Mell v. State
| Decision Date | 06 March 1943 |
| Docket Number | 29845. |
| Parties | MELL v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied April 2, 1943.
Syllabus by the Court. [Copyrighted Material Omitted]
In prosecution for violation of usury statutes, jury were authorized to find that defendant had resorted to a contrivance to charge usury rather than that he had purchased salary accounts. Code, §§ 25-301, 25-9902.
C G. Battle, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., Bond Almand, Sol., and Durwood T. Pye, all of Atlanta, for defendant in error.
The defendant was accused of charging usury, a misdemeanor, in four counts. Count 1 charges the offense made penal by Code, §§ 25-301 and 25-9902, and alleges that "On the 1st day of July, 1940, [the accused] did engage in the business of lending money in the amount of three hundred ($300) dollars, and less, and did charge, contract for, and receive a greater rate of interest than eight per centum per annum on said loan and for the use of said money from one Luther Peek without having a license from the State Superintendent of Banks, contrary to the laws of said State, the good order, peace, and dignity thereof." The accusation is demurred to on the ground that it is not specific enough to put the defendant on notice of the crime charged in order that he may prepare his defense thereto. "Every indictment or accusation *** shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Code § 27-701. This means that an indictment conforming substantially to the requirements of this section will be sufficient, but it is not designed to deny to the accused the right to know enough of the particular facts constituting the alleged offense to enable him to prepare for trial.
There are many statutory offenses where the offense can be described in the terms of the language of the Code, but there are other statutory offenses which can not be so described, and such cases are covered by additional words "so plainly that the nature of the offense may be readily understood by the jury." Count 1 of the accusation in the instant case comes under the first class of cases mentioned above. It alleged a named date on which the crime was committed, and then alleged a violation of the statute in the language of the statute. Every essential ingredient was set forth. The description of the acts alleged as constituting the offense was full enough to enable the jury without difficulty to know what the charge was against the accused. It affirmatively appeared what particular illegal business was meant. The accusation was sufficient to enable the jury to clearly understand the nature of the defense. McGinty v. State, 59 Ga.App. 675, 676, 2 S.E.2d 134. The accusation is not demurrable on the ground that it does not set forth all acts or each particular act done in the carrying on of the business, or the manner of doing each or any particular act in carrying on the same. This is a matter that properly comes within the realm of evidence. The gist of the offense charged in this count is the engaging in the illegal business therein stated without obtaining a license. It is not necessary for the State to spread out in the indictment the evidence on which the State relies for a conviction. The demurrer to count 1 was properly overruled. Abel v. State, 64 Ga.App. 448, 455, 13 S.E.2d 507.
Count 2 of the accusation alleges that the defendant, on the 1st day of July, 1940, did receive, charge, and take for a loan and advance of money, to wit, the sum of twenty ($20) dollars, a rate of interest greater than five (5%) per centum per month, by way of commission for advances, discount, exchange, the purchase of salary and wages, and by contracts and contrivances, and devices to the grand jury of Fulton County unknown, all of which constituted a subterfuge and scheme intentionally used by the accused to evade the laws of the said State, from one Luther Peek, for which sum of money, to wit, twenty ($20) dollars, the accused did charge and take interest in the sum of two ($2) dollars for the use of said sum for a period of fifteen days, which rate of interest amounted to twenty (20%) per centum per month, contrary to the laws of said State, and the good order, peace, and dignity thereof. Count 3 is in the same words and figures as count 2, except that it alleges that another offense was committed on the 16th day of July, 1940. Count 4 is in the same words and figures as count 2, except that it alleges that another similar offense was committed on the 1st day of August, 1940. Counts 2, 3, and 4 are substantially in the language of the accusation in Crowe v. State, supra, which was upheld as against a demurrer which raised the same questions presented here. Adhering to the rule stated in the Crowe case, counts 2, 3, and 4 are not subject to the demurrer on the grounds urged.
2. When the defendant's case was called for trial his counsel moved for a continuance, and in paragraph 5 of the petition for certiorari it is alleged as follows: "On the grounds of an absent witness who was alleged to be material to the defense of the defendant, and who was under subpoena, and who was shown to know the facts with reference to each transaction charged in the accusation, and who was not absent by permission or instance of the defendant; and that the motion was not made for the purpose of delay by the defendant, and that he had in good faith intended to have the absent witness present for trial at a later date or term of the court; and that he was unable to try the case without the testimony of the absent witness." In paragraph 2 of the judge's answer he stated:
The defendant traversed this paragraph of the answer in the following language: ...
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