Under the applicable statute, sec. 11328, vol. 5, N.C.L. 1929, the names of witnesses known to the district attorney at the time of filing the information shall be endorsed thereon, and the names of such other witnesses as may become known to him thereafter and before the trial shall be endorsed upon the information "at such time as the court may, by rule otherwise prescribe." The defendant's attorney having been apprised of the names of the additional witnesses at least three days before trial, such notice conformed to the law, as expounded in State v. Monahan, 50 Nev. 27, 249 P. 566, cited by both the appellant and the respondent. In that case, the motion to add certain names of witnesses was made the morning of the commencement of the trial, and the court granted the motion, but also ordered a continuance of the trial for three days, thus disclosing that the trial court in the Monahan case, and this court in approving such action on appeal, considered three days before trial a reasonable time to enable the defendant and his attorney, or attorneys, properly to prepare for his defense after knowing of the additional witnesses.
Neither the name of Lawrence Bianchini nor the name of Richard H. Cowles, Jr., has ever been endorsed upon the information, and the order of the trial court permitting them to testify would appear to be an abuse of discretion, in that no extenuating circumstances, or any circumstances, bring the situation within any of the exceptions mentioned in the statute. Thus, the situation was radically different from any presented in the case of State v. Monahan, 50 Nev. 27, 249 P. 566. The court erred in admitting the testimony of Ray J. Root and Ollie Lee Thomas that the defendant had stated to them that he was a Mexican.
If he had sufficient assets to withstand any civil assaults of the complaining witness, McDonald, or other customers, then he surely could not be guilty of intentionally stealing his money. The state relies upon the following cases in its prosecution against defendant: People v. Meadows, 199 N.Y. 1, 92 N.E. 128, People v. Toohill, 208 App. Div. 174, 203 N.Y. Supp. 457, State v. Cook, 130 Or. 552, 278 P. 936, and State v. Monahan, 50 Nev. 27, 249 P. 566. Each of these cases, and every other case involving the crime of larceny as bailee by a broker, is distinguishable from the case against the defendant herein. In considering the law of this state concerning the crime of grand larceny as bailee we beg, at the outset, to call the court's attention to the following principles of law as announced in the following decisions: "Larceny consists of taking and carrying away another's property with felonious intent."
Defendant acted as agent for Kay, and it was his duty to use the money entrusted to him in payment of the stock. The following cases, based upon similar transactions, hold that embezzlement was the proper charge to make: People v. Meadows, 199 N.Y. 1 [ 92 N.E. 128]; State v. Monahan, 50 Nev. 27 [ 249 P. 566]; State v. Cooke, 130 Or. 552 [ 278 P. 936]. Appellant urges that the testimony shows that the money was not handed to appellant for any specific purpose; hence the crime of embezzlement was not proven. He relies upon a statement made by Kay on a former occasion, from which the jury might reasonably understand that the use to which the money was to be applied was not mentioned when the payments were made.
[U]nder statutes such as ours the indorsement of names of witnesses upon an information is largely a matter of discretion with the court; and, in the absence of a showing of abuse, or that some substantial injury has resulted to the accused, an order permitting such indorsement, even after the trial has commenced, does not constitute of itself reversible error. State v. Monahan, 50 Nev. 27, 35, 249 P. 566, 569 (1926). However, in the instant case, the State never endorsed Wraxall, neither before, nor during the trial.
NRS 173.045(2). Hess v. State, 73 Nev. 175, 313 P.2d 432 (1957); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948); State v. Monahan, 50 Nev. 27, 249 P. 566 (1926). THE OUT-OF-COURT STATEMENTS
This court has previously, and consistently, ruled in analogous situations that "[t]he weight of authority is to the effect that under statutes such as ours the indorsement of names of witnesses upon an information is largely a matter of discretion with the court; and, in the absence of a showing of abuse, or that some substantial injury has resulted to the accused, an order permitting such indorsement, even after the trial has commenced, does not constitute of itself reversible error." State v. Monahan, 50 Nev. 27, 35, 249 P. 566, 569 (1926). Accord: Hess v. State, 73 Nev. 175, 313 P.2d 432 (1957); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948).
NRS 205.300; NRS 171.206; State v. Trolson, 21 Nev. 419, 32 P. 930 (1893). See State v. Monahan, 50 Nev. 27, 249 P. 566 (1926) and State v. Compton, 450 P.2d 79 (Idaho 1969). Affirmed.
The court may exercise its discretion liberally in allowing additional names subject, however, to possible prejudice to the defendant which can usually be cured by giving him additional time to prepare for their testimony. Dalby v. State, 81 Nev. 517, 406 P.2d 916 (1965); State v. Monahan, 50 Nev. 27, 249 P. 566 (1926). No complaint is made by Gallegos that he was prejudiced by the adding of the witnesses to the list he already had.
Tucker v. State, supra, at 971, and if admitted, the trial court must inform the jury that they may consider it only for the limited purpose for which it is admitted. Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965); State v. Monahan, 50 Nev. 27, 249 P. 566 (1926); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918). The record fails to demonstrate any of these requirements were followed. The evidence just "snuck" in, after the trial court had ruled it inadmissible, but without objection by defendant, even though he was specifically put on notice by the court that it would not "anticipate any rulings on objections" to such evidence.