Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-01
IN THE SUPREME COURT OF THE
STATE OF NEVADA.


Appealed From the Fourth Judicial
District Court, Eiko County, Ne.
vada.
The State of Nevada,
Plaintiff and Respondent,
against
Paul Lovelace,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney fer State.
VIM. WOODBURY., 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 corrohora-
ti0n of the testimony of an aCcomplice
who testified against the defendant.
Under the first head the point made
is on the proper Interpretation of the
following clause in the indictments:
The said Paul Lovelace On the 1ftn
day Of May. 1904, IN the right time of
saiL ciey. or Whereabouts, in the County
OF ElkO. State Of Nev ada. without 9I-
thoritr of the law and before the find
ing OF this indictment. did wilfulIy.
unlawfu7ly and burglariously break
AMI enter the building of one AleXaA-
der Burre!l'
Counsel for defendant in his or
their brief if an unsigned paper in the
usual form OF brief found among th9
pa pers in the case as they appear filed
in this court, is by us treated as
brew. say:
"AppeI'ant 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
tin1e'.". This question was' not raised
in the court below, but is here pre-
scented for the fist 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 govern i
by the sections following concerning
indictments:
Section 4199. Compiled Laws, 1900
provides that the Indictment shall
contain ........ statement OF
the acts constituting the offense. in
ordinary and concise language. and IN
such manner as TO enable a person If
common understanding to know what
is Intended
Section 4206. Compiled Laws, 1909,
has the following: "The words used
in an Indictment shall be construed
in the 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 1908, Compiled Laws, 1900,
provides: ..........
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 Ia
know what is intended. .........."'
Section 1909 is as follows:
mo Indictment shall be deemed
insufficient. nor shall the trial. judg.
affected. by reason Of any defect or
lMpCElECllOu III "dtlCIS Ot lOIIu
which shall not tend to the prejudice
Of the defendant: ~. ~. ....l >"
1.-the foregoing enactments show thai
it was the intention Of the Legislature
of Nevada that in constituting indict-
ments the. courts should not indulge
IN a. too;exact ana 6veriniTes view OF
language; but that certainty to a com
mon intent was all that should be
required. - - =
True. in the paragraph a the in
dictment under discussion. there is
something Of a departure from the
best models of grammatical. rhetori'
cal or linguistic expression. But we
think =, the paragraph meets the
requirement of the statute that ''the
acts constituting the ofense should be
e4iAfsed 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" Tc
hold the Indictment not fatally bad IS
we think to keep ~itkit Athe statu
tory command, az expressed above
i in section 1906, or at lerst not to de
part too far from such command. 70
I 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 quot
| ed was defect or imprefection il
matter Of form, which did not tent
to the prejudice of the defendant"
The language of the indictnep
could doubtless be made more accl
rate: but we think it is not FATAL
defective In brief Of Counsel for dc
PENDANT the following correction is OF
fered: s.3# 49,
eff the words or Whereabouts 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 phraseolog
might be considered an improveme
on the phraseology of the indictment
The said Paul LOyelace did in tt
night time of the 18th day of Ma
! 1904 Or in tho night time of SON