Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-19
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

STATE OF NEVADA.
Appealed From the Fourth Judicial
District Court, Elko County, Me-
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
liant.
Defendant appeals from a judgment !
rendered against him in the District !
Court in and for Elko county tor he !
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 accOmDHce
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 Loyelace on the 11tn
day Of May, 1904, in the night time OF
said DAY. or thereabouts. in the County
of ElkO. State of Nevada without al
thOrity of the law and before the find
ing Of this Indictment. did wilfully,
unlawfu7ly and buTglariously break
and enter the building of one Al6Xan-
der Burrel.'
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 filed
in this court. is by us treated as a
brew say:
'Appellant claims that this Indict-
ment is not good at common law, be
cause the words or tl1ereabouts', 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
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. 1900
! has the following: The words used
in an Indictment shall be construed
in the usual acceptance in common
/ language, except such words ana
phrases as are defined by law. which
are to be construed according to their
, legal meaning
Section 42oS, Compiled Laws. 1900
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 10
! know what is intended "
Section 1899 is as follows:
No indictment shall be deemed
insufficient. nor shall the trial. judg-
ment, or the proceeding thereon. he
! affected. by reason Of any defect or
| imperfectiOn in matters Cf f0r~'
! which shall not tend to the prejudice
| OF the defendant. NEUTRALITY-SUSPICIOUS."
The foregoing en2ctments show that
! it was the intention Of the legislature
] of Nevada that in constituting indict-
ments the courts should not indulge
+ in t0O-ov9ct and 0Ver-niee view Of
. language; but that certainty TO a COM
: mon intent was all that should be
required.
True. in the para granh CT the in
dictment under discussion. there is
something of p departure from the
best models of grammatical. rhoto7i-
cal or lir@uis'ic expression. But we
think the para granh meets the
! requirement 0f the statute that the
acts constituting the 0ffeuse should 30
chareed in ordinary and concise Ian
/ gUage end IN such manner as 10 ena-
BILE a person Of common understand
. inc 70 know what is intended" To
hold the Indictment not fatally bad IS
We think. tc keep within the etat't-
tory c0mmand. as expressed above
/ in section 42"f. or ct least not - do
part too far from such commend. 20
vii to consrrue in the usual accep
{ .it' I IL 'NIiL-t4i'fI Lt-l15 t4tlf-1
We think the defect Of the indict.
ment complained of was such as in the
language Of Section 1909, above quo
ed was a defect or. in7prefection ir
natter Of form, wi7;>h did rot tend
TO the prejudice CT tire defendant"
The language Of the in6ictr'e r1
could doubtless be made more accJ
rate: h,lt we think it IS not fatally
detective In brief Of Counsel for de
PENDANT the following correction is Of
fered.
IF the words or thereaho1ts' ha;
been inserted after the words on tn
| nth 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 improve9e
On the DhraseOlogy Of the indictment
The sold Paul Lovelace did in III
night time Of the 18th dav of May