Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-04
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

IN The SUPREME COORI Or hE
STATE OF NEVADA.
Appealed From the Fourth Judicial |
District Court, Eiko County, Me- |
vada.
The State of Nevada,
Plaintiff and Respondent,
against |
Paul Lovelace,
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 tor the
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 accOmplioe
who testified against the defendant.
Under the first head the point made
is on the proper Interpretation of the
following clause in the indictmCM:
The said Paul LOveiace on the 11tn
day Of May. 1904, in the night time OF
said cav, or thereabouts. in the County
OF ElkO. State Of Nevada. without All
thoritv of the Jaw and before the find
ing of this Indictment. did wilfully,
urlawfuIlv and hurgIarOUsly break
and enter tIo building Of one AleXan-
der Burreil.'
Counsel for defendant in his or
their brief. if an unsigned paper in the
usual form of brief found among tn
papers in the case as they appear filed
in this court. is by Us treated as j
brew. say:
'ADDellant claims that this Indict-
ment is not good al common law. be
cause the words or whereabouts. ro-
late to and quality the words might
tin1e'.' This question was not raised
in the court below. but is here pre-
scented for the first time.
The question is not whether the i'll
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 govern 81
by the sections following concerning
indictments:
Section 4199. Compiled Laws, 1909
provides that the Indictment shall
contain ".... q statement OF
/ the acts constituting the offense. III
ordinary and concise language. and II
! such manner as to enable a person II
common understanding to know VII Il
is intended
Section 42o6, Compiled Laws. 1909
has tho fn1lnu-jno s.'Thn i
! in an Indictment shall be construct
in the usual acceptance in common
language, except such words and
, phrases as are defined by law. which
are to be construed according to theil
legal meaning"
Section 1908, Compiled Laws. 1900
| provides:
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
person of common understanding IA
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 o,
imperfection in matters Of form
which shall not tend to the prejudice
Of the defendant; Observation-Disclosures
The foregoing enactments show tina
it was the intention Of the legislature
of Nevada that in constituting indict
ments the courts should not indulge
in q too-exact and over-Hice view o
| Il. L.x hat I'll - q
mon intent was all that should b
required.
True. in the paragraph Of the in
dictment under discussion. there is
something of a departure from the
best models of grammatical. rhetori
cal or linguistic expression. But VIZ
think the paragraph meets the
! requirement of the statute that eth;
acts constituting the offense should b.
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" tt
hold the indictment not fatally bad is
We think, to keep within the statu
tory command, as expressed above
in section 4206, or at least not to de
part too far from such command. "a
wit. to construe Gin the usual accef
lance in common language"
We think the defect of the indict
ment complained Of was such as in tn
language of Section 4209. above quot
ed was a defect or imprefection il
matter Of form, which did not TEN
to the prejudice Of the defendant"
The language of the indictmeD
could doubtless be made more acc,
rate: but we think it is not fatal
defective. In brief of Counsel for de
PENDANT the following correction is Of
fered:
eff the words or thereabouts' ha
been inserted after the words on tn
18th day of May, 1904. the indie
ment could not be the subject of crit
cism or assault t.
Perhaps the following phraseolog
might be considered an improveme.
On nh 70 coo1COv of tho ipdicfp,op.