed for underlying purpose evidenced by loan, he participated in all meetings in Nevada that led to procurement of loan and he gave his personal promise in Nevada to reimburse plaintiff in event she had to pay obligation to lender, Nevada court had jurisdiction over defendant in the action on the note. Petition denied. Batjer, J., and Thompson, C. J., dissented. Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of Reno, for Petitioners. Robert E. Rose, District Attorney, Washoe County, for Respondents. S wanson, Swanson & Capurro, of Reno, for Real Party in Interest. 1. Courts. To obtain in personam jurisdiction over an out-of-state defendant based upon single act within forum state, the defendant must purposefully avail himself of privilege of acting in forum state or of causing important consequences in that state, cause of action must arise from consequences in forum state of defendant's activities and activities of defendant or consequences of those activities must have a substantial enough connection with forum state to make exercise of jurisdiction over defendant reasonable. NRS 14.065, subd. 2(a). 2. Courts. Even though note was signed by defendant, a California resident, in California, where defendant was a principal in stock ownership and operation of business of Nevada corporation in Nevada, he acted as executive head of committee formed for underlying purpose evidenced by loan, he participated in all meetings in Nevada that led to procurement of loan and he gave his personal promise in Nevada to reimburse plaintiff in event she had to pay obligation to lender, Nevada court had a personal jurisdiction over defendant in the action on the note. NRS 14.065, subd. 2(a). OPINION By the Court, Zenoff, J.: Scherry Harrah, Richard Wiseman and Robert Abbott were ! 5 I! ( " " 2 90 Nev. 321, 323 (1974) Abbott v. Harrah the principal and controlling stockholders of Magnatec Corporation, a Nevada corporation, whose principal place of business was in Reno, Nevada. Harrah resides in Nevada, Wiseman and Abbott are residents of California. All three were active members of the Board of Directors of the corporation and attended director's meetings in Nevada. When the corporation fell into financial difficulties Abbott became the paid chairman of an executive committee formed to handle the responsibility of solving the corporation's financial problems. Abbott, as chairman of the special committee, apparently promoted the idea of obtaining a loan for the corporation. A loan in fact was negotiated from the First National Bank of Nevada in Reno. To secure the loan the bank required the written guaranties of the three individuals. The guaranties were executed by written agreement which included the individuals' commitment to indemnify each other if one of them was called upon to pay the bank loan to the corporation. At the time of the loan from the bank Wiseman and Abbott acceded to Harrah's request that they execute promissory notes in her favor to take effect in the event the bank caused her to pay the entire loan made by the bank to the corporation. Abbott, in California, requested that a note for his share be delivered to him in California because at the time he was too busy to come to Nevada just to sign the note. A note was so delivered to him, he signed it in California and it was returned to Harrah in Nevada. In course of time Harrah was called upon by the bank to pay the corporate obligation, which she did. She then made claim upon Abbott for payment of his note of $8,333.00 and brought suit thereon when he failed to pay. These proceedings followed. Petitioner Abbott contends that the Nevada court lacks jurisdiction over him because the promissory note upon which the lawsuit is based was executed in California and that the action should be brought there. Harrah's claim of proper jurisdiction is based on NRS 14.065(2)(a) which provides that: “Any person who, in person or through an agent or instrumentality, does any of the acts enumerated in this subsection thereby submits himself and, if an individual, his personal representative to the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts: . . . Transacting any business or negotiating any commercial paper within this state; . . .” This court approved the constitutionality of NRS 14.065 in Certain-Teed Products Corp. v. Second Judicial District Court, 7 90 Nev. 321, 324 (1974) Abbott v. Harrah 87 Nev. 18, 479 P.2d 781 (1971). We said: “The constitutional concern is whether the transaction to business in Nevada produced effects here of such significance that it is not unfair to allow this state to resolve resulting litigation. In short, are traditional notions of fair play and substantial justice offended? . . .” [Headnote 1] Certain-Teed, supra, McGee v. International Life Ins. Co., 355 U.S. 220 (1957), and Hanson v. Denckla, 357 U.S. 235 (1958), seem to set forth the criteria defining the outer limits of in personam jurisdiction over a out-of-state defendant based upon a single act within the forum state. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. [Headnote 2] Except for Abbott's mechanical step in executing his signature to the promissory note in California the entire transaction between Scherry Harrah and the petitioner took place in and had to do with events in the state of Nevada. Magnatec Corporation was a Nevada corporation doing business in Nevada. Abbott was a principal in the stock ownership and operation of the business of the corporation in Nevada. He acted as executive head of the committee formed for the underlying purpose evidenced by the bank loan, participated in all meetings in Nevada that led to the procurement of the bank loan and gave his personal promise in Nevada to reimburse Scherry Harrah in the event she had to pay the obligation to the bank. It cannot be said that he had no connections with this state. McGee, supra; Melvin Pine & Co. v. McConnell, 76 N.Y.8.2d 279 (1948). In cases of this sort it is the cumulative significance of all the activities conducted in the jurisdiction rather than the isolated effect of any single activity that is determinative. Melvin Pine & Co., supra. The contacts with Nevada fulfill our criteria pronounced in Certain-Teed, supra. We need not concern ourselves at this point with deciding whether or not the signing of the note in California constituted “negotiating any commercial paper within P 2 . /-8/8 90 Nev. 321, 325 (1974) Abbott v. Harrah this state” under NRS 14.065(2)(a). Modern concepts of the orderly administration of justice require that a person who comes or extends himself into a forum's territory and encourages the obligation therein appear upon reasonable call and answer in personam. Executive Properties, Inc. v. Sherman, 223 F.Supp. 1011 (D.Ariz. 1963). Petition denied. Mowbray and Gunderson, JJ., concur. Batjer, J., dissenting: I respectfully dissent. This petition for a writ of prohibition challenges the service of process upon the petitioners made pursuant to NRS 14.065(2)(a). Scherry Harrah, the real party in interest in this original proceeding, filed a complaint against Robert L. Abbott and Mary Alice [Marialyce] Abbott, husband and wife, the petitioners herein, and against Richard M. Wiseman and Margaret A. Wiseman, husband and wife, seeking a judgment against the Abbotts, jointly and severally, in the sum of $8,333.33, plus interest, and a similar sum jointly and severally from the Wisemans. The Abbotts, who were personally served with process in the state of California, moved the district court to quash the service for want of jurisdiction. Their motion was denied and this proceeding seeks to prohibit the district court from further considering Scherry Harrah's claim for relief against them. The Abbotts, Scherry Harrah and the Wisemans were the majority stockholders in Magnatec Corporation, a Nevada corporation, sometimes hereinafter referred to as “the corporation” which found itself in financial trouble in the spring of 1970. A loan of $25,000 was eventually negotiated by officers of the corporation through an office of the First National Bank in Reno, Nevada, hereinafter referred to as “the bank,” but only with the additional security of a continuing guaranty personally executed by Scherry Harrah, the Wisemans and the Abbotts. Scherry Harrah, the Wisemans and the Abbotts, executed a written contract agreeing that if any one of the parties happened to be required to pay the bank under the continuing guaranty that the party or parties making such payment would be reimbursed by the other parties. In addition, Scherry Harrah required the Abbotts and the Wisemans to each jointly and severally execute a promissory note in her favor in the principal sum of $8,333.33, plus interest, payable upon demand if %" # 5 90 Nev. 321, 326 (1974) Abbott v. Harrah Scherry Harrah was required to repay the corporation's loan to the bank. The Abbotts lived in the state of California. Richard M. Wiseman, who was the president of Magnatec Corporation, requested Glen Speidel, a director and member of the executive committee of the corporation to take the documents to the state of California for the Abbotts' signatures. It is not clear from the record just where Speidel picked up the documents before taking them to the Abbotts in California, however, the promissory note was prepared on office stationery of Swanson and Swanson, Attorneys-at-Law, Reno, Nevada. The record seems to indicate that Speidel also carried the continuing guaranty for signature. This can be inferred from the fact that the promissory note, agreement and continuing guaranty were each signed by the Abbotts, and were each dated June 3, 1970. NRS 47.250(12); NRS 104.3114(3). The corporation defaulted in its payment of the loan. The bank notified the guarantors of the default and demanded payment. This demand was not met. After a subsequent demand Scherry Harrah paid the bank the sum of $27,266.30, and then in an effort to collect from her co-guarantors brought this lawsuit. In her complaint, Scherry Harrah alleged that the petitioners, as residents of the state of California, if served pursuant to NRS 14.065, were subject to the in personam jurisdiction of the district court, by virtue of the fact that they transacted business in the state of Nevada and had negotiated, or caused to be negotiated, commercial paper within the state of Nevada. Although the district court entered its order “in favor of the plaintiff's position,” it did not specifically find, that the petitioners either negotiated, or caused to be negotiated, commercial paper in the state of Nevada, or that they transacted business in the state of Nevada, or both; but that finding must be inferred. 1. Did the Abbotts transact any business in this state? With reference to Mary Alice [Marialyce] Abbott, there is absolutely no evidence in the record to connect her with the state of Nevada for the transaction of business or otherwise. With reference to Robert L. Abbott, any conduct on his part in connection with the business of Magnatec Corporation prior to negotiations with the First National Bank of Nevada for the $25,000 loan to the corporation is not within this cause of action and should not be considered. NRS 14.065(3) limits the scope of that statute to causes of action from the acts enumerated therein. 90 Nev. 321, 327 (1974) Abbott v. Harrah In Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971), this court said: “The broad language used in the statute [NRS 14.065] discloses a legislative intention to reach the outer limits of federal constitutional due process. Such phrases as ‘transacting any business within this state,' ‘negotiating any commercial paper within the state,' ‘committing a tortious act within this state,' are almost without restriction or limitation. . . . The United States Supreme Court decisions of McGee v. International Life Ins. Co., 355 U.S. 220 (1957), and Hanson v. Denckla, 357 U.S. 235 (1958), when read together, seem to set forth the criteria defining the outer limits of in personam jurisdiction over an out-of-state defendant based upon a single act within the forum state. First, defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.” 87 Nev. at 23, 479 P.2d at 784. The record shows that Robert L. Abbott was in the state of Nevada on June 1, 1970. The only evidence in the record that would indicate that Robert L. Abbott even discussed the loan from the bank to the corporation, while physically present in this state, is the statement by Richard M. Wiseman in his affidavit that: “both Mr. Abbott and I orally agreed in Nevada that we would be responsible for one-third respectively of the $25,000.00 loan if the corporation did not pay it.” Between Abbott and Wiseman an oral agreement may have been reached in Nevada which was later formalized, but the statement by Richard M. Wiseman cannot be relied upon as evidence that Robert L. Abbott, while physically present in Nevada, agreed with Scherry Harrah to be responsible for one-third of the $25,000 loan if the corporation failed to pay. There is no evidence that Scherry Harrah and Robert L. Abbott ever discussed or formalized the basis for the promissory note or the agreement in this state. The consequences in the state of Nevada which arose from the Abbotts' activities, to-wit, their signatures on the continuing guarantee, was the loan of $25,000 from the bank to the corporation. This cause of action did not arise from the default on that loan. The promissory note from the Abbotts to Scherry Harrah upon which this cause of action arose was 3 ( # F 90 Nev. 321, 328 (1974) Abbott v. Harrah executed and defaulted upon in the state of California and did not arise from the consequence of the Abbotts' activities in the state of Nevada. The criteria of Certain-Teed Prods. v. District Court, supra, is not in the disjunctive. Each of the requirements must be met. Limited to this cause of action there is no evidence that Robert L. Abbott purposefully availed himself of the privilege of acting in the state of Nevada. The cause of action did not arise from the consequence of Robert L. Abbott's activities in Nevada but, instead, arose as a result of his signing the agreement and promissory note in the state of California. In Hanson v. Denckla, supra, the United States Supreme Court refused to approve in personam jurisdiction over a nondomiciliary and stated: “. . . [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” 357 U.S. at 253. 2. Although, the majority concluded: “We need not concern ourselves at this point with deciding whether or not the signing of the note in California constituted the ‘negotiating of any commercial paper within this state' under NRS 14.065 (2)(a).” I believe it necessary to discuss whether the Abbotts, or either of them, negotiated, or caused to be negotiated, commercial paper within the state of Nevada. NRS 104.3101-NRS 104.3805, inclusive. Scherry Harrah argues that Speidel was the agent of the Abbotts in his trip to the state of California to obtain their signatures. From the record it appears that Speidel was not acting on his own volition but upon Richard Wiseman's request. The promissory note which was prepared by Scherry Harrah's attorney was placed in the hand of the courier, Speidel, either by him or by Richard M. Wiseman, the president of the corporation. Speidel took it to the Abbotts for their signature and immediately returned it to Scherry Harrah's attorney in the state of Nevada. Under these facts, negotiation was at the place of delivery in California, since it was there that the Abbotts, as makers, lost control over the note. In choosing the courier, or in taking advantage of his selection by Richard M. Wiseman, as well as that particular method of communication, Scherry Harrah impliedly authorized the Abbotts to return the note through Speidel. His services were directly beneficial to the corporation and Scherry Harrah, and were only indirectly beneficial to the Abbotts if the loan assisted the corporation. Our statutes provide that an instrument is negotiated by " 90 Nev. 321, 329 (1974) Abbott v. Harrah delivery, and that delivery with respect to instruments means the voluntary transfer of 1 2 3 possession. NRS 104.3202(1); NRS 104.1201(14); and NRS 104.3102(1)(e). If a maker delivers to a stranger, his promissory note which is made to a payee or order, with an understanding, either express or implied, that the stranger will deliver the note to the payee on behalf of the maker, the stranger becomes the agent of the payee and delivery is sufficient to 4 effect negotiation. Here the Abbotts voluntarily transferred possession of the note to Speidel in the state of California. I believe it was error for the trial court to find that the promissory note from which this cause of action arose was negotiated in this state. The maintenance of this suit in this state against the petitioners offends “traditional notions of fair play and substantial justice.” International Shoe Company v. State of Washington, 326 U.S. 310 (1945). I believe a writ of prohibition should issue. Thompson, C. J., concurring. ______ 1 NRS 104.3202(1): “Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated by delivery.” 2 NRS 104.1201(14): “GENERAL DEFINITIONS [Effective until July 1, 1975.] Subject to additional definitions contained in the subsequent articles of this chapter which are applicable to specific articles or parts thereof, and unless the context otherwise requires, in this chapter: . . . 14. ‘Delivery' with respect to instruments, documents of title, chattel paper or securities means voluntary transfer of possession.” 3 NRS 104.3102(1)(e): “In this article unless the context otherwise requires: . . . (e) ‘Instrument' means a negotiable instrument.” 4 By analogy, respecting the delivery of deeds, compare: Hall v. Hall, 168 S.W.2d 10 (Ky.App. 1943); Frederick v. Frederick, 178 N.W.2d 834 (N.D. 1970); Capozzella v. Capozzella, 196 S.E.2d 67 (Va. 1973.) ______ 90 Nev. 329, 329 (1974) Lamb v. Mirin RALPH LAMB, Individually, and as Sheriff of Clark County, Nevada, and the CLARK COUNTY SHERIFF'S OFFICE, Appellants, v. WILLIAM MIRIN, Respondent. No. 7217 September 4, 1974 526 P.2d 80 Appeal from an order granting a preliminary injunction in the Eighth Judicial District Court; Thomas J. O'Donnell, Judge. 90 Nev. 329, 330 (1974) Lamb v. Mirin Taxicab driver brought action to enjoin sheriff from seizing his taxicab driver's permit for offense of double loading. The district court granted relief requested, and sheriff appealed. The Supreme Court, Breen, D. J., held that county regulation prohibiting double loading violated state statute allowing double loading and could not stand. Affirmed. Roy A. Woofter, District Attorney, and George F. Ogilvie, Jr., Chief Civil Deputy District Attorney, Clark County, for Appellants. Kermitt L. Waters, of Las Vegas, for Respondent. 1. Municipal Corporations. Whenever a legislature sees fit to adopt a general scheme for the regulation of a particular subject, local control over the same subject, through legislation, ceases. 2. Municipal Corporations. In determining whether legislature intended to occupy a particular field to the exclusion of all local regulation, courts may look to whole purpose and scope of legislative scheme. 3. Municipal Corporations. That which is allowed by general laws of a state cannot be prohibited by local ordinance without an express grant on part of legislature. 4. Counties. A county may not enforce regulations which are in conflict with clear mandate of legislature. 5. Automobiles. County taxicab regulation prohibiting double loading or multiple loading transactions and activities at airport which was owned and operated by county in its proprietary capacity conflicted with state statutes which preempted field of taxicab regulation and which authorized double loading and thus could not stand. NRS 706.881-706.885, 706.8849, subd. 1(f). 6. Municipal Corporations. In some instances, a municipal directive can supersede and render a prior conflicting state law inapplicable but only where subject matter is purely or strictly of local concern and power to regulate particular subject matter is expressly conferred. 7. Municipal Corporations. Plenary authority of a legislature operates to restrict and limit exercise of all municipal powers, whether public or governmental, proprietary or private. 8. Automobiles. Preemption by state of field of taxicab regulation as evidenced in statutes setting forth requirements for operation of taxicabs in counties with populations exceeding 200,000 was applicable to proprietary functions of local governments. NRS 706.881-706.885. 90 Nev. 329, 331 (1974) Lamb v. Mirin 9. Statutes. Fact that statutes enacted prior to 1963 supported county taxicab regulation prohibiting double loading did not render county statute valid, in light of fact that 1969 statute allowing double loading superseded 1963 legislative enactments. NRS 495.010 et seq., 496.010 et seq., 706.011 et seq. OPINION By the Court, Breen, D. J.: On October 25, 1972, respondent William Mirin, a taxicab driver, was in the process of loading passengers at McCarran International Airport, located in Clark County, Nevada. He had secured permission from two passengers to share the taxi ride and fares with other persons. An officer of the Clark County Sheriff's Department observed Mirin loading additional passengers, accused him of “double loading” and seized his taxi driver's permit. When Mirin returned to the airport, a deputy sheriff advised him that his privilege to pick up passengers at the airport was suspended for thirty days because of “double loading.” On November 1, 1972, Mirin filed a Complaint in the District Court alleging that the person who had engaged his taxicab had given permission for other persons to ride therein and prayed that the District Court enjoin the appellants from “interfering in any manner whatsoever, with plaintiff's peaceful transaction of his business, and from harassing, annoying, embarrassing, humiliating and intimidating or attempting to intimidate plaintiff.” In Mirin's Complaint, he alleged that NRS 706.8849(1)(f) preempted that particular field of the law and precludes Clark County from prohibiting “double loading” of taxicabs at McCarran International Airport. After a hearing, the District Court concluded that by virtue of NRS 706.881 to NRS 706.885, the State of Nevada had preempted the field of taxicab regulation, and that “double loading” was authorized under certain circumstances. On December 7, 1972, that Court enjoined the appellants from “seizing plaintiff's (Mirin's) taxicab driver's permit for the offense of double loading, or from doing so in any event, without a prior hearing having been conducted. This appeal is taken from that Order. Clark County owns and operates McCarran International Airport, which is located on county owned real property. On March 20, 1970, the Clark County Commissioners enacted ! " 3 5! ! 90 Nev. 329, 332 (1974) Lamb v. Mirin certain rules, regulations, sanctions and penalties with respect to taxicab drivers picking up passengers at the airport. Section 8 of McCarran Airport Rules and Regulations provides that “Double loading or multiple loading transactions and activities at McCarran International Airport, regardless of the amount of traffic, and at any time of the day or night, are strictly forbidden.” The penalties and sanctions to which a driver could be subjected included, among others, immediate seizure of a taxi driver's work permit, and/or suspension of the right to load and unload passengers at McCarran International Airport. The rules and regulations also make provisions for post revocation notice, hearing and review by a hearing officer and/or the Board of Clark County Commissioners. During its 1969 session, the legislature enacted NRS 706.881 to NRS 706.885, which sets forth requirements for the operation of taxicabs in counties whose population exceeds 200,000. On October 25, 1972, Clark County's population exceeded 200,000. 1 NRS 706.8849(1)(f) authorizes the practice of “double loading” under certain circumstances, and NRS 706.8843 sets forth the manner in which sanctions are to be imposed for violations of the taxicab regulations by drivers, including a hearing prior to imposing the sanction. A reading of NRS 706.881 to 706.885 reflects a clear legislative intent to exclusively occupy the field with respect to taxicab regulations. Those statutes set forth a general and comprehensive taxicab regulatory scheme. [Headnotes 1-4] Whenever a legislature sees fit to adopt a general scheme for the regulation of a particular subject, local control over the same subject, through legislation, ceases. In determining whether the legislature intended to occupy a particular field to the exclusion of all local regulation, the Court may look to the whole purpose and scope of the legislative scheme. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937). In re 4 & (-.. * :- /( ______ 1 NRS 706.8849(1)(f) reads: “1. A taxicab driver shall: (f) Not permit any person other than the person who has engaged the taxicab to ride therein unless the person who has engaged the taxicab gives permission for such other person to ride in the taxicab, but if permission is given the fare charged by the driver shall be as follows: when the person who has engaged the taxicab is first to leave the taxicab and pay the fare, the taxi meter shall be reset to zero.” 90 Nev. 329, 333 (1974) Lamb v. Mirin Loritizo, 59 Cal.2d 445, 380 P.2d 656 (Cal. 1963); In re Moss, 23 Cal.Rptr. 361, 373 P.2d 425 (Cal. 1962). That which is allowed by the general laws of a state cannot be prohibited by local ordinance, without an express grant on the part of the legislature. People v. Commons, 64 Cal.App.2d Supp. 925, 148 P.2d 724 (Cal. 1944). In no event may a county enforce regulations which are in conflict with the clear mandate of the legislature. Mabank Corporation v. Board of Zoning Appeals, 143 Conn. 132, 120 A.2d 149 (1956). [Headnote 5] It would be difficult to find a more comprehensive legislative scheme or an ordinance in clearer conflict with a state statute. Appellants also contend that the preemptive effect evidenced in NRS 706.881 to NRS 706.885 is not applicable or binding on Clark County because it owns, operates and enacts rules and regulations governing McCarran International Airport solely in its proprietary capacity. [Headnote 6] In some instances, a municipal directive can supersede and render a prior conflicting state law inapplicable, but only where the subject matter is purely or strictly of local concern, and the power to regulate the particular subject matter is expressly conferred. Ronnow v. City of Las Vegas, supra; Goodall v. City of Clinton, 161 P.2d 1011 (Okla. 1945). There is no such express grant of power in this case. [Headnotes 7, 8] The plenary authority of a legislature operates to restrict and limit the exercise of all municipal powers, whether public or governmental, proprietary or private. Twohy Bros. Co. v. Ochoco Irr. Dist., 216 P. 189 (Ore. 1923). The preemption by the state as evidenced in NRS 706.881 to NRS 706.885 is applicable to proprietary functions of local governments. [Headnote 9] Appellants finally contend that NRS Chapters 495 and 496 enacted prior to 1963 support the regulation in question. It is sufficient to say that Chapter 706 of NRS is the latest expression by the legislature on the subject, and has superseded any inconsistent provisions of prior legislative enactments. Our holding that NRS Chapter 706 has preempted the field with respect to taxicab regulations makes it unnecessary for us to consider the propriety of the appellant's actions in seizing I 3 ! ! ! I ( B F " ! 90 Nev. 329, 334 (1974) Lamb v. Mirin Mirin's taxi driver's permit and suspending his loading privileges at McCarran's International Airport without a prior hearing. Affirmed . Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 334, 334 (1974) Cavell v. Cavell LAURA A. CAVELL, Appellant, v. RICHARD J. CAVELL, Respondent. No. 7248 September 13, 1974 526 P.2d 330 Appeal from orders of the Second Judicial District Court, Washoe County, denying alimony and increased child support; Grant L. Bowen, Judge. Former wife moved to modify divorce decree to include alimony award and to increase child support payments, and brought independent action against former husband for alimony. The district court denied the motions and dismissed the action, and she appealed. The Supreme Court, Mowbray, J., held that where former wife, after receiving prompt notice of divorce decree, did nothing to modify its provisions for 22 months and did not file separate action seeking alimony until 10 months later, and court did not expressly retain jurisdiction regarding alimony, wife was barred from seeking alimony, but that case would be remanded with instructions with respect to child support. Affirmed in part; remanded with instructions with respect to child support. Thompson, C. J., dissented. Harper & Harper, of Reno, for Appellant. Charles M. Murphy, of Reno, for Respondent. 1. Divorce. Where former wife, after receiving prompt notice of divorce decree, did nothing to modify its provisions for almost 22 months and did not file separate action seeking alimony until 10 months later, and court did not expressly retain jurisdiction regarding alimony, she was barred from seeking to modify divorce decree to include alimony and from bringing an independent action for alimony against former husband. NRS 125.170; NRCP 60. 90 Nev. 334, 335 (1974) Cavell v. Cavell 2. Divorce. Where unrefuted evidence showed that child required increased expenditures as he grew older, that wife was financially unable to adequately provide for child, and that father was doctor of medicine with lucrative practice, but record did not indicate why increase in child support was refused, case would be remanded with instructions to reconsider former wife's motion for increased child support, and, in the absence of any increase, to explain with reasonable specificity reason for failure to do so. OPINION By the Court, Mowbray, J.: Appellant, Laura A. Cavell, has appealed from orders of the district court (1) denying her motion to modify a divorce decree to include an alimony award, (2) dismissing her independent action for alimony, filed 32 months after the divorce decree was entered, and (3) rejecting her motion to increase child support payments. 1. The Facts. Laura married respondent, Richard J. Cavell, in New York on September 20, 1962. One child, Marc Gerald, was born to the parties in June 1963. Laura and Richard separated in December 1963. They have lived separate and apart since that time. Richard established residence in Nevada, and in November 1969, he filed an action for divorce. Laura was personally served with a copy of the complaint and summons in Massachusetts. She failed to answer or otherwise plead to the action. Default was entered against her. Judge Bowen, before whom the divorce hearing was held, granted Richard a divorce on the ground that the parties had lived separate and apart without cohabitation for more than 1 year. The judge ordered Richard to pay $125 per month child support for Marc, who was living with Laura, but did not order alimony or support for Laura. Laura received a copy of the divorce decree and the notice of entry of judgment in late December 1969. Nothing was done thereafter for almost 2 years. Laura then filed a motion seeking alimony and increased child support payments, in the original divorce proceedings. Further, on August 31, 1972, approximately 32 months after the divorce decree, Laura filed a separate, independent action against Richard, seeking alimony. By stipulation of counsel, all matters were consolidated for a single hearing before Judge Bowen on September 22, 1972. At the conclusion of the hearing, the judge 4 90 Nev. 334, 336 (1974) Cavell v. Cavell denied Laura's motion for alimony and increased child support, and dismissed her independent suit for alimony. 2. Alimony. [Headnote 1] At common law there is no right to seek an amendment of a divorce decree regarding alimony. That rule was judicially adopted in Nevada in Sweeney v. Sweeney, 42 Nev. 431, 438, 179 P. 638, 639 (1919): “There is nothing peculiarly applicable to a divorce proceeding which gives a court jurisdiction to amend or alter a final judgment. A decree a vinculo is final, and the jurisdiction of the court over the parties is after the expiration of the term at an end; and just as there can be no grant of alimony after such a divorce, so there can be no change in the award of alimony, unless the right to make such a change is reserved by the court in its decree, as it may be, or is given by statute, as it often is. Stewart on Marriage and Divorce, secs. 366, 376. But where there is no such statute (and we have none), and where the decree does not reserve the right to the court (as it does not here) to alter the decree for alimony, no such authority exists. Howell v. Howell, 104 Cal. 45, 37 Pac. 771, 43 Am.St.Rep. 70; Egan v. Egan, 90 Cal. 15, 27 Pac. 22; Ruge v. Ruge, 97 Wash. 51, 165 Pac. 1063 L.R.A. 1917F, 721; Kamp v. Kamp, 59 N.Y. 212. . . .” Later, however, in Folks v. Folks, 77 Nev. 45, 359 P.2d 92 (1961), in interpreting two Nevada statutes (Stats. Nev. 1947, ch. 70, § 1, at 271, now NRS 125.140; and Stats. Nev. 1949, ch. 79, § 1, at 98-99, now NRS 125.170), this court ruled that the trial court could at any time modify or vacate provisions for unaccrued alimony. But this alteration of the Sweeney rule was short-lived. The Nevada Legislature quickly amended NRS 125.170 to make it clear that unless the trial court expressly retained jurisdiction regarding alimony installments, it is powerless to amend judgments for nonaccrued alimony or support of the 1 wife. @ !+ "!!2 4 ! 3 $ !! ______ 1 NRS 125.170: “1. In divorce actions, installment judgments for alimony and support of the wife shall not be subject to modification as to accrued installments. Installments not accrued at the time a motion for modification is filed shall not be modified unless the court expressly retained jurisdiction for such modification at the final hearing. The provisions of this subsection apply to all such installment judgments whether granted before or after July 1, 1961. “2. The provisions of this section shall not preclude the parties from entering into a stipulation as to accrued installments prior to the time a motion for modification is filed.” 90 Nev. 334, 337 (1974) Cavell v. Cavell Judge Bowen, in granting Richard a divorce, refused to order him to pay alimony or support to Laura, and in doing so the court did not expressly retain jurisdiction regarding alimony. Laura received prompt notice of the divorce decree; yet she did nothing to modify its provisions for almost 22 months, when she filed her present motion for alimony and then, 10 months later, a separate action seeking support. Rule 60 of the Nevada Rules of Civil Procedure is controlling in the instant case. Since Laura was personally served with a copy of the complaint and summons, she could have, within 6 months from the granting of the 2 divorce, moved to set aside the decree and have her day in court in Nevada. She chose not to do so. We believe that she should be precluded from doing so now. The court had jurisdiction over Richard, and the court could have ordered him to pay alimony if Laura had elected to appear and assert her claim. She did not do so, nor did she move to set aside her default within the 6 months provided by Rule 60. We ! " $ !4 ______ 2 NRCP 60, in relevant part: “(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application, the motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. “(c) Default Judgments: Defendant Not Personally Served. When a default judgment shall have been taken against any party who was not personally served with summons and complaint, either in the State of Nevada or in any other jurisdiction, and who has not entered his general appearance in the action, the court, after notice to the adverse party, upon motion made within six months from the date of rendition of such judgment, may vacate such judgment and allow the party or his legal representative to answer to the merits of the original action. When, however, a party has been personally served with summons and complaint, either in the State of Nevada or in any other jurisdiction, he must make his application to be relieved from a default, a judgment, an order, or other proceeding taken against him, or for permission to file his answer, in accordance with the provisions of subdivision (b) of this rule.” 90 Nev. 334, 338 (1974) Cavell v. Cavell hold that she is barred from doing so, and affirm the lower court's order rejecting Laura's motion and action for alimony. 3. Child Support. [Headnote 2] Under NRS 125.140(2), the court retains jurisdiction during the minority of children of a marriage to make appropriate orders regarding the care and support of such children, even if 3 the divorce was obtained by default without an appearance by one of the parties. As this court has said on numerous occasions, the latest being Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974), we will not disturb the lower court's ruling when the record contains evidence supporting the court's ruling. The trial court is expected to call on his knowledge, training, and experience in making such orders. Fenkell v. Fenkell, 86 Nev. 397, 402, 469 P.2d 701, 704 (1970). The unrefuted evidence in this record shows that as Marc grew older he has required expenditures for health and dental care. He has greater school expenses. He is involved in athletic and musical activities. The record also demonstrates that Laura is financially unable to adequately provide for her son. Indeed, it is unrefuted that Laura is receiving Aid for Dependent Children for Marc in Massachusetts. Finally, it is conceded that Richard is a doctor of medicine with a successful and lucrative practice in the Reno area. The record does not tell us why the learned judge refused to increase the $125 monthly child support allowance awarded in 1969. Under the factual posture presented, the record suggests a possible abuse of discretion in the instant case on the question of child support. We therefore must remand the case on this issue with instructions to reconsider Laura's motion for increased child support, and in the absence of any increase we direct the court to set forth with reasonable specificity the reason for failure to do so. Otherwise, we affirm the orders entered below. Gunderson and Zenoff, JJ., concur. ______ 3 NRS 125.140(2): “2. In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same, even if the divorce was obtained by default without an appearance in the action by one of the parties. The party seeking such order shall submit to the jurisdiction of the court for the purposes of this subsection. The court may make such an order upon the application of one of the parties or the legal guardian of the minor.” 90 Nev. 334, 339 (1974) Cavell v. Cavell Batjer, J., concurring with the majority in the result: I believe the district court committed error when it concluded as a matter of law that it lacked jurisdiction to hear the independent suit brought by the appellant or to hear the motion by her for an award of alimony. The original decree [judgment] entered on December 15, 1969, was not res judicata on the subject of alimony. Furthermore, alimony is a proper subject to be decided by the district court (NRS 125.150) and in these proceedings it had jurisdiction over both parties who were physically present and testified. That part of the original decree providing that “no alimony is awarded to defendant” [Laura A. Cavell] is void. At the time it was entered the district court did not have the required in personam jurisdiction to reach any decision on the question of alimony, although it was raised in the original complaint. Vanderbilt v. Vanderbilt, 354 U.S. 416, 418-419 (1957). Cf. Armstrong v. Armstrong, 350 U.S. 568 (1956). Additionally, the district court erred when it concluded that the appellant had, without just cause, failed for an unreasonable period of time to seek relief with regard to the award of alimony or support. Laches is an affirmative defense which must be specially pleaded (NRCP 8(c)) and if not so pleaded it is waived. NRCP 12(b) and (h); Marschall v. City of Carson, 86 Nev. 107, 111, 464 P.2d 494 (1970); Coray v. Hom, 80 Nev. 39, 389 P.2d 76 (1964); Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523 (1959). Here, laches was not raised as an affirmative defense, moreover laches implies more than the mere lapse of time. Where the statute of limitations has not run there must be some actual or presumed change of circumstances to render it inequitable to grant relief. Miller v. Walser, 42 Nev. 497, 181 P. 437 (1919); Cooney v. Pedroli, 49 Nev. 55, 63, 235 P. 637 (1925). The record reveals no such change in circumstances favoring the respondent, but only that he enjoyed a more successful and affluent medical career. In spite of its errors the district court proceeded to conduct a full hearing and appellant was allowed ample latitude to testify regarding her past, present and future financial situation. Only when she began to testify about her parents' physical and financial status did the district court restrict her testimony. After the hearing the court specifically found appellant was not entitled to an award or alimony. Although I do not necessarily agree with that finding we cannot substitute our judgment for that of the trial court on conflicting evidence. Engleman v. Royal Insurance Co., 56 Nev. 319, 51 P.2d 417 (1935). Here, there is sufficient evidence in the record to support the district ! 90 Nev. 334, 340 (1974) Cavell v. Cavell court's finding and it should not be disturbed on appeal. Sala & Ruthe Realty Inc. v. Deneen, 89 Nev. 98, 507 P.2d 140 (1973); Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972); Jensen v. Brooks, 88 Nev. 651, 503 P.2d 1224 (1972); Ormachea v. Ormachea, 67 Nev. 273, at 280, 217 P.2d 355 (1950); Thompson v. Tonopah Lumber Co., 37 Nev. 183, at 188, 141 P. 69 (1914). Thompson, C. J., dissenting: NRCP 60(b)(3) allows a court to relieve a party from a final judgment that is void. Such a judgment may be challenged at any time. Dredge Corp. v. Peccole, 89 Nev. 26, 505 P.2d 290 (1973); Foster v. Lewis, 78 Nev. 330, 337, 372 P.2d 679 (1962); La Potin v. La Potin, 75 Nev. 264, 266, 339 P.2d 123 (1959). The Nevada divorce decree explicitly declared that the wife was not entitled to an award of alimony. This aspect of the divorce judgment now is challenged as void. The challenge is good. The Nevada divorce court was without power to adjudicate the wife's right to support since it did not possess essential in personam jurisdiction. Indeed, the court was as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and the husband was not subject to the divorce court's jurisdiction. These principles are solidly established. Vanderbilt v. Vanderbilt, 354 U.S. 416, 418-419 (1957); Armstrong v. Armstrong, 350 U.S. 568 (1956). Consequently, that part of the decree is absolutely void. The former wife should now be granted access to the Nevada court to litigate her entitlement, if any, to alimony. She has not enjoyed her day in court on that issue. Cf. Portnoy v. Portnoy, 81 Nev. 235, 238, 401 P.2d 249 (1965). The old case of Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638 (1919), is not relevant to this case. There, both parties appeared before the divorce court and an award of alimony was made. This court ruled that the divorce court was precluded thereafter from modifying the alimony award absent an express reservation of the power to do so. NRS 125.170(1) codifies the Sweeney rule. Obviously, neither Sweeney nor the statute governs the case where the court lacked power to adjudicate the right to alimony in the first instance. Respectfully, I dissent. ______ 90 Nev. 341, 341 (1974) Caple v. Raynel Campers, Inc. CARVER CAPLE, Appellant, v. RAYNEL CAMPERS, INC., and JOSEPH C. CROUCHET, Respondents. No. 7241 September 18, 1974 526 P.2d 334 Appeal is from judgment of the Eighth Judicial District Court, Clark County; James D. Santini, Judge. Action by owner of truck and owner of camper body loaned to truck owner against sole shareholder and employees of financing company to recover for losses occasioned when truck was erroneously repossessed and not returned. The district court awarded plaintiffs general and punitive damages, and sole shareholder appealed. The Supreme Court, Zenoff, J., held that employees of financing company were, in effect, employees of financing company's sole shareholder rendering him liable for their actions, that conduct of employees in wrongfully appropriating truck, compelling truck owner to pay additional cash and not returning truck constituted malice in fact justifying punitive damages, and that court would not question amounts of awards. Affirmed. David Abbatangelo and John E. Stone, of Las Vegas, for Appellant. John H. Pilkington, of Las Vegas, for Respondents. 1. Corporations. Where finance companies were under sole direction and control of their sole shareholder who was the investing and directing force of both corporations and where finance companies had no apparent independent business operation but existed solely for purpose of conducting stockholder's personal business, requirements for application of alter ego doctrine were present and employees of financing companies were, in effect, employees of stockholder, rendering stockholder personally liable for misconduct of employees in wrongfully appropriating a truck, causing truck owner to pay additional money and making no effort to return truck to owner. 2. Damages. Malice contemplated in statute providing for award of punitive damages where defendant has been guilty of oppression, fraud or malice, express or implied, is malice in fact and phrase “express or implied” has reference only to evidence by which malice is established. NRS 42.010. 3. Damages. Malice in fact must be established by the evidence if it is the ground relied upon to support an award of punitive damages; malice in fact sufficient to support an award may be established by "! " ! " " 5 ! 90 Nev. 341, 342 (1974) Caple v. Raynel Campers, Inc. showing that wrongful conduct was willful, intentional and done in reckless disregard of its possible results. NRS 42.010. 4. Trover and Conversion. Conduct of employees of finance company whose alter ego was its sole shareholder in wrongfully appropriating truck and its contents, compelling truck owner to pay additional cash and failing to return truck to owner or making it available for return constituted malice in fact, justifying award of punitive damages. NRS 42.010. 5. Damages. Concept of punitive damages rests upon presumed public policy to punish wrongdoer for his act and to deter others from acting in similar fashion; punitive allowance should be in an amount that would promote public interest without financially annihilating defendant. 6. Appeal and Error. Absent any information as to net worth of individual defendant by which reasonableness of award of punitive damages of $10,000 to one plaintiff and $5,000 to another plaintiff could be judged and absent evidence that trial court in awarding such amounts acted under passion or prejudice, appellate court would not question amounts of awards or set them aside as being excessive. NRS 42.010; NRCP 59. OPINION By the Court, Zenoff, J.: In January of 1971 Joseph C. Crouchet purchased a 1964 pickup truck from Motor City, an auto sales company in Las Vegas. Several weeks later, although he was not in default of his installment payments, the truck was repossessed by a collection agency, Desert Thrift Institution. Checks written by Crouchet and paid to Desert Thrift were deposited to the account of Financial Corporation of America, an institution incorporated by appellant Caple. Crouchet purchased the truck for $895.00, plus $47.00 for taxes and fees. He was allowed $400.00 for the trade-in of his 1962 Thunderbird, the balance to be paid in biweekly installments. After making several payments he discovered upon awakening one early morning that the pickup truck was gone and learned ultimately that the finance company had repossessed it. Although they acknowledged that the repossession was in error the employees of the financing institutions still required Crouchet to pay an additional $115.00, plus $45.00 repossession fee, but the truck was never returned to him nor 90 Nev. 341, 343 (1974) Caple v. Raynel Campers, Inc. made available for return. The loss included $700.00 worth of tools that were in the truck and a camper body owned by Raynel Campers, Inc. and loaned to Crouchet. In his suit for damages the trial court gave judgment to Crouchet for $ 1,150.00 general damages, plus $ 15,000.00 punitive damages; it awarded $ 1,000.00 general damages to Raynel Campers, plus $5,000.00 in punitive damages. The judgment was joint and several against the named corporations, the individual employees of the corporations whose names were Rasmussen, Golden and others, but more importantly, Carver Caple, the principal incorporator and corporate officer of the two financing companies, Desert Thrift Institution, Inc. and Financial Corporation of America. This is the appeal of Carver Caple who contends that the liability should extend only to the corporations, not to him and, further, that the awards of punitive damages were not justified. 1. We listed in North Arlington Medical Building Inc. v. Sanchez Construction Co., 86 Nev. 515, 520, 471 P.2d 240, 243 (1970), the requirements for the application of the alter ego doctrine: (1) the corporation must be influenced and governed by the person asserted to be its alter ego, (2) there must be such unity of interest and ownership that one is inseparable from the other, and (3) the facts must be such that adherence to the fiction of separate entity would, under the circumstances, sanction a fraud or promote injustice. Each of these elements is present in the findings of fact of the trial court and is supported by substantial evidence in the record. The injustice to Crouchet and Raynel is apparent. The crass indifference by the employees, Golden and Rasmussen, who were responsible in the treatment accorded Crouchet amounts virtually to willful fraud. They wrongfully appropriated his chattel, then compelled him to pay additional cash and then made no effort to return his chattel or look for it or make him whole. This is the kind of malice that justifies punitive damages. The first two of the three requisites to set aside the corporate veil are discernible without deep examination. Although his activities with the two corporations were described by Caple in obscure and ambiguous testimony, he alone stands out as the investing and directing force of both corporations. He was the sole investor and stockholder, the only person with direction and control. The corporate entities were a cloak for his personal operation in itself lawful and proper but not when used in an unlawful and improper manner. 90 Nev. 341, 344 (1974) Caple v. Raynel Campers, Inc. [Headnote 1] There did exist between Caple and the two corporations a unity and interest of ownership of such nature that the corporation had no apparent independent business operation and existed solely for the purpose of conducting the personal business of Caple. This being so the corporation employees were his employees. While Caple may not have been aware of the Crouchet transaction he must stand answerable for the unconscionable conduct of his representatives. 2. The next question is whether the court erred in awarding punitive damages. NRS 42.010 provides that in an action for the breach of an obligation not arising from contract where the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff in addition to actual damages may recover damages for the sake of example and by way of punishing the defendant. That statute and the concepts of punitive damages was the subject of our discussion in Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973), where we stated that a plaintiff is never entitled to punitive damages as a matter of right. Their allowance or denial rests entirely in the discretion of the trier of fact. [Headnotes 2, 3] The malice contemplated by NRS 42.010 is malice in fact and the phrase “express or implied” has reference only to the evidence by which malice is established. Malice in fact must be established by the evidence if it is the ground relied upon to support an award of punitive damages. Malice in fact sufficient to support an award of damages may be established by a showing that the wrongful conduct was willful, intentional and done in reckless disregard of its possible results. [Headnote 4] The trial judge did so find, and properly so, in this case. [Headnote 5] 3. Finally, appellant challenges the award of punitive damages as being excessive. NRCP 59 includes as grounds for a new trial “excessive damages appearing to have been given under the influence of passion or prejudice.” See Miller v. Schnitzer, 78 Nev. 301, 310, 371 P.2d 824, 829 (1962). Again, we stated in Nevada Cement Co. v. Lemler, supra, that the assessing of punitive damages is wholly subjective. There are no objective standards by which the monetary amount can be calculated. The concept of punitive damages rests upon a presumed public policy to punish a wrongdoer for his act and to ! 90 Nev. 341, 345 (1974) Caple v. Raynel Campers, Inc. deter others from acting in similar fashion. The punitive allowance should be in an amount that would promote the public interest without financially annihilating the defendant. The wrongdoer may be punished but not destroyed. [Headnote 6] In Nevada Cement Co. v. Lemler, supra, evidence was received relevant to the financial status of the appellants. Unfortunately, unlike that case and Miller v. Schnitzer, supra, we have no indication of the net worth of the appellant by which the reasonableness of the award might be judged. We find no evidence that the trial court acted under passion or prejudice. Absent the necessary information of financial worth, this court is in no position to question the amount of the award since, while quite high, it does not shock our conscience. Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 345, 345 (1974) Woofter v. Kelly ROY A. WOOFTER, District Attorney of Clark County, State of Nevada, Petitioner, v. THE HONORABLE JAMES B. KELLY as Justice of the Peace, North Las Vegas Township, County of Clark, State of Nevada, Respondent. No. 7575 September 23, 1974 526 P.2d 337 P etition for writ of mandamus or certiorari. The State filed petition for writ of mandamus or certiorari to challenge magistrate's refusal to hold defendants for trial on murder charges as laid in the State's complaint. The Supreme Court held that neither certiorari nor mandamus could issue since the State had a plain, speedy and adequate remedy at law. Petition denied. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Clark County, for Petitioner. Morgan D. Harris, Public Defender, Clark County, and Robert L. Reid, of Las Vegas, for Respondent and parties in interest. 90 Nev. 345, 346 (1974) Woofter v. Kelly Criminal Law; Mandamus. Neither certiorari nor mandamus would issue to challenge magistrate's refusal to hold defendants for trial on murder charges as laid in the State's complaint since the State had a plain, speedy and adequate remedy at law, i.e., by way of information or grant jury indictment. NRS 34.020. subd. 2, 34.170, 173.035, subd. 2. OPINION Per Curiam: By complaint filed in the Justice's Court of North Las Vegas Township, the State attempted to charge certain defendants with grand larceny, murder of a peace officer, and first degree murder. The respondent justice of the peace held defendants to answer on the grand larceny count, but refused to hold them on the murder counts as alleged in the complaint. Instead, the magistrate purported to hold defendants on a charge of “second degree murder,” and in effect purported to discharge them from the complaint insofar as it charged them with any higher degree of murder. By alternative petition for writ of mandamus or certiorari, the State has therefore sought to challenge the magistrate's refusal to hold the defendants for trial on the murder charges as alleged, contending that the magistrate's ruling was without or in excess of his jurisdiction. Numerous arguments are proffered in support of this contention; however, we conclude it is unnecessary to treat them. Neither certiorari nor mandamus may issue, if the State has a plain, speedy, and adequate remedy in the ordinary course of law, so that it may proceed on the murder charges in the form the State deems proper, and on which the magistrate would not permit it to proceed. NRS 34.020(2); NRS 34.170. In facts like those of this case. Such remedies appear available, e.g. by way of information filed pursuant to NRS 173.035(2), or by grand jury indictment, Tellis v. State, 85 Nev. 557, 459 P.2d 364 (1959). The petition herein is therefore denied. ______ 90 Nev. 347, 347 (1974) Staab v. State RICHARD G. STAAB, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7359 September 23, 1974 526 P.2d 338 Appeal from conviction of grand larceny and possession of stolen property in the second Judicial District Court, Washoe County; Thomas O. Craven, Judge. The Supreme Court, Zenoff, J., held that evidence sustained grand larceny conviction but not conviction for possession of stolen property, and that police officers had probable cause to believe that defendant's automobile contained stolen merchandise and to search automobile either at time of defendant's arrest or at police station when contents of automobile were inventoried. Affirmed in part, reversed in part. [Reporter's note: The opinion filed June 21, 1974, 90 Nev., Advance Opinion 77, was recalled and is superseded by this opinion.] Alfred Becker, of Las Vegas, 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. Searches and Seizures. Even though search of defendant's automobile at police station was not incident to defendant's arrest, where defendant was known to police as a shoplifter and a “fence” of stolen merchandise and police observed defendant removing tools from market without purchasing them and loading boxes and loose clothing into automobile trunk and were notified by motel manager that defendant had in his room numerous boxes of merchandise still bearing price tags, police officers had probable cause to believe that automobile contained stolen merchandise and to search it either at scene of arrest or short time later at police station where automobile was stored and inventoried. 2. Larceny. Evidence sustained grand larceny conviction of defendant who was found in possession of stolen merchandise and who did not possess any sales slips indicating that merchandise had been purchased. 3. Larceny. Recent, exclusive and unexplained possession of stolen property by an accused gives rise to an inference of guilt which may ! $ 90 Nev. 347, 348 (1974) Staab v. State be sufficient to convict in the absence of other facts and circumstances leaving a reasonable doubt in the minds of a jury. 4. Larceny. It is the fact of possession of recently stolen property that provides inference of guilt, an inference which is founded on the manifest reason that when goods have been taken from one person and are quickly thereafter found in the possession of another there is a strong probability that they were taken by the latter. 5. Larceny. Although possession of stolen property is relevant and admissible evidence, it does not necessarily point to guilt. 6. Receiving Stolen Goods. To establish crime of receiving stolen property, prosecutor has burden of proving that property was stolen and that it was received by the accused with the knowledge that it was stolen and with the felonious intent to deprive the true owner of the property; a presumption of these elements is not a substitution for actual proof. 7. Receiving Stolen Goods. Evidence showing that defendant was in possession of new merchandise from which the tag bearing the store name had been removed was insufficient without evidence showing that defendant had been seen taking the merchandise and showing that merchandise was stolen to sustain defendant's conviction for possession of stolen property. NRS 205.275. OPINION By the Court, Zenoff, J.: Richard G. Staab was charged in one count with grand larceny in the theft of four men's jackets from Weinstock's department store in Reno and on a second count with possession of 1 stolen property. A motion to suppress evidence was heard in advance of trial because the items allegedly in Staab's possession were taken from his car. The motion was denied and the case tried before a jury who found him guilty on both counts. He was sentenced to two consecutive 10-year terms in the state prison. The major issue on appeal challenges the denial of the ! " ! & ______ 1 The statute under which Staab is charged, NRS 205.275, in count two reads: 1. Every person who for his own gain or to prevent the owner from again possessing his property shall buy, receive, possess or withhold stolen goods or anything, the stealing of which is declared to be larceny or property obtained by robbery, burglary or embezzlement: (a) knowing the same so to have been obtained; or (b) under such circumstances as should have caused a reasonable man to know that such goods or property were so obtained shall upon conviction be punished by imprisonment in the state prison. . . . 90 Nev. 347, 349 (1974) Staab v. State motion to suppress evidence on the ground that the merchandise was illegally seized by reason of an invalid search of the automobile. Prior to the search in question, Staab was known to the police as a shoplifter and fence of stolen merchandise. On September 21, 1972 the police of Sparks, Nevada, were notified by the manager of the Seven Dwarfs Motel in Sparks that a person registered in the motel was acting suspiciously. Police investigation revealed that Staab was registered there under a fictitious name. The manager, a woman, observed numerous boxes of merchandise, as well as many loose items in his room including considerable new clothing still bearing price tags from which the store name had been removed. In fact, some merchandise tickets with names removed were found in the garbage can behind the motel. She observed new bed sheets of several kinds, pillow cases, a motor saw, hedge clippers, half-gallon or gallon bottles of liquor, perfumes, a coffee pot, a hot air comb, and a Sunbeam model iron marked “For display only.” She observed Staab carrying boxes and packages from time to time between the motel room and his automobile. Detectives observed Staab at a market where he removed tools from a counter but was not observed returning them, although he left the store without making any purchases. On the evening he was arrested Staab was seen loading eight boxes and loose clothing into the trunk of his car. He was arrested shortly after he left the motel for registering under a fictitious name. The car was driven to the police station where it was stored and inventoried. The police found the merchandise above listed which included four men's blue suede jackets with the tags still affixed. The jackets were traced to Weinstock's department store, determined to have been part of the Weinstock inventory and no sales slips were found to indicate that the jackets had been purchased. Staab did not testify. A jury found him guilty of grand larceny in the theft of the jackets and of possession of stolen property. The principal issue on appeal is whether or not the seizure of the property at the police compound without a warrant was proper. [Headnote 1] 1. The circumstances known to the police by reason of their personal knowledge and observation supported an immediate search of the car upon probable cause to believe that it contained stolen merchandise. Although the search was not incident to the arrest it was an appropriate search in light of 5 "! 90 Nev. 347, 350 (1974) Staab v. State all of the knowledge at the disposal of the police. Because a search at the scene of the arrest would have been valid, the search a short time later at the police station was likewise valid. Chambers v. Maroney, 399 U.S. 42 (1970). Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972), is authority for the position that police officers given the exigent circumstances of Staab's history and his conduct, had reasonable cause to believe the auto contained items subject to seizure. It matters not that the police search was thought by them to be rightful under their duty to inventory the contents of vehicles in their custody. Our conclusion rests squarely upon Chambers v. Maroney, supra, and Wright v. State, supra. [Headnote 2] 2. Staab also contends that the State failed to prove his guilt beyond a reasonable doubt. Although the jackets were not proved to have been stolen by him by eyewitness testimony, the circumstantial chain of facts by which Weinstock's established ownership and possession and then the disappearance of the jackets, the absence of sales slips or any evidence of sales, together with Staab's possession was enough to satisfy the jury that he had stolen them. [Headnotes 3, 4] Recent, exclusive and unexplained possession of stolen property by an accused person gives rise to an inference of guilt which may be sufficient to convict in the absence of other facts and circumstances which leave a reasonable doubt in the minds of the jury. People v. Weaver, 163 N.E.2d 483 (Ill. 1959). It is the fact of possession that provides the inference of guilt, an inference which is founded on the manifest reason that when goods have been taken from one person and are quickly thereafter found in the possession of another there is a strong probability that they were taken by the latter. State v. Young, 217 So.2d 567 (Fla. 1968). Weinstock's prior ownership was clearly established and Staab's possession under all the circumstances raised the inference of guilt that was left unexplained. 3. In the second count charging possession of stolen property, however, the police failed or were unable to find who, other than Staab, owned the various items of merchandise in addition to the jackets which were found in the trunk of his car. The question is then whether proof that that property was stolen could be established beyond a reasonable doubt by the circumstantial evidence which included: (1) evidence that four of the items in the trunk, to wit, the jackets, were /-8 " " " !! /*8 !! " " /.8 " 5O, P 90 Nev. 347, 351 (1974) Staab v. State stolen, (2) evidence that Staab was in possession of the various items of new merchandise from which the tag bearing the store name had been removed, (3) testimony that no sales slips or shopping bags were found with the merchandise or in Staab's room at the motel, and (4) evidence that one of the items in Staab's possession was marked “For display only.” [Headnotes 5-7] Although possession is relevant and admissible evidence it does not necessarily point to guilt. Carter v. State, 82 Nev. 246, 415 P.2d 325 (1966). In People v. Occhipinti, 216 N.Y.S.2d 121 (1961), the accused was arrested a short distance from the place where he had loaded three cartons of allegedly stolen merchandise in the trunk of an automobile. They denied ownership of the merchandise. A warehouse manager identified the merchandise as coming from one of his two warehouses. An inventory of the warehouses revealed a shortage of merchandise. It was there held that the accusation of receiving stolen property consists of (1) the property must be stolen, (2) it must be received by the accused with the knowledge that it was stolen at the time of the receiving, and (3) it must be received by him with the felonious intent of depriving the true owner of the property. The burden of proof of these three essential elements rests upon the prosecution. A presumption of the elements is not a substitution for actual proof. The court exonerated the defendant on the basis that the prosecution failed to establish that the merchandise found in the possession of the defendant 2 had been stolen or that the defendant had knowledge of its stolen character. Here, other than the four coats and the suspicious circumstances there is no proof that the other merchandise was stolen. No one observed Staab in the act of taking any of the property and no one testified that the property had been taken from him. People v. Rossi, 59 P.2d 206 (Cal.App. 1936). That part of the accusation based on possession of stolen " " ? ? ______ 2 The New York penal law in question differs from our own law but not in a way which should affect the outcome of this case. New York Penal Law, Section 1308. Buying, receiving, concealing or withholding stolen or wrongfully acquired property. A person who 1. a. Buys or receives any property knowing the same to have been stolen or obtained in any way under circumstances which constitute larceny or who conceals, withholds, or aids in concealing or withholding any property, knowing the same to have been stolen, or appropriated wrongfully in such a manner as to constitute larceny under the provisions of this article, . . . 90 Nev. 347, 352 (1974) Staab v. State property as set forth in count two of the criminal complaint is reversed and the sentence of two ten-year consecutive terms in the state prison is modified to the one ten-year term under count one. Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 352, 352 (1974) Johnson v. State BILLY RAY JOHNSON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7427 September 23, 1974 526 P.2d 696 Appeal from conviction of robbery. Eighth Judicial District Court, Clark County; James D. Santini, Judge. The Supreme Court, Zenoff, J., held that it was not improper to deny continuance on ground that defendant and his counsel were not in agreement concerning their attitude towards defendant's chances of being acquitted, thus calling for a change of lawyers on eve of trial, or on ground that defendant was in too much pain from hand injury resulting from fight with another inmate to stand trial. Affirmed. Larry C. Johns, 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. 1. Criminal Law. Granting of continuance is within sound discretion of court. 2. Criminal Law. Whether denial of continuance is arbitrary must be determined from circumstances in case, particularly those presented to trial judge at time request is denied. 3. Criminal Law. Denial of continuance on ground that defendant and his counsel were not in agreement concerning their attitude towards defendant's chances of being acquitted, thus calling for a change of lawyers on eve of trial, was not improper where it was apparent that basic reason for change in counsel was to obtain another delay of trial and there was no contention that trial counsel had performed in an unsatisfactory manner or that any errors had been committed in conduct of the trial. 90 Nev. 352, 353 (1974) Johnson v. State 4. Criminal Law. Denial of motion for continuance on ground that defendant was in too much pain from hand injury resulting from fight with another inmate to stand trial was not improper, in view of evidence indicating that while defendant may have suffered some discomfort it was insufficient to impair his ability to cooperate with counsel and participate in the proceedings. OPINION By the Court, Zenoff, J.: At issue on this appeal is the question of whether the denial of the accused's motion for a continuance of his trial to a later date is sufficient basis to reverse his conviction. Under the circumstances stated we hold that it was not and the verdict will stand. On January 10, 1973 Billy Ray Johnson, together with Johnny McDonald, Jr., was charged with three counts of robbery. Trial was set for April 9, 1973. While in jail awaiting trial Johnson became engaged in a fight with another inmate resulting in an injury to his hand. The trial date was continued from April 9 to April 16, but one court day before the trial was to begin Johnson moved to change counsel and for a continuance, both of which were denied. At the hearings on the motion Johnson and his counsel testified that they were not in agreement concerning their attitudes towards Johnson's chances of being acquitted, thus calling for a change of lawyers. As to the injury, the testimony of various witnesses, including the doctor who examined and treated his hand, negated Johnson's claim that he was physically unable to stand trial while Johnson contended that he was in too much pain to stand trial. [Headnotes 1-3] 1. The granting of a continuance is within the sound discretion of the court. Morford v. State, 80 Nev. 438, 442, 395 P.2d 861 (1964). Whether the denial of a continuance is arbitrary must be determined from the circumstances present in every case, particularly those presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). There was in this case no just reason to allow a change of counsel on the eve of trial when it is apparent that the basic reason in doing so was for the purpose of obtaining another delay. What advantage a delay would bring cannot be ascertained, but it is significant that there is no contention that the trial counsel performed in an unsatisfactory " 90 Nev. 352, 354 (1974) Johnson v. State manner nor that any errors were committed in the conduct of the trial. [Headnote 4] 2. The appellant's contention that he was physically unable to participate in the trial or in his defense is equally without merit. The evidence indicates that while Johnson may have suffered some discomfort it was insufficient to impair his ability to cooperate with counsel and participate in the proceedings. Our disinclination to allow last-minute proceedings to delay the commencement of a trial has already been announced. Howard v. Sheriff, 83 Nev. 150, 153, 425 P.2d 596, 598 (1967). Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 354, 354 (1974) Hustead v. Farmers Insurance Group HAROLD E. HUSTEAD, Administrator of the Estate of PEGGY LEE HUSTEAD, Deceased, Appellant, v. FARMERS INSURANCE GROUP, FARMERS INSURANCE EXCHANGE, FARMERS UNDERWRITERS ASSOCIATION, Respondents. No. 7048 September 30, 1974 526 p.2d 1116 Appeal from a summary judgment, Second Judicial District Court, Washoe County; John W. Barrett, Judge. Father, whose daughter was killed while driving automobile owned by father, brought action, as administrator of daughter's estate, to recover under uninsured motorist coverage of policies issued on two other vehicles owned by father. The district court granted insurers summary judgment, and father appealed. The Supreme Court, Batjer, J., held that claims under uninsured motorist coverage of policies issued on vehicles not involved in accident had been released and that neither of two state Supreme Court decisions would be applied retroactively to circumvent release or render it nugatory. Affirmed. Thornton & Stephens, of Reno, for Appellant. Goldwater, Hill, Mortimer & Sourwine, of Reno, for Respondents. 90 Nev. 354, 355 (1974) Hustead v. Farmers Insurance Group 1. Insurance. Where, though order authorizing and approving settlement of claim against insurers was limited to the “uninsured motorist coverage which covered the vehicle in which the deceased was killed,” order did not restrict scope of release, which completely released all claims against insurers arising out of automobile accident which caused the death, all claims under uninsured motorist coverage of policies issued on two other vehicles owned by decedent's father, who also had owned and had been issued a policy on vehicle involved in accident, had been released. NRS 143.140. 2. Courts. Neither state Supreme Court decision relating to requirement that uninsured motorist coverage be included unless rejected by insurance on decision to effect that if insurer issues two automobile politics containing uninsured motorist coverage, the extent of coverage is the combined total amount of such policies would be applied retroactively to circumvent written release or render it nugatory. OPINION By the Court, Batjer, J.: On November 7, 1969, Peggy Lee Hustead was fatally injured in an automobile accident near Lovelock, Nevada. The accident was apparently caused by the negligence of Charles R. Palmer who was operating an uninsured motor vehicle owned by Karlyn Bell. At the time of the fatal accident, Peggy was driving a 1967 Datsun automobile. It was one of three vehicles owned by her father, Harold E. Hustead, and insured by respondents under policy No. 87-57451295. The other two vehicles, a 1964 Chevrolet and a 1968 Ford Bronco were each insured under separate policies with the respondents. All of the policies were in good standing and contained uninsured motorist coverage. The Chevrolet was the described vehicle in policy No. 87-58208595, and the Ford Bronco was the described vehicle in policy No. 87-57781129. Shortly after the accident, counsel for appellant made demand upon respondents for $45,000, the total maximum coverage under all three policies. Representatives of Farmers informed counsel that there was no coverage under the policies on the Chevrolet and Ford Bronco, but continued negotiations on the Datsun policy. On June 2, 1970, Harold E. Hustead, as the administrator of the estate of Peggy Lee Hustead, deceased, petitioned the district court, pursuant to NRS 143.140, for an order authorizing settlement of a debt owed to the estate. In his petition he ! ! , B G O ! " " " 5P, B G E*- 90 Nev. 354, 356 (1974) Hustead v. Farmers Insurance Group alleged that he had filed a claim against Farmers Insurance Group “under the uninsured motorist coverage which covered the vehicle in which the deceased was killed,” and that Farmers Insurance Group offered to settle the claim for $13,250. On June 15, 1970, the 1 district court entered its order authorizing and approving the settlement of that claim. On June 29, 1970, the decedent's mother, Wilma Hustead, individually, and Harold E. Hustead, individually, and as administrator of the estate of Peggy Lee Hustead, deceased, 2 3 executed a release of claim. Farmers then paid appellant the sum of $13,250. On November 4, 1971, appellant filed this action seeking recovery for Peggy's injury and death, under policy ______ 1 The order of the district court reads as follows: “A verified petition for authorization to settle claim having been filed June 2, 1970, and it appearing from the file that notice has been given as required by law, and good cause appearing from said petition, “IT IS HEREBY ORDERED that settlement of a claim against Farmers Insurance Group in the amount of $13,250.00 is hereby authorized and approved.” 2 “The release executed by the Husteads reads in pertinent part: “For and in consideration of the payment to the Estate of Peggy Lee Hustead the sum of Thirteen Thousand Two Hundred and Fifty Dollars ($13,250.00), the receipt of which is hereby acknowledged, we, being of lawful age, do hereby release, acquit, and forever discharge Farmers Insurance Group of and from any and all actions, causes of action, claims, demands, damage, costs, loss of services, expenses, and compensation, on account of, or in any way growing out of, any and all personal injuries including any cause of action which we may have for wrongful death of the deceased, Peggy Lee Hustead resulting from an accident that occurred on the seventh day of November, 1969, at or near Lovelock, Nevada. “We have not been unduly influenced to any extent whatever in making this release by any representations or statements regarding said accident, made by the firm or corporation who is hereby released, or by any person or persons representing him or them. “It is further understood and agreed that this settlement is the compromise of a disputed claim to damages arising out of an accident with an uninsured motorist, the claim being made and now released pursuant to a policy of uninsured motorist insurance. This release is in no way an admission of liability by the uninsured motorist but neither is it a denial of liability. “This release contains the entire agreement between the parties hereto, and the terms of this release are contractual and not a mere recital. . . .” 3 That same day, June 29, 1970, there being no claims filed by creditors, the estate of Peggy Lee Hustead, deceased, was distributed in equal shares to Harold E. Hustead and Wilma Hustead and Harold E. Hustead was discharged as administrator. On November 3, 1971. Harold E. Hustead was reissued Letters of Administration. 90 Nev. 354, 357 (1974) Hustead v. Farmers Insurance Group No. 87-58208595, covering the Chevrolet, and policy No. 87-577581129, covering the Ford Bronco. Respondents thereafter moved the district court for summary judgment upon the ground that there was no genuine issue as to any material fact and that they were entitled to a judgment in their favor as a matter of law. Extensive briefs were filed by both parties. Respondents contended that appellant had (a) released all claims against respondents which may have existed by virtue of uninsured motorist coverage, (b) failed to bring suit within one year after the accident as required by the policy covering the Datsun and the policy covering the Ford Bronco, and (c) that “stacking” of insurance policies in this case was improper because Peggy was not an insured under the policies covering the Chevrolet or the Ford Bronco. Appellant countered with the arguments that (1) the release of claim covered only the Datsun policy, (2) that appellant was not required to bring suit against either respondents or the uninsured motorist within one year after the date of the accident, (3) that Peggy was an insured under all three policies and as in insured her estate could not be precluded from recovery by clauses inserted into the policies by respondents which are against public policy. The district court granted respondents' motion for summary judgment on the ground that appellant had released all claims against respondents which may have existed by virtue of uninsured coverage, and that there was no genuine issue as to any material fact. This appeal is taken from the resulting judgment. [Headnote 1] We agree with the district court. The release was not only executed by the appellant in his capacity as administrator of the estate of Peggy Lee Hustead, deceased, but by him individually and by Wilma Hustead as the only heirs of Peggy Lee Hustead. Although the order of the district court entered on June 15, 1970, authorizing and approving appellant's settlement of a claim against respondents was limited to the “uninsured motorist coverage which covered the vehicle in which the deceased was killed,” that order did not restrict the scope of the release given by Wilma Hustead and the appellant in his individual capacity. It fully and completely released all claims against respondents arising out of the November 7, 1969 accident which caused the death of Peggy Lee Hustead. It could hardly have been clearer or more specific and inclusive. Appellant claims that the release is ambiguous because it refers to “the claim being made and now released pursuant to P 90 Nev. 354, 358 (1974) Hustead v. Farmers Insurance Group a policy of uninsured motorist insurance.” The district court did not find such ambiguity, nor do we. The release is not limited or diminished by the language of that clause, which is merely explanatory of where the claim was made and the reason for its being released. If such a release can be circumvented or nullified, then every written release, no matter how clear, pertinent and all inclusive can be set aside whenever one of the parties has a change of mind, or there has been a subsequent change of circumstances which were unforeseen. See Emery v. Mackiewicz, 240 A.2d 68 (Pa. 1968); Schwieger v. Harry W. Robbins & Co., 290 P.2d 984 (Wash. 1955). Cf. Nogan v. Berry, 193 A.2d 79 (Del.1963). [Headnote 2] After the Husteads executed the release of claim, this court decided State Farm Mut. Ins. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971), and United Services Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970). Undoubtedly our opinion in those two cases prompted the 4 appellant to file this action on November 4, 1971. The principles of law announced in those " ! " ______ 4 In State Farm Mutual Automobile Ins. Co. v. Hinkel, we said: “NRS 693.115(1) becomes a part of every policy of insurance to which it is applicable to the same effect as if it were written out in full in the policy itself. (citations omitted) An insurance company may limit coverage only if the limitation does not contravene public policy. The expressed public policy of Nevada is that an insurance company may not issue an automobile or motor vehicle liability policy which does not protect the insured from owners or operators of uninsured motor vehicles, unless the named insured rejects such coverage. . . . The exclusionary provisions of the policy are void and unenforceable because they are repugnant to the intent of the statute and against public policy.” 87 Nev. at 481, 488 P.2d at 1153. In United Services Ass'n v. Dokter a case where the insurance policies were written before the operative date of our statute (NRS 693.115(1)) requiring insurers to provide uninsured motorist coverage, we held that a pedestrian who was the named insured under two automobile insurance policies by the same insurance company and who was struck and injured by an uninsured motorist, could recover under the uninsured motorist provision of each policy even though each included in “other insurance” clause prorating the loss between available policies and deeming the loss not to be in excess of the higher of the applicable limits of the available policies. In that case we said: “Where the insurer issues two automobile policies containing uninsured motorist coverage, the extent of coverage is the combined total amount of such policies, and actual damages sustained by the insured are recoverable to the full extent of the combined limits of both policies.” 86 Nev. at 920, 478 P.2d at 585. 90 Nev. 354, 359 (1974) Hustead v. Farmers Insurance Group cases will not be applied retroactively in this case to circumvent or render nugatory the written release. The effectiveness of the release is dispositive of this case. We need not reach the other issues raised by appellant. The judgment entered in this case is affirmed. Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur. ______ 90 Nev. 359, 359 (1974) Owens v. State JIMMY DALE OWENS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7515 October 7, 1974 526 P.2d 1181 Appeal from conviction of first degree murder with punishment at life without possibility of parole. Eighth Judicial District Court, Clark County; James D. Santini, Judge. Defendant was convicted in the district court of rape and murder and he appealed. The Supreme Court, Zenoff, J., held that it was error to allow evidence of victim's virginity to come before the jury; but that such error was harmless, even though defendant urged that it caused him to be sentenced to life imprisonment without possibility of parole, where there was evidence that defendant was the leader of the two persons who perpetrated the crime and where there was evidence that it was defendant who suggested that the victim be murdered. Affirmed. Jeffrey D. Sobel and Jerrold Courtney, of Las Vegas, for Appellant. Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. In defendant's trial for rape and murder, evidence of victim's virginity was irrelevant. 2. Criminal Law. Where evidence indicated that defendant was leader of two persons who raped and murdered victim, and where there was " " !! ! "! ! $ # !! $ " " " ! " " 90 Nev. 359, 360 (1974) Owens v. State evidence that it was defendant who suggested that the victim be strangled, error in allowing evidence of victim's virginity to come before the jury did not require reversal, even though defendant argued that the evidence caused the jury to sentence him to life without parole whereas his codefendant, who pled guilty and was sentenced by the court, received a sentence of life with possibility of parole. OPINION By the Court, Zenoff,J.: The evidence of Jimmy Dale Owens' guilt in the rape-murder of Carole Gillett in Clark County was overwhelming. His associate in the crime, Joe Walsh, had entered a negotiated plea of guilty, testified fully at the trial and was sentenced to life with possibility of parole. Owens appeals his sentence of life without possibility of parole. Owens gave a video-taped confession after receiving complete warnings and admonitions and being represented by counsel. The only issue on appeal questions the propriety of the State's repeated reference to the jury that Carole Gillett, 42 years old, was a virgin at the time of her rape which appellant claims was irrelevant to the issue of guilt but was reversible error in that because of the references the inflamed jury sentenced him to life without possibility of parole instead of imposing life with possibility of parole such as given to Walsh. Owens and Walsh, after an afternoon of drinking at Owens' home, in Las Vegas, on December 22, 1972, went out to gamble and to seek out sex activity. They saw Carole on the sidewalk, blocked her progress with their car, forced her into it and drove to Eldorado Canyon where both undressed her, forced her into oral copulation with Owens who then committed sexual intercourse with her despite her continuing resistance. Thereafter, to eliminate her as a witness, they strangled her with her panty hose, stabbed her in the back and pounded her face with rocks in order to cause disfigurement beyond recognition. At trial a doctor testified that on July 29, 1971, several months before her murder, he had performed a hysterectomy on Carole and at that time she was a virgin. The evidence was allowed over objection. References to her virgin status were made by the prosecution three times to the jury. [Headnote 1] The relevance of the woman's virginity to the rape-murder is not explained nor do we perceive any. It was error to allow $ $ 90 Nev. 359, 361 (1974) Owens v. State the subject into evidence and to be used before the jury. Whether it is probable that the verdict might have been different if the error had not been committed becomes the question to be resolved. State v. Brown, 400 P.2d 111 (Ariz. 1965). The verdict of guilt is not challenged, only the penalty and Owens feels that without the prejudicial evidence he might have been given life with possibility of parole the same as Walsh. We are without means of knowing what sentence a jury would have imposed had they found Walsh guilty but they were saved that chore because Walsh entered a plea of guilty to first degree murder before Judge Compton conditioned upon approval of a sentence of life with possibility of parole. This was with the approval of the District Attorney's office pursuant to negotiation between defense counsel and the State. [Headnote 2] Several factors appear which may well have influenced the jury to treat Owens more harshly. Owens was the leader of the two culprits, did most of the threatening and exercise of force to get her into the car to perform the act of oral copulation and who committed the rape. The jury had adequate grounds to find that it was Owens who suggested that the two men strangle the woman. The probability that the verdict would have been different had evidence of Miss Gillett's virginity been excluded is remote. Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 361, 361 (1974) Carlson v. Zivot IRVIN J. CARLSON and MAURINE C. CARLSON, Husband and Wife, Appellants, v. AARON ZIVOT and TERRY M. ZIVOT, Husband and Wife, Respondents. No. 7332 October 7, 1974 526 P.2d 1177 Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Action for declaratory judgment regarding parties' rights and duties as to repair of collapsed party wall. The district court found for defendants, and plaintiffs appealed. The I "@ " # " 90 Nev. 361, 362 (1974) Carlson v. Zivot Supreme court, Mowbray, J., held that defendants were not required to contribute to reconstruction of wall. Affirmed. Albright & McGimsey, of Las Vegas, for Appellants. Wiener, Goldwater & Galatz, Ltd., and Herbert L. Waldman, of Las Vegas, for Respondents. Party Walls. Defendants, whose predecessors in title had entered into agreement with plaintiff to share in cost of construction of party wall, were not required to contribute to reconstruction of such wall where agreement contained no covenant regarding maintenance and repair and where collapse of wall was due to action taken by plaintiffs. OPINION By the Court, Mowbray, J.: The Carlsons commenced an action against the Zivots, seeking a declaratory' judgment regarding their rights and duties as to the repair of a collapsed party wall. The trial judge ruled in favor of the Zivots, finding that the collapse of the wall resulted from acts by the Carlsons and that the Zivots had no duty to contribute to reconstruction of the wall. The Carlsons bring this appeal. In 1963, the Carlsons and their neighbors, the Cahlans (the Zivots' predecessors in interest), entered into an agreement for the construction of a party wall. Among other things, it was agreed that the Cahlans would convey to the Carlsons 20 feet of their property situated immediately adjacent to the parties' common boundary line, for the sum of $1,400; that the parties would share in the cost of constructing a wall on the new boundary line, the cost of which was not to exceed $1,400; and that the wall would be built by a contractor selected by the Cahlans. The Carlsons commenced grading their property in preparation for the construction of a house. When the home was under construction, a party wall was built on the next boundary line. The Carlsons then back-filled dirt next to the wall, such that there was approximately 3 to 4 feet of earth fill on their property resting against the wall. The agreement for the construction of the wall in the instant case contained no covenant regarding maintenance and repair. 90 Nev. 361, 363 (1974) Carlson v. Zivot The Carlsons argue that the necessary covenant to repair and maintain the wall may be found either in an implied covenant stemming from the original agreement to construct the wall or in an oral agreement to do so between the parties thereto. The lower court, however, refused to infer an implied covenant to repair arising out of the agreement and the circumstances surrounding its execution. The record supports the finding of the court. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970). Any explicit oral agreement to maintain the wall which may have been made bound only the original covenantors, and was never assumed by the Zivots. McNaughton v. Shaffer, 314 S.W.2d 245 (Mo. App. 1958). The record reflects that it was action on the part of the Carlsons that caused structural damage to the wall. After the will was constructed, the Carlsons built a swimming pool to within 6 feet of the wall. They added to the height of the wall, so that they would have privacy for the use of the pool. In addition to the substantial fill that had been placed next to the wall, numerous trees were planted adjacent thereto. These factors, the trial judge found, caused structural damage to the wall, resulting in its collapse. Substantial evidence in the record supports this finding. The Carlsons' action in changing the terrain next to the wall, plus adding artificial structures thereon, altered the natural condition of the land. There was no duty on the part of the Zivots to provide the necessary lateral support to counteract the force resulting from the Carlsons' activities. Restatement of Torts § 817, comment c at 188 (1939). Accordingly, we affirm the judgment below that the Zivots are under no legal duty to contribute to the restoration of the wall. Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 363, 363 (1974) Beverly Enterprises v. Globe Land Corp. BEVERLY ENTERPRISES, Appellant, v. GLOBE LAND CORPORATION, Respondent. No. 7350 October 10, 1974 526 P.2d 1179 Appeal from judgment awarding damages for breach of contract, Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge. 90 Nev. 363, 364 (1974) Beverly Enterprises v. Globe Land Corp. Vendor of hospital instituted action against purchaser alleging breach by purchaser of its duty of performance in not granting approval of plans and specifications. The district court entered judgment against purchaser, and purchaser appealed. The Supreme Court held that trial court's factual determinations in favor of vendor were not contrary to record. Affirmed. Dickerson, Miles & Pico, of Las Vegas, for Appellant. Jones, Jones, Close, Bilbray, Kaufman & Olsen, Ltd., of Las Vegas, for Respondent. 1. Vendor and Purchaser. In action by vendor of hospital against purchaser for claimed breach by purchaser of its duty of performance in failing to approve plans and specifications, trial court's factual determination in favor of vendor were not contrary to record. 2. Appeal and Error. It is prerogative of trier of facts to evaluate credibility of witnesses and determine weight of their testimony, and it is not within province of appellate court to instruct trier of fact that certain witnesses or testimony must be believed. 3. 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. NRCP 52(a). OPINION Per Curiam: Globe Land Corporation, acting primarily through its president, Fischer, negotiated an agreement whereby Beverly Enterprises agreed to buy, upon completion, a 200-bed convalescent hospital in Las Vegas. The contract required, in part, that construction plans and specifications were subject to Beverly's approval which, by the contract's terms, was not to be unreasonably withheld. After attempting unsuccessfully to secure Beverly's approval of plans and specifications, Globe commenced this action, alleging breach by Beverly of its duty of performance. The district court, following a trial and the entry of findings of fact and conclusions of law, awarded Globe judgment against Beverly for $66,054, plus interest, costs of suit, and $3,500 attorneys' fees. This appeal follows. [Headnotes 1-3] As error, Beverly urges that the trial court should have resolved certain factual issues against Globe rather than in its " " " OB ! " "! " " PA ! 4 C! . -7-- 90 Nev. 363, 365 (1974) Beverly Enterprises v. Globe Land Corp. favor; however, after review of the record, we are satisfied the trial court's factual determinations are not contrary to the record. “It is the prerogative of the trier of facts to evaluate the credibility of witnesses and determine the weight of their testimony, and it is not within the province of the appellate court to instruct the trier of fact that certain witnesses or testimony must be believed.” Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 282, 439 P.2d 473, 475 (1968). 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. NRCP 52(a); Kockos v. Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 (1974); Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973). Affirmed . ______ 90 Nev. 365, 365 (1974) Sheriff v. Robertson SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. JERRY DONALD ROBERTSON and ROBERT DUANE ROWEN, Respondents. No. 7794 October 10, 1974 526 P.2d 1178 Appeal from an order granting writ of habeas corpus, Second Judicial District Court, Washoe County; John E. Gabrielli, Judge. The Supreme Court held that where, at accused's first trial, trial court instructed the jury that, in its opinion, the evidence was insufficient to warrant a conviction but the jury was not bound by such advice, and where one or more of the jurors declined to acquit, resulting in a hung jury, subsequent retrial of accused did not constitute double jeopardy. Reversed. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Jack Alian, Deputy District Attorney, Washoe County, for Appellant. Douglas G. Lohse, of Reno, for Respondent, Robertson. G. C. Backus, of Reno, for Respondent Rowen. 1. Criminal Law. Advised verdict of acquittal is not binding upon a jury. NRS 175.381. 90 Nev. 365, 366 (1974) Sheriff v. Robertson 2. Criminal Law. Where trial court, at accused's first trial for burglary, instructed the jury that, in its view, the evidence was insufficient to warrant a conviction, but also instructed the jury that the jury was not bound by such advice, and where one or more of the jurors declined to acquit, resulting in a hung jury, retrial of accused did not constitute double jeopardy. NRS 175.381. OPINION Per Curiam: Respondents were charged with burglary. When the case was submitted to the jury the trial judge was of the opinion that the evidence was insufficient to warrant a conviction, and so instructed the jury. The instruction, in compliance with the language of NRS 175.381, concluded with the words “the jury is not bound by this advice.” One or more of the jurors declined to acquit, resulting in a “hung jury.” When the case was scheduled for another trial respondents filed a petition for habeas corpus, contending retrial would place them in double jeopardy because of the instruction that there was insufficient evidence to convict given at their first trial. The trial court granted their petition for habeas and on this appeal the sole question we need resolve is whether retrial is permissible where a nonbinding instruction to acquit is rejected by the jury. [Headnote 1] This court has consistently approved the nonbinding effect of an advised verdict, prescribed by NRS 175.381. Cook v. State, 74 Nev. 51, 321 P.2d 587 (1958); State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956). [Headnote 2] This court also has consistently held that retrial after a “hung jury” does not constitute double jeopardy. See, for example, Wheeler v. District Court, 82 Nev. 225, 415 P.2d 63 (1966). The order granting habeas corpus is reversed. ______ 90 Nev. 367, 367 (1974) Geddes v. State WILLIAM D. GEDDES, Appellant, v. STATE OF NEVADA, Respondent. No. 7424 October 10, 1974 526 P.2d 1180 Appeal from judgment of conviction and sentence of the First Judicial District Court, Carson City; Frank B. Gregory, Judge. Defendant was convicted before the district court of inducing minor to violate provisions of Uniform Controlled Substances Act, and he appealed. The Supreme Court held that minor concerned was not one liable to prosecution for the identical offense charged against defendant, and thus as to that particular charge lacked the status of an “accomplice.” Affirmed. Horace Rodlin Goff, State Public Defender, Carson City, for Appellant. Robert List, Attorney General, Carson City; Michael Fondi, District Attorney, and Kenneth J. Jordan, Deputy District Attorney, Carson City, for Respondent. Drugs and Narcotics. In prosecution for inducing minor to violate provisions of Uniform Controlled Substances Act, minor concerned was not one liable to prosecution for the identical offense charged against defendant, and thus as to that particular charge lacked the status of an “accomplice,” NRS 62.010 et seq., 175.291, 175.291. subd. 2, 453.401, subd. 3. OPINION Per Curiam: In Court II of the Information against him, appellant was accused of offending NRS 453.401(3) by inducing a minor to violate provisions of the Uniform Controlled Substances Act. The sole issue duly raised on appeal is whether the trial court erred in refusing to instruct the jury that if the minor was found to be an accomplice, corroboration of the minor's 1 testimony was essential. B " 2. *. /*8 " ! ______ 1 The statute on which this contention is based declares: “175.291 Testimony of accomplice must be corroborated; sufficiency of corroboration; accomplice defined. “1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and 90 Nev. 367, 368 (1974) Geddes v. State In our view NRS 453.401(3) is intended to protect minors who might be induced to violate other statutory provisions, and not itself to impose sanctions upon them. Even in proceedings instituted under NRS Chapter 62, which relates to juvenile offenders, a minor could not, we think, be charged with having induced himself to violate the Uniform Controlled Substances Act. Thus, as to a charge of violating NRS 453.401(3), we believe the minor concerned was not one liable to prosecution “for the identical offense charged against the defendant,” NRS 175.291(2), and as to that particular charge thus lacked the status of “accomplice.” Cf. State v. Fredrico. 449 P.2d 936 (Ariz. 1969); State v. Valenzuela, 418 P.2d 386 (Ariz. 1966). Affirmed . ______without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof. “2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” During oral argument before this court, appellant's counsel belatedly endeavored to raise questions concerning NRS 175.291, in regard to appellant's conviction under Count I of the information against him. However, it appears to us that appellant's Opening Brief and conceded: “The petitioner has and does admit the charges contained in Count One of the Information, but denies that he induced a minor to violate Chapter 453 of the Nevada Revised Statutes, and it is for that reason he pleaded not guilty.” ______ 90 Nev. 368, 368 (1974) Bacon v. State ARMAND R. BACON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7338 October 10, 1974 527 P.2d 118 Appeal from denial of post-conviction relief application by the Third Judicial District Court, Lander County; Joseph O. McDaniel, Judge. The Supreme Court, Mowbray, J., held that plea of guilty precluded assertion of claim that record failed to establish voluntariness of confession, and that failure of three-judge panel to wait 6 hours after completion of evidentiary hearing before pronouncing sentence did not entitle prisoner to relief, where statutory 6-hour delay was not intended to apply when a hearing was conducted before a three-judge panel. Affirmed. 90 Nev. 368, 369 (1974) Bacon v. State Rodlin Goff, State Public Defender, and Gary Sheerin, of Carson City, for Appellant. Robert List, Attorney General; T. David Horton, Lander County District Attorney, Battle Mountain, for Respondent. 1. Criminal Law. Prisoner was not entitled to post-conviction relief on grounds that amended information was not legally sufficient, where prisoner had pleaded guilty, and where prisoner failed to demonstrate any prejudice resulting from lack of a more specific information. 2. Criminal Law. Plea of guilty by prisoner precluded assertion, on petition for post-conviction relief, that record failed to establish the voluntariness of his confession. 3. Criminal Law. Grounds for setting aside plea of guilty by prisoner were not presented by argument that decision of United States Supreme Court in Boykin v. Alabama were not met, where mandates of the Boykin opinion were not to be applied retrospectively so as to govern the taking of guilty pleas prior to 1969, and where prisoner had pleaded guilty to homicide before 1969. NRS 174. 320, 174.330. 4. Criminal Law. Failure of three-judge panel to wait 6 hours after completion of evidentiary hearing before pronouncing sentence did not entitle prisoner to post-conviction relief, where statutory 6-hour delay was not intended to apply when a hearing was conducted before a three-judge panel, since the very purpose of evidentiary hearing was to determine the degree of the homicide and fix the punishment, and where it would be a useless act to require the three-judge panel to withhold announcement of punishment after declaring the degree of the crime. NRS 176.020, 200.030. OPINION By the Court, Mowbray, J.: On September 28, 1963, the body of a woman who had been beaten to death was found near Battle Mountain, Nevada. Evidence at the scene and testimony by several persons led to the arrest of Armand Bacon, the petitioner-appellant herein. Bacon was charged by information with first-degree murder; the information was subsequently amended, however, to a charge of open murder. Bacon confessed to the killing and entered a plea of guilty to the amended information. After a hearing before a three-judge panel, he was sentenced to life without possibility of parole. An appeal was filed, but withdrawn. Later, petitioning for post-conviction relief, Bacon sought to withdraw his plea of guilty and have $ ! 90 Nev. 368, 370 (1974) Bacon v. State the judgment of conviction set aside. The district judge denied his petition. We affirm. [Headnote 1] 1. Bacon first challenges the legal sufficiency of the amended information. Bacon pleaded guilty, however, and has demonstrated no prejudice resulting from the lack of a more specific information. Cf. Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972); State v. Hurley, 66 Nev. 350, 357, 210 P.2d 922, 925 (1949). [Headnote 2] 2. Next, Bacon urges that the record fails to establish the voluntariness of his confession. Bacon's plea of guilty also precludes assertion of this claim. Tollett v. Henderson, 411 U.S. 258, 267 (1973); Cline v. State, 90 Nev. 17, 518 P.2d 159 (1974). [Headnote 3] 3. Although the trial court did not inquire of Bacon as to the extent of his understanding of the consequences of entering a guilty plea, Bacon was represented by counsel at his arraignment, and at the time his plea was taken the court did comply with NRS 174.320 and NRS 174.330 then in effect (Stats. Nev. 1961, ch. 159, § 1, at 234, repealed Stats. Nev. 1967, ch. 523, § 447, at 1472; and Stats. Nev. 1919, ch. 232, § 41, at 424, repealed Stats. Nev. 1967, ch. 523, § 447, at 1472). The mandates of Boykin v. Alabama, 395 U.S. 238 (1969) are not to be applied retrospectively so as to govern the taking of guilty pleas prior to 1969. Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970). Grounds for setting aside the plea are thus not presented by Bacon's argument that Boykin's requirements were not met. [Headnote 4] 4. Bacon assigns as error the failure of the three-judge panel to wait 6 hours after 1 completion of the evidentiary hearing before pronouncing sentence. We do not believe the statutory 6-hour delay was intended to apply when a hearing is conducted before a three-judge panel. The very purpose of the evidentiary hearing is to determine the degree of the crime and 3 -B" # ?$ ! " !! ( 2 ! - ______ 1 NRS 176.020 then in effect [1911 Cr.Prac. § 393, RL § 7243 (1912), repealed Stats. Nev. 1967, ch. 523, § 447, at 1472]: “The time appointed shall be at least 2 days after the verdict, if the court intend to remain in session so long; or, if not, as remote a time as can reasonably be allowed. But in no case shall judgment be rendered in less than 6 hours after the verdict.” 90 Nev. 368, 371 (1974) Bacon v. State 2 fix the punishment. It would be a useless act to require the three-judge panel to withhold announcement of the punishment after declaring the degree of the crime. Cf. Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965). 5. Finally, Bacon charges his trial counsel with incompetency. We have reviewed the record and find nothing which would support such a claim. Lundy v. Warden, 89 Nev. 419, 514 P.2d 212 (1973). Accordingly, we affirm the order of the district court denying Bacon's petition for post-conviction relief. Thompson, C. J., and Gunderson and Batjer, JJ., and Gregory, D. J., concur. ______ 2 NRS 200.030, in relevant part, then in effect (Stats. Nev. 1961, ch. 159, § 3, at 235, as amended Stats. Nev. 1973, ch. 798, § 5, at 1803): “. . . “3. Upon a plea of guilty which specifies a degree lower than murder in the first degree, the district judge before whom such plea was made shall give sentence accordingly. If any person is convicted of murder on his confession in open court without a jury, or upon a plea of guilty without specification of a degree, the supreme court shall appoint two district judges from judicial districts other than the district in which the confession or plea is made, who shall, with the district judge before whom such confession or plea was made, or his successor in office, by examination of witnesses, determine the degree of the crime and give sentence accordingly. Such determination shall be by unanimous vote of the three district judges. “. . .” ______ 90 Nev. 371, 371 (1974) Martinez v.Sheriff ROBERT C. MARTINEZ, Appellant, v. SHERIFF OF CLARK COUNTY, NEVADA, Respondent. No. 7924 November 18, 1974 527, P.2d 1200 Appeal from order denying habeas corpus, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge. Habeas corpus proceeding challenging efficacy of indictment of demanding state and the format of extradition papers. The district court denied petition for habeas corpus, and petitioner appealed. The Supreme Court held that extradition papers were sufficient to meet statutory requirements. Affirmed. 90 Nev. 371, 372 (1974) Martinez v.Sheriff Charles L. Garner, of Las Vegas, for Appellant. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Addeliar D. Guy, Deputy District Attorney, Clark County, for Respondent. 1. Habeas Corpus. Habeas corpus is the proper process for testing validity of arrest and detention by authorities of asylum state for extradition purposes, but petition for writ of habeas corpus tests only that detention; in essence, the rule is that the court may determine whether a crime has been charged and whether fugitive was in demanding state at time alleged crime was committed. 2. Extradition. Court in asylum state cannot in an extradition proceeding look into efficacy of indictment in demanding state. 3. Extradition. Purpose of documents required by statute which provides that presentation of certain documents of demanding state in extradition proceeding must “substantially charge” person demanded with having committed a crime under the law of that state is to establish probable cause for believing that offenses were committed in demanding state by accused. NRS 179.183. 4. Extradition. Requisition papers of demanding state were unquestionably sufficient to meet requirements of the statute which provides that the presentation of certain documents of demanding state in extradition proceeding must “substantially charge” person demanded with having committed a crime under law of that state. NRS 179.183. 5. Extradition. Extradition procedures contemplate the prompt return of a fugitive from justice upon a request from the demanding state. NRS 179.177-179.235; Const. art. 4, § 2. OPINION Per Curiam: On April 19, 1974, a Cook County, Illinois, Grand Jury, returned an indictment charging Robert Martinez with murder, aggravated kidnapping, armed robbery and conspiracy. Martinez was found in Nevada, and the Governor of Nevada, pursuant to a request from the Governor of Illinois, issued an executive warrant providing for the arrest and surrender of Martinez to Illinois authorities. After Martinez was arrested, he filed habeas corpus proceedings in the district court challenging (1) the efficacy of the Illinois indictment, and (2) the format of the extradition papers. Habeas was denied, and the same contentions are reurged in this appeal. 90 Nev. 371, 373 (1974) Martinez v.Sheriff [Headnotes 1, 2] 1. Habeas corpus is the proper process for testing the validity of the arrest and detention by the authorities of the asylum state for extradition purposes; however, the petition for a writ of habeas corpus tests only that detention. In essence the rule is that the court may determine whether a crime has been charged, and whether the fugitive was in the demanding state at the time the alleged crime was committed. Sheriff v. Randono, 89 Nev. 521, 522, 515 P.2d 1267, 1268 (1973). A court in the asylum state cannot look into the efficacy of the indictment in the demanding state. [Headnotes 3, 4] 2. NRS 179.183 requires that the presentation of certain documents of the demanding state “substantially charge” the person demanded with having committed a crime under the law of that state. The purpose of the documents required by the statute is to establish probable cause for believing that the offenses were committed in the demanding state by the accused. Legal technicalities are disregarded. Sheriff v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969). Here the requisition papers were unquestionably sufficient to meet these requirements. [Headnote 5] Extradition procedures contemplate the prompt return of a fugitive from justice upon a request from the demanding state. United States Constitution, Art. IV, Sec. 2.; Uniform Criminal Extradition Act, NRS 179.177-NRS 179.235. Affirmed. Remittitur shall issue forthwith. ______ 90 Nev. 373, 373 (1974) Slack v. State DAN SLACK, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7737 November 25, 1974 528 P.2d 703 Appeal from conviction for robbery; Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge. The Supreme Court held that evidence was sufficient to sustain the conviction; and that defendant was entitled to receive credit on his prison term for detention in the county jail pending trial and sentencing. Affirmed. 90 Nev. 373, 374 (1974) Slack v. State Morgan D. Harris, Public Defender, and Philip M. Pro, Deputy Public Defender, Clark County, for Appellant. Robert List, Attorney General; Roy A. Woofter, District Attorney, and Daniel M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Robbery. Evidence was sufficient to sustain defendant's conviction for robbery. 2. Criminal Law. Defendant, who had been convicted of robbery, was entitled to receive credit on his prison term for detention in county jail pending trial and sentencing. OPINION Per Curiam: [Headnotes 1, 2] The appellant, convicted of robbery, asks that we set aside his conviction for want of evidence to support it. The evidence of his guilt is ample. The appellant shall receive credit on his prison term for detention in the county jail pending trial and sentencing. Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974). Affirmed . ______ 90 Nev. 374, 374 (1974) Varnum v. Grady DELOMA L. VARNUM, Appellant, v. EVELYN M. GRADY, Respondent. No. 7886 November 26, 1974 528 P.2d 1027 Appeal from judgment of the Second Judicial District Court, Washoe County; William N. Forman, Judge. On motion to dismiss and to impose sanctions. Action for damages arising from injuries received in automobile accident. The district court entered judgment for $51,738 for plaintiff, and defendant appealed. On plaintiff's motion to dismiss appeal and impose sanctions on grounds of multiple procedural derelictions and dilatory pursuit of appeal, the Supreme Court held that appeal would be dismissed and plaintiff would be granted damages of 2 percent per month on $ ! " " E7 90 Nev. 374, 375 (1974) Varnum v. Grady judgment from date of its entry and would be awarded interest, attorney's fee of $1,700 and double costs accrued on appeal. Appeal dismissed; sanctions imposed. [Rehearing denied December 20, 1974] Vargas, Bartlett & Dixon and J. Rayner Kjeldsen, of Reno, for Appellant. Peter Chase Neumann, of Reno, for Respondent. Appeal and Error; Costs. Where defendant appellant, who filed notice of appeal from $51,738 personal injury judgment, failed to comply with rules of appellate procedure in numerous material respects and did not refute contention that respondent had been prejudiced by appellant's dilatory manner of pursuing appeal, appeal would be dismissed and respondent would be granted damages of 2 percent per month on judgment from date of its entry and would be awarded interest, attorney's fee of $1,700 and double costs accrued on appeal, though it was asserted, as an excuse, that appellant's counsel had been involved in a subsequent trial and had been working on other briefs. NRAP 3(c), 10(a), (b)(2), 11(a, d) 12(a), 38; NRCP 73(b); NRS 17.130. OPINION Per Curiam: Respondent has moved us to dismiss this appeal, and to impose sanctions in the form of damages, costs and attorney fees, on grounds of multiple procedural derelictions and dilatory pursuit of the appeal. Respondent sued appellant for damages arising from injuries received in an automobile accident in November, 1972. When the case was called for trial on May 20, 1974, appellant admitted liability, and the only issue submitted to the jury was the amount of damages respondent should receive. On May 24, the jury returned a $51,738 verdict in favor of respondent. On July 8, the trial court denied appellant's motion for new trial. On August 6, appellant's counsel filed a notice of appeal, but thereafter did nothing whatever in furtherance thereof. It is uncontested that appellant omitted to comply with the Nevada Rules of Appellate Procedure in numerous material respects, including the following: (1) failure to timely file and serve on respondent a designation of the portions of the record, proceedings and evidence # 2F: /8 90 Nev. 374, 376 (1974) Varnum v. Grady to be contained in the record on appeal as required by NRAP 10(a); (2) failure to timely order from the court reporter a transcript of the proceedings as required by NRAP 10(b)(2); (3) failure to transmit the record on appeal to this court within the time allotted by NRAP 11 (a); (4) failure to timely request an extension of time therefor under NRAP 11(d); and (5) failure to pay the filing fee for the appeal to the clerk of this court within the time 1 allowed for the transmission of the record on appeal, as required by NRAP 12(a). Following respondent's motion to dismiss appeal, appellant's counsel belatedly attempted to fulfill some of the requirements for going forward with the appeal, but to date they have lodged no part of the record in this court. Accordingly, briefing and disposition of the appeal's merits, if any, cannot proceed. In an affidavit filed September 30, in opposition to respondent's motion, one of appellant's counsel suggests that because he was involved in a subsequent trial and was working on other briefs, counsel should be excused for not complying with the rules. The identical excuse was considered and rejected in Tucker Products Corp. v. Helms, 171 F.2d 126 (9th Cir. 1948), with the court saying: “We do not regard such preoccupation in other litigation as a reasonable ground for neglect of the duties of officers of this court.” See also, Maryland Casualty Company v. Conner, 382 F.2d 13, 17 (10th Cir. 1967), where the court said: “The fact that appellant's counsel is professionally engaged in other matters does not show excusable 2 neglect. . .” ______ 1 In addition, we note judgment was entered May 24, 1974, and the notice of appeal purports to be “from the final judgment . . . entered in said action on August 6, 1974.” No judgment or order was entered on August 6, 1974; thus, if it was the intention of appellant to appeal from the May 21, 1974, judgment she has not complied with NRAP 3(c); cf. NRCP 73(b). “Under this rule we said in Reno Newspapers v. Bibb, 76 Nev. 332, 353 P.2d 458: ‘Only those parts of the judgment which are included in the notice of appeal will F be considered by the appellate court.'” Welch v. State ex rel. Hwy. Dep't, 80 Nev. 128, 130, 390 P.2d 35, 36 (1964). 2 This court has consistently granted motions to dismiss appeals where there has been no allowing of excusable neglect for dilatory conduct. See, for example: Landmark Plaza, Inc. v. Deligatti, 80 Nev. 48, 389 P.2d 81 (1964); Dep't Hwys. v. Roman Catholic Bishop, 80 Nev. 1, 388 P.2d 202 (1664); Kime v. Wardman, 79 Nev. 348, 384 P.2d 965 (1963); McDowell v. Drake, 77 Nev. 136, 360 P.2 257 (1961), and cases cited therein. 90 Nev. 374, 377 (1974) Varnum v. Grady Appellant neither refutes respondent's contention that the dilatory manner of pursuing the appeal has been prejudicial, nor does appellant offer any challenge to respondent's motion for the imposition of sanctions, in the form of damages, costs and attorney fees. Since appellant has totally failed to demonstrate any legal justification for her dilatory conduct, we grant respondent's motion and dismiss the appeal. Tucker Products Corp., supra; NRAP 12(c). We also grant the motion to impose sanctions and award respondent: (1) damages in the amount of 2 percent per month on the $51,738 judgment from May 24, 1974, the date judgment was entered, until said judgment is fully satisfied, in addition to interest as 3 prescribed in NRS 17.130; (2) and attorney's fee of $1,700; and (3) double costs accrued on appeal. NRAP 38. ______ 3 Respondent's motion urged application of this measure of damages, heretofore recognized by this court in Wheeler v. Floral M. & M. Co., 10 Nev. 200 (1875) and followed in Gammans v. Roussell, 14 Nev. 171 (1879); Allen v. Mayberry, 14 Nev. 115 (1879); Escere v. Torre, 14 Nev. 51 (1879). See also, Lehane v. Keyes, 2 Nev. 361 (1867). Appellant totally failed to respond to this issue. ______ 90 Nev. 377, 377 (1974) Valente v. First Western Savings & Loan C. J. VALENTE, Appellant, v. FIRST WESTERN SAVINGS AND LOAN ASSOCIATION, a Nevada Corporation, FIRST WESTERN FINANCIAL CORPORATION, a Delaware Corporation, Authorized to do Business in Nevada, ROBERT G. FIELDING, a/k/a ROBERT G. FINDELSTEIN, MELVIN MOSS, and DOES I Through XX, Inclusive, Respondents. No. 7441 November 27, 1974 528 P.2d 699 Appeal from judgment of dismissal contending that the district court erred in the granting of motion to dismiss pursuant to NRCP 41(e). Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge. Action against savings and loan association alleging misconduct as to certain loan agreements. The district court dismissed for failure to prosecute, and plaintiff appealed. The Supreme Court, Zenoff, J., held that where it appeared that plaintiff's counsel failed to bring the action to trial for period .1- !! " " 5 " 90 Nev. 377, 378 (1974) Valente v. First Western Savings & Loan of 4 1/2 years, alleging that the attorneys to whom he had entrusted the preparatory work had failed to perform, counsel's failure would be imputed to the plaintiff. Affirmed. Johns & Johns, of Las Vegas, for Appellant. Dickerson, Miles & Pico, of Las Vegas, for Respondents. 1. Dismissal and Nonsuit. Attorney's neglect in failing to prosecute claim will be imputed to his client and client is held responsible for it. NRCP 41(e). 2. Dismissal and Nonsuit. Generally, law office delays or failures are unacceptable excuses for failure to prosecute. NRCP 41(e). 3. Dismissal and Nonsuit. Where it appeared that plaintiff's counsel failed to prosecute action for 4 1/2 years, alleging that attorneys to whom he had entrusted preparatory work had failed to perform, counsel's failure to prosecute would be imputed to plaintiff, and thus dismissal for failure to prosecute was not improper. NRCP 41(e). OPINION By the Court, Zenoff, J.: On October 11, 1968 C. J. Valente filed a complaint against First Western Savings and Loan Association and First Western Financial Corporation. Two individuals were also named in the complaint but not served and thus are not a part of this action. Valente complained of misconduct as to certain loan agreements covering an extensive period of time but the complaint was not filed until a few days prior to the running of the statute of limitations. A brief flurry of activity followed the commencement of the action including the filing of respondents' answers but no definitive proceedings to bring the matter to trial were taken for 4 1/2 years. When on April 9, 1973 Valente filed a note for trial docket respondents countered 1 with a motion to dismiss for failure to prosecute pursuant to NRCP 41(e). The trial court granted the motion and Valente appeals. The issue is whether the trial court abused its discretion in ! " 3 "" ! ______ 1 NRCP 41(e): Want of Prosecution. The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial. 90 Nev. 377, 379 (1974) Valente v. First Western Savings & Loan dismissing the action when six months still remained within which trial might still have been held. 1. In his affidavit resisting the motion to dismiss attorney Stanley Pierce who was initially retained by Valente, he represented that he had told Valente at the outset that he would accept the case but was too busy to handle the trial preparation and would have to find personnel to do so if that was agreeable to the client, and it was. Further, in the affidavit he stated that the first lawyer to whom he referred the file repeatedly recited his efforts at preparation which turned out to be untrue, that another lawyer was hired for the same purpose and his representations turned out to be false also. In the meantime, however, Pierce several times told Valente that the case was being worked on. After the expiration of the 4 1/2 years a note for trial docket was filed on Valente's behalf to which respondents filed the motion to dismiss. [Headnotes 1, 2] 2. The general rule is that an attorney's neglect will be imputed to his client and he is held responsible for it. Link v. Wabash Railroad Co., 370 U.S. 626, 634 (1962); Spering v. Texas Butadiene & Chemical Corporation, 434 F.2d 677 (3d Cir. 1970), cert. denied, 404 U.S. 854 (1971). Generally, law office delays or failures are unacceptable excuses. Trudel v. Laube's Amherst, Inc., 336 N.Y.Supp.2d 503, 504 (1972). [Headnote 3] The majority of this court ruled in Hassett v. St. Mary's Hosp. Ass'n, 86 Nev. 900, 903, 478 P.2d 154 (1970), that in order to avoid the two-year discretionary power of dismissal under NRCP 41(e) the onus is upon the client to exercise reasonable diligence in the prosecution of an action after it has been commenced. In that case because the client peddled his case to four different attorneys the court drew the conclusion that the lawyers didn't think much of its merits. In this case apparently the client was pacified into believing that his case was being worked on. Whatever, the weight of authority holds the client responsible for the inactivity of his counsel and leaves him to the recourse of malpractice. Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 380, 380 (1974) Ivanhoe, Inc. v. Strout Realty IVANHOE INC. a Nevada Corporation, Appellant, v. STROUT REALTY, a California Corporation, Respondent. No. 7490 November 27, 1974 528 P.2d 700 Appeal from decision awarding a real estate brokers' commission. First Judicial District Court, Carson City; Frank B. Gregory, Judge. The district court awarded the commission, and vendor appealed. The Supreme Court, Zenoff, J., held that broker and vendor had a net listing agreement; that there was no evidence to support trial court's finding that vendor and purchaser were guilty of bad faith in closing transaction to exclusion of broker; and that where vendor and broker had net listing agreement and vendor sold to purchaser at the net selling price, vendor owed no commission to broker. Reversed and dismissed. Carl F. Martillaro and Arthur J. Dayer, Jr., of Carson City, for Appellant. Manoukian, Scarpello & Alling, Ltd., of Carson City, for Respondent. 1. Brokers. Correspondence between broker and vendor referring to sale price ““with the selling commission to be added on top of this price” established a net listing agreement rather than a general open listing agreement. 2. Brokers. In action to recover broker's commission, there was no evidence to support trial court's finding that vendor and purchaser were guilty of bad faith in closing transaction for sale of real property to the exclusion of vendor's broker. 3. Brokers. Where vendor and broker had a net listing agreement, broker never found a purchaser able to pay a price above the net selling price, and vendor sold to purchaser at the net selling price, vendor owed no commission to broker. OPINION By the Court, Zenoff, J.: In 1968 the respondent corporation contacted the appellant corporation and asked whether the appellant's property in Carson City was for sale and if so, whether the appellant " O P " 5 90 Nev. 380, 381 (1974) Ivanhoe, Inc. v. Strout Realty would “list” the property with the respondent as broker. Further negotiations between the parties were held and a listing agreement was entered into whereby the respondent was to act as a broker in the sale of the property. The type of listing that this agreement was is one of the major issues in this appeal. The appellant contends that the agreement was a special “net” listing with any broker's commission to be the excess, if any, of the purchase price over a certain net minimum amount payable to the seller. The respondent contends, and the trial court so found, that the agreement was a general “open” listing whereby the broker was entitled to a percentage of 5 percent in this case of the actual sales price as a commission. In 1970 Strout Realty made contact with the ultimate purchaser of the property involved and in 1971 the respondent informed the appellant that someone was interested in the property. The respondent requested that the appellant supply further information so that it could be shown to the potential buyer. Strout also prepared a map of the property for the buyer and transmitted the buyer's first offer to the seller which was rejected. Thereafter, the identity of the buyer was disclosed to the appellant by Strout in September 1971. Subsequen tly, the buyer, without informing Strout Realty, contacted the appellant directly and a meeting between buyer and seller was arranged for December 9, 1971. This meeting was held and an agreement was reached for the sale of the property at a price of $550,000.00. It is uncontroverted that while all the parties present at this meeting knew that although Strout had originally made contact with the buyer that Strout had no knowledge of either the direct contact between the buyer and seller or of the meeting on December 9, 1971, where the agreement of sale was entered into. Later, the buyer and broker executed an “agreement” whereby they agreed that “should” the buyer purchase the property in question for $550,000.00 or less the total commission due Strout Realty would be $5,000.00. However, the record shows that the buyer did not mention that a prior meeting had been held earlier that day at which he and the seller agreed on a purchase price of $550,000.00. Subsequently, when the respondent learned of the prior sale of the property it demanded from the appellant a broker's commission of 5 percent of the total sales price. The appellant refused to pay any amount and this litigation followed. At the trial, the appellant asserted that no commission was due the respondent because the listing was a net listing for E " 5 3 90 Nev. 380, 382 (1974) Ivanhoe, Inc. v. Strout Realty $550,000.00 with the broker's commission to be the excess of the sales price over that amount. Since the sales price was $550,000.00 the appellant concluded that no commission was due the broker. In addition, the appellant contended that even if the listing was a general open listing with a percentage of the actual sales price as the broker's commission the agreement executed between the buyer and the respondent was a novation and discharged the appellant from any liability to Strout for a commission. The trial court found against the appellant on both points and held that the appellant was liable to Strout Realty for a commission of 5 percent of the actual sales price. [Headnote 1] 1. The appellant contends that the trial court erred when it found the listing agreement to be a general open listing. The type of listing, whether special or general, was contested at the trial. The trial court reached the conclusion that Strout Realty had an open listing agreement, in other words, a “general” listing which would entitle it to a full commission. There is not, however, a scintilla of evidence to support that finding. The evidence presented by both the appellant and respondent points to a net listing. In a letter of August 20, 1968, signed by Bob Hass, Strout's agent, addressed to Harvey Sewell, he wrote in part: “Your price for the leased building and the three acres is $550,000. with the selling commission to be added on top of this price. . . . Also you mentioned you would sell the above mentioned leased building, together with your total land of approximately 15 acres, for a total price of $600,000, with the selling commission to be added on top of the price.” The record shows that the leased building, together with approximately 15 acres, was sold for the total price of $550,000.00. Strout Realty did not become a partner with Ivanhoe by reason of the fact that it was given the opportunity to earn a commission. It was given an opportunity to procure a willing and able buyer at a price in excess of $600,000.00. This they did not do. The respondent relies heavily on Hobson v. Olin, 81 Nev. 60, 398 P.2d 708 (1965). In that case there was indeed a net listing. But unlike this case, the buyer, through the broker, made an offer of $210,000.00 which was $10,000.00 above the net price. The buyer and seller got together and the seller sold to the buyer for $200,000.00, and thereby fraudulently prevented the broker from receiving her commission. The " 5 90 Nev. 380, 383 (1974) Ivanhoe, Inc. v. Strout Realty courts properly allowed a recovery to the broker. Here no such facts exist. It appears that Ivanhoe is not obligated to Strout at all, but because Strout had brought Carrington to Ivanhoe, the officers of Ivanhoe felt morally obligated and did not consummate the sale until some arrangement for a fee was made between Carrington and Strout. [Headnote 2] Furthermore, there is not evidence to support the trial court's findings that the defendant corporation and Francis Carrington were guilty of bad faith in closing the transaction to the exclusion of the plaintiff. Strout was notified of the sale and of the sale price. If, as the real estate agent of Ivanhoe, Strout wanted to verify this, he could have called Ivanhoe. [Headnote 3] Because Strout had never brought a buyer willing, and able to pay any price for the property above the net selling price, Ivanhoe owed no obligation to Strout, and went beyond any legal obligation when it insisted that Carrington make some kind of a fee arrangement with Strout. 2. The appellant next asserts that the trial court erred when it refused to find that the agreement executed between the realty company and the buyer constituted a novation which discharged the appellant from any liability for a broker's commission. It becomes unnecessary to decide that question. Our conclusion that the realty company is not entitled to a commission from the seller is dispositive of any other issue raised on this appeal. Reversed and dismissed. Thompson, C.J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______90 Nev. 383, 383 (1974) Love v. State WILSON EARL LOVE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7591 November 27, 1974 528 P.2d 703 Appeal from conviction of sale of controlled substance in the Eighth Judicial District Court, Clark County, Joseph S. Pavlikowski, Judge. 90 Nev. 383, 384 (1974) Love v. State The Supreme Court, Zenoff, J., held that comments of prosecutor, which involved inquiry as to whether defendant would like to volunteer any evidence, and the statement “Well, I am sure the point is not lost,” after defense objection had been made and sustained, constituted at most harmless error where trial court properly sustained defense counsel's objections to such conduct, and where later in its instructions the court admonished jury to disregard any reference thereto in the formation of its verdict. Affirmed. Morgan D. Harris, Public Defender, Clark County, for Appellant. Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Failure to object to prosecutor's allegedly improper remarks at the time they were made precluded review of such issue. 2. Criminal Law. Comments of prosecutor, which involved inquiry as to whether defendant would like to volunteer any evidence, and the statement “Well, I am sure the point is not lost,” after defense objection had been made and sustained, constituted at most harmless error, where trial court properly sustained defense counsel's objections to such conduct, and where later in its instructions the court admonished jury to disregard any reference thereto in the formation of its verdict. OPINION By the Court, Zenoff, J.: Wilson Earl Love was charged with sale of controlled substance under NRS 453.321 and NRS 453.161 and found guilty. On November 26, 1972 Love accompanied an undercover agent of the North Las Vegas Police Department to the Brown Derby Bar, wherein Love purchased heroin which he then turned over to the undercover agent. Based on that conduct he was arrested and convicted. [Headnote 1] The issue on appeal is whether Love was denied a fair and impartial trial based on alleged instances of prosecutorial misconduct which includes (1) reference before the jury to # O P/-85! $ 4 4 /*8 ! $ 90 Nev. 383, 385 (1974) Love v. State the transaction in question as a “crime” (2) by the making of several improper and prejudicial statements as to the character and ethics of Love's counsel and Love, and (3) by appealing to the emotions of the jury. This court need not determine the merit of those allegations for at the time these remarks were made by the prosecutors no objection was made by Love's counsel. Failure to object to the prosecutor's remarks at the time they were made precluded reviewing the court's consideration. Sorce v. State, 38 Nev. 350, 353, 497 P.2d 902 (1972); Bonnenfant v. State, 86 Nev. 393, 396, 469 P.2d 401 (1970). [Headnote 2] As to two other alleged instances of misconduct, the record on appeal indicates that Love's counsel did object. The conduct involves the inquiry of the prosecutor as to whether Love would like to volunteer any evidence and the prosecutor's comment, “Well, I am sure the point is not lost,” after an objection had been made and sustained. The trial court properly sustained Love's counsel's objections as to this conduct and later in its instructions to the jury admonished them to disregard any reference thereto in the formation of their verdict. The comments were obscure. In the facts of this case, the remarks at most were harmless error. Tucker v. State, 86 Nev. 354, 357, 469 P.2d 62 (1970); Bonnenfant v. State, supra, at 396; Dotson v. State, 80 Nev. 42, 46, 389 P.2d 77 (1964). Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 385, 385 (1974) Anderson v. State LEON HARLEY ANDERSON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7262 December 2, 1974 528 P.2d 1023 Appeal from judgment fixing a resentence. Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge. Appeal from a judgment of the district court, resentencing defendant to life imprisonment without possibility of parole. The Supreme Court, Batjer, J., held that where defendant received the death penalty upon a jury verdict and United ( # ) ( $ !" & 5 " " # ! 90 Nev. 385, 386 (1974) Anderson v. State States Supreme Court subsequently declared death penalty to be in violation of United States Constitution, district judge was authorized to resentence defendant and invoke penalty of life imprisonment without possibility of parole; and that trial court was not required to obtain formal presentence report prior to resentencing. Affirmed. Gary Sheerin, State Public Defender, for Appellant. Robert List, Attorney General; Robert C. Manley, District Attorney, and Gregory D. Corn, Deputy District Attorney, Elko County, for Respondent. 1. Pardon and Parole. State Board of Pardons Commissioners has exclusive authority to commute prison sentences. Const. art. 5, § 14. 2. Criminal Law. Substitution of a less severe punishment as to a defendant may be imposed without consent or acceptance of defendant and even against his will. 3. Criminal Law. United States Supreme Court decision declaring death penalty to be in violation of United States Constitution had effect only of invalidating death penalty portion of judgment fixing death penalty but did not affect the portion finding guilt. U.S.C.A.Const. Amends. 8, 14. 4. Criminal Law. Where defendant was convicted of first-degree murder and sentenced to death, and subsequently the United States Supreme Court declared death penalty to be in violation of United States Constitution, district judge was authorized to resentence defendant and invoke penalty of life without possibility of parole, such sentence being only lawful penalty which could have been entered upon the conviction and finding of jury that defendant should receive maximum sentence permitted by law. U.S.C.A.Const. Amends. 8, 14; NRS 176.555, 200.030. 5. Criminal Law. Where defendant was sentenced after probation service made presentence investigation report to sentencing judge, trial court was not required to obtain formal presentence report prior to resentencing. NRS 176.135. OPINION By the Court, Batjer, J.: The appellant was convicted of first degree murder on September 14, 1969, and the jury assessed the death penalty. 90 Nev. 385, 387 (1974) Anderson v. State On December 10, 1970, we affirmed that conviction. Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970). Prior to the execution of the sentence, the United States Supreme Court filed its opinion in Furman v. Georgia, 408 U.S. 238 (1972), declaring the death penalty as it had been applied to be in violation of the Eighth and Fourteenth Amendments of the United States Constitution, and ordering resentencing. See Robinson v. Neil, 409 U.S. 505 (1973); cf. Walker v. State, 88 Nev. 539, 501 P.2d 651 (1972). [Headnotes 1, 2] On November 6, 1972, the district court denied appellant's motion for continuance pending appeal of its order requiring his resentencing, then proceeded to resentence him to life 1 imprisonment without possibility of parole. This appeal is taken from the judgment of the district court. Appellant contends that only a jury could properly resentence him, and that the district court was without jurisdiction to proceed. [Headnote 3] Furman reversed only insofar as the death penalty was assessed. The states which have dealt with the problem have universally declared that only the death penalty portion of a judgment fixing the death penalty is invalid, and the portion finding guilt is left undisturbed. Anderson v. State, 267 So.2d 8 (Fla. 1972); People v. Robles, 506 P.2d 211 (Cal. 1973)—based on People v. Anderson, 493 P.2d 880 (Cal. 1972); Hubbard v. State, 274 So.2d 298 (Ala. 1973); Galbreath v.( ".-D--/; ______ 1 On December 12, 1972, the Nevada State board of Pardons Commissioners, upon their own motion, commuted appellant's sentence from death to life imprisonment without possibility of parole. Article 5, Section 14 of the Nevada Constitution vests authority to commute prison sentences exclusively in the State Board of Pardons Commissioners. State v. Echeverria, 69 Nev. 253, 248 P.2d 414 (1952); State v. Butner, 67 Nev. 436, 442, 220 P.2d 631 (1950); State v. Moran, 43 Nev. 150, 182 P. 927 (1919). Although conditions attached to pardons must be voluntarily accepted and performed by the convicted person or the original term must be served (Ex Parte Janes, 1 Nev. 319), that is not true with regard to the commutation of punishments. The substitution of a less severe punishment, authorized by the Nevada Constitution, may be imposed without the consent or acceptance of the convicted person, and even against his will. Biddle v. Perovich, 274 U.S. 480 (1927); In Re Charles, 222 P. 606 (Kan. 1924). In Texas and Tennessee, the governors, after Furman was announced, commuted death sentences to life imprisonment, and the appellate courts in those states reformed the judgments of death to life imprisonment. See Whan v. State, 485 S.W.2d 275 (Tex.Crim.App. 1972); Briggs v. State, 501 S.W.2d 833 (Tenn.Crim.App. 1973). 90 Nev. 385, 388 (1974) Anderson v. State Commonwealth 492 S.W.2d 882 (Ky. 1973). State v. Scott, 491 S. W. 2d 514 (Mo 1973); State v. Braun, 509 P.2d 742 (Wash. 1973). See also, Mears v. State of Nevada, 367 F.Supp. 84 (D. Nev. 1973). NRS 200.030, in effect at the time of appellant's conviction, reads in pertinent part: “. . . The jury by its verdict shall fix the penalty at death or imprisonment with or without possibility of parole. . . .” At the conclusion of Anderson's trial the jury had three choices and selected the most severe. After Furman, in those states where the choice of penalty for first degree murder was either death or life imprisonment, the highest appellate court either vacated the death penalty and imposed the alternative sentence of life imprisonment, or remanded to the trial court with instructions to impose the sentence of life imprisonment. Anderson (Fla. 1972), supra; Robles (Cal. 1973), supra; Hubbard (Ala. 1973), supra; Scott (Mo. 1973), supra. See also, Mears, supra, n. 1, 367 F.Supp. at 86. Only in the State of Illinois, where it is required by statute, were the cases sent back for resentencing hearings in mitigation or aggravation, and there the hearings were before a court sitting without a jury. The Illinois court was authorized to impose any penalty that a jury might have imposed. People v. Speck, 287 N.E.2d 699 (Ill. 1972); People v. Connally, 303 N.E.2d 409 (Ill. 1973). The State of Nevada has no such statutory provisions. The punishment statute for rape in the State of Georgia is similar to our punishment statute for first degree murder. There the punishment is by death or imprisonment for life, or by 2 imprisonment for not less than one nor more than 20 years. The State of Alabama has a 3 somewhat similar statutory provision. In Mitchell v. Smith, 194 S.E.2d 414, 418 (Ga. 1972), where the defendant had been convicted of rape, and sentenced to death, the Supreme Court of Georgia remanded the case to the sentencing court and stated: “The presiding judge shall enter a judgment sentencing the appellant to be imprisoned for the balance of his life, this being the only lawful sentence " ! $ 3 "P ______2 Ga. Code Ann. § 26-2001. 3 Alabama's Title 14 § 395, Code of 1940 provides: “Any person who is guilty of . . . rape shall . . . be punished, at the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years.” In Swain v. State, 274 So.2d 305 (1973), the Supreme Court of Alabama held that the sentence of death could be modified and reduced to life imprisonment. 90 Nev. 385, 389 (1974) Anderson v. State which may be entered upon the conviction and finding of the jury that he should receive the maximum sentence permitted by law.” (Emphasis added.) [Headnote 4] After Furman rendered the death penalty void, life imprisonment without the possibility of parole became the maximum sentence that could be imposed in Nevada against a person convicted of first degree murder. NRS 176.555 provides that a district court “may correct an illegal sentence at any time.” The district judge was authorized to resentence the appellant and invoke the penalty of life without possibility of parole, it being the only lawful penalty which could have been entered upon the conviction and finding of the jury that Anderson should receive the maximum sentence permitted by law. [Headnote 5] Appellant further contends that the trial court was required to obtain a formal presentence 4 report prior to the resentencing. This contention is without merit. NRS 176.135 only requires the probation service of the district court to make a presentence investigation and report to the court upon each defendant who pleads guilty or nolo contendere, or is found guilty before the imposition of a sentence. The record indicates that before the original sentence was imposed upon appellant, the probation service of the district court made a presentence investigation report to the sentencing judge. NRS 176.135 has been fully complied with. Appellant has cited no authority and we have found none which would require the district court to obtain a supplemental presentence report in this case. The remainder of appellant's contentions are not supported in the record, nor by authority, and we consider them to be without merit. The judgment of the district court is affirmed. Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur. ______ 4 NRS 176.135: “The probation service of the district court shall make a presentence investigation and report to the court upon each defendant who pleads guilty or nolo contendere or is found guilty before the imposition of sentence or the granting of probation.” ______90 Nev. 390, 390 (1974) Moore v. Cherry AMOS MOORE and BEATRICE MOORE Appellants, v. JACK C. CHERRY, M.D., Respondent. No. 7309 December 2, 1974 528 P.2d 1018 Appeal from a judgment of dismissal with prejudice and an order denying a motion for a new trial. Eighth Judicial District Court, Clark County; James D. Santini, Judge. Medical malpractice action. The district court dismissed with prejudice for failure to prosecute, and plaintiffs appealed. The Supreme Court, Batjer, J., held that where plaintiffs' counsel, upon receiving notice of trial date, realized that he would be on vacation on said date but did not file motion for continuance, dismissal of action for failure to prosecute was not abuse of discretion, even though counsel had written letters to clerks of courts and judges informing them that he would be on vacation on date of trial. Affirmed. Charles L. Kellar, of Las Vegas, for Appellants. Rose, Norwood and Edwards, of Las Vegas, for Respondent. 1. Dismissal and Nonsuit. To prevent undue delays and to control calendars, courts may exercise inherent power to dismiss case for failure to prosecute or to comply with court orders within bounds of sound judicial discretion, and this power is independent of any authority granted under statutes or court rules. NRCP 41(b). 2. Dismissal and Nonsuit. Dismissal with prejudice for failure to prosecute or to comply with court orders is harsh remedy to be utilized only in extreme situations, and must be weighed against policy of law favoring disposition of cases on merits. NRCP 41(b). 3. Appeal and Error. On appeal of dismissal of case with prejudice for failure to prosecute or comply with court orders, issue is whether trial judge abused his discretion. NRCP 41(b). 4. Dismissal and Nonsuit. Plaintiffs' counsel's letter to clerks of court and judges informing them that he would be on vacation when action was calendered for trial did not substitute for motion for continuance, and could not avoid dismissal of action for failure to prosecute. DCR 21(1); NRCP 41(b). 5. Dismissal and Nonsuit. Where party has been accurately notified of time and place of hearing, his failure to appear amounts to failure to prosecute and is proper ground for dismissal. NRCP 41(b). 90 Nev. 390, 391 (1974) Moore v. Cherry 6. Dismissal and Nonsuit. Element necessary to justify dismissal for failure to prosecute is lack of diligence on part of plaintiff, whether individually or through counsel. NRCP 41(b). 7. Dismissal and Nonsuit. Where plaintiffs' counsel knew that district court had set date for trial, and that this date conflicted with his vacation plans, but filed no motion for continuance, upon counsel's failure to appear for trial, dismissal with prejudice for failure to prosecute was not abuse of discretion. 8. Appea l and Error. Where appellants did not submit statement of evidence on appeal to district court for settlement and approval, it was not considered as part of record on appeal. NRAP 10(c). 9. Appeal and Error. Where judgment was regular on its face and nothing to contrary appeared in record, it was entitled to presumption of regularity and validity on appeal. OPINION By the Court, Batjer, J.: On May 12, 1971, appellants filed a complaint alleging a cause of action for medical malpractice. Respondent answered, and on June 8, 1971 filed objections to the setting of the case on the trial docket because he had not had sufficient time in which to complete discovery. On June 9, 1971 appellants filed their note for trial docket requesting that the case be set for trial. The record is silent on the disposition of respondent's objections to, or appellants' request for a setting of the case for trial; however, on November 13, 1972 appellants filed another note for trial docket, again requesting that the matter be set for trial. Although the record contains no specific order of the district court setting the case for trial, the judgment of dismissal recites that notice of the trial setting had been duly made pursuant 1 to order, and that the attorneys for the parties had been properly notified. Appellants do not contend that they " " " ! , 7* ______ 1 Judgment entered February 9, 1973, reads in pertinent part: “JUDGMENT OF DISMISSAL WITH PREJUDICE: The above entitled matter came on for hearing on Monday, February 5, 1973, at the hour of 9:15 a.m. before the Honorable William P. Compton, Master Calendar Judge of the Eighth Judicial District Court. “Said notice of trial setting having been duly made by the Master Calendar Clerk pursuant to the Order of the Master Calendar Judge and the attorneys for the various parties having been notified pursuant to the Rules of the Eighth Judicial District Court and of Nevada Civil Procedure. “The Master Calendar Clerk announcing the case for trial and 90 Nev. 390, 392 (1974) Moore v. Cherry were not notified or that they were unaware of the trial setting on February 5, 1973. The judgment of dismissal indicates that on February 5, 1973, neither the appellants nor their counsel were present when the case was called for trial. Respondent and his attorney were present and announced that they were ready for trial. The trial court then noted the absence of appellants and their attorney from the courtroom and the courthouse, and that no motion for a continuance had been filed. At that time, respondent, in support of a motion to dismiss, made statements under oath, and his attorney presented arguments to the district court. On February 6, 1973, the district court entered its judgment of dismissal with prejudice. 2 NRCP 41(b). 3 Appellants filed a timely motion pursuant to NRCP 59 # !$ ! "! ______assigning the said Case to Department Ten of the Eighth Judicial District Court for a trial thereof. “Department Ten of the Eighth Judicial District Court receiving the matter and the Court convening at the hour of 10:00 o'clock a.m. on Monday, February 5, 1973, and the defendant and his attorney, Lee R. Rose of the firm of ROSE, NORWOOD & EDWARDS, Ltd., being present and announcing themselves ready for trial and the Plaintiffs and their attorneys not being present and it being determined by the Court that neither the plaintiffs nor their attorneys were present in the Courtroom or in the Courthouse and the Court further examining the file and finding that no motion for a continuance as required by the Nevada Rules of Civil Procedure and the District Court Rules, and further the Court having considered that the Plaintiff not being present has failed to submit a prima facie case and the Court considering further arguments of the Defendant's counsel and hearing statements from the Defendant under oath it is hereby “ORDERED that the above entitled case be dismissed with prejudice.” 2 Nevada Rules of Civil Procedure 41(b) provides in pertinent part: “For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . .” 3 Nevada Rules of Civil Procedure 59(a)(b)(c) reads as follows: “(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds materially affecting the substantial rights of an aggrieved party: (1) Irregularity in the proceedings of the court, jury, master, or adverse party, or any order of the court, or master, or abuse of discretion by which either party was prevented from having a fair trial; (2) Misconduct of the jury or prevailing party; (3) Accident or surprise which ordinary prudence could not have guarded against; (4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial; (5) Manifest disregard by the jury of the instruction of the court; (6) Excessive damages appearing to have been given under the 90 Nev. 390, 393 (1974) Moore v. Cherry requesting that the judgment of dismissal be set aside and that a new trial be granted. Their motion was supported by an affidavit of their attorney. Affidavits in opposition to the motion were filed by respondent's attorney. After a hearing on the motion it was denied. Appellants have timely filed their notice of appeal from the order denying their motion for a new trial and from the judgment of dismissal. The threshold question is whether the district court so abused its discretion in denying appellants' motion for a new trial, that reversal is mandated. [Headnote 1] Inherent in courts is the power to dismiss a case for failure to prosecute or to comply with its orders. To prevent undue delays and to control their calendars, courts may exercise this power within the bounds of sound judicial discretion, independent of any authority granted under statutes or court rules. Sloup v. Hershey, 457 F.2d 148 (7th Cir. 1971), rehearing denied April 17, 1972; Sheaffer v. Warehouse Emp. Union, Local No. 730, 408 F.2d 204 (D.C. Ct. of App. 1969), cert. denied 395 U.S. 934 (1969); Harris v. Harris, 65 Nev. 342, 196 P.2d 402 (1948); Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963); Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969). [Headnote 2] However, dismissal with prejudice is a harsh remedy to be utilized only in extreme situations. Theilman v. Rutland Hospital, 455 F.2d 853 (2nd Cir. 1972); Pond v. Braniff Airways, 453 F.2d 347 (CA. 5th Cir. 1972). It must be weighed against the policy of law favoring the disposition of cases on their merits. Richman v. General Motors Corp., 437 F.2d 196 /(F ______influence of passion or prejudice; or, (7) Error in law occurring at the trial and objected to by the party making the motion. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. “(b) Time for Motion. A motion for a new trial shall be served not later than 10 days after service of written notice of the entry or the judgment. “(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.” 90 Nev. 390, 394 (1974) Moore v. Cherry (CA. 1st Cir. 1971). Because dismissal with prejudice “is the most severe sanction that a court may apply . . . its use must be tempered by a careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (CA. 5, 1967). (Emphasis in reported case.) [Headnote 3] In keeping with the trend to adjudicate a case on its merits rather than by summary procedures, the trial judge in this case could have assessed lesser penalties against appellants and their attorney and granted their motion for a new trial. However, on appeal we are limited to the narrow question of whether the trial judge abused his discretion by denying the motion. Williams v. Kroger Food Company, 208 N.W.2d 549 (Mich-App. 1973). At the time counsel for appellants had filed the second request for a trial setting, he had already planned and scheduled a vacation out of the country. When he learned that the trial was set for February 5, 1973, and realized that he would be away on vacation, he discussed that fact with respondent's counsel. In his affidavit appellants' counsel alleges that respondent's counsel agreed to a continuance of the matter. This was categorically denied by respondent's counsel. [Headnote 4] In his affidavit, appellants' attorney further stated that he had written a letter to all the clerks of the courts and judges informing them that he would be away from the country on vacation when this case was calendared for trial. This procedure was of no force and effect. 4 DCR 21(1) requires that all motions for continuances of causes shall be made on affidavit. An ex parte letter to the court clerk or district judge will not do. [Headnote 5] Where a party has been accurately notified of the time and place of a hearing, his failure to appear amounts to failure to prosecute, and is a proper ground for dismissal. Link v. Wabash Railroad Company, 370 U.S. 626 (1962). See also, Esteva v. House of Seagram, Inc., 314 F.2d 827 (CA. 7, 1963). In Link, the United States Supreme Court, approving a district court's dismissal where counsel had failed to attend a pre-trial conference, said: “Whether such an order can stand on appeal depends not on power [to dismiss] but "" " ! PB ** ______ 4 District Court Rule 21(1) provides: “All motions for the continuance of causes shall be made on affidavit.” 90 Nev. 390, 395 (1974) Moore v. Cherry whether it was within the permissible range of the court's discretion.” Id. at 633. In Sweeny v. Anderson, 129 F.2d 756, 758 (CA. 10, 1942), it was stated: “The elimination of delay in the trial of cases and the prompt dispatch of court business are prerequisites to the proper administration of justice. These goals cannot be attained without the exercise by the courts of diligent supervision over their own dockets. Courts should discourage delay and insist upon prompt disposition of litigation. Every court has the inherent power, in the exercise of a sound judicial discretion, to dismiss a cause for want of prosecution. The duty rests upon the plaintiff to use diligence and to expedite his case to a final determination. The decision of a trial court in dismissing a cause for lack of prosecution will not be disturbed on appeal unless it is made to appear that there has been a gross abuse of discretion.” See Samber v. Chris Berg, Inc., 394 P.2d 81 (Alas. 1964); Banta v. Serban, 121 N.W.2d 854 (Mich. 1963); Cunningham v. United States, 295 F.2d 535 (CA. 9th 1961). [Headnotes 6, 7] The element necessary to justify dismissal for failure to prosecute is lack of diligence on the part of the plaintiff, whether individually or through counsel. Here appellants' counsel knew that the district court had ordered the trial to proceed on February 5, 1973, and that this date conflicted with his vacation plans. He was not without a remedy. At the very least, he could have moved for a continuance, supported by an affidavit; instead he ignored the district court's order and the rules of court, and proceeded on vacation. Appellants' counsel further contends that appellants knew nothing about the fact that the trial had been set for February 5, 1973, and that they should not be penalized for the neglect of their counsel. A similar contention was made in Link v. Wabash Railroad Company, supra, and the High Court said: “There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent, and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.'” F ! " ! " ! 90 Nev. 390, 396 (1974) Moore v. Cherry 5 Although a number of cases have been reversed where the appellate court found that the trial court had abused its discretion in ordering a dismissal, in none of those cases was the conduct of the plaintiff or counsel as cavalier in the disregard of rules of court or court orders. Therefore, under the circumstances of this case, we find that the district court did not abuse its discretion in denying appellants' motion for a new trial. In their appeal from the judgment of dismissal, appellants have failed to assign any error or point to any error in the record, or present any argument to show that the judgment should be reversed. [Headnote 8] Appellants have attempted to file a statement of the evidence pursuant to the provisions of NRAP l0(c) (formerly NRCP 75(n)), but there is nothing to indicate that the statement was ever submitted to the district court for settlement and approval. We must therefore, because appellants failed to comply with NRAP 10(c) (formerly NRCP 75(n)), refuse to consider it as a part of the record on appeal. [Headnote 9] The judgment recites that the district court considered the statements of the respondent under oath, and the argument of his counsel, and found that appellants had failed to present a prima facie case. The judgment is regular on its face and nothing to the contrary appears in the record. Therefore it is entitled to a presumption of regularity and validity and we affirm. Nesbitt v. Chisholm, 16 Nev. 39 (1881); Schwartz v. Stock, 26 Nev. 128, 143, 65 P. 351 (1901); Searchlight Dev. Inc. v. Martello, 84 Nev. 102, 437 P.2d 86 (1968). ______ 5 Brown v. Thompson, 430 F.2d 1214 (CA. 5, 1970), where the district court had refused plaintiffs access to crucial evidence and were unable to prove their case at the time it was set for trial; McCombs v. Pittsburgh-Des Moines Steel Company, 426 F.2d 264 (CA. 10, 1970), where a key witness for the plaintiff had suffered a kidney stone ailment on the Saturday night before the Monday trial date and was hospitalized; Troxler v. Holohan, 451 P.2d 662 (Ariz.App. 1969), where proper notice of the time and place of trial had not been given to plaintiff's attorney; Earl v. Lawrence, 315 N.Y.S.2d 979 (1970), where plaintiff's attorney who was otherwise ready for trial had requested one hour's respite to attend a luncheon of which he was a host. See also Durham v. Florida East Coast Railway Company, 385 F.2d 366 (CA. 5th. 1967). 90 Nev. 390, 397 (1974) Moore v. Cherry The judgment of dismissal with prejudice and the order denying a new trial are affirmed. Thompson, C. J. and Mowbray Gunderson, and Zenoff, JJ., concur. ______ 90 Nev. 397, 397 (1974) Rupert v. Stienne DAVID G. RUPERT by Gordon A. Rupert, his Father and Guardian ad Litem, and GORDON A. RUPERT, Individually and BEVERLY M. STIENNE, Appellants, v. ANDRE JEAN STIENNE and ANN HARPER RUPERT, Respondents. No. 7601 December 2, 1974 528 P.2d 1013 Appeal from an order granting summary judgment, Second Judicial District Court, Washoe County; William N. Forman, Judge. Consolidated appeals from the district court to reconsider Supreme Court's announced position on interspousal and parental tort immunity relied upon by district court in tort actions. The Supreme Court, Batjer, J., held that doctrine of interspousal immunity is abrogated regarding claims arising out of motor vehicle accidents and that there is no common-law rule, state constitutional or statutory provisions which compel application of doctrine of parental immunity. Reversed and remanded. Rice & Goedert, of Reno, for Appellants. Vargas, Bartlett & Dixon and J. Rayner Kjeldsen, of Reno, for Respondents. 1. Common Law. Statute providing that “the common law of England, so far as it is not repugnant to or in conflict with the Constitution and the laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all courts of this state,” does not require the Supreme Court to follow forever the common-law doctrine of interspousal tort immunity; despite the statute, courts may reject the common law where it is not applicable to local conditions. NRS 1.030. 90 Nev. 397, 398 (1974) Rupert v. Stienne 2. Courts. The doctrine of stare decisis must not be so narrowly construed that body of common law is forever encased in a straight-jacket. 3. Common Law. In any case involving an attack upon a common-law principle, the Supreme Court must reexamine the reasons behind the doctrine. 4. Husband and Wife. An interspousal tort claim should not be saddled with the presumption of fraud ab initio, since the adversary system will ferret out the nonmeretorious claims and dispatch those who would practice fraud upon the courts. 5. Torts. A person proximately injured by act of another, whether wilfully or negligently, should, unless it is against public policy, be compensated. 6. Husband and Wife. Doctrine of interspousal immunity is abandoned regarding claims arising out of motor vehicle accidents; Morrissett v. Morrissett, 80 Nev. 566, 397 P.2d 184 (1964), and Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833 (1960), overruled. NRS 41.170, 698.010 et seq., 698.230, 698.250. 7. Parent and Child. There is no common-law rule of parental immunity nor are there any state constitutional or statutory provisions which compel application of doctrine of parental immunity; Strong v. Strong, 70 Nev. 290, 267 P.2d 240, 269 P.2d 265 (1954), to extent inconsistent, overruled. NRS 1.030, 41.080. OPINION By the Court, Batjer, J.: In this consolidated appeal we are asked to reconsider this court's announced position on interspousal and parental tort immunity. Morrissett v. Morrissett, 80 Nev. 566, 397 P.2d 184 (1964), Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833 (1960), and Strong v. Strong, 70 Nev. 290, 267 P.2d 240, 269 (1954). STIENNE: This case deals with the question of responsibility for injuries to one spouse caused by the negligent operation of a motor vehicle by the other. Beverly Stienne was injured while riding in an automobile driven by her husband, Andre Stienne. The accident resulted from a collision with a vehicle driven by Siefried Wagner. Mrs. Stienne filed suit against her spouse and Wagner for injuries she sustained in the accident. The Wagner litigation has not yet been concluded, and is not now before this court. 90 Nev. 397, 399 (1974) Rupert v. Stienne The district court granted the respondent Andre's motion for summary judgment based solely upon the doctrine of interspousal immunity as announced in Morrissett v. Morrissett, supra, and Kennedy v. Kennedy, supra, which precludes tort action by one spouse against 1 another. Pursuant to the provisions of NRCP 54(b), the district court expressly determined that there was no just cause for delay and directed the entry of judgment. This appeal followed. In Kennedy, this court declared that the common law rule that a wife could not sue her husband for a personal tort prevailed in Nevada in the absence of a permissive statute to the contrary, and in Morrissett said: “We feel that any change in the common law rule of interspousal immunity with respect to personal torts must be made by the legislature.” That position ignored the fact that the rule is not one made or sanctioned by the legislature, but rather is one that depends for its origin and continued viability upon the common law. Freehe v. Freehe, 500 P.2d 771, 775 (Wash. 1972). Having been created and preserved by the courts, the doctrine is subject to amendment, modification and abrogation by the courts if current conditions so dictate. [Headnote 1] Although NRS 1.030 provides that “the common law of England so far as it is not repugnant to or in conflict with the Constitution and the laws of the United States or the constitution and laws of this state shall be the rule of decision in all courts of this state,” it does not require this court to follow forever the common law doctrines of interspousal tort immunity. Despite NRS 1.030, courts may reject the common law where it is not applicable to local conditions. In State ex rel. George v. Swift, 10 Nev. 176, 183 (1875), this court said: “If applicable to our condition and not abrogated by constitutional or statutory provision, it was, and is, binding " ______1 NRCP 54(b): “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry or judgment adjudicating all the claims and the rights and liabilities of all the parties.” 90 Nev. 397, 400 (1974) Rupert v. Stienne upon the courts of every State that has adopted the common law as the rule of decision. Moreover, being founded upon the gravest considerations of public policy, and expressing the wisdom derived from centuries of experience, it would seem that such a rule should not be lightly departed from.” (Emphasis added.) This court rejected the common law rule of England which decreed that agreements to submit any and all disputes to arbitration were unenforceable and ruled instead that an agreement to arbitrate a future dispute was valid and enforceable. United Assn. of Journeymen v. Stine, 76 Nev. 189, 351 P.2d 965 (1960). This court has also rejected the common law doctrine of riparian rights. Jones v. Adams, 19 Nev. 78, 87, 6 P. 442 (1885) (overruling Vansickle v. Haines, 7 Nev. 249 (1872)); Walsh v. Wallace, 26 Nev. 299, 327, 67 P. 914 (1902); Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 P. 317 (1889). The Supreme Court of Oregon in In re Hood River, 227 P. 1065, 1083, 114 Ore. 112 (1924), after citing and discussing the holding in Reno Smelting Works v. Stevenson, supra, went on to say: “The very essence of the common law is flexibility and adaptability * * *. It finds widely different expression in different jurisdictions. If the common law should become so crystallized and its expression must take on the same form wherever the common-law system prevails, irrespective of physical, social, or other conditions peculiar to the locality, it would cease to be the common law of history, and would be an inelastic and arbitrary code. It is one of the established principles of the common law, which has been carried along with its growth, that precedents must yield to the reason of different or modified conditions.” Id. 227 P. 1086, 1087. [Headnote 2] The doctrine of stare decisis must not be so narrowly pursued that the body of the common law is forever encased in a straight jacket. In State v. Culver, 129 A.2d 715, 721 (N.J. 1957), Chief Justice Vanderbilt wrote: “. . . One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time " & 5 ! 5 $ 90 Nev. 397, 401 (1974) Rupert v. Stienne a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his interpretations of Legal History (1922) when he stated: “Law must be stable, and yet it cannot stand still.'” [Headnote 3] As in any case involving an attack upon a common law principle, we must reexamine the reasons behind the doctrine of interspousal immunity. State ex rel. George v. Swift, 10 Nev. 176 (1875). At common law, a husband and wife were regarded as one because a metaphysical merger had taken place, and the legal existence of the wife had merged with that of the husband. Under this concept, either spouse was precluded from maintaining an action against the other for wrongful conduct whether intentional or negligent. 1 Blackstone Commentaries 442; Prosser, The Law of Torts, Ch. 23, Sec. 122, 4th Ed. 1971. This artificial concept cannot be seriously defended today and is not compatible with our current conditions. [Headnote 4] The doctrine of interspousal tort immunity has been perpetuated on the notion that it fosters domestic tranquility and prevents fraud and collusion, and it has been frequently argued that fraudulent and collusive suits would flow from abandonment of the rule. There is a possibility of fraud or collusion in every negligence action where the tort-feasor is insured. Where the adversaries are husband and wife, not only are the parties in close personal relationship, but any recovery will inure to the benefit of the entire family, and the failure to recover will affect the entire family adversely. However, to deny one spouse the opportunity to recover for the tortious conduct of the other because of the possibility of fraud and collusion, belies the centuries old trust in our jury system. An interspousal tort claim should not be saddled with the presumption of fraud ab initio. Courtney v. Courtney, 87 P.2d 660 (Okla. 1938). Our adversary system will ferret out the nonmeritorious claims and dispatch those who would practice fraud upon the courts. In Klein v. Klein, 376 P.2d 70, 73 (Cal. 1962), the California Supreme Court announced its position with regard to interspousal tort immunity and the collusion argument when it said: “It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we " !! 90 Nev. 397, 402 (1974) Rupert v. Stienne must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffectual.” As Justice Thompson pointed out in his dissent in Morrissett: “Photography, scientific investigative procedures, pretrial discovery, cross examination, etc., are usually adequate safeguards against the fabricated claim. Trial courts and jurors are sensitive to the ‘trumped up' charge.” Marital discord which would purportedly stem from interspousal tort suits is equally non-persuasive as a reason for retention of the doctrine. Interspousal suits are allowed in actions not sounding in tort. In Nevada a husband has been permitted to bring an action and recover money loaned by him to his wife for the improvement of her separate property. Kraemer v. Kraemer, 76 Nev. 265, 352 P.2d 253 (1960). In numerous cases decided in other jurisdictions one spouse has been permitted to bring an action against the other for a variety of torts committed against the complaining spouse's property rights. Prosser, The Law of Torts, Ch. 23, Sec. 122. Those actions are as likely to bring about conjugal discord, as are actions for personal torts, yet only personal tort claims have been precluded upon the ground that they would shatter the harmony of the family. Self v. Self, 376 P.2d 65, 69 (Cal. 1962). [Headnote 5] Such characterization runs against our fundamental concept of tort law. A person proximately injured by the act of another, whether wilfully or negligently, should, unless it is against public policy, be compensated. Klein v. Klein, supra. In abandoning the doctrine of interspousal immunity, the Supreme Court of the State of Washington reasoned that if a state of peace and tranquility existed, then no action would be commenced, or the spouses would allow the action to continue only so long as the tranquility was preserved. Freehe v. Freehe, supra. The state of matrimony alone is not a sufficient justification for preventing suit on an actionable wrong. To a degree we have already abandoned the doctrine of interspousal tort immunity. In Pearce v. Boberg, 89 Nev. 266, 510 P.2d 1358 (1973), we affirmed the judgment allowing damages in favor of a wife against her husband for injuries sustained in a motor vehicle accident which occurred shortly before their marriage. The spector of fraud and collusion as well as disruption of the peace and harmony of the marriage 5 " " " 90 Nev. 397, 403 (1974) Rupert v. Stienne certainly lurked in that case, yet, the doctrine of interspousal immunity was not allowed to bar the action by the wife. Congestion in the courts is a further objection raised against abolition of the immunity. This position is not supportable. Jurisdictions which have abolished the immunity are not experiencing increased congestion due to such suits. Freehe v. Freehe, supra, citing Prosser, Torts (4th Ed. 1971) § 122, p. 864. The Nevada Motor Vehicle Insurance Act, NRS Ch. 698, requires automobile owners to purchase policies of insurance or other security which would provide medical, surgical, funeral and disability benefits for every person, unless specifically excluded, who suffers a loss from injury arising out of the maintenance or use of a motor vehicle, without regard to 2 immunity from liability, if the accident occurs in this state. NRS 698.230. Spouses and children of the insured are covered as well as others. NRS Ch. 698, by requiring, in certain instances, one spouse to insure against the other spouse's injuries, will substantially diminish any justification which may have existed for interspousal tort immunity in this state. See NRS 3 698.250. The recognition that damages received as a result of personal injury are the separate property of the injured spouse, lends additional support to the arguments against the immunity. See NRS 41.170; Choate v. Ransom, 74 Nev. 100, 323 P.2d 700 (1958); F. & W. Construction Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (1940); Self v. Self, supra. Although, no less authority than the United States Supreme Court once said: Any change in the common law rule of interspousal immunity with respect to personal torts must be made by the legislature (Thompson v. Thompson, 218 U.S. 611 (1910)), we believe that the time has arrived to abrogate the doctrine. The “conditions” referred to in Swift and subsequent cases dealing with demanded changes in the common law are current conditions. They are not the conditions which existed " ) ( " " ! " 2 * " " 3 ______ 2 NRS 698.230: “If the accident causing injury occurs in this state, every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits unless such benefits are excluded under the provisions of NRS 698.340.” 3 NRS 698.250: “(2) Basic reparation obligors . . . shall pay basic reparation benefits . . . for loss from injury arising out of the maintenance or use of a motor vehicle. This obligation exists without regard to immunity from liability or suit which might otherwise be applicable.” (Emphasis added.) 90 Nev. 397, 404 (1974) Rupert v. Stienne when the United States Constitution was adopted, or when Nevada gained statehood, or even when NRS 1.030 was first enacted, but conditions which exist today. [Headnote 6] For the foregoing reasons we overrule Morrissett. In departing from the doctrine of interspousal immunity, we explicitly limit our opinion for the present to claims arising out of motor vehicle accidents. The propriety of further departure from the doctrine in other tort situations must await presentation of the issue as those situations may arise. RUPERT: [Headnote 7] David Rupert was injured while riding in an automobile operated by his mother, Ann Harper Rupert. Their vehicle was involved in a collision with a vehicle driven by William McCollum. David Rupert brought this action, by and through his father, Gordon A. Rupert, as guardian ad litem, against his mother and the driver of the other vehicle, for injuries he allegedly sustained in the collision. Gordon also brought an action individually seeking special damages from Ann on account of David's medical and hospital expenses, and for loss of David's services. The litigation against McCollum has been voluntarily dismissed by Gordon A. Rupert individually, and as guardian ad litem for David, and is not now before this court. A motion for summary judgment was filed by Ann asserting that the doctrines of interspousal and parental immunity precluded the suit. Relying upon Strong v. Strong, supra; Morrissett v. Morrissett, supra, and Kennedy v. Kennedy, supra, the trial court ordered summary judgment, and pursuant to the provisions of NRCP 54(b) expressly determined that there was no just cause for delay, and directed the entry of judgment. This appeal followed. The respondents erroneously contend that Strong v. Strong, supra, held that an unemancipated minor cannot maintain a tort action against his parents, when in fact Strong erroneously held that Nevada's wrongful death statute (8554 N.C.L. 1931-1941 Supp., now NRS 41.080) did not repeal the common law rule of immunity of the parent from suit by a minor child. There is no common law rule of parental immunity. Such a doctrine is not found in the common law of England. 90 Nev. 397, 405 (1974) Rupert v. Stienne 4 The doctrine of parental immunity is exclusively a rule of American case law first announced in Hewellette v. George, 9 So. 885, 887 (Miss. 1891), where a minor daughter was precluded from bringing an action against her mother for maliciously committing her to an insane asylum. The doctrine was soon adopted in the State of Tennessee when a minor child was denied the right to sue her father and stepmother for cruel and inhuman treatment (McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903), and a minor was barred in the State of Washington for bringing a tort action against her father for rape upon the ground that society had an interest in preserving harmony in domestic relations. Roller v. Roller, 79 P. 788 (Wash. 1905). This court compounded its error of assigning common law status to parental immunity when in a footnote in Strong v. Strong, supra, it wrote: “. . . [A] public policy departing from the common-law rule must find its expression in an Act of the legislature.” See State ex rel. George v. Swift, supra; United Assn. of Journeymen v. Stine, supra; Jones v. Adams, supra; Walsh v. Wallace, supra; Reno Smelting Works v. Stevenson, supra. Because Strong announced no rule of law and was decided upon a false premise, its effect is limited to that case. Th ere are no constitutional or statutory provisions which compel the application of the doctrine of parental immunity in this state, nor is it the rule of decision. NRS 1.030. Because the doctrine has not been adopted in this state, the right of a child to sue a parent in tort is without restriction or limitation. Insofar as the holding in Strong v. Strong, supra, is inconsistent with the holding in this case, it is hereby overruled. For the reasons announced in the companion case of Stienne v. Stienne, the doctrine of interspousal immunity as it has been applied to the complaint of Gordon A. Rupert, individually, is rejected. These consolidated cases are reversed and remanded for further proceedings not inconsistent with this opinion. Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur. ______ 4 The doctrine of “parental immunity” is reciprocal. Actions by parents against their unemancipated children are barred as well as actions by unemancipated children against their parents. ______ 90 Nev. 406, 406 (1974) Radkus v. State JANET RADKUS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 6958 December 2, 1974 528 P.2d 697 Appeal from judgment of conviction and sentence in the Eighth Judicial District Court, Clark County; John F. Mendoza, Judge. Defendant was convicted in the district court of murder, and she appealed. The Supreme Court, Mowbray, J., held that police officers' entry into defendant's house upon request of defendant's sister who was occupying house with defendant's permission and subsequent seizure of gun pointed out by defendant's sister did not violate defendant's Fourth Amendment rights; and that trial judge's comments on qualification of state's medical expert amounted to merely a comment to counsel assigning reason for overruling defendant's objection to testimony of state's expert and was not reversible error. Affirmed. Morgan D. Harris, Clark County Public Defender, and Robert L. Stott, Deputy Public Defender, of Las Vegas, for Appellant. Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, Charles Garner, Chief Deputy District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Searches and Seizures. Fourth Amendment does not apply where evidence is discovered and turned over to government by private citizens. U.S.C.A.Const. Amend. 4. 2. Searches and Seizures. Police may validly search pursuant to the consent of a party having present right to use or occupy area to be searched. 3. Searches and Seizures. Where defendant told police that her sister had permission to stay at her home, where defendant's sister requested police to come to house after she discovered gun in suitcase in defendant's bedroom, took police into bedroom and showed them gun in suitcase and where both defendant's sister and defendant's son who was also occupying the house offered the gun to officers, police officers' entrance into house without a warrant and subsequent seizure of gun did not violate defendant's Fourth Amendment rights. U.S.C.A.Const. Amend. 4. 90 Nev. 406, 407 (1974) Radkus v. State 4. Criminal Law. Ordinarily, comments of court in overruling objections to admission of evidence does not constitute error. 5. Criminal Law. Trial judge's statement, made after overruling objection to testimony of state's medical expert rebutting defense of insanity, to the effect that he felt state's expert was in some respects better qualified to give opinion than defendant's medical experts in that he had advantage of reviewing various statements made by investigating officers and other witnesses while defendant's experts did not amount merely to a comment to counsel assigning reason for ruling and did not invade jury's right to pass on facts and thus did not constitute reversible error, especially in light of judge's admonishment that jurors alone were sole judges of credibility of witnesses and weight to be given their testimony. OPINION By the Court, Mowbray, J.: Janet Radkus, appellant, was arrested by Las Vegas police officers for the shooting-murder of her ex-husband. Witnesses identified Janet as the person they saw standing over the deceased at the scene of the shooting. Janet told the police that she threw the murder weapon into some bushes near the scene, but a search of the area did not produce a gun. Soon after Janet was arrested, her son and her sister, both of whom lived out of town, learned of the shooting and traveled to Las Vegas. They stayed at Janet's house. Janet's son gained entrance to the house with a key that had been in his possession for many years. Janet's sister stayed in the house with Janet's express permission. Approximately a week after arriving, Janet's sister was straightening the house and discovered a locked suitcase in Janet's bedroom. Knowing the combination, she opened the suitcase with the intention of packing some children's clothes. Inside, she discovered a gun. With the assistance of Janet's son, she called and requested the police to come to the house. When the police arrived, Janet's sister related her discovery of the gun. She then took the officers into the bedroom and showed them the gun in the suitcase. The officers took the gun and had certain tests conducted. Results of these tests and the gun were introduced at trial. During trial, Janet called as witnesses two medical experts to support a defense of insanity. The State called a medical expert in rebuttal. Janet's counsel objected to this testimony ! 3 3@ 90 Nev. 406, 408 (1974) Radkus v. State on the ground that the State's medical expert had not examined Janet. The objection was overruled, the trial judge stating that the objection went to the weight of the evidence, not the admissibility. The trial judge further stated that he felt the State's expert was in some respects better qualified to give an opinion than possibly the other medical experts, because he had the advantage of reviewing various statements made by the investigating officers and other witnesses, which Janet's two experts did not. The jury returned a guilty verdict. Janet has appealed, alleging the trial judge erred (1) in admitting the gun and the tests into evidence and (2) by commenting on the qualifications of the State's medical expert. 1. The Admissibility of the Gun and the Tests into Evidence. [Headnote 1] In the instant case, the circumstances leading to police custody of the gun do not establish a search and seizure within the prohibitions of the Fourth Amendment. See Purvis v. Wiseman, 298 F.Supp. 761 (1969). The Fourth Amendment simply does not apply where evidence is discovered and turned over to the government by private citizens. Burdeau v. McDowell, 256 U.S. 465 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 487-490 (1971); Mears v. State, 190 N.W.2d 184 (Wis. 1971); People v. Cohn, 106 Cal.Rptr. 579 (1973). [Headnotes 2, 3] Janet contends, however, that even if the discovery of the gun by her sister did not violate her Fourth Amendment rights, the entry by police officers into her house without a search warrant, and their subsequent seizure of the gun, did violate these rights. Janet argues that neither her sister nor her son could validly consent to this latter “search and seizure” by the officers. Assuming the police entry was a “search”, police may validly search pursuant to the consent of a party having the apparent present right to use or occupy the area to be searched. Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965). Here, Janet had previously informed the police that her sister had permission to stay at her home. The officers could reasonably and in good faith believe, therefore, that the sister had authority to consent to their entrance into the home. People v. Daniels, 93 Cal.Rptr. 628 (1971). The gun was displayed to the officers who in turn could validly seize what they had probable cause to believe was evidence in a crime. Further, @ ! 90 Nev. 406, 409 (1974) Radkus v. State both Janet's son and her sister offered the gun to the officers. There was no violation of Janet's Fourth Amendment rights. 2. The Trial Judge's Comments on the Qualifications of the State's Medical Expert. [Headnote 4] Janet urges that the trial judge committed reversible error when he stated his reasons for admitting the testimony of the State's medical expert. Ordinarily, the comments of the court in overruling objections to the admission of evidence do not constitute error. As this court said in State v. Fitch, 65 Nev. 668, 685, 200 P.2d 991, 1000 (1948): “. . . The fact that the comment is not addressed to the jury, nor intended for the jury, greatly reduces its asserted prejudicial effect. . . . [I]f it amounts to no more than a comment to counsel assigning a reason for a ruling and does not purport to invade the jury's right to pass on the facts, and is not unfair or prejudicial, there is no error. . . .” [Headnote 5] We believe that is what occurred in the instant case. Additionally, the learned judge, in charging the jurors, admonished them that they and they alone were the sole judges of the credibility of the witnesses and the weight to be given their testimony. Finding no error, we affirm the judgment of conviction. Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 409, 409 (1974) Mazzuca v. Fund Insurance Companies TONY MAZZUCA dba ANTONIO'S, Appellant, v. THE FUND INSURANCE COMPANIES, FIREMAN'S FUND INSURANCE COMPANY, and NATIONAL SURETY CORPORATION, Foreign Corporations, Respondents. No. 7342 December 2, 1974 528 P.2d 705 Appeal from a judgment granting a motion for partial summary judgment; Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge. Action to recover under mercantile robbery and safe burglary policy for loss sustained in burglary of safe. The district ! $ ! 6 ( I "@ ! " F ! - * ! ! " ! "! ! 90 Nev. 409, 410 (1974) Mazzuca v. Fund Insurance Companies court granted partial summary judgment for insurers, and insured appealed. The Supreme Court, Mowbray, J., held that although forbearance of cancellation of policy was sufficient consideration for insured's August 29th or 30th acceptance of restrictive endorsement reducing insurers' liability for safe burglary, such consideration failed when insurers cancelled policy on September 8; thus, terms of original policy applied with regard to September 6 burglary of safe. Reversed and remanded. Douglas T. Shoemaker, of Las Vegas, for Appellant. Cromer, Barker & Michaelson, of Las Vegas, for Respondents. 1. Insurance. Although forbearance of cancellation of mercantile robbery and safe burglary policy was sufficient consideration for insured's August 29th or 30th acceptance of restrictive endorsement reducing insurers' liability for safe burglary from $3,000 to $100, such consideration failed when insurers cancelled policy on September 8; thus, terms of original policy applied with regard to September 6 burglary of insured's safe. 2. Insurance. Forbearance of cancellation of policy by insurance carrier may be sufficient consideration for modifying an insurance contract if policy is not cancelled. OPINION By the Court, Mowbray, J.: This is an appeal from a judgment of the district court granting a motion for partial summary judgment in favor of the respondent-defendant insurance companies, hereinafter referred to as Insurer, and against the appellant-plaintiff, Mazzuca. The narrow issue presented to the court below and to us on appeal is the extent of the liability of Insurer for losses Mazzuca sustained in the burglary of his safe. 1. Insurer issued a 3-year policy of mercantile robbery and safe burglary insurance to Mazzuca in March 1968. In May 1970, Mazzuca reported a burglary loss. An investigation of the burglary by Insurer's representatives revealed that Mazzuca's safe had been improperly classified in the insurance policy. Mazzuca was advised that he had the option of installing a safe meeting the standards of the original classification or accepting within 10 days from August 20, 1970, a restrictive endorsement on the policy reducing the maximum ! ! E* E 90 Nev. 409, 411 (1974) Mazzuca v. Fund Insurance Companies safe burglary coverage from $3,000 to $100. On August 29 or 30, 1970, Mazzuca accepted and signed a restrictive endorsement on his policy limiting the burglary coverage on the safe to $ 100. Mazzuca was charged an additional $60 premium for the endorsement. Nevertheless, Insurer advised Mazzuca by mail that his original policy would be canceled effective September 8, 1970. On September 6, 1970, Mazzuca's safe was again burglarized. His policy was canceled 2 days later. Insurer claims its liability under the restrictive endorsement is limited to $100. Mazzuca contends that, since the only consideration for accepting the restrictive endorsement was Insurer's agreement not to cancel his policy, which Insurer in fact did, the terms of the original policy prevailed at the time of his loss on September 6, 1970. 2. The majority rule is the forbearance of cancellation of a policy by an insurance company is sufficient consideration for the issuance of an endorsement limiting the insurance liability under the policy. Johnson v. Central Nat'l Ins. Co., 356 S.W.2d 277 (Tenn. 1962); A. Corbin, Contracts § 155 at 195-196 (1956); 17 G. Couch, Couch on Insurance 2d § 67.5 at 397 (1959). [Headnotes 1, 2] 1 Mazzuca's policy contained a cancellation provision. Insurer, therefore, had a right to cancel the policy and could have done so at any time upon giving the required 10 days' notice to do so. In the instant case, however, Insurer, rather than canceling Mazzuca's policy, offered him a restrictive endorsement reducing Insurer's liability for safe burglary from $3,000 to $100. Mazzuca accepted and signed the restrictive endorsement on August 29 or 30, 1970, which was attached to the original policy. Nevertheless, Insurer a few days later, on September 8, 1970, two days subsequent to the loss suffered by Mazzuca on September 6, 1970, canceled his entire policy. Mazzuca argues that, if Insurer's forbearance to cancel the policy was valid consideration for the restrictive endorsement, then that consideration failed because of Insurer's almost immediate order of cancellation. We are inclined to agree, and we so hold. Forbearance of cancellation of an insurance policy by an insurance carrier may be sufficient consideration for modifying an insurance contract, if in fact the policy is not ______ 1 The cancellation clause provided: “This policy may be cancelled by the company, by mailing to the insured at the address shown in this policy written notice stating where [sic] not less than ten (10) days thereafter, such cancellation shall be effective.” 90 Nev. 409, 412 (1974) Mazzuca v. Fund Insurance Companies canceled. But when the policy is then canceled, as in the instant case, the consideration fails and insurer is bound by the terms of the original policy until such cancellation becomes effective. Since Mazzuca's loss of September 6 was prior to Insurer's cancellation of September 8, the parties are bound by the original insurance contract. We therefore reverse and remand the case to the court below for appropriate proceedings consistent with the views expressed herein. Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 412, 412 (1974) Brymer v. State WlLLARD ROSS BRYMER, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7293 December 2, 1974 528 P.2d 1025 Appeal from a judgment of the Second Judicial District Court, Washoe County; James J. Guinan, Judge. Defendant was convicted in the district court of possession of marijuana, and he appealed. The Supreme Court, Mowbray, J., held that seizure of marijuana observed within grocery bag, which was in plain view on floor of front seat of automobile and which was immediately in front of where defendant had been seated when arrested, was permissible and that prosecutor's remark which pertained to a prior conviction of defendant of possession of marijuana did not significantly prejudice defendant. Affirmed. Michael C. Farris, of Incline Village, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney; Kathleen v. Wall, Assistant Chief Deputy District Attorney; and Mills Lane, Deputy District Attorney, Washoe County, for Respondent. 1. Arrest. Officers, who placed accused under arrest due to outstanding warrant and traffic violation, had right to search him and immediate area of automobile in which he was seated and had lawful authority to conduct delayed “inventory” search; thus, seizure, during such inventory search, of marijuana observed within grocery bag, which was in plain view on floor of front seat and which was immediately in front of where accused had been seated, was permissible. U.S.C.A.Const. Amend. 4. 90 Nev. 412, 413 (1974) Brymer v. State 2. Criminal Law. In prosecution for possession of marijuana, prosecutor's remark, which pertained to a prior conviction of accused of possession of marijuana, which jury was instructed to disregard and which was ordered stricken from record, did not significantly prejudice accused. NRS 453.336. OPINION By the Court, Mowbray, J.: Appellant, Willard Ross Brymer, was found guilty of illegal possession of marijuana, in violation of NRS 453.336. He seeks reversal of his conviction on two grounds: (1) that the marijuana was illegally received in evidence and (2) that a remark made by the prosecutor in the jury's presence prejudiced his right to a fair trial. 1. Two police officers observed Brymer's car being driven in Reno during early morning hours without any visible license plates and stopped the vehicle. Brymer was seated in front on the passenger side while a codefendant occupied the driver's seat. Recognizing Brymer, the officers radioed the police station and were informed of an outstanding arrest warrant on an assault and battery charge against him. They placed Brymer under arrest and had his car towed to the department's impound lot. When the officers “inventoried” the vehicle in accordance with the department's established rules and regulations, they found in plain view a large, crumpled grocery bag on the floor of the front seat of the car immediately in front of the place where Brymer had been seated. Looking into the bag, the officers saw what they believed to be marijuana. Subsequent tests confirmed that it was such. Brymer, through counsel, filed a pretrial motion to suppress, which was denied, and over objection the marijuana was received in evidence during the trial. [Headnote 1] 2. Brymer contends that the “inventory” of the car was a search and therefore the seizure of the marijuana was in derogation of the constitutional rights guaranteed to him under the Fourth Amendment. We do not agree. The Supreme Court of the United States, in United States v. Robinson, 414 U.S. 218 (1973), and again in Gustafson v. Florida, 414 U.S. 260 (1973), held that the Fourth Amendment does not bar the admission in evidence of narcotics discovered by a police officer during a thorough search of an arrested traffic offender and the area within his immediate control, the High Court ! " # $ 90 Nev. 412, 414 (1974) Brymer v. State ruling that search incident to lawful arrest requires no justification beyond the fact of the arrest itself. Here the officers, pursuant to an outstanding warrant and traffic violation, placed Brymer under arrest and took him into lawful custody. Once they did so they had a right to search him and the immediate area where he was seated. Cf. Chimel v. California, 395 U.S. 752 (1969). Although the officers did not conduct the search until after the vehicle was taken to the impound lot, since the officers had the right to search the area where they found the marijuana at the time of the arrest, we believe that the delayed search was legal. Cf. Staab v. State, 90 Nev. 347, 526 P.2d 338 (1974); United States v. Edwards, 94 S.Ct. 1234 (1974); Chambers v. Maroney, 399 U.S. 42 (1970). Consequently, the seizure of the marijuana was permissible and its introduction into evidence proper. [Headnote 2] 3. During trial, in the presence of the jury, the prosecutor offered into evidence a copy of Brymer's prior judgment of conviction for illegal possession of narcotics. Defense counsel inquired, “Exemplified copy?”, and the prosecutor replied, “Conviction of possession of marijuana.” There was an immediate objection, whereupon the judge excused the jury and directed counsel to accompany him to chambers. There is no record of what transpired in chambers, but we do know that counsel stipulated to Brymer's knowledge of marijuana (which was the State's purpose for offering the copy of Brymer's prior conviction). The State then withdrew its offer. The court instructed the jury to disregard the prosecutor's statement 1 and ordered the remarks stricken from the record. Defense counsel agreed to the stipulation and had no further objection at trial to the manner in which the court disposed 5 ______ 1 The Court: . . . We have had discussions by counsel and Court, points and authorities were argued by counsel, and as a condition of our discussions, counsel for the defendant, Mr. Martillaro, has offered to stipulate that the defendant, Willard Ross Brymer, . . . has knowledge of marijuana. And the Court, under those circumstances, is going to exercise its discretion to exclude the document marked Exhibit B, State's Exhibit B, and the Court will give a cautionary instruction to the jury in which it will state in substance that the remarks made by Mr. Lane when he offered State's Exhibit B or when he asked to have State's Exhibit B marked will be disregarded by the jury. Is that substantially what we reached today? “Mr. Martillaro [defense counsel]: It is so stipulated, your Honor, and it is substantially what we've discussed off the record.” 90 Nev. 412, 415 (1974) Brymer v. State of the prosecutor's unfortunate remark. We see no significant prejudice to Brymer. We therefore affirm Brymer's judgment of conviction. Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 415, 415 (1974) Raishbrook v. Estate of Bayley JOAN RAISHBROOK, Appellant, v. THE ESTATE OF JUDITH F. BAYLEY, Deceased, Respondent. No. 7471 December 11, 1974 528 P.2d 1331 Appeal from order denying allowance for maintenance of decedent's pets, Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge. The Supreme Court held that (1) 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, and (2) since the record on appeal contained neither a transcript nor any statement of the evidence adduced in the court below, which was essential to a determination of the contentions presented, the order appealed from would be affirmed. Affirmed. Wiener, Goldwater, Galatz & Waldman, Ltd., of Las Vegas, for Appellant. Foley Brothers and Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondent. Appeal and Error. 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. NRAP 10. OPINION Per Curiam: Because the record on appeal contains neither a transcript nor any statement of the evidence adduced in the court below, " " 90 Nev. 415, 416 (1974) Raishbrook v. Estate of Bayley which we deem essential to determination of contentions presented to us, the order appealed from is affirmed. 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. NRAP 10; City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d 110 (1973); Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304 (1972); Leeming v. Leeming, 87 Nev. 530, 490 P.2d 1 342 (1971); Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952). ______ 1 Appellant's present counsel were substituted for prior counsel, to argue this appeal, after the time for docketing the record had passed. ______ 90 Nev. 416, 416 (1974) Golden v. Sheriff MAX MORTON GOLDEN, Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent. No. 7761 December 20, 1974 529 P.2d 208 Appeal from an order denying pretrial petition for writ of habeas corpus, Second Judicial District Court, Washoe County; Peter I. Breen, Judge. The Supreme Court held that the evidence presented to grand jury justified indictment. Affirmed. Legarza, Lee, Barengo & Doyle, of Reno, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, Larry R. Hicks, and Michael E. Malloy, Deputy District Attorneys, Washoe County, for Respondent. Indictment and Information. Evidence presented to grand jury justified indictment of petitioner who filed pretrial petition for habeas corpus. NRS 172.155. OPINION Per Curiam: In this appeal from an order denying a pretrial petition for habeas corpus, we believe evidence presented to the grand jury justified its indictment of appellant. NRS 172.155; Callanan v. United States, 364 U.S. 587 (1961); McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971). “[W]e are not now concerned with the prospect that the P 90 Nev. 416, 417 (1974) Golden v. Sheriff 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). Other contentions raised by appellant are without merit. Cf. Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972). The order denying habeas relief is affirmed. ______ 90 Nev. 417, 417 (1974) Witt v. Sheriff FRANKLIN WITT, Jr., Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent. No. 7649 December 20, 1974 529 P.2d 208 Appeal from an order denying pretrial petition for writ of habeas corpus, Second Judicial District Court, Washoe County; Grant L. Bowen, Judge. The Supreme Court held that the evidence presented to the grand jury justified the indictment of petitioner, and the court was not concerned with the prospect that the evidence presently in the record might, by itself, be insufficient to sustain a conviction. Affirmed. Thomas L. Belaustegui and James W. Johnson, Jr., of Reno, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Michael E. Malloy, Deputy District Attorney, Washoe County, for Respondent. Habeas Corpus. On appeal from order denying pretrial petition for habeas corpus, Supreme Court was not concerned with the prospect that the evidence presently in the record, which justified the indictment of petitioner, might, by itself, be insufficient to sustain a conviction. NRS 172.155. OPINION Per Curiam: In this appeal from an order denying a pretrial petition for habeas corpus, we believe evidence presented to the grand jury justified its indictment of appellant. NRS 172.155; Callanan ) * .) 7/ 8I D 90 Nev. 417, 418 (1974) Witt v. Sheriff v. United States, 364 U.S. 587 (1961); McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971). “[W]e are not now concerned with the prospect that the evidence presently in the record may, by itself, be insufficient to sustain a conviction.” McDonald v. Sheriff, 89 Nev. 326, 327, 512 P.2d 774, 775 (1973). The order denying habeas relief is affirmed. ______ 90 Nev. 418, 418 (1974) Garfinkle v. Sheriff RICHARD M. GARFINKLE, Appellant, v. SHERIFF WASHOE COUNTY, NEVADA, Respondent. No. 7612 December 20, 1974 529 P.2d 794 Appeal from an order denying pretrial petition for writ of habeas corpus, Second Judicial District Court, Washoe County; Grant L. Bowen, Judge. The Supreme Court held that the evidence justified petitioner's indictment and that it need not decide whether the evidence would support a conviction. Affirmed. Stanley H. Brown and Harold G. Albright, of Reno, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Michael E. Malloy, Deputy District Attorney, Washoe County, for Respondent. Habeas Corpus. Supreme Court, in reviewing defendant's appeals from denial of pretrial habeas corpus petition, need not decide whether the evidence, which justified indictment, would support a conviction. OPINION Per Curiam: In this appeal from an order denying a pretrial petition for habeas corpus, we believe evidence presented to the grand jury justified its indictment of appellant. At this juncture we " " ( I A *- -:-77./7*8I 5 90 Nev. 418, 419 (1974) Garfinkle v. Sheriff need not and do not decide whether such evidence would support a conviction. Cf. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973); Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969). Other contentions raised by appellant have previously been considered and rejected. See Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967); and, cf. Schmitt v. State, 88 Nev. 320, 497 P.2d 891 (1972). The order denying habeas relief is affirmed. ______ 90 Nev. 419, 419 (1974) Koontz v. State JOHN KOONTZ, For Himself and Others Similarly Situated, Appellant, v. STATE OF NEVADA, Respondent. No. 7614 December 20, 1974 529 P.2d 211 Appeal from judgment denying appellant's petition requesting the court to declare Chapter 106 as embodied in NRS 284.350(4) of the 1960 Statutes of Nevada unconstitutional. First Judicial District Court, Carson City; Frank B. Gregory, Judge. Action by former elected state officer for judgment declaring statute which prohibits elected officers from being paid for accumulated annual leave upon termination of service to be unconstitutional as making arbitrary discrimination between elected officers and other state employees. The district court rendered judgment from which plaintiff appealed. The Supreme Court, Zenoff, J., held that the statute is constitutional. Affirmed. Harvey Dickerson, of Reno, for Appellant. Robert List, Attorney General, William E. Isaeff, Deputy Attorney General, Carson City, for Respondent. 1. Constitutional Law; States. Statute providing that no elected state officer should be paid for accumulated annual leave upon termination of service did not make arbitrary discrimination between elected officers and other stale employees. NRS 284.350, subd. 4; U.S.C.A.Const. Amend. 14. 90 Nev. 419, 420 (1974) Koontz v. State 2. Constitutional Law. Statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. U.S.C.A.Const. Amend. 14. OPINION By the Court, Zenoff, J.: NRS 284.350(4) recites: “No elected state officer shall be paid for accumulated annual leave upon termination of his service.” John Koontz, former Secretary of State, upon first determining to resign from office after many years of highly respectable service to the State of Nevada in that position, followed the established practice of accepting the equivalent of 30 days pay instead of leaving the office 30 days before his effective retirement date. Return of the sum was demanded by the comptroller who referred to NRS 284.350(4). In response, Koontz seeks to have that portion of Chapter 106 of the 1960 Statutes of Nevada declared unconstitutional. Under the statute all employees of the State's Public Service are entitled to annual leave with pay which may be accumulated from year to year not to exceed 30 working days. NRS 284.350(1). The Act applies to those in classified or unclassified service alike. The legislative prohibition against elected officials participating in annual leave pay was enacted in 1960 and Mr. Koontz contends that the separate treatment of elected officers as against other state employees is an arbitrary discrimination against such elected officers in violation of the 14th Amendment. [Headnote 1] The trial court upheld the constitutionality of the statute with which we agree. An elected official is not accountable to anyone for his time during his term of office except to the electorate at the end of his term and if he seeks re-election. Neither his hours nor days of labor are prescribed by any rule or law. He can come and go as he pleases. His time on the job is subject to his own convenience and discretion. State employees, on the other hand, are directly answerable to their department head for their time and their work efforts and subject to their direction, supervision and control, but for the elected official it is within his capability to decide when to work and when not to work, when to take leave and for how long. 90 Nev. 419, 421 (1974) Koontz v. State Whether Mr. Koontz departed his labors 30 days before the resignation date was within his discretion and he did not do so. Having failed to provide for a vacation during his term Mr. Koontz cannot now claim the money instead. [Headnote 2] Under the criteria of what constitutes unreasonable and arbitrary classification the burden of convincing this court that this is an unreasonable classification has not been met. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911); Morey v. Doud, 354 U.S. 457 (1957). A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 426 (1961). They do exist in this instance. Affirmed . Mowbray and Batjer, JJ., concur. Gunde rson, J., with whom Thompson, C. J., agrees, concurring: We agree that, however construed, NRS 284.350(4) would not be unconstitutional. Thus, we agree that the district court correctly held against appellant Koontz in this action for declaratory relief, attacking the statute on constitutional grounds. However, we think it worthwhile to note the judgment being affirmed only determined that appellant Koontz should “take nothing by reason of this action, and further that the petition for declaratory judgment be denied.” In the court below, the State did not file any counterclaim against Mr. Koontz and, hence, he could raise no defenses in avoidance. Thus, in the procedural context of this case, we do not and could not impose any judgment on Mr. Koontz. If such a judgment is to be imposed, that can be done only in an action the State may commence to recover the money paid to Mr. Koontz, in which he will have an opportunity to raise all available legal defenses. Without anticipating what the ruling on such defenses should be, we note the State does not now, and never has, questioned that John Koontz had an accrued right to time off and compensation for it. If Koontz's letter of resignation had specified a resignation date 30 days in the future, the State acknowledges that he could nonetheless lawfully have left work immediately, and still lawfully have been paid. Although Koontz's letter was, instead, couched in terms of an earlier effective date, it requested full payment for his accumulated leave, and the State's representatives apparently allowed Koontz to leave " ! ! # ! ! 90 Nev. 419, 422 (1974) Koontz v. State office and paid him for accrued overtime, without raising the slightest question concerning the form of his resignation letter. Only after it was too late for Koontz to correct the letter's ostensible imperfections did the State's representatives claim the letter's form forfeited his acknowledged right to time off with pay. If the State hereafter commences an action against Mr. Koontz for the money paid to him under these circumstances, it appears to us that such facts may well provide him with an affirmative defense. Without prejudging whether the State of Nevada is subject to legal defenses available against other employers, we note our view that we would never permit a private corporation belatedly to invoke such an alleged technical oversight in a resignation letter against a loyal employee who was retiring by reason of illness—not even a corporate officer at the top management level. Moreover, although the question has not yet been briefed and argued, we also note that there is a serious question whether NRS 284.350(4) applies to officials in the executive branch of government who tender their resignations in midterm. Certainly, if the courts ultimately so construe it, the legislature should consider amending the statute to permit officials in the executive branch to proceed as Koontz did, when resigning in mid-term for such considerations as ill health. Otherwise, to receive what admittedly is due him, such an official must remain in office as an incumbent on leave, rather than resigning and permitting the Governor to appoint a successor who is physically capable of assuming active command of his high and important state office. Since the matters discussed above are not in issue in this case, we trust the court's decision today will not be construed as anticipating them. ______ 90 Nev. 422, 422 (1974) Smith v. Smith JOANN C. SMITH, Appellant, v. RICHARD R. SMITH, Respondent. No. 7478 December 20, 1974 529 P.2d 209 Appeal from decree granting divorce and child custody, First Judicial District Court, Douglas County; Richard L. Waters, Jr., Judge. The Supreme Court, Gunderson, J., held that (1) finding 3 "5 # ! " ! ! ! ! /-8 ! " ! "O P " ! ! 90 Nev. 422, 423 (1974) Smith v. Smith that husband satisfied six weeks' residency requirement for maintaining a divorce action was supported by the evidence of record, including husband's testimony concerning his presence and domiciliary intent, corroborating testimony establishing his physical presence, evidence that his mother had moved to Nevada also, and evidence that he had licensed his automobile in Nevada and (2) children, eight and ten years old, were not of such delicate age and condition as necessarily to come within the “tender years” doctrine, which provides that children of tender years belong to their mother in the absence of particular circumstances establishing that she is unfit. Affirmed. Stokes & Eck, Ltd., of Carson City, for Appellant. Fondi, Banta & Doescher, of Carson City, for Respondent. 1. Divorce. Finding that husband satisfied six weeks' residency requirement for maintaining a divorce action was supported by the evidence of record, including husband's testimony concerning his presence and domiciliary intent, corroborating testimony establishing his physical presence, evidence that his mother had moved to Nevada also, and evidence that he had licensed his automobile in Nevada. 2. Parent and Child. Whether a child is of “tender years,” for purposes of the general rule that children of tender years belong to their mother in the absence of particular circumstances establishing that she is unfit, cannot be mechanically defined but, rather, is subject to the discretionary power of the trial court on the particular facts of each case. 3. Parent and Child. Children, eight and ten years old, were not of such delicate age and condition as necessarily to come within the “tender years” doctrine, which provides that children of tender years belong to their mother in the absence of particular circumstances establishing that she is unfit. OPINION By the Court, Gunderson, J.: Appellant, Joann Smith, processes this appeal from a decree granting respondent, Richard Smith, a divorce and custody of the couple's minor children. Two assignments of error are tendered, both without merit in the context of this case. 90 Nev. 422, 424 (1974) Smith v. Smith [Headnote 1] 1. First, appellant attacks the trial court's determination of residency, which Nevada law requires to establish subject matter jurisdiction, in the following terms: “Unless the cause of action shall have accrued within the county while plaintiff and defendant were actually domiciled therein, no court shall have jurisdiction to grant a divorce unless either the plaintiff or defendant shall have been resident of the state for a period of not less than 6 weeks preceding the commencement of the action.” Evidence of record that supports the trial court's finding includes respondent's testimony concerning his presence and domiciliary intent, corroborating testimony establishing respondent's physical presence, evidence that respondent's mother had moved to Nevada also, and evidence that respondent had licensed his auto here. Thus, as the record contains evidence to support the court's determination that respondent was a Nevada resident for 6 weeks prior to commencement of the action, we will not disturb that finding. NRCP 52(a). During oral argument, appellant's counsel first contended that, based on constitutional considerations, the record must show respondent's residence continued from the action's commencement through trial. However, counsel cited no authority to support his position, and there is contrary authority. See, for example: Hawkins v. Hawkins, 462 S.W.2d 818, 825-826 (Mo.App. 1973); Jackson v. Jackson, 205 P.2d 297, 299 (Okla. 1949). Prior Nevada cases have not directly treated this question and, before addressing its merits, we prefer to await a case presenting the issue to the trial court in the first instance, and then to this court with appropriate briefs. Cf. Carson v. Sheriff, 87 Nev. 357, 360, 487 P.2d 334, 336, n. 4 (1971). Moreover, we are not persuaded that a finding of respondent's residence would be totally unjustified, even under the standard appellant's counsel now urges upon us. [Headnotes 2, 3] 2. Second, appellant challenges the custody award, contending that “children of tender years belong to their mother in the absence of particular circumstances establishing that she is unfit.” Peavey v. Peavey, 85 Nev. 571, 573, 460 P.2d 110, 111 (1969). In our view, however, whether a child is of “tender years” cannot be mechanically defined. The determination is subject to the discretionary powers of the trial court in the particular facts of each case. Orezza v. Ramirez, 507 P.2d 1017, 1021 (Ariz.App. 1973); Ward v. Ward, 353 P.2d 895, 900 (Ariz. 1960). On the record before us, the children, Richard Jr., age 10, and Cynthia, age 8, were not of such delicate age and condition as necessarily to come within the O P 90 Nev. 422, 425 (1974) Smith v. Smith “tender years” doctrine. In the absence of a clear abuse of discretion, the trial court's custody award cannot be disturbed. Peavey v. Peavey, supra. Affirmed . Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur. ______ 90 Nev. 425, 425 (1974) Nev. State Personnel Div. v. Haskins NEVADA STATE PERSONNEL DIVISION; JAMES F. WITTENBERG, Personnel Administrator; NEVADA STATE PERSONNEL ADVISORY COMMISSION; WALTER D. JOHNSON, Chairman of Nevada State Personnel Advisory Commission, and NOEL E. MANOUKIAN, ROBERT A. McADAM, HANNAH PALLUDAN and I. W. WILSON, Members of the Nevada State Personnel Advisory Commission, Appellants, v. DOROTHY F. HASKINS, Respondent. No. 7655 December 20, 1974 529 P.2d 795 Appeal from order granting petition for writ of mandamus, Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge. Petition by state employee for a writ of mandamus directing State Personnel Advisory Commission to dissolve its stay of hearing officer's reinstatement order. The district court granted petition, and the commission appealed. The Supreme Court held that upon determination of hearing officer that employee's dismissal was unjustified, employee had an absolute right to reinstatement pending Advisory Commission's final decision, and, far from having “discretion” to nullify hearing officer's order, the Advisory Commission was under a nondiscretionary duty to refrain from interfering with that right, which was final under the law unless changed following a hearing de novo. Affirmed. Robert List, Attorney General, Carson City, for Appellants. B. Mahlon Brown III, of Las Vegas, for Respondent. 1. Statutes. Where possible, a statute should be construed so as to give meaning to all of its parts. 90 Nev. 425, 426 (1974) Nev. State Personnel Div. v. Haskins 2. States. Upon determination of hearing officer in administrative hearing that dismissal of state employee was unjustified, employee had an absolute right to reinstatement pending a final decision by the State Personnel Advisory Commission, and, far from having “discretion” to nullify hearing officer's reinstatement order, the commission was under a nondiscretionary duty to refrain from interfering with that right, which was final under the law unless changed following a hearing de novo. NRS 284.390, subds. 6, 7. 3. Mandamus. Mandamus was proper to compel State Personnel Advisory Commission to fulfill its discretionary duty of refraining from interfering with absolute right of state employee to reinstatement pending a review of hearing officer's determination that dismissal was unjustified. NRS 284.390, subds. 6, 7. OPINION Per Curiam: In July of 1973, the Nevada State Welfare Division undertook to terminate respondent's employment as an Eligibility Worker II. By timely application under NRS 284.390(1), respondent sought and obtained an administrative hearing before a hearing officer of the Nevada State Personnel Advisory Commission, an independent state agency formed to decide 1 disputes between state employees and their employers. On November 26, the hearing officer found respondent's dismissal unjustified and ordered her reinstated. Thereupon, pursuant to NRS 284.390(7), the Nevada State Welfare Division appealed to the Nevada State 2 Personnel Advisory Commission. On December 26, the Advisory Commission granted a hearing de novo, and purported to stay the hearing officer's decision. Respondent then petitioned the district court for a writ of ______ 1 “1. Within 30 days after receipt of a copy of the statement provided for in subsection 2 of NRS 284.385, an employee who his been dismissed, demoted or suspended may, in writing, request a hearing !F ( before the hearing officer of the personnel division to determine the reasonableness of such action. If an employee utilizes an internal grievance adjustment procedure adopted by the commission, such employee shall have 30 days following the final disposition of the internal proceeding to request, in writing, a hearing before the hearing officer.” 2 “7. Within 30 days after receipt of notice of the decision of the hearing officer rendered pursuant to this section, the employee or the appointing authority may, in writing, request that the commission review such decision for the purpose of determining whether to grant a hearing before the commission.” 90 Nev. 425, 427 (1974) Nev. State Personnel Div. v. Haskins mandamus directing the Advisory Commission to dissolve the stay and order her reinstated pursuant to the hearing officer's decision. The district judge granted mandamus, and this appeal follows. The dispute concerns the stay's validity in light of NRS 284.390(6), which provides that “the decision of the hearing officer is binding on the parties, but is subject to review and rehearing by the commission.” The Advisory Commission contends this means only that, if there is no appeal, the hearing officer's decision shall be binding on the parties, but when a hearing de novo is granted, NRS 284.390(6) becomes inapplicable, and the commission then has discretionary power to enter a stay pending the hearing's outcome. Instead, the district court interpreted the statute to render a hearing officer's decision immediately effective, subject to being superseded by the commission's ultimate decision. We affirm the district court. [Headnotes 1-3] Where possible, a statute should be construed so as to give meaning to all of its parts. Cf. Herrick v. Herrick, 55 Nev. 59, 64, 25 P.2d 378, 379 (1933). Here, appellants' interpretation would render the “binding” language of the statute meaningless. Thus, when NRS 284.390(6) is properly construed and applied, we conclude that upon the hearing officer's favorable ruling, respondent had an absolute right to reinstatement pending the Advisory Commission's final decision. Far from having “discretion” to nullify the hearing officer's order, the Advisory Commission was under a nondiscretionary duty not to interfere with that right, which the law declares final unless changed following a hearing de novo. Thus, we deem mandamus proper to compel compliance with appellants' legal duties. NRS 34.160; State ex rel. List v. County of Douglas, 90 Nev. 272, 282, 524 P.2d 1271, 1277 (1974). Other issues raised by appellants have been considered, and are without merit. The order of the district court granting mandamus and dissolving the stay order is affirmed. ______ 90 Nev. 428, 428 (1974) Paris v. Sarat FRANK PARIS, Appellant, v. PAUL SARAT, Respondent. No. 7367 December 20, 1974 529 P.2d 213 Appeal from a judgment in a court trial awarding civil damages for assault and battery. Eighth Judicial District Court, Clark County; Clarence Sundean, Judge. The Supreme Court held that, where trial judge admitted giving some weight to off-record comments of one defense witness to another and evidence in material respects was conflicting, error was prejudicial. Reversed and remanded for a new trial. Douglas R. Pike, of Las Vegas, for Appellant. Goodman, Snyder & Gang, and M. Douglas Whitney, of Las Vegas, for Respondent. 1. Appeal and Error. Where trial judge in bench trial admitted giving some weight to off-record comment of witness, who was advising another defense witness what not to say when she was called into court, in civil action for assault and battery, and evidence in material respects was conflicting, such error was prejudicial. 2. Appeal and Error. Appellate court presumes that trial judge did not consider erroneously admitted evidence if there is ample competent evidence in record to support his decision; in such cases reception of such incompetent evidence may be harmless. OPINION Per Curiam: [Headnote 1] This civil action to recover damages for assault and battery was tried to the court without a jury. Upon conflicting evidence, the judge found for the plaintiff and assessed damages. In his oral decision from the bench he made the following comment: “Now, it isn't on the record and I'm not giving it much weight, but one of the witnesses was advising another defense witness what not to say when she was called into court. I'm just pointing that out as a passing remark, which doesn't surprise me because of the bond of friendship and the common feeling they have toward each other.” 90 Nev. 428, 429 (1974) Paris v. Sarat The comment reflects that the judge gave some weight to the off-record comments of one defense witness to another defense witness. It also suggests that their in court testimony may have been discredited. Accordingly, the defendant-appellant asserts prejudicial error. The plaintiff-respondent, conceding error, argues that such error must be deemed harmless. [Headnote 2] This case is unlike those in which the appellate court presumes that the trial judge did not consider erroneously admitted evidence if there is ample competent evidence in the record to support his decision. In those cases, the reception of such incompetent evidence often has been held harmless. Meagher v. Garvin, 80 Nev. 211, 219, 391 P.2d 507 (1964); Serpa v. Porter, 80 Nev. 60, 70, 389 P.2d 241 (1964); Duplantis v. Duplantis, 50 Nev. 234, 236, 255 P. 1014 (1927); Rehling v. Brainard, 38 Nev. 16, 22, 144 P. 167 (1914). We may not indulge such a presumption here since the trial judge admitted giving some weight to the off record comments of one defense witness to another. Moreover, the defendant lost and the evidence, in material respects, was conflicting. In these circumstances, we must deem the error to be prejudicial. Other assigned errors need not be considered. Reversed and remanded for a new trial. ______ 90 Nev. 429, 429 (1974) Conley v. State ROBERT LEE CONLEY, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7760 December 20, 1974 529 P.2d 793 Appeal from a verdict and judgment finding appellant guilty of battery committed with a deadly weapon. Fifth Judicial District Court, Nye County; Kenneth L. Mann, Judge. The Supreme Court held that where there were 15 witnesses to the battery and the sole issue was whether it was in self defense, even if failure of defendant's attorney to object to testimony of one witness who recalled nothing at the preliminary hearing but had 100 percent recall at trial and failure to object to opinion offered by defense witness on cross-examination by the State were given the status of materiality, they did not demonstrate that the effectiveness of the counsel was " 90 Nev. 429, 430 (1974) Conley v. State of such low caliber as to reduce the trial to a sham, a farce, or a pretense. Affirmed. Horace R. Goff, State Public Defender, Carson City, for Appellant. Robert List, Attorney General, Carson City; William P. Beko, District Attorney, and Peter L. Knight, Deputy District Attorney, Nye County, for Respondent. Criminal Law. Where approximately 15 persons witnessed defendant's act of battery and the sole issue was whether it was in self-defense, even if the failure of his attorney to object to testimony of one witness who recalled nothing at preliminary hearing but had 100 percent recall at trial and failure to object to opinion offered by defense witness on cross-examination were given the status of materiality, they did not demonstrate that effectiveness of defendant's attorney was of such low caliber as to reduce the trial to a sham, a farce, or a pretense. U.S.C.A.Const. Amends. 6, 14. OPINION Per Curiam: A jury found Robert Lee Conley, the appellant, guilty of battery committed with a deadly weapon. He seeks reversal of his judgment of conviction on the sole ground that he was denied the effective assistance of counsel during his trial, in derogation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. His complaint is narrowed to two specifics: (1) That his trial counsel failed to object to the testimony of one of the State's witnesses “who could recall nothing at the preliminary hearing but at trial had one hundred percent (100%) recall” and (2) counsel failed to object to an opinion offered by a defense witness on cross examination by the State. Conley's objections are without merit. Approximately 15 persons witnessed the battery, and the sole issue was whether the battery (a shooting) was in self-defense. A jury resolved the issue against Conley and found him guilty. Even if the omissions of counsel could be granted the status of materiality, they fall far short of the standard this court recently announced in Warden v. Lischko, 90 Nev. 221, 222, 523 P.2d 6, 7 (1974): “The standard by which such a claim is to be tested is whether the effectiveness of counsel was of such low caliber 90 Nev. 429, 431 (1974) Conley v. State as to reduce the trial to a sham, a farce, or a pretense. [Citing cases.] It is presumed that counsel fully discharged his duties, and that presumption can only be overcome by strong and convincing proof to the contrary. . . .” Indeed, the record in the instant case reflects a creditable effort on the part of Conley's trial counsel. The judgment is therefore affirmed. ______90 Nev. 431, 431 (1974) Vaillancourt v. Warden SERGE VAILLANCOURT, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. No. 7510 December 20, 1974 529 P.2d 204 Appeal from an order of the Eighth Judicial District Court, Clark County, denying petition for post-conviction relief; Leonard I. Gang, Judge. Accused, who had pleaded guilty to unlawful sale of narcotics, filed petition for post-conviction relief. The district court denied the petition and accused appealed. The Supreme Court held that where more than naked allegation was asserted in support of accused's claim that he had agreed to plead guilty in return for promise from the district attorney's office that that office would recommend probation and that the office did not recommend probation, it was error to deny the petition without granting accused an evidentiary hearing. Reversed and remanded. Horace R. Goff, State Public Defender, Carson City, for Appellant. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Sherman H. Simmons, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Where an accused enters a guilty plea upon the basis of a promise made by the State, and the promise is unequivocal, accused is entitled to withdraw his plea if the promise is unfulfilled. 2. Criminal Law. Where more than naked allegation was asserted in support of accused's claim that, upon pleading guilty, he had been promised that the district attorney's office would recommend probation and that the district attorney's office had not done so, it was error to deny post-conviction relief petition without granting accused an evidentiary hearing. 90 Nev. 431, 432 (1974) Vaillancourt v. Warden 3. Criminal Law. Bare allegation that State did not comply with plea-bargaining agreement, without more, will not in all cases require an evidentiary hearing in post-conviction relief proceeding. OPINION Per Curiam: Appellant Serge Vaillancourt was indicted for the unlawful sale of narcotics. He entered a not guilty plea, and the case was set down for trial. On the day of trial, Vaillancourt changed his plea to guilty, and he was sentenced to serve 8 years in the Nevada State Prison. He seeks post-conviction relief, claiming that his guilty plea was entered in response to promises from the district attorney's office that the district attorney would recommend probation. This was not done. Vaillancourt has filed in support of his petition affidavits from both of his parents, a California attorney who had been his counsel in other matters and who had spoken in Vaillancourt's behalf when he was sentenced, and a woman friend. All four affidavits corroborate Vaillancourt's claim that he had been promised a recommendation for probation. [Headnotes 1-3] The judge below, in considering Vaillancourt's petition, summarily denied it without 1 affording him an evidentiary hearing. Our recent case of Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974), is controlling in the instant appeal. There, we held that where an accused enters a guilty plea upon the basis of a promise made by the State, and the promise is unequivocal, then he is entitled to withdraw his plea if the promise is unfulfilled. Where, as here, something more than a naked allegation has been asserted, it is error to resolve the apparent factual dispute without granting the accused 2 an evidentiary hearing. Accordingly, Vaillancourt is entitled to an evidentiary hearing for the determination of the truth or falsity of the allegation of a promise. If the allegation is true, then he is entitled to plead anew. Macon v. Craven, supra note 2. ______ 1 Apparently the judge received the transcript of the sentencing hearing, which complied with the mandates of Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), then in effect, and concluded that Vaillancourt's petition was meritless. 2 It should be noted that a bare allegation, without more, will not in all cases require an evidentiary hearing. Cf. Moody v. United States, 497 F.2d 359 (7th Cir. 1974); Roberts v. United States, 486 F.2d 980 (5th Cir. 1973); Macon v. Craven, 457 F.2d 342 (9th Cir. 1972); Legg v. United States, 350 F.2d 945 (6th Cir. 1965); United States v. Lester, 328 F.2d 971 (2d Cir. 1964). 90 Nev. 431, 433 (1974) Vaillancourt v. Warden We therefore reverse the order below and remand the case for an evidentiary hearing to determine the truth or falsity of Vaillancourt's allegation as to a promise. ______90 Nev. 433, 433 (1974) Sanders v. State ELLIS SANDERS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7505 December 23, 1974 529 P.2d 206 Appeal from conviction of rape. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. The Supreme Court held that the evidence was sufficient as to victim's identification of defendant as the perpetrator of the crime. Affirmed. Morgan D. Harris, Public Defender, Clark County, for Appellant. Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Where there is substantial evidence in support of a verdict in a criminal case, the reviewing court will not disturb the verdict nor set aside the judgment. 2. Rape. Evidence showing that rape victim had opportunity to observe assailant clearly while he was standing under a light, that assailant spoke to victim several times during the course of commission of the crime, and that victim made an unequivocal lineup identification and voice identification of defendant as her assailant prior to trial and again at trial was sufficient to identify defendant as perpetrator of the crime not withstanding discrepancy in victim's testimony as to assailant being clean shaven and testimony offered by defendant that on date in question he had a goatee and a slight mustache. OPINION Per Curiam: Ellis Sanders, the appellant, was found guilty of rape. The sole issue raised on appeal is the sufficiency of the evidence as to the victim's identification of Sanders as the perpetrator of the crime. 90 Nev. 433, 434 (1974) Sanders v. State The defendant, Sanders, contends that due to an inconsistency in the victim's description of her assailant made shortly after the attack upon her and testimony offered by Sanders as to his appearance on the date the criminal act took place, and the nature of the circumstances of the attack, in that the victim only observed her assailant momentarily after just awakening from a nap and only having observed his hand and facial profile, there was not sufficient evidence of identification. [Headnotes 1, 2] Th e evidence shows that the victim had an opportunity to observe her assailant clearly while he was standing under a light, even though only for a short period of time, and that the assailant spoke to her several times during the course of the commission of the crime. Based on this, the victim made an unequivocal and positive lineup identification and voice identification of Sanders as her assailant prior to trial and again at trial positively identified him as the culprit. Testimony offered at trial indicated that the description given by the victim shortly after the crime fit Sanders except for the discrepancy as to the assailant being clean shaven and the testimony offered by Sanders to show that on the date in question he had a goatee and a slight mustache. As to this, the evidence showed that Sanders' facial coloring and goatee and mustache were of such nature that the goatee and mustache could be missed under the circumstances that the victim observed Sanders, in that he was approximately 15 feet from her when she observed him, she observed him for only a short time, and the goatee was short and the mustache slight. Where there is substantial evidence to support a verdict in a criminal case, as the record indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the judgment. Henry v. State, 83 Nev. 194, 196, 426 P.2d 791 (1967). Affirmed . ______ 90 Nev. 434, 434 (1974) Whitman v. Warden EDWARD WHITMAN, aka JAMES JONES, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. No. 7572 December 23, 1974 529 P.2d 792 Appeal from judgment denying post-conviction relief. Eighth Judicial District Court, Clark County; Leonard I. Gang, Judge. 90 Nev. 434, 435 (1974) Whitman v. Warden The Supreme Court, Zenoff, J., held that petitioner was not entitled to evidentiary hearing on claim that guilty plea was involuntary because he had been threatened with an habitual criminal charge and that a guilty plea is not coerced merely because motivated by a desire to avoid the possibility of a higher penalty. Affirmed. Rodlin Goff, State Public Defender, of Carson City, for Appellant. Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Defendant was not entitled to evidentiary hearing on his assertion for post-conviction relief that guilty plea was involuntary because he had been threatened with an habitual criminal charge. 2. Criminal Law. There is no right to an evidentiary hearing on a post-conviction relief petition when the issue is a legal one and not a factual one. 3. Criminal Law. A guilty plea is not coerced merely because it is motivated by a desire to avoid the possibility of higher penalty. 4. Criminal Law. Defendant, who asserted that he was not in fact guilty but was pleading guilty to a lesser charge to avoid possibility of stiffer charge, was not entitled to post-conviction relief on ground that guilty plea was involuntary because he had been threatened with an habitual criminal charge. OPINION By the Court, Zenoff, J.: Edward Whitman, appellant, pleaded guilty to the charges of attempted burglary and battery with intent to commit rape. On denial of his petition for post-conviction relief, Whitman seeks reversal contending that the district court erred in denying his petition without holding an evidentiary hearing to determine whether his guilty plea was involuntarily entered and contending that his plea had been involuntarily entered because he was threatened with an habitual criminal charge. [Headnotes 1, 2] This court held in Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974), that there is a right to an evidentiary hearing " 5! ? " ! " " ! " 90 Nev. 434, 436 (1974) Whitman v. Warden when seeking post-conviction relief as to the issue of whether or not an alleged promise was made by the State and not fulfilled upon which the guilty plea was based. That case is clearly distinguishable from the case before the court in that Whitman's claim concerns a question of law as to whether a guilty plea based on a threat of being charged with an habitual criminal charge is coerced as compared to the factual issue of whether a promise was made or not. There is no right to an evidentiary hearing when the issue before the court is a legal issue and not a factual issue. Forrester v. United States, 456 F.2d 905 (5th Cir. 1972), cert. den., 409 1 U.S. 856 (1972); Barnett v. United States, 439 F.2d 801 (6th Cir. 1971). [Headnotes 3, 4] A guilty plea is not coerced merely because motivated by a desire to avoid the possibility of a higher penalty (Brady v. United States, 397 U.S. 742 (1970); Conger v. Warden, 89 Nev. 263, 510 P.2d 1359 (1973)) and this court has held that a plea motivated by the desire to avoid being charged under the habitual criminal act was not coerced. Schoultz v. Warden, 88 Nev. 135, 494 P.2d 274 (1972), rev'd on other grounds, Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972); Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970). As to Whitman's statement at the time he entered the plea that he was not in fact guilty but was pleading guilty to a lesser charge to avoid the possibility of a stiffer charge, the Supreme Court of the United States in North Carolina v. Alford, 400 U.S. 25 (1970), declined to attribute any significance in such statements. Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 1 Cases deal with right to evidentiary bearing under 28 U.S.C. 2255, federal statute concerning relief from erroneous sentence. ______ 90 Nev. 436, 436 (1974) Lewis v. State ROBERT LaVERNE LEWIS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7600 December 23, 1974 529 P.2d 796 Appeal from order of revocation of probation and execution of sentence. Eighth Judicial District Court, Clark County; William P. Compton, Judge. 90 Nev. 436, 437 (1974) Lewis v. State Appeal from a judgment of the district court revoking defendant's probation because of purported violations of his probation agreement. The Supreme Court, Zenoff, J., held that evidence beyond a reasonable doubt is not required to support a court's discretionary order revoking probation and that the evidence of probation violations before the court had been sufficient. Affirmed. Horace R. Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public Defender, of Carson City, for Appellant. Rob ert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Revocation of probation is within exercise of trial court's broad discretionary power, and such action will not be disturbed in absence of clear showing of abuse of discretion. NRS 176.215; 18 U.S.C.A. § 3651. 2. Criminal Law. Evidence beyond reasonable doubt is not required to support court's discretionary order revoking probation; rather, evidence and facts must reasonably satisfy judge that conduct of probationer has not been as good as required by conditions of probation. NRS 176.215. 3. Criminal Law. Revocation of probation was justified by evidence that defendant left state without permission of probation officer, changed residence without permission, failed to report to officer for several months and occupied more than one motel room under an alias and left without paying for accommodations. NRS 176.215, 205.090. OPINION By the Court, Zenoff, J.: Robert LaVerne Lewis pleaded guilty to a charge of attempted forgery under NRS 205.090 and was sentenced to a term of five years in the Nevada State Penitentiary. The sentence was suspended and he was placed on probation for a period of two years. During Lewis's probation period the State of Nevada moved to revoke his probation because of purported violations of his probation agreement. The Eighth @ A ( 5 ! 90 Nev. 436, 438 (1974) Lewis v. State Judicial District Court revoked the probation and imposed the original sentence. The issue raised on appeal is whether the district court abused its discretionary power in revoking probation. Lewis claims that the State is required to establish violations of the probation agreement by a preponderance of evidence. [Headnote 1] In considering the standard to be applied in revoking probation the law is well-established that revocation of probation is within the exercise of the trial court's broad discretionary power and such an action will not be disturbed in the absence of a clear showing of abuse of that discretion. Pickens v. State of Texas, 497 F.2d 981, 982 (5th Cir. 1974); United States v. Lara, 472 F.2d 128, 129 (9th Cir. 1972); 18 U.S.C.A. 3651 (the equivalent federal statute to 1 NRS 176.215). [Headnote 2] Evidence beyond a reasonable doubt is not required to support a court's discretionary order revoking probation. The evidence and facts must reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. Pickens v. State of Texas, supra; Bernal-Zazueta v. United States, 225 F.2d 64, 68 (9th Cir. 1955). [Headnote 3] The appellant's record reflects that sufficient evidence was present to justify revocation. Lewis left the state without permission of his probation officer, he changed his residence without permission, failed to report to his probation officer for several months and it was established at the revocation hearing that he occupied more than one motel room under an alias and in each instance left without paying for the accommodations. Also, he performed some automotive repair service while in the employ of another person, received payments therefor which he did not turn over or report to the employer. ______ 1 NRS 176.215 . . . 1. The period of probation or suspension of sentence may be indeterminate or may be fixed by the court and may at any time he extended or terminated by the court. 18 U.S.C.A. 3651 . . . The court may revoke or modify any condition of probation, or may change the period of probation. 90 Nev. 436, 439 (1974) Lewis v. State All the foregoing constituted violations of his probation agreement. There was no abuse of discretion by the district court. Affirmed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______ 90 Nev. 439, 439 (1974) Ward v. Sheriff BILL BERNERD WARD and PAUL DAVID THOMPSON, Appellants, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent. No. 7803 December 23, 1974 529 P.2d 798 Appeal from order denying pre-trial petition for writ of habeas corpus, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge. The district court denied a writ of habeas corpus sought by defendants charged with selling a controlled substance, and the defendants appealed. The Supreme Court held that where there was no delivery of purchase price for marijuana and no delivery of contraband to officer, defendants could not be charged with sale of controlled substance. Reversed, with instructions to grant writ without prejudice to other proceedings. Stanley T. Traska, of Las Vegas, for Appellants. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark County, for Respondent. Drugs and Narcotics. Where there was no delivery of purchase price for marijuana and no delivery of contraband to officer, defendants could not be charged with sale of controlled substance. NRS 453.321, subd. 1. OPINION Per Curiam: On November 1, 1973, Las Vegas Police Officer Michael R. McGlaughlin, together with Detective Greg Jolley, met with appellants in a Las Vegas motel room. An informer had I G ! " N" " ( N & " ! !7 $ 90 Nev. 439, 440 (1974) Ward v. Sheriff put McGlaughlin in telephone communication with appellants—who were from California—and the rendezvous was arranged for the stated purpose of purchasing 17 pounds of marijuana. After McGlaughlin and Jolley entered the motel room, appellant Thompson opened a suitcase containing 17 packages of what he [Thompson] represented to be “grass.” McGlaughlin examined 6 of the packages which, he testified, according to his training and experience, appeared to contain—and smelled like—marijuana. Using scales furnished by Thompson, McGlaughlin verified the weight of some of the packages and, after appellant Ward stated that the “grass” was of good quality—from their California connection—McGlaughlin agreed to take the lot at $100.00 per pound ($1700.00). McGlaughlin then went to his car and retrieved an envelope containing $1700.00, which he placed in his pocket. He signaled “an arrest situation” to other officers maintaining surveillance; returned to the room; immediately placed Thompson and Ward under arrest; and, confiscated the suitcase and its contents. Prior to the arrest there was neither delivery of the $1700.00 from McGlaughlin to appellants, nor did McGlaughlin receive delivery of the contraband. Appellants were charged with “sale” of a controlled substance, [marijuana] a violation of NRS 453.321(1) and, after preliminary examination, were ordered to stand trial for the offense. The information filed in the district court was challenged with a petition for habeas corpus. The district judge, in denying habeas, concluded that under our decision in Porter v. Sheriff, 87 Nev. 274, 485 P.2d 676 (1971), “all that is required to constitute a sale of narcotics is ‘an offer' to exchange the substance.” In asking us to reverse, appellants vigorously argue the absence of the physical exchange of the money or of the marijuana proscribes the charge of “sale.” We agree. NRS 453.321 (1) provides that it is “unlawful for any person to sell, exchange, barter, supply or give away a controlled or counterfeit substance.” In Porter appellant received the money but no “actual delivery of the substance occurred.” 87 Nev. at 275, 485 P.2d at 676. Furthermore, when Porter was decided, the Uniform Narcotic Drug Act was applicable, and therein NRS 453.020(16) provided a definition of sale, i.e.: “‘sale' includes barter, exchange, or gift, or offer therefor, . . .” 90 Nev. 439, 441 (1974) Ward v. Sheriff The “Uniform Controlled Substances Act” supplanted the “Uniform Narcotic Drug Act” January 1, 1972. See Stats. of Nev. 1971, ch. 667, p. 1999 et seq. There is no definition of “sale” in the new enactment. Because of the premature arrest of appellants by Officer McGlaughlin, our Porter decision is inapposite; and, the repeal of the NRS 453.020(16) definition of “sale” precludes sustaining the charge on the basis of appellants' “offer” to sell. The conduct of appellants may well subject them to other criminal charges; however, their conduct was insufficient to establish probable cause that they made a “sale”. The district judge should have granted a writ as to that particular charge. Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). Reversed, with instructions to grant a writ of habeas corpus, without prejudice to other proceedings on appropriate charges. ______ 90 Nev. 441, 441 (1974) Emanuel v. Sheriff PATRICK EMANUEL, Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent. No. 7984 December 23, 1974 528 P.2d 1331 Appeal from order denying petition for writ of habeas corpus, Second Judicial District Court, Washoe County; William N. Forman, Judge. Reversed. Gary C. Backus, of Reno, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Calvin Dunlap, Deputy District Attorney, Washoe County, for Respondent. OPINION Per Curiam: In this appeal from an order denying habeas corpus, appellant contends the prosecution failed to adduce sufficient evidence to establish probable cause that he committed the crimes charged. We agree; accordingly, we reverse. ______ 90 Nev. 442, 442 (1974) Clark Co. Sch. Dist. v. Local Gov't CLARK COUNTY SCHOOL DISTRICT, Appellant, v. LOCAL GOVERNMENT EMPLOYEE-MANAGEMENT RELATIONS BOARD, Respondent. No. 7470 WASHOE COUNTY TEACHERS ASSOCIATION, Appellant, v. WASHOE COUNTY SCHOOL DISTRICT, Respondent. No. 7597 December 23, 1974 530 P.2d 114 1 These appeals concern the consideration and interpretation of Chapter 288.150 of the Nevada Local Government Employee-Management Relations Act. In Case No. 7470 the appeal is from the Eighth Judicial District Court, Clark County, James D. Santini, Judge; in Case No. 7597 the appeal is from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge. School district filed petition for review of ruling of Employee-Management Relations Board that certain items were subject to mandatory negotiation between district and teachers association. The Eighth Judicial District Court upheld the Board and the district petitioned for review. The Second Judicial District Court overruled the Board and the association appealed. The Supreme Court, Zenoff, J., held that question relating to daily classroom preparation time of teachers was negotiable; that Board had adopted reasonable standard in holding that government employer is required to negotiate with employee organization if particular matter in dispute is found to significantly relate to wages, hours and working conditions, even though it is also related to management prerogative. The Clark County case is affirmed and the Washoe County case is reversed. [Rehearing denied January 29, 1975] Attorne ys for Clark County case: Robert L. Petroni, of Las Vegas, for Clark County School District. ______ 1 Counsel for both parties agree that Nevada's statute is unique, thus a paucity of authorities on the subject. This is a case of first impression in Nevada. 90 Nev. 442, 443 (1974) Clark Co. Sch. Dist. v. Local Gov't I. R. Ashleman, II, of Las Vegas, Amicus Curiae, for Appellant. Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent. Attorneys for Washoe County case: Paul H. Lamboley, of Reno, and Robert H. Chanin, National Education Association, of Washington, D.C., for Appellant. Woodburn, Wedge, Blake, Folsom, Forman and Hug, and C. Robert Cox, of Reno, for Respondent. 1. Labor Relations. Question relating to daily classroom preparation time of public school teachers was negotiable under Local Government Employee-Management Relations Act as involving wages, hours and conditions of employment, even though it was one of managerial policy in that the employer directed teachers to comply with the policy concerning preparation time. NRS 288.110, 288.150, subds. 1, 2, 2(a). 2. Labor Relations. It is function of Employee-Management Relations Board to determine whether matter in dispute is negotiable as one involving wages, hours and conditions of employment or is nonnegotiable as involving managerial policy. NRS 288.150, subds. 1, 2. 3. Labor Relations. Unless Employee-Management Relations Board should act arbitrarily, unreasonably or capriciously beyond administrative boundaries, courts must give credence to its findings. NRS 288.110, 288.150, subds. 1, 2, 2(a). 4. Administrative Law And Procedure. Agency charged with duty of administering act is impliedly clothed with power to construe it as a necessary precedent to administrative action. 5. Statutes. Responsibility and great deference should be given to agency's interpretation when it is within language of statute. 6. Labor Relations. Employee-Management Relations Board adopted reasonable standard in holding that government employer is required to negotiate with employee organization if matter in dispute is found to significantly relate to wages, hours and working conditions, even though it is also related to management prerogative. NRS 288.110, 288.150, subds. 1, 2, 2(a). 7. Labor Relations. Under the Local Government Employee-Management Relations Act, the following disputes between school districts and teachers association were negotiable: class size, professional improvement, student discipline, school calendar, teacher performance, differentiated staffing as it dealt with establishment of $ ? " ! 90 Nev. 442, 444 (1974) Clark Co. Sch. Dist. v. Local Gov't joint district-association study committee to consider feasibility of new teacher assignment methods, teacher load and instructional supplies. NRS 288.150, subds. 1, 2, 2(a). OPINION By the Court, Zenoff, J.: CLARK COUNTY CASE: In 1969 the Nevada Legislature enacted NRS 288.150 and in 1971 amended that act, the composite of which was designed to give bargaining rights to public employees. They do not, however, have the right to strike. NRS 288.230(2). Within the mechanism of the act is provided a Local Government Employee-Management Relations Board (NRS 288.080(1)) to “hear and determine any complaint arising out of the interpretation of, or performance under, the provisions of this chapter by any local government employer or employee organization . . .” NRS 288.110. The provisions of the statute pertinent to the issues of this appeal are: “288.150 Negotiations by employer with recognized employee organization concerning wages, hours and conditions of employment; rights of employer without negotiation. “1. It is the duty of every local government employer, except as limited in subsection 2, to negotiate in good faith through a representative or representatives of its own choosing concerning wages, hours, and conditions of employment with the recognized employee organization, if any, for each appropriate unit among its employees. If either party requests it, agreements so reached shall be reduced to writing. Where any officer of a local government employer, other than a member of the governing body, is elected by the people and directs the work of any local government employee, such officer is the proper person to negotiate, directly or through a representative or representatives of his own choosing, in the first instance concerning any employee whose work is directed by him, but may refer to the governing body or its chosen representative or representatives any matter beyond the scope of his authority. “2. Each local government employer is entitled, without negotiation or reference to any agreement resulting from negotiation: (a) To direct its employees; (b) To hire, promote, classify, transfer, assign, retain, suspend, demote, discharge or take disciplinary action against any employee; / 86 5 " 5 ! 90 Nev. 442, 445 (1974) Clark Co. Sch. Dist. v. Local Gov't (c) To relieve any employee from duty because of lack of work or for any other legitimate reason; (d) To maintain the efficiency of its governmental operations; (e) To determine the methods, means and personnel by which its operations are to be conducted; and (f) To take whatever actions may be necessary to carry out its responsibilities in situations of emergency. “Any action taken under the provisions of this subsection shall not be construed as a failure to negotiate in good faith.” In 1971 the Clark County School District refused to negotiate the question relating to daily classroom preparation time on the ground that under Section 2 of the statute those items were not subject to negotiation because they were policy matters and therefore exclusively within the purview of the school district. A hearing before the Employee-Management Relations Board (hereinafter referred to as EMRB) was held and witnesses testified to the nature, need and mechanics of classroom preparation and the value of classroom limitations after which the EMRB ruled that preparation time was a negotiable issue within NRS 288.150 because: 1. Preparation time affects a teacher's effectiveness and the achievement of the students. 2. Denial of preparation time extends a teacher's work day and affects wages as such time is uncompensated. 3. Preparation time is significantly related to wages, hours, and working conditions and is negotiable, even though said matters also relate to questions of management prerogative in terms of scheduling and administration. On petition for review sought by the school district the district court upheld the EMRB. The school district appeals the ruling that preparation time is a negotiable subject. The appellate contentions concern the intent and meaning of this labor statute. The appellant's interpretation of the act would render NRS 288.150 a nullity. The fact of the enactment of the legislation in itself evidences legislative intent that the statute serve a purpose and the stated purpose is to grant public employees a right that they did not have before which was to bargain collectively. It is not conceivable that the legislature would give its extensive time and attention to study, draft, meet, hear, discuss and pass this important piece of legislation were it not to serve a useful purpose. For this court to hold that any item even though remotely relevant to management policy is beyond ! ! 90 Nev. 442, 446 (1974) Clark Co. Sch. Dist. v. Local Gov't the pale of negotiation defeats the purpose of the legislation. Many matters involved in a teacher's work day bear somewhat on management policy and at the same time are inextricably linked to wages, hours and conditions of employment. What the legislature gave was not intended to immediately be taken away. [Headnote 1] That teachers prepare themselves in order to transmit their fountain of knowledge to the students is a managerial policy. The employer “directs” the teacher to comply with that policy. NRS 288.150(2)(a) is fulfilled. In doing so time spent in study preparing the lectures and documenting them are necessarily involved. This means wages, hours and conditions of employment are significantly enmeshed with the requirement to be prepared. The statutory power reserved in the employer to direct its employees as provided in Section 2(a) of the act is not thereby diluted because the employer retains the right to make certain that the teacher prepares adequately and competently, in short, the right to “direct” the employee as required by NRS 288.150(2)(a). [Headnotes 2-5] A precise determination of the distinctions between Section 1 as subtracted by Section 2 cannot be divined. That is the function of the EMRB. Unless the board should act arbitrarily, unreasonably or capriciously beyond administrative boundaries the courts must give credence to the findings of the board. An agency charged with the duty of administering an act is impliedly clothed with power to construe it as a necessary precedent to administrative action. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960); Oklahoma Real Estate Commission v. National Business & Property Exchange, 238 F.2d 606 (10th Cir. 1956); Utah Hotel Co. v. Industrial Commission, 151 P.2d 467 (Utah 1944). Indeed, NRS 288.110 charges the board with that responsibility and great deference should be given to the agency's interpretation when it is within the language of the statute. Oliver v. Spitz, supra, at 10; Udall v. Tallman, 380 U.S. 1, at 16 (1965). [Headnote 6] In this case the EMRB concluded that the applicable standard to reconcile Sections 1 and 2 is that the government employer be required to negotiate if a particular item is found to significantly relate to wages, hours and working conditions even though that item is also related to management ! 90 Nev. 442, 447 (1974) Clark Co. Sch. Dist. v. Local Gov't prerogative. The standard and the findings thereon are reasonable. Since NRS 288.110 gives the board power to hear and determine any complaint arising out of the interpretation of the statute the board's conclusion was properly upheld by the trial court. Affirmed . WASHOE COUNTY CASE: [Headnote 7] The present case was brought before the district court to review a decision of the Employee-Management Relations Board, the administrative agency with control over NRS 288. 150 of the Nevada Local Government Employee-Management Relations Act. The EMRB, as the board is called, held that where an item significantly affects wages, hours or conditions of employment it is subject to mandatory negotiation notwithstanding the limitations of Section 2 of NRS 288.150. Our decision of Clark County School District v. Local Government Employee-Management Board, supra, upholds the standard applied by the EMRB in effect ruling that the legal principles of judicial tests of administrative bodies apply. The question in that case was whether or not classroom preparation time was a negotiable item. The supreme court had upheld the EMRB and the district court but the trial court in this case overruled the EMRB. The questioned issues here are: 1. Class size (dealing with the maximum number of pupils per class). The EMRB found this proposal negotiable on the ground that class size is significantly related to wages, hours, and working conditions inasmuch as student density directly affects a teacher's workload including the required hours of preparation and post-class evaluation; affects the teacher's control and discipline problems; affects the teacher's teaching and communication techniques; and affects the total amount of work required for a fixed compensation. 2. Professional improvement (dealing with (a) in-house workshops, conferences and after-hour courses, and (b) partial tuition payment for summer school courses taken by the professional staff). The board found that professional improvement is significantly related to working conditions since it directly affects career opportunities within the profession as well as the 90 Nev. 442, 448 (1974) Clark Co. Sch. Dist. v. Local Gov't teacher's ability to more effectively produce meritorious results in the classroom. 3. Student discipline. The proposal of the employees would regulate the treatment of students causing disciplinary problems. The board upheld the negotiability of this request on the ground that the matter of student discipline is significantly related to a teacher's working conditions. 4. School calendar (dealing with the length and structure of the teacher work year). The board found this proposal negotiable on the ground that the selection of those days that a teacher must work in a given school year is significantly related to the teacher's working conditions and the amount of work the teacher is expected to perform for a fixed compensation. 5. Teacher performance (dealing with the manner in which teacher work performance is evaluated). The board found this proposal negotiable on the ground that the evaluation of a teacher's performance is significantly related to a teacher's working conditions inasmuch as the evaluation affects transfer, retention, promotion and the compensation scale. 6. Differentiated staffing (dealing with the establishment of a joint district-association study committee to consider the feasibility of new teacher assignment methods (e.g., team teaching, whereby several teachers are responsible for a large group of students) prior to implementation by the district, provision for fees for consultants to assist the joint study committee, and negotiations concerning the impact upon wages, hours and conditions of employment of any such program subsequently implemented by the district). The EMRB found this proposal negotiable on the ground that any plan of differentiated staffing which categorizes teachers on the basis of competency, experience, responsibility and other factors, affects wages, hours and working conditions of individual teachers relative to their peers. 7. Teacher load (dealing with teacher preparation time, number of classes, number of different assignments, compensation for substitute teaching by fulltime teacher, and time for curriculum development and parent conferences). The EMRB found this proposal negotiable on the ground that where a teacher works, the amount of work done and the kind of work done is part of a teacher's working conditions. The remuneration for overtime for extra work assignments is a matter of wages and hours. 90 Nev. 442, 449 (1974) Clark Co. Sch. Dist. v. Local Gov't 8. Instructional supplies (dealing with periodic conferences between the association and the district to discuss the selection and use of textbooks and other teaching equipment, and the creation of teacher reference libraries). The EMRB found this proposal negotiable on the ground that the amount, type, quality and availability of instructional supplies affects the ability of a teacher to discharge his work properly and is significantly related to the teacher's working conditions and sometimes to hours. The district court held all of the foregoing proposals are nonnegotiable as being within some or all of the appropriate exclusions of Subsection 288.150(2). 1. The enumerated managerial prerogatives of NRS 288.150(2) reserve policies to management, both in control over employee conduct and operation of the school system. However, none of the requests materially dilute the stature of the employer. The employer's right to “direct” its employees, NRS 288.150(2)(a), is not at all contravened. The teachers will continue to be obligated to perform their duties within the policy framework established by the school district. NRS 288.150(2)(b) and (2)(c) retain the employer's right of discipline against any employee for infractions or nonperformance of their duties. None of the items requested to be negotiated by the association transcend those provisions. The employer's prerogative to “maintain the efficiency of its governmental operation” of NRS 288.150(2)(d) is not at cross purposes with the requested subjects in dispute. To the contrary, operational efficiency is enhanced when labor and management are in accord on the vital factors of wages, hours and conditions of employment. None of the disputed requests negate the setting of policy. 2. The “significantly related” standard adopted by the EMRB is a reasonable guideline if reasonably applied, and it is safe to suppose that it usually will be. The public interest requires peace and harmony in the academic community. The association's request that certain questions be at least discussed in their negotiations was not unreasonable. Discussion alone does not guarantee their adoption. We uphold the findings of the EMRB and reverse the trial court. Reversed . Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur. ______90 Nev. 450, 450 (1974) Koscot Interplanetary, Inc. v. Draney KOSCOT INTERPLANETARY, INC., Appellant, v. DALE DRANEY and LEE PETERS, Respondents. No. 6930 December 23, 1974 530 P.2d 108 Appeal from a summary judgment. Second Judicial District Court, Washoe County; James J. Guinan, Judge. Purchasers of distributorships from cosmetics manufacturer brought action against manufacturer to avoid and rescind their contracts with manufacturer and to compel manufacturer to return all consideration paid for the distributorships. The district court granted summary judgment for plaintiffs, and defendant appealed. The Supreme Court, Batjer, J., held that statute declaring contracts embracing pyramid promotional merchandise sales schemes to be against public policy and voidable was not constitutionally impermissible, did not unreasonably infringe upon cosmetic manufacturer's right to do business and was reasonably related to preventing fraud against public, which was end to be achieved, and that such statute was equally effective as to existing contracts between defendant and plaintiffs notwithstanding constitutional interdiction against impairment of obligation of contract. Affirmed. Laxalt, Berry and Allison, of Carson City, for Appellant. Robinson and Cassas, of Reno, for Respondents. Robert List, Attorney General, Elliot A. Sattler and Donald Klasic, Deputy Attorneys General, Amicus Curiae. 1. Statutes. Legislature is free to enact any law provided it is not clearly prohibited by some provision of Constitution of the United States or the Nevada Constitution. 2. Cons titutional Law. Whether a legislative enactment is wise or unwise is not a determination to be made by the judicial branch. 3. Constitutional Law. Every reasonable presumption must be indulged in support of controverted statute with any doubts being resolved against the challenging party, who has substantial burden of showing that the act is constitutionally unsound. 4. Constitutional Law. Statutes, if enacted in exercise of police power, are presumed to promote the public welfare and come to court with presumption of validity. 90 Nev. 450, 451 (1974) Koscot Interplanetary, Inc. v. Draney 5. Constitutional Law. Even a legitimate occupation may be restricted or prohibited in public interest, and contracts adversely affecting that interest may be restrained. 6. Constitutional Law. State has power to prevent fraud against public in conduct of an otherwise lawful business. 7. Trade Regulations. Reasonable and legitimate purpose of statute prohibiting pyramid promotional sales and endless chains is to prevent fraud against public. NRS 598.100-598.130. 8. Trade Regulation. Statute declaring contracts and agreements embracing pyramid promotional merchandise sales schemes to be against public policy and voidable was not constitutionally impermissible, did not unreasonably infringe upon cosmetic manufacturer's right to do business and was reasonably related to preventing fraud against public, which was end to be achieved. NRS 598.120. 9. Constitutional Law. Although contracts previously entered into may be affected thereby, constitutional interdiction against impairment of obligation of contract does not prevent a state in reasonable exercise of its police power from enacting laws intended to benefit the public. U.S.C.A.Const. art. 1, § 10; Const. art. 1, § 15. 10. Constitutional Law. Individuals, by entering into contracts, may not estop the legislature from enacting laws for the public good. U.S.C.A.Const. art. 1, § 10; Const. art. 1, § 15. 11. Constitutional Law. Statute, which not only declares that any future contracts and agreements which have any part of consideration given for right to participate in a pyramid promotional scheme are against public policy and voidable by a participant, but which also declares that all existing contracts having any part of consideration for such right are also against public policy and voidable, does not impose an unconstitutional impairment on obligation of contract. NRS 598.120; U.S.C.A.Const. art. 1, § 10; Const. art. 1, § 15. 12. Constitutional Law. Any right which cosmetics manufacturer may have had to induce distributors to participate in a pyramid promotional scheme was subject to paramount police power of State, and when manufacturer entered into agreement with distributors, it did so subject to any regulating legislation which the State might enact to protect its citizens. NRS 598.120; U.S.C.A.Const. art. 1, § 10; Const. art. 1, § 15. 13. Trade Regulation. Evidence supported finding that marketing plan of cosmetics manufacturer was a pyramid promotional scheme as defined by statute prohibiting pyramid promotional sales and endless chains. NRS 598.100-598.130. 14. Statutes. Phrase “pyramid promotional scheme,” in statute prohibiting pyramid promotional sales and endless chains, was defined with 90 Nev. 450, 452 (1974) Koscot Interplanetary, Inc. v. Draney sufficient clarity to meet constitutional standards. NRS 598.100, 598.100, subd. 4, 598.120. OPINION By the Court, Batjer, J.: The appellant, Koscot Interplanetary, Inc. (Koscot), qualified to do business in the State of Nevada and at the time this controversy arose was engaged in the sale of cosmetics. The Koscot cosmetics products are manufactured exclusively in Koscot's plant. The expansion and growth of Koscot is built upon a scheme for the sale of positions with the company, which sales authorize individuals to sell not only the cosmetic products but also additional positions with the company. When a person purchases a sales position with Koscot, the one instrumental in selling him the position receives a percentage of all amounts the new recruit pays into the company for his position and for merchandise. At the time this action arose there were three groups of persons holding positions in the company in Nevada. The persons in the first group are called beauty advisors, and they handle retail sales of cosmetics, usually on a door-to-door basis. The second group consists of beauty supervisors, and they may enlist one or more beauty advisors to work under them. The third group are distributors, and they supply their supervisors who in turn supply the beauty advisors with cosmetics. The supervisors whom they supply are persons recruited by the distributors under whom they work. A supervisor receives a 15 percent commission on the gross sales of all his beauty advisors and there is no limitation placed on the number of such recruits he may bring into the company. A distributor receives a 10 percent commission on the gross sales of the supervisors he recruits and a 25 percent commission on the gross sales of all beauty advisors he recruits. Each new recruit is required to pay a certain sum of money into the company to obtain his or her position with the company and receives a certain amount of merchandise for resale. A beauty advisor pays no fee. A new supervisor pays $2,000 to the company and receives in return the right to and benefits of recruiting beauty advisors plus $2,000 in merchandise, based on company prices. A new distributor pays $5,000 to the company and receives in return the right to and benefits of recruiting both supervisors and beauty advisors plus $3,000 in merchandise. A recruiting bonus is " ! !& " 90 Nev. 450, 453 (1974) Koscot Interplanetary, Inc. v. Draney earned as each new recruit is brought into the organization plus a commission on the merchandise order the recruit must place with the company. 1 A standard training manual called “The Distributor's Training Manual” is published and distributed on a national basis by Koscot to instruct its beauty advisors, supervisors and distributors on how meetings should be structured and handled to recruit new positions with the company. (This manual was received as an exhibit in this case.) Recruitment meetings are referred to in the manual as “Golden Opportunity Meetings.” Prospective recruits are brought to these meetings as guests, and on the basis of a mathematical progression of earnings said to be possible through recruitment and sales of positions with the company, these guests are indoctrinated by means of illustrations in the manual and sold positions. At these meetings the company executives explain, in glowing terms, the organizational structure and profit potential of this unique marketing system in which each person profits from his own sales and from the sales of future recruits. Mathematical examples based upon average ability to recruit others into the system are used to show how profits may multiply geometrically as the organizational structure grows and pyramids. The training manual indicates the recruits are to be told a distributor can reap tremendous profits without ever selling a single cosmetic product to a consumer if he concentrates on recruitment. The respondents were introduced to Koscot through a “Golden Opportunity meeting” substantially similar to the meeting described in the manual, and they have purchased a distributorship and paid therefor the sum of $5,000. A distributor in the Koscot marketing plan is entitled, in addition to cosmetic products equal to his investment based on company prices, to the right to attend training seminars and to recruit other distributors or beauty supervisors, and if a new distributor or beauty supervisor is brought into the ; 5! "! M/8 E- /8 E ______ 1 Glenn W. Turner, the chairman of the board of directors of Koscot, and the organizer of the company, who is prominently mentioned in the training manual as a “sharecropper on his way to harvest the world,” and Koscot, have received nationwide recognition in the reported court decisions. See State ex rel. Sanborn v. Koscot Interplanetary, Inc., 512 P.2d 416 (Kan. 1973); People ex rel. Kelley v. Koscot Interplanetary, 195 N.W.2d 43 (Mich.App. 1972); State ex rel. Morgan v. Dare To Be Great, 189 S.E.2d 802 (N.C. 1972); Frye v. Taylor, 263 So.2d 835 (Fla.App. 1972); Kugler v. Koscot Interplanetary, Inc., 293 A.2d 682 (N.J. Super. 1972); State ex rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624 (Iowa 1971); Koscot Interplanetary, Inc. v. King, 452 S.W.2d 531 (Tex.Civ.App. 1970); Thaxton v. Commonwealth, 175 S.E.2d 264 (Va. 1970). 90 Nev. 450, 454 (1974) Koscot Interplanetary, Inc. v. Draney Koscot marketing plan, a commission is earned in the following amounts: (a) distributor recruited earns a $2,650 bonus; and (b) beauty supervisor recruited earns a $650 bonus. The parties have stipulated that the products sold and distributed by Koscot are of good quality equal to competitively priced products, and that it has a self-imposed quota of one distributorship for each 7,000 of the population in the State of Nevada. However, the prospect is not told that the number of distributorships available in any designated geographical area within the state is unlimited. On April 19, 1971, Chapter 375, 1971 Statutes of Nevada (NRS 598.100 to 598.130 inc.), 2 hereinafter referred to as Chapter 375, became effective, prohibiting pyramid promotional sales and endless chains, fixing a penalty, providing for $ ! ______ 2 NRS 598.100 to 598.130, inclusive, reads as follows: “598.100 For the purposes of NRS 598.100 to 598.130, inclusive: “1. ‘Compensation' does not mean payment based on sales of goods or services to persons who are not participants in a pyramid promotional scheme or endless chain and who are not purchasing in order to participate in such a program. “2. ‘Person' includes a company, partnership, association or corporation and its employees, as well as a natural person. “3. ‘Promotes' means inducing one or more other persons to become a participant in a pyramid promotional scheme or endless chain. “4. A ‘pyramid promotional scheme' means any program or plan for the disposal or distribution of property and merchandise or property or merchandise by which a participant gives or pays a valuable consideration for the opportunity or chance to receive any compensation or thing of value in return for procuring or obtaining one or more additional persons to participate in the program, or for the opportunity to receive compensation of any kind when a person introduced to the program or plan by the participant in such a program.” “598.110 Every person who contrives, prepares, sets up, proposes, operates, advertises or promotes any pyramid promotional scheme or endless chain is guilty of a misdemeanor.” “598.120 All contracts and agreements, existing or made in the future, which have any part of the consideration given for the right to participate in a pyramid promotional scheme or endless chain as defined in NRS 598.100 to 598.130, inclusive, are against public policy and voidable by a participant.” “598.130 In addition to any other relief available under NRS 598.100 to 598.130, inclusive: “1. The attorney general or any district attorney may commence an action in the district court having jurisdiction of the area where a pyramid promotional scheme or endless chain is being prepared, operated or promoted to enjoin or obtain any other equitable relief to prevent the further preparation, operation, promotion or prosecution of such scheme or chain. In addition to the relief authorized by this section, the court may award reasonable attorneys' fees and costs in any action brought under this section. “2. The attorney general or any district attorney may petition the 90 Nev. 450, 455 (1974) Koscot Interplanetary, Inc. v. Draney injunctive relief and declaring that all contracts and agreements, existing at that time or made in the future, which had formed any part of the consideration given for the right to participate in a pyramid promotional scheme or endless chain, were against public policy and voidable by a participant. The respondents each purchased their distributorships from Koscot before Chapter 375 became effective. On April 23, 1971, a few days after the effective date, respondents made a demand in writing upon Koscot requesting the return of their investments. Koscot refused and respondents then filed their complaint which was answered by Koscot. The respondents' complaint contained two separate causes of action. The first cause of action alleged fraudulent misrepresentation, and the other, relying on NRS 598.120, sought to avoid and rescind their contracts with Koscot and a return of all consideration paid for the distributorships. Respondents then filed a motion for summary judgment on their second cause of action. Af ter both parties had filed memoranda of points and authorities, presented oral argument and submitted an agreed statement of facts, the district court concluded: that the marketing plan of Koscot was a pyramid promotional scheme as defined in NRS 598.100; that the contracts entered into between the respondents and Koscot were voidable by respondents; and, that they were entitled, as a matter of law, to a judgment on their second cause of action. Pursuant to the provisions of NRCP 54(b), the district court expressly determined that there was no just cause for delay and entered a final judgment in the amount of $5,000, together with interest and costs in favor of each respondent and against Koscot. This appeal followed. In ordering summary judgment for respondents, the district ( *7 " 3 "! " F B) ( * F ( . ______district court having jurisdiction of the area where a pyramid promotional scheme or endless chain is being prepared, operated or promoted to appoint receivers to secure and distribute in an equitable manner any assets received by any participant as a result of such scheme or program. Any such distribution shall effect, to the extent possible, reimbursement for uncompensated payments made to become a participant in the scheme. In any such action, the court may, in addition to any other relief or reimbursement, award reasonable attorneys' fees and costs. “3. The attorney general may commence a proceeding in quo warranto pursuant to the provisions of chapter 35 of NRS against a corporation which contrives, prepares, sets up, proposes, operates, advertises or promotes any pyramid promotional scheme or endless chain, such act or acts being hereby declared an act or acts which amount to a surrender or a forfeiture of its corporate rights, privileges and franchises.” 90 Nev. 450, 456 (1974) Koscot Interplanetary, Inc. v. Draney court concluded that Chapter 375 was not an unreasonable or arbitrary exercise of police power by the legislature, nor was it in violation of Section 10, Article I, United States 3 4 Constitution, or Section 15, Article 1 of the Nevada Constitution. Kos cot assigns these conclusions as error on the part of the district court. It also contends that Chapter 375 not only impairs the obligation of contract but is so vague and indefinite as to be unconstitutional, and that by preventing appellant from fairly conducting its business deprives it of due process of law. [Headnotes 1-3] Our legislature is free to enact any law provided it is not clearly prohibited by some provision of the Constitution of the United States or the Nevada Constitution. Whether a legislative enactment is wise or unwise is not a determination to be made by the judicial branch. Every reasonable presumption must be indulged in support of the controverted statute with any doubts being resolved against the challenging party, who has the substantial burden of showing that the act is constitutionally unsound. Cummings v. City of Las Vegas, 88 Nev. 479, 499 P.2d 650 (1972); Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966); Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960); King v. Board of Regents, 65 Nev. 533, 200 P.2d 221 (1948); Ex parte Iratacable, 55 Nev. 263, 30 P.2d 284 (1934); Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926). [Headnote 4] Statutes, if enacted in the exercise of police power, are presumed to promote the public welfare and they come to court with the presumption of validity. Viale v. Foley, supra; Caton v. Frank, 56 Nev. 56, 44 P.2d 521 (1935). [Headnote 5] It is not only a right but the duty of a state to protect its citizens from injurious activities in commercial and business affairs by regulation through its police power. Viale v. Foley, supra. Even a legitimate occupation may be restricted or prohibited in the public interest, and contracts adversely affecting that interest may be restrained. State ex rel. Sanborn v. Koscot Interplanetary, Inc., 512 P.2d 416 (Kan. 1973); Breard v. Alexandria, 341 U.S. 622 (1951); Frisbie v. United States, 7) / 8 ______ 3 Art. I, § 10, United States Constitution: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts, . . .” 4 Art. 1, § 15, Nevada Constitution: “No . . . law impairing the obligation of contracts shall ever be passed. . . .” 90 Nev. 450, 457 (1974) Koscot Interplanetary, Inc. v. Draney 157 U.S. 160 (1895). See also, Railway Express Agency v. New York, 336 U.S. 106 (1949); Daniel v. Family Security Life Ins. Co., 336 U.S. 220 (1949); Nebbia v. New York, 291 U.S. 502 (1934). [Headnotes 6, 7] In furtherance of this obligation to protect its citizens a state has the power to prevent fraud against the public in the conduct of an otherwise lawful business. State ex rel. Sanborn v. Koscot Interplanetary, Inc., supra; State v. Boyenger, 509 P.2d 1317 (Idaho 1973); State v. Guyette, 102 A.2d 446 (R.I. 1954). The reasonable and legitimate purpose of Chapter 375 is to prevent fraud against the public. Cf. State v. Redman Petroleum, 77 Nev. 163, 360 P.2d 842 (1961). Appropriate regulation or prohibition may be reasonably imposed against pyramid promotional schemes deemed by the legislature to be injuriously fraudulent. Koscot's marketing plan viewed in the most favorable light is nothing but a fraudulent scheme to extract money from investors through the use of exaggerated claims and statistics, misrepresented as well as undisclosed facts and false advertising. Its emphasis is upon the sale of distributorships. The sale of cosmetics is only a facade. [Headnote 8] NRS 598.120 declaring contracts and agreements embracing pyramid promotional merchandise sales schemes to be against public policy and voidable, is not constitutionally impermissible, does not unreasonably infringe upon Koscot's right to do business and is reasonably related to preventing fraud against the public which is the end to be achieved. See State ex rel. Sanborn v. Koscot Interplanetary, Inc., supra; State ex rel. Turner v. Koscot Interplanetary, Inc., supra. We must now determine whether NRS 598.120 imposes an unconstitutional impairment on the obligation of contract. That statute not only declares that all future contracts and agreements which have any part of the consideration given for the right to participate in a pyramid promotional scheme are against public policy and voidable by a participant, but it also declares that all existing contracts and agreements having any part of the consideration for such right are also against public policy and voidable. [Headnotes 9, 10] Although contracts previously entered into may be affected thereby, the constitutional interdiction against the impairment of the obligation of contract does not prevent a state in the 3 " !" 90 Nev. 450, 458 (1974) Koscot Interplanetary, Inc. v. Draney reasonable exercise of its police power from enacting laws intended to benefit the public. Individuals, by entering into contracts, may not estop the legislature from enacting laws for 5 the public good. Manigault v. Springs, 199 U.S. 473, 480 (1905). [Headnotes 11, 12] Unquestionably, for future contracts the provisions of NRS 598.120 would be effective. We think that statute is equally effective as to the existing contracts between Koscot and respondents notwithstanding the provisions of Article I, Section 10 of the United States Constitution and Article 1, section 15 of the Nevada Constitution. This is so because any right which Koscot may have had to induce respondents to participate in a pyramid promotional scheme was subject to the paramount police power of this State. When Koscot entered into the agreements with respondents it did so subject to any regulating legislation which the State might enact to protect its citizens. In Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 442-444 (1934), the United States Supreme Court reiterated the rule that all contracts are made subject to the paramount authority retained by a state over contracts “to safeguard the vital interest of its people” and went on to say: “[T]he question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all ______ 5 In the following cases the United States Supreme Court held that contracts could not so estop legislatures: A recording act upheld as applying to deeds dated before the passage of the act [Jackson v. Lamphire, 28 U.S. 280 (1830)]: lottery tickets, valid when issued, were necessarily invalidated by legislation prohibiting the lottery business [Stone v. Mississippi, 101 U.S. 814 (1880)]; contracts for the sale of beer, valid when entered into, were nullified by a State prohibition law [Beer Co. v. Massachusetts, 97 U.S. 25 (1878)]; contracts of employment were modified by later laws regarding the liability of employers and workmen's compensation [New York Central R. R. Co. v. White, 243 U.S. 188 (1917)]; a contract between a plaintiff and defendant did not prevent the State from making the latter a concession which rendered the contract worthless [Manigault v. Springs, supra]; a contract for the conveyance of water beyond the limits of a State did not prevent the State from prohibiting such conveyance [Hudson water Co. v. McCarter, 209 U.S. 349 (1908)]; a contract as to rates between two railway companies did not prevent the State from imposing different rates [Portland Ry. Co. v. Oregon R. R. Comm., 229 U.S. 397 (1913)]; nor did a contract between a public utility company and a customer protect the rates agreed upon from being superseded by those fixed by the State [Midland Co. v. K. C. Power Co., 300 U.S. 109 (1937)]. 90 Nev. 450, 459 (1974) Koscot Interplanetary, Inc. v. Draney depends. * * * The principle of this development is, * * * that the reservation of the reasonable exercise of the protective power of the States is read into all contracts. * * *” Koscot argues that Home Bldg. & L. Assn. v. Blaisdell, supra, involved an emergency situation and since no emergency exists here, police powers cannot be relied upon to overcome the unconstitutional nature of the statute. This argument was answered by the High Court in Veix v. Sixth Ward Bldg. & L. Assn. of Newark, 310 U.S. 32, 39 (1940), where it recalled its reasoning in Blaisdell that: “Emergency does not create [constitutional] power, emergency may furnish the occasion for the exercise of power,” and held that if a legislature could enact statutes to protect the public in an emergency there was no reason why it could not enact permanent protective legislation. In Treigle v. Acme Homestead Association, 297 U.S. 189 (1936), the High Court pointed out that where the police power is exercised “for an end which is in fact public” contracts must yield to the accomplishment of that end. The control of pyramid promotional schemes is “an end which is in fact public.” Although Koscot has leveled its attack against Chapter 375 in its entirety, the summary judgment was only granted under the provisions of NRS 598.120, and the breadth of this appeal is thereby limited. [Headnotes 13, 14] The trial court specifically found the marketing plan of Koscot to be a pyramid promotional scheme as defined by that statute. The record supports that finding. A pyramid promotional scheme is defined in NRS 598.100(4) with sufficient clarity to meet constitutional standards. Koscot protests that the term “endless chain” is not defined in NRS 598.100 to 598.130, inclusive. The trial court did not find Koscot's marketing plan to be an “endless chain,” nor did it mention or discuss that term. The question of the meaning of an “endless chain” is not before us and we will not consider it. The judgment of the district court is affirmed. Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur. ______ 90 Nev. 460, 460 (1974) Summers v. State JACK ELMER SUMMERS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 7137 December 27, 1974 529 P.2d 207 Appeal from resentencing order, Second Judicial District Court, Washoe County; Thomas O. Craven, Judge. Affirmed. Gary A. Sheerin, State Public Defender, Carson City, 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. OPINION Per Curiam: In February, 1969, a jury found appellant guilty of first degree murder and fixed his punishment at death. In June, 1972, the United States Supreme Court held the death penalty, as commonly applied, was unconstitutional. Furman v. Georgia, 408 U.S. 238 (1972). Because of that decision, our district court held a resentencing hearing, and sentenced appellant to life imprisonment without possibility of parole. Appellant here contends that only a jury could resentence him, and that a presentence investigation report was essential to resentencing. On the basis of our prior decision in Anderson v. State, 90 Nev. 385 (1974), we affirm the district court. ______90 Nev. 460, 460 (1974) Barker v. Sheriff ANTHONY “TONY” BARKER, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent. No. 7518 December 27, 1974 529 P.2d 204 Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial District Court, Clark County; John F. Mendoza, Judge. Affirmed. 90 Nev. 460, 461 (1974) Barker v. Sheriff George, Steffen & Simmons, of Las Vegas, for Appellant. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Dan Seaton, Deputy District Attorney, Clark County, for Respondent. OPINION Per Curiam: In this appeal from an order denying a pretrial petition for habeas corpus, we believe the unchallenged evidence adduced at the preliminary examination justified the magistrate's determination that there was probable cause to hold appellant for trial. NRS 171.206. See concurring opinion by Zenoff, J., in Franklin v. State, 89 Nev. 382, 389, 513 P.2d 1252, 1257 (1973). Cf. Callanan v. United States, 364 U.S. 587 (1961); McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971). “[W]e are not now concerned with the prospect that the evidence presently in the record may, by itself, be insufficient to sustain a conviction.” McDonald v. Sheriff, 89 Nev. 326, 327, 512 P.2d 774, 775 (1973). Other contentions raised by appellant have previously been considered and rejected. McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970); cf. Johnson v. Sheriff, 89 Nev. 304, 511 P.2d 1051 (1973); Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969). The order denying habeas relief is affirmed. ______ 90 Nev. 461, 461 (1974) Coffman v. Sheriff MONTE GLENN COFFMAN, Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent. No. 7820 December 27, 1974 529 P.2d 207 Appeal from order denying pretrial petition for habeas corpus, Second Judicial District Court, Washoe County; James J. Guinan, Judge. Affirmed. James W. Johnson, Jr., and Thomas L. Belartstegui, of Reno, for Appellant. 90 Nev. 461, 462 (1974) Coffman v. Sheriff Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Calvin R. Dunlap, Deputy District Attorney, Washoe County, for Respondent. OPINION Per Curiam: In this appeal from an order denying a pretrial petition for habeas corpus, we believe evidence presented at the preliminary examination justified the magistrate's determination that there was probable cause to hold appellant for trial. NRS 171.206. At this juncture we need not and do not decide whether such evidence would support a conviction. Cf. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973). Other contentions raised by appellant are also without merit. Cf. Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970). ______ 90 Nev. 462, 462 (1974) Neibauer v. Sheriff BRINTON MICHAEL NEIBAUER, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent. No. 7869 December 30, 1974 529 P.2d 204 Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge. Reversed. Jeffrey D. Sobel, of Las Vegas, for Appellant. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and David Schreiber, Deputy District Attorney, Clark County, for Respondent. OPINION Per Curiam: F or the same reasons enunciated in McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973), the district court's order denying a pretrial petition for habeas corpus is reversed. ______ 90 Nev. 463, 463 (1974) Eikelberger v. Tolotti FRED L. EIKELBERGER and MARGARET A. EIKELBERGER, Appellants, v. JOHN L. TOLOTTI and MARY ELLEN TOLOTTI, Respondents. No. 6558 December 30, 1974 530 P.2d 104 Appeal from judgment entered upon a master's report, Second Judicial District Court, Washoe County; Thomas O. Craven, Judge. Action for an accounting between lessors and lessees of a trailer park. The district court adopted and implemented the report of the court-appointed master awarding damages to the lessors, and the lessees appealed. The Supreme Court found that net damages should have been awarded to the lessees, and that the lessees should therefore also have been awarded costs and attorney's fees. Reversed and remanded. Lohse and Lohse, of Reno, for Appellants. Stewart, Horton & McKissick, Ltd., of Reno, for Respondents. 1. Landlord and Tenant. Where lessors of trailer park agreed to pay lessees given sum notwithstanding fact that trailer rental spaces might be constructed for less than said sum, lessors had no just claim to transformers which lessees purchased only because power company wrongfully refused to supply them or to moneys which lessees ultimately forced power company to reimburse them for transformers. 2. Costs. Where district court erroneously awarded net damages to appellants rather than respondents in action for accounting, award of attorney's fees, master's fee and costs to appellants was likewise erroneous and such items should have been recovered by respondents. NRS 18.060. OPINION Per Curiam: This appeal is from a judgment by which the district court sought to adopt and implement the report of a court-appointed master, determining an accounting between appellants and respondents. The action primarily involved monetary disputes regarding operation of the Y-Rancho Trailer Park in Sparks, Nevada, for a period prior to October of 1966, as well as other issues relating to the parties' business dealings. 90 Nev. 463, 464 (1974) Eikelberger v. Tolotti [Headnote 1] The parties agree that because of a clerical error the district court gave respondents judgment for more than the master ascertained to be owing. But for such admitted clerical error appellants would owe respondents the principal sum of $404.53, if the master's determinations had themselves all been correct. However, we believe the master incorrectly decided that appellants were accountable to respondents for $1,365.95 as the result of a 1 transaction involving certain electric transformers. Hence, on claims litigated in this action, respondents owe appellants the principal sum of $961.42, plus interest. [Headnote 2] It appears that in the belief that respondents had prevailed, the district court ordered appellants to pay the entire master's fee, all costs, and a fee for respondents' attorney. Of course, since respondents did not prevail, the award of attorney fees was clearly erroneous. The district court should reconsider the allocation of the master's fee and costs, and an award of counsel fees to appellants, in the light of this opinion. In accord with NRS 18.060, appellants may claim their costs in this court by timely filing of a proper cost bill. Other assignments of error have been considered and found to be without merit. This matter is reversed and remanded for the limited purposes indicated above, and for entry of an appropriate amended judgment. ______ 1 In our view, respondents have no just claim either to the transformers, which appellants purchased only because the power company wrongfully refused to supply them, or to the $1365.95 which appellants ultimately forced the power company to reimburse them for the transformers. The document under which appellants constructed the trailer park on which the transformers were placed provided: “The lessors [respondents] agree to pay over the sum of $30,000.00 to lessees [appellants], notwithstanding the fact that the 60 trailer rental spaces may be constructed for less than said sum.” 90 Nev. 465, 465 (1974) Eikelberger v. Tolotti FRED EIKELBERGER and MARGARET A. EIKELBERGER, Appellants, v. JOHN TOLOTTI, LUIGI MANZO, PIERENO MANZO and DOROTHY B. MANZO, Respondents. No. 6796 December 30, 1974 530 P.2d 105 Appeal from judgment distributing condemnation awards, Second Judicial District Court, Washoe County; John W. Barrett, Judge. Combined city and state condemnation actions concerning portions of a trailer park. The district court awarded the compensation funds to the fee owners and lessors and the lessees appealed. The Supreme Court held that the district court did not err in refusing to continue the trial until the Supreme Court decided a pending appeal involving the owners and the lessees, since such appeal did not involve issues affecting determination of the condemnation actions. Affirmed. Lohse and Lohse, Chartered, of Reno, for Appellants. Sanford, Sandford & Fahrenkopf, of Reno, for Respondents Manzo. Stewart, Horton & McKissick, Ltd., of Reno, for Respondent Tolotti. 1. Continuance. District court did not err in refusing to continue trial of consolidated condemnation actions concerning portions of trailer park pending resolution of appeal involving lessors and lessees of park where appeal did not involve issues affecting determination of condemnation actions. 2. E minent Domain. Evidence supported findings of trial court that lessors of trailer park, as fee owners, were entitled to all compensation funds deposited by city and state after condemnation of park. NRS 37.115. OPINION Per Curiam: The City of Sparks and the State of Nevada filed condemnation actions concerning portions of the Y-Rancho Trailer Park in Sparks, alleging record title in respondents and a leasehold 90 Nev. 465, 466 (1974) Eikelberger v. Tolotti interest in appellants. Both entities deposited the compensation funds with the court; all parties agreed to consolidation of the two actions; and the court, pursuant to NRS 37.115, ruled that respondents, as fee owners, were entitled to all of the funds. [Headnote 1] On appeal, appellants contend the district court erred in refusing to continue the trial of the instant case until this court decided a pending appeal involving appellants Eikelberger and respondent Tolotti. We perceive no merit in this contention because, contrary to appellants' assertions the pending appeal (Case No. 6558, also decided this date) did not involve issues affecting determination of the instant matter. [Headnote 2] Neither does it appear to us, as contended by appellants, that the district court's findings of fact and conclusions of law in the instant case were outside the issues tendered by the parties, nor that the judgment was unsupported by the evidence. Affirmed . ______ 90 Nev. 466, 466 (1974) Tolotti v. Eikelberger JOHN TOLOTTI and MARY ELLEN TOLOTTI, Appellants and Cross-Respondents, v. FRED L. EIKELBERGER and MARGARET A. EIKELBERGER, Respondents and Cross-Appellants. No. 7114 December 30, 1974 530 P.2d 106 Appeal and cross-appeal from judgment entered upon jury verdict, Second Judicial District Court, Washoe County; James J. Guinan, Jr., Judge. Action was brought by sublessors of a trailer park against the sublessees for rentals, with the sublessees asserting a claim against the sublessors for certain expenses. The district court entered judgment for the sublessors, and all parties appealed. The Supreme Court held that the sublessees had waived the defense of “res judicata” or “estoppel” arising from another action between the parties where such defense was not pleaded, and that, where the sublessees were to pay rent on a monthly basis, each item of rent properly bore interest from the date it was due. Remanded to enter judgment including pre-judgment interest. [Rehearing denied January 22, 1975] "N% 4 2 F ( ?2 6 90 Nev. 466, 467 (1974) Tolotti v. Eikelberger Stewart & Horton, Ltd., of Reno, for Appellants and Cross-Respondents Tolotti. Lohse & Lohse, Chartered, of Reno, for Respondents and Cross-Appellants Eikelberger. 1. Judgment. Where contentions of res judicata or estoppel as to view of parties' sublease agreement were not pleaded in sublessees' answers, such defenses were waived. NRCP 8(c). 2. Interest. Where, in action by sublessors of trailer park against sublessees for rent due under sublease, rent was to have been computed and paid monthly, sublessors were entitled to interest on each item of rent from date it was due. NRS 99.040, subd. 1. OPINION Per Curiam: From the documentation available, it appears that having leased certain land they ultimately developed as the Y-Rancho Trailer Park from the Tolottis and the Manzos, the Eikelbergers thereafter subleased the park, other than its laundry room, back to the Tolottis. Disputes arose, and the Eikelbergers, as sublessors, sued the Tolottis, as sublessees, for rentals coming due after October 1, 1966. (A previous accounting, concerned in this court's Case No. 6558, also decided this date, adjudicated rights of the parties prior to October 1, 1966.) The new action was consolidated for trial with another, filed by the Tolottis, claiming reimbursement for expenses allegedly paid by the Tolottis but attributable to operation of the laundry room. The consolidated actions were tried to a jury, which determined that the Tolottis owed the Eikelbergers $30,899.81. On the ensuing appeal and cross-appeal the most significant issues are: (1) Appellants' contention that because the court-appointed master in Case No. 6558 utilized an accrual method of accounting, the court erred in the instant case when it refused to instruct the jury to “use the accrual system of accounting in making [their] decision in this case.” (2) Respondents' contention that they are entitled to prejudgment interest. [Headnote 1] Concerning the first issue, the record shows appellants' counsel well knew respondents' demand was predicated on the contention that the parties' sublease agreement contemplated ! 90 Nev. 466, 468 (1974) Tolotti v. Eikelberger a cash basis accounting system to determine rents due respondents thereunder. While appellants now contend “res judicata” or “estoppel” barred respondents from urging their view of the parties' sublease agreement, appellants' answer pleaded no such defense, and accordingly, whatever its merits might otherwise have been, the district court could properly consider such defense waived. NRCP 8(c). [Headnote 2] Concerning the second issue, the rent from the Tolottis to the Eikelbergers should have been computed and paid monthly, and therefore each item of rent properly bears interest from the date it was due. NRS 99.040(1); Southdown, Inc. v. McGinnis, 89 Nev. 184, 510 P.2d 636 (1973); cf. Hardison v. Carmany, 88 Nev. 670, 504 P.2d 1 (1972). Other assignments of error have been considered and found to be without merit. This matter is remanded for the limited purpose of entering a judgment that includes pre-judgment interest, as indicated above. ______