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State v. King

December 31, 1912

STATE OF NEVADA, RESPONDENT, V. C. W. KING, APPELLANT.


Appeal from the Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Mark Walser, for Appellant.

Cleveland H. Baker, Attorney-General, for Respondent.

Per Curiam:

By Revised Laws, section 6445, it is provided: “Every person who * * * 5. Shall live with * * * a common prostitute * * * shall be punished,” etc.

Appellant was indicted by the grand jury of Washoe County for the crime of “felony, to wit, living with a common prostitute”; the charging part of the indictment reading: “That said defendant * * * did then and there, willfully, unlawfully, and feloniously, live with one Mildred Deneve; the said Mildred Deneve being then and there a common prostitute.” A demurrer to the indictment, on the ground that it did not state facts sufficient to constitute a public offense, was overruled, and the defendant tried and convicted.

[1, 2] The insufficiency of the indictment is again urged on this appeal. The indictment is in the language of the statute, and, we think, sufficient. In State v. Raymond, 34 Nev. 197, we quoted from 19 Cyc. 1393, the following general rule applicable to all indictments: “It is a general rule that if an indictment is based upon a statute it is sufficient if it follows the wording thereof. The rule, however, is subject to the qualification that, unless the words of the statute of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, an indictment charging the offense in the language of the statute will be insufficient. * * * An indictment based upon a statute, in order to be sufficient, must set forth all the facts which are by statute made ingredients of the offense.”

We think the offense here charged is one in which the statute itself sets forth all the elements necessary to constitute the offense. As said in U. S. v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588: “Where the definition of an offense * * * includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; it must descend to particulars.” For example, the statutory offense of obtaining money or property upon “false pretenses” would

[35 Nev. 153, Page 157]

not be sufficiently charged in the language of the statute; for “false pretenses” is a generic term, which includes an innumerable variety of acts and conduct. There is nothing of a generic nature about the statutory definition of the crime of “living with a common prostitute.”

The numerous cases cited in the briefs of counsel point out the distinction which controls the essential requisites of an indictment for a statutory offense. The recent case of State v. Topham (Utah), 123 Pac. 888, is particularly instructive and in point. The Utah court therein reviews many authorities, and points out clearly the distinction which controls in numerous cases.

[3] Certain remarks of the district attorney are assigned as error; but it appears that they were based on testimony in the case, and, we think, cannot be regarded as improper argument.

[4] The record contains a number of assignments of error which have not been referred to in the briefs or argument, and, we think, do not require consideration.

The judgment is ...


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