Volume 42 — Nevada Reports

Petition for prohibition, on the relation of the Vineyard Land and Stock Company, a corporation, against the District Court of the Fourth Judicial District of the State of Nevada in and for the County of Elko, E. J. L. Taber, District Judge of said District Court, and W. M. Kearney, as State Engineer of the State of Nevada. McCarran, C. J., dissenting.

F. Moran, Judge. J. B. Dixon, prosecuted by the City of Reno for violation of ordinance against practicing the profession of law without a license, was, on removal of the case from the city court to the district court, convicted, and appeals. The legislature is prohibited from passing local laws or prescribing punishments for crimes or misdemeanors in particular localities. All laws declaring. offenses to be crimes or misdemeanors must be general in their nature. Const.

Averill, Judge. Suit by J. B. Dixon against the Southern Pacific Company, a corporation. From a judgment for plaintiff, defendant appeals. After reversal on rehearing from a ruling of the clerk of the supreme court, on the cost bill filed by defendant, said defendant appeals.

Averill, Judge. Action by Fred Crosman against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Statement of Facts The Southern Pacific Company, a railway corporation, has appealed to this court from a judgment in the sum of $25,000, the amount assessed against it by the verdict of a jury as compensation for personal injuries alleged to have been sustained by plaintiff in consequence of the alleged negligence of the defendant company.

Petition for writ of prohibition by Mark Walser and another against Thomas F. Moran, as District Judge of the Second Judicial District of the State of Nevada. The practice act alone prescribes the rules by which the sufficiency of pleadings shall be determined. Rev. Laws, 5036; McKim v. District Court, 33 Nev. 44. Only causes of action can be joined which the statute authorizes. State v. Yellow Jacket S. M. Co., 14 Nev. 220.

Ducker, Judge. Action by M. B. Moore and Robert H. Young against the Rochester Weaver Mining Company, a corporation, and F. M. Schick. From judgment for plaintiffs, defendants appeal. Coleman, J., dissenting in part.

<p>Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.</p> <p>B. E. Kuhl and others were convicted of murder, and Kuhl appeals.</p> <p>Where there is no evidence at all tending to prove that the witness is qualified to testify as an expert, or where there is palpable abuse of discretion, the ruling of the trial court is subject to review. Jones on Evidence, vol. 2, p. 898.</p> <p>None of the witnesses for the state, upon their foundation testimony, qualified as experts upon the proposition of the palm print. “The rules with respect to the use of expert evidence are numerous'. They follow, in the main, the principle of furnishing assistance to the jury upon the subject to which the evidence relates.” McKelvey on Evidence, p. 228. “In a great variety of cases where the subjects under investigation are wholly unfamiliar to the jury, or even to the judge, there would be no adequate mode of arriving at any satisfactory conclusion, if expert testimony were rejected. In recognition of this fact, the courts have adopted the rule of permitting the opinions of witnesses whenever the subject-matter of inquiry is such that the inexperienced are unlikely to prove capable of forming a correct j udgment upon it without assistance; in other words, when it so far partakes of the nature of a science as to require a course of previous habit or study in order to attain a knowledge of it.” Jones on Evidence, vol. 2, pp. 891, 892. “To qualify, a general knowledge of the department to which the subject belongs would seem sufficient.” Idem, 896. However, it seems an impossibility to require a man to have a general knowledge of a science which apparently does not exist. The state endeavored to present expert testimony upon a point never before discussed. The case falls within the class where an opinion is asked upon an unknown quantity. “Opinion evidence has sometimes been excluded on the ground that the subject was beyond the powers of any person, expert or nonexpert, to express an opinion, and in such case the jury must be left to reach a result from the facts testified to in the best manner possible.” McKelvey on Evidence, p. 228. The matter of palm prints is in such a condition, statistically and otherwise, as not to permit of reasonably correct testimony in regard to it.</p> <p>It was error to admit in evidence photographs containing lines and markings placed thereon by the expert witnesses, the originals of the photographs being in the court for the inspection of the jury. “Pictorial evidence is not admissible where the original objects are before the jury.” McKelvey on Evidence, p. 424.</p> <p>It was error to ask the expert witness whether or not he could make a positive statement as to the identity of the hand that made certain prints. All that the witness could be permitted to state was his opinion. Jones on Evidence, vol. 2, pp. 906, 908, 914.</p> <p>Admitting that there is a scientific basis for fingerprint identification, is there a scientific basis for palm-print identification? This is the main point relied upon by appellant. Identification by finger prints rests upon the primary assumption, made by writers and students on the subject, that the papillary ridges which occur on the inner surface of the hands and on the soles of the feet occur in countless variety of pattern and with innumerable characteristics and distinctive marks of identification, and persist without change throughout life. From that primary assumption, it follows that an imprint of those papillary ridges furnishes an infallible means of identification. Identification by finger print has received the unqualified sanction of the courts. State v. Cereiello, 52 L. R. A. 1010; People v. Jennings, 43 L. R. A. 1206; State v. Miller, 60 Atl. 202; State v. Conners, 94 Atl. 812; People v. Roach, Ann. Cas. 1917a, 410. “The palms of the hands and the soles of the feet are covered with two totally distinct classes of marks. * * * The least conspicuous marks, but the most numerous so far, are the so-called papillary ridges. * t * They are in some respects the most important of all anthropological data. * * * They have the unique merit of retaining all of their peculiarities unchanged throughout life, and in consequence an incomparably surer criterion of identity than any other bodily feature.” Galton on Finger Prints.</p> <p>Photographic enlargements of prints were admissible in evidence. Where the court is of the opinion that comparison of the writing or matter in dispute may be facilitated by the use of enlargements, it is proper to admit them. People v. Jennings, supra; Parker v. Rex, 8 Brit. Rui. Cas. 68; Dederichs v. S. L. C. R. Co., 35 L. R. A. 802. Nor does the admissibility of the enlargements seem to be at all affected by the fact that the originals are already in evidence. “However, photographs of instruments already in evidence, which are so enlarged as to make the proportions plainer and to illustrate the testimony of witnesses, may go to the j ury in the same way as would magnifying glass or microscope.” 17 Cyc. 420; Dederichs v. S. L. C, R. Co., supra.</p> <p>The admissibility of the enlargements was not affected by having on them lines and figures made in ink by the expert (Sir E. R. Henry, Classification and Uses of Finger Prints) ; and an expert may, instead of using enlargements, exhibit prints on a screen in the presence of the jury, by means of a projectoscope, using plates prepared for that purpose. 35 L. R. A. 813.</p> <p>An expert who has given his opinion as to identity may answer a subsequent question calling for his positive statement. It is usual for expert witnesses to testify that they believe or think, in their best judgment, that such and such a thing is true, and no rule of law. prevents them from testifying positively on such subjects. State v. Jennings, supra.</p> <p>It was not error for the trial court to receive and record a verdict on Sunday and on that day set a time for sentence. State v. Rover, 13 Nev. 18.</p>

J. L. Taber, Judge. Ed. Beck was convicted of murder in the first degree, and he appeals.

Original proceeding in prohibition by the State of Nevada, on the relation of John Esser, against the District Court of the Fifth Judicial District of the State of Nevada, in and for Nye County, and- Mark R. Averill, Judge of said court. A Avrit of prohibition is the proper remedy. An appeal in a criminal case is not a plain, speedy or adequate remedy.

Proceedings in prohibition by Arne W. Parus against the District Court of the Fourth Judicial District of the State of Nevada, in and for the County of Elko, and Hon. E. J. L. Taber, the Judge thereof. Coleman J., dissenting.

<p>1. Waters and Watercourses — Offenses incident to Supply and Use of Water.</p> <p>The mere opening, breaking into, tapping or connecting with any pipe, flume, ditch, or reservoir does not constitute crime, defined by crimes and punishments act, sec. 468, subd. 1 (Rev. Laws, 6733), the taking or removing therefrom of water belonging to another or allowing the same to be taken being essential element of the crime.</p>

<p>Original proceeding in habeas corpus by Arthur De Lannoy Twyeffort.</p>

Petition for certiorari to review an order vacating and setting aside decree for divorce by Edward Alston Perry against the District Court of the Seventh Judicial District of the State of Nevada, in and for the County of Esmeralda, J. Emmett Walsh, Judge of said court, and Lucy Land Perry.

Averill, Judge. Suit by C. L. Richards against S. E. Vermilyea. Judgment for plaintiff, motion for new trial denied, and defendant appeals. On respondent’s appeal from the ruling of the clerk on the cost bill, ruling of the clerk sustained as modified. Where there is a conflict in the testimony, the judgment of the trial court will not be set aside, unless clearly against the weight of evidence. Ency.

Emmett Walsh, Judge. Action by J. P. Nelson, and another against Chris Smith and another. From judgment for plaintiffs, and from order denying new trial, defendants appeal. There is no merit in the motion to dismiss, the appeal having been taken within the statutory time. Respondents concede that the notice of appeal was filed and served within sixty days after the order was made and entered in the minutes of the court.

Moran, Judge. Action by Allen Clark Company against Spiro Franco-vich, in which Ray J. Cool and others intervene. From a judgment for interveners and from an order denying motion for a new trial, plaintiff appeals. The court erred in allowing and ordering the inter-veners to file their petition and complaint in intervention. They should have instituted an action in replevin.

Averill, Judge. Action by W. E. Pruett, as guardian of the person and estate of Charles A. Zitterbarth, a minor, against Dan Caddigan, as executor of the estate of Dan O’Keefe, deceased, and another. Judgment for plaintiff, and named defendant appeals.

<p>1. Carriers — Passengers—Raxes—Schedule—Change.</p> <p>Change in tariff schedule takes effect upon compliance with act to regulate railroads (Stats. 1907, p. 73, sec. 4a; Rev. Laws, 4552) providing for change upon 30 days’ notice to commission, notwithstanding failure to post notice whenever a change is made as required by subdivision “b”; the only effect of such failure being liability by railroad for damages resulting therefrom under section 20.</p> <p>2. Carriers — Sleeping-Cars—Passengers—Ejection—Liability.</p> <p>Railroad was not liable for ejecting passenger from drawing-room, where passenger not sharing room with another holder of first-class passenger ticket had- but one such ticket, contrary to tariff schedule, and refused to vacate room or purchase another ticket.</p>

Washoe County; Mark R. Averill, Judge. Action by J. B. Dixon against W. E. Pruett, as administrator of the estate of Nellie G. McCormick, deceased. Judgment for plaintiff, and defendant appeals; plaintiff prosecuting a cross-appeal. Coleman, J., dissenting.

Certiorari by the State, on the relation of the Allen Clark Company, a corporation, against Thomas F. Moran, District Judge of the Second Judicial District Court, in and for the County of Washoe, and the Second Judicial District Court in and for the County of Washoe. The writ of certiorari should, issue and lie, with relator’s costs. The questions before the court are: (1) Has the justice court jurisdiction over mechanics’ liens under $300?

Application of John Zwissig for a writ of habeas corpus. The main question to be decided is as to the justice court’s jurisdiction. We deny jurisdiction because the charge does not constitute a public offense, and because the maximum penalty exceeds the jurisdiction of the justice court. Hurd, Hab. Corp. (2d Ed.) p. 325; .State ex rel. Morley v. Godfrey, 54 W. Va. 54; Judy v. Lashley, 50 W. Va. 628; Church, Hab. Corp. sec. 351.

<p>Application of C. M. Donell for writ of habeas corpus.</p>

Emmett Walsh, Judge. Action by Robert J. Potter against the Los Angeles and Salt Lake Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals.

Ducker, Judge. Action by the Winnemucca State Bank and Trust Company, a corporation, against J. D. Corbeil. Judgment for defendant, and plaintiff appeals. A party with the interest of the plaintiff is a real party in interest within the meaning of the statute, and is entitled to maintain the action. Consolidated Nat.

.Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge. Thomas S. Park was charged with having in his possession a hide of a heifer, from which hide the ears had been removed. From an order sustaining demurrer to information, the State appeals.

<p>1. Statutes — Giving Effect to All Pap.ts — Pbesumption.</p> <p>Tlie presumption is that the framers of an act intended to give force and effect not only to the main legislative intent, but also to its several parts, words, clauses, and sentences.</p> <p>2. Statutes — Force and Effect of All Parts of Statute — Pbe-sumption.</p> <p>The presumption that the framers of- an act intended not only to give effect to the main legislative intent, but also to its several parts, words, clauses, and sentences, is removed only when it appears that effect cannot be given to the paramount purpose unless particular words or clauses are rejected or without limiting or expanding their literal import.</p> <p>3. Intoxicating Liquors — Restricting or Enlarging Meaning of Statute.</p> <p>The sentence, “and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act,” in prohibition law, sec. 1, cannot be adjudged out of the act, or restricted or enlarged in its plain signification, unless, after exhausting every legitimate method of construction, it is found irreconcilable with the scope and purpose of the act or void for constitutional reasons.</p> <p>4. Intoxicating Liquors — -“Malt Liquob.”</p> <p>“Sierra Beverage,” containing malt and one-tentli per cent alcohol, is, whether intoxicating or not, a liquor, within prohibition law, sec. 1, providing that “all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act.”</p> <p>5. Intoxicating Liquors — Express Mention and Implied Exclusion.</p> <p>Tlie plirase, “any other intoxicating drink, mixture or preparation of like nature,” which follows the specific enumeration of certain named liquors in prohibition law, sec. 1, instead of limiting the class of liquor enumerated, described another merely by their intoxicating quality.</p> <p>0. Intoxicating Liquors — Statute—Construction.</p> <p>The phrase, “any other intoxicating drink, mixture or preparation of like nature,” which follows the specific enumeration of certain named liquors in prohibition law, sec. 1, is not controlled or qualified by the last clause of said section with reference to beverages containing one-half per cent alcohol being spirituous liquors.</p> <p>7. Intoxicating Liquors — Statute—Constitutionality.</p> <p>Prohibition law, sec. 1, providing that “all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act,” does not contravene the state or federal constitution.</p> <p>8. Intoxicating Liquors — Suppressing Nonintoxicating Liquors.</p> <p>The power exercised through appropriate legislation by the legislature, or people acting in a legislative capacity, to suppress nonintoxicating liquors, is established beyond question, such power being incidental to the power to entirely prohibit traffic in, and consumption of, intoxicating liquors.</p> <p>9. Intoxicating Liquors — Common Nuisance — Injunction — “Liquors.”</p> <p>The term “intoxicating liquors,” as used in prohibition law, sec. 14, making place where such liquors are manufactured, stored, sold, etc., public nuisances, is, when said section is considered together with sections 6 and 17, to be taken as used interchangeably with the word “liquors” in section 1, and district court had jurisdiction to enjoin defendant brewing company from manufacturing and selling “Sierra Beverage,”' although said beverage is -not intoxicating.</p>

Moran, Judge. Action by F. Dean Bradley, doing business under the name and style of the Bradley Engineering Company, against the.Nevada-California-Oregon Railway. From judgment for defendant, and from order denying new trial, plaintiff appeals. Boards of directors always delegate the power to make ordinary contracts to general managers or superintendents, and such was the case with the respondent company.

Original proceeding in mandamus by E. S. Berney against W. B. Alexander and others, to compel the execution of a contract for highway construction. Held: then the phrase “of which he is a member” must relate back to the word “state,” for there is no sound reason why, if this phrase qualifies a part of the preceding phrase, it does not apply to every class therein enumerated.

Langan, Judge. Proceedings by Mabel Viola Sweeney against George A. Bartlett and others, as executors of the last will and testament of James G. Sweeney, deceased, substituted as defendants for deceased. From order and judgment for petitioner, defendants appeal. The court had no j urisdiction to entertain the motion. made herein, nor to take any steps thereunder, because the divorce decree was and is final, and not subject to appeal, motion for new trial, or modification.

<p>1. Assault and Battery — Recovery oe Damages — Precluded by Consent to Assault.</p> <p>A recovery of damages may not be liad in a civil action for ordinary assault and battery by one who lias consented to or participated in tlie acts causing tlie injury.</p> <p>2. Assault and Battery — Civil Action — Lack of Consent — Pleading.</p> <p>Lack of consent being an essential element of a civil action for damages for assault and battery, it is unnecessary that defendant affirmatively plead consent in justification of tlie acts charged in tlie complaint and denied in the answer.</p> <p>3. Appeal and Error — Harmless Error — Cross-Examination.</p> <p>In civil action for assault and battery, exclusion, on cross-examination of defendant, of question as to statement made by him, held cured by admission of testimony of one who heard the statement.</p>

<p>Appeal from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.</p> <p>Action by Zoe Clark against C. C. Turner and Hans Krauspe. Judgment for defendants, and plaintiff appeals.</p>

J. L. Taber, Judge. Action by A. J. McCone against David C. Eccles. From judgment for plaintiff and from order denying new trial, defendant appeals. The plaintiff in a replevin suit must not allege, but must prove, by a preponderance of the evidence, that he is entitled to the immediate possession of the property at the time the action is commenced. Kipp v. Silverman, 64 Pac. 884; Gallick v. Bordeaux, 78 Pac. 583; Strong v. Morgan, 67 Pac. 448; Frank v. Symons, 88 Pac. 561.

Bartlett, Judge. Action by Ruth Phillips against Pliny H. Phillips for divorce. Judgment for plaintiff. On order to show cause why defendant should not be punished for contempt for his misconduct in failing ,to pay alimony. From an order directing him to pay alimony, defendant appeals. An order is no part of the judgment, but, when set out in the judgment, it is a part of the judgment. Rev. Laws, 5362.

Ducker, Judge. Adolfo Sella was convicted of murder in the second degree, and from judgment of conviction and*from order denying new trial, he appeals. The drawing of the panel of jurors should have been conducted in the office of the county clerk. Rev Laws, 4930. The statute makes the drawing of a jury a public act, to enable persons who may so desire to be present.

Original application by Frank Ming for a writ of habeas corpus. Proposed amendments to the constitution must be entered on the journals of the respective houses of the legislature. Const. Nev., sec. 1, art. 16; State ex rel. Stevenson v. Tufly, 19 Nev. 391; Koehler v. Hill, 60 Iowa, 543; Cooley, Const.

C. Stoddard, Judge. Action by C. N. Miller against Mark Walser and Frank Margrave. Judgment for the defendants, and plaintiff appeals. Sanders, J., dissenting. By entering into a stipulation extending the time to file their brief, respondents recognized the appeal, and thereby waived any right they had to move for a dismissal.