Riley v. State

• Decision Date: 25 June 1907
• Docket Number: 20,959
• Parties: Riley v. The State
• Court: Indiana Supreme Court

81 N.E. 726

168 Ind. 657

Riley v. The State

No. 20,959

Supreme Court of Indiana

June 25, 1907

From White Circuit Court; L. D. Boyd, Special Judge.

Prosecution by the State of Indiana against Ella L. Riley. From a judgment of conviction, defendant appeals.

Reversed.

Reynolds Sills & Reynolds, Geo. F. Marvin, W. E. Uhl and Henry N Spaan, for appellant.

James Bingham, Attorney-General, W. C. Geake, H. M. Dowling and E M. White, for the State.

OPINION

Gillett, J.

Appellant appeals from a judgment under which she stands convicted as an accessory before the fact to the act of a notary public in feloniously appending her signature and affixing her official seal, as such notary public, to a false certificate of acknowledgment of a certain deed of real estate. Error is assigned on the overruling of appellant's motion to quash. The principal offense is charged as follows: "That on October 16, 1905, at the county of White, in the State of Indiana, Katherine J. Rodgers, being then and there a notary public duly authorized to take and certify acknowledgments of conveyances, mortgages, and other instruments of writing, did then and there unlawfully and feloniously append her signature and affix her official seal as such notary public to a certificate of acknowledgment of a certain conveyance and deed of real estate required by law to be recorded, and which could not be legally recorded in such State without such acknowledgment and certificate thereof, which said conveyance and deed did then and there purport to be executed by Mary Schneckenburger to Ella L. Riley, conveying certain lands, and is in the words and figures following, to wit: [There is next inserted what purports to be a deed of real estate, in regular form, by Jacob Schneckenburger and Mary Schneckenburger, and following this writing are what purport to be separate certificates of acknowledgment "of the annexed deed," over the signature and seal of Katherine J. Rodgers, as notary public, the first purporting to certify to the acknowledgment of Mary Schneckenburger on December 17, 1903, and the second purporting to certify to the acknowledgment of Jacob Schneckenburger on October 16, 1905.] Whereas, in truth and in fact, at the time of such signing and sealing by said Katherine J. Rodgers as aforesaid, said Mary Schneckenburger had not first acknowledged the execution of such conveyance and deed before said Katherine J. Rodgers, as such notary public, as said Katherine J. Rodgers then and there well knew."

It is contended, in support of the assignment of errors, that the affidavit is insufficient because it does not affirmatively allege that Katherine J. Rodgers certified to the acknowledgment of Mary Schneckenburger. There can be no doubt that the copy of the deed which is set out is descriptive of the instrument which it is claimed was feloniously certified to, since the pleader charges immediately after the averment that the deed purported to be executed by Mary Schneckenburger, that such deed was "in the words and figures following." If the prior averment stood alone it would be assumed, on the principle that the expression of one thing is the exclusion of all others, that Mary Schneckenburger was the sole grantor, but this description, correct as far as it goes, is immediately followed by a charge which shows that she was but one of the grantors, thus bringing the case within the rule that that which is expressed puts an end to tacit assumption, or, as it is stated in the Latin, "Expressum facit cessare tacitum." Whether the two certificates of acknowledgment which follow the deed are to be considered as a part of it, in the absence of averment to that effect, we need not determine, although we may say that it would be no stretch of construction to assume that what the pleader undertook to set out was an acknowledged deed. See § 3335 Burns 1901, § 2919 R. S. 1881; § 1814 Burns 1905, Acts 1905, pp....