State v. O'Brien
| Decision Date | 16 July 1919 |
| Citation | 107 A. 520,93 Conn. 643 |
| Parties | STATE v. O'BRIEN. |
| Court | Connecticut Supreme Court |
Appeal from Criminal Court of Common Pleas, New Haven County Frederick M. Peasley, Judge.
Walter J. Walsh, of New Haven, for appellant.
Edwin S. Pickett, Pros. Atty., of New Haven, for the State.
The information charges the accused in two counts with a violation of section 1 of chapter 244 of Public Acts of 1911 as amended by chapter 143 of Public Acts of 1915 (now section 4798, General Statutes 1918).
The first count charges that on August 20, 1917, the accused, as an agent of the Mutual Guarantee & Indorsement Company, a firm doing business in New Haven, and of John G. Dunbar, of Boston, Mass., neither of them being licensed as a pawnbroker, guaranteed as such agent the loan of $50 to Philip Bushley, of New Haven, and as such agent indirectly charged, demanded, accepted, and made an agreement to receive therefor interest at a rate greater than 12 per centum per annum, viz. at the rate of 152 per centum per annum.
The second count describes in like fashion a similar transaction with a different person and a different amount guaranteed to be loaned. To this information the accused demurred, because (1) it is insufficient in law and does not charge him with any offense; (2) it does not contain a statement of the essential ingredients of any crime with the particularity and certainty required by law.
The demurrer was overruled pro forma. The accused pleaded not guilty.
Upon the trial the jury rendered a verdict of " guilty" on each count, and the court sentenced the accused to pay the costs of the prosecution and to be confined at hard labor for a term of 15 days on each count.
The accused filed a motion in arrest of judgment upon the grounds set forth in the demurrer, with the additional ground that the information nowhere alleges " that the accused made a loan of money, one of the very essential ingredients of the offense set forth in section 143 of the Acts of 1915."
The appeal contains assignments of error based on the overruling of the demurrer, the denial of the motion in arrest, errors in the charge as given, errors in refusals to charge, and in rulings on evidence, and in the denial of the motion to set aside the verdict. In our view of the case the question arising upon the demurrer and on the motion in arrest is decisive, and is the only question we purpose considering.
The section upon which the information is based reads as follows:
" No person, and no firm or corporation or agent thereof, other than a pawnbroker as provided in chapter 235 of the Public Acts of 1905, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept, or make any agreement to receive, therefor, interest at a rate greater than twelve per centum per annum."
This section originated as a part of chapter 238 of the Public Acts of 1907. The act was amended by chapter 244 of the Public Acts of 1911, but the essentials of the offense described in this section remained unchanged. The section was again amended by chapter 143 of Public Acts of 1915, by adding the words " as guarantor or otherwise."
This amendment did not change the elements of the offense defined by the section. The section already brought every form of loan within its terms. The addition emphasized the fact that a loan made by way of guaranty or in any other way was within the terms of the Act. Evidently the intention of the legislators was to prevent the making of loans under color of a guaranty or in any other way.
Applied to this case, the state must allege and prove that the accused did (1) directly or indirectly loan money and (2) did directly or indirectly charge, demand, or accept interest at a rate greater than 12 per centum per annum.
If the claim of the state is that the loan was made in some indirect way, the better pleading would require that the method of loan be stated. So, if the loan be made by a person as a guarantor, that fact should appear, together with such facts as would fairly apprise the accused of the...
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Gilmore v. Pawn King, Inc.
...a prior, nearly identical version of this statute “brought every form of loan within its terms.” (Emphasis added.) State v. O'Brien, 93 Conn. 643, 646, 107 A. 520 (1919). This court also has determined that “the intention of the legislators [in enacting the statute] was to prevent the makin......
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Putnam v. State
...v. State, 203 Ind. 409, 180 N.E. 582; State v. McDonald, 178 La. 612, 152 So. 308; State v. Hall, 54 Wash. 142, 102 P. 888; State v. O'Brien, 93 Conn. 643, 107 A. 520; State v. Miller, 24 Conn.Sup. 247, 190 A.2d 55. See, on the other hand, Laque v. State, 207 Md. 242, 113 A.2d 893, cert. de......
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State v. Miller
...The averments must be stated with sufficient clearness to apprise the accused of the offense with which he is charged. State v. O'Brien, 93 Conn. 643, 647, 107 A. 520. An omission of the essential elements of the offense from the charge is not cured by verdict or judgment. State v. Keena, 6......
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Gilmore v. Pawn King, Inc.
...a prior, nearly identical version of this statute "brought every form of loan within its terms." (Emphasis added.) State v. O'Brien, 93 Conn. 643, 646, 107 A. 520 (1919). This court also has determined that "the intention of the legislators [in enacting the statute] was to prevent the makin......