2 S.D. 538 | S.D. | 1892
At the - June term, 1890, of the circuit court, the grand jury of Clark county returned an indictment against plaintiff in error, a corporation under the laws of the state, for the offense of taking usury. Plaintiff in error appeared specially, and moved to set aside the indictment, on the ground that it was not found in the manner and according to the form of the statutes. The motion was based upon affidavits tending to show that no summons had been served on any officer or agent of the defendant corporation, and no investigation had before a magistrate. This motion was made and argued upon the theory that “no-indictment can be found against a corporation in this state until a presentment has been first found by a grand jury, a summons issued by a justice of the peace, and served as provided by law, and an examination had before the justice, and certificate made that there is sufficient cause to believe the corporation guilty of the offense;” in other words, that the proceedings provided forin Sections 7579, 7586,
The grand jury may indict a corporation in the first instance, as they may indict an individual. It is not a question of power, but a question of evidence. If the grand jury find only that a public offense has been committed, and that there is reasonable ground for believing that a particular individual or a particular corporation has committed it, they should return a presentment; but if they find, and are willing to specifically charge, that any particular individual or any particular corporation has committed a public offense, they should return an indictment. Upon this motion to set aside the indictment the court made this ruling: “This indictment will be treated as a presentment.” This was wrong. It is not pretended but that the indictment was in every respect complete in form and substance, as required by statute. The plaintiff in error was not entitled to have it set aside, but it should have stood as an indictment againtst it. Subsequently, and upon the theory adopted and announced by the court, that the indictment should be treated as a presentment, proceedings were had before a magistrate, which we presume conformed to said Section 7579— 7586, and upon the certificate and return of the magistrate, the grand j ury again proceeded to investigate the case, and returned a second indictment for the same offense. This indictment plaintiff in error moved to set aside for the reason that no presentment was ever found against it as required by said Sections 7 579-7586. This motion was overruled. This was right,
A jury being impaneled and sworn, plaintiff in error objected to the trial proceeding on the ground that there was a former indictment pending and undetermined in the same court
Upon the trial the state called as a witness A. D. Colton, who testified to borrowing money at the office of the plaintiff in error, and giving his note for the same. A note for $85 was produced which the witness identified as the one given by him to plaintiff in error. It was dated April 23, 1889, and marked, “Cancelled October 22, 1889,” with an endorsement of $65 paid September 17, 1889. This note was offered in evidence by the state, and admitted by the court against the objection of the plaintiff in error that there was a fatal variance between it and the allegations of the indictment. The indictment charged that a certain sum of money (naming the amount) was received by plaintiff in error “for the use and forbearance” of another certain sum, naming it, from “the 22d day of April, 1889, to the 1st day of October, 1889;” while, as plaintiff in error claims, the only evidentary effect of the note was to prove that the illegal interest was paid for the use of said money from the 23d day of April, the date of the note, to the 22d day of October, the date of its payment. This is true, but the gravamen of the offense is receiving interest in excess of the legal rate, and the direct tendency of the note was to show that fact; for the amount named in the indictment, and alleged to have been received as interest, would be in excess of the legal rate, upon the basis of the principle of the note, and the dates of its making and of its payment.