Peak v. State
| Decision Date | 11 January 1960 |
| Docket Number | No. 29722,29722 |
| Citation | 163 N.E.2d 584,240 Ind. 334 |
| Parties | Robert A. PEAK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank I. Hamilton, Greensburg, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Asst. Atty. Gen., for appellee.
The appellant Peak was charged under Acts 1905, ch. 169, § 491, p. 584, being § 10-3603, Burns' 1956 Replacement, with making a false certificate as a Notary Public to a deed purported to be executed by Dean Burton to Lawrence A. Peak and Geneva A. Peak, the parents of the appellant Peak. He was tried by jury, found guilty as charged and sentenced to not less than one nor more than three years in the Indiana State Prison and fined in the sum of one thousand dollars [$1,000].
The error first assigned is that the court erred in overruling appellant's motion to quash the indictment. The points urged by the appellant are that the indictment 'fails to set forth that the notary did not see the party execute the document and that the party failed to acknowledge the execution.' (Our italics.)
The statute upon which the prosecution was based contains no requirement that the notary see the party execute the deed.
The statute reads as follows:
'Falsely attesting acknowledgment.--Whoever, being a notary public or other officer authorized to take and certify acknowledgments of conveyances, mortgages or other instruments of writing, shall append his signature as such officer when no official seal is required, or who shall append his signature or affix his official seal when such seal is required by law to be affixed to the certificate of acknowledgment of any conveyance, mortgage or other instrument of writing required to be recorded in this state, or which can not be legally recorded therein without acknowledgment and certificate thereof, when at the time of such signing or sealing, the grantor, mortgagor or other party executing such deed, mortgage or other instrument had not first acknowledged the execution thereof before such notary public or other officer as aforesaid, shall, on conviction, be imprisoned in the state prison not less than one year nor more than three years, and fined not less than ten dollars [$10.00] nor more than one thousand dollars [$1,000.].'
Further, the indictment does contain the allegation that the grantor (Dean Burton) 'had not acknowledged the execution' of the deed.
The indictment reads as follows:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that Robert A. Peak on or about the 6th day of January, A.D. 1955, at and in the County of Marion and in the State of Indiana, being then and there a Notary Public in and for the State of Indiana, and authorized to take acknowledgment of deeds in Marion County in said State, did then and there feloniously append his signature as such officer and affix his official seal to a certain regular and legal form of acknowledgement purporting to be the acknowledgement of one Dean Burton, before the said defendant, as such Notary Public, to a certain false, forged and counterfeit deed of conveyance of real estate, situate in the County of Marion, State of Indiana, and bearing the date of the 6th day of January, 1955, purporting to be signed and executed by said Dean Burton to Lawrence A. Peak and Geneva A. Peak, Husband and Wife, in the words and figures following.
'In Witness Whereof, the said Dean Burton, unmarried has hereunto set his hand and seal, this 6th day of January, 1955.
_____ (Seal)
Dean Burton (Seal)
_____ (Seal)
Dean Burton (Seal)
State of Indiana, Marion County, ss: Before me, the undersigned, a Notary Public in and for said County and State, this 6th day of January, A.D. 1955, personally appeared the within named Dean Burton, unmarried. Grantor in the above conveyance, and acknowledged the same to be his voluntary act and deed, for the uses and purposes herein mentioned. I have hereunto subscribed may name and affixed my official seal.
Robert A. Peak
Robert A. Peak
When in fact the said Dean Burton had not executed said deed and had not acknowledged the execution thereof before the said defendant, as he, the said defendant, then and there well knew, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.
/s/ John G. Tinder
Prosecuting Attorney
Nineteenth Judicial Circuit.'
It is further urged that there is no allegation that the appellant certified to the acknowledgment nor that the deed was an instrument entitled to be recorded.
The entire certificate of the notary is set out verbatim in the indictment and this eliminates the necessity of allegating a conclusion as to its legal significance. 1 R.S. 1852, ch. 23, § 28, p. 232, being § 56-130, Burns' 1951 Replacement.
The same conclusion must be reached with reference to a failure to state that the deed was entitled to be recorded. All courts of this State take judicial notice of the statute which entitles a deed of conveyance to be recorded. 1 R.S. 1852, ch. 23, § 18, p. 232, being § 56-123, Burns' 1951 Replacement; 1 R.S. 1852, ch. 23, § 34, p. 232, being § 56-136, Burns' 1951 Replacement; 8 I.L.E. Criminal Law § 114, p. 212.
The court did not err in overruling the motion to quash.
The second error assigned is that the court erred in overruling appellant's motion for a new trial, wherein he says the court abused its discretion in overruling his motions for continuances. There is a failure to set forth the facts in sufficient details or authorities in support thereof. There is no showing of an abuse of discretion by the court. Hartsfield v. State, 1950, 228 Ind. 616, 94 N.E.2d 453; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767; Krupa v. State, 1927, 198 Ind. 695, 154 N.E. 666; Liese v. State, 1954, 233 Ind. 250, 118 N.E.2d 731.
Error is also claimed in the refusal to give Instruction 1 tendered by the appellant.
This was a peremptory instruction in the following form:
'Defendant's Instruction No. 1
The following is a part of the testimony of Virgil Smith:
Peak testified:
'A. Virgil Smith.
'
In view of the above evidence the court could not give the peremptory instruction without misstating the evidence and committing error. Pierson v. State, 1921, 191 Ind. 206, 131 N.E. 397; Miller v. State, 1896, 144 Ind. 401, 43 N.E. 440; Cole v. State, 1922, 192 Ind. 29, 134 N.E. 867.
We come now to the most strongly contested phase of this case, namely that the verdict is not sustained by the evidence.
The gist of the charge is that the appellant Peak, as a Notary Public, affixed his official seal and certificate of acknowledgment to a deed that one Dean Burton had executed 'when in fact the said Dean Burton had not executed said deed and had not acknowledged the execution thereof before the said defendant as he the said defendant, then and there well knew * * *'
The evidence at the trial was that one Niles Teverbaugh originally purchased the real estate in question while head of the right-of-way department of the State Highway Commission of the State of Indiana; that although the real estate involved in the transactions pertained to the right-of-way for Madison Avenue, he made the purchase as a private transaction and had the deed made to Dean Burton named as grantee therein, who he testified was his grandson, 4-5 years of age. Teverbaugh stated that he intended to have the deed made to such grandson for personal reasons. Virgil Smith, a member of the State Highway Commission from June, 1954 to May, 1955 and chairman of the Commission from the latter date until January, 1957, under whom Teverbaugh worked, learned of this private transaction and insisted on purchasing the real estate for his own personal benefit from Teverbaugh for $3,000. Teverbaugh testified he finally threw the original deeds (with Dean Burton named therein as grantee) to Smith on a davenport in his apartment and took $3,000 from Smith for the property. No guardian was appointed for or deed made by the grandson Dean Burton to Smith, although the testimony reveals he knew the grandson and had seen him ten to twelve times.
Virgil Smith then told the appellant, a friend and attorney of long standing, that he had some real estate, the title to which he desired to place in another's name and gave him the deeds and requested appellant to prepare a deed for the property in question to be executed by Dean Burton, and find some one whose name could be used as grantee also, other than Smith. Appellant prepared the deed accordingly and then went to Smith and asked him where he could find Dean Burton to take such grantor's signature and acknowledgment of execution. Smith...
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