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Appellant asserts that, as the evidence ry out the object and purpose of said conshows Manos was dead at the time the car in spiracy, induced and procured the said Larrison controversy was taken from him, it appears and Chatten to steal automobiles and bring from the evidence that Manos did not at them to Washington to sell, or trade to the said time own the car; that it belonged to of such conspiracy the said Larrison and Chatdefendant or Rhodes, and that in pursuance his estate. The evidence tends to show that ten did steal automobiles and bring them to these young men conspired to take said auto- Washington, and sold or traded said automomobile from Manos and sell it, and in the biles to the defendant or Rhodes, and that the execution of their said intention he was kill- automobile mentioned in the affidavit was one ed. Their intent to so take his car existed of the automobiles stolen by Larrison and long before his death, and, if the jury was Chatten and brought by them to Washington, satisfied of this, the jury was justified in and sold or traded the same to the defendant, finding that they had to all intents and pur-in this action would be bound by all the things then the court instructs you that the defendant poses stolen his car prior to his death, and that he was the owner of it at the time it was stolen. Under these circumstances, we cannot say that the jury's verdict was contrary to law.

[4] Appellant asserts error in the giving of instruction No. 42 and instruction No. 8 by the court of its own motion. Instruction No. 42 is as follows:

"(42) It is contended on the part of the defendant in this cause that Andrew Manos, who owned the Dodge car mentioned in the affidavit, was dead at the time Chatten and Larrison got said car, and that dead men cannot own property. It is further contended on behalf of the defendant that Chattel and Larrison, at the time they got possession of the car mentioned in the affidavit, that they intended to hold Manos up and rob him, and not to commit a larceny of the car. The court instructs you that if you find from the evidence, beyond a reasonable doubt, that Chatten and Larrison, or either of them, shot and killed Manos, and that at the time of such killing, and as a part of said transaction, they took possession of said car, then the court instructs you that the taking of said car, under such circumstances, was a larceny of the car by Chatten and Larrison. In regard to the contention that Chatten and Larrison intended to hold Manos up and rob him, and did not intend to commit the offense of larceny, the court instructs you that it would make no difference whether Chatten and Larrison intended to rob Manos of his car, or to steal it, and thereby commit the offense of larceny, as every robbery necessarily includes the offense of larceny."

Instruction No. 8 is as follows:

"(8) If you find from the evidence, beyond a reasonable doubt, that, before the time it is charged in the affidavit that defendant received the automobile mentioned in the affidavit from Virgil Larrison and Dewey Chatten, the defendant and Charles Rhodes entered into a conspiracy for the purpose of prosecuting a common enterprise, and that in the prosecution of such common enterprise and to car

done and said by the said Rhodes in promoting and to carry into effect the objects and pur poses of the said conspiracy."

to

Appellant's propositions in regard these instructions are (1) that said instructions are erroneous under any state of facts, and, therefore, this court must presume that the jury was misled thereby, and, further, that when considered in connection with

other instructions, these instructions tend
to leave the jury in doubt and uncertainty
as to the law in the case presented for their
consideration, and, again, that the instruc-
tions require explanation, and limit the
freedom of the jury in considering the evi-
dence, and are ambiguous, obscure, uncertain,
unintelligible, meaningless, and likely to
confuse; and, again, that said instructions
determine the weight of the evidence and the
facts which the evidence proves.
satisfied that neither instruction 41⁄2 nor 8
is subject to any of said objections, even if
it can be said, which we doubt, that said
objections present and properly apply any
of said propositions.

We are

[5] Appellant's additional point as to said instruction No. 8 is that said No. 8 is not applicable to the issues and should not have been given. While it is true that the issue made is not against Rhodes and appellant for conspiracy, the evidence discloses a situation making it necessary for the court to determine how far the statements of Rhodes are binding upon Marco, in order that the court may determine whether to admit the statements of Rhodes as tending to show the guilt of Marco in this case, therefore it was proper for the court to state to the jury, as it did in instruction No. 8, that if they found such conspiracy to exist the statements made and the acts done by Rhodes in carrying out such conspiracy would be binding upon appellant.

We find no error. The judgment of the trial court is affirmed.

(188 Ind. 603)

(125 N.E.)

the title of the act under which the affidavit

In a prosecution for keeping intoxicants with is drawn has no reference to the penalty pro-
intent to sell or otherwise dispose of in vio- vision in section 4, and therefore that portion
lation of Acts 1917, c. 4, § 4, testimony of a wit- of the section is within the constitutional in-
ness that a bottle in evidence contained whis-hibition of article 4, § 19, of our Constitution.
ky, which he knew from the smell, held not
inadmissible; the witness being entitled to give
his opinion as to what the liquor was that was
found in defendant's possession.

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We have already seen that appellant's posi-

tion in this particular cannot be sustained.

He further supports this motion by asserting:

"That the purported paper being termed the

affidavit in this cause is not an affidavit at all,
for the reason that the same is stamped with
a rubber stamp by the officer who is supposed
to have administered the oath."

This assertion, because of its ambiguity,

uncertainty, and meaninglessness, presents

no question.

[3, 4] Appellant's motion for a new trial

Appeal from Criminal Court, Marion Coun- was overruled, and this ruling is assigned as

ty; James A. Collins, Judge.

J. Herbert Hartman and William H. Faust, conclusion. To a further question as to how

both of Indianapolis, for appellant.

MYERS, J. Appellant was by affidavit
charged, tried, and convicted in the Marion
criminal court of keeping intoxicating liq-
uors with intent to sell, barter, exchange, give
away, furnish, or otherwise dispose of the
same, in violation of section 4 of an act ap-

he knew it was whisky, he answered, "by the
smell-odor." If it could be said that this
question and the answer thereto was improp-
er, no harm to appellant could possibly have
resulted therefrom, for the reason that appel-
lant by evidence introduced in support of his
defense proved positively that this same bot-
tle contained whisky. However, the evidence
was properly admitted. The charge in this
case was keeping intoxicating liquors with

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MENT OF REALTY OUTSIDE OF CITY FOR PARK
IMPROVEMENT.

intent to sell, etc. As whisky is intoxicating 15. MUNICIPAL CORPORATIONS 433-ASSESSliquor, witness was entitled to give his opinion as to what the liquid was that was found in appellant's possession as tending to prove the charge.

[5] The further cause relied upon is that the decision of the court is not supported by sufficient evidence, and that it is contrary to law. We have carefully read the evidence as disclosed by the record, and from which we conclude that there is some evidence to support the decision. This being true, this court cannot disturb or set aside the judgment of the trial court for the want of evidence, or rule as a matter of law that the decision was contrary to law on account of the evidence. Judgment affirmed.

(188 Ind. 586)

CITY OF INDIANAPOLIS et al. v. BRYAN et al. (No. 23369.)

(Supreme Court of Indiana. Nov. 25, 1919.)

1. MUNICIPAL CORPORATIONS 410(1)—AuTHORITY TO RAISE MONEY FOR LOCAL IMPROVEMENT.

A municipality is without power to raise money to pay the costs and expenses of making a local improvement of a public character, unless such authority is expressly conferred by the Legislature.

2. MUNICIPAL CORPORATIONS 406(1)—AsSESSMENT OF PROPERTY OUTSIDE CITY FOR PARK IMPROVEMENT.

The Legislature had power to grant to a city, as by Acts 1911, c. 231, authority to levy assessments on realty benefited by a park improvement, though lying outside the corporate limits of the city, but within the assessment district created by the board of park commissioners, unless the statute would deprive a party so assessed of some right guaranteed by fundamental law.

3. EMINENT DOMAIN 145(1) COMPENSATION BY WAY OF BENEFITS FOR ASSESSMENT

FOR LOCAL IMPROVEMENT.

Special benefits accruing to land assessed with part of the cost of an improvement are regarded in law as just compensation for the

amount levied and collected as an assessment.
4. MUNICIPAL CORPORATIONS 413(1)-PARK
IMPROVEMENT NOT PRIVATE PROPERTY OF

CITY.

Enforcement of Acts 1911, c. 231, concerning the department of public parks in cities of the first and second classes, by levying and collecting assessments for special benefits from side the corporate limits of the city, held not a boulevard improvement on realty lying outto result in the taxation of such property for the benefit of the city in its corporate capacity. 6. MUNICIPAL CORPORATIONS 450(2) - Lo

CAL IMPROVEMENT DISTRICTS WITHOUT RE-
GARD TO BOUNDARIES OF CITY.

The Legislature has by Acts 1911, c. 231, power to authorize the establishment of assessment districts for local improvements, such as a boulevard or park, without regard to the boundaries of municipalities organized for governmental purposes.

7. CONSTITUTIONAL LAW

205(7)-PARK IM

PROVEMENT STATUTE NOT GRANT OF PRIVI-
LEGES OR IMMUNITIES.

Acts 1911, c. 231, concerning the department of public parks in cities of the first and second classes, under which an assessment district was formed to pay the cost of a boulevard improvement by the city of Indianapolis, including property outside the city limits, held not unconstitutional as granting privileges or immunities to the citizens of Indianapolis, which on the same terms did not belong equally to the owners of assessed property outside the city.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Suit by Ellen C. Bryan and others against the City of Indianapolis and others. From decree for plaintiffs, defendants appeal. Judgment reversed, with instructions.

Walter Myers, Wm. A. Pickens, Paul G. Davis, Edward W. Hohlt, and Robert A. Adams, all of Indianapolis, for appellants.

George Burkhart, of Indianapolis, for appellees.

LAIRY, J. The decree from which this appeal was taken was rendered by the superior court of Marion county in a suit brought by appellees, who were the owners of real estate outside of the city of Indianapolis on which assessments had been made to pay a portion of the costs and expenses of appropriating and improving certain land for parkway and boulevard purposes. The purpose of the suit was to obtain an injunction restraining the defendants from enforcing the collection of such assessments against the lands of appellees and a judgment quieting the title of appellee's in their lands as

Boulevard or park improvement constructed by the city of Indianapolis pursuant to Acts 1911, c. 231, held not such private property of the city, instead of a local improvement of a public nature, that realty lying outside the against the assessments so made, on the thecity, but benefited by the improvement and in-ory that the statute authorizing the proceedcluded within the assessment district created ing in pursuance of which the assessments by the park commissioners, could not consti- were made is void in so far as it purports tutionally be assessed with its proportion of to authorize assessments on lands outside of cost. the corporate limits of the city because it is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

in conflict with certain provisions of the state and the federal Constitutions. As shown by the complaint the proceedings were instituted by the board of park commissioners of the city of Indianapolis under the provisions of chapter 231 of the Acts of 1911, which is an act concerning the department of public parks in cities of the first and second classes. Acts 1911, p. 566. The complaint shows that such steps were taken in the proceeding under the act and in compliance with its provisions as resulted in fixing the assessments which, by the prayer of the complaint, appellees asked the court to annul. A demurrer addressed to the complaint was overruled, to which ruling appellants excepted. On the refusal of appellants to answer the court entered a decree enjoining appellants from taking any steps to enforce the assessments against the tracts of land described in the complaint, and adjudged that the title of appellees to the several tracts owned by each be quieted.

The action of the court in overruling appellants' demurrer to the complaint is assigned as error. It thus appears that the only question for decision depends on the validity of the act cited in so far as it purports to affect lands outside of the corporate limits of the city.

[1, 2] A municipality has no power to raise money to pay the costs and expenses of making a local improvement of a public character unless such authority is expressly conferred by the Legislature. Appellees do not deny, but expressly admit, that the statute under consideration if valid expressly confers the power to levy assessments on real estate benefited, lying outside of the corporate limits of the city and within the assessment district created by the board of park commissioners. The Legislature had power to grant such authority unless the exercise of the power granted would have the effect of depriving the parties so assessed of some right guaranteed by fundamental law.

[3] Appellees first assert that the enforcement of an assessment made under the power so granted as against their lands would constitute the taking of property for a public use without just compensation. Special assessments are made on the theory that the lands on which they are levied are enhanced in value or otherwise benefited by the improvement to the extent of the assessments made. The special benefits accruing to the land affected is regarded in law as just compensation for the amount levied and collected as an assessment. Harmon v. Bolley (1918) 120 N. E. 33, 2 A. L. R. 609; Wright v. House (1919) 121 N. E. 433.

[4] The next point made is that the work for the construction of which the assessment was levied is the private property of the city of Indianapolis, and that it is not such a local improvement of a public nature as can be

constructed and paid for, either in whole or in part, by special assessments levied on property affected. A boulevard is a driveway open to the general public, and is constructed for the public use and benefit. The construction of such a work is in its very nature an improvement of a public character, and it may be so located as to confer a special and peculiar benefit on real estate in the same vicinity. Real estate so affected and peculiarly benefited may be assessed to pay the costs of making such making such an improvement on the ground that it is a local improvement of a public nature. St. Louis v. Handlan (1911) 242 Mo. 88, 145 S. W. 421; West Chicago Park Com. v. Farber (1898) 171 Ill. 146, 49 N. E. 427.

[5] The enforcement of the act, by levying and collecting assessments on real estate lying outside of the corporate limits of the city, would not result in the taxation of such property for the benefit of the city of Indianapolis in its corporate capacity as contended by appellees. While special assessments are a form of taxation, they are not made and collected in the exercise of the general taxing power of municipalities by which they use revenue for the purpose of defraying the expense of the maintenance and administration of the government. Wright v. House, supra. The assessments against the real estate of appellees were levied for the sole purpose of paying the costs and expenses of making the improvement, and all funds derived therefrom must be applied to that purpose and no other. The assessment against any tract of land cannot exceed the benefits accruing to it on account of the improvement, and no part of the funds so raised can be applied to pay existing debts of the city or to defray the expenses of the city government. For the reasons just stated the case at bar is to be distinguished from the case on which appellees rely to sustain them on this point. Matter of Assessments of Lands in Town of Flatbush, 60 N. Y. 398. In the case cited the court said:

"Had the respondents been originally assessed for benefit conferred under a proper law it might then be said that the assessment was for public use, and not for a subsisting debt, and such an assessment could have been enforced. But such is not this case. And those assessed are required, by the proceedings of the commissioners, to aid in the discharge of a debt previously contracted, and to contribute money which is to be paid into a sinking fund, and to be appropriated for the payment of bonds, already issued, for the location and improvement of the park."

[6, 7] The Legislature has power to authorize the establishment of assessment districts without regard to the boundaries of municipalities organized for governmental purposes. Board, etc., v. Harrell (1896) 147 Ind. 500, 46 N. E. 124; Brown v. Baltimore, etc., R. Co.

ADMISSION BEFORE GRAND JURY ADMISSIBLE.

In a prosecution of a county commissioner for receiving compensation in addition to his salary, it was error to refuse to permit a member of the grand jury which returned the indictment to repeat what defendant as a witness had stated to the grand jury for the purpose of showing that he admitted that the claim was not for expenses personally incurred; the purpose not being to convict the defendant of perjury, nor to ascertain whether his later testimony was consistent with that before the grand jury.

(1917) 186 Ind. 81, 115 N. E. 86. In the ex-13. CRIMINAL LAW 406(5) DEFENDANT'S ercise of this power, the Legislature conferred on the park-board of the city of Indianapolis authority to prescribe the limits within which private property shall be deemed benefited by the proposed improvement, which benefit districts may include lands benefited outside of said city not more than five miles from the limits thereof. Acts of 1911, p. 566, §§ 10, 14, and 16; §§ 8756, 8760 and 8762, Burns 1914. Under the authority so conferred the board of park commissioners had power to include the lands of appellees within the assessment district of lands benefited by the improvement. The statute under consideration is not open to the objection that it grants privileges or immunities to the citizens of Indianapolis which upon the same terms do not belong equally to appellees.

The statute under consideration is not in conflict with the provisions of the state or the federal Constitutions in any of the particulars stated in the complaint. It is a valid enactment as against the attack so made, and the court erred in overruling the demurrer addressed to the complaint.

Judgment reversed, with instructions to sustain appellants' demurrer to the complaint

(188 Ind. 584)

STATE V. BRUMFIEL. (No. 23407.) v. (Supreme Court of Indiana. Nov. 25, 1919.)

1. COUNTIES 60-CRIMINAL LAW 361(1) -EVIDENCE IN PROSECUTION OF OFFICER FOR RECEIVING UNLAWFUL COMPENSATION.

Appeal from Circuit Court, Grant County; Nelson G. Hunter, Special Judge.

Oscar M. Brumfiel was acquitted of a charge of unlawfully receiving compensation from the county in addition to his salary as commissioner, and the State, as appellant, presents reserved questions of law. Appeal sustained at the cost of appellee.

Ele Stansbury, of Indianapolis, Dale F. Stansbury, of Covington, and Elmer E. Hastings, of Washington, Ind., for the State.

Stricler & Messick and Condo & Browne, all of Marion, for appellee.

HARVEY, J. Appellee was acquitted, by a direct verdict, of a charge, by indictment, of unlawfully receiving compensation from the county in addition to his salary as a county commissioner. The state presents reserved questions of law.

[1] The state complains that the court refused to allow in evidence an instrument purporting to be the claim by appellant against the county, and, further, so refused an instrument purporting to be the warrant received in payment of said claim. The claim In prosecution of a county commissioner for is objected to because it reads "for expense," unlawfully receiving compensation in addition and thus, on its face, shows that it is not to salary, an instrument, purporting to be the for compensation for services which the dedefendant's claim against the county, although fendant was obligated to render as county reading, "for expenses," should have been ad- commissioner. The state offered to follow mitted in evidence, since verbiage of the claim with evidence explaining that defendant had could not foreclose the indictment, and evidence, not incurred, personally, any expense in refexplaining that defendant had not personally in-erence to any of the roads mentioned in the curred any "expense" with reference to the roads mentioned in the claim, and that the same defendant for his time and services as a claim, and that the same was to compensate was not to compensate him for services he was not obliged to render, was admissible. commissioner, and that defendant had so stated, and, further, that the claim was allowed and paid. Defendant was charged with presenting an unlawful claim. The mere verbiage of the claim cannot, in view In prosecution of a county commissioner of the offer of explanatory evidence, foreclose for unlawfully receiving compensation in ad- the charge in the indictment. If the claim dition to salary, where defendant, after prelim- was unlawful, the wording of the same may inary examination of a witness by showing that have been intended as a cover for its illegalthe letters in the face of the warrant in ques-ity. The same was subject to such explanation, "G. R. C. Fund," meant Gravel Road Con

2. COUNTIES 60-IN PROSECUTION OF COUNTY COMMISSIONER FOR RECEIVING ALLEGED COMPENSATION, WARRANT ADMISSIBLE.

ruled.

struction or Expense Fund, objected to the in- tion. The objection should have been overtroduction of the warrant as showing it was for compensation for services the commissioner was not obliged to render, the objection should have been overruled.

[2] The warrant when identified and marked as an exhibit was offered in evidence. Defendant, after preliminary examination of

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