Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-08
IN THE sUpREME COURT OF THE
E,EAADA

IN THE SUPREME COURT OF THE I
F-..EAADA.-
Appealed From the Fourth Judicial
District Court, Eiko County, Ne-
vada.
The State of Nevada, t's@
Plaintiff and Respondent,
against
Paul loveIace,
Defendant and Appellant.
Attorney General James c.. Sweeney,
Attorney for State.
VIM. Woodburn, Attorney for Appel
LIANT
Defendant appeals from 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 acc0mplice
who testified ~~ainst the defendant
Under the FIST head the point made
i on the proper Interpretation Of the
following clause in the indictmCht:
The said Paul Lovelace on the 11t7
day OF May, 1904. in the aieht time Of
said Cay, or Whereabouts, in the County
o. E,lko. State of Nevada. without au-
.thoritv Of the Jaw and before the find
ing Of this indictment. did Wilfullv,
unIawfuily a1d burgiariously break
! an1 eater the building Of enc AleXan-
der Burreil. +.
, their brief. if an unsigned paper in the
USUAL form of a brief found among the
Z papers in the case as they appear filed
I in this court. is by us treated as a
brew. say:
Appellant claims that this Indict-
4 rlent IS not good al common law, be-
! cause the words or thereabouts, re
late to and qualify the words might
! tinee''' 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 al
by the sections following concerning
indictments:
Section 4199, Compiled Laws. 1909
provides that the Indictment shall
contain .... statement oil
the acts constituting the cffense. il
ordinary and concise language and il
such manner as to enable person u
common understanding to know what
is intended
4 Section 42O6. Compiled Laws. 1909
hn Io 0.I- !
in an Indictment shall be construes
language, except such words an
phrases as are defined by law, which
| are to be construed according to theil
legal meaning"
Section 420S, Compiled Laws. 1900
provides: ...r....
Sixth-That the act or omission
charged as the offense Is clearly ant
distinctly set forth in ordinary ant
(, concise language, without repetition
and in such a manner as to enable (
person of common understanding /;
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. bt
affected. by reason of any defect O.
imperfection in matters Of f0r|.
which shall not tend to the prejudice
! of the defendant: .............'
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 a toO-eXact and oyer-nice view .
language: but that certainty to a com
mon intent was all that should bt
required.
True in the paragraph of the in
dictment under discussion, there i:
something of a departure from TIL
best models of grammatical, rheto7i
cal or linguistic expression. But w
think the graph meets thu
J requirement of the statute that eth
acts constituting the offense should b
charged IN ordinary and concise lar
guage, and in such manner rs to ena
BILE a person Of common understand
ing to know what is Intended 7
hold the indictment not fatally bad Is
We. think, to keep within the statl
tory command, as expressed abor'
in section 1906, or at least not to df
part too far from such command. Z
( wit, to corstrue in the usual accei
! lance in common language"
We think the defect of the indie
ment complained Of was such as in tn
language of Section 1909, above quo
: ed was "defect or irnrefection i
matter Of form, which did ret ten
to the prejudice CT the defendant"
.. The language Of the inGictn'er
! could doubtless be made more acc
, rate: bit We ihirk it is not fatal
, defective In brief Of Counsel for d
PENDANT the following correction is o
I fered: ,-..- .-....- -,.-
0 IF the words or Whereabouts h
been inserted after the words on Il
nth dav Of May, 1904 the Indie
t rlent could not be the subject Of cri
cism or assault .s...-, .....
Perhaps the following phraseoloc
might be considered an improveme