*1 Utah, Plaintiff The STATE Respondent, NOREN,
Lynn Dеll Defendant Appellant. No. 16018. Supreme Court of Utah.
Nov. Bullen, Bown, David M. Ronald
Herschel Yengich Yengieh, J. of O’Connell & Salt City, appellant. Lake for defendant and Hansen, Gen., Atty. Earl F. Robert B. Dorius, Gen., Dam, Atty. R. Paul Van Asst. County Atty., City, Lake Salt Lake Salt plaintiff respondent.
MAUGHAN, Justice. appeals
The his conviction for fraudulent of a recordable docu- modify judgment ment. We and re- mand the case to the Court for an District entry judgment of. of conviction for lesser included offense of statutory records. All references are to Annotated, 1953, Utah Code as amended. defendant, Noren, Lynn Dell herein- “Noren,” operated owned a used after County. car sales lot in Lake Salt pro- included the operation of this business of used cars at auto auctions held curement Initially, the fi- various western states. nancing purchases of these out of state was local The bank would handled bank. the title the automobiles receive and hold with them the until the defendant price. sale however, procedure, This necessitated payment prior to the bank to the defend- experi- the automobile. After ant’s sale of *2 1225 removes, any will, pre-pay- deed, with this encing difficulty mort- some instrument, gаge, security or defendant estab- other writ- arrangement, the ment ing for which the law financing company. Em- own lished his recording is fraudulent the defend- financing company ploying the writings.” of recordable to the automobiles ant could receive title Thus, to the seller. any payment to prior The trial court concluded Articles of In- various re-sell the auto- the defendant could corporation purview fall within the of the paying the out of state deal- mobiles before writings clause “other for which the cars. from he received the er whom recording.” disagree. We provides public Incorporation drafting After Articles though Incorpo Even Articles financing company, the defendant this ration become the record forged signatures of two of three by required after are filed as Article and the Articlеs required incorporators filed XII, 16-10-50, 9 and there exists Sections Secretary by as State statutory or constitutional of the new operation To initiate Incorporation be “re the Articles told defendant his financing company, the Although the words “file” and corded.” buying agent to ask the out of state dealers occasionally have been used some “record” purchased automo- send titles for the interchangeably1 they have more fre what corporation. The tes- financing biles to the re quently interpreted implying been timony аlso at trial revealed things.2 “Recorded” has quiring different dealers the agent told his inform these “copied or signify been held to transcribed 3 financing corporation by was created a “filing” while permanent into some book” men had been group of local business signifies dеlivery proper merely offic year dealing the defendant for a and a ial.4 half. is between the two terms This distinction Following receipt of several automo- legislature in explicitly recognized arrangement through financing biles this Thus, 17-21-3, leg- seq. et in pay failure to vari- the defendant’s sets the methods recorda- islature out automobiles, criminal ous dealers for those stating: County Recorder charges brought were him. Al- must, payment of the fees for “He on the though counts of a five-count indict- four same, provided record books droppеd, Noren subsequently ment were purpose in a fair hand or means by a jury was and convicted verdict of tried camera, other microfilm or typewriter, handling of recordable writ- the fraudulent documents, methods, records papers, all ings. upon was his This conviction based рermitted writings required or other financing forgery signatures on the law to be recorded.” company’s Incorporation, Articles of which Then, be- recognition the distinction Secretary were filed with the State. and “filed” the tween the terms “recorded” handling of rec- legislaturе requires: The crime of fraudulent in 17-21-20 proscribed in 76-6-503 ordable papers, instruments “All notices and provides: be writing required by law to filed Recorder, who, County shall person with intent de- office “Any provided.” otherwise destroys, recorded unless anyone ceive or 489, 492, Beatty Hughes, Cal.Aрp.2d 143 v. Haverell Manu 3. 61 1. See Haverell Distributors 110, facturing Corp., Ind.App. (1943). 58 N.E.2d 111 115 P.2d (1944). 372 Maryland Department Re of Natural 4. See Maryland Department Re sources, of Natural supra at note Hirsch, Md.App. 401 A.2d sources v. 42 Washington, (1979); 16 F.2d 491 see also Labb, F.Supp. Re (2nd 1926); 542 In Cir. (W.D.N.Y.1941). ap- filed with the defendant’s other сontentions on requiring all be recorded the County Recorder must also peal are non-meritorious. imputes different
legislature
a distinct
meaning to the two terms.
WILKINS, J., concurs.
recognized
This distinction must
*3
legislature
the
in which
applying 16-10-50
J.,
STEWART,
dissents.
Incorpora-
Articles of
requires
filing
the
CROCKETT,
(concurring
Secretary
the
Chief Justice
of State.
If
these
place
writings
to
legislature
comments):
intended
with
instruments,
category
the
of recordable
in
I
main
and in
opinion,
concur with the
expressly
they would have done it
as
so,
doing
explanatory
further
com-
offer
not
in 17-21-20. The court is
inclined
did
proscribed by
ments. The crime
76-6-
Sec.
ignore
this obvious distinction in the
(1)
has
the
503
these essential elements:
legislative usage
apply
terms
of these
falsification, (2) with
to deceive or
intent
Therefore,
synonymous.
them as
the
others, (3)
of certain named doсu-
is
equiv-
in 16-10-50
not
found
ments, (4)
the
provides
for which
the
“recording”
alent
to a
Articles of
section,
succeeding
public recording.
Incorporation.5
504,
the
the
contains each of
elements of
Thus,
requires
because 16-10-50
Ar
documents,
crime
omits ele-
for other
but
Incorpоration to be filed and not
ticles of
Thus, if
ment no. 4 above.
the defendant’s
recorded, they
“writings
which
are not
three
four ele-
act offended
of the
provides public
the law
and do
ments,
fourth,
but not
the
he could'
scope
within
not fall
the
found
of the lesser offense.
guilty
Howеver,
writings do fall within
the
person
A
entitled to a
accused
crime is
prescribes
perimeters
the
of 76-6-504
liberal
of a
in his favor
construction
statute
tampering
the lesser offense of
with rec
and, correlatively,
guilty
can be
of an
found
Although
not lawfully
ords.
Noren could
beyond
offense
if it is clear
a reasona-
violating
convicted of
76-6-503
Section
ble doubt that his conduct
comes
falsify
due to this failure to
a recorded
prohibitions
the statute.
to me
It seems
present
evidence
writing,
document
that it
a somewhat
ration-
requires
strained
triаl was
ed at
sufficient
establish be
guilt
postu-
alization of the statutes involved to
yond a reasonable doubt his
tampering
lesser included offense of
late that articles of
are docu-
records in
of 76-6-504.6
violation
provides public
ments “for which the law
Therefore,
recording.”
opinion
as
main
power
Pursuant
vested
this
indicates,
court
have found
the trial
should
76-1-402(5),
modify
Court
we
the con-
offense,
guilty
defendant
the lesser
viction of the
this
remand
76-3-402;
permitted by
as
Sec.
and this
entry
judgment
case for the
of conviction
judgment
permit-
Court can
that
corrеct
for the misdemeanor of
with rec-
proper sentencing
ords and
thereunder.7
ted
Sec.
U.C.A.1953.
explains
An
5. Merrill on Notice
this distinction at
offense is a lesser included offense when
“Speaking general
proof
is
Section 1056 which states:
established
than all the
less
ly,
ways
prеserving
there are
facts
two
instru
to establish the commission of
charged.
ments in the
as a
archives
source of
offense
State v. Cornish.
is,
Utah,
360,
recording,
making
(1977).
notice. One is
that
361
568 P.2d
Violation of
copy
require
of a
of the
both
substantial abstract
instrument
76-6-503 and 76-6-504
intention-
record,
knowing
as a
of the
al or
documents
falsification
or rec-
being
person
injure.
then
returned to the
entitled to its
ords with an intent to deceive or
possession.
filing,
is,
The other is
retain
ing
paper
permanently
itself
the files of
Codding,
People
7. See
v.
191 Colo.
551
approрriate
requi
Serrato,
office. Which method is
(1976); People
P.2d
753,
v.
192
9 Cal.3d
depends upon
applicable
site
the terms of
Cal.Rptr.
(1973);
P.2d 289
16-10-50(2).
statute.” See 17-21-13 and
Haggard,
State
89 Idaho
There wills, least in the whether articles of rise to the at the recordation of county a “writing pro- level of a for which the law delivery the same sense subsequent public recording,” record- vides would rule that and recorder However, may ing.,8 will do affirm the conviction a and therefore safekeeping,9 and county judgments with the clerk and of the trial court. 503, such of Section explicit terms thereof. “public become would deeds, mortgages and se- the case instruments, specifically per- the law
curity county deposit their clerk for mits recordation, filing all of which serves purpose imparting notice.10 How- ever, security types: are of instruments two Utah, STATE of Plaintiff and realty those which secure interests Respondent, in personalty. which secure interests those properly deposited are with and The former county filed recorded thereafter CHESNUT, Defendant Marc recorder,11 while latter are de- simply Appellant. filed posited and thereafter No. 16945. Certainly in secretary of state.12 the case *5 latter, be said that cannot Supreme Court of Utah. secretary of can thereof state Nov. anything “public recording” less than a meaning of Section thereof
supra. light foregoing analysis, it is to
In Legislature recog- that observed has “public nized other means of of, instances, requiring in all recorda- short county Consequently, recorder. fact, significance as ob- attach opinion, Legis- served main categorize see expressly lature did not fit to as a “recordable articles writing.” that, vein, the same it is оf note
general, there no absolute any writing, either recordation recorder, county or others. provision makes therefor. On the other hand, legal prohibition there is no any writing by
the recordation of the coun- recorder, ty including incorpora- articles of tion, long so advances the fees there- one for. 11. See U.C.A., U.C.A., 1953, 1953, 70A-9-302(5)(a). provided by As 17-21-20.
9. Pursuant provisions 12. U.C.A., 1953, 70A-9-302(5)(b). 75-2-901. U.C.A., 10.See