State v. Price

• Decision Date: 20 March 1918
• Docket Number: 243.
• Citation: 95 S.E. 478,175 N.C. 804
• Parties: STATE v. PRICE.
• Court: North Carolina Supreme Court

95 S.E. 478

175 N.C. 804

STATE v. PRICE.

No. 243.

Supreme Court of North Carolina

March 20, 1918

Appeal from Superior Court, Wake County; Calvert, Judge.

Louise Price was convicted of vagrancy, and appeals. Affirmed.

Defendant was charged with the offense of vagrancy, the complaint and warrant alleging that she "did unlawfully and willfully keep, and was an inmate of, a bawdyhouse, assignation house lewd and disorderly house, and place where illegal sexual intercourse was habitually carried on, and thereby became a vagrant, in violation of Acts of 1905 chapter 391, Acts of 1915, chapter 1, and Acts of 1907 chapter 1012, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." She was tried before the city court of Raleigh, convicted, and sentenced to 12 months' imprisonment in jail, to take effect at the expiration of a former sentence, this being the second offense. The defendant appealed from this judgment to the superior court, where she was again convicted. She moved for arrest of judgment, and also for a new trial, which motions were overruled, and she was thereupon sentenced to 30 days' imprisonment in the jail of the county, and appealed from the judgment.

A. Jones & Son and J. C. Little, all of Raleigh, for appellant.

James S. Manning, Atty. Gen., and Robt. H. Sykes, Asst. Atty. Gen for the State.

WALKER J. (after stating the facts as above).

First. When the case was called for trial, the solicitor moved to amend the complaint and warrant by inserting the words, "bawdyhouse and assignation house," and adding the words "thereby becoming a vagrant, in violation of the statutes" (enumerated in the motion and hereinbefore stated). The motion was allowed, and the affidavit and warrant accordingly amended. Defendant excepted.

The original complaint and warrant, as they now appear in the record, have these words in them, and it may be that they are not the originals, but, if this be so, the court clearly had the power to allow the amendment. State v. Poythress, 174 N.C. 809, 93 S.E. 919. In that case we said, in regard to a much more radical and serious amendment of a criminal warrant:

"The other objections and exceptions by the defendant relate principally to the ruling of the court allowing amendments to the warrant. The policy of the law, as evidenced by section 1467 of the Revisal and numerous decisions of this court, is one of liberality in allowing amendments in the superior court to warrants issued by justices of the peace, and such amendments are allowed even after verdict ( State v. Smith, 103 N.C. 410, 9 S.E. 200), and even after a special verdict (State v. Telfair, 130 N.C. 645, 40 S.E. 976). The only restriction would seem to be that the amendment must be made to conform to evidence elicited on the trial, as shown by the record. State v. Baker, 106 N.C. 758, 11 S.E. 360. The effect of this amendment was to add two additional counts to the charge, upon which the defendant was being tried, both amendments conforming to the evidence elicited on the trial, as appeared from the record, and both amendments abundantly supported and sustained by evidence offered at the trial."

And we further said that:

"In those cases (referring to those presently to be cited), the affidavit, or original charge, was essentially changed, and yet it was held that the superior court had the power to amend it."

As has already been stated, two counts were added to the original charge. It is true they related to the sale of the liquor, but the original accusation was that defendant (1) had engaged in the business, or occupation, of selling liquor; (2) that he had liquor in his possession for sale; and (3) that he received more, at one time and in one package, than the law allowed, all of them different offenses, and we held that, notwithstanding this the amendment could be made under the statute. Revisal of 1905, § 1467. State v. Winslow, 95 N.C. 649; State v. Davis, 111 N.C. 729, 16 S.E. 540; State v. Sharp, 125 N.C. 634, 34 S.E. 264, 74 Am. St. Rep. 663; State v. Yoder, 132 N.C. 1113, 44 S.E. 689; State v. Sykes, 104 N.C. 694, 10 S.E. 191. As the record now stands, and accepting it as importing verity, which we are required to do, in the absence of any suggestion of any error in it, or a diminution of it, there was no necessity for an amendment, and the ruling of the court, if it could possibly be considered as erroneous, was harmless.

Second. The motion to nonsuit was properly overruled, as there was evidence for the jury upon the question of the defendant's guilt; and the motion in arrest of judgment was likewise properly refused, because the affidavit and warrant charged an indictable offense, and there is nothing appearing in the record for which the judgment can be arrested. The charge is made in the precise terms of the statute, and, for an apparent reason, we should not give the warrants and proceedings of magistrates a too drastic or technical construction, but, even if we should do so in this case, the charge is well laid in the papers.

Third. The evidence as to the reputation of the house was competent, and properly admitted, when considered in connection with the other testimony in the case. The statute itself makes such testimony competent. Pell's Revisal,§ 3353A. 1 Wharton's Cr. Evidence (10th Ed.) § 261, states the well-settled rule to be that:

"On indictments for keeping houses of ill fame, when such is the statutory term designating the offense, the ill fame or bad reputation of the house may be put in evidence."

For that statement in the text, the following cases are cited in the note: United States v. Gray, 2 Cranch, C. C. 675, Fed. Cas. No. 15,251; United States v. Stevens, 4 Cranch, C. C. 341, Fed. Cas. No. 16,391; Cadwell v State, 17 Conn. 467; People v. Lock Wing, 61 Cal. 380; People v. Buchanan, 1 Idaho, 681. See United States v. Johnson, 12 Rep. 135, 7 F. 453. See, also, State v. Blakesley, 38 Conn. 523. The annotation of this text states that care should be taken to see whether the statute makes the reputation, or ill fame, an essential element of the crime, or whether the actual character of the house is the fact in issue. If the reputation is a constituent part, evidence of it is, of course, admissible, but if the actual character of the house is the question to be determined, then reputation becomes admissible like any other evidentiary fact, and is used as one of the exceptions to the hearsay rule. 1 Wharton's Cr. Evidence, § 261, note 1. But the statute is sufficient authority for the admission of the evidence. It was competent for the Legislature to enact such a rule of evidence. It will be noted that the reputation of the character of the house, as being one forbidden by the law, is not given even the force of a presumptive or prima facie case, and is certainly not made conclusive proof of the ultimate fact sought to be established. It is only a circumstance which the jury are permitted to consider in...