Shonfeld v. State
| Citation | 40 N.E.2d 700,219 Ind. 654 |
| Decision Date | 06 April 1942 |
| Docket Number | 27550. |
| Parties | SHONFELD v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Criminal Court, Lake County; William J Murray, judge. [Copyrighted Material Omitted]
Wildermuth & Force, Ora L. Wildermuth, and Russell H. Nehrig, all of Gary, for appellant.
Geo N. Beamer, Atty. Gen., C. Ballard Harrison, Deputy Atty. Gen., Felix A. Kaul, Pros. Atty., of Gary, Ben Schwartz, Chief Deputy Pros. Atty., of East Chicago, and Harry Long, Deputy Pros. Atty., of Gary, for appellee.
This is an appeal from a conviction on both counts of an indictment, the first count of which charged the appellant, jointly with one Mary Grace Wells Schaaf, with having unlawfully and feloniously counseled, encouraged and procured Sylvia Beiriger, a notary public, to feloniously and falsely certify, as such notary public, that the appellant had subscribed his name and was sworn by her to a certain affidavit which was affixed to and formed a part of a claim filed by the appellant with the said Mary Grace Wells Schaaf, as trustee of Calumet Township, in Lake County, Indiana, whereas said appellant did not subscribe his name to said affidavit and was not sworn thereto.
The second count of the indictment charged the appellant and said trustee with having unlawfully and feloniously united, conspired, combined, confederated and agreed to and with each other and to and with said notary and one Mary Youhay for the unlawful and felonious purpose and with the felonious intent to have the said notary public feloniously and falsely certify that the appellant had been sworn by and before said notary to the said affidavit, whereas said affidavit had not been subscribed and sworn to by said appellant.
The court overruled the separate motions of the appellant to quash each count of the indictment and also overruled the appellant's motion for a new trial.
The appellant contends that the trial court erred in overruling the motions to quash each count of the indictment; that both counts of the indictment were bad in that they set out the affidavit in question and failed to show that the notary public affixed her seal to the jurat; that the affidavit was, therefore, void; and that consequently there could have been no crime in the doing of a void official act.
With this last contention we can not agree. Section 10-3602, Burns' 1933, § 2638, Baldwin's 1934, provides that 'whoever, being a notary public * * *, certifies that any person has sworn or affirmed before him to any affidavit * * *, 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).' We do not believe that a notary public should escape the consequences of intentionally and knowingly making a false certificate by neglecting to affix a seal, nor do we believe that by a fair interpretation of the statute such a result can be reached. Certainly as to the second count of the indictment, which charged a conspiracy to commit the crime, it could not be argued that the failure of the notary public to complete the official act by affixing a seal could be used as a defense by those who had conspired to have the notary make a false certificate.
The appellant also contends that the first count of the indictment was insufficient in that it failed to allege the commission of the offense by the principal. It alleged that the appellant and another 'did then and there unlawfully and feloniously counsel, encourage, and procure said Sylvia Beiriger, as such Notary Public' to make the false certificate. (our italics) Webster's New International Dictionary defines one meaning of the word 'procure' as, 'To bring about by contrivance; to effect; to cause.' This was a sufficient allegation that the crime was committed.
We are also of the opinion that Count II of the indictment sufficiently alleged a conspiracy for the purpose and with the object of committing a felony.
The question of the sufficiency of the evidence to sustain the verdict presents a more serious problem.
The appellant owned and operated a general drygoods and clothing store in which he employed twelve to fourteen clerks; a bookeeper, Mary Youhay; and a storemanager, Louis Rosene. Mary Youhay had worked for the appellant for eleven years. She had charge of the office, kept the books, checked out the cash daily, balanced the bank statements and did the general office work. She had authority to sign the appellant's name to letters and checks.
Mary Grace Wells Schaaf, who was indicted jointly with the appellant, was the Township Trustee of Calumet Township, in Lake County, Indiana, where the appellant's store was located. She, as Township Trustee, issued orders to indigents authorizing them to buy certain goods in the appellant's store. When such goods were delivered to the indigent he signed a receipt therefor on the order, and on the basis of these receipted orders, claims for the payment of the goods so delivered were prepared and filed with the Trustee. Mary Youhay prepared these claims for the appellant. They were prepared on forms provided therefor by the Trustee's office and there was attached to the claim form, as a part thereof, a form of affidavit and jurat for the verification of the claim. After the claims were prepared they were taken to the Trustee's office where they were checked and the jurat filled in by Sylvia Beiriger, a claim clerk and notary public employed by the Trustee.
The following is a copy of the affidavit and jurat on which the indictment is predicated. The capitalized words show those placed on the affidavit and jurat in green ink by the notary public; the italicized words were subscribed to the affidavit by the bookkeeper, Mary Youhay, in purple ink:
'State of Indiana, Lake County:
It is admitted that Jack Shonfeld neither subscribed nor swore to this affidavit.
Both counts of the indictment are based on the theory that the notary public falsely attested that the appellant subscribed and swore to the affidavit when he had not done so. Two questions are presented by the convictions under this indictment: (1), did the notary public, by the execution of the jurat to this affidavit and by so filling in the blank spaces in the affidavit, intend to falsely certify that the appellant had subscribed and sworn to the affidavit; and (2), if the notary public intentionally made such a false certificate, did the appellant in any manner cause or procure her to make such false certificate, or conspire with others to cause her to make such false certificate.
The appellant's bookkeeper, Mary Youhay, prepared the claims from the receipted poor relief orders in the appellant's office. There was no conflict in the evidence as to the fact that she was familiar with the details shown by the claims and that the appellant was not.
Burns' 1933, § 52-173 (Dec. 1941 Supp.); Baldwin's Supp.1935, § 13320-30, provides that the claims against the township 'itemized and sworn to as provided by law, and accompanied by the original township poor relief order * * * shall then be filed with the county auditor for payment.' Burns' 1933, § 26-538; Baldwin's 1934, § 5403, provides that a claim filed with the county auditor shall be 'fully itemized and its correctness verified by the claimant, or some one in his behalf.'
When Mary Youhay started to work for the appellant he had told her 'to make out the poor relief claims and told me to sign them Jack's Department Store and by him and myself'. Neither she nor any other witness had any independent recollection as to the particular claim and affidavit in question, but apparently pursuant to her original instructions and as authorized by the statute she did make out the itemized claim and, to the affidavit attached thereto, signed the appellant's trade name, his individual name and then her own name, thereby indicating that his signature had been subscribed by her. After the claim was prepared and the affidavit so signed by Mary Youhay, Louis Rosene delivered it to Sylvia Beiriger, one of the claim clerk's in the trustee's office, who was also a notary public.
Mary Youhay testified that she did not think the appellant ever saw the claim in question; that once in a while he 'took a look at a claim' but that generally he did not examine the claims after she made them up.
Sylvia Beiriger testified that when she first started working in the trustee's office she worked as a typist; that later she became a claim clerk and, still later, at the request of Mrs Schaaf, the trustee, she qualified as a notary public; that her work was to check claims and notarize them; that in 1936, she called Mary Youhay at Jack's department Store and was told by Mary Youhay that it was all right to notarize the claims in the manner that they were signed, i.e. Jack's Dept. Store, Jack Shonfeld, Mary Youhay; that Mr. Shonfeld had...
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