Swinney v. State

• Decision Date: 05 June 1860
• Citation: 14 Ind. 261
• Parties: Swinney v. The State
• Court: Indiana Supreme Court

14 Ind. 261

Swinney v. The State

Supreme Court of Indiana

June 5, 1860

From the Allen Court of Common Pleas.

The judgment is reversed. Cause remanded.

M Jenkinson, for appellant.

J. E McDonald, Attorney General, and A. L. Roache, for the state.

OPINION

Worden, J.

Information against the appellant for usury. Plea, not guilty. Trial by jury; conviction and judgment; motion for a new trial, and in arrest of judgment being overruled.

The information was filed on the 10th of January, 1859, and charges that on or about the 5th of August, 1857, at said county, the defendant received from one William Schoenell, by virtue of a certain contract made on the 5th day of August, 1856, between the defendant and Schoenell, 100 dollars for the use of 400 dollars for one year, being at the rate of 25 dollars interest on each 100 dollars, so that the defendant received 76 dollars usurious interest.

The material facts, as shown by the evidence, are as follows: On the 5th day of August, 1856, Schoenell, desiring to borrow some money, made an arrangement, through a third person, to procure the same of the defendant. A note was executed by Schoenell to the third person for 500 dollars, payable in one year, and also a mortgage to secure the same, on a city lot. The note and mortgage were indorsed over to the defendant, by the nominal payee, and the defendant advanced to Schoenell 400 dollars.

Sometime before the note and mortgage matured, Schoenell, finding he could not raise the money, sold the mortgaged premises to one John L. Balts. Before the note and mortgage matured. Balts paid off the same to the defendant, a small deduction being made on account of payment before maturity.

On this state of facts, the verdict and judgment cannot be sustained.

The statute on which the information is predicated, provides that "Any person who shall, directly or indirectly, bargain for, receive, or reserve, on any contract or agreement whatever, a greater rate of interest than at the time is allowed by law, shall be fined," &c.

It is unnecessary, for the purposes of this case, to determine whether a bargain for illegal interest, and a subsequent receiving of the interest thus bargained for, constitute two separate offenses or whether they amount to only one; nor need we determine whether the facts which transpired on the 5th of August, 1856, amounted to a reservation of the usurious interest. Whatever offense was...