Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-09
o.-THE SUPREME COURT OF THE
STATE OF .uEVADA.

=. THE SUPREME COURT OF THE
STATE or .SEVADA.
Appealed From the Fourth Judicial
District Court, Elko County, Me-,
vaGa.
The State of Nevada, I
Plaintiff and Respondent,
against
Pau! LoveIace,
Defendant ard Appellant.
Attorney General James G. Sweeney,
Attorney fer State.
VIM. Woodburn, Attorney for Appel
liant.
Defendant appeals from judgment
rendered against him in the District
Court in and fer Elko 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-
ton of the testimony Of an accomDIice
who testified AGAINST the defendant
Under the first head the point made
! is on the proper Interpretation OF the
/ The said Paul Love!ace on the 11tn
| day Of May, 1904, in the night time Of
said day, or Whereabouts, in the County
/ CT Elko, State of Nevada, without al
! thoritv of the law and before the find
ing of this Indictment did wilfully,
! unlawfully and burelaricusly break
aud enter the building of one Alexal-
! der Burrell.'
1afn lii
their brief. if an unsigned paper in the
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 Indct
ment is not good al common law, be-
cause the words or thereabouts', 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: it is whether it is good under
the statute of Nevada that governs
the subject The subject is govern ed
by the sections following concerning
indictments:
Section 4199, Compiled Laws. 1909
provides that the Indictment shall
contain ........ a statement OF
the acts constituting the cffense. III
ordinary and concise language. and in
such manner as TO enable person II
common understanding to know what
is intended"
Section 42O6, Complied 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
arr to be construed according to their
! lecal meaning"
: Section 42OS. Compiled Laws. 1900
provides: g"
S;xth-That the sct or omission
charged as the offense is clearly and
distinctly set forth in ordinary and
; concise language without repetition
and in such manner as to enable a
person of common understanding 70
, know what is intended. .......'
: Section 1909 is as follows:
mo indictment shall be deemed
insufficient nor shall fhe trial. judg
meDt. or the proceeding thereon. be
affected. by reason of any defect OF
!. imperfectiOn in matters c. .or'....,
which shall not tend to the prejudice
of the defendant; .............
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-eNact 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
3 something of a departure from the
best models of grammatical, rhetoTi
cal or linguistic expression. But we
think the paragraph meets the
;. J requirement of the statute that 'tht
acts constituting the offense should bf
charged in ordinary and concise Ian
guage, and in such manner as to ena
BILE person of common understand
ing to know what is intended" II
hold the indictment not fatally bad is
J. We think. to keep within the stat,'
tory command, as expressed above
in section 4e06, or at least not to dc
part too far from such command. &c
5 wit. to cOnstrue lin the usual accei
lance in common language"
We think the defect OF the lndlc'
ment complained of was such as in tn
# language of Section 4209, above quo
s ed was ''defect or imprefection il
matter of form, which did not ten
to the prejudice Ct the defeneant.'
{. The languag &c of the indictnen
8 could doubtless be made more acc,
% rate: but we think it is not fatal
"a detective In brief of Counsel for d.
- PENDANT the following correction is o
81 fered:
20 eff the words or Whereabouts ha
been inserted after the words 'on r.
18th dav of Nav, 1904, the indie
ment could not be the subject of crit
cism or assault
Perhaps the following rhraseoloe
might be considered an improveme
on the phrasnolcgv Of the indictmen