Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-07
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

Appealed From the Fourth Judicial
District Court, EIko County, Me-
vada.
The State of Nevada,
Plaintiff and Respondent,
against
Paul Lovelace,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney for State.
VIM. Woodburn, Attorney for Appel.
liant.
Defendant appeals from a judgment
rendered against him in the District
Court in and for Elko county tor the
crime Of burglary: and he assigns two
reasons why. as he claims, judgment
should be reversed.
First, the insufficiency of the in
dictment on which the judgment was
based and
Second, the absence Of corrobora-
ton of the testimony Of an accomplish
who testified AGAINST the defendant.
Under the first head the point made
is on the proper Interpretation Of the
following clause in the Indictment:
The said Paul LOyelace on the f1t1
cay of May. 1904, in the light time of
said day, or thereabout5, in the County
Of Elko, State of Nevada. without au-
thoritv OF the law and before the find
ing Of this Indictment did wilfully
unlawfully and hurelariously break
and enter the building of one Alexal-
der Burrell'
Counsel for defendant in his or
their brief. if an unsigned paper in the
-, I>rIIf :! :,
papers in the case as they appear filed
in this court, is by us treated as a
brew. say:
appellant claims that this Indict
ment is not good at common law, be-
cause the words 'or thereabouts'. re-
late to and qualify the words might
time. This question was not raised
in the court below. hut is here pre-
scented for the first time.
The question is not whether the in
dictment would be good at common
law: it is whether it is good under
the statute Of Nevada that governs
the subject. The subject is governed
by the sections following concerning
indictments:
Section 4199, Compiled Laws. 1909.
provides that the Indictment shall
contain "..... statement OF
the acts constituting the offense. III
ordinary and concise language. and in
such manner as 10 enable person II
common understanding to know what
is intended"
Section 1905. Compiled Laws. 1900,
has the following: The words used
in an Indictment shall be construed
in thes usual acceptance in common
language. except such words and
phrases as are defined by law, which
are to be construed according to their
legal meaning"
Section 420S, Compiled Laws, 1900,
'Sixth-That the act or omission
charged as the offense is clearly and
distinctly set forth in ordinary and
concise language. without repetition.
and in such a manner as to enable a
person Of common understanding 10
know what is intended. .........."
Section 1909 is as follows:
| NO indictment shall be deemed
insufficient, nor shall the trial. judg-
ment. or the proceeding thereon. be
affected. by reason of any defect or
! imperfecton in matters Of form,
/ which shall not tend to the prejudice
/ of the defendant; ."
The foregoing enactments show that
| it was the intention of the legislature
| of Nevada that in constituting indict
! ments the courts should not indulge
/ in a tOo-eXact and over-nice view Of
! language; but that certainty to a com
/ mon intent was all that should be
required.
True. in the paragraph of the in
dictment under discussion, there is
something of departure from the
! best models of grammatical, rhetor
cal or linguistic expression. But we
think the paragraph meets the
J requirement of the statute that 'the
acts constituting the offense should DC
, charged in ordinary and concise Ian
! guage. and in such manner as to ena
BILE a person Of common understand
! ing to know what is intended Tt
hold the Indictment not fatally bad is
We think. to keep within the statU
tory command. as expressed above
| in section 1906 or at least not to de
part too far from such command. 70
/ wit. to construe lin the usual accep
lance in common language"
We think the defect of the indict
| ment complained of was such as in tn,
language of Section 4209. above quo-
4 ed was a defect or inprefection il
matter of form. which did not tene
to the prejudice of the defendant"
The language of the indictner
could doubtless be made more aces
rate: but we think it is not fatal
defective. In brief of Counsel for de
PENDANT the following correction is OF
fered:
} IF the words or thereebouts' ha
been inserted after the words 'on tn
18th dav of May. 1904 the indie
ment could not be the subject of crit
| cism or assault
Perhaps the following Dhraseolog
might be considered an improveme
on the phraseol0gv OF the indictment
The said Paul Lovelace did in t.
night time of the 18th day Of Ma
s 1904, or in the night time of SON