Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-31
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, Eiko County, Mes
vada.
The State of Nevada,
Plaintiff and Respondent,
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 accomplish
who testified AGAINST the defendant.
Under the first head the point made
is on the proper Interpretation Of the
following clause in the Indictment:
The said Paul Lovelace On the 11tn
day CT May. 1904, in the night time OF
said tay, or whereabouts, in the County
o. ElkO. State Of Nevada. without All
thoritv of the law and before the find
ing Of this indictment. did Wilfully,
unlawfully and burglariously 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 thu
papers in the case as they appear filed
in this court, is by us treated as a
brew. say:
"Apnelant claims that this Indict-
ment is not good al common law be-
cause the words 'cr whereabouts, re-
late to aud qualify the words might
ti7'e'.". This question was not raised
in the court below, but is here pre-
sented 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. 1900
provides that the Indictment shall
contain ........ a statement OF
the acts constituting the offense. il
ordinary and concise language. and il
such manner as TO enable a person y
common understanding to know what
is intended
Section 42O6, Compiled Laws. 1900
has the following: The words used
in an indictment shall be construe,
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 420S. Compiled Laws, 1900
pIoViues. '...... 80.
Sixth-That the act or omission
charged as the offense is clearly ant
distinctly set forth in ordinary anl
concise language, without repetition
and in such a manner as to enable
person of common understanding t.
know what is intended. .......
Section 1909 is as follows:
mo indictment shall be deemed
insufficient, nor shall the trial. judg
ment or tho proceeding thereon. bt
affected. by reason Of any defect o
imperfection in matters Of form
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 aot indulg
in a too-exact and over-nice view 0
language; but that certainty to a com
mon intent was all that should b.
required
True, in the paragraph Of tho II
dictment under discussion, there il
something of 4 departure from tn
best models of grammatical. rhetor
cal or linguistic expression. But VI
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 il
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. tx
wit. to construe Gin 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 a defect or imprefection i
matter Of form, which did not ten
to the prejudice Of the defendant"
The language of the indictn.er
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
tered:
''If the words or Whereabouts hs
been inserted after the words 'on tt
18th day of May. 1904. the indie
ment could not be the subject of cri,
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