By the Court,
Talbot, J.:
The appellant was convicted of the crime of grand larceny and sentenced to the state prison for the term of three years. From the judgment of conviction and from an order denying his motion for a new trial, he has appealed.
He was jointly indicted with three others, Bart Knight, J. Hildebrandt, and Martin Miller, for the stealing of gold amalgam of the value of $400, the property of the Goldfield Consolidated Milling and Transportation Company, on the 30th day of January, 1910, or thereabouts. The defendant, Martin Miller, was dismissed .from the indictment and made a witness for the state, under the provi[446] sions of section 361 of the criminal practice act (Comp. Laws, 4326).
The defendant, M. J. Smith, appellant herein, was granted a separate trial. While he was indicted as a principal, he was proceeded against under the provisions of Compiled Laws, section 4665, upon the theory that he was an accessory before the fact. The same situation existed, so far as the other two defendants, Knight and Hildebrandt, were concerned. It was the theory of the state that a conspiracy had been entered into between Smith, Knight, Hildebrandt, and Miller to steal gold amalgam, from the mill of the Goldfield Consolidated Milling and Transportation Company; the actual theft to be committed by Martin Miller. On the evening of the 13th of February, 1910, Miller was arrested in the act of taking amalgam from the plates of the mill, by one Clarence A. Sage, a deputy sheriff of Esmeralda County and special officer for the Goldfield Consolidated Milling and Transportation Company. After the arrest of Miller, he was taken to the office of the attorneys of the company, where he made a confession of his participation in the act upon which the indictment was based.
The evidence of the conspiracy which the state sought to establish, and which it is contended upon the part of the state was established, was in substance as follows: The defendant Smith, who was an assayer in the town of Goldfield, approached Martin Miller, who was in the employ of the Goldfield Consolidated Milling and Transportation Company as an amalgamator, with the suggestion that he obtain gold amalgam from the mill. Miller informed Smith that he could not do this, because of the fact that he was under the surveillance of a watchman. ' Smith then informed Miller that he would arrange to have the watchman "fixed.” Subsequently Smith informed Miller that he had "fixed” the watchman through the agency of defendant Jake Hildebrandt, and that Miller would know that it was safe for him to proceed to take the amalgam when the watchman, W. M. [447] Zimmerman, would say to him, "All right.” The proof of the conspiracy to commit the crime charged in the indictment rested mainly upon the testimony of the defendant Miller and Zimmerman. The defendants Knight and Hildebrandt did not testify; but statements made by them were received in evidence, over the objection of counsel for the defendant, upon the theory that they were co-conspirators.
It has been strongly urged upon the part of the appellant’ that there was no corroboration of the testimony of the defendant Miller, and hence, under the statute (Comp. Laws, 4330), there was no sufficient proof of the crime charged as against the defendant Smith. It is contended upon the part of the state that there was sufficient corroboration of the testimony of Miller by reason of the testimony of the witness Zimmerman, who detailed a conversation had with the defendant Smith in which, according to the testimony of Zimmerman, Smith admitted his criminal relations with the defendant Miller. It has been seriously urged upon the part of counsel for the appellant that Zimmerman himself was an accomplice, and therefore his evidence could not be considered as corroborating that of Miller. We need not, we think, consider this contention at any length, for there was testimony upon the part of Zimmerman and other witnesses that Zimmerman was a feigned accomplice, and whatever participation he had in the affair was for the purpose of detecting the parties to the conspiracy. The question as to whether Zimmerman was or was not an accessory was submitted to the jury upon a proper instruction, and the finding of the jury as to that fact would in any event be conclusive.
In State v. Douglas, 26 Nev. 204, 99 Am. St. Rep. 688, the accused planned the larceny and suggested it to one King, who consented to join in the commission of the offense, but did not, and who kept the sheriff informed regarding the plans of the defendant, and was appointed his deputy. It was held that King was neither a [448] co-conspirator nor an accomplice, and that his evidence should not be treated as such. The conviction was sustained. (Campbell v. Commonwealth, 84 Pa. 187.)
The most serious question presented by the record in this case is in reference to the contention made by counsel for the appellant that the facts fail to establish a case of larceny, because it is shown conclusively that the amalgam was taken by the defendant Miller with the consent of the Goldfield Consolidated Milling and Transportation Company, through its authorized agents. In order to determine this question, it will be necessary to review portions of the testimony of the witnesses Miller, Zimmerman, and Sage. Miller, the real accomplice, and Zimmerman, the feigned accomplice, do not entirely agree in their important testimony. The jury were at liberty to believe Zimmerman. . They both state that Zimmerman said to Miller, "It’s all right.” .Anything that Miller understood- from this was in connection with' the plan of his confederates, Smith and Hildebrandt. Miller testified that Zimmerman told him to go ahead. The latter denied this, and testified regarding Miller: "Well, after I .told him, 'All right,’ he said, 'Did you see Jake?’ I says, 'Yes.’ He says, 'Well, how will we do it?’ I said, 'I supposed you had it all arranged.’ I was not supposed to have anything to do with it. He says, 'Well, I’ll take some off and give it to you, and you can cache it for me, and'I will get it as I go home.’ I says, 'No; I won’t do that. In the first place, I don’t believe it’s safe for me to handle it. It’s up to you.’ He says, 'How will we do it?’ I says, 'That’s up to you.’ I supposed from what Hildebrandt said that everything was arranged. ”
Regarding the conversation at the California Beer Hall the next day, Zimmerman testified: "Miller insisted on taking the amalgam and giving it to me, but I refused; told him I wouldn’t do it. I told him, in the first place, that Mr. Hildebrandt had told me that I would not have anything- to do, only turn my back on the proceedings, and that, in the second place, I didn’t think it was safe; [449] that the watchmen were possibly watched as much as the watchmen watched the workmen, and I wouldn’t do it. After we had argued’ the matter some few minutes, he said he would go ahead, all right, and take it himself. * * * Q. Did you give him any permission to remove that amalgam? A. No more than just as I have stated; that I just said, 'All right,’ and didn’t object to him doing it. Q. Did you give him any express permission; did you say, 'You may take this amalgam from this mill?’ or anything of that kind? A. No, there was no such conversation as that. * * * ’’
Zimmerman further testified: "I didn’t open the way. I didn’t make the proposition. They made the suggestion to me, and after I was advised I done what I did. Q. Didn’t you make a suggestion? A. No; Miller made the suggestion to me. Q; I thought you said to Miller, 'All right?’ A. I did. Q. Up to that time Miller hadn’t said a word, had he? A. He had not. Q. Wasn’t that suggesting to Miller that he go ahead and do this? A. Hildebrandt told me to say to Miller, 'All right,’so he could know from me personally that it was all right to go ahead. Q. You were acting upon instructions from Hildebrandt? A. I was.”
Sage, the detective of the company, testified regarding Zimmerman: "Told him not to touch any of the amalgam himself in any way. Told him not to give his consent to stealing, and to stand there and watch him, but not give his consent.”
Although both are near the border line, the Wisconsin decision, to which our attention has been called, may be distinguished from the present one. That case and others, such as State v. Hull, 33 Or. 57, 54 Pac. 159, 72 Am. St. Rep. 694, and State v. Waghalter, 177 Mo. 676, 76 S. W. 1028, holding that a conviction cannot be sustained if the owner of the property, for the purpose of entrapping the thief, advises and assists in planning and carrying out the taking, are distinguished from cases more similar tó the present one in 30 L. R. A. (N. S.) 951, where it is said regarding that case: "The trespass necessary to consti[450] tute larceny is absent, also, where a property owner, upon being informed of a design to steal his property, places it upon a platform where the intending thief is planning to get it, with instructions to his servant in charge of the platform to deliver it to the one who will call for it, so that when the intending thief arrives, he is treated as having a right to the property, especially where another agent of the owner, sent to arrange for the taking of the property, has agreed to the place proposed by the thief, under circumstances which involve a promise of assistance in carrying out the plan. (Topolewski v. State, 130 Wis. 244, 109 N.W. 1037, 7 L. R. A. (N. S.) 756, 118 Am. St. Rep. 1019, 10 Am. & Eng. Ann. Cas. 627.) ”
There the agents of the company owning the property assisted in planning for the taking and aided in the removal of the property; here, according to the testimony, the defendant designed the larceny, approached and induced his codefendant Miller to take the amalgam from the plates, and also planned to have the watchman, Zimmerman, approached and induced to allow the removal of the property. The design was by the defendant, and under his direction the amalgam was taken by his accomplice, Miller. Zimmerman, the watchman for the company, refused to advise regarding the method of taking, or to take or handle, the amalgam. He followed the instructions and plan of the defendant when he said to Miller, "It’s all right,” although at the instigation of the defendant and with the knowledge of the company he allowed it to be taken. It does not appear that he was authorized to assist, or assisted, in any way in the removal of the amalgam from the plates, or from the possession of the company. Having failed in his efforts to obtain advice and assistance from Zimmerman, Miller in its removal was acting as the agent of the defendant, and not under instructions from the company. The better reasoned cases hold that, where the accused designs the offense and does all the acts necessary for its commission without the actual aid of the owner of the property, he [451] is liable to punishment, although the owner may not prevent or may apparently acquiesce in its taking.
This question is treated extensively, and many cases are reviewed in a note at page 950 and adjoining pages of 30 L. R. A. (N. S.). It is there said:
"Likewise it has been held no defense to a prosecution for abstracting and embezzling money from the mails that it was taken from a decoy letter addressed to a fictitious person, and mailed by an inspector, for the purpose of detecting defendant if he should commit the crime. ”
"So, in Goode v. United States, 159 U. S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297, the court said: 'That the fact that the letter was a decoy is no defense is too well settled by the modern authorities to be now opened to contention. ’ And in Montgomery v. United States, 162 U. S. 410, 16 Sup. Ct. 797, 40 L. Ed. 1020, on the authority of Goode v. United States, supra, it was held no defense to a prosecution for embezzling and stealing letters containing money which had come into defendant’s hands as a railway postal clerk that such letters were decoys, and had been mailed for the purpose of detecting him. ”
" Consent of officers is no defense to a prosecution for burglary. Thus, in People v. Laird, 102 Mich. 135, 60 N. W. 457, the court said: 'The duty of the police lies beyond the protection of the public from a particular offense. It will not do to lay down the rule that, if a burglary is suspected, it is the duty of the police officers to prevent the commission of that particular offense, rather than lie in wait and secure the guilty parties. In such case the police do not encourage the commission of the crime, but simply apprehend parties bent upon the crime, who, in carrying out plans already formulated, rush into the arms of the officers. Even an informant accompanying his associates does not necessarily encourage their purpose, and it is not proper that he should, but he simply acquiesces in a plan already formed.’
[452] "In State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687, it was held no defense to a prosecution for burglary that one present with and assisting defendant in the burglary was a detective, if the detective did not instigate the crime, and it was committed, as to every ingredient of it; by the defendant; nor that the owner of the building, to whom the detective disclosed that it was probably about to be burglarized by the defendant with the feigned assistance of himself, acting for the purpose of securing evidence of the intended burglary and other crimes, did not take steps to prevent the crime, but passively allowed it to go on.
"And it is no defense to the prosecution of one who was the instigator and prime mover of an attempt to commit burglary, with intent to steal, that one to whom the defendant proposed the crime, and who acted as a confederate, informed the owner of the premises to be burglarized of the intended burglary, and the latter, for the purpose of catching defendant, told the informer not to insist on defendant’s coming, or to encourage him to come, but just to let him come along of his own free will and accord, and voluntarily, if he would; such conduct of the owner not amounting to a consent for defendant to enter the house or take property therefrom. (Robinson v. State, 34 Tex. Cr. R. 71, 29 S. W. 40, 53 Am. St. Rep. 701.)”
"So, it is no defense to a• prosecution for taking property by force or threats, and against the owner’s consent, in pursuance of a conspiracy for the purpose, that the prosecutor, after defendants had formed their guilty intent, laid a trap, and went voluntarily to their meeting place with money which was marked and furnished him by the prosecuting attorney for the purpose of entrapping defendants, who were thus entrapped into the hands of officers on the watch. (State v. Piscioneri (W. Va.) 69 S. E. 375.)”
"It was held no defense to a prosecution for an attempt to commit the crime of extortion that one from whom defendant sought to obtain money by threats of accusation of crime, and who paid the money to defendant, was [453] at the time acting as a decoy of the police, and trying to induce defendant to receive money from him under su.ch circumstances as would render defendant guilty of a crime, and enable the police to arrest and convict him of it. (People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, 9 Am. Crim. Rep. 82.)” On a prosecution for criminal libel, it was held no defense that the person libeled, having been informed and believing that the defendant designed to publish a libel, employed a detective to watch him and take every step to detect him if he committed the offense, and even to cooperate with him for that purpose, and allowed the crime, to be committed, for the purpose of detecting and prosecuting the defendant, but the latter was not solicited to commit the crime, nor was it even suggested to him. (People v. Ritchie, 12 Utah, 180, 42 Pac. 209.) ”
"It was held no defense to a prosecution under the pure food act, for an interstate shipment of misbranded bottled water, that the shipment on which the indictment was based was secretly ihduced by a government detective in order to create a basis for a criminal charge. (United States v. Morgan (C. C.) 181 Fed. 587.)”
"And on a prosecution for selling goods bearing counterfeit labels, it is no defense that the purchaser, acting with a special agent of the owners of the labels counterfeited, knew that the labels on the goods purchased were counterfeits, and made the purchase for the purpose of proving the fact of sale by the defendant and having him prosecuted. (People v. Hilfman, 61 App. Div. 541, 70 N. Y. Supp. 621.)”
Henry P. Dalton, long the assessor of Alameda County, Cal., has been convicted recently of bribery, after having been entrapped by the payment to him of marked currency.
" In larceny and other crimes, where a want of consent of the individual affected is an element of criminality, instigation or consent to the crime is a defense to prosecution, if it negatives one of the essential elements of the crime charged, though not otherwise. Thus, in Lowe v. [454] State, 44 Fla. 449, 32 South. 956, 103 Am. St. Rep. 171, the court said: 'The authorities are abundant and the law unquestioned, that a taking by the voluntary consent of the owner or his authorized servant or agent, even though with a felonious intent, does not constitute larceny. But where the criminal design originates with the accused, and the owner does not in person or by an agent or servant suggest the design, nor actively urge the accused on to the commission of the crime, the mere fact that such owner, suspecting that the accused intends to steal his property, in person or through a servant or agent, exposes the property or neglects to protect it, or furnishes facilities for the execution .of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished, will not amount to a consent in law, even though the agent or servant of such owner, by his instructions, appears to cooperate in the execution of the crime. ’
"And in State v. Adams, 115 N. C. 775, 20 S. E. 722, it is said that the court correctly told the jury that, 'if there was the guilty intent previously formed by the defendant to steal certain property, and he carried out such design previously formed, he is guilty, notwithstanding the owner of the property was advised of the intended larceny, appointed agents to watch him, and could have prevented the theft, but did not do so, and allowed him to commit the theft, with a view of having him subsequently punished, ’
" So, in Crowder v. State, 50 Tex. Cr. R. 92, 96 S. W. 934, it was held no defense to a prosecution for the theft of mules that the owner had employed a detective in order to catch defendant, who, he believed, had been stealing his stock, and that the detective, by direction of the owner, apparently encouraged defendant’s design and led him on, provided neither the owner nor the detective induced the original intent on the part of the thief, though, if the intent and purpose to steal originated with, and was suggested by, the detective, it would be [455] a taking with the consent of the owner, and the defendant would not be guilty. ”
In the note at the end of the Topolewski case (10 Am. & Eng. Ann. Cas. 631) it is said: "It is no doubt true, as a general proposition, that larceny is not committed when property is taken with the consent of its owner, but it is difficult in some instances to determine whether certain acts constitute, in law, such consent. (People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238.) Under the authorities, the rule seems to be well established that, where the criminal design originates with the accused, and the owner does not in person or by an agent or servant suggest the design, or actively urge the accused on to the commission of the crime, the fact that such owner, suspecting that the accused intends to steal his property, in person or through a servant or agent exposes the property, or neglects to protect it, or furnishes facilities for the execution of the criminal design under the expectation that the accused will take the property or avail himself of the facilities furnished, and will in consequence thereof be captured or detected, does not amount to a consent in law, and the taking under such circumstances, amounts to larceny. (Reg. v. Lawrence, 4 Cox C. C. 438; Rex v. Eggington, 2 B. & P. 508, 2 Leach C. C. 913, 2 East, P. C. 494, 666; People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238; Lowe v. State, 44 Fla. 449, 32 South. 956, 103 Am. St. Rep. 171; Varner v. State, 72 Ga. 745; State v. Duncan, 8 Rob. (La.) 562; State v. Adams, 115 N. C. 775, 20 S. E. 722; State v. Covington, 2 Bailey (S. C.) 569; Sanders v. State, 2 Shan. Cas. (Tenn.) 606; Alexander v. State, 12 Tex. 540; Pigg v. State, 43 Tex. 108.) See, also, Rex v. Ady, 7 C. & P. 140, 32 E. C. L. 469; Commonwealth v. Nott, 135 Mass. 269; State v. West, 157 Mo. 309, 57 S. W. 1071; State v. Jernagan, 4 N. C. 483; Dodge v. Brittain, Meigs, 84; Conner v. State, 24 Tex. App. 245, 6 S. W. 138; Robinson v. State, 34 Tex. Cr. 71, 29 S. W. 40, 53 Am. St. Rep. 701. And this is so, though the agent or servant of such owner, by his instructions, [456] appears to cooperate in the execution of the crime. (Lowe v. State, 44 Fla. 449, 32 South. 956, 103 Am. St. Rep. 171.) ”
Over the citation of authorities, it is stated in 25 Cyc. p. 44: "The fact that an agent of the owner acts as a supposed confederate of the thief is no defense'to the latter, provided the original design was formed independently of such agent. So, where a detective employed by the owner acts with the thief, the taking is none the less larceny. And so, where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorized by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed.”
In Bishop’s New Criminal Law, vol. 1, sec. 262, the author says: "If a man suspects that an offense is to be committed, and instead of taking precautions against it sets a watch and detects and arrests the offenders, he does not thereby consent to their conduct, or furnish them any excuse. And it is not ordinarily otherwise, though the watching is accompanied by artifice. Thus, in larceny, exposing property or neglecting to protect it, under the expectation that a thief will take it, or furnishing any other facilities or temptations to such or any other wrongdoer, is not a consent. in law. Burglary furnishes a frequent illustration, in cases where those intending to break into a house and steal tempt the occupant’s servant to assist them, and, after communicating the facts to the master, he is authorized to join them in appearance. For what the burglars personally do under such an arrangement, they are by all opinions responsible; but the English doctrine seems to be that if the servant opens the door while they enter they are not guilty of breaking. In principle, probably they are not so if the servant is to be deemed the master’s agent, not theirs, in opening the door. But as they had requested him to join them, and the master’s consent was merely for their detection, the better view would appear, to be to consider him their agent in the breaking, and hold them responsible for it. See Alexander v. State, 12 Tex. [457]*457540; Rolland v. Commonwealth, 82 Pac. 306, 22 Am. Rep. 758.”
Some of the cases seem to make a distinction between the assistance rendered by an officer of the law and that rendered by the owner of the property, to aid the accused in the execution of his design to steal. Here, if it be claimed that Sage, who was a deputy sheriff, was acting for the company, instead of as an officer of the law, still the circumstances warrant the conviction of the defendant. Although employed by the company to protect its property, it is not shown that he and Zimmerman were authorized by the company to persuade and induce Miller or the defendant to take the property, or to aid in its removal. And for the purpose of detecting crime and entrapping the perpetrators they allowed the- amalgam to be taken, but did not plan, urge, or advise its taking, or handle it, or assist in its removal.
Under the testimony, indicating that the offense was planned by the defendant, and that every act necessary to constitute grand larceny was done by his confederates, without the taking of the amalgam being suggested or advised by the company or its agents, more reason appears for holding the defendant guilty than in cases where accused persons have been inveigled into selling liquor unlawfully or committing other offenses, and especially so when they did not know that they were acting contrary to law. If any detective of the company had designed or planned its taking, or had induced the defendant to take it and had assisted in its removal, grounds would exist for his exculpation which do not appear in this case. If, instead of acting as a feigned accomplice, Zimmerman had acted as a real accomplice, and without notifying the company had done everything which he did according to his testimony, the design being by the defendant and the taking in pursuance of that design by his accomplice Miller, the conspiracy and acts resulting in the larceny of the amalgam, the thought, intent, and deed constituting the crime for which they may justly be held responsible would not have been less complete.
[458] It is claimed that the court erred in allowing witnesses to testify regarding the statements made by Bart Knight at the house of Zimmerman, where Zimmerman had asked Knight to go and receive a share of the money obtained from the amalgam, and where two men had been secreted in a closet in advance, so as to overhear and note down the statements of Knight. According to the testimony, the declarations of Knight, made at that time, related in part to the taking of' the amalgam and the division of the spoils, which had been agreed upon as a part of the conspiracy, which was not ended, for amalgam was taken once later. (State v. Ward, 19 Nev. 307, 10 Pac. 133.) These declarations, with the statements made to Knight by Zimmerman, tended to prove that Zimmerman acted as a feigned, instead of a real accomplice, so that his testimony would be allowed to support that of the real accomplice, Miller, and warrant the conviction of the defendant. (Campbell v. Commonwealth, 84 Pa. 187; People v. Farrell, 30 Cal. 316; State v. Douglas, 26 Nev. 196, 99 Am. St. Rep. 688.)
Some of the statements made by Knight at that time, regarding the defendant, in no way related to the conspiracy, and were not properly admissible. Among these was the one by Knight that he had made thousands and thousands of dollars for the defendant. The inference could be that this related to prior transactions, but whether legitimate or illegitimate does not appear. While admitting that testimony indicating the making of this or other statements not relating to matters connected with the conspiracy, and not tending to- show that Zimmerman was acting as a feigned accomplice, was not proper evidence, no specific objection was made which 'required the trial court to segregate them from other declarations, which were admissible. A general objection to the admission of testimony, unless the whole of it is incompetent, is not sufficient. It is necessary to specifically point out the objectionable portion. (Smiley v. Pearce, 98 N. C. 185, 3 S. E. 631; Holmes v. Lumber Company, 150 Mass. 535, 23 N. E. 305, 6 L. R. A. 283; State [459] v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608, and note.)
An objection to evidence on a specific ground waives other grounds. (Bailey v. Railroad Company, 3 S. D. 531, 54 N. W. 596, 19 L. R. A. 653.)
Objection is also made to the testimony of Sage, regarding the statements made to him by Zimmerman concerning the taking of the amalgam, and conversations between Zimmerman an’d Miller. These also tended to prove that Zimmerman was not acting as a real accomplice.
It is further claimed that the court erred in the admission of the testimony of Allred, the deputy sheriff, who stated that Hildebrandt said upon his arrest that "Bart was a big boob, or.he never would have been caught,” and that if he had done as he wanted him to he never would have gone up there. The parties charged being under arrest, the conspiracy was at an end. This testimony was not properly admissible on the trial of this defendant, and ought to have been excluded; but the error in its admission appears to be harmless, because the witness did not mention the defendant, and the statements said to have been made by Hildebrandt were only against the interests of Hildebrandt and Knight.
The same principle would apply to the admission of the confessions of Miller that he had taken the amalgam, a fact testified to directly by witnesses on the trial, and a fact apparently conceded, and further proof of which would not injure the defendant. Errors which do not actually prejudice or injure the defendant do not justify a reversal. (State v. Williams, 28 Nev. 421.)
Following the recommendation of the American Bar Association, the late legislatures in some of the states have passed statutes somewhat similar to section 589 of our criminal practice act (Comp. Laws, 4554), which provides that no error or mistake in criminal proceedings shall render the same invalid, unless it had actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. This section has been in force here for half a century, having been passed by the [460] first territorial legislature, in 1861, and is amplified in sections 452 and 619 of our new criminal procedure, effective January 1, 1912.
We find no prejudicial error in the record, and the judgment of the district court is affirmed.