DISSENTING OPINION
Bobbitt, J.I dissent from the majority opinion because appellant herein was not afforded a fair trial for the reason that he was indicted under Acts 1905, ch. 169, §491, p. 584, being §10-3603, Burns’ 1956 Replacement, for falsely acknowledging the execution of a deed before him as a notary public, but was convicted upon evidence which might sustain a conviction for conspiracy to defraud the State but which in no way sustains a conviction of the crime charged in the indictment, viz.: “Falsely Attesting Acknowledgement.”
To keep the issue clearly before us it must be kept in mind that appellant herein was charged by indictment with falsely attesting an acknowledgment of a deed under §10-3603, supra, and that this is not an action against Virgil Smith for the alleged fraudulent use of a fictitious name, nor was appellant in the present case charged with conspiracy to commit a felony.
The rule is well settled that a certificate of acknowledgment, regular on its face, is presumed to state the truth, and the burden in this case is on the State to overcome such presumption beyond a reasonable doubt. *351Severtson v. Peoples (1914), 28 N. D. 372, 148 N. W. 1054, 1058.
In the present ease the State was required to prove, not only that the acknowledgment itself was false, but that appellant knew that the certificate was false at the time he affixed his signature and notary public seal thereto. John’s American Notaries, 5th Ed., §34, pp. 44, 45; People v. Marrin (1912), 205 N. Y. 275, 98 N. E. 474, 475, 43 L. R. A. (N. S.) 754.
Appellant asserts, and I think properly so, that the evidence is insufficient to show that he knew at the time he affixed his signature and seal as a notary public to the deed described in the indictment, that Smith was not Dean Burton as he represented himself to be.
There is no direct evidence in the record here, nor is there any from which a reasonable inference might be drawn, to support the charge that appellant knew that Virgil Smith was not, in truth and in fact, executing the deed in the assumed or fictitious name of Dean Burton at the time he took the acknowledgment. Under the charge in the indictment here, there must be some substantial evidence of probative value from which the jury could reasonably have inferred that appellant certified to the acknowledgment of the deed, knowing that Smith was not one and the same person as Dean Burton, and that he (Smith) was not in fact the actual grantor. Todd v. State (1951), 230 Ind. 85, 90, 101 N. E. 2d 922; Harrison v. State (1952), 231 Ind. 147, 167-168, 106 N. E. 2d 912, 32 A. L. R. 2d 875; Shutt v. State (1954), 233 Ind. 169, 174, 117 N. E. 2d 892; Dobson v. State (1959), 239 Ind. 673, 158 N. E. 2d 455, 456.
Appellant admits that he appended his signature and affixed his official seal to a certificate certifying that Dean Burton, grantor in the deed in question, personally appeared before him, a notary public, on January 6, *3521955, and acknowledged the execution of the deed. He contends, however, and the evidence is undisputed, that Smith, who had been a client of his in his home town of Milan, Indiana, for about twenty years, called him a few days prior to January 6, 1955, and asked him to come to his (Smith’s) office in Indianapolis, which he did. Upon arriving there, Smith told him that he had a piece of property that he wanted to transfer in “somebody’s name”; that Smith asked him to find somebody who would consent to act as grantee and accept title to the property for Smith, and requested appellant to prepare the deeds and return them to him for signature after he had obtained a satisfactory grantee. Following this conversation appellant procured the consent of his parents, who lived in Indianapolis, to act as grantees in the deed and accept legal title to said property. When the deed was prepared, appellant returned it to Smith and inquired, “Now, where will I go to find Dean Burton,” and Smith said, “You are looking at him,” whereupon appellant said, “What?” and Smith replied, “That’s right, you are looking at him.”
Appellant then told Smith that before the deed was signed or anything further was done, he wanted to check some authorities to find out if he (Smith) could assume the name of Dean Burton and transfer property as such. Appellant then went to the Supreme Court library, and after satisfying himself that Smith could take title to real estate in an assumed name, he then later informed Smith that it was proper for him to sign the deed, and that he would take the acknowledgment of his signature as Dean Burton. Smith then signed the deed in his usual handwriting and acknowledged the execution of the deed in the assumed name of Dean Burton.
*353“In general, in the absence of statutory prohibition, a person, without abandoning his real name, may adopt or assume any name, wholly or partly different from his name, by which he may become known, and by which he may transact business, execute contracts, and carry on his affairs, unless he does so in order to defraud others, or he is inhibited by judicial adjudication, since it is the identity of the individual that is regarded, and not the name which he may bear or assume. . . .
“The assumed or fictitious name adopted may be either a purely artificial name, or a name that is or may be applied to natural persons;...” 65 C. J. S., Names, §9, pp. 9, 10. See also: Schofield v. Jennings, Administrator (1879), 68 Ind. 232, 235; Kropp Forge Co. v. Employers’ Liability Assur. Corp. (1947), 7 Cir., 159 F. 2d 536, 538; Moore v. Bank of Dahlonega (1950), 82 Ga. App. 142, 60 S. E. 2d 507, 511; Homan v. Wayer (1908), 9 Cal. App. 123, 98 Pac. 80, 82.
It has also been held that a grant to an actual person, by a fictitious or assumed name which he has assumed for the occasion, is valid. McWhorter v. McWhorter (1929), 99 Cal. App. 293, 278 Pac. 454, 455.
I shall not here repeat the evidence recited in the majority opinion. However, I deem it necessary to include certain evidence which is omitted from the recital of the evidence in the majority opinion, and which I believe is determinative of the issues here presented.
Such evidence is as follows:
Sometime during the summer of 1955 Mrs. Peak received a telephone call advising her that the Highway Commission was going to buy the lots described in the deed abovementioned. Subsequently a man from the State Highway Commission came to her home with certain papers for her and Mr. Peak to sign. These papers were later shown to be a grant to the State Highway Commission of the State of Indiana.
*354Niles Teverbaugh testified, as a witness for the State, that he was the head of the right-of-way department of the State Highway Commission at the time the transactions here in question transpired; that he had an opportunity to buy lots seven and eight as described in the deed from Dean Burton to the Peaks, and that after discussing the matter with his wife they decided to buy the lots for their grandson, Carrie Dean Burton, who, at the time of appellant’s trial, was eight years of age; that he later sold these lots to Virgil Smith for the sum of $3,000, and made the transfer by delivering the deeds which were executed by the original owners to Dean Burton, as grantee; and that Smith accepted the deeds as tendered and paid the witness $3,000 in cash.
Teverbaugh further testified that he first met appellant Peak in a lawyer’s office in Milan, Indiana, after the news broke about the transaction, which was about two and one-half years after the delivery of the deed to Smith. This evidence came from a witness for the State and is undisputed.
Further undisputed evidence, corroborated by State’s witness Teverbaugh, is that appellant did not know that Teverbaugh had a grandson whose name was Carrie Dean Burton or Dean Burton Teverbaugh until more than two years and four months after the execution of the deed described in the indictment, nor is there any evidence that appellant knew that Teverbaugh or his grandson was involved in the purchase or sale of any lot on Madison Avenue until sometime during the month of April, 1957, and there is, in my opinion, no evidence from which any reasonable inferences of these facts might be drawn.
Virgil Smith testified, on direct examination, as a witness for the defense, that he gave appellant $1,000 as a gratuity for the work he had done in connection *355with, the transaction involving the lots in question, and $100 for expenses; that appellant did not charge any fee nor did he request any part of the money received from the sale of the lots. Smith testified, on cross-examination, that he had known appellant for twenty years and that he had never used the name of Dean Burton prior to January 6, 1955.
We have been furnished with no authorities by either party in this case which are of any assistance in determining the question here under consideration.
Certain authorities pertaining to the civil liability of a notary public have been cited by the State. While, as a general rule, a notary public is not a guarantor of the absolute correctness of his certificate of acknowledgment, nor does he undertake to certify that the person acknowledging the instrument owns or has any interest in the land therein described, he does, however, undertake to certify that the party personally appearing before him is known to him to be the person described in and who executed the instrument.
As long as he exercises the precaution of an ordinarily prudent businessman in certifying to the identity of the persons who appear before him, it is doubtful if he has any other function to perform. Barnard v. Schuler (1907), 100 Minn. 289, 110 N. W. 966, 968; Lee James, Inc. v. Carr (1932), 170 Wash. 29, 14 P. 2d 1113, 1115; Levy v. Western Casualty & Surety Co. (1949), (La. App.), 43 So. 2d 291, 293.
The State contends that the evidence showing that appellant had been Smith’s attorney for approximately twenty years, that he was a married man, that he and appellant had lived in the same town for approximately twenty years, that he (Smith) knew Teverbaugh’s grandson, and that more than two years after the execution of the deed appellant gave a description of Dean *356Burton which was not descriptive of Smith, is sufficient to sustain a verdict of the jury. I cannot agree with this contention.
Neither am I impressed with the State’s argument that because appellant knew that Smith was married, he must have known that he was not Dean Burton, unmarried.
The State admits in its “Notes on Oral Argument” that “a person may be known by any name in which he may choose to contract, and in such name he, the person, may sue and be sued, and may also be criminally punished — he is the same person, has the same identity, regardless of what name or names he may choose to use.” Schofield v. Jennings, Administrator, supra (1879), 68 Ind. 232, 234.
The majority opinion stresses the point that since Smith was a married man he could not be Dean Burton, an unmarried man. There is no logical reason why Smith could not have assumed the name of an unmarried person. The name which may be assumed is not limited to that of married persons, but may be any name either artificial or one that is or may be applied to natural persons. 65 C. J. S., Names, §9, pp. 9, 10, supra.
If someone assumes a different name for a specific purpose, there is nothing in the law that I can find that would prevent him from assuming the name of a single person, if to do so would better serve his purpose. The purpose of a name is to identify the person whose signature is certified by the notary, and when it does that it is sufficient to protect the notary from a charge of false acknowledgment under §10-3603, supra.
As I have already indicated, this case is not a civil action based upon a fraudulent conveyance, and I repeat that appellant herein is charged with falsely certifying *357to the signature of Virgil Smith as “Dean Burton,” knowing at the time he was not “Dean Burton.”
Appellant is not charged with taking the acknowledgment of one Dean Burton, an unmarried person, but is charged with taking the acknowledgment of Dean Burton, when in fact “the said Dean Burton had not executed the deed.” If Virgil Smith, assuming to be Dean Burton, and appellant having no reason to deny the assumption, did acknowledge the execution of the deed as certified by appellant, then there has been no violation of the statute under which appellant was prosecuted.
Both, in the trial court and in the majority opinion here, it seems to be taken as an established fact that appellant knew at the time he acknowledged the deed, that there was a real Dean Burton and that he was the grantor in the deed in question. The evidence shows that there was a Dean Burton who was the grantee in the deed which Teverbaugh got from the original owners of the lots. However, the indictment charges, in effect, that appellant knew this fact when he acknowledged the deed, but there is not a scintilla of evidence in the record, nor any from which any reasonable inference could be drawn, that appellant knew at the time he acknowledged the deed that there was a real Dean Burton. On the contrary, as is shown hereinabove, there is undisputed evidence by the State’s own witness, that appellant did not know that there was a real Dean Burton, or about any alleged fraudulent transactions on the part of Smith, until about two and one-half years after he had notarized the deed in question.
I cannot lend my approval to a verdict which convicts a defendant on evidence that not only does not support a material charge in the indictment, but without contradiction, shows the contrary to be true. Neither can *358I concur in an opinion which confirms the conviction in the present case upon the same misconception of the real issue presented by the indictment as apparently influenced the jury in its. decision.
In my opinion the real answer to' the conviction herein lies in the reasonable conclusion that had no real Dean Burton been in any way involved in the scheme shown by the evidence, appellant would never have been indicted for the false notarization of the deed.
The authorities cited in the majority opinion furnish it no support. I will not encumber this opinion by a discussion of each authority cited, but an examination of them will show that they are cases involving suits against the person using the fictitious name, either in the issuance of checks, securing driver’s license, or civil suits for damages because of the fraudulent acts of the person using the name.
The present case is not one based on fraud. No one is suing here to recover damages because of the fraudulent use of a fictitious name. In none of the authorities cited in the majority opinion was any criminal statute such as was the one under which appellant was indicted and convicted, involved.
Smith had been appellant’s client for more than twenty years. They were long-time personal friends, and before taking the acknowledgment appellant made an investigation of the law pertaining to the use of a fictitious name. Under these circumstances, it seems to me that any reasonable person must conclude that appellant Peak had exercised the precaution of a careful and prudent businessman in determining whether or not Smith was the person whom he represented himself to be and could legally convey the property described in the deed in the fictitious name of Dean Burton.
*359A man’s liberty cannot be taken away on a mere guess or suspicion, and it is crystal clear to me from the evidence in the record here that appellant was convicted, and that conviction is being affirmed, on guess and suspicion. Robertson v. State (1952), 231 Ind. 368, 377, 108 N. E. 2d 711; Steffler v. State (1952), 230 Ind. 557, 563, 104 N. E. 2d 729; Todd v. State, supra (1951), 230 Ind. 85, 90, 101 N. E. 2d 922; Timer v. State (1925), 196 Ind. 594, 598, 149 N. E. 168.
In my opinion the State has wholly failed to prove one of the essential elements of the crime charged, viz., that appellant, at the time he certified to the acknowledgment of the deed, knew that Virgil Smith was not in fact one and the same person as Dean Burton, grantor named in the deed, and for this reason the verdict of the jury is contrary to law and the judgment of the trial court should be reversed.
Note. — Reported in 163 N. E. 2d 584.