State v. Love

• Decision Date: 09 October 1933
• Docket Number: 30831
• Citation: 150 So. 196,170 Miss. 666
• Court: Mississippi Supreme Court
• Parties: STATE v. LOVE

150 So. 196

170 Miss. 666

STATE v. LOVE

No. 30831

Supreme Court of Mississippi

October 9, 1933

Division A

1. BANKS AND BANKING.

Offense of "borrowing money" or "effecting loan" from state bank, within statute prohibiting such loans by officers or employees of banking department does not continue until loan is paid (Code 1930, sections 1194, 3812).

2 STATUTES.

Criminal statutes are construed strictly and literally.

3. BANKS AND BANKING. Renewal of original note without lending of new money held not "effecting of loan," within statute prohibiting officers or employees of banking department from effecting loans from state bank (Code 1930 section 3812).

To effect a loan within meaning of Code 1930, section 3812, prohibiting officers or employees of banking department from borrowing money or effecting loans from any state bank means to bring about a loan, to accomplish, fulfill, or produce or make a loan. It means the result or consequence, the bringing into operation of a loan; while "renewal" is not a loan, but an extension of the time of payment.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Madison county, HON. W. H. POWER, Judge.

Proceedings by the state against. J. S. Love on a charge that defendant, as superintendent of state banks, effected a loan from a state bank. From a judgment of acquittal, the state appeals. Affirmed.

Action approved.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

No officer or employee of the banking department shall be permitted to borrow money or effect any loan, directly or indirectly, of any state bank.

Section 3812, Code of 1930.

The state bases its right to an appeal in this case on paragraph 2 of section 19 of the Mississippi Code of 1930.

State v. Wall, 98 Miss. 521, 54 So. 5; City of Pascagoula v. Delmas, 157 Miss. 619, 128 So. 743.

The crime denounced is a continuing one.

Chapter 85, Code of 1930; Denton v. Sharpe, 70 Miss. 850.

In its broader sense the borrowing of money implies a contract for the use of money and carries with it the power to issue the ordinary evidence in security of a loan.

Phil. & R. R. Co. v. Stichter, 11 Wkly. Notes Cas. 325, 327; State v. School District, 13 Neb. 82, 12 N.W. 812; Comanche County v. Lewis, 10 S.Ct. 286, 133 U.S. 198, 33 L.Ed. 604; App. of Phil. & R. R. Co. (Pa.), 39 Leg. Int. 98.

Under ordinary circumstances the statute of limitations begins to run against criminal prosecution from the time the crimes are once complete. But there are many crimes which, from their very nature, are continuing.

For instance, it is universally and repeatedly held that the crime of conspiracy is continuing crime from its very nature and that the limitation against a prosecution for conspiracy begins to run, not from the time the conspiracy is first entered into, but from the commission of the last overt act, or until the conspiracy has been terminated.

Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, affirming order In re Bayle, 251 N.Y.S. 802, 234 A.D. 613; People v. Drury, 251 App. 547, 335 Ill. 539, 167 N.E. 825; People v. Walsh, 322 Ill. 195, 153 N.E. 357; State v. Gregory, 93 N. J. Law, 205, 107 A. 459; U. S. v. Bradford, 148 F. 413, 152 F. 616, 81 C. C. A. 606, 27 S.Ct. 795, 206 U.S. 563, 51 L.Ed. 1190; Jones v. U.S. 162 F. 417, 89 C. C. A. 303, 29 S.Ct. 685, 212 U.S. 576, 53 L.Ed. 657; U. S. v. Kissell, 31 S.Ct. 124, 218 U.S. 601, 54 L.Ed. 1168; International Harvester Co. v. Comm., 144 Ky. 403.

The indictment did not charge any conspiracy in this case, nor did the proof undertake to show one. But from the very nature of the case the violation of the statute by the appellee partakes of the nature of a conspiracy.

Kent v. Quicksilver Mining Co., 78 N.Y. 159, 177; Hearst v. State, 161 S.E. 228; Comm. v. Ross, 242 Mass. 15, 142 U.S. 791.

In the case at bar the subsequent renewals of the note or the further acts of the parties in relation thereto, keep the status of debtor and creditor alive and keep the statute from running just as further cohabitation made a bigamous or polygamous status a continuing offense. They were positive, unequivocal acts of the debtor which kept the original loan, and the status of the debtor and creditor, alive and continuing.

Coker v. State, 115 Ga. 210, 41 S.E. 684; State v. Gilbert, 73 Mo. 20; State v. Long, 96 N.C. 896; State v. Dry Fork R. Co., 50 W.Va. 235, 40 S.E. 447; People v. Frazier, 261 P. 171; State v. Garris, 98 N. Y. Law, 608, 121 A. 292; Wynn v. State, 18 Ala.App. 397, 92 So. 520; People v. Stanley, 33 Cal.App. 624, 166 P. 596; People v. Curry, 69 Cal.App. 601, 231 P. 358; Richardson v. State, 7 Boyce, 534, 109 A. 124; 1 Kent's Com. 461; Sec. 528, 2 Lewis' Sutherland Stat. Const. 980.

Flowers, Brown & Hester and Chalmers Potter, all of Jackson, Ray & Spivey, of Canton, and D. E. Crawley, of Kosciusko, for appellee.

The lower court directed a verdict for appellee when the state rested its case and we respectfully submit that this was proper under the facts and the law. The only question considered by the lower court was whether the charged offense was barred by limitation. We think it is clear that the statute of limitation has barred the offense and that the decision of the lower court should be affirmed.

Section 1194, Code of 1930.

The wrong is suffered when the employee of the banking department obtains the money. After the loan is made the employee of the banking department is the debtor of the bank. A renewal of the loan simply operates to continue the debtor relation. No new money is advanced with the renewal, and no statute is violated by the renewal.

Brown v. Marion National Bank, 169 U.S. 416, 42 F. 801; Union City National Bank v. Gunn, 118 N.E. 607; Farmers State Bank v. Youngers, 227 N.W. 371, 56. S.D. 7; Jones v. State, 108 Miss. 530, 66 So. 987; State v. Locke, 73 W.Va. 713; 4 C. J. 712, sec. 445; 16 C. J. 225, sec. 344.

On the question as to continuance of the limitation once the statute has begun to run see section 349, appearing at page 228 of 16 Corpus Juris.

Hatton v. State, 46 So. 708, 92 Miss. 651; Steele v. State, 121 Miss. 540, 83 So. 725; McLaughlin v. State, 133 Miss. 725, 98 So. 148.

The statute should therefore be given a strict construction. If the borrowing of the money is the wrong, certainly a renewal of the note given at the time the money was obtained could not constitute the wrong. The offense is committed when the money is borrowed. No offense is committed when the note originally given is renewed, and if more than two years have elapsed since the money was borrowed, the offense is certainly barred by limitation.

Hatton v. State, 92 Miss. 651, 46 So. 708.

The bar of the statute of limitations is a vested right which cannot be taken away by repeal of the statute after it has attached.

Thompson v. State, 54 Miss. 740; Davis v. Minor, 1 Howard, 183; State of La. v. Frusha, 150 La. 995, 91 So. 430, 24 A. L. R. 394; State of Kansas v. Tower, 122 Kan. 165, 251 P. 410, 52 A. L. R. 1160.

If the obtaining of a renewal of a loan by false pretense does not constitute an offense under false pretense statutes, certainly the renewal of a loan obtained in violation of this statute would not constitute a crime.

U. S. v. Adler, 182 F. 464; Payne v. Ostrus et al., 50 F.2d 1039; Hughes v. Reed, 46 F.2d 435.

Argued orally by Clyde Hester and Chalmers Potter, for appellee, and by W. D. Conn, Jr., for the state.

OPINION

McGowen, J.

On the 29th day of June, 1933, the grand jury of Madison county returned an indictment against J. S. Love, which, in effect, charged that he willfully and unlawfully effected a loan as superintendent of the state banks, in the sum of four hundred dollars, in the name of J. S. Love, Jr., from the Canton Exchange Bank, a state bank chartered under the laws of the state of Mississippi. Upon a trial of the case, the court below ruled, as a matter of law, that the prosecution was barred by the statute of limitations as set forth in section 1194, Code 1930, and entered a judgment of acquittal of the appellee, from which judgment the state appeals.

There is no conflict in the evidence, and viewing the case most strongly for the state, it appears that on July 11, 1930, J. S. Love, Jr., the son of the superintendent of banks, the appellee herein, was loaned five hundred dollars by the Canton Exchange Bank; that subsequent thereto there were renewals of the original note at the solicitation of the appellee, with payment of interest and sometimes partial payments of the principal. There was never any new consideration or new money advanced to J. S. Love, Jr., subsequent to the date of the original transaction. There is no question but that the original loan was effected more than two years next preceding the finding of the indictment herein.

It is conceded by the state that if the crime is confined to the proof as to the date of the original loan, the prosecution is barred. The contention of the state here is twofold: First, that the crime denounced by the statute is a continuing one; and, second, that each renewal constituted a separate, distinct, and independent offense against the statute.

Section 3812, Code 1930, prohibits an officer or employee of the banking department from borrowing or affecting any loan from a state bank in this language: "No officer or employee of the banking department shall be permitted to borrow money or effect any loan, directly or indirectly, of any state bank." The other language applicable in this section is: "Any officer or employee of the banking department who borrows any money or effects any loan in violation of this section shall, on conviction for each offense, be fined not more than five thousand dollars."

The first proposition, that...