Edwards v. State

• Decision Date: 14 November 1911
• Citation: 62 Fla. 40,56 So. 401
• Parties: EDWARDS v. STATE
• Court: Florida Supreme Court

56 So. 401

62 Fla. 40

EDWARDS v. STATE

Florida Supreme Court, Division B.

November 14, 1911

STATE Oct. 10, 1911.

Headnotes Filed November 14, 1911.

Error to Court of Record, Escambia County; E. D. Beggs, Judge.

J. B Edwards was convicted of accepting usury, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the language of an information is not so vague, indistinct and indefinite as to mislead the accused or embarrass him in the preparation of his defense, or to expose him after a conviction (or acquittal) to substantial danger of a new prosectution, the information is sufficient to withstand a motion to quash or a motion in arrest of judgment.

Before a court would be justified in holding an act of the Legislature unconstitutional, it must plainly appear to be so.

The Legislature has a large discretion in dealing with the question of usury, and its classifications are not to be disturbed by the courts, unless they are plainly unreasonable, arbitrary, or oppressive; and thus considered chapter 5960, Laws of 1909, is not unconstitutional because of the provisions of sections 2 and 5.

Where a defendant requested eight instructions, which were refused and this ruling was excepted to en masse, the court must have erred as to each instruction to make its ruling a ground of error.

If a statute makes it punishable to do a particular thing specified, 'or' another thing, 'or' another one commits the offense who does any one of the things, or any two or more, or all of them.

If the evidence of the defendant proves a fact, the court commits no reversible error in assuming in his charge that such a fact exists.

COUNSEL

Jones & Pasco, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

HOCKER, J.

The plaintiff in error presents two assignments based on the action of the trial court in overruling a motion to quash the information on which he was convicted, and a motion in arrest of judgment. Both motions questioned the sufficiency of the information. The count on which the plaintiff in error was convicted is as follows:

'Second Count. And your informant aforesaid, prosecuting as aforesaid, upon his oath aforesaid, further information makes that J. B. Edwards, of the county aforesaid, on the 10th day of September, A. D. 1909, at and in the county aforesaid, being the agent and representative of the Mobile Brokerage Company and the Fisher Credit Company, which said companies were engaged in lending money in this state, did then and there make a loan of eighteen dollars as such agent and representative to one P. F. Askegren for a period of three months, and did then and there willfully and knowingly charge and accept a sum of money greater than said sum so loaned, and an additional sum of money equal to twenty-five per cent. per annum upon said sum so loaned, to wit, the sum of nine dollars, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'Scott M. Loftin,

'County Solicitor, Escambia County, Florida.'

The contention here is that the information charges no offense under the statute, or charges the offense so vaguely and defectively as to embarrass the defendant in making his defense.

The information is based on the fifth section of chapter 5960, Laws of 1909. It is as follows:

'Sec. 5. Any person, association of persons, firm or corporation, or the agent, officer or other representative of any person, association of persons, firm or corporation lending money in this state who shall willfully and knowingly charge or accept any sum of money greater than the sum of money loaned, and an additional sum of money equal to twenty-five per centum per annum upon the principal sum loaned, by any contract, contrivance or device whatever, directly or indirectly, by way of commissions, discount, exchange, interest, pretended sale of any article, assignment of salary or wages, inspection fees or other fees, or otherwise, or for forbearing to enforce the collection of such moneys or otherwise, shall forfeit the entire sum, both the principal and interest, to the party charged such usurious interest, and shall be deemed guilty of a misdemeanor, and on conviction, be fined not more than one hundred dollars, or be imprisoned in the county jail not more than ninety days, or both in the discretion of the court.'

The language of the information might probably have been more definite in stating the offense, but we are unable to say that it is so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or to expose him after conviction (or acquittal) to substantial danger of a new prosecution. We think it is sufficiently plain that the defendant is charged with lending $18 for three months, and that for this loan he received $9, or more than 25 per cent. on the principal sum, and that this charge presents a violation of the statute. Gray v. State, 58 Fla. 54, 50 So. 538; Johnson v. State, 58 Fla. 68, 50 So. 529.

The next question presented is that chapter 5960, Laws of 1909, is unconstitutional, first, because section 5 unreasonably limits the right of borrower and lender to contract without regard to whether such contract is a cover for usury or not, and that it prohibits brokerage fees; and, secondly, because section 2 excepts from its provisions 'sales of bonds in excess of one hundred dollars and mortgages securing the same, or money loaned on bonds.' No authority is cited by plaintiff in error involving like conditions in support of this contention.

It must plainly appear that a statute is unconstitutional before this court would be justified in so holding. This is settled law in this state. These sections were intended to reach different classes of cases. Those described in section 5 were evidently regarded by the Legislature as affording peculiar opportunities for abuse and oppression, and not usually embraced in the ordinary usury statutes. It seems to us that the Legislature had in mind certain practical differences in the classifications which are expressed involving the public interest. Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 So. 1001, 20 L. R. A. (N. S.) 126; King Lumber & Mfg. Co. v. Atlantic Coast Line R. Co., 58 Fla. 292, 50 So. 509. The Legislature has a large discretion in dealing with the question of usury, and its classifications are not to be disturbed by the courts, unless plainly unconstitutional because they are unreasonable, arbitrary, or oppressive. See note to In re K. Sohnke, 2 L. R. A. (N. S.) 813; State ex rel. Ornstine v. Cary, 126 Wis. 135, 105 N.W. 792, 11 L. R. A. (N. S.) 174, and note; France, Adm'r, v. Munro, 138 Iowa, 1, 115 N.W. 577, 19 L. R. A. (N. S.) 391, and note. It does not seem to us that the chapter under consideration is plainly unconstitutional.

Eight instructions were requested by the defendant, and the record shows that the court 'refused to give said charges, or either of them, to which refusal the defendant, by his attorneys, then and there...