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


Appealed From the Fourth Judicial
District Court, EIko County, Ne.
vada.
The State G. Nevada,
plaintiff and Respondent,
AGAINST
Paul Lovelocc,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney for State.
VIM. Woodburn, Attorney for Appel
liant.
Defendant anDeals from a judgment
rendered against him in the District
Court in and for Elko county for the
crime of bun elary: 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 accomplish
who testified against the defendant.
Under the first head the Joint mad
is GA the proper Interpretation of the
following clause in the indictments:
The said Paul 1oveiace en- the 11tn
day of May, 1904, in the night time Of
said day, 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 wilfullv.
unlawfully and burglariousIv break
and enter the building Of one Alexan-
der Burrel!.'
Counsel for defendant in his or
their brief. if an unsigned paper in the
usual form of brief found among the
papers in the case as they appear filed
in this court, is by us treated as a
brew say:
"Appellant claims that this Indict-
ment is not good at common law, be-
cause the words 'or thereabouts', re-
late to and qualify the words might
/ time. This cues ion was not raised
in the court below bnt is here pre-
scented for the fist time.
The question is not whether the in
dictment would he 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 419o. Compiled Laws. 1900,
. PioNi utS iHdl tE6 HulCtIuPlt SHAH
contain " a statement Of
the acts constituting the offense. in
/ ordinary and concise language and in
such manner as TO enable a person IF
common understanding to know what
is intended"
Section 1905. Compiled Laws 1909
has the following: "The words used
in an Indictment shall be construed
in the usual acceptance in common
! language. except such words and
! phrases as are defined by law, which
are to be construed according to their
legal meaning"
Section 42OS. Compiled Laws, 1900
provides: NEUTRALITY-SUSPICIOUS..
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 re
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 OF
imperfection in matters Of form
which shall not tend to the preSudice
Of the defendant: .........
The foregoing enactments show tha
it was the intention Of the legislature
Of Nevada that in constituting indict
nents the courts should not indulge
in a too-exact and over-nice view o
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 tht
best models of grammatical. rhetori
cal or linguistic expression. But ",
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 ems
BILE a person Of common understand
ing to know what is intended" r
hold the indictment not fatally bad IL
we think, to keep within the statl
tory command, as expressed above
in section 1905, or at least not to dc
part too far from such command. K
; wit. to construe 'in the usual accel
lance in common language"
We think the defect of the indic'
ment complained Of was such as in tn
| language of Section 1909. above quo
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;
, rate: but we think it is not fatal
, defective. In brief of Counsel for d.
PENDANT the following correction is o
I fered:
0 eff the words or thereahouts' ha
been inserted after the words 'on II
fifth 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 phraseologv of the indictmen
The said Paul Lovelace did in Il
night time of the 18th day of Ma
e 1904, or in the night time of son