Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-10
IN THE SUPREME COURT OF THE
STATE OF t.EVACA.

Appealed From the Fourth Judicial
District Court, EIko County, Ne-
vada.
The State of Nevac.,
Plaintiff ard &c pon!ent,
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 accOmDlice
who testified oooinct the defendant.
Under the first head the point MAJ
is 9r ne prcner Interpretation Of the
following clause in the indictments:
The said Paul Lovelace on the f1tn
day of May, 1904, il, the night time Of
said Gay, or Whereabouts. in the County
OF Elko. state of Nevada. without at
thoritv of the law and before the find
ing Of this Indictment. did wiltully,
unlawfully and burelarously break
and enter the bUlding Of one AleNal-
der Burrell.'
Counsel for defendant in his or
their b"ief if an unsigned paper in the
usual form Of brief found among thu
papers in the case as they appear filed
in this court, is by us treated as
brew, say:
"Apnelant claims that this Indict-
nent is not good at common law. be-
cause the words 'or thereabouts', re-
late to and qualify the words night
tin?e'." 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 I'd
by the sections following concerning
indictments:
Section 41s9. Compiled Laws. 1909
provides that the Indictment shall
the acts constituting the cffense. il
ordinary and concise language, and il
such manner as TO enable a person =,
common understanding to know wha'
is Intended
Section 42o6, Compiled Laws, 1900
has the following: THE words use,
in an Indictment shall be construe
in the usual acceptance in common
language. eXcert such words an,
phrases as are defined by law, which
are to be construed according to thei
J legal meaning"
} Section 42OS. Compiled Laws, 1906
Sixth-That the act or omissio!
charged as the offense is clearly an
distinctly set forth in ordinary an
concise language. without repetitio.
and in such a manner as to enable
person of common understanding I
; know what is intended. .......
= Section 1909 is as follows:
mo indictment shall be deemat
insufficient, nor shall the trial. iuds
ment. or the proceeding thereon. ID
affected, by reason of any defect o
. imperfection in matters c. t--'.:
of the defendant;
The foregoing enactments show tina
it was the intention of the legislator
of Nevada that in constituting indie
ments the courts should not induls
in a too-exact ard over-nice view
language: but that certainty to a con
mon intent was all that should
required.
True. in the paragraph Of the i,
dictment under discussion, there 1
something of a departure from tn
best models of grammatical, rhetor
cal or linguistic expression. But "
think the paragraph meets tn
. ! requirement Of the statute that eth
acts constituting the offense should b
charged in ordinary and concise lar
guage, and in such manner as 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 staff
tory command. as expressed abov'
in section 1905, or at least not to d.
part too far from such command. K
wit. to construe lin the usual acce;
lance in common language"
We think the defect of the indie
: ment complained Of was such as in tn
I language of Section 42O9. above quo
5 ed was "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;
J rate: but we think it is not fatal
, defective. In brief of Counsel for d.
PENDANT the following correction is o
fered:
0 eff the words or Whereabouts ha
been inserted after the words 'on til
| 18th dav of May. 1904. the indie
ment could not be the subject of crit
cism or assault
Perhaps the following phraseoloe
might be considered an improveme
On the phrasaologv Of the indictmen
The said Paul Lovelace did in Il
night time of the 18th day of Ma
Is 1904, or in the night time of son