Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-21
THE SUPREME COURT OF THE
STATE OF .Ev4DE

THE SUPREME COURT OF THE
STATE OF .Ev@DE.
Appealed From the Fourt, Judicial
District Court, EIko 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 fer Elko county tor the
crime Of burglary: and he assigns two
reasons why, as he claims, Judgment
should be reversed.
First. the insufticiencv Of the IN
dictment on which the judgment was
based; and
Second. the absence Of cOrrCh0r1-
ton of the TESTIMONY Of an a2c0mnlice
who testified against the defendant.
Under the first head the point made
- Ol Tie y tl'N III IL ttFittpit III tliG
following clause in the Indictment:
THE said pqu1 T0vn1acp cn tr. 11.1
tay Of Nav. 1900. IL, the NIGHT time Of
said dsy. or trereaborts, in TIRE County
O TIlkO Staie q Nevada without a.
thOritv of the law ana before the find
in~ Of this Indictment. did wi1fullv.
nnlawtUlly and burglarf0uslv break
End enter the building OF one Alexah-
der BurreI
Counsel for defendant in his or
their brief if an unsigned DaDer in the
usual form Of a brief found among the
papers in the case rs thew appear filed
in this court, is by us treated as a
hriow say:
"Apnellant claims that this lndict-
ment is not good at common law. he
cause the words or thereahouts', re-
! late 70 and qualify the words night
tin7e'" This question vas not raised
/ in the court below but is here pre-
scented for the first time.
The question is not whether the in
dictment would he good at common
law: If is whether il is good under
the statute Of Nevada that governs
the subject. The subiect is governed
BY the sections following concerning
indictments:
Section 419a. Compiled Laws. 1909.
provides that the Indictment shall
contain ".......... a statement OF
the acts constituting the nffense, in
ordinary and concise language. and in
such manner as TO enable a person #
common understanding to know what
is intended"
f. Section 1906. Compiled Laws. 1909.
has the following: The words used
in an Indictment shall be construed
in the usual acceptance in common
/ language exceDt such words ard
phrases as are defined by law, which
are to be construed according to their
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 a
person of common understanding TO
know what is intended. .,........'
Section 1909 is as follows:
NO 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 &C FIR
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
in a tCo-eyact and Over-nice view 81
language: but that certainty to 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. rhetoTi
cal or linguistic expression. But We
think the paragraph meets tbs
. requirement Of the statute that 'thi
acts constituting the offense should %
charged in ordinary and concise Ian
guage. and in such manner AS to ena
BILE a person of common understands
! ing to know what is intended" II
hold the indictment not fatally bad is
: We think to keep within the stat'l
| tory command. as expressed above
in section 4206, or at least not to DE-
part too far from such command. Z
) | wit to cOnstrue lin the ns"al acceE
lance in common language"
We think the defect of the indie
: rnnnt complained of was such as in III
t language Of Section 4209. above quo
$ ed was "defect or imprefection i
natter Ct form, which did not ten
to the pre- judice CT the defendant"
: The language Of the indictner
3 ! could doubtless he made more 9cc
u rate: b,:t We think il is not fatal
s. detective In brief of Counsel for d
- PENDANT the following correction is Q
- fernd:
70 IF The words or thereahOuts' h
been inserted after the words on y
18th dav of Nav 1904. the indie
ment could not he the subject of cri
cism or assault
Perhaps the following DhraseO'o9
f. might be considered an irproveme
I ! ,y,+,, y,,,