Ruth v. State

• Decision Date: 25 April 1984
• Docket Number: No. 4-483A129,4-483A129
• Parties: George Herman RUTH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 269

462 N.E.2d 269

George Herman RUTH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-483A129.

Court of Appeals of Indiana Fourth District.

April 25, 1984.

Thomas A. Brown, Hartford City, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Following a trial by jury, defendant-appellant George Herman Ruth was convicted of three counts of forgery and one count of theft. On appeal, Ruth raises the following issues for our review, restated as follows: ¹

1) whether the court erred by granting paragraph one of the State's Motion in Limine;

2) whether the court erred by admitting evidence seized from Ruth's home;

3) whether preliminary instructions 8, 9, and 19 were proper; and

4) whether the court erred by reading final instructions 8, 9, 18 and 22 to the jury.

During the spring of 1981, the Chronicle-Tribune newspaper in Marion, Indiana, discovered it had not received accounts remitted by several of its advertising customers. The missing checks were being deposited in an account for the Chronicle Printing Corp. at the First National Bank of Hartford City. According to the bank's record, one "Roger Manning" was authorized to make such deposits. The State produced evidence that Ruth was operating under the alias of Roger Manning and that the newspaper had never authorized either Ruth or anyone named Manning to make deposits on its behalf.

Ruth first alleges the court erred in granting paragraph one of the State's Motion in Limine. Specifically, Ruth argues that motions in limine are prior restraints not recognized by the state legislature or supreme court and that the court's ruling impermissibly prohibited him from informing the jury of the class of the felony charged.

First, the supreme court has consistently recognized that motions in limine serve the function of keeping potentially prejudicial information from the jury until the court has ruled upon its admissibility within the context of the trial. Hodge v. State, (1982) Ind., 442 N.E.2d 1006. Accord Davidson v. State, (1982) Ind., 442 N.E.2d 1076. Second, the court did not prevent Ruth, as he contends, from mentioning the class of the charged felony. Rather, by its motion, the State sought to keep information from the jury regarding possible sentences Ruth could receive upon conviction. The supreme court has held it is proper to withhold penalty information stating:

A jury must determine beyond a reasonable doubt from the evidence presented whether an accused did those specific acts which constituted the crime with which he was charged. In performing this guilt assessing task the jury must be oblivious to the legislature's punishment scheme. To hold otherwise, we would be condoning verdicts in which the jury might compromise to the defendant's benefit or detriment in order to reach a certain number of years of imprisonment. (emphasis in original)

Cobb v. State, (1980) Ind., 412 N.E.2d 728, 738, citing Debose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272, 273-4. Ruth's first issue is, therefore, without merit.

Ruth's next issue regards the admissibility of evidence seized from his home on May 6, 1981. In executing the search warrant issued that same day, the police found a rubber stamp and an IBM typewriter and ribbon belonging to the Chronicle-Tribune. Ruth argues the court erred by admitting those items because the search warrant was defective.

The requirements which govern the search warrant affidavit in this case were codified at Ind.Code 35-1-6-2.

Except as provided in subsection (c) of this section, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished.

Ind.Code 35-1-6-2(a) (repealed by Acts 1981, P.L. 298, Sec. 9(a)). In Madden v. State, (1975) 263 Ind. 223, 328 N.E.2d 727, the supreme court stated compliance with the above statute was mandatory. See also Flaherty v. State, (1982) Ind.App., 443 N.E.2d 340; Mills v. State, (1978) 177 Ind.App. 432, 379 N.E.2d 1023.

The search warrant in issue here incorporated the following affidavit of Officer John Starkey.

The reasons and grounds for affiant's belief that there is probable cause for searching said dwelling house are as follows:

On May 5, 1981 affiant participated in the apprehension of George H. Ruth, resident at the above address and a former district sales manager for the Chronicle-Tribune, Marion, Grant County, Indiana, after information was received from the Chronicle-Tribune that an account in the name of the Chronicle Printing Corp. at the First National Bank, Hartford City, Blackford County, Indiana, on which George H. Ruth was the authorized signer and into which checks to the businesses listed on attached Exhibit "A" had been deposited had been done without either the knowledge or the authorization of the Chronicle Tribune, Marion, Grant County, Indiana.

Affiant believes that George H. Ruth may have other checks to the businesses listed on attached Exhibit "A" which the...