Snelling v. State, No. 2--574A115

Docket NºNo. 2--574A115
Citation167 Ind.App. 70, 337 N.E.2d 829
Case DateDecember 02, 1975
CourtCourt of Appeals of Indiana

Page 829

337 N.E.2d 829
167 Ind.App. 70
Thomas SNELLING, Appellant,
v.
STATE of Indiana, Appellee.
No. 2--574A115.
Court of Appeals of Indiana, Second District.
Dec. 2, 1975.

[167 Ind.App. 71]

Page 830

Richard L. Milan, Indianapolis, for appellant.

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

SULLIVAN, Presiding Judge.

Appellant Thomas Snelling (Snelling) was charged by indictment with theft and that he obtained by deception control over property of Ina Fay Arnold (Mrs. Arnold). 1 He was convicted after trial by jury and was sentenced to imprisonment for from one to ten years and was fined $2500.00.

The facts most favorable to the State reveal that on July 6, 1972, Paul Arnold (Mrs. Arnold's husband, a semi-invalid) and Snelling executed a written contract whereby Snelling was to perform certain repair work on Arnold's house. From time to time, Snelling informed Mrs. Arnold that additional repairs were needed, and she orally agreed to the performance of the work. On one such occasion, Snelling informed Mrs. Arnold that the basement ceiling was sagging, and she authorized the installation of bracing at a cost of approximately.$1000.00. In reality, no bracing

Page 831

was needed, and none was installed. Nevertheless, Mrs. Arnold paid Snelling, as a part of a series of payments totalling over $4800.00, approximately.$1000.00 for the alleged bracing.

Snelling presents four issues for our consideration on appeal:

1. Whether the trial court erred in overruling his Motion to Quash the indictment;

2. Whether the trial court erred in denying his Motion in Limine and in permitting the State to cross-examine him regarding a prior felony conviction then pending upon appeal;

[167 Ind.App. 72] 3. Whether the trial court erred in refusing certain instructions;

4. Whether the trial court erred in sending copies of the final jury instructions to the jury room.

We affirm.

I. ERROR, IF ANY, NOT PRESERVED AS TO OVERRULING OF SNELLING'S MOTION TO QUASH THE INDICTMENT

The indictment, omitting formal parts, reads as follows:

'Thomas Snelling . . . committed the crime of theft in that he knowingly, unlawfully, and feloniously obtained by deception, control over property of INA FAY ARNOLD, to-wit: Money, then and there of the value of the One Thousand and 00/100 Dollars ($1,000.00), with the intention to deprive INA FAY ARNOLD of the use and benefit of said property by knowingly creating and confirming to the said INA FAY ARNOLD the false impression that he, the said THOMAS SNELLING would install Bracing in the Basement of the residence of the said INA FAY ARNOLD, then and there located at 4428 North Guilford in the City of Indianapolis, County of Marion, State of Indiana, whereas in truth and in fact, the said THOMAS SNELLING did not install the Bracing and that said Bracing was in fact not necessary, all of which the said THOMAS SNELLING then and there well knew, . . .'

Snelling filed a motion to quash the indictment on the grounds that the facts stated did not state a public offense, and the indictment did not state an offense with sufficient certainty. The memorandum in support of the motion reads in its entirety as follows:

'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 by the prosecuting witness and the defendant and that said performance or failure to perform an employment contract as alleged does not constitute a crime.'

Other than the naked assertion itself, Snelling, in his brief, presents no argument and cites no authority for his contention in this regard. We do not therefore consider it. Ind. Rules of Procedure AP. 8.3(A)(7).

[167 Ind.App. 73] Snelling attempts to argue, however, that his mere 'promise to perform in the future' does not constitute a misrepresentation of an existing fact sufficient to entitle reliance by Mrs. Arnold and that therefore the indictment lacks allegation of the essential element of deceit. This indictment and Snelling's motion to quash and supporting memorandum 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 here:

'. . . 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

Page 832

is addressed solely to the first rhetorical paragraph.

'Criminal Rule No. 3 of the Indiana Rules of Procedure provides in pertinent part:

'(A) Motion to Quash--Memorandum. In all cases where a motion is made to quash an indictment or affidavit, a memorandum shall be filed therewith stating specifically wherein such indictment or affidavit does not state the offense with sufficient certainty, or wherein the facts stated in the indictment or affidavit do not constitute a public offense . . .

'The party so filing such motion shall be deemed to have waived his right thereafter to question the indictment or affidavit on any ground not so specified in the memorandum.'

'Snelling's failure to specifically question the indictment on the ground he now asserts constituted a waiver of that ground.

'Inasmuch as no argument is made on any issue presented in Snelling's memorandum the sufficiency of the indictment is not before us.' 326 N.E.2d at 608--9.

II. THE TRIAL COURT CORRECTLY DENIED SNELLING'S MOTION IN LIMINE AND PROPERLY PERMITTED CROSS-EXAMINATION REGARDING A PRIOR FELONY CONVICTION

Prior to trial, Snelling filed a Motion in Limine which in part sought to bar the State from mentioning his prior [167 Ind.App. 74] conviction for theft by deception which was then pending on appeal before this Court. 2 The motion was overruled and on cross-examination by the State, Snelling was asked the following question: 'Isn't it true that on July 2, 1973, you were convicted by jury of theft by deception?' Snelling's counsel objected to the question on the ground that '. . . it is a matter on appeal . . .' The trial court overruled the objection and the question was answered in the affirmative.

Snelling argues that for impeachment purposes, no conviction exists until a defendant's appellate remedies have been exhausted. The State, on the other hand, contends that unless and until the judgment of the trial court has been reversed, Snelling stands convicted and may properly be questioned regarding the conviction for the purpose of testing his credibility.

As a general rule, it is proper to attack the credibility of a witness-defendant by showing that he has suffered a previous criminal conviction for a crime involving dishonesty or false statement or for a crime which by a statute in effect prior to 1852 would have rendered a witness incompetent. Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210; Glenn v. Clore (1873), 42 Ind. 62; Ind.Ann.Stat. 35--1--31--6 (Burns Code Ed.1975); Ind.Ann.Stat. Ann.Stat. 34--1--14--14 (Burns Code Ed. 1973). When the conviction sought to be used for impeachment purposes is in the process of being appealed, the propriety of so using the conviction has been questioned. The instant case presents this precise question to Indiana appellate courts for the first time.

The majority rule allows the credibility of a witness to be attacked by showing a previous criminal conviction even though an appeal therefrom is pending. See 16 A.L.R.3d 726. The cases are bottomed on one or both of the following premises:

[167 Ind.App. 75] 1. A conviction extinguishes the presumption of innocence.

2. The judgment holds fast as a final determination until such time as it may be reversed.

Page 833

Indiana cases have held with but one exception which was subsequently discredited, that the presumption of innocence is extinguished upon conviction at trial. In State v. Redman (1915), 183 Ind. 332, 109 N.E. 184, it was held that a judge could...

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9 practice notes
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...of innocence. "2. The judgment holds fast as a final determination until such time as it may be reversed." Snelling v. State, (1975) 167 Ind.App. 70, 74-75, 337 N.E.2d 829, The law in Indiana is that prior convictions are not rendered inadmissible because of the pendency of an appeal. There......
  • Harwei, Inc. v. State, No. 2-283A64
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1984
    ...was before the court. Indiana Rules of Procedure, Trial 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 ther......
  • Mullins v. Bunch, Nos. 981S238
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1981
    ...dissent and would deny transfer. --------------- 1 Jameison v. State, (1978) 268 Ind. 599, 377 N.E.2d 404; Snelling v. State, (1975) 167 Ind.App. 70, 337 N.E.2d...
  • Campbell v. City of Mishawaka, No. 3-1179A321
    • United States
    • Indiana Court of Appeals of Indiana
    • June 24, 1981
    ...in the presence of the parties and their attorneys. Jameison v. State (1978), 268 Ind. 599, 377 N.E.2d 404; Snelling v. State (1975), 167 Ind.App. 70, 337 N.E.2d 829. In Snelling v. State, supra, a survey of Indiana law revealed that the procedure of instructing juries only by reading instr......
  • Request a trial to view additional results
9 cases
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...of innocence. "2. The judgment holds fast as a final determination until such time as it may be reversed." Snelling v. State, (1975) 167 Ind.App. 70, 74-75, 337 N.E.2d 829, The law in Indiana is that prior convictions are not rendered inadmissible because of the pendency of an appeal. There......
  • Harwei, Inc. v. State, No. 2-283A64
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1984
    ...was before the court. Indiana Rules of Procedure, Trial 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 ther......
  • Mullins v. Bunch, Nos. 981S238
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1981
    ...dissent and would deny transfer. --------------- 1 Jameison v. State, (1978) 268 Ind. 599, 377 N.E.2d 404; Snelling v. State, (1975) 167 Ind.App. 70, 337 N.E.2d...
  • Campbell v. City of Mishawaka, No. 3-1179A321
    • United States
    • Indiana Court of Appeals of Indiana
    • June 24, 1981
    ...in the presence of the parties and their attorneys. Jameison v. State (1978), 268 Ind. 599, 377 N.E.2d 404; Snelling v. State (1975), 167 Ind.App. 70, 337 N.E.2d 829. In Snelling v. State, supra, a survey of Indiana law revealed that the procedure of instructing juries only by reading instr......
  • Request a trial to view additional results

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