77 N.J.L. 652 | N.J. | 1909
The opinion of the court was delivered by
This writ of error brings up for review a judgment of the Supreme Court affirming the conviction of the defendant of the crime of keeping a disorderly house. The gravamen of the offence charged against the defendant is the habitual taking of usurious interest for loans made by him at the office of the Capitol Loan Company in the city of Trenton. Both in the trial court and in the Supreme Court it was contended on his behalf that the habitual taking of usury does not make the place where such practice is carried on a disorderly house. The ruling upon this point was adverse to the defendant in both courts, the precise question having been previously so determined by the Supreme Court in the case of State v. Diamant, 44 Vroom 131, and the first assignment of error argued before us challenges the soundness of that ruling.
dV hat constitutes a disorderly house has been frequently declared by the courts of this state. In the case of State v.
In view of this line of decisions it must be accepted as settled that any place in which illegal practices are habitually carried on is a disorderly house. The cases of State v. Hall and Meyer v. State would seem to have determined that practices which are prohibited by statute are illegal practices within the meaning of this definition. Counsel for the defendant now contends that the declaration of the two cases last referred to is broader than the decision of those cases required, and that it is only in cases where the habitual violation of a statute involves criminality or moral turpitude that a person is guilty of illegal practices within the meaning of that phrase as used in the case of State v. Williams and the other eases following it. He further contends that the taking of usury is not made unlawful by the statute of this state.
This latter contention may properly be considered, first, for, if it is sound, it is dispositive of the case now before us.
The statement that the statute does not impose any penalty upon a person who takes usury is not accurate, for the second section of the act deprives him of the power to enforce the payment of any interest on his loan, and entitles the borrower to have the amount of the usury deducted from the principal of the loan in case usury has been paid. In this respect our Usury act is quite similar to our act to prevent gaming (Gen. Stat., p. 1606), the penalty imposed by which upon the successful bettor is the return of the stake if it has been paid to him. Each statute prevents the person who is benefited by the violation of its provision from enjoying that benefit, and nothing more. A violation of the act to prevent gaming has been declared by this court, in Haring v. State, supra, to be illegal, and a place where such violations are habitually indulged in to be a disorderly house. We conclude, therefore, that the fact that the statute imposes no penalty, except the deprivation of the money which the statute prohibits the lender from taking, affords no ground for holding that the taking of usury is not unlawful.
Nor do we think the suggestion sound that the taking of usury is not unlawful because the statute does not prohibit
We are clear that a violation of the law against usury is an unlawful act.
Is it necessary that the unlawful practices which are habitually indulged in must contain an element of criminality or of moral turpitude in order to render the place in which they are carried on a disorderly house? The sale of intoxicating liquor is not criminal per se. It is only made so by statute when the sale is unlicensed or occurs on Sunday, and not always then. See Meyer v. State, supra. Nor does it, in the eye of the state, involve moral turpitude, whatever opinion we, as individuals, may entertain upon the subject, for the state grants permission to selected persons to make such sales, and collects revenue for the permission, and the idea that the state, for motives of gain, is willing to become a party to an act which, in its judgment, involves moral turpitude, cannot be tolerated for a moment. And yet it is settled in this state that a house in which unlawful sales of liquor are habitually made is a nuisance, and he who maintains it is guilty of keeping a disorderly house. Parker v. State, 32 Vroom 308; S. C. on error, 33 Id. 801. The logical conclusion to be drawn from the case just cited, and those like it, as it seems to us, is that the declaration of Chief Justice Beasley in State v. Hall, and our own statement in Meyer v. State, that a place where practices which are interdicted by statute are habitually carried on is a disorderly house, is sound in its fullest extent.
We conclude, therefore, that a person who maintains a place of business in which the law against usury is habitually violated is guilty of the offence charged in the indictment now before us.
The final assignment of error argued before us is directed at the charge of the court, and, in order that it may be appreciated, a brief reference to the facts is necessary. The defendant carried on business in the city of Trenton as the manager of the Capitol Loan Company. His method of transacting business was as follows: A person who desired to borrow, say $.200, for a year, was required to obligate himself to pay $270 in twelve monthly installments of $22.50 each. Where the amount was less than $200 the excess required to he repaid was proportionately larger, increasing as the size of the loan diminished; the amount of the excess on a, loan of $10, for instance, being $5.00. The method adopted by the defendant in making his Joans was this: The borrower was told that the money advanced to him belonged to Clara IT. Woodward, said to he a resident of a small town in the State of Illinois, and he was required to execute a chattel mortgage in her favor for the amount of the loan, with legal interest, and to pay for the drawing and recording of that instrument; he was further informed that the loan company was under obligation to guarantee to Mrs, Woodward the repayment of all of her moneys which it loaned, and lie was required to give a second mortgage to the company for the remaining portion of the money which he agreed to pay at the end of the year, the excess over the principal and legal interest, as he was informed, being the company’s charge for drawing the necessary papers and guaranteeing the loan and its commission for obtaining it. Both the defendant and one Weatherby, one of the company’s managers, testified that this method was not a mere scheme adopted to evade the usury law, hut that the
We are inclined to think the statement of the Supreme Court that there was no evidence that Woodward was a myth is hardly justified. The only testimony that tended to show that she had any existence as a person connected with the transaction under investigation was that of the defendant and of Weatherby. The jury, by its finding, must be considered to have found these witnesses untruthful in their story with relation to the manner in which the loans were, in reality, made.
The judgment under review will be affirmed.