the sale of the property. Mignon and Mrs. Arcara attended the settlement together with the veteran purchaser of the property, a representative of the title insurance company, and a representative of the mortgagee. Neither Mignon nor Mrs. Arcara signed the certificate in question or the Home Loan Report.
Mrs. Arcara had much to do with the negotiations which led to the fixing of the purchase price of the property, and there is sufficient evidence from which it can be found that she knew that the property was sold for a price in excess of the appraisal by the Veterans' Administration. But there is no evidence, direct or inferential, that either Mignon or Mrs. Arcara knew that a certificate was required stating that the actual purchase price did not exceed the appraised value, nor is there any evidence that either of them knew that such a certificate was made or contemplated, or that it was ever used or required in any case.
At the settlement Mrs. Arcara 'represented' both the seller and the buyer of the property. She did not explain what she meant by 'represented.' Neither the seller nor the buyer had legal counsel in the transaction. The Home Loan Report, which included the certificate, was signed by the buyer. If Mrs. Arcara had attended the settlement as an attorney-at-law representing the buyer, it could be presumed that she read the Home Loan Report and that the signature of the buyer thereon appeared there as a result of her advice. In view of this, the capacity in which Mrs. Arcara 'represented' the buyer becomes of great importance, because from this presumption she could be found guilty of causing the report and certificate to be made. The evidence on this point is not clear. At least it is not clear beyond a reasonable doubt that she represented the buyer as an attorney-at-law. Mrs. Arcara is not an attorney-at-law. She is a real estate broker only. Since she is not a lawyer, her admission that she represented the buyer cannot be taken to mean that she represented the buyer as a lawyer as well as a real estate broker. Perhaps she acted as a lawyer, as laymen sometimes do, and if she did, it is unfortunate that she cannot be held to the same accountability as a lawyer, but under the evidence in the case she cannot be so held.
The question in the case, therefore, comes down to this: Can a person be convicted of knowingly causing a certificate containing specific false information to be made when there is no proof that he or she knew that a certificate calling for such specific information was required or made and, indeed no proof that he or she knew that any certificate was required or made? In my opinion the answer is clearly in the negative.
The defendants may have been guilty of a crime, see Heald v. United States, 10 Cir., 1949, 175 F.2d 878, but they are not guilty of the specific crime for which they have been indicted and tried. They cannot be convicted of a crime for which they have not been indicted. The Hoppet,
1813, 7 Cranch 389, 11 U.S. 389, 3 L. Ed. 380; U.S. v. Tandaric, 7 Cir., 1945, 152 F.2d 3, 6, certiorari denied 1936, 327 U.S. 387, 66 S. Ct. 703, 90 L. Ed. 1012.
Therefore, the motion for judgment of acquittal must be granted as to both defendants.
And now, February 12, 1952, in accordance with the foregoing opinion, it is Ordered that defendant Anthony Mignon's motion for a new trial be and it hereby is denied and that his motion for judgment of acquittal be and it hereby is granted; and it is Further Ordered that defendant Nellie Arcara's motion for a new trial be and it hereby is denied and that her motion for judgment of acquittal be and it hereby is granted.