Platt v. State, 372A156

• Decision Date: 02 November 1972
• Docket Number: No. 372A156,372A156
• Citation: 288 N.E.2d 591,153 Ind.App. 605
• Parties: Gordon PLATT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 591

288 N.E.2d 591

153 Ind.App. 605

Gordon PLATT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 372A156.

Court of Appeals of Indiana, First District.

Nov. 2, 1972.

Rehearing Denied Dec. 7, 1972.

Maxine H. Arnett, Greenfield, for appellant.

Theo. L. Sendak, Atty. Gen., Frank G. Kramer, Deputy Atty. Gen., for appellee.

LYBROOK, Judge.

Defendant (Platt) was indicted for Theft by Deception, convicted by a jury and sentenced to the Indiana State Prison for one to ten years and fined $5,000.00.

Platt's allegations of error fall into two categories and will be so discussed: (1) Inadmissibility of certain evidence and (2) Insufficiency of evidence to sustain the conviction.

The State's evidence showed that on May 26, 1968 Platt arrived, uninvited, at the home of Maggie Rose, 939 W. 32d St., Indianapolis. The Rose home was mortgaged to Meridian Mortgage, Inc. and the mortgage was delinquent and in the process of foreclosure at that time. Platt told Mrs. Rose that he represented Meridian Mortgage, Inc. and thought he could save her home. Platt was not, in fact, employed by Meridian Mortgage, Inc.

Between May 30, 1968 and February 5, 1969, the Roses paid Platt a total of $964.56 in cash, checks and a money order sent to Platt Realty, none of which were returned. Under the mortgage the regular monthly payments were Seventy-two dollars, or a total of only $432.00 for the statutory six month redemption period.

Mrs. Rose testified that she made the payments to Platt because he represented himself to be a 'field worker' for Meridian Mortgage, Inc. and told her that she should pay him what she could until she caught up.

Platt first maintains that certain checks, receipts and a money order (State's Exhibits 2 through 11) evidencing payments made to him by Mrs. Rose, were not admissible. He makes the same contention as to testimony concerning them. Platt in his brief raises several objections to the evidence but many of them were not raised at trial and therefore, cannot be considered on appeal.

The date of the offense charged in the indictment was February 5, 1969. The above payments were made periodically for several months prior to that date. Platt argues that time is of the essence in Theft by Deception and that the deception must precede the obtaining of control of the property.

The pertinent parts of I.C.1971, 35--17--5--3; Ind.Ann.Stat. § 10--3030 (Burns Supp.1972) provide that:

'A person commits theft when he (1) knowingly:

(b) obtains by deception control over property of the owner (and) (2) either:

(a) intends to deprive the owner of the use or benefit of the property; . . .'

I.C.1971, 35--17--5--13; Ind.Ann.Stat. § 10--3040 (Burns Supp.1972) defines 'deception', providing in part:

'(3) 'Deception' means knowingly to: (a) create or confirm another's impression which is false and which the actor does not believe to be true; or

(b) fail to correct a false impression which the actor previously has created or confirmed; or

(c) prevent another from acquiring information pertinent to the disposition of the property involved; or

(e) fail to correct a false impression which he knows to be influencing another to whom he stands in a relationship of special trust and confidence; or

(f) promise performance which the actor does not intend to perform or knows will not be performed. Failure to perform standing alone is not evidence that the actor did not intend to perform or that he knows the promise will not be performed, except in the following case:'

That the deception must precede the obtaining of control is implicit by the statutory language: 'obtains by deception control.' However, this does not mean that time is of the essence of this offense.

In Dixon v. State (1945), 223 Ind. 521, 62 N.E.2d 629, the court discussed when time is of the essence:

'Our statutes provide that the precise time of the commission of an offense need not be stated in the indictment or affidavit, and that it is sufficient if the offense is shown to have been committed within the statute of limitations, except where time is an indispensable ingredient in the offense. Burns Ind.Stat.1942 Replacement, § 9--1106. This court has held many times that time is not of the essence of criminal offenses, except where the offense is in doing the thing charged upon a certain date. Ordinarily it is enough to show that the offense was committed before the affidavit was filed and within the statute of limitations. Crickmore v. State, 1937, 213 Ind. 586, 591, 12 N.E.2d 266; Peats v. State, 1937, 213 Ind. 560, 567, 12 N.E.2d 270; Hunt v. State, 1927, 199 Ind. 550, 555, 556, 159 N.E. 149; Boos v. State 1914, 181 Ind. 562, 570, 105 N.E. 117.'

It follows that Theft by Deception may be proven to have occurred on dates prior to the one specified in the indictment. In the case at bar the dates proven preceded the filing of the indictment and were within the statute of limitations. Therefore, the State was not limited to proof of Theft by Deception on February 5, 1969 and the evidence of payments on other prior dates was admissible.

Platt also objected at trial to the above exhibits because there was '. . . no explanation as to why this money was paid.' Mrs. Rose effectively connected the exhibits to the indictment and explained why the money was paid by saying: 'I gave 'em (the cash, checks and money order) to him because as I said the first time he came to my house he represent hisself (sic) as a field worker...