
    The State v. Williams.
    An indictment for receiving usurious interest upon a note, did not allege the place where the note was made. . Held, on motion to quash, that the omission was fatal.
    Where any positive fact is averred in an indictment, it should be stated to have been done ‘‘then and there,” after the county has been clearly expressed in the body of the indictment; and the allegation of time and place, "then and there,” should be repeated to eveiy material fact which is issuable and triable.
    
      Monday, June 6.
    ERROR to the Crawford Circuit Court.
   Davison, J.

Indictment for usury. The indictment alleges that the grand jurors of the state, &c., impannelled, &c., to inquire for the body of the county of Crawford, &c., present that John Williams, late of said county, on the 6th of March, 1849, did receive of Martin Hoskins a note of hand executed by said Hoskins, whereby he promised to pay to the said Williams 26 dollars and 40 cents one day after date; and that on the 27th of March, 1851, the said Williams did receive of said Hoskins, in payment of said note and the interest due thereon, in property and work and labor, the sum of 30 dollars and 50 cents; and therein, on the day and year last aforesaid, at and in the county aforesaid, did unlawfully and usuriously take and receive of said Hoskins, in property and work and labor, the sum of 4 dollars and 10 cents, in payment of the interest due and owing, &c., by virtue of said note, that sum being more than 6 per cent, per annum, to-wit, 84 cents more than lawful interest, &c.

A. L. Robinson and D. S. Gooding, for the state.

The Court, on the defendant’s motion, quashed the indictment.

There is a fatal defect in this indictment. It does not allege the place where the note was made. The rule is, “ where any positive fact is averred, it should be stated to have been done £ then and there? after the county has been clearly expressed in the body of the indictment; and the allegation of time and place, £ then and there,’ should be repeated to every material fact which is issuable and triable.” 1 Chitty’s Crim. Law, 198.

It seems to us that the place where the note was made was a positive fact, issuable and triable, which the state was bound to show. Whether the sum taken as interest was or was not usurious, might depend on the lex loci where the contract was executed; and it follows that this indictment does not contain all the facts requisite to constitute the offence.

The motion to quash was, therefore, correctly sustained.

Per Curiam.

The judgment is affirmed with costs.  