Hallenbeck v. Getz.

First. That the division of the remnant or remainder of the estate should be made among the grandchildren per stirpes and not per capita.

Second. That the bequests to "The Baptist Domestic Miss. Socy.," "The Baptist Foreign Miss. Society," and "The Baptist Home Mission Society," are valid gifts to the corporations intended by the testator, namely, the Connecticut Baptist Convention, The American Baptist Missionary Union, and the American Baptist Home Mission Society respectively.

Third. That the bequests in trust for "the poor," and to the "Sunday school," of the First Baptist Church, are each valid, and the persons from time to time in succession holding the office of deacons of the Baptist Church in Hartford, commonly known as The First Baptist Church in Hartford, are competent to take and hold in trust, for the purposes named, the respective amounts so bequeathed.

In this opinion the other judges concurred, except CARPENTER, J., who dissented upon the last point.

WILLIAM H. HALLENBECK vs. JACOB GETZ.

Hartford Dist., Oct. T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE,
FENN and BALDWIN, JS.

It is provided by Gen. Statutes, § 3003, "that pawnbrokers are prohibited from taking or receiving, directly or indirectly, more than twenty-five per cent per annum for the use of money loaned on personal property;" and § 3005 provides a penalty for a violation of the statute. Held that the pawnbroker, to make himself liable, must have actually received the unlawful interest, and that demanding it after having received the property, or charging it on an account book, is not enough. Any statute which imposes a penalty for doing or omitting to do an act is penal; and is especially so when an action may be brought for the penalty by a common informer.

In ordinary cases the correct construction is given to a statute by reading
its words in their general and popular sense.

[Argued October 10th-decided October 25th, 1893.]
VOL. LXIII.-25

Hallenbeck v. Getz.

ACTION on Gen. Statutes, § 3005, to recover a penalty for the taking by the defendant of unlawful interest on a loan of personal property; brought to the Court of Common Pleas of Hartford County, and tried to the jury before Calhoun, J. The court denied a motion to set aside a nonsuit granted, and the plaintiff appealed to this court. The case is stated in the opinion.

H. D. Middleberger and H. O'Flaherty, for the appellant.

J. L. Barbour, for the appellee.

ANDREWS, C. J. This is an action brought to recover a forfeiture under sections 3003 and 3005 of the General Statutes. The complaint alleges, in substance, that the defendant was a pawnbroker in the city of Hartford; that on the 23d day of November, 1889, the plaintiff delivered to the defendant, by way of pledge or pawn for a loan of eight dollars, a double barrelled gun of the value of sixty dollars; and that the defendant as such pawnbroker took and received from the plaintiff the sum of one dollar and fifty cents for the use of said sum of eight dollars for one month, which sum was more than the lawful rate of interest chargeable by law for the use of money loaned by pawnbrokers on personal property. There was a second count under which no claim was made.

The complaint claimed damages to the treble value of the gun. The answer denied all the averments in the complaint except that the defendant was a pawnbroker. Issue was joined to the jury. All the evidence offered by the plaintiff, so far as it bears on the question of taking or receiving interest by the defendant, is this:

The plaintiff testified:-"My name is Wm. Watson Hallenbeck. On the 23d day of November, 1889, I was the owner of a double barrelled shot gun worth sixty dollars. On that day I pawned the gun with Mr. Getz for a loan of eight dollars. Mr. Getz gave me the eight dollars, and a pawn ticket by which I was to pay him nine dollars and fifty

Hallenbeck v. Getz.

cents in thirty days for a return of the property. I sent John Hendron with a ten dollar bill and the pawn ticket, and told him to get the gun pawned with Getz which the ticket called for. He did not return the gun to me. It has never been returned. He brought back to me the ten dollar bill. I wrote Getz a letter afterwards making a further demand for a return of the property but received no reply."

John Hendron testified:-"I am an expressman. On May 23,1890, I was sent for to go to Pratt & Whitney's shop. I went and saw Mr. Hallenbeck. He gave me a pawn ticket and a ten dollar bill, and told me to go and get the gun he had left in pawn with Mr. Getz, the pawnbroker. I went to Getz's place and asked for the gun. Getz asked me how much I was going to pay on it, I told him nine dollars and fifty cents. He said that was not enough-that he ought to have more; that he had been at expense in keeping and cleaning the gun, and that I might have it for twelve dollars. I told him I had only ten dollars and could not pay any more, and asked him if he would not let me have the gun. He said 'No,' and I came away, and went back and saw Hallenbeck and told him what I had done, and gave him back the ten dollar bill. He got me to put my name and the date on the back of the ticket, and paid me fifty cents for my services."

The plaintiff then rested his case, and the defendant moved for judgment as in a case of nonsuit, which motion was granted by the court. Afterwards there was a motion to set aside the nonsuit, which being refused the plaintiff appealed to this court.

We think the nonsuit was properly granted. The evidence failed to show that the defendant had taken or received any unlawful interest. He had not taken or received any interest whatever. He had not even received the amount of the loan. The statute which fixes a rate of interest beyond which if a pawnbroker takes interest he is liable to a forfeiture is penal in its nature and must be construed with reasonable strictness. Any statute which imposes a penalty for the doing or omitting an act is penal. Especially is it so when an action for the penalty may be brought by a common

State v. Fiske.

informer. 3 Black Comm., 160; Dwarris on Statutes (Potter's ed.,) 73, 74. But wholly apart from the rule of construction applying to penal statutes the nonsuit was correct. The word "take" has, indeed, very many shades of meaning. The precise meaning which it is to bear in any case depends upon the subject in respect to which it is used. In this statute it means, as we think, that the pawnbroker, in order to be liable to the penalty, must take the unlawful interest in such a manner that he gets it into his possession. He must take it in the sense of receiving it. The pawner must have parted with it. Unless this is done and the pawnbroker has received the interest into his possession the penalty of the statute is not incurred. Merely asking for the forbidden. rate of interest, or demanding it, or charging it on an account book, is not enough. "To take" means, in its general sense, to get into one's possession or power; to acquire; to obtain; to procure. While to "receive," means to get by a transfer, as to receive a gift, to receive a letter, to receive money. In ordinary cases the correct construction is given to a statute by reading the words in which it is expressed in their general and popular sense.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

THE STATE vs. GEORGE FISKE.

Hartford Dist., Oct. T., 1893. ANDREWS, C. J., CARPENTER, Torrance, FENN and BALDWIN, JS.

It is not essential to the commission of an assault with intent to murder that the accused should have acted with premeditation or deliberation. It is enough if the assault was committed with malice aforethought and an intent to kill.

The adjective "aforethought" qualifies malice and not the intent to kill; hence the malice must have existed previously and must co-operate with the act producing death in order to constitute murder. The court charged the jury that intoxication was no defense or excuse for crime, but that where a specific intent was an element of the offense it should be considered, and that if they should find that the accused

State v. Fiske.

had so far lost his reason from intoxication that they had a reasonable doubt whether he was able to form and entertain a purpose to kill or to know what he was doing, they should find him not guilty of intent to kill. Held to be quite as favorable to the accused as he was entitled to under our law.

The court in alluding to the testimony of the accused in his own behalf, instructed the jury to regard him as every other witness is regarded; to take into consideration his appearance, his manner, the reasonableness of his story, and "above all" the fact that he was the accused. Held that the accused could not justly complain of the use of the words "above all," as he was not entitled to have his testimony accepted as that of a disinterested witness, which was all the judge could have been understood to mean.

[Argued October 6th-decided October 25th, 1893.]

INFORMATION for an assault with intent to murder; in the Superior Court in Hartford County. The case was tried to the jury before R. Wheeler, J., and a verdict of guilty rendered, and an appeal taken by the accused for errors in the charge of the court. The case is fully stated in the opinion. J. L. Barbour, for the appellant.

G. A. Conant, with whom was A. F. Eggleston, for the State.

· CARPENTER, J. The charge is that the accused, "with force and arms, in and upon one Julius H. Clark, in the peace then and there being willfully and feloniously did. make an assault, and with a certain knife which he, the said George Fiske, then and there had and held, did then and there willfully, and of his malice aforethought, strike, cut and stab the said Julius H. Clark, in and upon his neck and throat and other parts of his body, with intent him, the said Julius H. Clark, willfully, feloniously, and of his malice aforethought, to kill and murder," etc. A second count charges him with the same offense upon the persons of said Clark and one James Nolan. Only one offense was claimed.

On the trial the counsel for the accused claimed, as a matter of law, that "to convict the accused of an assault with intent to murder, the State must prove the assault to have been committed willfully, deliberately, premeditatedly, and of malice aforethought," and requested the court to