such street may, within ten days from the payment of the contract price shall not be decompletion of the assessment roll, file a writ-pleted by reducing the assessments. City of ten verified petition in the circuit or superior Indianapolis v. American, etc., Co., 176 Ind. court of the county in which such city is 510.1 A duty is none the less ministerial besituated, showing that the amount assessed cause the person who is required to perform against such lot or parcel of land is excessive it may have to satisfy himself as to the existand that it is not benefited by such improve- ence of a state of facts under which he is ment to the amount of the assessment. Upon given his right or warrant to perform the rethe filing of this petition the court was re- quired duty. Public Service Commission v. quired to appoint appraisers to determine the State ex rel. Merchants' Heat & Light Co. (No. amount of special benefits accruing to the 22739) 111 N. E. 10. From what has already lots and parcels of land described in the peti- been said, it is clear that the act of placing tion. The determination of such appraisers the amount in which the assessments had was final, and, in case the amount of bene- been reduced as a charge against the city was fits assessed against any parcel of land was clearly mandatory under the terms of the reduced, the board of public works were given statute. It is such a ministerial act as can power to order the payment of the amount of be enforced by mandate. People v. Graham, such reduction out of any fund appropriated 16 Colo. 347, 26 Pac. 936; Claudius v. Melvin, to its use by the common council. Under the 146 Cal. 257, 79 Pac. 897; Havens v. Stewart, provisions of this section as amended in 1909, 7 Idaho, 298, 62 Pac. 682; State ex rel. Hamthe special benefits accruing to lots and par- ilton v. Engle, 127 Ind. 457, 26 N. E. 1077, 22 cels of land described in the petition are to Am. St. Rep. 655. be determined by the court, or the judge thereof in vacation, instead of by appraisers as before the amendment. In view of the former laws providing for appeals, and the general plan of procedure as set out by the sections of the statute under which these proceedings were carried on, it is apparent that the only question rightfully submitted to the trial court upon the appeal thereto was whether or not the assessments made against the various property owners should be reduced. The statute provides that no transcript shall be necessary and that it shall be sufficient to state in the petition the nature of the proceedings, the description of the property, and the amount of the assessment made against it. It requires that notice of the appeal be given to the city, but no notice is required to be given to the contractor nor to any other person affected. It is quite apparent that no question can be determined on such an appeal other than the special benefits to the property described in the petition, and that the city is made a party because it alone can be affected by the determination of the question involved. The defendant, judge of the superior court, had no power or jurisdiction to pass upon the validity and legality of the proceedings on the appeal in this case, the statute giving jurisdiction only to decide whether or not the various assessments as made by the board were excessive. Upon finding that the assessments in question should be reduced, the duty was enjoined by law upon the judge before whom the appeal was tried to render judgment against the city for the amount of such reduction. The provision is clearly mandatory, and, taken in connection with the provision that the board shall fix the aggregate amount of special benefits and that the city shall pay the amount of the difference between the amount of the special benefits and the contract price, shows that the intention is that the fund for the [7] The defendant further contends that a mandamus cannot issue in this case for the additional reason that relator had an adequate remedy at law. The remedy which is suggested is that of an appeal from the judgment of the court denying the relators' petition to intervene. Relators, as a preliminary to filing their petition for mandamus, were required to make a demand on defendant for the action sought to be compelled. The relators had no right to intervene in a proceeding against the city by property owners from assessments, in which proceeding, as has been pointed out, the only valid issue was how much of the cost of that improvement should be paid by the property owners and how much by the city. The request was made for the purpose of establishing relators' right to bring the action for mandamus, and there was nothing from which to appeal. [8] It is finally suggested that compelling the defendant to enter a judgment against the city as prayed for in the petition would be an adjudication of certain issues between the city and the relators herein, and would preclude the city from any defense it might have against such contractors. As the contractors could not be parties to the appeal under the statute, it is apparent that no judgment could be rendered therein which would deprive them of their lien or otherwise affect their rights. It is equally clear that no judgment rendered therein could in any way affect the rights of the property owners or the city, as against the contractors. The judgment, which the statute prescribes shall be rendered on the reduction of assessments in such a proceeding, is not such a judgment as would have the effect suggested. The relators are in no way parties to the proceedings on appeal from the assessments made by the board of works, and any claim or defense which may have existed between the city and such contractors could be in no way adjudicated by the action of the trial judge, 196 N. E. 608. in rendering the so-called judgment against | certainable from the ballot; and the intention the city and in favor of the lienholders. of the voter will be given effect, although the A judgment, in the sense that it is used in marking of the voter does not conform strictly to the provisions of the statute on that subject. this statute, means the transfer of the [Ed. Note.-For other cases, see Elections, amount by which the assessment is reduced Cent. Dig. §§ 166, 167; Dec. Dig. 194(3).] from the appealing property owner to the 5. ELECTIONS 194(1)-BALLOTS-"DISTINcity. The complaint states facts sufficient to constitute a cause of action. Four paragraphs of answer were filed, and a demurrer addressed to the second, third, and fourth paragraphs of such answer was sustained by the court leaving the case at issue on the complaint and the first paragraph of answer, which is a general denial. (185 Ind. 105) GUISHING MARK"-INTENTION. Under Burns' Ann. St. 1914, § 6934, slight have occurred by accident will not invalidate a pencil marks or dots on the ballot appearing to ballot as being "distinguishing marks," although not in the spaces required for marking a ballot. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. 194(1).] Appeal from Circuit Court, Tipton County; James M. Purvis, Judge. Action by Frank Bedford Spaulding against James L. Romack. From a judgment for defendant, plaintiff appeals. Affirmed. Coleman and Edward Daniels, both of TipA. C. Harris, of Indianapolis, and J. R. ton, for appellant. Kemp & Kemp, Clinton T. Brown, and Gifford & Gifford, all of Tipton, for appellee. The evidence on the trial of this issue supports the material allegations of the complaint and the court finds that relators are entitled to a writ of mandamus directing the defendant, as judge of the superior court of Vigo county, to enter an order in the consolidated case of Agnes Ring v. City of Terre Haute, directing the city of Terre Haute to pay the amount by which the assessment against the several lots and parcels of land LAIRY, J. This is an appeal from a affected by the judgment in the case were re-judgment of the trial court in an action to duced, as other street improvements are paid contest an election. Appellant and appellee by said city. It is directed that judgment be entered in accordance with this opinion, and trustee of Liberty township, Tipton county, were opposing candidates for the office of that the costs be taxed against relators. Ind., at the election held on the 3d day of November, 1914. The only error assigned is based on an action of the trial court in overruling appellant's motion for a new trial. The causes assigned for a new trial question certain rulings of the court in admitting in evidence certain ballots purporting to express votes for appellee. On the trial it was admitted that 194 votes were cast and properly counted for appellee, and that 224 votes were cast and properly counted for appellant. The vote of each candidate as thus admitted was increased 7 votes by ballots admitted in evidence without objection. Over appellant's objection the court admitted 46 ballots, each purporting to express a vote for appellee; [Ed. Note. For other cases, see Elections, and over appellee's objection 15 ballots were Cent. Dig. §§ 166, 167; Dec. Dig. 194(6). For other definitions, see Words and Phrases, admitted, each purporting to express a vote First and Second Series, Distinguishing Mark.] for appellant. The court thus found the 2. ELECTIONS 194(1)-BALLOTS-"DISTIN- total vote cast for appellant to be 246 and the total vote cast for appellee to be 247. SPAULDING v. ROMACK. (No. 22793.) (Supreme Court of Indiana. June 21, 1916.) 1. ELECTIONS 194(6)-BALLOTS-"DISTINGUISHING MARK"-CROSS-MARKS AT IMPROPER PLACE. Ballots, marked with a cross on a square at the left of a space where there is no candidate's name, are not invalid as bearing a "distinguishing mark," under Burns' Ann. St. 1914, § 6934, providing that any ballot bearing a distinguishing mark shall be void, and any ballot or part of a ballot, from which it is impossible to determine the elector's choice of candidates, shall not be counted as to the candidate or candidates affected thereby. GUISHING MARK"-CROSS-MARKS AT IMPROPER PLACE. The provision of Burns' Ann. St. 1914, § 6934, that all distinguishing marks appearing in a ballot shall render it void, is mandatory. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. 194(1).] 3. ELECTIONS 194(4)—BALLOTS-"DISTINGUISHING MARK"-SHAPE OF MARKS. Ballots, marked with an imperfect cross in the proper space for a cross are not invalid as bearing a "distinguishing mark," under Burns' Ann. St. 1914, § 6934. The objection urged by appellant against the 46 ballots admitted and counted in favor of appellee is that each of such ballots bears some distinguishing mark which renders it invalid. [1] The original Australian ballot law was passed in this state on March 6, 1889 (Laws 1889, c. 87). Under the provisions of section 45 of this act, the voter was required to use a stamp furnished for that purpose in marking his ballot. In indicating his choice of candidates the elector could vote a "straight 194(3)-BALLOTS-"DISTIN- ticket" by placing the stamp on the square Under this law, a voter will not be deprived to the left of the name of the political party of his vote by mere inadvertence, mistake, or ig- whose candidates he desired to support. In norance on his part if an honest intention is as- the case the elector desired to vote à [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. 194(4).] 4. ELECTIONS GUISHING MARK"-INTENTION. mark on the ballot in violation of this provision shall be treated as a distinguishing Thirty-seven of the ballots counted for appellee were marked with a cross on a square at the left of a space where there was no candidate's name. Appellant, relying upon che case of Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204, 22 L. R. A. 468, contends that these ballots so marked bore distinguishing marks under the express terms of the statute. It was held in the case relied on that, where no name of a candidate appears under the title of an office in a certain list of candidates, a stamp mark in the square at the left of such blank space is a distinguishing mark. As such a mark is not on or touching any circle enclosing an emblem and is not on or touching any square at the left of the name of any candidate as provided by the statute, it was thus held to be a mark in violation of the act and hence a distinguishing mark under its terms. "split" or "mixed" ticket he was permitted to At the session of 1897 the Legislature passed an act slightly modifying the statute of 1891, as to the printing of ballots and the mode of indicating a choice of candidates by the voter. Acts 1897, p. 49. Section 1 of this act provides that the party emblem should be enclosed in a circle instead of a square, and by section 3 the voter was required to indicate his choice of candidates by the use of a blue pencil furnished for that purpose, instead of using the stamp as provided by previous laws on the subject. To indicate his choice he was required to make a cross, thus, X, with the blue pencil, but no change was made in the act of 1891 as to the placing of the marks to indicate a choice of candidates. The mark by the blue pencil was substituted for the mark to be made by the stamp, and no other substantial change was made in regard to marking ballots. This section provides that a The rule declared by this decision would tend to work a great hardship to many innocent voters who attempt to vote a mixed ticket. There can be no doubt that most of such voters are adherents of some one of the political parties and desire to vote for most of the candidates of that party. In an attempt to vote a mixed ticket, such a voter would probably use care to mark the squares at the left of the names of such candidates of other parties as he desired to support, and would carefully refrain from marking the squares at the left of the names of candidates of his own party for these offices. Having accomplished this, he desires to vote for all of the other candidates on his party ticket, to do which he must mark the square at the left of the name of every other candidate. In his haste to complete the marking of his ballot he may make a cross in each of the remaining squares in the list, under the emblem of his party, without looking closely to see that a candidate's name appears at the right of each of them. In so doing he may mark squares which are not at the left of the name of any candidate and thus would invalidate his ticket by a distinguishing mark within the rule declared by the decision referred to. In the later case of Lewis v. State ex rel., 109 N. E. 777, this court did not follow the rule announced in Sego v. Stoddard, supra, but adopted the principles announced in the case of Borders v. Williams, 155 Ind. 36, 57 N. E. 527. In that case, it was held that a cross, placed in the squares at the left of the names of two candidates for the same office, does not invalidate a ballot within the meaning of the statute, for the reason that it merely renders it impossible for the canvassers to determine from such ballot the voter's choice as to these two candidates, and discloses no unlawful intent on the part of the voter. Although the effect of a certain provision of section 13 of the act of 1891 (Acts of 1891, p. 133), is not discussed in the opinion in the case of Sego v. Stoddard, supra, this provision of the law which still remains is set out and construed in Borders v. Williams and Lewis v. State ex rel. The provision referred to is as follows: "And any ballot or part of a ballot, from which it is impossible to determine the elector's choice of candidates, shall not be counted as to the candidate or candidates affected thereby." Section 7 of the act of 1897, page 54; Burns' 1914, § 6934. The court in the case of Borders v. Williams, was of the opinion that, construing the section of the statute last quoted together with the other sections of the act, it was the intention of the Legislature that, when a ballot was found to have been marked in a manner manifesting no ulterior purpose, but failing merely to express a choice in certain particulars, such ballot should not be thereby invalidated as a whole, but only should not be counted as to the candidates affected. The ballots now under consideration in the case at bar and those in the case of Lewis v. State ex rel., supra, are similar to those held valid in the case of Borders v. Williams. The marks complained of are crosses appearing in squares as provided by the act; and, while they fail to express a choice of candidates for a particular office, they do not appear to have been made with any unlawful design. [2] Were this a case of first impression, it is possible that the court would feel inclined to adopt a more strict construction of the statute as was done in the case of Sego v. Stoddard. Courts generally, however, have not given so strict a construction to statutes of that kind. With a view to giving effect to the intention of the voter, a substantial compliance with the law in the preparation of the ballot has been held to suffice, if the general appearance of the ballot is such as to clearly indicate an honest effort of the voter to comply with the law. The law declares that all distinguishing marks appearing upon the ballot shall render it void; and this provision is mandatory. To adopt at this time, however, a strict and technical view in the consideration of what are distinguishing marks, within the meaning of the statute, would tend to work great injustice and hardship, as it would completely revolutionize a method of voting and canvassing votes employed and observed for years. Such hardships would be out of all proportion to the good to be accomplished. Under the authority of Borders v. Williams and Lewis v. State ex rel., supra, this court did not err in admitting these 37 ballots in evidence and counting them for appellee. which do not conform strictly to the cross which the statute provides shall be made by the voter for that purpose. These ballots are objected to upon the ground that, inasmuch as the designs used by the voters in the expression of their choice do not conform to that designated by the statute, they are marks in violation of the statute and hence distinguishing marks under the express provisions of the law. There can be no doubt that the Legislature, in providing that the voter should indicate his choice of candidates by a cross thus (x), intended that the mark should be made with the blue pencil, and that it should be in the form of a cross. Adopting a strict construction of the illustration given as to the form of the cross, however, would be unduly technical and would tend to defeat the purpose of the act, which was not alone to secure the purity of elections, but was also to provide for the safe and efficient and practical system of ascertaining the will of the people. A strict and literal construction of this section of the act would necessarily result in the nullification of practically all the votes cast, for the reason that it would be almost impossible for a voter to make lines absolutely straight, make them of exactly the same length, and make them cross at angles precisely measuring to these formed by the cross which is set out in the statute. Under a more liberal doctrine, courts have been inclined to treat the illustration as used in the section as being merely directory. Accordingly a substantial compliance with the design provided by the statute is all that has been required. A voter will not be deprived of his vote by mere inadvertence, mistake, or ignorance on his part if an honest intention is ascertainable from the ballot; and the intention of the voter will be given effect, although the marking of the voter does not conform strictly to the provisions of the statute on that subject. Lewis v. State ex rel., supra: State ex rel. v. Thornburg, 177 Ind. 178, 97 N. E. 534; Bechtel v. Albin, 134 Ind. 193, 133 N. E, 967. [5] Exhibits Nos. 4, 37, 47, 56, and also Exhibit No. 48, were objected to, upon the ground that such ballots bore upon the face thereof distinguishing marks by which the ballots and the voters who prepared them could be identified and that such ballots were therefore void. can- therefore void. On each of these ballots there appears a slight pencil line or dot at some place on the face of the ticket. These lines or dots, however, are of such a character as to forbid the belief that they were made with design; on the contrary, they appear to have occurred by accident. While technically they are marks other than crosses [3, 4] The remaining 9 ballots bore marks within circles or squares as designated by dissimilar in character. Exhibits 17, 31, 48, the statute, under the view taken by our 49, and 54 are ballots which contain in courts they are not distinguishing marks squares or circles a more or less imperfect such as the act contemplates shall render cross, which purport to have been used by the ballot void. It has been held that a a ballot is such a one as fairly imputes upon its face design and dishonest purpose, and that the slight soiling of ballot which reasonably appears to have been the result of accident or want of due care by the voter in that regard, is not sufficient to condemn it if otherwise fair. Tombaugh v. Grogg, 156 Ind. 355, 59 N. E. 1060. Great variations and conflicts in the decisions have arisen in the application to specific cases of election laws on the subject of marking ballots. While the conflict existing among the opinions can be partly accounted for by the different statutory provisions which exist in different states, they cannot be all so explained. The subject under consideration is discussed and the conflict among the decisions shown in a recent work with citation to numerous authorities. 9 R. C. L. §§ 130 to 136, inclusive. A general tendency, however, is manifested toward the adoption of the liberal doctrine followed in this opinion. The trial court was evidently of the opinion that these 9 ballots in question bore no marks upon their face of such a character as to be in violation of the law, and that they were marked by the voters who prepared them in substantial compliance with the provisions of the statute on that subject. Under this view these exhibits were correctly admitted in evidence, and this court is of the opinion that the trial court did not err in the view so taken. There was no error in overruling appel lant's motion for a new trial. Judgment affirmed. (185 Ind. 147) HAWKINS v. STATE. (No. 23065.) (Supreme Court of Indiana. June 28, 1916.) 1. CRIMINAL LAW 424(3)-CONSPIRACYEVIDENCE- DECLARATION OF COCONSPIRA TORS. ERWIN, J. Appellant was convicted of the crime of conspiracy to commit a felony. The indictment charges that appellant, with one Ohlrogge, conspired to commit the larceny of certain personal property belonging to James C. Hamilton and Edith Hamilton, partners in trade, doing business under the firm name and style of the Empire Furniture Company. Many questions are presented under the assignment that the court erred in overruling the motion for a new trial. These include alleged errors in giving instructions; refusing to give instructions tendered by appellant; the admission of certain evidence pertaining to other similar crimes; and that the verdict of the jury is contrary to law, and not sustained by sufficient evidence. [1, 2] In the trial of the cause James C. Hamilton was called as a witness for the state and gave testimony as to the selling of the goods in question to Ohlrogge and the terms, etc. This witness was then asked to give a conversation had with Ohlrogge, an alleged coconspirator of appellant, after the return of the indictment in this case, and at a time when the conspiracy, if any, had been consummated and after the acts which were The the gravamen of the offense charged had been fully performed. This conversation was had in the jail where said Ohlrogge was conOn a prosecution for conspiracy to commit fined and in the absence of appellant. larceny, the statements of an alleged cocon- statement by the witness as to the converspirator made after the return of the indict-sation with Ohlrogge was to the effect that ment and after the consummation of the conspiracy, and not made in the presence of defendant, are inadmissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1004; Dec. Dig. 424(3).] 2. CRIMINAL LAW 1163(3)-APPEAL AND ERROR-ADMISSION OF IMPROPER EVIDENCEPRESUMPTION OF PREJUDICE. The erroneous admission in a trial for conspiracy to commit larceny of statements made by a coconspirator not in the presence of defendant and after the consummation of the alleged conspiracy will be presumed harmful until the contrary is shown. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3094, 3095; Dec. Dig. 1163(3).] 3. CRIMINAL LAW 369(1)-EVIDENCE-CONSPIRACY-OTHER OFFENSES. In a prosecution for conspiracy to commit larceny, evidence that defendant was guilty of other conspiracies with persons other than those named in the indictment is inadmissible. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. 369(1).] appellant had let him, Ohlrogge, have $10 to make the first payment on the furniture, and had let him have $5 more, and that appellant was supposed to sell the furniture and divide the money between them. To the introduction of this evidence appellant made timely objections: "That this statement, if any was made, was in the absence of appellant and made after the alleged conspiracy had ceased to exist." This objection was overruled, and proper exceptions saved. This was an erroneous ruling, and will be presumed to be harmful unless the contrary appear. Cleveland, etc., R. Co. v. Case, 174 Ind. 369, 91 N. E. 238; Miller v. State, 174 Ind. 255-259, 91 N. E. 930. "The authorities go to the proposition that the acts or statements competent to be proved must have been done or made in the prosecution of the criminal conspiracy, or in the furtherance For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |