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Hollingsworth v. The State.

had made an examination of the books, records, papers and files of the treasurer's office, covering the time appellant was treasurer, were allowed to testify and to state the totals of the amounts received and paid out by appellant as such treasurer, as shown by such books and records.

It is conceded by appellant's counsel, that in civil actions where, as here, the books, records, papers and entries are voluminous and multifarious, and of such a character as to render it difficult for the jury to arrive at a correct conclusion as to amounts, expert accountants may be allowed to examine such books, etc., and to give to the jury the result of their examination and investigation.

Some doubt is intimated as to whether or not such testimony should be allowed in criminal prosecutions, and it is said that, if allowed at all in such cases, it should be with the greatest caution. There should be caution in all cases, but we can think of no principle which would admit such testimony in civil cases and exclude it in criminal prosecutions.

The main objections urged to the testimony in the brief in behalf of appellant are, that the books, records and papers, from which the accountants got the data upon which they computed the amounts stated by them, were not sufficiently identified, and were not such as the law requires shall be kept.

We have examined the evidence, and have no hesitancy in holding that the identification was sufficient, in the absence of any countervailing testimony on the part of appellant.

The statement of counsel that the books, etc., examined by the accountants were not such as the law requires to be kept, unsupported as it is by the citation of any authorities or any attempt at argument, does not require that this opinion should be extended to specify in detail the books, etc., so examined. It is sufficient, in answer to that statement, to say, that in our judgment the books, etc., so examined were the Hollingsworth «. The State.

proper sources from which to derive the data upon which to compute the amounts received and paid out by appellant.

Some other questions are suggested in the brief of appellant's counsel, but they are not supported by any argument, or attempt at argument, nor by the citation of any authorities. Such suggestions or statements do not fill the requirements of the rules of this court upon the subject of briefs. It has been many times held by this court that without a brief substantially as required by the ru les, alleged errors will not be passed upon. Liggett v. Firestone, 102 Ind. 514; Pratt v. Allen, 95 Ind. 404; Northwestern Mut. Life Ins. Co. v. Hazelett, 105 Ind. 217; Landwerlenv. Wheeler, 106 Iud. 523.

Some irregularities, perhaps, intervened in the trial below, but upon an examination of the whole case, it is apparent that they did not affect the substantial rights of appellant.

The statute'makes it the duty of this court, in the consideration of questions which are presented upon an appeal in a criminal cause, to disregard technical errors or defects, or exceptions to any decision or action of the court below, which did not, in the opinion of this court, prejudice the substantial rights of the defendant. Section 1891, R. S. 1881; Dukes v. State, 11 Ind. 557; Myers v. State, 101 Ind. 379; Stout v. State, 96 Ind. 407; O'Connor v. State, 97 Ind. 104; Thomas v. State, 103 Ind. 419 (437).

That appellant was short in his accounts there can be no question, upon the evidence in the record. Some of the witnesses testified to his admissions of that fact. Upon the trial he made no effort to contradict that testimony, nor did he attempt in any way to meet the case made by the State, by showing that he had received less than the amounts shown by the State's evidence, or that he had paid out more than the amounts shown by that evidence. That, upon the evidence in the record, appellant was guilty of embezzlement under the statute there can be no doubt.

Strieb v. Cox, Treasurer, et al.

The record, we think, presents no error for which this court should reverse the judgment.

Judgment affirmed.
Filed June 18, 1887.

No. 12,809.
STRIEB v. Cox, TREASURER, ET AL.
FREE GRAVEL ROAD.— Assessment.Collateral Atlack. -Assessments for the

construction of a free gravel road can not be impeached collaterally,
unless the proceedings of the board of commissioners under which they

are made are void. COUNTY INDEBTEDNESS.- Free Gravel Road Bonds.- Constitutional Inhibi

tion.—Bonds issued by a board of commissioners, under the provisions of section 5097, R. S. 1881, for the purpose of raising money for the construction of a free gravel road, do not constitute or evidence an indebtedness incurred by the county within the inhibition of article 13 of the State Constitution.

111 299 111 600 112 366 115 330

16 381 120 523 11 299 121 299 125 463 127 505 111 299 128 76 128 238 111 299 1130 517 111 299 131 421 132 29

From the Grant Circuit Court.
J. A. Kersey and L. D. Baldwin, for appellant.
A. Steele and R. T. St. John, for appellees.

111 299 135 333 1111 299 (137 388 111 299 140 251 111 299 146 471 146 503 111 299 148 173 149 122 111 299 153 256 153 278 111 299 155 488 155 495 111 299 171 722

Howk, J.-Errors are assigned here by appellant, the plaintiff below, upon the record of this cause, which call in question (1) the overruling of his demurrer to the third paragraph of appellees' answer, (2) the sustaining of appellees' demurrer to the first and second paragraphs of appellant's reply, and (3) the sustaining of appellees' demurrer to the third paragraph of appellant's reply.

From these assignments of error, it is manifest that this case is presented here solely upon the pleadings of the parties respectively. The suit was by appellant, Strieb, as plaintiff, against the appellees, the treasurer, auditor and board of commissioners of Grant county, as defendants. In

Strieb v. Cox. Treasurer, et at.

his complaint herein, which was filed below on the 23d day of January, 1884, appellant alleged that he was a citizen and taxpayer of Grant county, and had paid all taxes legally assessed against and due from him in such county; and that he was the owner, in fee simple, of certain parcels of real estate, particularly described, all in Grant county.

Appellant further alleged that, on the 14th day of August, 1883, the value of all the taxable property within Grant county, as ascertained by the last assessment for State and county taxes, prior to the day and year last named, was $8,972,840, and that two per centum of that amount was $179,456.80; that, on such 14th day of August, 1883, and for three months previously, such county of Grant was indebted in the sum of $280,301.33, of which indebtedness of such county the sum of $215,000 was then and since evidenced by the bonds of such county of Grant, then and since outstanding as evidences of such indebtedness; that, on such 14th day of August, 1883, such county of Grant being so indebted as aforesaid, the board of commissioners of such county then and there contracted and issued the bonds of such county, for further indebtedness, in the sum of $43,000; that there was not then, nor had there been since, any money in the treasury of Grant county, out of which such additional indebtedness of $43,000, or any part thereof, could be paid or that could be applied to the payment thereof.

And appellant further alleged that, for the payment of the bonds of such county of Grant, issued for and evidencing such additional indebtedness of $43,000, the board of commissioners of such county had levied and assessed a special tax of $1,104.50 upon appellant's real estate described in his complaint, and had attempted to order, adjudge and decree the same a first lien upon all such real estate, and had caused such county auditor to place the same on a special tax duplicate, called a gravel road tax duplicate, and to deliver the same to such county treasurer; and that such treasurer then had such duplicate in his hands, and was threatening and Strieb v. Cox, Treasurer, el ut.

^bout to proceed to collect such pretended assessment and tax by distress and sale of such real estate, to the great and irreparable injury of appellant. Wherefore, etc.

In the third paragraph of their joint answer, appellees alleged that, on April 6th, 1881, certain citizens and landowners of Grant county petitioned the board of commissioners of such county for the location and construction of a free gravel road, known as the Marion and Huntington free gravel road, and being the same road named in the complaint herein; that such petition was duly considered and its prayer granted by such board of commissioners; that said petitioners also filed their bond as required by the statute; that thereupon such board of commissioners appointed three disinterested freeholders to view, locate and lay out said road, who were duly notified thereof by such county auditor; that after having given due notice of the time and place of meeting, and of the kind of improvement asked for, such viewers met at such time and place, and, having first taken an oath for the faithful and impartial discharge of their duties as such, they duly proceeded to view, examine, lay out and locate the said road according to law; that such viewers and their engineer made their report to such county board, at its next regular session, and therein stated that said road would, when completed, be of public utility, and reported their estimate of the expense of such improvement; and that, upon the return of said report, such board of commissioners found and entered of record that said road would be of public utility and benefit, and then and there ordered that said improvement be made according to law.

And appellees further averred, that a majority of the resident land-owners of such county, whose lands would be affected, and being a majority of the owners of the whole uurnber of acres of lands reported as benefited, subscribed said petition; that after such order was finally made, such

county board ordered and appointed as engineer

of said work, who, with the approval of such board, let such

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