State v. Switzer

• Decision Date: 31 December 1914
• Docket Number: 2148.
• Citation: 145 P. 925,38 Nev. 108
• Parties: STATE v. SWITZER.
• Court: Nevada Supreme Court

145 P. 925

38 Nev. 108

STATE v. SWITZER.

No. 2148.

Supreme Court of Nevada

December 31, 1914

Appeal from Second Judicial District Court; Thos. F. Moran, Judge.

William Switzer was convicted of robbery, and he appeals. Affirmed.

Thomas E. Kepner, of Reno, for appellant.

Geo. B Thatcher, Atty. Gen., for the State.

NORCROSS J.

The appellant was convicted of the crime of robbery, and appeals from the judgment and from an order denying a motion for a new trial.

It is contended by counsel for appellant that the information is fatally defective because of the absence of a specific charge that the property was taken with intent to commit a larceny. The information charges that the defendant did "willfully, unlawfully, and feloniously take from the person of and in the presence of Jack Vera * * * of the personal goods and chattels of the said Jack Vera," etc. In State v. Hughes, 31 Nev. 274, 102 P. 563, we said:

"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."

The indictment follows substantially the form of the statute, and an indictment in the identical form, so far as the question here raised is concerned, was held to be sufficient in State v. Luhano, 31 Nev. 278, 102 P. 260. See, also State v. O'Neil, 71 Minn. 399, 73 N.W. 1091; Holland v. State, 8 Ga.App. 202, 68 S.E. 861; State v. Henry, 47 La. Ann. 1587, 18 So. 638.

As said by Hawley, J., in State v. McKiernan, 17 Nev. 224 30 P. 831:

"The technical exactness which existed under the rules of the common law has been superseded by statutory provisions, and it is now sufficient if the offense is 'clearly and distinctly set forth in ordinary and concise language * * * in such a manner as to enable a person of common understanding to know what is intended.' "

Notwithstanding the many authorities cited by counsel for appellant, holding that an indictment for robbery must specifically charge an intent to commit a larceny, we are not disposed to change the former ruling of this court that the indictment is sufficient. The defendant could not have been mislead to his injury by the form of the indictment.

The same reasoning will apply to the instruction defining the offense in the language of the statute. If defendant had felt that a more particular instruction should have been given, he should have requested it.

It is next urged that the court erred in denying defendant's challenge to the jury panel. It appears from the record that this challenge was not interposed until after 12 of the jurors were called to the jury box and sworn for their examination. Section 284 of the Criminal Practice Act (Rev. Laws,§ 7134) provides: "A challenge to the panel must be taken before a juror is sworn." The objection to the panel was upon the ground that two venires were drawn, one on the 5th of August and one on the 7th of August, the first venire containing 30 names and the second 15 names; that only 30 were in attendance, a portion of both venires; that both venires were drawn and made returnable in the chamber of the court presided over by Judge Salisbury.

The venires in question are not embodied in the record. It does not appear upon what day they were made returnable. It appears, however, to have been conceded that upon the return of the first venire a number were excused, and that Judge Salisbury then considered that there was not a sufficient number remaining for the purposes of the court, and that consequently, an additional venire was drawn and returned. While the Second judicial district court has two judges, there is but one court; the two judges thereof having ...