Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-30
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, Elko County, Ne- |
vada.
The State Ct Nevada,
PIart.-F ard 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 i'll and for Elko county tor the
crime of burglary: and he assigns two
reasons why, as he claims, judgment
should be reversed.
First, the insufticiency of the in
dictment On which the judgment was
based; and
Second the absence Of cOrrOh0ra-
ti0n of the testimony Of an accOmplice
who testified against the defendant.
Under the first head the point made
On the proper Interpretation of the
following clause in the Indictment:
The said Paul Lovelace on the 11tn
day of May. 1904, in the night time OF
said cay. or whereabouts, in the County
Of Eiko. State Of Nevada without au
thoritv of the law and before the find
ing of this Indictment. did wilfully,
unlawfullv and burelariously break
and enter the building Of one AleXan-
der Burrell.'
Counsel for defendant in his or
their brief if an unsigned paper in the
usual form of brief found among tha
papers in the case AS they appear filed
/ in this court. is by us treated as
brew. say:
/ Appellant claims that this Indict-
! ment is not good al common law, be
cause the words 'or whereabouts, 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. 1909
provides that the indictment shall
, contain ........ statement OF
the acts constituting the Offense, If
ordinary and concise language. and il
such manner as TO enable a person ii
common understanding to know what
is intended"
Section 4206, Compiled Laws. 1900
! hoe foil ~
in an Indictment shall be construet
in the usual acceptance In common
language, except such words AM
phrases as are defined by law, which
are to be construed according to theil
legal meaning"
Section 42OS. 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 4
person of common understanding IL
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 fern
which shall not tend to the prejudice
Of the defendant: ..............'
Tho 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-exact and over-Aice view 81
language; but that certainty to . com
mon intent was all that should b.
required.
True. in the paragraph of the in
dictment under discussion, there il
something Of a departure from the
best models of grammatical. rhetori
cal or linguistic expression. But W
think the paragraph meets the
. requirement of the statute that eth
acts constituting the o6ense should b.
charged in ordinary and concise Ian
guage. and in such manner rs to ena
BILE a person of common understand
ing to know what is intended" T.
hold the indictment not fatally bad is
We think, to keep within the statu
tory command, as expressed above
| in section 1905, or at least not to dc
part too far from such command. t
5 wit. to construe lin the usual accei
lance in common language"
We think the defect of the indic
: ment complained Of was such as in tn
t language of Section 1909. above quo
s ed was a. :".defect or imprefection i
matter of form, which did not ten
to the prejudice Of the defendant"
:. The language of the indictner
could doubtless be made more acc
n rate: but we think it is not fatal
q defective. In brief of Counsel for d.
= PENDANT the following correction is o
{ fered:
70 'If the words or thereabouts' hs
r been inserted after the words on tt
~ | 18th day of May. 1904. the indie
T. ment could not be the subject of crit
cism or assault
, Perhaps the following phraseoloe
!; might be considered an improveme
On the phraseology of the indictmen
= The said Paul LOvelace did in Il