State v. King

• Decision Date: 12 January 1915
• Docket Number: 39.
• Citation: 92 A. 1041,124 Md. 491
• Parties: STATE v. KING.
• Court: Maryland Court of Appeals

92 A. 1041

124 Md. 491

STATE v. KING.

No. 39.

Court of Appeals of Maryland

January 12, 1915

Appeal from Criminal Court of Baltimore City; Thos. Ireland Elliott Judge.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Lindsay C. Spencer and Horton S. Smith, Asst. State's Attys both of Baltimore (Edgar Allan Poe, Atty. Gen., and William F. Broening, State's Atty., of Baltimore, on the brief), for the State. W. Purnell Hall, of Baltimore (Albert S. J. Owens, of Baltimore, on the brief), for appellee.

THOMAS J.

The appellee was indicted in the criminal court of Baltimore for a violation of section 7 of article 49 of the Code of 1912. That section provides that:

"It shall not be lawful for any individual, partnership, association or corporation lending money within the limits of this state and taking as security for the repayment thereof a lien upon any household furniture and effects, musical instruments, typewriters and sewing machines or any other personal chattels, whether such lien shall be in the nature of a conditional sale, chattel mortgage, bill of sale, whether recorded or unrecorded, or any other lien of any character whatsoever, to have or charge for the use of money so loaned more than the lawful rate of interest thereon as fixed by the provisions of section 57 of article 3 of the Constitution of the state of Maryland, and that no additional sums either in the way of bonus or otherwise shall be required or exacted of the borrower or borrowers; and further, that no charges for examination or valuation of property offered, insurance of same, and preparation, execution and recording of necessary papers shall be imposed except as follows: for examination or valuation of property offered for security for loan and preparation of papers (both included) the sum of five dollars where the amount loaned does not exceed fifty dollars; six dollars where the amount exceeds fifty and equals one hundred dollars or less; and five percentum additional of the excess over one hundred dollars where the amount loaned exceeds one hundred dollars and equals one thousand dollars or less; and two and one-half per centum additional of the excess over one thousand dollars where the amount loaned exceeds one thousand dollars; for necessary affidavits, recording papers, revenue stamps and fire insurance premiums the amounts actually to be paid for same; provided that the foregoing charges and interest as herein provided may be deducted from the principal of the loan when the same is made; and provided further, it shall not be lawful to make any charges for renewals or extensions of loans, nor to divide or split up loans under any pretext whatsoever for the purpose of requiring or exacting any other or greater charges than prescribed herein; and provided, that where a loan is paid off before maturity, interest shall be rebated to the borrower or borrowers at the rate of six per centum per annum on the amount so paid; and any violations of the provisions of this section shall be a misdemeanor and punishable by a fine of one hundred dollars for the first offense, and of a like fine and imprisonment in jail for thirty days for the second and each subsequent offense; and further, the entire amount loaned shall be forfeited to the borrower or borrowers and the mortgage therefor given become null and void."

The indictment, which was filed on the 30th of August, 1912, contained eight counts. The first count charged that:

The appellee, "on the sixth day of February, in the year of our Lord nineteen hundred and eleven, did lend money to one John H. Pumphrey, and did take, as security for the repayment thereof, a lien upon certain household furniture and effects, musical instruments, typewriters and sewing machines and certain other personal chattels of him, the said John H. Pumphrey, and did later, to wit, on the sixth day of December, in the year of our Lord nineteen hundred and eleven, at the city aforesaid, unlawfully have and receive for the use of the money so loaned as aforesaid more than the lawful rate of interest thereon as fixed by the provisions of section fifty-seven of article three of the Constitution of the state of Maryland, to wit, the rate of six per centum per annum, contrary to the form of the act of assembly," etc.

The remaining counts contain the following charges: (2) That the appellee loaned the money to John H. Pumphrey, etc., and on the 6th day of December, 1911, unlawfully charged for the use of said money more than the lawful rate of interest thereon. (3) That he unlawfully required and exacted of said borrower certain additional sums of money in the way of bonus and otherwise. (4) That he loaned to the said Pumphrey a sum not exceeding $50 and unlawfully imposed upon and charged him for the examination and valuation of the property and for the preparation of the papers more than $5. (5) That he unlawfully imposed upon and charged the said Pumphrey "for the necessary affidavits, recording papers, revenue stamps, and fire insurance premiums more than the amounts that were actually to be paid for the same." (6) That he unlawfully made certain charges for renewals and extensions of said loan. (7) That he did unlawfully divide and split up said loan "under a certain pretext" for the purpose of requiring and exacting certain other and greater charges than were prescribed by law. (8) That the said Pumphrey paid off the loan before maturity, and that the appellee unlawfully "refused, neglected and failed to rebate to the said borrower *** interest at the rate of six per centum per annum on the amount so paid by" him.

The defendant demurred to each count, and the court below sustained the demurrer to the first count and overruled the demurrers to the others. A plea of not guilty was then entered, and the case was submitted to the court without a jury. The traverser having been acquitted, the state has appealed, and the only question presented by the record relates to the ruling of the court below sustaining the demurrer to the first count.

Under the Acts of 1892, c. 506, now section 80 of article 5 of the Code of 1912, an appeal in a criminal case brings up for review both the exceptions and the judgment upon the demurrers. Avirett v. State, 76 Md. 510, 25 A. 676, 987.

In the case of State v. Shields, 49 Md. 301, Judge Miller said that, "after an acquittal of a party upon a regular trial on an indictment for either a felony or misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted," and that the "Legislature has never undertaken to confer jurisdiction and require the Court of Appeals to express opinions upon mere moot questions or abstract propositions." In construing the Acts of 1872, c. 316, he said further:

"The Court of Appeals is required to notice exceptions by the state in criminal cases, on appeals by the state, only in cases where the parties accused have been convicted, and have also taken exceptions and appeals. In such a case, if it shall be found that there was error in the rulings excepted to by the accused, so that a new trial can be awarded him, it will then become the duty of this court to consider and determine all the questions raised by the state on its appeal, so that in the new trial the court below can be guided by the judgment of this court on all such questions, as well as on those raised by the appeal of the accused."

The same construction was given the Acts of 1892, c. 506, which amended the act of 1872, in the case of Birkenfeld v. State, 104 Md. 253, 65 A. 1, where there were cross-appeals, and where this court, after holding that there were no errors in the rulings excepted to by the accused, said through Judge Pearce:

"It would be idle to require the court to consider and determine a question which under no circumstances could be again considered in the court below."

But a different principle applies where the defendant has not been tried upon the indictment, or upon one or more of the counts therein, charging different offenses (State v Blakeney, 96 Md. 711, 54 A. 614), and the appeal by the state brings up for review the judgment of the court below on the demurrers (State v. Buchanan et al., 5 Har. & J. 317, 9 Am. Dec. 534; State v. Floto, 81 Md. 600, 32 A. 315; State v. Camper, 91 Md. 672, 47 A. 1027). I...