nevada reports 1968 (84 nev.).pdf

84 Nev. 1, 1 (1968)

REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 84____________

84 Nev. 1, 1 (1968) Washoe County Board of School Trustees v. Pirhala

WASHOE COUNTY BOARD OF SCHOOL TRUSTEES, EDWARD REED, WILLIAMO'BRIEN III, LLOYD DIEDIRCHSEN, FRANK STOKES, EDWARD PINE, BETTY

CASSARD, LAWRENCE MELLOTT, ROBERT SINGLETON, Appellants, v. THOMASPIRHALA, ANTOINETTE PIRHALA, and ROBERT PIRHALA, a Minor, by and Through

His Guardian Ad Litem, THOMAS PIRHALA, Respondents.

No. 5402

January 2, 1968 435 P.2d 756

Appeal from a judgment of contempt entered against the appellants, in the Second JudicialDistrict Court, Washoe County, Nevada; Thomas O. Craven, Judge.

Personal injury action in which a judgment of contempt was entered against defendants bythe trial court for failure to answer interrogatories and the defendants appealed. The SupremeCourt, Batjer, J., held that parent and minor child bringing action for damages arising out ofpersonal injuries to minor child while on school playground were not entitled to


compel school board to disclose through means of written interrogatories questions relating toterms and extent of any insurance coverage on accident in that such matters were not relevantto subject matter. Reversed and remanded.

Collins, J., dissented.

Echeverria and Osborne, of Reno, for Appellants.

Gordon W. Rice and Leo P. Bergin, of Reno, for Respondents.

Discovery. Parent and minor child bringing action against school board for damages arising out of personal injuriesto minor child while on school playground was not entitled to compel school board to disclose throughmeans of written interrogatories questions relating to terms and extent of any insurance coverage onaccident in that such matters were not relevant to subject matter. NRCP 26(b), 33.

OPINION

By the Court, Batjer, J.: On or about February 11, 1966, one of the respondents, eight year old Robert Pirhala, astudent at the Libby Booth School, Reno, Washoe County, Nevada, while on the playground,during school hours, was hit in the eye and injured. The respondents filed suit for personal injuries suffered by the minor, and asked fordamages for past and future medical expenses, and for loss of services. The defendants denied the claim of negligence and alleged contributory negligence on thepart of the minor plaintiff. The issues as to the cause of the accident and as to the resulting injuries remain in disputeand are not of concern at this preliminary stage of the case. After issue was joined on the pleadings, respondents filed interrogatories under NRCP 33,1 propounded to the appellants, among which were the following:

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1 NRCP Rule 33. Any party may serve upon any adverse party written interrogatories to be answered by the

party served or, if the party served is a public or private corporation or a partnership or association, by anyofficer or agent, who shall furnish such information as is available to the party. Interrogatories may be servedafter commencement of the action and without leave of court, except that, if service is made by the plaintiffwithin 10 days after such commencement, leave of court granted with or without notice must first be


23. Is there and was there on February 11, 1966, any personal liability insurance in force,covering defendants and which covers accidents such as the one referred to in the complaint? 24. If so, state: (a) Name of insurer. (b) Type of coverage. (c) Name of insured. (d) Policy number. (e) Policy limits. (f) Expiration date of policy. 2 The appellants' objections to the above interrogatories were overruled by the trial court,and thereafter the court entered an Order to Show Cause, against appellants, for failure toanswer the interrogatories. On July 3, 1967 a Judgment of Contempt was entered against theappellants and they appeal. As their specification of error, appellants contend the trial court exceeded its jurisdictionwhen it ordered them to answer the interrogatories concerning liability insurance and theextent

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obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall besigned by the person making them; and the party upon whom the interrogatories have been served shall serve acopy of the answers on the party submitting the interrogatories within 15 days after the service of theinterrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time.Within 10 days after service of interrogatories a party may serve written objections thereto together with a noticeof hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is madeshall be deferred until the objections are determined. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers maybe used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories maybe served after a deposition has been taken, and a deposition may be sought after interrogatories have beenanswered, but the court, on motion of the deponent or the party interrogated, may make such protective order asjustice may require. The number of interrogatories or of sets of interrogatories to be served is not limited exceptas justice requires to protect the party from annoyance, expense, embarrassment, or oppression. The provisionsof Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are soughtunder this rule.

2 The following interrogatories were also ordered to be answered by the trial court:

25. Were any reports of this accident made to any insurance company, or agent thereof? 26. If so, give the name and address of the person or persons to whom such reports were given. However,they were not touched upon by the briefs or arguments and are not considered in this opinion.


of the coverage. This question under NRCP has not been decided by this court. Appellants rely upon State ex rel. Allen v. Second Judicial District Court, 69 Nev. 196,245 P.2d 999 (1952), as precedent, for their position, that the discovery of liability insuranceshould be denied. In that case an attempt was made, under earlier statutory provisions, for the perpetuation oftestimony and the issuance of a subpoena duces tecum, to learn the amount of maximumliability of the insurer and the premiums paid. Discovery was denied on the ground that suchinformation was inadmissible at trial. While we do not disagree with the holding in the Allen case, we are unable to rely thereonbecause it was decided before the sweeping changes wrought in the field of discovery by theNRCP. Wright's Baron and Hotzoff, Vol. 2A, Sec. 647.1, p. 79, n. 45.6. NRCP 33 refers to NRCP 26(b) for the scope of discovery, which in part reads as follows: * * * any matter, not privileged, which is relevant to the subject matter involved in thepending action * * *. It is not ground for objection that the testimony will be inadmissible atthe trial if the testimony sought appears to be reasonably calculated to lead to the discovery ofadmissible evidence. Appellants contend that the information sought to be discovered by respondents in theabove mentioned interrogatories was not shown to be material to their cause of action. In the various state and federal decisions, the courts are divided on this particular questionof discovery, and in many of the cases vigorous dissents are recorded. There appears to be nomiddle ground. The cases allowing discovery of insurance and the extent of insurance coverage generallydo so on the basis that the scope of the meaning of relevancy has been expanded under therules of discovery and also upon a prognosis that knowledge of the coverage, by the plaintiff,would lead to more meaningful discussions of settlement, and therefore such information isrelevant to the subject matter of the lawsuit. Superior Ins Co. v. Superior Court, 235 P.2d 833(Cal.App. 1951); Maddox v. Grauman, 265 S.W.2d 939 (Ky. 1954); People ex rel. Terry v.Fisher, 145 N.E.2d 588 (Ill. 1957); Lucas v. District Court, 345 P.2d 1064 (1959); Johanek v.Aberle, 27 F.R.D. 272 (D. Mont. 1961). We believe that those cases which deny the discovery of insurance coverage on the basisthat it is not relevant to the subject matter present the better reasoning. McNelley v. Perry, !"#$%&"'


18 F.R.D. 360 (E.D. Tenn. 1955); Jeppesen v. Swanson, 68 N.W.2d 649 (1955);DiPietruntonio v. Superior Court, 327 P.2d 746 (Ariz. 1958); Sanders v. Ayrhart, 404 P.2d589 (Idaho 1965). In the case of Jeppesen v. Swanson, supra, the court said: It would seem to us that, eventhough the discovery is not to be limited to facts which may be admissible as evidence the

ultimate goal is to ascertain facts or information which may be used for proof or defense of anaction. Such information may be discovered by leads from other discoverable information.The purpose of the discovery rule is to take the surprise out of trials of cases so that allrelevant facts and information pertaining to the action may be ascertained in advance of trial.Where it is sought to discover information which can have no possible bearing on thedetermination of the action on its merits, it can hardly be within the rule. It is not intended tosupply information for the personal use of a litigant that has no connection with thedetermination of the issues involved in the action on their merits. Balazs v. Anderson,D.C.N.D.Ohio, 77 F.Supp. 612. There is no assurance whatsoever that the discovery of defendants' liability insurance andthe extent of the coverage would lead to widespread settlement of negligence cases, and therelief of crowded court calendars. Even if this very desirable result would become a fact, itshould not be reached under the blessing of NRCP 1 3 by torturing the clear and ordinarymeaning of the phrase reasonably calculated to lead to the discovery of admissible evidenceand such words as relevant and subject-matter. If, in the future, it becomes evident that there is a pressing need for this particular type ofdiscovery, the NRCP should be appropriately amended. Acknowledging that informationabout insurance coverage would aid a plaintiff immeasurably in evaluating his claim, thecourt in Jeppesen v. Swanson, supra, very ably expressed itself in the following manner:Under the guise of liberal construction, we should not emasculate the rules by permittingsomething which never was intended or is not within the declared objects for which they wereadopted. Neither should expedience or the desire to dispose of lawsuits without trial, howeverdesirable that may be from the standpoint of relieving congested calendars, be permitted tocause

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3 NRCP 1. These rules govern the procedure in the district courts in all suits of a civil nature whether

cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to securethe just, speedy, and inexpensive determination of every action.


us to lose sight of the limitations of the discovery rules or the boundaries beyond which weshould not go. If, perchance we have the power under the enabling act to extend the discoveryrules to permit discovery of information desired for the sole purpose of encouraging orassisting in negotiations for settlement of tort claims, it would be far better to amend the rulesso as to state what may and what may not be done in that field than to stretch the presentdiscovery rules so as to accomplish something which the language of the rules does notpermit. In Hickman v. Taylor, 329 U.S. 495, 507 (1947), the United States Supreme Court said:

We agree, of course, that the deposition-discovery rules are to be accorded a broad andliberal treatment. No longer can the time-honored cry of fishing expedition' serve to precludea party from inquiring into the facts underlying his opponent's case. Mutual knowledge of allthe relevant facts gathered by both parties is essential to proper litigation. To that end, eitherparty may compel the other to disgorge whatever facts he has in his possession. Thedeposition-discovery procedure simply advances the stage of which the disclosure can becompelled from the time of the trial to the period preceding it, thus reducing the possibility ofsurprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. Furthermore, since a liability insurance policy is an asset of a defendant, we do not wish toopen a Pandora's box where discovery might be permitted of all of the defendant's assets priorto securing a judgment against him. In McClure v. Boeger, 105 F.Supp. 612 (E.D. Pa. 1952), Chief Judge Kirkpatrick said: Ican see certain advantages to the plaintiff in knowing the extent of the defendant's coveragein an accident case, at least in a case where the defendant is otherwise judgment proof and thepolicy is the plaintiff's only resort for a recovery. For example, it might help the plaintiff todetermine whether or not to accept an offer of settlement or to decide how much expenditureor time and money by way of preparation the case justified. However, every argument thatcould be made in favor of requiring the disclosure could also be made in favor of compellinga defendant in any civil case, tort or contract, to furnish the plaintiff with full information asto his financial resources, and, in the case of an individual, as to the extent of his privatefortune. Of course, the fact that the information would not be relevant and that the fact of liabilityinsurance could not be introduced at the trial does not necessarily forbid discovery, butwhatever advantages the plaintiff might gain are not advantages which have anything to dowith his presentation of his (


case at trial and do not lead to disclosure of the kind of information which is the objective ofdiscovery procedure. I think that to grant this motion would be to unreasonably extend thatprocedure beyond its normal scope and would not be justified. We do not hold that liability insurance can never be discovered. Situations may arise incertain cases in which the existence of liability insurance may have some evidentiary valuebearing on the merits of the case. Neither do we hold that such insurance is not discoverableafter judgment is entered in an action. In the case of Layton v. Cregan & Mallory Co., 248 N.W. 539 (Mich. 1933), the courtrequired the production of an insurance policy covering the automobile involved in anaccident in which plaintiff was injured. This was done solely upon the issue raised in thepleadings in which the defendant denied ownership of the car, and the court held that if theinsurance policy showed ownership of the car it was admissible for that purpose. The trial court was within its jurisdiction when it took under consideration the scope of

NRCP and ruled on the appellants objections to the interrogatories. However, for the reasonsherein indicated, those objections were well taken and the trial court erred in overruling themand finding the appellants in contempt. The judgment of contempt is reversed and the cause is remanded for further proceedingsconsistent with the foregoing opinion. Neither party will be allowed costs or disbursements.

Thompson, C. J., Zenoff and Mowbray, JJ., concur.

Collins, J., dissenting: I concede there are persuasive authorities and reasons on both sides of this question andacknowledge that the majority opinion marshals them ably, but I prefer the rule allowingdiscovery in this case. The authorities in favor of allowing discovery should be set down. Awell reasoned case favoring discovery is Johanek v. Aberle, 27 F.R.D. 272 (D. Mont. 1961).Other cases expressing a similar view are: People v. Fisher, 145 N.E.2d 588 (Ill. 1957); Pettiev. Superior Court, 3 Cal.Rptr. 267 (Cal.App. 1960); Cook v. Welty, 253 F.Supp. 875 (D.Colo. 1966); Smith v. Superior Court, 11 Cal.Rptr. 165 (Cal. App. 1961); Ellis v. Gilbert, 429P.2d 39 (Utah 1967). Numerous cases have held that information of the existence and amount of liabilityinsurance meet the test of relevancy under NRCP 26(b). Those cases are: Orgel v. McCurdy,8 F.R.D. 585 (D.N.Y. 1948); Maddox v. Grauman, 265 S.W.2d ))%*


939 (Ky. 1954); Lucas v. District Court, 345 P.2d 1064 (Colo. 1959); Laddon v. SuperiorCourt, 334 P.2d 638 (Cal.App. 1959); Hurt v. Cooper, 175 F.Supp. 712 (D. Ky. 1959);Schwentner v. White, 199 F.Supp. 710 (D. Mont. 1961); Rolf Homes, Inc. v. Superior Court,9 Cal.Rptr. 142 (Cal.App. 1960); Novak v. Good Will Grange, 28 F.R.D. 394 (D. Conn.1961); Furumizo v. United States, 33 F.R.D. 18 (D. Hawaii 1963); Miller v. Harpster, 392P.2d 21 (Alaska 1964); Hurley v. Schmid, 37 F.R.D. 1 (D. Ore. 1965); Ash v. Farwell, 37F.R.D. 553 (D. Kan. 1965); Ellis v. Gilbert, supra. Some cases hold it is the insurer rather than the insured who is the real party in interest andwho, in reality, defends against the claim. They are: People v. Fisher, supra; Lucas v. DistrictCourt, supra; Ellis v. Gilbert, supra. Other cases see insurance of the type here involved as not a typical asset of the defendantsince it is acquired solely for the purpose of financial protection in the event of litigation.Their fear that in allowing discovery of the sort sought here will require disclosure of all adefendant's assets, is unfounded. Brackett v. Woodall Foods Prods., 12 F.R.D. 4 (D. Tenn.1951); Ellis v. Gilbert, supra; People v. Fisher, supra; see also, Discovery, 35 F.R.D. 39(1964), at 44. Additional authority for allowing discovery of this type are: NRS 485.3091(6)(a) whichprovides: The liability of the insurance carrier with respect to the insurance required by thischapter shall become absolute whenever injury or damage covered by such motor vehicle

liability policy occur * * *; NRCP 1 which states that the rules shall be construed so as tosecure the just, speedy, and inexpensive determination of every action.; see alsoDiscoveryDisclosure of Existence and Policy Limits of Liability Insurance, 7 Nat. Res. J.313, at 321. I would affirm the holding of the trial court.

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84 Nev. 9, 9 (1968) Scott v. Justice's Court

TRUMAN E. SCOTT, Petitioner, v. THE JUSTICE'S COURT OF TAHOE TOWNSHIP,and MAX L. JONES, Acting Justice of the Peace of Said Township, Respondents.

No. 5316

January 3, 1968 435 P.2d 747

Original petition for writ of prohibition.

Proceeding to preclude pronouncement of judgment and imposition of sentence upon juryverdict finding defendant guilty of criminal trespass. The Supreme Court, Collins, J., heldthat under statute making it misdemeanor to willfully go or remain upon any land after havingbeen warned by owner not to trespass thereon, word land could be correlated with wordpremises used in complaint charging defendant with willfully and unlawfully remaining onpremises of hotel after having been requested to leave by employees of owner and complaintwas sufficient to charge crime under statute. Petition denied.

Thompson, C. J., dissented.

Springer & Newton, of Reno, for Petitioner.

John Chrislaw, District Attorney, Douglas County, for Respondents.

1. Trespass. Under statute making it misdemeanor to willfully go or remain upon any land after having been warnedby owner not to trespass thereon, word land could be correlated with word premises used in complaintcharging defendant with willfully and unlawfully remaining on premises of hotel after having beenrequested to leave by employees of owner and complaint was sufficient to charge crime under statute.NRS 207.200.

2. Trespass. Under statute making it misdemeanor to willfully go or remain upon any land after having been warned

by owner not to trespass thereon, either act of going upon or remaining upon land may be punishable.NRS 207.200.

3. Trespass. Under statute making it misdemeanor to willfully go or remain upon any land after having been warnedby owner not to trespass thereon, words after having been requested to leave in complaint chargingdefendant with willfully and unlawfully remaining on hotel premises after having been requested to leaveby employees on behalf of owner were sufficient to charge offense under statute. NRS 207.200.


4. Trespass. Under statute making it misdemeanor to willfully go or remain upon any land after having been warnedby the owner not to trespass thereon, words on behalf of the owner in complaint charging defendantwith remaining on hotel premises after having been asked to leave by employees of hotel on behalf of theowner were authorized by phrase by the owner and complaint was sufficient to charge trespass understatute. NRS 207.200.

5. Indictment and Information. Where upon granting of demurrer to complaint charging defendant with disturbing the peace state wasgiven express authority to amend, amended complaint could properly contain second offense chargingtrespass in absence of showing that statute of limitations had run or that jeopardy had attached. NRS267.200.

6. Stipulations. Where defendant's counsel stipulated at time demurrer to complaint was granted that district attorneyshould be permitted to file amended complaint within 30 days, stipulation could be construed asconditional dismissal and statute requiring filing of new complaint within one day upon sustaining ofdemurrer was not applicable. NRS 185.120, 207.200.

7. Criminal Law. Any person having personal knowledge of commission of crime may file complaint with propermagistrate and complaint need not be filed by district attorney himself in order to be valid. NRS185.030, 185.120.

OPINION

By the Court, Collins, J.: Petitioner seeks a writ of prohibition against respondents. The main issue concerns theNevada trespass statute NRS 207.200. Subordinate issues involve the filing of an amendedcriminal complaint. We conclude that the respondents did have jurisdiction to proceed anddeny the writ. Petitioner (defendant below) Truman Scott was arrested January 26, 1966 at Harvey'sWagon Wheel, Stateline, Nevada, by a Douglas County deputy sheriff on a charge ofdisturbing the peace. The original complaint stated that he wilfully and unlawfully disturbedthe peace and quiet by using loud language and refusing to leave Harvey's Resort Hotel whenasked to do so. * * * On November 18, 1966 a demurrer to the complaint was argued in thejustice court in Tahoe township. Counsel for the parties then stipulated that defendant'sdemurrer to the complaint be granted subject to the district attorney being permitted to file an

amended complaint within 30 days of the date of this stipulation. On December 12, 1966 anamended complaint was filed by J. Clark Hill, an +,--..+,!+/012


employee of Harvey's Wagon Wheel, charging petitioner with two offenses, disturbing thepeace and wilfully and unlawfully remaining on the premises of Harvey's Resort Hotel andCasino after having been requested to leave the same by employees of the [hotel] on behalf ofthe owner. A jury trial was held on February 23, 1967. The record indicates evidence was offeredshowing that petitioner had been permanently barred from the premises of Harvey's WagonWheel because of prior acts of misconduct. The record does not indicate the nature of theprior misconduct. On the occasion of this arrest he was informed that he was not welcomeand was asked to leave. The jury acquitted him of the charge of disturbing the peace butfound him guilty of failing to leave the premises when requested to do so. The issue here involves a construction of NRS 207.200. That statute makes it amisdemeanor to willfully go or remain upon any land after having been warned by the owner* * * not to trespass thereon * * *. We believe the complaint in this case charges a crimeunder that statute, that respondent court and judge had jurisdiction to try petitioner and upon adetermination of his guilt to punish him as permitted by law.

[Headnote 1] The words any land have been construed in People v. Brown, 47 Cal.Rptr. 662 (1965),under a similar California statute. The court there stated: We conclude that the clearintention of the Legislature was to give to the term any lands' its normal and generallyaccepted meaning, and to include within the phrase everything normally considered to fallwithin the scope of its general definition. The court then went on to quote Black's LawDictionary, stating that Land includes not only the soil, but everything attached to it, whetherattached by the course of nature * * * or by the hand of man * * *. See also People v.Lawson, 238 N.Y.S.2d 839 (1963). The term premises' is used in common parlance tosignify land, with its appurtenances * * *. Black, Law Dictionary 1344, 4th ed. 1951. Thus itis apparent that the word premises used in the complaint can be correlated with the wordland used in the statute. The complaint and the statute both use the word willfully, and where, as here, Scott wascharged with willfully remaining on the premises, the statute is satisfied.

[Headnote 2] The statute separates the words go and remain upon with the disjunctive conjunctionor. A fair construction of


the statute is that either act may be punishable. Thus the complaint's charge of remaining iswithin the statute. See State v. Carriker, 214 N.E.2d 809 (Ohio App. 1964); People v. Brown,supra, for the importance of the linking conjunction.

[Headnote 3] Next we must compare the words after having been requested to leave in the complaintwith the statutory wording after having been warned not to trespass. We are dealing in thiscase with premises to which the public was invited, thus a revocation of the general invitationwould seem necessary before one could be considered a trespasser. Cases have held that suchan invitation may be revoked for good cause and the violator prosecuted. In People v.Goduto, 174 N.E.2d 385 (Ill. 1961), a union organizer who was peacefully distributingleaflets in a Sears, Roebuck and Company parking lot was convicted of trespass after havingbeen requested to leave three times. Also in State v. Carriker, supra, the court said that thelawfulness of the original entry onto the premises of the business was immaterial after thedefendant had been asked to leave.

[Headnote 4] The complaint here charges that Scott was asked to leave on behalf of the owner,whereas the statute requires the trespasser to have been warned by the owner. The wordscontained in the complaint can be construed to be authorized by a reasonable construction ofthe statute. We say, therefore, that the court and justice of the peace had jurisdiction to trypetitioner on the complaint before it and could find him guilty of a misdemeanor trespass asdefined in NRS 207.200.

[Headnote 5] Subordinately petitioner contends that the amended complaint could not contain a secondoffense charging trespass. We see no merit to that contention, especially where the state wasgiven express authority to amend. There being no showing that the statute of limitations hadrun or that jeopardy had attached, either a new charge could be laid or the old complaintamended to include whatever charges were properly joinable under the circumstances.

[Headnote 6] Petitioner next complains that the amended complaint had to be filed within one day underNRS 185.120. 1 Petitioner's ..

$

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1 NRS 185.120 reads: If the demurrer is sustained, a new complaint must be filed within such time, not

exceeding one day, as the justice may name. If a new complaint is not filed, the defendant must be discharged.


counsel, however, stipulated that the district attorney could be permitted to file the amendedcomplaint within 30 days. While we apparently have not considered the effect of stipulationsin criminal cases, we have held in civil cases that it would be error for the trial judge not tohonor the stipulation of the parties waiving a rule of evidence (the deadman's statute).Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540 (1946). Furthermore, the stipulation can beconstrued as a conditional dismissal which did not become final until the expiration of 30days, at which time the time limit of NRS 185.120 would apply. Seawell v. Cohn, 2 Nev. 308(1866).

[Headnote 7] Finally, petitioner complains that the amended complaint had to be filed by the districtattorney himself in order to be valid. We see no jurisdictional merit to that contention, eitherunder the stipulation or the general law, as any person having personal knowledge of thecommission of a crime may file a complaint with the proper magistrate. NRS 185.030. Accordingly, the issuance of the writ is denied and the petition is dismissed.

Zenoff, Batjer, and Mowbray, JJ., concur.

Thompson, C. J., dissenting: Truman Scott seeks a writ of prohibition to preclude the pronouncement of judgment andimposition of sentence upon a jury verdict finding him guilty of criminal trespass as definedby NRS 207.200. His petition rests upon the premise that the justice of the peace is withoutjurisdiction to pronounce judgment and impose sentence since the cited statute does notembrace the circumstances of this case. This contention is sound. NRS 207.200 provides: 1. Every person who shall go upon the land of another with intent to vex or annoy theowner or occupant thereof, or to commit any unlawful act, or shall willfully go or remainupon any land after having been warned by the owner or occupant thereof not to trespassthereon, shall be guilty of a misdemeanor. 2. Every owner or other occupant of any land shall be deemed to have given a sufficientwarning against trespassing, within the meaning of this section, who shall post in aconspicuous manner on each side thereof, upon or near the boundary, at intervals of not morethan 700 feet, signs, legibly printed or painted in the English language, warning persons notto trespass.


3. An entryman on land under the laws of the United States shall be an owner within themeaning of this section. The three subsections must be read in order to ascertain the evil sought to be corrected bythe enactment. Indeed, subsections 2 and 3 are expressly tied to subsection 1 by the languagewithin the meaning of this section. Thus, the entire section, i.e., NRS 207.200(1) (2) and(3), must be considered for one to discern legislative intent. The apparent aim of the entire section is to protect landowners (such as agricultural andmining property owners), who are not in the business of inviting guests to their property inanticipation of financial gain, from trespassers. Subsection 2 of the statute gives the clue, forit allows no trespass' warning to be given by posting signs at intervals of not more than 700feet upon or near the boundary on each side of the land to be protected against invasion. Inmy opinion this subsection reveals the legislative intention, and precludes application of anypart of 207.200 to an invited hotel guest whose invitation to be present is subsequentlywithdrawn. The fault of the majority opinion lies in its refusal to acknowledge the interplay of thethree subsections. Indeed, only a part of the first subsection is quoted in that opinion. Thebalance of the section is ignored. The intermediate appellate court decisions cited by themajority [People v. Brown, 47 Cal.Rptr. 662 (Cal.App. 1965), and State v. Carriker, 214N.E.2d 809 (1964)] do not concern criminal trespass statutes containing provisions similar tosubsections 2 and 3 of NRS 207.200, and are inapposite. It is not useful to cite authority forthe established principle that criminal statutes are to receive a strict construction. Irespectfully suggest that the application of NRS 207.200 to the circumstances of this caseviolates that principle. I would grant prohibition.

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84 Nev. 15, 15 (1968) Meredith v. Washoe Co. Sch. Dist.

THOMAS K. MEREDITH and ROSE N. MEREDITH, Appellants, v. WASHOE COUNTYSCHOOL DISTRICT, a Political Subdivision of the State of Nevada, Acting by and Through

Its Board of Trustees, Respondent.

No. 5325

January 3, 1968 435 P.2d 750

Appeal from judgment denying adjacent land owner damages for extinguishment ofrestrictive covenant on land taken in eminent domain proceedings. Second Judicial DistrictCourt, Washoe County; Grant L. Bowen, Judge.

The trial court held that owner of land adjacent to land taken was not entitled to damagesfor extinguishment of restrictive covenant on land taken and defendants appealed. TheSupreme Court, Zenoff, J., held that beneficiaries of restrictive covenant were entitled to just

compensation for its taking, that after notice of eminent domain proceeding the burden is onthe claimant to appear and establish loss, and that the difference in market value of thedominant tenement before and after the taking is the amount of compensation to be awarded. Reversed and remanded.

Richards & Demetras, of Reno, for Appellants.

William J. Raggio, District Attorney, and Robert Gaynor Berry, Chief Deputy DistrictAttorney, Washoe County, for Respondent.

1. Eminent Domain. Restrictive covenant, which is an easement or servitude in nature of easement, constitutes privateproperty for which just compensation must be paid when the restrictive covenant is extinguished underpower of eminent domain. U.S.C.A.Const. Amend. 5; Const. art. 1, 8; NRS 37.010, subd. 3,37.020, subd. 2.

2. Eminent Domain. Beneficiaries of restrictive covenant are entitled to consideration in eminent domain proceedings. NRS37.080, 37.110, subd. 3.

3. Eminent Domain. Procedural considerations should not determine substantive question of whether there is a compensableinterest in property taken.

4. Eminent Domain. All subdivision landowners who were beneficiaries of restrictive covenant sought to be extinguished ineminent domain proceeding could be readily ascertained from public records and made


a party either by personal service or publication. NRS 37.070, subd. 3; NRCP 4(d, e).5. Eminent Domain.

After notice of eminent domain proceeding, burden is on claimants to appear and establish their loss.6. Eminent Domain.

Value of restrictive covenant extinguished by eminent domain proceeding is market value of dominanttenement before and after taking. NRS 37.110.

OPINION

By the Court Zenoff, J.: This case presents a claim for damages by an owner of property within a residentialsubdivision who contends that the extinguishment of a restrictive covenant running to thebenefit of his property adjoining the condemned property is a property right which is beingtaken and for which he is entitled to damages. The Washoe County School District instituted condemnation proceedings for the purpose

of obtaining title to certain land on which to construct an elementary school building andgrounds. The property subject to condemnation lay within a residential subdivision. The lotowners in the subdivision were granted in their deeds from the common grantors a restrictivecovenant limiting the use of the property to residential purposes. The school district in its complaint named as defendants, the owners of the propertysubject to condemnation and the owners of adjacent land benefitted by the restrictivecovenants. Judgment was entered against all defendants except the appellants, Thomas andRose Meredith. The appellants filed answer and counterclaimed for damages predicated onthe extinguishment of the restrictive covenants of which they were beneficiaries. All otherlandowners in the subdivision who were not made parties to the condemnation proceedingsreleased their rights to the school district. By stipulation, the questions presented to the trial court were: 1. Is the extinguishment of the restrictive covenants by a public body under the power ofeminent domain the taking of private property for public use for which compensation must bepaid? 2. If so, what is the measure of damages suffered by the defendants for the extinguishmentof the restrictive covenant? '


The trial court answered the first question in the negative and refused to allow proof ofdamages. On appeal, the same questions are in issue. We reverse the ruling of the trial court.

[Headnote 1] The Fifth Amendment of the U.S. Constitution and Art. 1, Sec. 8, of the NevadaConstitution provide that private property shall not be taken for public use without justcompensation. The basic question, then, is whether an equitable servitude, or easement, suchas here, a restrictive covenant, is deemed to be property in a constitutional sense, for whichjust compensation must be paid. To a majority of jurisdictions this has been the questionand has been answered in the affirmative. To other jurisdictions the property concept hasnot been the basic consideration, rather, a public policy analysis has been employed to hold inthe negative irrespective of any definition of property. The cases are collected in 4A.L.R.3rd 1121, et seq., and in 2 Nichols, Eminent Domain, Sec. 5.73, p. 125, et seq. This case is unique and one of first impression in our state. We note a clear division ofauthority among the jurisdictions that have considered this problem. We believe the betterview is one that holds a restrictive covenant to be an interest in property, or a property rightaccorded legal recognition and protection in all cases, and therefore, must be justlycompensated for its taking or extinguishment no matter if by a private party or sovereign. The condemnation here is clearly for a public purpose, the construction of a school. NRS37.010(3). NRS 37.020, classifying estates and rights in land subject to be taken for publicuse, provides for the condemnation of easements when taken for any other use. The statute

obviously recognizes an easement either as an estate or right in land. Logic compels theconclusion that such is entitled to be compensated for when taken because a restrictivecovenant is an easement or a servitude in the nature of an easement. Chapman v. SheridanWyoming Coal Company, 338 U.S. 621 (1950). It is therefore properly included within thepurview of NRS 37.020(2).

[Headnote 2] NRS 37.080 recognizes broadly based interests and damages for the taking thereof byproviding that all persons, having or claiming an interest in the property or in the damages,may appear, plead and defend each in respect to his own property or interest.


NRS 37.110(3) specifically provides that a court, jury, commission or master must hear legaltestimony offered by any of the parties to the proceedings, and thereupon must ascertain andassess if the property, though no part thereof is actually taken, will be damaged the amount ofsuch damages. This statute further provides, as far as practicable, compensation must beassessed for each source of damages separately. The statute therefore contemplates, if notmandates, consideration of the appellants' interest. It appears the trial court's decision rested largely on the aspects of impracticability inhandling such claims. But we find it difficult to subscribe to such public policy arguments interms of procedural or substantive problems espoused by the jurisdictions which denycompensation for the extinguishment of a restrictive covenant. The public policy argument is founded on the premise that eminent domain rests uponpublic necessity, and thus, to uphold the validity of restrictive covenants would inhibit theactions of the sovereign charged with the obligation to provide for the public welfare. See,e.g., Doan v. Cleveland Short Line Ry. Co., 112 N.E. 505 (Ohio 1915); City of Houston v.Wynne, 279 S.W. 916 (Tex.App. 1925). We cannot see how compensation, required byconstitutional commands, can be said to interfere with any governmental taking. See Town ofStamford v. Vuono, 143 A. 245 (Conn. 1938). Further, this is a contention of practicality andis perhaps most often urged by court in denying compensation for the extinguishment of arestrictive covenant. It is a two-fold argument that unwarranted procedural and substantiveburdens would be imposed on the public authority if the extinguishment requiredcompensation. The substantive aspect of this view is that the total compensation for damageswould be so great as to make it prohibitive to acquire land in a subdivision. This rests on thesupposition that damages can be proven by each lot owner and that such will be substantial inamount. It does not take into account the inverse relation of distance from the project site andthe amount of damage. The procedural view essentially supposes that the subdivision will be a large tract withmany lots and each lot owner would necessarily have to be served and that a trial on the issueof damages for each lot owner would serve to practically prohibit the public authority fromcondemning any land so situated. See 1945 Wisc.L.Rev. 5; 48 Va.L.Rev. 437 (1962); 53

Mich.L.Rev. 451 (1955). Further, it is to be noted in the present situation the respondent faceschallenge 34


by only one of over 45 property owners. All others did not claim damage.

[Headnote 3] We do not agree that because a number of persons may be affected by the proceedings it isbest to hold the appellants have no right that the law should protect against the sovereign anddeny them the right to offer proof of damage. Procedural considerations should not determinethe substantive question of whether there is a compensable property interest.

[Headnotes 4, 5] Furthermore, our existing civil practice procedures and statutes are sufficient to bringbefore the court all persons claiming a compensable interest. Since all land owners within asubdivision can be readily ascertained from public records, they may be made a party eitherby personal service or publication. See NRS 37.070(3); NRCP 4(d) and (e). The burden thenfalls on the claimants to appear and establish their loss. It is to be remembered that there are two basic devices for urban planning anddevelopment; community zoning and restrictive covenants among private individuals. Thebeneficial results of private land-use controls are readily apparent throughout the country andare not merely confined to residential subdivisions. Use of restrictions are encouraged bymost planning agencies. Indeed, restrictive covenants are held to be superior to zoning lawswhich rest on police power. Abrams v. Shuger, 57 N.W.2d 445 (Mich. 1953); Olberding v.Smith, 34 N.E.2d 296 (Ohio App. 1934); Vorenberg v. Bunnell, 153 N.E. 884 (Mass. 1926);Marshall v. Salt Lake City, 141 P.2d 704 (Utah 1943).

[Headnote 6] 2. The measure of compensation is the value of the interest that is extinguished. But sincethe value of a restrictive covenant cannot be in the abstract, we must look to the market valueof the dominant tenement before and after the taking. In substance, the value of the loss offsetby the value of the benefits is the amount of compensation to be awarded. NRS 37.110. Reversed and remanded.

Thompson, C. J., Collins, Batjer, and Mowbray, JJ., concur.

____________

84 Nev. 20, 20 (1968) Shane v. Shane

JOSEPH P. SHANE, Appellant, v. PAULINEV. SHANE, Respondent.

No. 5331

January 3, 1968 435 P.2d 753

Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,Judge.

Divorce action. The trial court awarded wife divorce and made cash award in lieu of wife'scommunity property rights and as and for alimony. Husband appealed. The Supreme Court,Mowbray, J., held that trial court's granting wife divorce on ground of extreme cruelty wassupported by substantial evidence. Affirmed.

Alex. A. Garroway, of Reno, for Appellant.

A. D. Jensen, of Reno, for Respondent.

1. Divorce. Trial court's granting wife divorce on ground of extreme cruelty was supported by substantial evidence.

2. Divorce. Trial court's determination of effect of cruel treatment upon health of injured spouse should be basedupon his evaluation of character and refinement and sensibilities of respondent rather than uponcomplaining party alone.

3. Divorce. It was inferable on appeal from divorce decree that trial court's conclusion holding that husband had beenguilty of such extreme cruelty as to authorize divorce was result of finding that requirements thereof werepresent.

4. Divorce. Award of $16,500 to divorced wife in lieu of all her community property rights and as and for alimonywas not, on record which included evidence of husband's failure to make contributions to family livingexpenses even though receiving annual salary of $19,200, abuse of discretion. NRS 125.150.

5. Divorce. Before appellate court will interfere with trial judge's disposition of community property of parties oralimony award, it must appear on entire record that discretion of judge has been abused.

OPINION

By the Court, Mowbray, J.: This is an appeal from a judgment and decree awarding to respondent a divorce on theground of extreme cruelty and 5#.4$$.2

84 Nev. 20, 21 (1968) Shane v. Shane

an award to respondent of $16,500 in lieu of all her community property rights, and as andfor alimony. Appellant's answer denied the charge. The trial court found that since the marriage of theparties the appellant had treated the respondent with extreme cruelty and that said crueltycaused plaintiff to become nervous and thereby lose all of her hair. That plaintiff's healthwould be irreparably damaged in the event said marriage continued. A reconciliation by andbetween the parties is impossible.

[Headnote 1] On this appeal we are not concerned with the particular acts relied on by the respondent.Appellant's contention for a reversal is that there is insufficient evidence to justify theconclusion that the conduct of appellant, even if cruel, injured respondent's health or put herin fear of injury to her health. This court said in Ormachea v. Ormachea, 67 Nev. 273, 283, 217 P.2d 355, 360 (1950): The appellant insists that it [the cruelty] is not enough and does not establish danger tohealth, life, limb or the reasonable apprehension thereof. We think it does. We cannot alwaysexpect that a party in a divorce action will express himself explicitly. In such a matter as thiswe must to a great extent rely on the trial judge's impressions. He sees and hears thewitnesses, and acquaints himself with the way in which a witness expresses himself. He is ina better position to observe the conduct and demeanor of the witness and whether the witnesstends to overstate or understate his testimony. Wittenberg v. Wittenberg, 56 Nev. 442, 55P.2d 619. In this case the trial court had substantial evidence to make a finding, and we arenot inclined to disturb it. Porter v. Tempa Mining & Mill Co., 59 Nev. 332, 93 P.2d 741; In reManse Spring, 60 Nev. 280, 108 P.2d 311. As an appellate court we cannot substitute ourjudgment for that of the trial judge in such matters, and will reverse only when there is nosubstantial evidence to support the finding of the trial court. We reaffirm this well established principle and find it applicable in the instant case.

[Headnote 2] It is upon the trial judge's valuation of the character and refinement as well as thesensibilities of the respondent, rather than upon the complaining party alone, that hisdetermination of the effect of the cruel treatment upon the health of the injured spouse shouldbe based. Ormachea v. Ormachea, supra; Bess v. Bess, 72 P.2d 285 (Idaho 1937); Bradley v.Bradley, 284 P.2d 434 (Okla. 1955).

84 Nev. 20, 22 (1968) Shane v. Shane

[Headnote 3] It is proper to infer that the conclusion of the trial judge, in holding that the appellant had

been guilty of such extreme cruelty as to authorize a divorce, was a result of finding that theaforesaid requirements thereof were present. Bess v. Bess, supra.

[Headnote 4] Appellant further complains that the trial judge's award of $16,500 to respondent in lieuof all her community property rights, and as and for alimony was error. The courts of this state are authorized by statute to award alimony and make suchdisposition of the community property of the parties as shall appear just and equitable. 1

[Headnote 5] Before the appellate court will interfere with the trial judge's disposition of the communityproperty of the parties or an alimony award, it must appear on the entire record in the casethat the discretion of the trial judge has been abused. A review of the record in the instantcase clearly establishes that the trial judge after considering all the evidence in the recordmade a fair, just and equitable award in granting to respondent the sum of $ 16,500. Therecord establishes and the trial court found that the appellant received through his accountant$2,259.63 which was the community property of the parties; that $6,504.47 of the communitywas transferred to the accountant, all with the purpose and design of removing said moneysfrom the respondent and for the ultimate use of appellant; that at appellant's requestrespondent executed an $1,800 note to an acquaintance of appellant, which appellant agreedto pay; that respondent had throughout the marriage contributed $400 monthly for the livingexpenses of the parties as requested by appellant, or over $5,400; and that appellant had failedto make any contributions to the family living expenses, although he received a monthlysalary from the inception of the marriage of $1,600, or $19,200 annually, which salary he stilldoes receive.

____________________

1 NRS 125.150. 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 ofthe community property of the parties as shall appear just and equitable, having regard to the respective merits ofthe parties and to the condition in which they will be left by such divorce, and to the party through whom theproperty was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children.

84 Nev. 20, 23 (1968) Shane v. Shane

There is no showing of abuse of discretion by the trial judge in awarding to the respondentthe sum of $16,500, and his order must be affirmed as set forth in the decree with interest at 7percent per annum from February 17, 1967, upon the unpaid balance. Respondent was awarded her counsel fees in the trial below, to which award and theamount thereof we find no objection. Affirmed.

Thompson, C. J., Collins, Zenoff, and Batjer, JJ., concur.

____________

84 Nev. 23, 23 (1968) Spillers v. State

PIERCE SPILLERS, Appellant, v. THE STATEOF NEVADA, Respondent.

No. 5250

January 4, 1968 436 P.2d 18

Appeal from conviction for rape in violation of NRS 200.360(1). Second Judicial DistrictCourt, Washoe County; Grant L. Bowen, Judge.

The defendant appealed from the judgment of conviction by the trial court. The SupremeCourt, Zenoff, J., held that Nevada rape statute under which only a jury could impose deathpenalty if defendant were found guilty of rape with violence and under which a court's powerto punish was specifically limited to imprisonment term of not less than 20 years promulgateda lopsided penalty scheme which was not constitutionally permissible. Affirmed as modified.

Collins and Mowbray, JJ., dissented.

Richard E. Fray and J. Rayner Kjeldsen, of Reno, for Appellant.

Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, WashoeCounty, for Respondent.

1. Jury. Any party to jury trial in criminal case has right to examine prospective jurors on voir dire.

2. Jury. Extent to which parties to jury trial in criminal case may examine prospective jurors on voir dire restslargely in discretion of court, and on review such discretion is accorded considerable latitude.


3. Criminal Law. Where one prospective juror at voir dire answered in the negative when asked whether she had anyinherent antagonism toward Negroes and court sustained objection to questions which asked whether

prospective juror was agreeable to having a Negro live next door or her children attending a largely Negropopulated school and thereafter no further efforts were made to develop disqualifications for prejudice byreason of race, it must be assumed that jurors having been passed for cause and survived peremptorychallenges had unprejudiced minds with respect to Negro defendant who claimed error because of refusalof court to allow questions concerning racial prejudice.

4. Criminal Law. Negro defendant, accused of committing rape while an inmate of prison camp, failed to show he had beendeprived of a fair trial because of pretrial publicity resulting from fact that prison camps constituted anissue in gubernatorial campaign being waged during same year as trial.

5. Criminal Law. No prejudice was shown other than inconvenience in permitting defendant to remain in sheriff's custodyinstead of remaining in the state prison 30 miles away, and there was no abuse of discretion by trial courtwith respect to such matter.

6. Criminal Law. Defendant claiming that he had not been allowed funds for expert witnesses and discovery failed to showthat there had been any need for funds to obtain particular material witness or evidence.

7. Criminal Law. Upon showing of need in criminal case, court may order provision be made for necessary witnesses orevidence.

8. Searches and Seizures. Where person accused of rape was in prison because of a prior offense, the search of his quarters and theseizure of his effects were not to be tested by rules which apply to citizens who are possessed of full civilrights.

9. Arrest. Search of accused's quarters in prison camp in which he was an inmate and seizure of clothing without awarrant was proper as incident to lawful arrest.

10. Criminal Law. There was no abuse of discretion by trial court in refusing to allow a jury view of premises in prosecutionfor rape.

11. Criminal Law. Jury view does not serve place of evidence; its only function is to assist jury in comprehending evidencebefore it.

12. Jury. Juror who has a fixed mind against death penalty is not unbiased and cannot adjudicate fairly the facts inprosecution for offense punishable by death, and such person is not competent to serve as a juror. NRS175.105, subd 9.

13. Jury. Court did not err in prosecution for rape in dismissing prospective jurors who did not believe in capitalpunishment. NRS 175.105, subd. 9.


14. Rape. Nevada rape statute under which only a jury could impose death penalty if defendant were found guilty ofrape with violence and under which a court's power to punish was specifically limited to imprisonment termof not less than 20 years promulgated a lopsided penalty scheme which was not constitutionally

permissible. NRS 200.360, subd. 1.15. Jury.

Guaranty of right to trial by jury is of fundamental character and may not be diminished in value, or itsfree exercise impaired or discouraged. U.S.C.A.Const. Amend. 6; Const. art. 1, 3.

16. Constitutional Law. State may not prescribe different penalties for same offense without violating equal protection concept.NRS 177.240, 200.360 subd. 1.

17. Criminal Law. Supreme Court may modify an unauthorized sentence and substitute therefor any proper sentence thatwas open to sentencing court. NRS 177.240.

18. Rape. Since rape statute provided only for a minimum term of not less than twenty years court must supplymaximum in harmony with theory of indeterminate sentence, that is, a maximum which will allow forpossibility of parole. NRS 176.180.

19. Criminal Law. Under indeterminate sentence concept, court is not authorized to preclude possibility of parole in thefixing of maximum term unless legislature has expressly granted that authority. NRS 176.180.

20. Criminal Law. Where death sentence imposed by jury for offense of rape accompanied with acts of extreme violencewas constitutionally impermissible, Supreme Court would modify the unauthorized sentence and substitutetherefor a sentence with a minimum of twenty years which might be extended to life. NRS 176.180.

OPINION

By the Court, Zenoff, J.: This is an appeal from the conviction of Pierce Spillers for rape accompanied with acts ofextreme violence and with great bodily injury inflicted in violation of NRS 200.360(1). On June 28, 1966 the prosecutrix was raped in her home in Reno during the early morninghours as she arose and prepared to go to work. She had arisen at approximately 1:00 a.m. Thelights in various parts of the house were turned on. She heard a noise and suspecting aprowler went to the dresser and obtained a pistol kept there. She looked out of the bedroominto the hall and spotted the assailant. Temporarily unnerved, she was unable to fire thepistol. Whereupon he 6.


lunged; they wrestled for the gun, and a shot was fired into the ceiling as they struggled in thebedroom. The assailant gained control of the gun and told the screaming victim to be quiet orhe'd choke her to death. The assailant struck the victim on the head with the gun. Stunned,she slumped to a sitting position. When her four-year-old son awakened and entered the roomthe attacker put the gun to the boy's head and ordered the prosecutrix to tell the boy to go tohis room or he'd shoot him. She so ordered the boy and he obeyed. Striking his victim once

more the assailant threw her on the bed, tore off her clothes, covered her head with a pillow,struck her again and committed the act of rape. After the attack she went to a neighbor's house for help. The police were called. Thevictim described the attacker as a Negro, approximately 23 years old, estimated his height andweight, and stated he was wearing prison-type garb and white tennis shoes. With the aid of a police dog who trailed a track (by scent) to the nearby Peavine HonorCamp, the police arrived at the camp and in due course of time apprehended Spillers becausehe answered the description of the assailant, and had blood and other stains on his clothes andbed sheets. After a trial to a jury Spillers was found guilty of rape. The jury affixed the penalty atdeath and he appeals. His assignments of error are numerous but they can be grouped: first, in the court's refusalto allow certain questions concerning racial prejudice at the voir dire examination; second,rulings on the admissibility of certain evidence; third, denial of certain motions, to wit,refusal to (a) change venue and to grant a continuance because of pretrial and trial publicity; (b) permit defendant to remain in the sheriff's custody in Reno instead of remaining in thestate prison in Carson City, 30 miles away; (c) allow funds for expert witnesses and additional discovery; (d) suppress certain evidence that did not meet search and seizure requirements; (e) allow a jury view of the premises where the attack took place; (f) dismiss prospective jurors who did not believe in capital punishment; and fourth, that NRS 200.360(1) is unconstitutional because it contravenes the 6th and 14thAmendments of the Constitution of the United States. There is no merit to any of the claimsof error except the fourth.


Without reference to the fourth assignment of error a review of the entire case leaves nodoubt as to the defendant's guilt inasmuch as the evidence thereof is convincing beyond areasonable doubt. The assignments of error which go to the merits of the case depend largelyupon the discretion of the trial judge which we find was not abused. 1. The prosecutrix is a white woman, Spillers is a Negro. One prospective juror at the voirdire examination for the selection of the jury was asked, You do not feel you have anyantagonism inherent toward people of the Negro race at all? Answer: No. Question:Would you be quite agreeable to having a Negro person live next door to you? Anotherquestion: Would you object to your children attending school largely populated by Negrochildren? Upon objection the trial court ruled that those two latter questions were improper.Thereafter, no further efforts were made to develop disqualification for prejudice by reason ofrace, creed or color.

[Headnotes 1-3]

In a criminal case any party to a jury trial has the right to examine prospective jurors on thevoir dire. Extent to which the parties may go in such an examination rests largely in thediscretion of the court. On review such discretion is accorded considerable latitude. It isgenerally regarded as reversible error in a criminal case in which a Negro is a defendant toexclude questions designed to bring out that a prospective juror is so prejudiced against theNegro race that it would take less evidence to convince him that a Negro is guilty of a crimecharged than to convince him that a white person had committed the same crime. State v.Higgs, 120 A.2d 152 (Conn. 1956), and cases cited therein. But here the trial judge was notgiven the opportunity to rule on the questions that would directly concern the state of mind ofthe jurors as would affect their abilities to sit on this case. They were not asked whether theywould require more proof because the defendant is a Negro. We must assume that the jurorshaving been passed for cause and having survived the peremptory challenges hadunprejudiced minds so far as the trial of this defendant is concerned. Aldridge v. UnitedStates, 283 U.S. 308 (1931). 2. Many rulings were made concerning the admissibility of certain testimony andevidence. To itemize them would reflect only that they were the customary problemspresented in a trail. Our review reveals no abuse of discretion and therefore no error. We rulethe same on the objections to certain instructions given as well as those refused. The jury wasadequately instructed on the applicable law.


[Headnote 4] 3(a). Defendant stresses that pretrial publicity attending the trial of the case deprived himof a fair trial because the subject of prison camps (Spillers was an inmate at the time of theoffense) was an issue in the gubernatorial campaign being waged during the same year. Thetrial court properly denied the motion for continuance and motion for change of venue afterexamining copies of the news articles and radio and television transcripts. Morford v. State,80 Nev. 438, 395 P.2d 861 (1964). Only ordinary news value was assigned by the news mediato this incident. We do not have here the situation of Sheppard v. Maxwell, 384 U.S. 333(1966), Estes v. Texas, 381 U. S. 532 (1965), or Rideau v. Louisiana, 373 U.S. 723 (1963),where the communities were saturated with publicity so complete in its envelopment that theprejudice of every juror could be presumed.

[Headnote 5] 3(b). No prejudice was shown other than inconvenience that would require defendant'scounsel to consult with him at the Washoe County Jail in Reno instead of at the state prison30 miles away. Again, it was a discretionary matter. We find no abuse. Lewis v. UnitedStates, 277 F.2d 378, 380 (10th Cir. 1960).

[Headnotes 6, 7] 3(c). No showing was made that funds were needed to obtain any particular material

witness or evidence. In fact, whatever the prosecution had as evidence was made available tothe defendant for examination before trial. Upon a showing of need the court may orderprovision be made for necessary witnesses or evidence, but the record is void of need.

[Headnotes 8, 9] 3(d). Spillers complains that when he was arrested at the prison camp his clothing wassearched and seized without court approved warrants or his permission. As to this, he has nostanding to complain. He is in prison for a prior offense and a search of his quarters andseizure of his effects are not to be tested by the rules which apply to citizens who arepossessed of full civil rights. People v. West, 61 Cal.Rptr. 216, 220 (Cal.App. 1967). We add,the search and seizure was incident to a lawful arrest.

[Headnotes 10, 11] 3(e). A jury view does not serve the place of evidence. Its only function is to assist thejury in comprehending the


evidence before it. There was no abuse of discretion when the court did not grant the request. 3(f). NRS 175.105(9) 1 compels the exclusion from the jury of anyone who entertainssuch conscientious opinions as would preclude his finding the defendant guilty if the offenseis punishable with death.

[Headnotes 12, 13] The determination of guilt or innocence must be made free of any biases or prejudices.Certainly, a juror who has a fixed mind against the death penalty is not unbiased and,therefore, cannot adjudicate the facts fairly. Such a person is not competent to serve as ajuror. We do not agree with the defendant's contention that a jury composed of 12 personswho are sworn that they can prescribe the death penalty in a proper case are death oriented.They are sworn only to do their duty as jurors. See State v. Williams, 50 Nev. 271, 257 P. 619(1927).

[Headnote 14] 4. The point raised as to the constitutionality of the rape statute has merit. 2 A jury foundPierce Spillers guilty of rape with violence and imposed the penalty of death. Under thatstatute only the jury could direct death. Had Spillers entered a plea of guilty to the charge, thecourt could not have sentenced him to death. The court's power to punish is specificallylimited to imprisonment for a term of not less than 20 years. Neither is the court empoweredto exact the extreme penalty had Spillers pleaded not guilty, and with the State's consent andcourt approval waived a jury trial, been tried before the court and found guilty. (Rains v.State, 83 Nev. 58, 422 P.2d 541 %)#788

____________________

1 NRS 175.105. A challenge for implied bias may be taken for all or any of the following causes, and for no

other:* * * * *

9. If the offense charged is punishable with death, the entertaining of such conscientious opinions as wouldpreclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as ajuror.

2 NRS 200.360(1). Rape is the carnal knowledge of a female, forcibly and against her will, and a person

duly convicted thereof shall be punished by imprisonment in the state prison for a term of not less than 5 yearsand which may extend to life; but if such crime be accompanied with acts of extreme violence and great bodilyinjury inflicted, the person guilty thereof shall be punished by imprisonment in the state prison for a term of notless than 20 years, or he shall suffer death, if the jury by their verdict affix the death penalty.


(1967).) This lopsided penalty scheme is not constitutionally permissible. 3

[Headnote 15] The Sixth Amendment to the federal constitution and art. 1, 3 of our state constitutioneach guaranty the right of trial by jury to one accused of crime. This right is of fundamentalcharacter and may not be diminished in value, or its free exercise impaired or discouraged. 4 One charged under NRS 200.360(1) is compelled to pay a terrible price for exercising hisconstitutional right to a jury trialthe possibility of death. A coercion exists to forego thatright and prefer court adjudication, since the court is powerless to order death. Indeed, insome instances the compelling force may be so great as to cause one who is not guilty toplead guilty, or at least to attempt to place his case before the court at trial without a jury. 5One accused under the statute may thus be discouraged from exercising his right to a jurytrial, or suffer a possible increased penalty if he does so. To suggest that one's constitutionalright to a jury trial in such circumstances is not impaired is to ignore the obvious. It is no answer to say that Spillers voluntarily, and with the advice of competent counsel,elected to exercise his right to (

____________________

3 Similar constitutional objections have been raised concerning 18 U.S.C. 1201 (a), the Federal Kidnapping

Statute, commonly referred to as the Lindbergh Law, which provides: Whoever knowingly transports ininterstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed,kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor,by a parent thereof, shall be punished (1) by death in the kidnaped person has not been liberated unharmed, andif the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the deathpenalty is not imposed. (Emphasis added.) See United States v. Jackson, 262 F.Supp. 716 (D. Conn. 1967);also Waley v. United States, 233 F.2d 804 (9th Cir. 1956), cert. denied 352 U.S. 896 (1956). Cf. Seadlund v.United States, 97 F.2d 742 (7th Cir. 1938); LaBoy v. New Jersey, 266 F.Supp. 581 (D.N.J. 1967); Robinson v.

United States, 264 F.Supp. 146 (Ky. 1967), and McDowell v. United States (No. 5037, Advance Opinion, filedOctober 25, 1967, E.D. Tenn., digest of opinion found in 2 Cr.L. 2129). (Jackson is presently under review bythe U.S. Supreme Court, 387 U.S. 929.)

4 Art. 1, 3, Nevada Constitution: The right of trial by jury shall be secured to all and remain inviolate

forever; * * *. (Emphasis added.)

5 NRS 174.480 requires the state's consent before a defendant can waive a jury. Although not stated, the

approval of the court is then essential and is usually not forthcoming, particularly in a capital case.


trial by jury knowing the possible consequence of death. United States v. Wiley, 278 F.2d500, 504 (7th Cir. 1960). The constitutionality of the penalty scheme does not depend uponwhat the accused does. The statute must stand or fall on its own without regard to the identityof the defendant or the course of action selected by him. Equally unsound is the notion that the legislature intended the court and jury to haveequivalent punishment power for the crime of rape with violence. The opposite is true sincethe statute reads that only the jury may decree death.

[Headnote 16] The equal protection clause of the Fourteenth Amendment to the federal constitution alsodenies validity to the penalty scheme of NRS 200.360(1). A state may not prescribe differentpenalties for the same offense without violating the equal protection concept. Thus the statuteis unconstitutional insofar as it allows a jury to impose a greater penalty than a court for thesame offense, thus violating the Sixth and Fourteenth Amendments to the federalconstitution, and art. 1, 3 of our state constitution. (United States v. Jackson, supra, footnote3.)

[Headnote 17] NRS 177.240 6 invests this court with authority to reverse, affirm, or modify thejudgment appealed from. The sentence imposed is a part of the judgment. Allglood v. State,78 Nev. 326, 372 P.2d 466 (1962); Ex parte Salge, 1 Nev. 449 (1865). Thus, we may modifyan unauthorized sentence and substitute therefor any proper sentence that was open to thesentencing court. State v. Moore, 48 Nev. 405, 233 P. 523 (1925); State v. Johnson, 75 Nev.481, 346 P.2d 291 (1959); see also State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936).

[Headnotes 18-20] Nevada has adopted the indeterminate sentence conceptthat is, the sentence is for themaximum period imposed by the court subject to termination by parole after service of theminimum term. Ex parte Melosevich, 36 Nev. 67, 133 P. 57 (1913); State v. Moore, supra.Accordingly, the sentencing court must provide for the maximum period when the statute

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6 NRS 177.240. Determination of appeal. The appellate court may reverse, affirm, or modify the judgment

appealed from, and may if necessary or proper, order a new trial.


designates only the minimum. 7 The statute before us, NRS 200.360(1) provides only for aminimum term of not less than 20 years. The maximum period is not set. Thus, the court mustsupply the maximum in harmony with the theory of the indeterminate sentencethat is, amaximum which will allow for the possibility of parole. A court is not authorized to precludethe possibility of parole unless the legislature has expressly granted that authority. Thatauthority has not been given for the crime of rape. It is only with regard to first degree murderthat a court, or jury, may impose sentence without the possibility of parole. Consequently, inthe case at hand the new sentence shall be imprisonment for a term of not less than 20 yearswhich may extend to life. Ex parte Lair, 233 P. 789 (Okla. 1925). Affirmed in part, reversed in part as modified.

Thompson, C. J., and Batjer, J., concur.

Collins and Mowbray, JJ., dissenting: We dissent. The majority opinion holds the penalty provision of NRS 200.360(1) is violative of theSixth Amendment (right to jury trial) of the United States Constitution, Art. 1, Sec. 3 of theNevada Constitution, and a denial of due process under the Fourteenth Amendment. Once again this court is trying to outleap the federal courts, and in doing so reaches farafield to thwart, confound and confuse orderly criminal procedure. The majority reliesprincipally upon one federal district court case, United States v. Jackson, 262 F.Supp. 716 (D.Comm. 1967), and the tenuous circumstances that such case is under review by the UnitedStates Supreme Court as its authority to hold the punishment imposed by the juryunconstitutional. We say it is time enough to follow the United States Supreme Court when itmakes such a ruling ( ;

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7 NRS 176.180: Indeterminate sentence of imprisonment; duties of district attorney and warden.

1. Whenever any person shall be convicted of any felony for which no fixed period of confinement isimposed by law and where a judgment of confinement is rendered, the court shall, in addition to any fine orforfeiture which it may impose, direct that such person be confined in the state prison for an indeterminate term

limited only by the minimum and maximum term of imprisonment prescribed by law for the offense of whichsuch person shall be convicted. 2. Where no minimum term of imprisonment is prescribed by law, the court shall fix the minimum term in itsdiscretion at not less than 1 year nor more than 5 years, and where no maximum term of imprisonment isprescribed by law, the court shall fix such maximum term of imprisonment. * * *


and makes it binding upon the states through the Fourteenth Amendment. Until then we oughtto presume our statute to be constitutional and uphold it if we can. State v. McClear, 11 Nev.39 (1876); State v. Jon, 46 Nev. 418, 211 P. 676 (1923); State v. Plunkett, 62 Nev. 265, 149P.2d 101 (1944). There is a way. In the first place there are a greater number of cases and equally respectable authority thatstatutes similar to our rape statute (NRS 200.360(1)) are constitutional. Another federaldistrict court held that a New Jersey statute which provided that only a jury could assess thedeath penalty did not violate the Sixth Amendment. LaBoy v. New Jersey, 266 F.Supp. 581,585 (D.N.J. 1967). In LaBoy, Judge Lane discussed the Jackson case and wrote: Concededly, the fact that only a jury may impose the death penalty is a factor whichweighs against entering a plea of not guilty and undergoing trial by a jury. However, wedisagree with the conclusion that the Jackson case draws from this. It does not necessarilyfollow that this obstacle' to a jury trial is tantamount to a denial of the right to a jury trial. Todetermine when such an obstacle' becomes so great as to be considered a denial of the rightto a jury trial, it is necessary to compare the degree of the obstacle' against the value of thepolicy which it implements. The New Jersey procedure involved in the instant case enunciates a legislative policywhich deems it unwise to allow a judge acting alone to impose the death penalty. In this statethe death penalty may be imposed only when a jury of twelve of the defendant's peers decidesthat it is appropriate. Presumably, the legislative branch has determined that the imposition ofthe death penalty is such a serious decision that it is unfair to the defendant (and possibly tothe judge) to have it rest on the shoulders of one man; that such a decision can only beentrusted to twelve fair and open-minded citizens whose values approximate those of thecommunity from which they are chosen. This is a valid legislative policy which operates primarily for the class of defendants ofwhich petitioner is a member. The fact that the procedure which implements this policy mayin some cases influence a defendant, who has evaluated the alternatives open to him, toforego a trial by jury does not, in our opinion, invalidate the statutory scheme. The benefitwhich results from the procedure is sufficiently great that we are not compelled to strike itdown in the name of providing an unobstructed choice of a trial by jury. Furthermore, it has not yet been decided that the Sixth ;


Amendment right of jury trial under the United States Constitution is binding upon the statesthrough the Fourteenth Amendment. Turner v. Louisiana, 379 U.S. 466 (1965). Likewisethere is no constitutional right to a trial without a jury. Singer v. United States, 380 U.S. 24(1965); Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967). Moreover, in Nevada a defendantmay not as a matter of right demand a trial before the court alone. Both the district attorneyand the court must consent because the state too has a right to have the issue decided by ajury. NRS 174.480. 1 In Robinson v. United States, 264 F.Supp. 146 (W.D. Ky. 1967), the federal kidnappingstatute (18 U.S.C.A., 1201 (a) was upheld on a Sixth Amendment attack against it, andspecifically disagreed with the holding in Jackson. 2 In another opinion by a federal district judge, the federal kidnapping statute was alsoconstitutionally upheld. McDowell v. United States, 274 F.Supp. 426 (E.D. Tenn., October25, 1967). It is ably reasoned in that opinion, A defendant indicted for a violation of Section1201(a) cannot be said to have it the worse because a jury, as well as a judge, must concur ina capital sentence, than if a capital sentence could lawfully be meted out by a judge alone.Whatever may be the merits or demerits of capital punishment, the Court is of the opinionthat the legislative policy of interposing the jury between a judge and the imposition of capitalpunishment upon a defendant is a valid policy, and, moreover, one which should not beoverturned for any but the weightiest of reasons. The majority opinion holds that Spillers is compelled to pay a terrible price for exercisinghis constitutional right to a jury trialthe possibility of death. But the record does not bearout that conclusion. Actually at the arraignment in district court Spillers, with counselpresent, stood mute and the court, under NRS 174.400, was compelled to and did enter a pleaof not guilty for him. The court then directed the case to be set down for trial before a jury,the customary order in all felony cases. Thus it is inaccurate to say Spillers intentionallychose one mode of trial over any other. By standing mute, he forced the court to exercise theonly choice available under those circumstances; that is, a not guilty plea and a trial by jury.This circumstance carries the inescapable conclusion that Spillers ..

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1 We venture to say that few, if any, trial judges in Nevada would, unless clearly compelled by law, consent to

a capital case being tried before the court alone instead of a jury.

2 It should be noted, however, that under federal law the recommendation of the death sentence is not binding

upon the court.


never attempted to exercise his right, if he even had one, to be tried by the court alone. It is extremely difficult to see how a person has been prejudiced when he is accorded themost valuable of all constitutional rights, the opportunity of having his guilt or innocencedecided by a jury of fellow citizens and peers. When contrasted with the fact, as disclosed bythe record, that at no time did he ever attempt in any way, directly or indirectly, to have hisguilt or innocence determined by a trial before the court alone, or that he even toyed with theidea of a plea of guilty to the aggravated rape charge to avoid the possibility of the deathsentence, one can only conclude he knowingly waived any other right he may have had. Inmaking those waivers he clearly did so with competent counsel present and advising him.After having enjoyed the full benefit and advantage of a jury trial, which resulted in adetermination of his guilt beyond a reasonable doubt, as expressly noted by the majority ofthis court, he now seeks to avoid the punishment affixed by the jury, a penalty he knew to bewithin their power if they found he committed the rape and it was accompanied withviolence. The defendant and his counsel also knew under the very same statute that, if the evidencewarranted it, the jury could have found Spillers either not guilty or guilty only of nonviolentrape. If the latter verdict had been rendered, the judge would be compelled by law to sentenceSpillers to not less than 5 years nor more than life. But here the evidence of violence andaggravation was great. 3 The jury, no doubt contrary to the hopes and expectations of Spillersand his counsel, not only convicted him, but fixed his punishment at death for his violent andaggravated conduct in raping his victim. The majority of the court engages and indulges in flights of pure fantasy and speculation,nowhere borne out in the record, when they say Spillers was coerced or compelled in themanner of trial he had or could have had. There is nothing constitutionally wrong with therape statute, which has been unchanged on the law books of Nevada since 1911. The onlything that could and did subject Spillers to the terrible price of

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3 Spillers entered the victim's home in the dark of night; the victim and Spillers fought over a gun; a shot was

fired; Spillers threatened to choke her to death if she didn't be quiet and submit to his demands; Spillers struckher several times; Spillers covered her head with a pillowall within the sanctity of her own home andbedroomand as a terrifying climax, which would no doubt kill the will to resist of any woman, held the gun tothe head of and threatened to shoot her 4-year-old son.


death was his terrible violence and aggravation in raping an innocent woman and mother inher own home in the dead of night within the sight and sound of her own children.

He seeks by hindsight a procedure he waived by foresight. As fallible human beings, wewould indeed be fortunate if we could always enjoy the wisdom of hindsight in our conductof life's affairs. We cannot, and because the law follows the rules of life, it should not. Thosewho would try to make it different by artificial reasoning are doing a disservice to orderlyprocesses of the law. We are inclined to believe many courts in this land are permittinghindsight of those accused of crime to largely control appellate review. As a result, it is notuncommon for appellate review to continue from five to even ten years, at a cost that isenormous. We urge a rule that sharply limits interminable reconsiderations in both the stateand federal court systems when the genesis of the point to be reviewed is attributable tohindsight. But this decision may have a more far-reaching effect than the majority of this courtrealizes. It may open the door to every prisoner in Nevada convicted by a jury of the unlawfulkilling of a human being under NRS 200.010 to 200.030 to complain that their sentences areunconstitutional. We might well be plagued with writs of habeas corpus and we may have togrant them under the authority of this decision. As we view it, a person convicted of homicidepursuant to NRS 200.010 to 200.030 could urge the same argument that Spillers makes here.Under the homicide statutes, on the plea of not guilty requiring a trial, only the jury can fixthe death penalty. The court alone could not. Admittedly there is a distinction on a homicide charge if a defendant pleads guilty to anopen charge of murder. A three-judge district court must be assembled. NRS 200.030(3).There is no such express provision under the aggravated rape statute. We think, however, thatthe rape statute could reasonably be construed to conform to the homicide statute requiringthe calling of a three-judge district court on a plea of guilty. In any event, neither of those questions is before us. Spillers made no effort to test theconstitutionality of the rape statute upon the questions of either a plea of guilty or a trialbefore the court before he accepted the benefit of the jury trial ordered for him by the court.The constitutionality of a statute can always be tested by habeas corpus, Ex parte Philipie, 82Nev. 215, 414 P.2d 949 (1966). Had he initiated such test he would have avoided the terribleprice for exercising his constitutional right to a jury trial, which looms so large in the


mind of the majority. Accordingly, we would affirm the conviction and sentence.

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84 Nev. 37, 37 (1968) Barnum v. Williams

BRUCE BARNUM, Executive Director of the NevadaEmployment Security Department, Appellant, v.

IVAN V. WILLIAMS, Respondent.

No. 5163

January 10, 1968 436 P.2d 219

Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.

Appeal from order of the trial court reversing order of board of review of NevadaEmployment Security Department denying unemployment benefits. The Supreme Court,Collins, J., held that evidence sustained finding of appeals referee that employee truck driver'sfailure to pla

nevada reports 1968 (84 nev.).pdf

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