Kenyon v. State

This prosecution is based upon an alleged violation of the act of the Twenty-second Legislature defining and punishing usury. Acts 1891, p. 20.

There are several questions raised upon the record and urged as grounds for reversal of the judgment of conviction. Subsequent to the conviction of appellant, and pending this appeal, the special session of the Twenty-second Legislature, which has just adjourned, repealed the statute upon which this case is predicated, and in doing so, failed to substitute any penalty in lieu of that prescribed by the Act of 1891. By the Penal Code, article 16, it is provided that "the repeal of a penal law, where the repealing statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealed law, unless it be otherwise declared in the repealing statute." The repealing statute was passed with the emergency clause attached, and took effect from and after its passage. There is at present no law in this State punishing usury as an offense. All of the remedies prescribed are civil in their nature, and such penalties and damages as are recoverable against parties lending money upon usurious contracts are recoverable only in civil actions.

The repeal of the Act of 1891 by the recent Legislature annuls the conviction in this case. Whisenhunt v. The State, 18 Texas Ct. App. 491[18 Tex. Crim. 491]; Sheppard v. The State, 1 Texas Ct. App. 522[1 Tex. Crim. 522]; 7 Wheat., 552.

Mr. Cooley says, "If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered." Cool. Const. Lim. (4 ed.), 477.

The questions raised by appellant will not be discussed, because they are no longer practical. For the reasons indicated, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Judges all present and concurring.