Opinion, per NEWMAN, J.

formity of its operation throughout the state cannot arise. As a part of this law Section 1579-61, relating to a trial by jury, a part of the machinery of the court, was enacted. Its requirement, as we have said, is but a moderate and reasonable restriction upon the enjoyment of the right of trial by jury and does not amount to an impairment of that right. There can be no valid constitutional objection upon that ground. The fact that its provisions are local in their operation does not invalidate the section, as the law was enacted under a special grant of legislative power and may stand against the provisions of Section 26, Article II of the Constitution, requiring uniformity in operation throughout the state of laws of a general nature.

Judgment of the court of appeals reversed and that of the court of common pleas affirmed.

NICHOLS, C. J., WANAMAKER, JONES, MATTHIAS and JOHNSON, JJ., concur.

Statement of the Case.

THE STATE OF OHIO V. SCHULTZ.

Objection to criminal indictment - Because of apparent defects— Must be by motion to quash, when — Waiver of defects by other pleadings-Indictment not bad for duplicity, when — Charge of receiving and concealing stolen property-Section 13581, General Code.

1. The defendant in a criminal cause who desires to object to an indictment because of defects apparent upon the face of the record, relating to the form or manner in which an offense is charged, must do so by a motion to quash.

2. By demurring, pleading in bar, or by pleading to the general issue, he is held to have waived the defects which might be taken advantage of by a motion to quash.

3. An indictment that charges in the same count both receiving and concealing property, knowing the same to have been stolen, is not bad for duplicity. (Hale v. State, 58 Ohio St., 676, approved and followed.)

4. In an indictment wherein the defendant is legally charged with receiving and concealing stolen property, knowing the same to have been stolen, which allegations are followed by the language "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," such latter allegation is wholly irrelevant and ineffectual to either help or hurt the former charge of the indictment. It is at most a legal conclusion and should be regarded as surplusage under and by virtue of Section 13581, General Code.

(No. 15319 Decided March 20, 1917.)

EXCEPTIONS by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Muskingum county.

The facts are stated in the opinion.

Opinion, per WANAMAKER, J.

Mr. Perry Smith, prosecuting attorney, for the exceptions.

Mr. P. H. Tannehill, against the exceptions.

WANAMAKER, J. The grand jury of Muskingum. county, Ohio, returned an indictment against Harvey Schultz, the material part of which reads as follows:

did unlawfully

"That Harvey Schultz * 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 Harvey Schultz, then and there well knowing said personal property to have been stolen as aforesaid; 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."

No motion to quash, plea in abatement, or demurrer, was filed to this indictment, and upon the general issue the defendant pleaded not guilty. Thereafter the case was regularly assigned, the jury impaneled, and the court proceeded to try Schultz upon the indictment.

While the state was engaged in offering its evidence in support of the indictment, and before it had rested, the trial judge upon his own motion made the following order and statement in support thereof:

"I will say to counsel in this case that, whether

Opinion, per WANAMAKER, J.

the matter had been brought to the attention of the Court or not, the Court was going to call counsels' attention to the language of this indictment.

"This indictment is supposed to charge the offense or crime of receiving stolen property. Now if counsel for the State will carefully look over this indictment, whatever you have to urge to the Court, I would like to hear from you as to whether or not you did so charge. You attempt to charge it in the first part of your indictment. You do not charge it in the part of your indictment that makes the curative part under the statute. After reciting that the defendant 'well knowing said personal property to have been stolen as aforesaid,' the indictment says, 'and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz, then and there, in the manner and form aforesaid, unlawfully did conceal,' not receive, but 'did conceal.'

"Now you find some law that the Court ought to be guided by in the case of Holtz v. The State, 30 O. S., 486. In the syllabus of that case and in the opinion in the case, the Court holds that concealment is not a necessary or essential element of the crime of concealing or buying stolen property, and if alleged in the indictment, it is surplusage and need not be proved.

"The intention of the pleader, or the person drawing this indictment, was to charge the offense of receiving stolen property. The court is inclined to believe at this time that the only charge there is concealment.

Opinion, per WANAMAKER, J.

"You will find in the 59th O. S., p. 350, the case of Smith v. The State.

"The pleader perhaps attempted to follow the form of an indictment under Section 12450 and to follow the charge as making it different from receiving money and receiving other stolen property; did not follow in this charge, that this defendant was guilty of receiving stolen property.

"If counsel for the state have anything to urge along this line, the Court will be only too glad to hear from you."

After some further discussion the trial judge held that no offense was legally charged in the indictment, and thereupon discharged the jury and the accused. Exceptions were taken by the prosecuting attorney, which under favor of Section 13681 et seq., General Code, are now here for our consideration.

The Constitution of Ohio, Section 10 of the Bill of Rights, provides:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury; *

In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof * * *"

The indictment against Harvey Schultz was under favor of Section 12450, General Code, which reads:

"Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, em