dissenting:
The evidence presented at the preliminary examination is accurately summarized in the majority opinion. From that evidence I reach a different conclusion. It is true the evidence is principally, if not totally, circumstantial as to the fact of the killing, premeditation and deliberation, but a person can be convicted of a crime at trial, requiring proof beyond a reasonable doubt, solely upon circumstantial evidence (including murder in the first degree).
In State v. Van Winkle, 6 Nev. 340, 5-6-7 Nev. 648 (1871), at page 656 and 657, it is said: “To this end, it is proper that the jury be admonished in fitting terms that it is essentially necessary to the security of mankind that juries should convict, when they can do so safely and conscientiously, upon circumstantial testimony; and that otherwise, the very secrecy with which crimes are often committed would secure safety to the criminal; * * * and that if the jury is convinced by the evidence of such guilt beyond such [reasonable] doubt, it is equally their duty to convict, whether the result is produced by direct or by circumstantial evidence.” Accord: State *53v. Thompson, 31 Nev. 209, 217, 101 P. 557 (1909); State v. White, 52 Nev. 235, 285 P. 503 (1930); State v. Plunkett, 62 Nev. 265, 149 P.2d 101 (1944).
Evidence presented at the preliminary examination showed a violent, vicious killing of the officer. The time factor is particularly pertinent. At 2:23 a.m. both defendants were identified and observed at the crime scene in the deceased officer’s presence. At 2:30 a.m., seven minutes later, another officer arrived and found officer Fortye’s body under circumstances described in the majority opinion, including the driver’s license belonging to defendant Thomas Cornelius Howard lying on the hood of the police car. In the interval of those seven minutes the church organist observed a negro woman scuffling with the officer. No other persons were seen or observed at the scene. We recently said in Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963), the state is required only to present enough evidence so as to support a reasonable inference that the accused committed the offense. Accord: Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966); Farrell v. State, 83 Nev. 1, 421 P.2d 948 (1967). That burden of proof applies to murder in the first degree, as well as any other felony or gross misdemeanor. Are we now to say a different degree of proof is required to hold a defendant without bail than to bind him over for trial? Here, in my opinion, the state produced sufficient evidence of a circumstantial nature showing a reasonable inference that murder in the first degree had been committed, and that defendants committed it. There is in the record “evident proof or great presumption” of first degree murder sufficient to hold defendant Barbara Louise Howard without bail, and satisfy our constitutional requirement.