— 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. Aronld 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;
*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 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 knowing 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 offensе 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).
*73
• Snelling attempts'to. argue, however, that his mere “promise. to perform in the future” does not constitute a -misrepre,'sentаtion of an existing fact sufficient to entitle reliance by .Mrs. Arnold and that therefore the indicment 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), 163.Ind. App. 644,
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 SNELL-ING’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 рart sought to bar the ■ State from mentioning -his piior *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 a jury of theft by deception?” Snel-ling’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 beеn 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 effеct prior to 1852 would have rendered a witness incompetent.
Ashton
v.
Anderson
(1972),
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
*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.
Indiana cases have held with but one еxception which was subsequently discredited, that the presumption of innocence is extinguished upon conviction at trial. In
State
v.
Redman
(1915),
“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 exeсution 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),
“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 cоntinues 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 nо 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),
*76 “[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 thé court has entered judgment upon the verdict. At this point the defendant stands convicted and ceases to be the ‘accused’ within the meaning of Article I, Section 13 of the Constitution of the State of Indiana.
“Insofar as State ex rel. Cutsinger v. Spеncer, supra, 1941,219 Ind. 148 ,41 N.E.2d 601 , purports to hold that a defendant continues to be the accused person referred to in Section 13 of Article I of the Constitution- of the-State of Indiana until his case has been affirmed on appeal, it is disapproved.”236 Ind. at 538 ,141 N.E.2d at 113 .
Finally, in
Coates
v.
City of Evansville
(1971),
A minority of jurisdictions holds that a conviction may not be used for impeachment purposes until the appellate process has been exhausted because the disclosurе may re-suit in irreparable prejudice to the defendant if that conviction is reversed on appeal.
See
generally
III. THE TRIAL COURT DID NOT ERR IN REFUSING CERTAIN OF SNELLING’S INSTRUCTIONS
Snelling contends that the trial court erred in refusing to give his tendered final instruction No. 1, which..reads as follows:
*77 “You are instructed that Deception is a necessary element of the charge against this Defendant; therefore, if you find that the State’s witness, Ina Fay Arnold, knew or in the exercise of reasonable care should have known, before payment of her bill presented by the defendant that the work done by the defendant had not been done as the defendant agreed to do same, she was not deceived and you should find the defendant ‘not guilty.’ ”
Snelling - argues that the court’s instruction did not cover the' essential element of deceit, and that failure to give his tendered instruction thus left the jury uninstructed. A virtually identical instruction was disapproved in Snelling v. State, supra:
“We agree that the Court’s final instructions did not instruct the jurors on ‘deception’. That omission, however, did not bestow upon Snelling the right to have an erroneous instruction given.
“Snelling’s tendered instruction was properly refused for a number of reasons including a misstatement of the law. The word ‘deception’ as used in the Offenses Against Property Aсt is defined carefully and at length. None of the language contained in that definition implies that there is no deception if the person deceived ‘in the exercise of reasonable care should have known’ that the representations made to him were untrue, and Snelling has cited no authority supporting such an ■interpretation. On the contrary the statutory definition places upon the person who has created a false impression (e.g., that roof timber needed replacement and that he replaced them) the burden of dispelling it.” [footnotes omitted.]326 N.E.2d at 609 .
Snelling also claims that the trial court erred in refusing to give defendant’s tendered instruction No. 3:
. “The Court instructs the jury that it is not for the jury .to weigh the consideratiоn for any contract between the defendant and State’s Witness, Ina Fay Arnold, if any such contract be shown you by the evidence herein, but only to weigh the evidence to see if there was consideration for such contract.”
Snelling maintains that this instruction was essential to *78 inform the jury that evidence of mere overcharge is insufficient to support a conviction of theft by deception.
The indictment charged that Snelling received money from Mrs. Arnold upon his representation that bracing was necessary and that he had installed it, when in fact bracing was unnecessary and he had installed none. Whether Snelling charged too much for the work was not an issue. There was no work relative to bracing for which he could charge. It is not error to refuse an instruction inapрlicable to the issues.
Martin
v.
State
(1973),
IV. THE TRIAL COURT DID NOT ERR IN SENDING WRITTEN COPIES OF THE FINAL INSTRUCTIONS TO THE JURY ROOM
Snelling’s final argument is that the trial court violated existing Indiana law and committed reversible error in sending copies of the final written instructions to the jury room. We disagree.
Only two early Indiana cases directly discuss the practice of sending written instruction to the jury room. Other cases involving written instructions are actually more concerned with the supervision of communications between the court and the jury. For example, in
Hall
v.
State
(1875),
It was first directly stated that oralizing of the instructions was preferable (although not required) in
Smith
v.
McMillen
(1862),
“The principal is, that the jury shall take the law from the Court. The mode in which the Court communicates with the jury is by addressing them in open Court. The jury take the law from the Court through the ear. By so doing, they generally stand upon equality, because none but men with hearing ears are competent jurors. In the jury-room, then, each depends upon his own recollection of the instructions, and upon the impression they made upon him for their meaning, their сonstruction; and, thus standing upon an equality, if they differ, they should come into Court, and, in presence of the parties, let the Court be the interpreter of its own instructions. But if, instead of this being done, the Court sends the written instructions to the jury, inasmuch as jurors are not upon equality in their ability to read and interpret writing, it puts it in the power of sharp ones on the jury to read, and become the interpreters for the Court, and mislead their less skillful fellow-jurors. We think instructions should not be sent to the jury-room, without consent of both parties.”19 Ind. at 391 .
In
Jones
v.
Austin
(1901),
“The taking of instructions into the jury room is spoken of in Hall v. State,8 Ind. 439 , as a practice perhaps not very judicious. That a contrary opinion has supporters, see *80 Chattahoochee Brick Co. v. Sullivan,86 Ga. 50 , 67,12 S.E. 216 , 17 Am. & Eng. Ency. of Law (2nd ed.) 1244. It certainly could not be regarded as judicious knowingly to send out with the jury written instructions prepared by one party while withholding from them written instructions given at-the request of the other party and those given . upon the court’s motion.”26 Ind. App. 407 ,59 N.E. at 1085 .
After citing two cases which said that
evidence
should not be sent to the jury room, the Court concluded that, “. . . it is the usual practice . . . not to send written instructions to the jury room, leaving it to the jurors to carry out the instructions pronounced only in open court, as well as the evidence, in their memories.”
Thus “existing law” with respect to instructing juries only by reading instructions in open court, is actually a procedure established primarily by custom. As the quote from
Smith
v.
McMillen, supra,
demonstrates, the Supreme Court in 1862 believed that oral instructions would put jurors on more equal footing. In light of today’s education standards, it is persuasively argued that giving the jury written copies of the instructions which have been read in open court is more likely to promote equality than to rely on equally retentive memories.
See Miresso
v.
State
(1975),
In recent cases, the question of written instructions has been raised by defendants urging that the trial court committed reversible, error in refusing to send written instruc
*81
tions to the jury. Our Supreme Court in
Martin
v.
State
(1973),
This Court rejected the same argument which Snelling now advances in
Snelling
v.
State
(1975),
As our Supreme Court said in Martin v. State, supra, a legislative enactment or court rule would be needed if it were to be required of trial courts that they send written copies of the instructions to the jury. This is nоt to say that it is erroneous or contrary to law for a trial court in the exercise of its discretion to follow that practice.
The record before us contains an extremely comprehensive and scholarly memorandum by Judge Wilson which analyzes the Indiana case law upon the subject. The memorandum is eloquently supportive of the trial court’s conclusion that:
“A brief reflection on the purpose of the instructions should establish the practice of sending the written instructions to the jury room.”
As our survey of Indiana law regarding communication with the jury indicates, the crucial requirement is that the instructions first be read in open court in the presence and with the consent of the parties and their attorneys. Since the trial judge did so here, we find that it was proper to send copies of the instructions to the jury.
The judgment is affirmed.
Buchanan and White, JJ., concur.
Note. — Reported at