State v. Haney

130 Mo. App. 95 | Mo. Ct. App. | 1908

BLAND, P. J.

The appeal is from a conviction for violation of section 2358, Eevised Statutes 1899, which reads as follows:

“Every person or persons, company, corporation or firm, and every agent of any person, persons, company, corporation or firm, who shall take or receive, or agree to take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise, for the forbearance or use of money or other commodities, any interest at a rate greater than two per cent per month, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days. Nothing herein contained shall be construed as authorizing a higher rate of interest than is now provided by law.”

The information is as follows (omitting caption and signatures) :

“Roscoe C. Patterson, prosecuting attorney, within and for the county of Greene, in the State of Missouri, under his oath of office informs the court that T. A. Haney, on the first day of November, A. D. 1905, at the said county of Greene and State of Missouri, did then and there unlawfully take and receive, for the forbearance and use of money, interest at a greater rate than two per cent per mónth; that is to say, that he, the said T. A. Haney, did then and there unlawfully take and receive of and from one O'. A. Springfield the sum of two dollars per month as interest for the forbearance and use of fifteen dollars, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

Defendant moved to quasi, the information for the following reasons:

“1. Because the information is vague, indefinite and uncertain, and does not sufficiently notify this defendant of the charge sought to be made against him.

“2. That the charge does not state the means whereby the defendant is alleged to have taken or received the alleged usurious money.

“3. That defendant is not advised of the offense he is called upon to defend against.”

Substantially the same grounds were assigned in defendant’s motion for arrest of judgment. The information followed the language of the statute; it advised defendant of the nature of the offense charged. The State was not required to set out its evidence in the information, or state the particulars of the offense with more definiteness and certainty than does the statute creating the same, since the statute sets out all the facts constituting the offense. [State v. Kentner, 178 Mo. 1. c. 493, 77 S. W. 522.] The State’s evidence shows that O. A. Springfield, on November 1, 1905, made and delivered to defendant his promissory note for $17, due in thirty days, and secured the same by a chattel mortgage on some furniture. Mr. Springfield testified that at the time the loan was made he, by agreement, paid defendant $2 as commission for making the loan and, in pursuance of an understanding with defendant and on bis demand, be thereafter paid defendant $2 in each of the months of December, January and February following, for the use of $15 defendant actually loaned him. After these payments were made defendant sold the note to one Adams. None of the payments were indorsed on the note, nor were they receipted for. Defendant testified that Springfield' did not pay him $2 as commission at the time he borrowed the money, and that the $2 paid in each of the months of December, January •and February were received as payments on the principal of the note and he so informed Adams when he sold him the note. Adams corroborated this statement and testified that he only demanded $11 of Springfield as ■due on the note but that Springfield claimed he had paid •$8. In rebuttal Springfield testified Adams demanded $17, 6r the face of the note, and said he knew nothing about the payments having been made.

The court gave the following instructions for plaintiff, to which defendant objected and excepted:

“9. Gentlemen of the jury, you are instructed that if you believe and find from the evidence that the defendant, T. A. Haney, on the first day of November, 1905, •or at any time within one year next before the filing of .the information in this case, to-wit: the ninth day of March, 1906, at the county of Greene, and State of Missouri, did then and there take or receive directly, or indirectly from O. A. Springfield two’ dollars per month as interest for the forbearance or use of fifteen dollars, then you will find the defendant guilty as charged in the information and assess his punishment at fine of not less than one hundred, nor more than five hundred dollars, and by imprisonment in the county jail for a term of not less than thirty days, nor more than ninety days.

“10. Even though you may find' and believe from the evidence in this case that the note signed by O. A. Springfield and given to the defendant T. A. Haney, on its face bears interest at the rate of eight per cent per annum, yet if you believe from the evidence that the defendant actually took, or received two dollars per month as interest for the use or forbearance of fifteen dollars from 0. A. Spring-field, within the time and at the place mentioned in the first instruction you will find the defendant guilty as charged in the information.”

The court refused to give the following instructions asked by defendant, to which ruling defendant saved exceptions:

“2: The court instructs the jury that if the payments made .by Springfield and wife or by Springfield or wife were received and treated by the defendant as partial payments on said note then they should find the defendant not guilty.

“3. The court instructs the jury that if they believe from the evidence that Springfield, the prosecuting witness, treated the different payments, made to the defendant as partial payments in reduction of the .amount of the- note and so acted in regard to the said note then you will find the defendant not guilty.

“4. The court instructs the jury that if they believe from the evidence that Springfield borrowed from the defendant the full sum of seventeen dollars at the time Springfield claims and testified that he got the money from defendant and that .he did not return any of the money at that time then you should find- the defendant not guilty.

“6. The court instructs the jury that they should not consider the fact that the payments made at different times were not indorsed upon the note as any evidence of the guilt of- this defendant.

“7. The court instructs the jury that they are the sole judges of the credibility of the witnesses and of the weight to be given to any or all of the witnesses testifying before them and that -in determining the weight to be given any witness they may take into consideration Ms interest, if any, Ms feeling, bias or prejudice, if any appear or be shown, any statement made out of court inconsistent with statements made in court, bis manner upon the witness stand, and if they believe any witness has wilfully sworn falsely to any material fact they are at liberty to disregard the whole or any part of such witness’s testimony.

“8. The court instructs the jury that to constitute usury in this case, there must have been an agreement entered into at the time the loan was made between O. A. Springfield and T. A. Haney, whereby said Springfield agreed to pay, and Haney to receive, a greater rate of interest than two per cent per month on the sum borrowed. And if you should find from the evidence that no such an agreement was entered into by said parties at the time said loan was made to Springfield by Haney, then you will find the defendant not guilty.”

Defendant’s contention is that to constitute the offense charged there must have been an unlawful and corrupt intent on his part in receiving usurious interest and that this element of the offense was ignored in both the information and instructions.

In Block v. State, 14 Ind. 425, it was held that a “corrupt or usurious, intent” is requisite to constitute the offense of usury and an indictment failing to so charge should be quashed. The Indiana statute (if there was one) creating the offense was not cited or alluded to in the opinion of the court. Our statute, regardless of the motive or intent of the defendant, makes it an offense to take, or agree to take, for the use of money any interest at a rate greater than two per cent per month. The criminality of the act does not depend upon the intent with which the usurious interest is received but upon the fact that it is received, hence defendant’s intent in charging and receiving the usurious interest constituted no part of the offense and is not an element of the offense. [State of Missouri v. Collum, 44 Mo. 343; State v. Hackfath., 20 Mo. App. 614.] Therefore, instructions Nos. 9 and 10 given for plaintiff were not erroneous. Instructions Nos. 2 and 3 asked by defendant and refused by the court were, in substance, a repetition of No. 11, given by the court,- which reads as follows:

“The court instructs the jury that if they believe from the evidence that Springfield and his wife made partial payments on the'note and that the same were received by defendant as payments upon the note then they should find defendant not guilty.”

Defendant’s fourth refused instruction is erroneous for the reason that the taking of usurious interest at any time after the money was loaned, in consideration of an extension of time of payment would be a violation of the statute. Refused instruction No. 6 was erroneous for the reason it would have withdrawn from the consideration of the jury important evidence tending to show that the money paid was not paid on the principal of the note. Instruction No. 7 is fully covered by an instruction given on the part of the State. Refused instruction No. 8 is- erroneous in that it ignored the payments of usurious interest alleged to have been made in December, January and February.

No reversible error appearing the judgment is affirmed.

All concur.