CONCURRING OPINION
Bobbitt, J.I concur in the result reached in the majority opinion but do not agree with the statement of the opinion that the Judge before whom the action was pending could not have been deceived by the *471agreed written stipulation because the placing of his signature thereon may have been only a ministerial duty. It seems to me that there are numerous circumstances where the Judge of a court might be misled and fraudulently induced to perform some ministerial duty.
It seems clear to me that the facts stated in the indictment do not constitute an offense within the provisions of §10-2103, Burns’ 1942 Replacement, and the action of the trial court should be.sustained solely upon this ground.
An agreed statement of facts and conclusions of law such as are here under consideration are not “written instruments” within the meaning of §667 of ch. 169 of the Acts of 1905, as amended by §1 of ch. 228 of the Acts of 1907, §10-2103, Burns’ 1942 Replacement.
Appellant contends that an agreed statement of facts and conclusions of law based thereon, which are approved by attorneys representing all the parties to the action, as is the case here, are such instruments as might be the foundation of a person’s liability or the evidence of his right and hence “written instruments” within the meaning of said section. I do not agree with this contention. A statement of facts may be said to be the conclusion and determination of liability rather than its foundation. It is difficult to see how either it or the conclusions of law could be said to be evidence competent to establish any right. See State v. Hazzard (1907), 168 Ind. 163, 168, 80 N. E. 149; Shannon v. The State (1887), 109 Ind. 407, 10 N. E. 87.
The question of whether or not a judgment is a written instrument within the meaning of said statute has not been passed upon by this court. However, under the definition of “written instrument,” obtaining in'other jurisdictions neither, an agreed statement of facts, conclusions of law based thereon, nor a judg*472ment can be included within the meaning of “written instrument” as used in said statute. 44 C. J. S., Instrument, pp. 419, 420; Cf: Patterson v. Churchman et al. (1890), 122 Ind. 379, 385, 386, 22 N. E. 662, 23 N. E. 1082; Lytle v. Lytle (1871), 37 Ind. 281; Wilson v. Vance, Adm’r. (1877), 55 Ind. 584; Parsons, Adm’r. v. Milford, Adm’r. (1879), 67 Ind. 489, 497.
Appellee may be guilty of a vicious fraud upon the court, but that does not of necessity make him guilty of attempting to secure the signature of a Judge to an agreed stipulation of fact and conclusions of law based thereon, by false pretenses under the provisions of §10-2103, Burns’ 1942 Replacement.
Courts should not require protection from attorneys against the practice herein alleged, but if such pror tection is needed it is available through contempt proceedings.
The trial court did not err in sustaining the motion to quash and, for reasons above stated, the judgment should be affirmed.