Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-23
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

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
Pau! Lovelace,
Defendant and APPELLANT.
Attorney General James G. Sweeney,
Attorney fer State.
Wr,. Woodhurn, Attorney for Appel
liant.
Defendant appeals from a judgment
rendered against him in the District
Court in and for Eiko county tor me
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-
ticn Of the testimony OF an accOmDlice
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 eaid Peul L0vcIace on the 1ft.1
dav OF MAY. 1904, IL tha uiqht tire CT
said DAY, or thereabouts, in the County
Of lIlkC. State Of NeEada without au-
thority CT the law and before the find
ing Cf his indictm eHt did wilful'y,
unlawfu7ly and burgIariouslv break
end enter the building Cf one Alexan-
der Burrel.'
Counsel for defendant in his or
usual form of brief found among the
papers in the case as they appear filed
in this court, is by us treated as
brew say:
"Appellant claims that this Indict
nient is not good at common law, be-
cause the words tcr tl,ereahouts', re-
late TO and qualify the words might
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: it is whether it is good under
the statute Of Nevada that governs
the subject. The subject is governed
bv the sections following concerning
indictments:
Section 4199. Complied Laws. 1909,
provides that the Indictment shall
cCnta1n "...... q 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"
has the following: THE words used
in an Indictment shall be construed
in the usual acceptance in common
ls.cg'1age. evceDt such words ard
phrases as are defined by law, which
ere to be construed according to their
legal m Gaming"
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 langua ge. without repetition,
and in such a Eanne- rs 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 G tc-T,,
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
~, IF
language: but that certainty to q 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, rhetori
cal or linguistic expression. But we
think the paragraph meets the
requirement Of the statute that ''the
acts constituting the otfense should b
charged IN ordinary and concise Ian
guage. and in such manner IS TO ena-
bic person Of common understand
ing 70 know what is intended" To
hold the Indictment rot 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. TO-
wit. to construe I'm the us'al accep-
lance in common language"
We think the defect Of the indict-
mert complained of vas such as in the
language of Section 4209, above OuO--
ed was 2 defect or inacrefection in
natter Of form, which dis not tend
to t,e pre- JUDGE Of the defendant"
The language Of the indictn ert
could doubtless he made more 2ccI-
rate. hr!t we thir!< it is not fatally
effective. IN brief of Counsel for de-
PENDANT the following correction is Of
fered:
IF the words or theroahouts' hed
been inserted after tho words on the
18th dav Of Nav, 1909. the indict-
ment could not he the subject of criti-
cism or assault
Perhaps the following nhra se0lOgv
might be considered an ir2nroveme t
nh or1Hc~v- Of fipt- q.