Noble v. State

CourtSupreme Court of Indiana
Citation248 Ind. 101,223 N.E.2d 755
Docket NumberNo. 30642,30642
PartiesMary NOBLE, Appellant, v. STATE of Indiana, Appellee.
Decision Date28 February 1967

Owen M. Mullin, Indinapolis, for appellant.

John J. Dillon, Atty. Gen., Virginia D. McCarty, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

The appellant, a notary public, was charged and convicted of the crime of making a false attestation as such notary. Following a trial before the judge without a jury, she was found guilty and sentenced to not less than one (1) nor more than three (3) years in the Indiana State Womens Prison.

The question before us is whether or not the finding of the court is sustained by sufficient evidence and is contrary to law. The facts are not in dispute. It appears that on March 2, 1963, Mary Noble, the appellant, was working as a clerk-typist in the Virginia Avenue license branch of Marion County, Indiana.

Frances B. W. Epsteen, a citizen of Marion County and owner of an automobile, had not paid her 1962 taxes. Mrs. Epsteen signed her name at the bottom of a Bureau of Motor Vehicles form application for license tags for 1963. Her husband took the signed application and gave it to a 'Mr. Smock' together with $5.00 more than the amount required to purchase the license plate. Later he received the license plate from the 'Mr. Smock'. The application form which Mrs. Epsteen signed turned up filed with the Bureau of Motor Vehicles and contained the signature of Mary Noble in the blank form which was provided for the notarization of the certificate and application. The appellant had no distinct knowledge or memory of executing the certificate in question as a notary public, other than the recognition of her signature thereon as such notary. The 'Mr. Smock' does not appear further in the case. Mr. Epsteen says he had only one such transaction with him.

It further appears that the appellant worked under a supervisor at the license branch, a Norma Morris, with other coworkers who were notaries at that branch. At that time the appellant and the other coworkers were processing approximately one thousand license applications per day. Long lines formed outside. The branch remained open as much as an hour after closing in order to accommodate the applicants. These applications were processed by being signed and acknowledged in the presence of the accepting clerk-notary and were stacked aside for the signature of the notary and filling in the blanks of the jurat or certificate after the license branch had closed. In other words, these applications were processed in a production line manner after closing hours. Even with this production line practice, it took them from 10:00 to 12:00 o'clock in the evening for the branch workers to process all the applications.

When the appellant first became a notary and went to work at the license branch, she was instructed as to her duties by her supervisors and by one of the coworkers. The practice which prevailed at this license branch had prevailed there for many years in the past. It is admitted that almost all the applicants were strangers to the notaries who took their applications, and that it would have taken an unreasonable amount of time or would have been practically impossible to investigate and identify each applicant personally. The statute under which the appellant was indicted reads as follows:

'Falsely attesting affidavit.--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 ($1,000).' Acts 1905, ch. 169, § 490, p. 584, being Burns' Ind.Stat.Anno. § 10--3602 (1956 Repl.)

It is argued by the State that this statute creates strict liability, for which violation the appellant became criminally liable, regardless of any mistake or lack of personal intent. On the other hand, the appellant claims that she is the victim of a mistake and possibly trickery in the processing of these applications, and at the most, is guilty only of negligence. Appellant urges that this statute should be interpreted as requiring culpability or evil intent as an element thereof. In that connection, appellant cites the Acts of 1925, ch. 213, § 8, which reads as follows:

'The secretary of state shall provide notary public service, for the convenience of the public, when making application for licenses, at a cost of twenty-five cents for each acknowledgment taken, and the notary fees so collected shall be paid into the general fund of the state.'

This act has since been amended. (See Burns' Ind.Stat.Anno. § 47--2602 (1956 Repl.)).

It is contended that this statute recognized the public necessity and convenience in having an expeditious method of notarizing applications for motor vehicle registration, and that the implication is that the notaries would not be able to identity personally each applicant, but must accept an applicant's own statement as being the person he or she claims to be.

The State, on the other hand, argues that a notary has the duty of personally identifying the person who takes the oath in each case and otherwise is criminally liable if the notary errs in such identification or fails to administer the oath to the person named in the jurat. In other words, there is a strict liability on the part of a notary, and proof of a mens rea is not required for conviction.

In early common law, crime involved evil doing, with the intention to do harm. Without this evil meaning to the act there was no criminal liability. Thus even today, a person who takes another's property, believing it to be his own although it is not, is not guilty of larceny. There is, in other words, no mens rea in such a case. However, under modern statutes by virtue of the police power, many acts are now made unlawful because of the public welfare involved, which have no inherent evil in themselves or moral turpitude attached thereto. This type of statutory crimes is referred to as malum prohibitum, as contrasted with those referred to as malum in se, which involve evil and moral turpitude. We view the present statute making it a crime to make a false certification as a notary to be malum prohibitum. In this latter type of statutes, courts have had their difficulty in determining the construction to be placed thereon as to whether or not a mens rea, or criminal intent, must be proved. 21 Am.Jur.2d., Criminal Law § 89 (1965).

Professor Robert Force, in Res Gestae, Vol....

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10 cases
  • Tyson v. State
    • United States
    • Court of Appeals of Indiana
    • August 6, 1993
    ...had been as the defendant reasonably believed. Davis v. State (1976), 265 Ind. 476, 478, 355 N.E.2d 836, 838; Noble v. State (1967), 248 Ind. 101, 105, 223 N.E.2d 755, 758; Squire v. State (1874), 46 Ind. 459, 461. "Honesty is a subjective test dealing with what [the defendant] actually bel......
  • Carter v. State
    • United States
    • Court of Appeals of Indiana
    • August 11, 1980
    ...of statutory rape. Statutory rape is considered a strict liability type of offense, requiring no mens rea. Cf. Noble v. State, (1967) 248 Ind. 101, 108, 223 N.E.2d 755, 758.22 Although not involved in either Smith v. State, (1971) 255 Ind. 687, 266 N.E.2d 216, or Hicks v. State, (1975) 164 ......
  • Sills v. State
    • United States
    • Supreme Court of Indiana
    • May 14, 1984
    ...or absolute criminal responsibility." See Smith v. California, (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Noble v. State, (1967) 248 Ind. 101, 223 N.E.2d 755. See also Hall, Ignorance and Mistake in Criminal Law, 33 Ind.L.J. 1 (1957). However, it is submitted that a close examination......
  • Miller v. State
    • United States
    • Court of Appeals of Indiana
    • August 19, 1986
    ...crimes, malum prohibitum offenses usually require proof of a mens rea. 8 I.L.E. Criminal Law Sec. 10 (1971). See e.g.: Noble v. State, (1967) 248 Ind. 101, 223 N.E.2d 755; Johnson v. State, (1968) 251 Ind. 17, 238 N.E.2d 651, 653. But see: Gregory, 291 N.E.2d at Many Indiana cases have cons......
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