Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-20
N THE SUPREME COURT OF THE
STATE OF Nevada.

~ THE SUPREME COURT OF THE
STATE OF Nevada. |
Appealed From the Fourth Judicial
District Court, Eiko County, Ne1 !
vada.
The State of Nevada,
Plaintiff and Respondent,
against
Paul LoveIace,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney for State.
VIM. Woodburn, Attorney for Appel
lant.
Defendant appeals from q 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 insufficiencv of the in
dictment on which the judgment was
based: ard
Second the absence Of corrobOrl-
tiCn Of the testimony of an accCmDli"e
who testified against the defendant.
Under the first head the point ma De
is on the proper Interpretation of the
following clause in the indictment:
Tho said p2ul Iovelace on the 11tn
day of May, 1904, in the night time Of
said t2y, or tifercabouts, in the County
Of E'RO State Of Nevada without au-
thority Of the law and before the find
inc Of this Indictment. did wilfUllT,
unlawfGlly and burglariously break
and enter the building of one AleXan-
der BurrPll.'
Counsel for defendant in his or
their brief if an unsigned paper in the
us'Ia! form Of brief found among Tho
p9pors in the case as they appear filed
IN this court, is by US treated as
brew, say:
''ADnellant claims that this Indict
ment is not good at common law. he
cause the words 'or thereabouts', ro-
late to and qualify the words might
tinne'.''. This question was not raised
in the court below hut is here pre-
sent I'd for the first time.
The question is not whether the in
dicrment would be good at common
law: i is whether it is good under
the statute C Nevada that governs
the subject The subject is governed
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, 1901.
has the following: The words used
in an Indictment shall be construed
in the usual acceptance in common
/ language. exceDt such words AMI
phrases as are defined by law, which
are to be construed according to their
legal meaning"
Section -ooS Compiled Laws. 1900
provides: g"
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 manne~ as to enable A
person of common understanding 10
know what is intended ....'
Section 1909 is as follows:
mo Indictment shall be deemed
insufficient. nor shall the trial judg-
ment. or the proceeding thereon. be
affected, by reason of any defect or
imperfection in matters C CCrr.,
which shall not tend to the prejudice
OF the defendant;. northumberland.
The foregoing enactments show that
1t 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 ertainty 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 a departure from the
best models of grammatical, rhetor-
cal or linguistic expression. But we
think the paragraph meets the
requirement of the statute that "the
acts constituting the offense should BIO
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 is.
We think. to keep within the statu-
| tory command. as expressed above
in section 42O6, or at least not to de-
: part too far from such command. TO-
| wit. to construe Gin 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 a 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 accd-
rate: but we thirk it is not fatally
defective. In brief of Counsel for de-
PENDANT the following correction is Of
fered: .-...- .-....
eff the words or Whereabouts had
been inserted after the words 'On the
| 18th dav of Nav, 1904, the indict
ment could not be the subject of crit
cism or assault ....
Perhaps the following phra seology
might be considered an improveme j
on the phraseology of the indictment
The said Paul LOvelace did in thu
mint TINA of the 11th dav Df Nav