Volume 215 — Mississippi Reports

<bold>1. Habeas corpus — extradition — inquiry into merits.</bold> A party who is held under a proper warrant of extradition may not secure his release in habeas corpus on the alleged ground that purpose of the extradition was to collect a debt and that he was not guilty of the crime charged against him because the act was done in self-defense. Headnote as approved by Lee, J.

<bold>1. Usury — substance and not form controls.</bold> Courts will look through the form to the substance of a transaction to determine whether usury has been charged or collected. <bold>2. Usury — loan and not discount of notes.</bold> Where the evidence shows that the transaction in question was actually a loan and not a legitimate purchase of borrower's notes at a discount, and that more than 8 per cent interest was charged, the transaction will be declared usurious. <bold>3. Usury — interest at greater rate than 8 per cent.</bold> Where interest at a greater rate than 8 per cent, but less than 20, has been stipulated for and collected, all interest must be forfeited and the interest which has been paid should be deducted from the remaining principal. <bold>4. Usury — payment of agreed attorney's fees and fees of real</bold> <bold>estate agent.</bold> Where the borrower had agreed to pay the fees of the attorney and of the real estate agent and the recording costs, these would not be charged against the usurious lender. Headnotes as approved by Roberds, P.J.

<bold>1. Continuance — absence and in hospital of material witness.</bold> While the trial judge has a broad discretion in granting and refusing continuances, it was reversible error to refuse a continuance on the application of the defendant on account of the absence of his wife who was confined by illness in a hospital, and when it was only by her testimony that the defendant could refute the testimony of the main witness for the State. Headnote as approved by Arrington, J.

<bold>1. Criminal procedure — evidence of previous similar offense —</bold> <bold>admitted without objection.</bold> In a prosecution for rape, testimony of the prosecuting witness that the defendant had attempted a similar crime on her during the previous summer was not properly admitted; but when admitted as in the instant case without timely objection by the defendant there will be no reversal, — this under the rule that an appellate court will not consider an objection that evidence was improperly admitted unless the objection was raised in the trial court, at the time the evidence was offered. <bold>2. Criminal procedure — evidence — rape — pretrial statements of</bold> <bold>prosecutrix made in presence of accused.</bold> As a rule, in a prosecution for rape, pretrial statements made by the prosecutrix to officers or others concerning the details of the crime are not admissible, but such statements are admissible when made in the presence and hearing of the accused and he fails to deny them or remains silent. <bold>3. Indictment — amendment by inserting defendant's christian</bold> <bold>name.</bold> The omission of defendant's christian name in an indictment for rape was not fatal and the court properly allowed an amendment to supply the omission. Sec. 2448, Code 1942. <bold>4. Indictment — rape — failure to allege that victim was a child</bold> <bold>or person or a human being.</bold> An indictment for rape which alleges that the victim was a female of the age of 12 years or more is not fatally defective because of omission to charge that she was a child, or a person or a human being. Sec. 2446, Code 1942. <bold>5. Trial — witnesses — county attorney.</bold> It was not reversible error to permit the county attorney to testify as a witness in a criminal case, although he had remained in the<page_number>Page 381</page_number> courtroom and had heard a part of the testimony of other witnesses. Headnotes as approved by Kyle, J.

<bold>1. Criminal law — insanity.</bold> No insane person shall be tried, sentenced to any punishment, or punished for any crime while he continues insane. <bold>2. Criminal procedure — insanity — preliminary hearing before</bold> <bold>jury.</bold> If the showing before the trial judge is sufficient to engender a reasonable probability that the defendant is then insane, that issue must be preliminarily submitted to a jury. <bold>3. Insanity — preliminary hearing — proof before trial judge.</bold> Where every doctor and expert, seventeen in number, who had observed and examined the accused, was of the opinion that he was insane, it was reversible error to deny, in the face of this overwhelming proof, a preliminary hearing, on the issue of his sanity,<page_number>Page 542</page_number> because and solely because the trial judge from his observation of the accused in the courtroom was of the opinion that there was no good reason for a preliminary hearing. <bold>4. Larceny — evidence — hearsay.</bold> In a prosecution for larceny testimony of officers as to the results of their investigation and as to what other people told them and pointed out to them in the course of such investigation was hearsay and inadmissible. <bold>5. Larceny — indictment — amendment — description of property.</bold> An indictment for the larceny of a calf was properly amendable by the addition of the word "red" in the description of the calf. Sec. 2532, Code 1942. <bold>6. Criminal procedure — nolle prosequi — consent of court</bold> <bold>necessary.</bold> Although the proof was overwhelming that the accused was insane, it was not reversible error to deny the motion of the prosecuting attorney for a nolle prosequi, since no such order may be entered without the consent of the court. Sec. 2566, Code 1942. Headnotes as approved by Lee, J.

<bold>1. Quo warranto — to try the right to an office — petition in</bold> <bold>name of State by claimant.</bold> A petition in the nature of a quo warranto to oust, in favor of the claimant, a trustee of a consolidated school district may be filed by the claimant in the name of the State with himself as relator, without the necessity of action therein by or in the name of the Attorney General or the district attorney of the judicial district. <bold>2. Appeal — quo warranto — plea to jurisdiction erroneously</bold> <bold>sustained — remand.</bold> Where a petition in the nature of a quo warranto was filed by the claimant to the office of trustee of a consolidated school district, and stated a good cause of action but was erroneously dismissed on the theory of a want of jurisdiction, the case will be remanded for answer and a trial on the merits. Headnotes as approved by McGehee, C.J.