
    Whiting v. State.
    
      Indictment — How may be found — Grand jury — Indorsement by foreman of — Practice—Criminal Pleading — Larceny—Receiving stolen goods— When may be joined in indictment — Instructions to jury — When verdict of. jury conclusive.
    
    1. Where witnesses have been duly sworn and sent to a grand jury, and there examined, and an indictment found and presented, it is not necessary that they should be recalled and re-examined, to warrant the grand jury in finding another indictment against the same person, and before the former one has been nollied.
    2. Though the better practice, it is not necessary as a matter of law, that the foreman of a grand jury, in indorsing an indictment, “ a true bill,” should describe himself as foreman; for, being appointed by the court, it is presumed to know who the foreman is.
    3. It is an established rule of pleading that facts, and not conclusions of law, should be pleaded. Therefore, an indictment under section 6858, Revised Statutes, which charges that the accused did unlawfully and fraudulently receive certain personal property — describing il and giving its value and ownership — knowing the same to have been stolen, sufficiently charges an offense under that section, without an averment as to the character of the offense he is thereby deemed to have committed.
    4. Where, in an indictment for larceny, a count is added under the provisions of section 7227, Revised Statutes, for receiving stolen property, knowing it to have been stolen, without an averment that it is the same property, the state cannot be required to elect on which count it will proceed, where it appears from the description to be the same property, and no motion has been made to quash upon that specific ground.
    5. In instructing a jury that, the evidence of an accomplice should be cautiously received and closely scrutinized, it is not error for the court, in introducing this caution, to say, that the witness “ admits her complicity in the crime.”
    6. Whether the proof shows that the accused is guilty as a principal in the larceny, or simply of receiving the goods knowing them to have been stolen, is a question of fact, and where there is room for doubt, the finding of the jury should be accepted as conclusive.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Sandusky county.
    
      Emmitt Tompkins, Greorge Kinney, Frank O'Farrell and James Sunt, for plaintiff in error.
    I. The indictment of September 8 should have been quashed, as .requested in defendant’s motion, for the reason that the grand jury had no evidence, or information, before it, on which to found the case. State v. Ivey, 7 American Crim. Rep. 245; State v. Fellows, 2 Hay. (N. C.) 520; State v. Cain, 1 Hawks 352.
    It has been repeatedly held that the indictment should be quashed where the same was found upon evidence of witnesses not sworn. State v. Roberts, 2 Dev. & B. 540; State v. Lanier, 90 N. C. 714.
    II. The demurrer to the first count should have been sustained. It does not sufficiently charge an offense. Wilson’s Crim. Code (3d ed.), 89. Also 2d ed., revised 1883; Pratt v. Commonwealth, 132 Mass 246; State v. Graham, 4 Am. Crim. R. 276; 38 Ark. 519; State v. Butler, 5 Am. Crim. R. 206; 21 S. C. 353; Bishop Stat. Crimes, secs. 139, 370, 372, 425; 7 Gray 43; Archibald’s Crim. Law, 86: Titus v. State, 7 Am. Crim. Rep. 254; Titus v. State, 49 N. J. L. 36; Mann v. The State, 47 Ohio St. 556; 4 Blackstone, 306 (Sharswood); Bishop on Statutory Crimes, sec. 139; Wharton on Criminal Law, section 372; 1 Hawk. P. C. 209; Bishop Statutory Crimes, secs. 425, 372, 373, 374, 361, 362, 363, 364, 365, 366, 369, edition of 1873; 1 Archibald Crim. Prac. & Pleading 265. See note near bottom 266, also near top 268. As to forms under similar statutes, see Bishop Statutory Crimes, bottom pages 282, 283-also sections of text in connection therewith, 419 to 425 inclusive. Hamilton v. State, 11 Ohio, 435; Fisher’s Dig., p. 303; 1 Mass., 116, Bishop Statutory Crimes, sec. 259. Statutes are to be construed in harmony with the common law. Bishop Stat. Crimes, secs. 114, 246; Bishop Stat. Crimes, secs. 193, 194, 218; 2 Leach C. C. 1105 n.
    The sufficiency of the indictment.depends upon the first count, for Whiting was acquitted of the second. In the first count strike out all after the words “ well knowing said personal property to have been stolen as aforesaid ” (for what follows is a mere‘deduction or conclusion which constitutes no charge) and what have we ? Simply the declaration of the grand jury that the defendant unlawfully and fraudulently received certain goods “then lately before stolen,” “ then and there well knowing said personal property to have been stolen as aforesaid.” If this language charges any offense at all, it is that of receiving stolen goods. Such an offense is not now recognized by the law of Ohio. It was by the act of 1835: Shriedly v. The State, 23 Ohio St. 130. But by sec. 6858 the elements which constituted a separate crime known as receiving stolen goods now constitute the crime of larceny, and the old offense has been merged in the one defined by sec. 6856. It follows then, that what once made receiving stolen goods now makes simple larceny, and whatever is necessary in charging a crime under sec. 6856 is also necessary in charging a crime under sec. 6858. They are twins. They differ not at all in nature, and only in the manner of commission; for which the law cares not, in this sort of offenses. What we commonly call larceny is where the whole offense is committed by one person, or set of principals, while what in police circles is called receiving stolen goods implies that there was a preceding offense. Nevertheless, both are composed of the same ingredients, viz.: trespass and asportation; for, unlawfully taking what has been unlawfully taken is a continuous trespass and asportation. It was the recognition of this principle that caused the legislature to repeal the act of 1835 and substitute sec. 6858, and called the offense by its real name, larceny. Now what’s to be done ? Why, when one commits the continuous trespass and asportation as above suggested he should be indicted for “ stealing, taking and carrying away the property in the manner and form aforesaid.” There is no escape from this, and since larceny is the crime, it must somewhere and somehow be charged. It will not do to simply say that the goods were theretofore stolen and that the accused knew it. That does not charge anything, in law. The fact of criminally receiving stolen goods is one way of committing larceny; larceny is the crime. Under the second count of the indictment Whitney could have been convicted upon the same evidence that would convict in the manner and form as charged in the first count and it would stand (provided the count was a good one) because the offenses are identical, and made so by the statute. The refusal of the court to put the prosecutor to an election as to which count he would try was based upon the fact that they both (conceding the first one to be good) charged the same crime. What was the crime ? Why, old fashioned larceny, as the veriest tyro in criminal jurisprudence understands it. Therefore, coming back to the oft-repeated proposition which is done for emphasis only, larceny should be pleaded in both counts. This was not done. The statement in the first count as to the goods having been stolen, is like the conclusion of an indictment for murder in the first degree where the grand jury say “ and therefore we find that A. B. on the day aforesaid did commit deliberate and premeditated murder.” That affirms nothing substantial and constitutes no part of the necessary charge, and has been so decided by this court.
    But suppose, for the sake of argument, that receiving stolen goods is a distinct statutory offense, it is thereby a dependent one, and necessitates the existence of a prior offense from which it flowed. The existence of a prior .offense, then, should be pleaded. Both creator and creature should be declared. Subornation of perjury is charged by setting out in full the perjury; nothing short will do. To punish for aiding and abetting there must be charged the chief offense; to prosecute for harboring a thief the indictment must set out the larceny by the thief in words. It would not be sufficient to say that “ C. D. stole a horse and E. F. knowing this harbored him.” The indictment must allege that C. D. “ did steal, take and drive away a certain horse,” etc. The illustration in the 132 Mass., 246, is most striking; to kill one in a duel is murder in the first degree, yet, who would contend that an indictment for such a murder would be sufficient, if it declared that “B. killed D. in a duel.” No, the crime is murder — the duel the manner of perpetration. Our statute makes death by the administration of poison, the committing or attempt to commit rape, robbery and arson, etc., murder in the first degree. But would a pleader content himself by averring that “ A., in committing arson, killed B?” What is the difference between these supposititious cases and the one at bar? There seems to be no way to avoid pleading larceny, even were the receiving of stolen goods a separate statutory offense. In the light of the case of Mann v. The State, 25 Ohio St. 668, we do not insist that the words “ did steal, take and carry away,” the common law declaration of larceny, shall be employed; but we do insist that larceny shall be specifically affirmed in terms equally as cogent and certainly no milder than those employed in Mann v. The State, supra. Implication, inference or innuendo will not suffice. We must have the clean-cut declaration that the accused “ did steal.” The indictment at bar falls far short of this. We desire particularly to call your attention to the trial court’s charge, where the jury are instructed' in the following words, to which the defendant below at the time excepted; (page 152 of Bill of Exceptions:) “ In this case there has been submitted the testimonj'- of Eva West who admits her complicity in the crime committed.”
    It is a well recognized rule that all matters of fact in dispute are left to the jury to settle; and when the court in its charge assumes such dispute to be settled one way or another it invades the jury’s province and commits prejudieal error. Cline v. The State, 43 Ohio St. 332.
    The case at bar differs from the one cited, in this, there the question went to the weight of conflicting evidence as to whether threats had been made. The court assumed that threats had been proven, and in this it erred, while here the dispute did not relate to an incidental and contributing fact, as in the Cline case, but to the whole • complaint or accusation. If it was prejudicial to Cline for the court to assume that he had made certain threats, which were but a fraction of the proof of the corpus delicti, how much more grievous and all powerful must be that assumption which hoists the whole dispute above the jury, and lays it upon the bench. Whiting contended in the common pleas and circuit court, and still contends, that no crime was committed. His plea to the general issue placed the burden upon his prosecutors to prove beyond a reasonable doubt that larceny (the corpus delicti) had been committed. A heavy burden this, oftentimes; so heavy indeed, that the state has lain down by the wayside under its weight more than a hundred times. Yet in the case at bar, the trial court substituted itself for proof, relieved ■the state, and took the load upon its own broad shoulders. Think you that this was not wrong! If in the Cline case, supra, it was invading the province of the jury to assume that threats had been made, what shall be said of that trial judge who assumes the indispensable prerequisite to have been established, when its existence is denied ? Cline might have been convicted without any proof of threats, but Whiting could not without clear proof of a larceny. Threats were evidence only tending to prove shooting with intent to wound, while in the case at bar the instruction complained of assumed the whole crime to have been proven. There is this much difference between the two cases; threats were but a part of the corpus delicti; the assumption, in the case at bar, was all of it.
    
      F. R. Fronizer, Prosecuting Attorney, and J. R. Bartlett, for defendant in error.
    I. The law does not require that the grand jury after having found and returned an indictment, on testimony sworn and sent before it, shall again hear such testimony before they can return another indictment covering the same transaction. Sec. 7207, 7191, 7192, Revised Statutes; Turk v. State, 7 Ohio, 2d. part, 240-242; State v. Clapper, 59 Iowa, 279.
    II. The motion to quash in this case, was a plea impeaching the conduct of the grand jury and alleging facts in contradiction of the record; this cannot be permitted. Turk v. State, 7 Ohio, 2d part, 242, 243. And certainly not by the testimony of one of the grand jurors that found the indictment.
    III. Is the indictment sufficient and does it charge the crime of receiving stolen property as defined by our statutes ? The settlement of this question will dispose of the questions made by the demurrer to the indictment and the motion in arrest of judgment.
    It is claimed by the plaintiff that inasmuch as section 6858, Revised Statutes, provides that a person unlawfully receiving stolen property “ shall be deemed guilty of larceny and punished accordingly,” the plaintiff should have been charged with larceny under section 6856, Revised Statues, viz.: “ That he did take, steal and carry away.” Such a construe-: tion, it seems to us, is totally subversive of all the well known principles of criminal pleading, and could not have been intended by the general assembly that passed the act.
    Such a pleading would be the suppression of the facts, and a substitution of a legal fiction, and would not only fail to furnish the accused with notice of what he is to meet, but lead him to believe that he was accused with taking, stealing and carrying away, instead of receiving. Lamberton v. State, 11 Ohio 282; Ellars v. State, 25 Ohio St. 385, 388.
    Applying this rule, as announced by this court in the Ellars case above quoted, to a charge of larceny by receiving, as defined by section 6858, Revised Statutes, we find, to procure a conviction, it is necessary to charge in the indictment, and prove upon the trial, that the property received by the accused had been previously stolen (that is feloniously taken and carried away) by some person other than the accused, and that the accused subsequently received it, knowing it to have been so stolen. Revised Statutes, sec. 6858; Russell on Crimes, 2d vol., 239 to 241, marginal paging; Roscoe Crim. Evidence, 871 to 875, marginal paging; Shriedley v. State, 23 Ohio St. 130; Holtz v. State, 30 Ohio St. 486; Ohio v. Pardee, 37 Ohio St. 63.
    And, applying the same rule to a charge of larceny, as defined under section 6856, Revised statutes, we find, to procure a conviction, it is necessary to charge in the indictment and prove on the trial, that the accused did feloniously take, steal and carry away, as the word “ steals ” used in this section implies a carrying away. State v. Mann, 25 Ohio State, 668.
    Thus it will be seen, that the definitions of the crime of larceny, as contained in section 6856, and larceny by receiving as contained in section 6858, have not been changed by the legislature from what were before the adoption of our criminal code, and also that these respective definitions are entirely different from, and opposed to, each other, and consequently the averment and proof of facts that would warrant a conviction under one of these sections, must necessarily acquit under the other. 9 Met. 138 — 143.
    Yet it is claimed by counsel, for plaintiff in error, that the indictment to charge the offense of larceny by receiving, under section 6858, must aver that the accused did unlawfully and fraudulently, receive the property then lately before stolen (that is feloniously taken and carried away), by some person other than the accused, knowing it to have been, so stolen, and in addition thereto the further inconsistent and necessarily untrue statement that, the accused did feloniously take, steal and carry away the same — 'thus charging him in one part of the count with having received property that had been previously stolen by another person, and in another part of the same count that he, the accused, did feloniously steal, take and carry away the same property; or, in other words, in an indictment consisting of a single count, charging the accused with separate and distinct offenses, and thus making the indictment bad for duplicity. Barnhouse v. State, 31 Ohio St. 39, 40. Such absurd and inconsistent pleading could never have been intended by the legislature, by the passage of section 6858.
    The ease of Commonwealth v. Pratt, 132 Mass. 246, upon which counsel for plaintiff in error rely as supporting their position, was an indictment for larceny by embezzlement, and should be distinguished from the case at bar. The rule of criminal pleading, as announced in that case, is in direct conflict with the opinion of this court as announced in the case of Ellars v. State, 25 Ohio St. 388, in this, that it requires facts to be plead that are not necessary to be proved, to wit: That he “ did steal, take and carry away,” and is opposed to the policy of our criminal law, as announced in section 7215, Revised Statutes.
    The reasoning of the Supreme Court of Mass., 132 Mass., 246, is based largely on the case of the Commonwealth v. Adams, 7 Gray, 43, which is in direct conflict with the holding of this court in the case of Ohio v. Mann, 25 Ohio St. 668.
    IV. It is only when the indictment charges two or more offenses, arising out of distinct and different transactions, .that the prosecutor may be required to elect upon which charge he will proceed, but the action of the court in this respect, being a matter of discretion, can furnish no ground for a writ of error. Bailey v. State, 4 Ohio St. 440, 442.
    But such election will not be required to be made, when the several charges in the indictment relate to the same transaction, or are simple variations or modifications of the same charge, with a view of meeting the proof.
   Minshall, J.

At the September term, 1891, of the court of common pleas of Sandusky county, to wit, September 8, an indictment was found by the grand jury against the plaintiff in error, 0.. H. Whiting. It contained two counts, the first charging him with receiving certain stolen property, knowing it to have been stolen, the second with larceny.

To this indictment he first filed a plea in abatement, to which a demurrer by the state was sustained; he next filed a motion to quash, which was overruled; he then filed a demurrer on the ground that it does not state any offense against the laws of the state, which was also overruled, and finally made a motion that the state be required to elect on which count it would proceed, which was overruled by the court. Exceptions were properly reserved to each of these rulings at the time.

He was then arraigned, and a trial had upon his plea of not guilty, which resulted in a verdict of guilty as charged in the first, and of not guilty as charged in the second, count of the indictment.

Various exceptions were reserved in the progress of the trial to the admission and rejection of evidence and to the charge of the court, which, with the rulings before stated, were assigned for error in the circuit court, as well as that the verdict is against the weight of the evidence. The circuit court affirmed the judgment. And, except as to the weight of the evidence, like errors are assigned here. We have carefully examined the various assignments of error, and such of them as are deemed of sufficient importance, we will proceed to consider.

1. As to the ruling on the demurrer to the plea in abatement: The plea avers that on or about the fifth day of September, at a time when the court was not in session, the grand jury, contrary to the oath of its members and'the instructions of the court, gave out that an indictment had been found by them against Whiting, and did then and there find and present an indictment against him. And that after the finding and presentment of that indictment, and without the examination of any witness or witnesses whatever thereafter, the grand jury found and presented the indictment herein, and before the former indictment had been nollied; the former indictment being the same as the second, except as to the count charging grand larceny, which it did not contain.

The only question presented by this plea is, as to the power of the grand jury to find another indictment upon the same evidence, without the witnesses being re-sworn .and reexamined, and before the former indictment had been nollied: For the supposed misconduct of the jury in giving out that it had found an indictment, and presenting it when the court was not in session, could not, of itself, affect the validity of one subsequently found.

We are unable to see the force of the objection presented to this indictment by the plea. The witnesses to the transaction having been once properly sworn and sent to the grand jury, there is nothing in the reason of things, why the evidence obtained upon their examination, could not be acted on at any time during tbe session of the grand jury, for a purpose within its jurisdiction. The finding of the first indictment, could not exhaust its powers concerning the matter inquired of. All the proceedings of a grand jury may be regarded as in fieri until its final adjournment. And, hence, the grand jury in this ease, had the power upon the same evidence to find another indictment, with the same or different counts, if in its judgment, the administration of justice required it. It will not infrequently happen' that, for some defect in the indictment presented, or for the want of counts that should have been inserted to meet the possible aspects of the testimony when the accused comes to be tried upon the indictment, it is prudent to present a new indictment, adapted to such contingencies, leaving the prosecutor to nolli the first one, as was done in this case. And, in such case, to require the witnesses to be again subpoenaed, sworn and sent to the grand jury for re-examination, would be a requirement of no value whatever to the accused, and unsupported by any reason. Pleas to an indictment based upon the grounds stated in this one, have met with little favor in this state. They are contrary to the policy which underlies the institution of the grand jury. Thus in Turk v. State, 7 Ohio, 240, where a similar plea was made, it is said: “ They,” the grand jury, “ are controlled by no technical rules of evidence. They must act according to the dictates of their own judgment and discretion, and whether a fact be proved by a witness, or disclosed by a fellow-juror, or from their own knowledge exists, it is their duty to present it to the court. They ought not to act rashly, nor without sufficient ground to believe, as the accusatory tribunal, in the existence of the fact they present. The grand jury are under the direction of the court, may be instructed by the court, and advised by the prosecuting attorney on matters of law. Of the facts, they alone must determine. The court neither keeps their conscience nor can control them in finding facts, when intending honestly to discharge their duty.” '

2. As to the ruling on the motion to quash. The motion contained two grounds: 1. The matter set up in the plea in abatement. 2. That the indictment was not indorsed a true bill by the foreman, as foreman. The fact being that it was indorsed by the foreman, John W. Smith, without the addition of his description, the description, “ foreman,” having been added by the clerk after the presentment of the indictment. The first ground was properly presented and disposed of on the plea in abatement — the matter presented not being-apparent on the record is not available on a motion to quash. Sections 7249 and 7250, Revised Statutes. The second ground presents no sufficient reason for quashing the indictment. It is true that an indictment must be indorsed “ a true bill ” by the foreman, and good practice requires that his description as such should be added to his name; but the omission is not fatal to the indictment. The foreman is appointed by the court, and his appointment is made a matter of record. Hence the court must take judicial notice as to who is foreman of the grand jury, and the addition of his description, in an indorsement upon an indictment, is not, therefore necessary as a matter of law.

3. Did the court err in overruling the demurrer to the indictment? This presents the question most relied on by counsel for plaintiff in error. The first count is framed upon the provisions of section 6858, Revised Statutes, which, omitting the portions inapplicable to this case, read as follows: “ Whoever.....receives .....' anything of value which has been stolen.....knowing the same to have been stolen.....shall be deemed guilty of larceny and punished accordingly.”

It is charged in the first count: “ That C. H. Whiting . . . on. the third day of September, 1891, .... in the said county of Sandusky and state of Ohio, unlawfully and fraudulently did receive ” certain personal property giving a description of it, its ownership and value, laid in all at $287 “ then lately before stolen, he, the said C. H. Whiting, then and there well knowing said personal property to have been stolen as aforesaid, and that by the receiving of said personal property which had been stolen, knowing the same to have been stolen, and by force of the statute in such case made and provided, said C. H. Whiting is deemed to have committed the crime of larceny,” with the usual conclusion, against the form of the statute and the peace and dignity of the state.

The second count contains a charge of larceny of the same property in the usual form.

It is contended that, by force of the language “ shall be deemed guilty of larceny,” contained in the section on which the first'count is founded, the offense of receiving stolen property, knowing it to have been stolen, should be charged as a larceny. In other words that the design of this section was not to define a new offense, but, by legislative extension, to make the receiving of stolen goods under such circumstances, a form of felonious asportation, and so a larceny; in analogy to the doctrine of the common law, which regards each 'removal of the stolen property by the thief a separate asportation, so that he may be indicted for larceny in any county into which he may take and carry the goods.

Although this view is supported by an argument of much force and ability on the part of counsel for the plaintiff in error, we are unable to adopt its conclusions. In the first place it does not consist with the provision contained in section 7227, Revised Statutes, that “an indictment for larceny may contain a count.....for receiving or concealing the same property, knowing it to have been stolen,.....and the jury may convict of either offense” This clearly indicates a legislative understanding that the two offenses are distinct, else why provide that an indictment for larceny may contain a count for receiving, etc., and that the jury may convict of either offense. If they are genetically alike, and not only may, but should, be charged in the same form, then this provision is not only useless but misleading.

Again, the object of all pleading is to advise the opposite party of the nature and character of the claim or charge made against him, so that he may come prepared to meet it with evidence. In the application of this principle it has become a settled rule, both in civil and criminal proceedings, that facts, and not mere conclusions from them, should be stated, otherwise the opposite party cannot know with any certainty, from the averments of the pleading, what he may be required to meet. This principle seems wholly disregarded in the argument of counsel for plaintiff in error. For, if the charge were larceny in the usual form, no conviction could be had on a case simply showing a receiving of the property, knowing it to have been stolen, without resorting to the fiction of a constructive taking — in other words, the implication of a fact that has no real existence, and which can only be made, as a conclusion of law from the facts of the ease. Therefore it is not only wrong in principle, but misleading, to charge that the defendant did steal, take and carry away certain property, when, as a matter of fact, it is known to the pleader that he did not, and the only purpose is to charge, that he received it, knowing it to have been stolen.

I have not overlooked the fact, that it is claimed, that the indictment should charge in a direct form, that the accused received certain stolen property, knowing it to have been stolen, and that it should be then averred by way of conclusion, that the accused “in manner and form aforesaid” did steal, take and carry away the property of the person named. This, however, concedes the whole contention of the state. Where the facts have been averred, the law attaches the proper legal conclusions; and their averment in the indictment adds nothing to its substance as a pleading. And where they are not stated, their averment by way of legal conclusion is of no avail. This is too well settled to admit of controversy. See Fouts v. State, 8 Ohio St. 98, and authorities cited at p. 118. It was there held that an indictment for murder, defective in not containing a direct averment of an intent to kill, as required by our statute, was not helped out by the usual conclusion, found in indictments framed as at common law, in which it is averred that the accused, “in manner and form aforesaid ” etc. “did ” etc., “purposely, and of deliberate and premeditated malice ” etc., “ kill and murder, contrary to the form of the statute ” etc. And so, in Mann v. State, 47 Ohio St. 556, the indictment was held defective, because it did not directly aver that Mann had charged the prosecutors with maliciously administering poison to his colts, though it did charge, that he accused them of a crime punishable by law, namely, of administering poison, etc. The legal effect of the averment being simply to aver, by way of conclusion, that administering poison to colts is a crime punishable by law, though it may have been done innocently.

The case of Commonwealth v. Pratt, 132 Mass. 246, is much relied on in support of the argument for plaintiff in error. The indictment there was upon a statute declaring that an embezzlement should be deemed a simple larceny; and the court held that the indictment must charge that the defendant did feloniously steal, take and carry away the property which is the subject of the indictment. This may be a proper construction of that statute; but it does not seem consistent with the holding of the same court in Commonwealth v. Simp son, 9 Metc. 138, where it is said, “ that the two offenses of larceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that, in case of embezzlement, the proper mode is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, “ shall be deemed to have committed the crime of simple larceny,” yet it is a larceny of a particular character, and must be set forth in its distinctive character. This accords with the construction we place on our own statute; the clear purpose of which is, as we think, not to make the offense of larceny and that of feloniously receiving stolen goods, identical in law, and so indictable by like forms of averment, but to provide that feloniously receiving stolen goods shall be punished as larceny; that is, where the property so received is of the value of thirty-five dollars and over, the accused on conviction shall be punished as for a larceny of a like sum, and where it is under that sum, the punishment shall be as for petit larceny. Hence the portion of this indictment to which objection is made on the ground of the generality of the averment, being mere surplusage, may be regarded as stricken out, and, as what remains sufficiently charges the offense of feloniously receiving stolen goods, knowing them to have been stolen, (since the word “steal” implies a felonious taking and carrying away, State v. Mann, 25 Ohio St. 668,) the demurrer was properly overruled.

The count demurred to is supported by approved precedents : Shriedley v. State, 23 Ohio St. 130, 138; Maxwell, Crim. Proc., 382, 383. Judge Wilson in the third edition of his work on the Ohio Criminal Code, p. 89, has, since the decision in Com. v. Pratt, added to the form given by him, “ so the jurors say that in manner and form aforesaid,” the accused “ did steal, take and carry away,” etc., but, in so doing he has, as we think, simply added to the phraseology of his form, without adding anything to its legal effect.

4. As to the motion that the state should be required to elect on which count it would proceed: There was no error in overruling this motion. The code specially provides as before shown, that an indictment for larceny may contain a count for receiving the same property, knowing it to have been stolen. It is claimed, however, that it should have been averred to be the same property. It is shown by its description, its value and ownership, to have been the same property. This we think, in the absence of a motion to quash on that express ground, is sufficient.

This disposes of all the assignments, except as to the errors claimed to. have occurred at the trial. An examination of the transcript fails to disclose that the bill of exceptions was ordered to be made a part of the record. This is necessary to enable the court to review rulings made at the trial, and which do not otherwise appear from the record. But the plaintiff in error has lost nothing from this oversight, as, from an examination of the bill, we fail to discover any errors committed at the trial, for which the judgment should be reversed.

The two errors most relied on in this regard are: 1. The court erred in saying to the jury, “ in this ease there has been submitted the testimony of Eva West, who admits her complicity in the crime, the weight and degree of credit which ought to be given her testimony is a matter exclusively for your consideration,” the objection being to the language, “ who admits her complicity in the crime,” it being claimed that this should have been left to the jury, and not assumed by the court. Now it appears from the evidence that Eva West testified that she did take the ring, valued at over 1150.00, that it belonged to Mrs. West, and that she did not at the time intend to return it; and further testified to a state of facts, which, if believed, showed that the defendant, Whiting, received the property, knowing it to have been stolen and converted it to his own use. The jury were then told, that such evidence should be cautiously received and closely scrutinized by them. We fail to perceive how the accused could have been prejudiced by what the court said in this regard. It was an observation made in his favor. It did not take from them the question, whether the girl was to be believed in what she stated in regard to her own connection with the offense; on the contrary, it submitted her entire statements to the jury as evidence to be cautiously received by them and closely scrutinized. 2. That the evidence showed, if believed, that the accused was an aider and abettor in the commission of the larceny, and that he could not, therefore, be lawfully convicted of the crime of receiving the goods, the latter being a separate offense. The fallacy in this consists in assuming that the jury must have believed, if they believed any part of the evidence, that Whiting was an aider and abettor of the larceny. The jury may have had doubts about this, and yet have fully believed that, though not connected with the stealing of the goods, he feloniously received them, knowing them to have been stolen. If this were so, then they rightly acquitted him on the second count, which was for larceny, and found him guilty as charged in the first. There is no such state of the evidence.as should have required them to find differently.

We see no error in the record, and the judgment is

Affirmed.  