Johnson v. State, 1167S131
| Decision Date | 19 July 1968 |
| Docket Number | No. 1167S131,1167S131 |
| Citation | 238 N.E.2d 651,251 Ind. 17 |
| Parties | Eugene JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Hilbert L. Bradley, Gary, for appellant.
John J. Dillon, Atty. Gen., Michael V. Gooch, Deputy Atty. Gen., for appellee.
Appellant, a notary public, was convicted after non-jury trial in the Lake Criminal Court of falsely attesting an affidavit. The affidavit in question, purportedly sworn to before the appellant by one Floyd Mitchell, is in the form of an application for an absentee voter's ballot. Appellant, besides being a notary public, was a precinct election official.
The statute under which appellant was charged is Ind.Ann.Stat. § 10--3602 (1956 Repl.), and reads as follows:
'Falsely attesting afffidavit--Whoever, being a notary public or other officer or person authorized to administer oaths, certifies that any person was sworn or affirmed before him to any affidavit or other instrument or writing, when, in fact, such person was not so sworn or affirmed, shall, on conviction, be imprisoned in the state prison not less than one (1) year nor more than three (3) years, and fined not less than ten dollars ($10.00) nor more than one thousand dollars ($1000).'
Appellant urges upon this appeal only two causes for reversal:
(1) That the evidence is insufficient on the element of criminal intent to sustain the finding of guilty; and
(2) That appellant's trial counsel inadequately and incompetently represented him at trial, thereby resulting in a denial of appellant's right to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article 1, Section 13 of the Constitution of Indiana.
Turning to appellant's first allegation of error, his challenge to the sufficiency of the evidence, this Court, on appeal, will consider only the evidence most favorable to the appellee, State of Indiana, together with all reasonable and logical inferences that may be adduced therefrom. Capps v. State (1966), Ind., 229 N.E.2d 794. That evidence reveals the following:
On May 1, 1964, the appellant notarized an application for absent voter's ballot which was purportedly signed by one Floyd Mitchell of 2570 E. 22d Place, Gary, Indiana.
The notarization read:
'Subscribed and sworn to before me this 1 day of May, 1964.
/s/ Eugene Johnson'
On the same application, the appellant's signature also appeared below a printed statement which read:
'We, the undersigned legal freehold voters residing in the same precinct as the applicant for such Absent Voter's Ballot, certify that we are resident freehold voters of said precinct and that we are personally acquainted with said applicant and that the above statements are to our personal knowledge true.'
A handwriting expert testified that the same person who had twice signed the appellant's name to the application in question here also signed appellant's original notarial bond. From this a valid inference may be drawn that the appellant did notarize the application.
William Boyd, Jr., the step-son-in-law of the purported applicant, Floyd Mitchell, then testified that Floyd Mitchell died on November 23, 1963 when he was approximately 45 years of age. That is to say, Floyd Mitchell, with whom the appellant was personally acquainted, had been deceased for more than five (5) months when the appellant notarized the purported signature of Floyd Mitchell on the application for an Absent Voter's Ballot in question here.
It is the appellant's contention, however, that the evidence presented by the State in this case is insufficient as a matter of law to support the finding of guilty because there has been no proof that appellant had the requisite mens rea or criminal intent necessary to establish a violation of § 10--3602, supra. In support of this proposition appellant cites the recent case of Noble v. State (1967), Ind., 223 N.E.2d 755.
The Noble case holds that since the crime of falsely notarizing a document is purely malum prohibitum rather than malum in se, a 'mens rea' or an intent to violate the statute must exist in order for any such act to become punishable as a crime. We are in full agreement with that statement of the law. However, it must be realized that a central factor in determining whether a notary public has the intention to falsely attest an affidavit is whether he has knowledge of the true state of the facts, or reasonable means of acquiring such knowledge, at the time and under the circumstances. Where a notary public attests an affidavit purportedly signed in the notary's presence by an affiant he has known for a substantial period of time, even though the purported affiant has been dead for over five months at the time of the execution of the affidavit, it cannot be seriously contended that the guilty knowledge required for proof of mens rea has not been established. Nor is the requiremeant any different if the notary attests an affidavit which is still blank when he signs it, for in that instance, the notary cannot possibly assure himself that the signature of a purported affiant will be validly placed on the document.
It is precisely the factor of guilty knowledge which most clearly distinguishes this case from Noble v. State, supra. In the Noble case, the defendant was employed at a license branch which processed thousands of license applications a day, and, as a practical matter, the notaries public employed there could not check the credentials of every applicant while present. And when notarizations were later signed, the applicants were no longer present. Thus, the defendant there neither knew, nor had the means of reasonably discovering her false attestations at the time and under the circumstances.
The record in the present case, however, does not admit of such an interpretation. The defendant was shown to have had sufficient knowledge at the time of notarizing the application of 'Floyd Mitchell', which is State's Exhibit 1, to determine that the person who actually executed the application as Floyd Mitchell, was in fact, someone other than Floyd Mitchell.
Although, as in Noble v. State, supra, the isolated overt act of notarizing a falsely signed document does not, by itself, establish the specific intent required to commit this particular crime, this overt act can be combined with other facts and circumstances which were not...
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