
    Gillespie vs. State.
    The act of 1835, ch. 50, sec. 6, constitutes the taking of usurious interest indictable, and not the contracting to ' take it. A variance, therefore, between a contract set out in the indictment and that proved, is not material.
    On the 19th January,1843, the grand jurors for the county of Maury found a presentment against the defendant, in which they charge: “That D. C. Gillespie, on the 24th May, 1842, unlawfully, &c., did take of and from one Archelaus P. Hughes the sum of $35, &c., for the forbearance and giving-day of payment of the sum of $232, from the 29th December, 1841, until the 29th April, 1842, which said sum of $35, &c., did exceed the rate of six per centum per annum, &c.
    “They further present, that the said D. C. Gillespie, after-wards, &c., on the said 24th May, 1842, unlawfully, &c., did take and receive of and from said A. P. Hughes, more than legal interest, to wit, more than six per centum per annum, or that rate for a longer or shorter period, to wit, did then and there unlawfully and corruptly take and receive of and from said A. P. Hughes, bank notes of the value of $35, for the interest, use apd forbearance of bank notes of the value of $232, for and during the space of four months preceding the said 24th May, 1842, contrary, &c.
    They further present, “That D. C. Gillespie, afterwards, to wit, on the 24th May, 1842, Unlawfully, &c., did take and receive of and from said A. P. Hughes, more than legal interest, to wit, more than at the rate of six per centum per annum, to wit, did then and there take and receive of and from said A. P. Hughes, banknotes of the value of $35, as for the interest, use and forbearance of bank notes of the value of $232, for and during the space of four months preceding said 24th May, 1842; whereas the true and legal interest, to wit, six per centum per annum, and at that rate for a longer or shorter period, on the said bank notes, of the value of $232, for the said space of four months, is $4 64, and no more-contrary, &c.
    They further present, “That said D. C. Gillespie, after-wards, to wit, on the 24th May, 1842, &c., unlawfully, &c., did take and receive of and from, &c.,more than legal interest, to wit, more than at the rate of six per centum per . an-num, to wit, did then and there -unlawfully, &c., take and receive of and from, &c., $35, as and for the interest, use, &c., of bank notes of the value of $232, for and during the space of four months next preceding the said 24th May, 1842, whereas the true and legal interest on the said bank notes, for the said space of four months, is $4 64, and no more, contrary, &c.
    The defendant was tried at the May term, 1845, Dillahunty, Judge, presiding.
    A. P. Hughes testified, that, a few days before the 25th June, 1841, he borrowed of defendant $200; that on said 25th June he confessed two judgments for same — one, for $113, the other for $112; that some time between said 25th June and 6th January, 1842, he had no recollection at what particular time, he borrowed of defendant $50 more, and a few days after this last loan, $20 more. He did not recollect any other sums. On the 6th January, 1842, he confessed a judgment for $79 20, for these sums last borrowed. On the 28th December, 1841, he renewed the two first judgments, one for $161 71, and the other for $100; that these judgments were in renewal of said two first judgments, and were for the amount borrowed, $200, and the interest computed at a greater rate than 6 per cent.; that he never borrowed at any time the sum mentioned in the indictment from defendant, nor did, he borrow any sum from defendant on the day mentioned in indictment; that on the 24th May, 1842, he paid to defendant $300; that, after deducting this sum from judgment confessed, he was indebted to defendant $61 26, for which amount he confessed a judgment in favor of defendant, which judgment has never been paid by him; that he has paid nothing on said loans except the said $300; that at the time this was paid, in making the calculation, interest was calculated at a higher rate than 6 per cent. — witness could not recollect the rate. This was all the evidence.
    Dillahunty, the presiding Judge, charged the jury, among other things, not excepted to, that time constituted no part of the offence of usury. It was sufficient if it appeared that more than legal interest had been taken within a year before indictment found; that the body of the crime was 'made up of the taking of the excessive interest, and not in making the contract; that the contract should be set out as matter of conveyance or inducement to the offence itself, but that it was not necessary that the proof as to the date and the amount loaned, and the amount of usury, should correspond with the allegations of the indictment. The jury assessed thefineat $12 88. A motion for new trial was made and overruled, and judgment rendered against the defendant on the verdict. The defendant appealed.
    
      Cooper, for the plaintiff in error.
    I. In an indictment or presentment for usury, it is necessary that the facts which constitute the crime — the usurious contract — should be set out with sufficient certainty to identify the offence, so that the defendant may know with what he is charged and how to defend himself, and may be able to plead the acquittal or conviction upon this indictment, in bar of another prosecution for the same offence.
    1. “Every offence consists of certain acts done or committed under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it, as, that he murdered J. S., or stole the goods of J. S., or the like, but all the facts and circumstances constituting the offence must be specifically set forth.” — Archbold’s Crim. L. 38, 39; Hawk. b. 2, ch. 25, sec. 57, 59; lb. 41, sec. 74.
    2. “And not only must all the facts and circumstances, which constitute the offence, be stated, but they must be stated with such certainty and precision, that it may appear whether they constitute an indictable offence or not; that defendant may prepare his defence; that he may be enabled to plead a conviction or acquittal upon this indictment, in bar of another prosecution for the same offence; and that there may be no doubt as to the judgment to be given.”— Arch. 45.
    3. This rule in relation to offences at common law, applies equally to offences created by statute. The facts constituting the offence must be set out with certainty. It is not sufficient to charge the offence in the language of the statute, as, that the defendaht did forge, or coin money, or maimed cattle, &c. — 1 Ch. Crim. L. 275, side page 7; Hawk. b. 2, ch. 25, sec. Ill; Commonwealth vs. Gillespie, 7 S. R. 469-475.
    4. In this offence, great particularity seems required. An indictment must contain all the requisites of a declaration of usury — '2 Oh. Crim. Law, 549, n. — -where a form is given. To constitute there must be, 1st, a corrupt contract; 2d, a lending; and 3d, an absolute taking of usury — 2 Hawk. 383, b. 1, ch. 72, sec. 52 — see the Statute of Anne, 375, and decisions 387, sec. 78, 80. Even in actions of qui tam, the plaintiff must declare specially — -see Morrell vs. Fuller, 8 Johns. Rep. 218; and see Smith vs. Bush, ib. 84. It would be strange if greater certainty were required in a civil than a criminal action.
    II. But even if it were not necessary to set out the facts particularly, the State has chosen to do it, and she must prove the facts as charged. Any material variance will be fatal.
    1. “If the prosecutor choose to state the offence with greater particularity than is required by statute, or than is necessary, he will be bound by the statements and must prove them as laid.' — Arch. 42-102; Greenleaf Ev. sec. 65, note 3; Hite vs. State, 9 Yerg. 357-377.
    2. If the allegations in the indictment are material, or if it be necessary to prove them as alleged, though not necessary to have set them out with such particularity, in either case, there can be no question that the evidence introduced fatally varied from such allegations, and the defendant was and is entitled to a new trial. — Arch. 92.
    III. It is further insisted that his honor erred in charging the jury, “that the contract should be set out as matter of conveyance or inducement to the offence itself, but that it was not necessary that the proof as to the date, and the amount loaned, and the amount of usury, should correspond with the allegations in the indictment.”
    1. The charge is evidently self-destructive; it admits that the contract must be stated, and yet, in substance, charges that it must not be proved — because, if it is material, it must be proved; and if it need not be proved, it is certainly immaterial, and need not be stated.
    2. His honor has misapprehended the law in relation to proving matter of inducement. The true rule seems to be: “That whenever an allegation is material, whether it fall within the scope of the term, inducement, or not, or whether its connexion may be in the order of time, or otherwise, with the other essential averments, it must be proved according to the precise and particular, though superfluous, description with which it is encumbered. — 3 Stark. Ev. 1551, 1552, and notex, 1548,1530, 1543-4; Greenleaf Ev. sec 52, note 3.
    
      Attorney General, for the State.
    He relied on the following authorities:
    “Information in Exchequer — For that the defendant per 
      viam corruptee bargainee, received, &c., after verdict, it was moved in arrest of judgment, because the information did not set forth what the bargain was, but generally per viam, &c. sed non allocatur — and this is the usual course of exchequer, and the bargain is to be given in evidence.” — Bacon, vol. 8, 339. Again: same page, R. “In pleading a usurious contract, in bar to an action, you must set forth the whole matter specially, because it lay within your own privity, but in an information on the statute, for making such bargain, it is sufficient to set forth generally the corrupt bargain, because matters of this kind are supposed to be privily transacted, and such information may be brought by a stranger.” — Hawkins 2, ch. 82, sec. 24.
    Rex vs. Gilham, was an indictment for illegal brokerage, to wit: for taking more than ten shillings in the hundred — Kenyon, J., said, the only question was, whether more than ten shillings was taken. It was not necessary to prove the exact sum laid in the indictment, though not laid with a silicet.— 6 TermR. 1 Raymond, 149; Rex vs. Hill, 2 Eng. C. Rep.
    The cases of indictment and of actions arising under the statute of Anne, do not apply, because you are bound to amerce neither more nor less than treble the amount of the usury under them.
    Our statute says, he shall be fined on the indictment not less than the usury. He may be fined more; if fined less, the defendant cannot complain — if fined more, it is within the power of the jury and court. The statute is imperative that the jury shall assess the fine, making it wholly unnecessary to show to the court, by averment on record, the contract.— The whole is matter of evidence.
    It is insisted that the cases in the exchequer are the proper guide under our statute, and is the law,- or the statute will be defeated by the requiring a strictness of averment and accuracy of proof, that would hardly be admissible in a felony.
   Turley, J.

delivered the opinion of the court.

Defendant was convicted of the offence of usury, in the circuit court of Maury county, and now seeks a reversal of the judgment, upon the ground that there is a variance between the contract out of which the usury was received, as set forth in the presentment, and that as proved upon the trial. It is not denied that such variance exists; but is that a good cause for reversing this judgment? We think not.

The act of 1835, chap. 50, sec. 6, enacts, that “in any case where more than legal interest shall be taken, the person taking the same shall be liable-to indictment or presentment, and, on conviction, shall be fined a sum not less than the whole usurious interest so taken and received, which amount shall be ascertained by the jury trying the case: provided, that no fine shall be less than ten dollars.” Now, by this statute, the offence consists in receiving illegal interest, not contracting to receive it; the contract, then, is merely inducement, and need not be described wil h that particularity which is required when it constitutes the body of the offence, or is the foundation of an action: this is so upon reaspn and authority. Usurious contracts are' made in secret; it would then be impossible to indict or present for. the offence, if strict formality- were required, in setting forth'the contract and amount of usury received, unless the party to the contract were to give the information, which he very seldom will do. In 8th Bacon’s Abr. page 338, title Usury, it is said, “that upon an information in the exchequer, for that .the defendant, per viam corruptee bargainee, received, &c.: after .verdict it. was moved in arrest of judgment, because the plaintiff did not set forth what the bargain was, but -generally, per viam corruptee, &c., sed non allocatur, for this is the usual course of the exchequer, and the bargain is to be given in evidence.” But it was agreed, that, impleading to avoid a bond or assurance, it ought to be particularly set forth, .because the party is privy to his own contract, but the informer-is not.

There is no reason for-greater strictness in bills of indictment or presentment under our' statute, than on informations in -England; they are both penal proceedings, in which the guilty party is only punished by amercement.

We are, therefore, of the opinion- that there is no error in this case, and affirm the judgment.  