Commonwealth v. Donoghue , 250 Ky. 343 ( 1933 )

I am unable to concur in the majority opinion. However indefensible the exaction of usury may be, it is a matter that should be regulated by the Legislature and not by the courts. Already the conspiracy doctrine has been worked overtime, and should not be extended unless plainly required. When a court on the theory of conspiracy declares an act to be a crime, which was not recognized as a crime at the time it was done, its decision savors strongly of an ex post facto law. Briefly stated a criminal conspiracy is a combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means, Sparks v. Commonwealth, 89 Ky. 644, 20 S.W. 167. Stripped of surplusage, the indictment alleges a conspiracy to charge usury, and as part of the plan the failure of the defendants properly to file certain statements required by statute. At common law, as adopted in Kentucky, it was not a crime to charge usury, and it has never been made so by statute. Therefore, it was essential to a good indictment to allege that the defendants charged usury by criminal or unlawful means. That, of course, has reference to the method of obtaining the loan, and not to wholly disconnected steps which the lenders failed to take. It was not alleged that the defendants, for the purpose of effecting the loans, resorted to force, threats, intimidation, or fraud. On the contrary, the case is one where the borrowers were not imposed upon in any way, but willingly and freely entered into the arrangement. In the circumstances, the indictment does not allege facts showing that the defendants resorted to unlawful means.

The necessity of protecting the public, and particularly the laboring man, is much stressed, but that alone will not authorize the court to hold an indictment good. Moreover, it is not perceived how prosecutions like the one in question may help the situation, as separate individuals may still continue the business of lending money at exorbitant rates without being subject to punishment.

The decision not only presents a strained application of the conspiracy doctrine, but its chief danger lies in the fact that for all time to come it will be the basis for the creation of new crimes never dreamed of by the people.

I am authorized to say that Judge Dietzman concurs in this dissent.