Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-26
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

IN THE SUPREME COURT OF THE
STATE OF NEVADA.
District Court, EIko County, Ne1
vada..
Tire State of NevG =,
Plaintiff and Respondent,
against
Paul LoveIace,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney for State
VIM. WOODBURY., Attorney for Appel
liant.
Defendant appeals from a judgment
rendered against him in the District
Court in and for Elko county for the
crime Of burglary: and he assigns two
reasons why, as he claims, judgment
should be reversed.
First, the insutficiency Of the in
dictment on which the judgment was
based: and
Second, the absence of corrobora-
ton of the testimony Of an accOmD!ice
WfH testified against the defendant.
Under the first head the point made
Is On tt proper Interpretation Of the
following clause in the Indictment:
The said Paul Lovelace on the 1ftn
day Of May, 1904, il the night time CT
said DAY, or Whereabouts. in the County
Of E,kO. State Of Nevada without au-
thoritv Of the law and before the find
ing of this indictment, did wilfuly
unlawfully and burglariously break
End enter the building of one Alexah-
der Burreu'
Counsel for defendant in his or
their brief if an unsigned paper in the
usual form of brief found among the
papers in the case as they appear fled
In this court, is by us treated as a
brew. say:
"kDDelIant claims that this Indict-
r7ant is not good at common law, be-
cause the words or tl7ereabouts', re-
late to and qualify the words night
time. This question was not raised
in the court below. but is here pre-
scented for the first time.
The question is not whether the in
dictment would be good at common
law: il 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 41a9. Compiled Laws, 1909
provides that the Indictment shall
contain ..... a statement OF
the acts constituting the offense, in
ordinary and concise language. and in
such manner as TO enable a person Of
common understanding to know whit
is Intended
Section 4206, Compiled Laws, 1900
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 42os. Compiled Laws, 1900
provides: ''...............
Sixth-That the act or omission
charged as the Offense is clearly and
distinctly set forth in ordinary aud
concise language, without repetition
and in such a manner as to enable 4
person of common understanding to
know what is intended .....'
Section 1909 is as follows:
mo indictment shall be deemed
insufficient. nor shall the trial. judg-
ment. OF the proceeding thereon. be
affected. by reason of any defect or
imperfection in matters Of form,
which shall not tend to the prejudice
of the defendant; Observation-Disclosures"
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 aeon
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, rhetori-
cal or linguistic expression. But we
think the paragraph meets the
requirement Of the statute that ''the
acts constituting the offense should be
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" To
hold the indictment not fatally bad vs.
we think, to keep within the statu
tory command. as expressed above
III SoCtlOu fAVO, OF at ledSl uOI 10 Ce
part too far from such command. TO
wit, to corstrue 'in the usual accep
lance in common language"
We think the defect of the indict
ment complained of was such as in the
language of Section 1909. above quot
ed was "defect or imprefection in
matter Of form, which did not tend
to the prejudice Of the defendant"
The language of the indictment
could doubtless be made more accl
rate: but we think it is not fatally
defective. In brief of Counsel for de
PENDANT the following correction is OF
| fered:
IF the words or thereabouts' rs;
| been inserted after the words ON tn
[ 18th day of May. 1904. the indict
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