Snelling v. State, 2--1173A253

Decision Date17 April 1975
Docket NumberNo. 2--1173A253,2--1173A253
PartiesThomas SNELLING, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court

Herbert W. Johnson, Jr., White, Johnson & Lemay, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

WHITE, Judge.

A jury found appellant (Snelling) guilty of theft of property of the value of less than one hundred dollars and set his punishment as a fine of five hundred dollars ($500.00). The court imposed the fine and costs in the amount of thirty-eight dollars ($38.00). In this appeal he alleges three errors on the part of the trial court: First, that the court erred in overruling his motion to quash the indictment; Second, that the court erred in permitting a witness to testify as to his opinion of the value of certain work performed by appellant; and Third, that the court erred in refusing his tendered instruction in respect to the word 'deception.'

We affirm.

The evidence most favorable to the appellee State of Indiana is that Snelling, on March 25th, 1972, made an uninvited visit to the residence of one Robert McHolme, a property owner who at the time was 82 years of age, to solicit work of any kind. During the conversation Snelling suggested that he be hired to clean out the gutters and he and McHolme agreed on that job to be performed for eight dollars ($8.00). Snelling went up on the roof to look around, then came back down and told McHolme that the west dormer roof had a sag in it and that the timbers under the roof and rotted and should be replaced. McHolme did not check on the condition of the roof but instead entered into a contract with Snelling for repair of the same for the price of $135.00, including both labor and materials, and gave Snelling a $30 advance toward the cost of the materials. (The handwritten contract was admitted into evidence but, presumably due to Snelling's alleged near illiteracy, is undecipherable.) McHolme testified that the contract was for cleaning the gutters and repairing the dormer roof, including the replacement of the rotted timbers with 6 ten foot long two-by-fours. Snelling then left.

About 10:00 A.M. on March 28, McHolme was at work in his backyard when Snelling and another person identified as Snelling's brother-in-law came around to the back of the house. During the ensuing conversation Snelling said he had found some rusted downspouts that should be replaced, and McHolme authorized him to do so. Snelling and the other person went up on the roof to work. At 1:00 o'clock they again approached McHolme, stated that they were done, and presented him with a bill for $276.00, which was to include both the cleaning of gutters and the repair of the dormer roof under the original contract and the additional work on the gutters and drains. McHolme questioned the total bill so Snelling orally listed the work that he claimed to have done on the gutters and drains and had his brother-in-law write them down. McHolme thought the price was still too much and after negotiation, but without inspection of the alleged work, he and Snelling agreed on a final price of $203.00, which McHolme paid.

Six weeks later two Indianapolis building inspectors examined the alleged repairs. They found that the dormer roof had not been repaired nor was it in need of repair, and that while some work had been done on the gutters and downspouts the reasonable value of that work, including labor and materials, was approximately seventy dollars ($70.00). The evidence further shows that Snelling did not bring the six two-by-fours to McHolme's house on the 28th even though he had received a $30 advance payment for their purchase.

I.

Snelling's first argument is that the Court erred in overruling his Motion to Quash the indictment. That indictment, in pertinent part, alleges that Snelling

'. . . committed the crime of theft in that he knowingly, unlawfully and feloniously obtained by deception control over property of ROBERT McHOLME, To-wit: Money then and there of the value of One Hundred Thirty-five and 00/100 Dollars ($135.00), with the intention to deprive the said ROBERT McHOLME of the use and benefit of said property, to-wit: by knowingly creating and confirming to the said ROBERT McHOLME the false impression that he, the said THOMAS SNELLING, had cleaned out the Gutters on the residence of the said ROBERT McHOLME, replaced Timbers in the roof, and installed flashing on the garage roof whereas in truth and in fact, the said THOMAS SNELLING did not clean the gutters, install the timbers in the roof or install the metal flashing on the garage roof, all of which the said THOMAS SNELLING then and there well knew . . ..'

Snelling's Motion to Quash, and Supporting Memorandum, omitting formal parts, reads:

'The defendant, by counsel, moves the Court to quash the indictment in the above entitled cause for the reasons that:

'1. The facts stated in the indictment do not constitute a probable offense.

'2. Said indictment does not state an offense with sufficient certainty.

'3. . . . (A third and lengthier reason not pertinent to this appeal.) . . ..

'MEMORANDUM IN SUPPORT OF MOTION TO QUASH

'In support of the defendant's Motion to Quash in the subject indictment, the defendant respectfully shows the Court that an employment contract has been alleged and that satisfactory performance or failure to perform an employment contract does not constitute a crime particularly where services of the employee are terminated by the employer as in the facts alleged . . .. (citing cases) . . ..'

In this appeal Snelling argues that the indictment is deficient in that it 'fails to state or allege any facts showing that the said Robert McHolme relied upon any false representation alleged to have been made to him.'

As the State correctly noted in its brief, Snelling's argument on appeal is different from the argument raised in the memorandum to his motion to quash. In fact, the argument on appeal is founded on the second rhetorical paragraph of that motion while the memorandum is addressed solely to the first...

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3 cases
  • Harwei, Inc. v. State, 2-283A64
    • United States
    • Indiana Appellate Court
    • January 23, 1984
    ...Rule 41(B).7 We are not unmindful of the holdings in Snelling v. State, (1975) 167 Ind.App. 70, 337 N.E.2d 829, and Snelling v. State, (1975) 163 Ind.App. 644, 326 N.E.2d 606, with regard to the offense of theft by deception that there could be a "deception" even if the victim, in the exerc......
  • Snelling v. State, 2--574A115
    • United States
    • Indiana Appellate Court
    • December 2, 1975
    ...are in all pertinent parts identical to those in an earlier conviction which Snelling appealed to this Court. Snelling v. State (1975), Ind.App., 326 N.E.2d 606. Our opinion in that case is applicable '. . . Snelling's argument on appeal is different from the argument raised in the memorand......
  • Ruse v. Bleeke
    • United States
    • Indiana Appellate Court
    • September 29, 2009
    ...must rely on misrepresentation). The claimant is not required to show that his reliance was reasonable. Snelling v. State, 163 Ind.App. 644, 648, 326 N.E.2d 606, 609 (1975). "The test is whether the representation deceived the person to whom made, not whether it would have deceived a person......

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