Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-28
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, Ne-
vada.
The State of Nevada,
Plaintiff and Respondent,
against
Pau! Love!ace,
Defendant and Appellant.
Attorney General James G. Sweeney,
Attorney for State.
Wm Woodburn, Attorney for Appel
liant
Defendant appeals from a judgment
rendered against him in the District
Court in and for Elko county tor me
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 Lcye'ace On the 11tn
day of May, 1904, in the night tiroe Of
said CAV. or whereabouts, in the County
Of FIko State of Nevada, without au
th0ritv OF the law and before the find
ing Of this Indictment. did wilfully,
unlawfully and burglariCUsly break
and enter the building of one AleXan-
der Burrell.'
Counsel for defendant in his or
their bricf 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:
"ADpellant claims that this Indict-
ment is not good at common law. be
/ cause the words or thereabouts', re-
/ late to and quality the words might
tn7e''. This question was not raised
in the court below, but is here pre-
scented for the first time.
The question is not whether the i'll
Gictment would be good at common
law: il is whether it is good unde'
the statute of Nevada that governs
the subject The subject is govern e
by the sections following cOncernin,
indictments:
serti"n iis9, Compiled Laws. 1901
provides that the indictment shat
contain ".... statement o
the acts constituting the offense. j
ordinary and concise language and il
such manner as 10 enable a person e,
common understanding to know wht
is intended
Section 1905. Compiled Laws, 100;
has the following: The words use,
in an Indictment shall be construe
in the usual acceptance in commo
language. except such words an
! phrases as are defined by law. vhic
are to be construed according to thel
legal meaning"
Section 42os, Compiled Laws, l9e'
provides &c. .,.............
Sixth-That the act or omlsslo
charged as the offense is clearly an
distinctly set forth in ord.A vary an
concise language. without reA eutloi
and in such manner IS to erA ole
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. be
affected, by reason Of any defect OF
lmperfectiOn in matters OF form,
which shall not tend to the prejudice
Of the defendant; 3"
The foregoing enactments show thai
it was the intention OF the legislature
of Nevada that in constituting indict
ments the courts should not indulge
/ in nj
| language: but that certainty to a 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, rhetori
| cal or linguistic expression. But we
think the paragraph meets the
} requirement of the statute that "the
acts constituting the offense should be
| charged in ordinary and concise Ian
| guage. and in such manner as to ena
bic a person of common understand
ing to know what is intended" Tc
hold the indictment not fatally bad is
We think, to keep within the statu
tory command, as expressed above
in section 42O6, or at least not to de
part too far from such command. TO
wit. to construe lin the usual accep
lance in common language"
! We think the defect of the indict
:, ment complained Of was such as in the
language of Section 1909. above quot
ed was defect or imprefection il
matter Of form, which did not tenc
to the prejudice Of the defendant"
The language of the indictner
could doubtless be made more accl
rate: but we think it is not fatal,
defective. In brief of Counsel for de
PENDANT the following correction is OF
fered:
eff the words or Whereabouts h.;
been inserted after the words 'On tn
18th day of May, 1904, the indict
ment could not be the subject of crit
|. cism or assault
Perhaps the following phraseolog
might be considered an improveme