State v. Hughes

• Court: Nevada Supreme Court
• Writing for the Court: NORCROSS, C.J.
• Citation: State v. Hughes, 31 Nev. 270, 102 P. 562 (Nev. 1909)
• Decision Date: 18 June 1909
• Docket Number: 1,785.
• Parties: STATE v. HUGHES.

102 P. 562

31 Nev. 270

STATE v. HUGHES.

No. 1,785.

Supreme Court of Nevada

June 18, 1909

Appeal from District Court, Esmeralda County.

Barney Hughes was convicted of assault with intent to commit robbery, and appeals. Affirmed.

Clarence C. Ward, for appellant. R. C. Stoddard, Atty. Gen., for the State.

NORCROSS C.J.

This is an appeal from the judgment and from an order denying appellant's motion for a new trial.

Appellant was tried and convicted of the crime of assault with intent to commit robbery upon an indictment, the body of which reads as follows: "Defendant, Barney Hughes, above named, is accused by the grand jury of Esmeralda county, state of Nevada, by this indictment found this 5th day of March, A. D 1908, of a felony, to wit, the crime of assault with intent to commit robbery, committed as follows, to wit: Said defendant, Barney Hughes, on the 24th day of February, A. D one thousand nine hundred and eight, or thereabouts, and before the finding of this indictment, in the county of Esmeralda, state of Nevada, then and there having the present ability so to do, did then and there unlawfully assault A Sander with a deadly weapon, to wit, a loaded revolver, and said defendant, Barney Hughes, did then and there, in pursuance of said assault, attempt feloniously and violently to take from the person of said A. Sander, by force and intimidation, money, goods and chattels then and there the property of said A. Sander; all of which is contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the state of Nevada." It is contended by counsel for appellant that this indictment is fatally defective, in that it does not allege that the acts done by the defendant were done with the intent to commit the crime of robbery. The record does not disclose that the indictment was demurred to or that a motion in arrest of judgment was interposed. The sufficiency of the indictment appears, therefore, to be questioned for the first time upon appeal. The indictment, it must be admitted, is far from being a model. Where, however, the sufficiency of an indictment is questioned for the first time upon appeal, it will not be held insufficient to support the judgment, unless it is so defective that by no construction, within the reasonable limits of the language used, can it be said to charge the offense for which the defendant was convicted. Considering the provisions of our statute governing indictments, this court in State v. Lovelace, 29 Nev. 43, 83 P. 330, said: "The subject is governed by the sections following concerning indictments: Section 4199 Comp. Laws, provides that the indictment shall contain 'a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.' Section 4206, Comp. Laws, 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 4298, Comp. Laws, provides '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 manner as to enable a person of common understanding to know what is intended.' Section 4209 is as follows: 'No indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.' The foregoing enactments show that it was the intention of the Legislature of Nevada that in construing indictments the courts should not indulge in a too exact and over-nice view of language; but that certainty to a common intent was all that should be required. *** The sections of the statute above quoted show the legislative intent was that the courts of the state should give interpretations liberal to sustain rather than rigid to overthrow indictments, when *** substantial rights of defendants are not thereby prejudiced." "In pursuance of," according to Webster, means, "in accordance with; in prosecution or fulfillment of." Therefore, the indictment, in effect, alleges that in fulfillment of the alleged assault the defendant did then and there attempt feloniously and violently to take from the person of A. Sander, by force and intimidation, money, etc. If a thing is done in fulfillment of some other act, done contemporaneously, it is but a reasonable deduction that such other act is done with the intent to carry out that which is in fulfillment thereof. An allegation that robbery is the fulfillment of the assault with the deadly instrument may be regarded as of the same effect, we think, as an allegation that the assault was made with the intent to rob. The word "feloniously," used in the body of the indictment, in a legal sense, means, "done with intent to commit crime." Its use in an indictment has uniformly been held to be a sufficient averment of the intent necessary to constitute the crime. State v. Douglas, 53 Kan. 669, 37 P. 172; State v. Halpin, 16 S.D. 170, 91 N.W. 605; People v. Willett, 102 N.Y. 251, 6 N.E. 301; Phelps v. People, 72 N.Y. 334; People v. Dumar, 42 Hun (N. Y.) 80; State v. Rechnitz, 20 Mont. 488, 52 P. 264; State v. Smith, 31 Wash. 245, 71 P. 767; State v. Boyle, 28 Iowa, 522; People v. Butler, 1 Idaho, 231; People v. Lopez, 90 Cal. 606, 27 P. 427; Com. v. Adams, 127 Mass. 15; 3 Words & Phrases Judicially Defined, 2731. Had the word "feloniously" been used directly to qualify the word "assault," it could be said with a greater degree of clearness that the intent is sufficiently alleged. However, in view of the fact that the formal part of the indictment acquainted the defendant with the specific crime with which he was intended to be charged, and the body of the indictment contains language which is capable of being construed into the equivalent of a charge of the essential element of intent, and the indictment not having been questioned in the lower court, we are not...