Snelling v. State, 2--574A115

• Decision Date: 02 December 1975
• Docket Number: No. 2--574A115,2--574A115
• Citation: 167 Ind.App. 70,337 N.E.2d 829
• Court: Indiana Appellate Court
• Parties: Thomas SNELLING, Appellant, v. STATE of Indiana, Appellee.

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.

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 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;

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).

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 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 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:

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.

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 be removed from office when 'a conviction has resulted at the hands of a tribunal competent to render a judgment of the character contemplated,' even though an appeal was pending. The court defined 'conviction' as follows:

'It is usually considered that there has been conviction of crime when there is a plea of guilty to a charge duly presented or a finding or verdict of guilty after trial, and that thereafter the presumption of innocence no longer follows the defendant. And certainly that is so after judgment rendered and the execution of it by imprisonment, such as we have here.' 183 Ind. at 342, 109 N.E. at 188.

Snelling relies upon a later case, State ex rel. Cutsinger v. Spencer (1942), 219 Ind. 148, 41 N.E.2d 601, in which the Supreme Court, without citing any authority or precedent, seemed to take a position opposite from that taken in Redman, saying:

'Until a person accused of crime has been convicted upon a trial free from error which prejudices his substantial rights, it may be said that he is presumed to be innocent and continues to be merely 'the accused' person referred to in section 13 of article 1 of the Constitution. After he has been convicted, and the judgment has become final, and it has been determined upon appeal that there was no prejudicial error in the trial, or when the time is past and the right to a review for error has been waived, the defendant is no longer 'the accused,' and the 'criminal prosecution(s)' is ended. He then stands convicted, and must be presumed to be guilty unless and until he procures the judgment to be vacated.' 219 Ind. at 152--3, 41 N.E.2d at 602--3.

However, as the State correctly points out the above dicta from Cutsinger was subsequently disapproved in Joseph v. State (1957), 236 Ind. 529, 141 N.E.2d 109::

'(The Cutsinger case) cannot be considered as authority for the statement, that a defendant who takes the proper steps to appeal from a judgment of conviction remains the accused after the jury has found him guilty and the court has entered judgment upon...