Knowling v. State
| Decision Date | 06 April 1940 |
| Parties | KNOWLING v. STATE. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Knox County; E. G. Stooksbury, Judge.
F. M Knowling was convicted of unlawfully engaging in the business of making loans in an amount of $300 or less without qualifying under statute by first obtaining a certificate or permit from the superintendent of banks, and he brings error.
Affirmed.
Clements & Clements and Kennerly & Key, all of Knoxville, for plaintiff.
Ernest F. Smith, Asst. Atty. Gen., for the State.
Plaintiff-in-error operated a small loan business under the name of Lamar Lewis Company on the mezzanine floor of the Burwell Building in Knoxville, and was convicted under an indictment charging him with unlawfully engaging in the business of making loans in amounts of $300 or less without qualifying under Code Section 6721 et seq., by first obtaining a certificate or permit from the Superintendent of Banks. He was fined $500 and appealed.
His assignments of error raise, substantially, questions as to (1) the preponderance of the evidence, (2) the admissibility of certain testimony, (3) the correctness of certain parts of the charge, and (4) the rejection of a motion to quash the indictment.
As framed the assignments challenge the refusal of the trial Judge to direct a verdict at the conclusion of the evidence. This Court has never recognized with approval this practice of directing verdicts in criminal cases, but we have looked through the form of the assignments to the substance, which is as above stated. Also, it may be said here, in considering the evidence, that counsel is in error in stating that the presumption of innocence which prevails in the trial Court, likewise applies here. The opposite is true, and we have repeatedly so held. Mahon v. State, 127 Tenn. 535, 156 S.W. 458; Cooper v. State, 123 Tenn. 37, 138 S.W. 826.
We find no difficulty on the facts. It is not possible to read this record and conclude that Knowling was not conducting this small loan business and loaning money at otherwise prohibited rates, that is, in excess of six per cent.
The real insistence here is that the State failed to prove two negatives, (1) that no certificate, or permit, had been issued to the defendant or his loan company by the Superintendent of Banks, and (2) that the business was not done on the Morris Bank Plan.
It is true that an essential ingredient of the offense charged is that the business is being conducted without this permit; and it is also true that if the business is done on the Morris Bank Plan this particular permit is not exacted.
Counsel relies on Villines v. State, 96 Tenn. 141, 33 S.W. 922, to sustain his insistence that the State must not only prove the doing of this business, but that it was being done without this permit. Counsel apparently fail to distinguish between the duty of the State to negative the exception or exempting proviso in the indictment, and the duty to carry the burden of proving the negative on the trial. The Villines case supports the first proposition that the indictment must charge that the exception or proviso has not been met. This has been settled in this State for one hundred and twenty years, since Judge Haywood's opinion in State v. Jones, 2 Yerg. 22, 10 Tenn. 22, where the offense was harboring a slave "without the consent of his or her owner," and the indictment having omitted these words, the omission was held fatal. And see Wehunt v. State, 136 Tenn. 223, 188 S.W. 939, where this holding is approved, and many cases cited. The indictment here clearly charges that the defendant is doing this business without having first obtained this certificate from the Superintendent of Banks. And the State has carried the burden of showing by the testimony of an employee of the State Banking Department that the defendant had not obtained this certificate, unless this testimony was inadmissible and should have been excluded on the objection of defendant. The point was made, and is here urged, that the witness admitted that he was not personally in charge of the particular records pertaining to this matter, and that he admitted further that his information came to him from another, and was not the result of his personal examination. It is plausibly argued that this testimony should have been rejected as hearsay, and that with this out the State failed to prove that the defendant had not obtained the certificate.
We find it unnecessary to decide this issue, for the reason that we cannot agree with learned counsel that the burden was on the State to prove this negative, as to which the fact was peculiarly within the knowledge of the defendant. A distinction apparently overlooked is clearly recognized by the highest authorities on evidence between the obligation of the State to charge in the indictment the failure of the defendant to bring himself within the exception, or exempting proviso (here the procuring of the permit), and the obligation to prove this...
To continue reading
Request your trial
-
State v. Thompson
...v. Ferguson, 165 Tenn. 61, 52 S.W.2d 140 (1932); see also Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883 (1944); Knowling v. State, 176 Tenn. 56, 138 S.W.2d 416 (1940). Admittedly there are problems inherent in criminal cases which prevent complete adaptation of civil procedure on directed......
-
State v. Barker
...he was convicted in an adult criminal court. See, generally, Terrell v. State, 210 Tenn. 632, 361 S.W.2d 489 (1962); Knowling v. State, 176 Tenn. 56, 138 S.W.2d 416 (1940). In the absence of any proof that he was under 18 years of age when the three prior burglaries were committed, we affir......
-
Willerson v. State
...cases dealing with other criminal statutes which exempt certain categories from the operation of their provisions. See Knowling v. State, 176 Tenn. 56, 138 S.W.2d 416; Terrell v. State, 210 Tenn. 632, 361 S.W.2d 489. We find that the same reasoning applies to this statute as to those involv......