State v. First Nat. Bank

3 S.D. 52 | S.D. | 1892

Kellam, P. J.

Plaintiff in error was indicted by the grand jury of the county of Clark for receiving interest for the use of money greater than that allowed by law; was tried, convicted, and sentenced by the circuit court of that county; and brings error to review the record of such trial. The same proceedings preliminary to trial, and in arrest of judgment were had in this case as in State v. Bank, decided at the last term of this court, and reported in 2 S. D.— The questions arising in such proceedings were fully considered and decided in that case, and it is unnecessary to reexamine them here. Upon the trial the testimony was all upon the part of the state, was very brief, and is all before us. The judgment must be reversed, because it nowhere appears that the trial court had jurisdiction of the offense. The evidence is perhaps sufficient to justify the conclusion that more than 12 per cent, interest was received, but whether the offense occurred in Clark county, or even in the state of South Dakota, is not proven, nor attempted to be proven. The prosecuting witness testified that he borrowed money of plaintiff in error, stating the amount; that he repaid it, stating when and what amount he so paid; and that the interest so paid was more than 12 per cent. There was no evidence as to where the transaction occurred. It is a rule in criminal law, so old and well established as to have the force of statute, that the locus delicti must be shown by the evidence to be within the .jurisdiction of the trial court or else the conviction will not stand. Stazey v. State, 58 Ind. 514; State v. McGinniss, 74 Mo. 245; People v. Parks, 44 Cal. 105; Larkin v. People, 61 Barb. 226; Dougherty v. People, 118 Ill. 160, 8 N. E. Rep. 673. The venue must be shown by the evidence. It cannot be established solely by inferences. Sedberry v. State, 14 Tex. App. 233. The only fact in evidence from which it might be inferred that the alleged offense was committed in Clark county is that the business transaction of which the offense charged was a part was with the First National Bank of Clark. It does not appear where the business, or any part of it, was transacted, whether at its office or some other place inside or outside of Clark county. The transaction of the business of a national bank is not necessarily confined to its office, or the place where its office is located. Merchants’ Bank v. State Bank, 10 Wall. 604. But, even if it might be safely and reasonably inferred that the payment of the illegal interest took place at the office of the plaintiff in error in Clark, there was no evidence tending to show that Clark was in the county of Clark. To sustain a conviction, tke court will not take judicial notice of the location of a town. State v. Quaite, 20 Mo. App. 405; State v. Hartnett, 75 Mo. 251. This is a criminal prosecution, and must be governed by the usual rules of criminal procedure. To hold the venue sufficiently proved in this case would establish a precedent which we could not follow in a homicide case. The judgment is reversed, and the case remanded for new trial.

All the judges concur.