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Opinion, per WANAMAKER, J.

bezzled or obtained by false pretense, knowing it to have been stolen, taken by robbers, embezzled or obtained by false pretense, if the value thereof is thirty-five dollars or more, shall be imprisoned," etc.

In Ohio all crimes are statutory, and wherever a statute provides the criminal procedure such provisions are exclusive. The Ohio statutes very fully point out how exceptions can be taken to an indictment.

Section 13620, General Code, provides:

“The accused may except to an indictment by – first, a motion to quash; second, a plea in abatement; and third, a demurrer.”

Section 13625, General Code, provides:

"The accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.”

The uniform practice in Ohio has been to raise the question of duplicity as to an indictment by a motion to quash. No such motion was filed in this case, but the defendant pleaded not guilty to the general issue and proceeded to trial, thereby waiving all defects as to form appearing upon the face of the indictment. But as a matter of practice it may be well to suggest that had such motion been filed at the proper time, upon the ground that the indictment charged both receiving and concealing stolen property, knowing the same to have been stolen, such motion should have been overruled, agreeable to the uniform holdings of this court.

One of the best considered cases touching this

Opinion, per WANAMAKER, J.

proposition of law is Hale v. State, 58 Ohio St., 676. The first paragraph of the syllabus reads as follows: "When an offence against a criminal statute may,

a in the same transaction, be committed in one or more of several ways as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified, if they are not repugnant.

Certainly there can be nothing repugnant between receiving stolen property and concealing stolen property

The accused having in this case pleaded to the general issue there remained for him the right to demur, to object to the jurisdiction, or to establish the entire failure of proof upon any essential element of the crime charged. These were the only legal questions left to him and they would have to be raised by due process.

While the statement of the trial judge is evidently not complete, there is enough before us to show that in effect the indictment was held insufficient in law – that is that it did not charge an offense under the laws of the state of Ohio.

We come now to the main question, Did the indictment charge a crime under Section 12450, General Code?

For the purpose of better analyzing the indictment, it will be divided into two parts:

Part 1. "Did unlawfully and fraudulently receive and conceal one diamond of the value of $400.00 of the personal property of J. G. F. Holston, Sr., then lately before stolen, he, the said Har

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Opinion, per WANAMAKER, J.

vey Schultz, then and there well knowing said personal property to have been stolen as aforesaid;"

Part 2. "and so the jurors aforesaid upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz then and there in manner and form aforesaid, unlawfully did conceal, take and carry away the said personal property of the said J. G. F. Holston, Sr."

Under the statute, Section 12450, supra, if one buys anything of value, knowing it to have been stolen, or receives anything of value, knowing it to have been stolen, or conceals anything of value, knowing it to have been stolen, he commits an offense prohibited by the statute. Both these elements are clearly charged in part 1 of this indictment.

We have held that the use of the words "receive and conceal” was not good ground for sustaining a motion to quash based on duplicity.

In 1 Bishop's New Criminal Procedure (2 ed.), Section 436, the rule is stated as follows:

“A statute often makes punishable the doing of one thing or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has

Opinion, per WANAMAKER, J.

‘or,' and it will not be double, and it will be established at the trial by proof of any one of them.”

The same doctrine is fully discussed and most ably stated in Hale v. The State, supra, where such an indictment is held good.

Now, the first part of the indictment is admittedly sufficient in law to charge an offense, according to all the authorities and the numerous decisions of our own court. We come therefore to the question as to whether or not the second part of the indictment could destroy the sufficiency of the charge in the first part.

What occasion there possibly could be for using that language, except that some form-book might have it, is inconceivable. It is at most a legal conclusion, wholly unnecessary to charge an offense.

Part 1 of the indictment is complete in itself. Part 2 neither avers anything, nor adds anything to it. It is clearly not good pleading. But if every indictment were to be held bad because it had some faulty or unnecessary averments in it, the riot of crime that would follow in the state of Ohio would be appalling.

From the language used by the trial judge, it would seem that part 2 was spoken of as a “curative” provision. We regret that we have not now before us all that the court doubtless said upon this matter.

The legislature has very wisely provided that certain faults or defects in indictments, that are more or less technical and trifling in their nature, shall not be considered fatal to the indictment.

Opinion, per WANAMAKER, J.





Section 13581, General Code, reads:

“An indictment shall not be invalid, and the trial, judgment or other proceeding stayed, arrested or affected

for surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged; for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits."

Part 1 of this indictment, having met the full constitutional and statutory requirements as to the nature and elements of the offense charged, part 2 is merely so many idle words, so much surplusage, which could neither cure an insufficient charge nor destroy an otherwise sufficient charge.

Our courts to-day are not looking with favor upon the petty defects and technical flaws in indictments, so long as they do not affect the substantial rights of the parties to the action.

In this case the defendant was sufficiently advised of the charge against him, and every element thereof. The trial should have proceeded at least until the state had rested its case.

The court erred in its rulings and the exceptions thereto by the prosecuting attorney of Muskingum county are sustained.

Exceptions sustained.


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