#### STATE v. LOUISE PRICE.

(Filed 20 March, 1918.)

1. Criminal Law — Amendments — Courts — Statutes — Bawdy Houses — Vagrancy.

The court has the power to allow a complaint and warrant for the violation of the vagrancy law (ch. 391, Acts of 1905; ch. 1, Acts of 1915; ch. 1012, Acts of 1917) to be amended in proper instances by the insertion of the words “bawdy house and assignation house” and adding the words “thereby becoming a vagrant in violation of the statutes.” S. v. Poy-thress, 174 N. C., 809, cited and applied.

2. Criminal Law — Bawdy Houses — Vagrancy—Evidence—Nonsuit—Arrest of Judgment.

Where the affidavit and warrant for a violation of the vagrancy laws follow the language of the statute (ch. 391, Acts of 1915, etc.), and there is evidence upon the trial to support the charges therein made, motions to nonsuit and in arrest of judgment are properly denied.

3. Criminal Law — Bawdy Houses — Evidence — Reputation — Statutes—Constitutional Law.

By express statutory provision, the reputation that a house is kept as a bawdy house may be received in evidence on the trial of a person for keep*805ing one, under an indictment for vagrancy, etc., and tlie statute is constitutional and valid. Pell’s Revisal, sec. 3353a.

4. Criminal Law — Instructions—Bawdy Houses — Issues—Appeal and Error —Harmless Error.

Where the defendant is charged under the provisions of the statute with vagrancy and the keeping of a bawdy house, of which there is evidence upon the trial, and the court submits the case under the issue as to vagrancy alone, the charge of the court embracing the elements of keeping a bawdy house is not to the defendant’s prejudice when it was so explained to the jury that they could not have been misled thereby, and when the court so confined the inquiry to vagrancy as to exclude all evidence not relating thereto.

ActioN, tried before Oalvert, J., and a jury, at January Term, 1918, of Waee.

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 bawdy bouse, assignation bouse, lewd and disorderly bouse and place where illegal sexual intercourse was habitually carried on, and thereby became a vagrant, in violation’of Acts of 1905, ch. 391, Acts of 1915, ch. 1, and Acts of 1917, ch. 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 twelve 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 thirty days imprisonment in the jail of the county, and appealed from the judgment.

Attorney-General Manning and Assistant Attorney-General Syhes for the State.

A. Jones & Son and J. 0. Little for defendant.

Walker, J.,

after stating the case: First. When the ease was called for trial, the solicitor moved to amend the complaint and warrant by inserting the words “bawdy house 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 *806originals, but if this be so, the court clearly had the power to allow the amendment. S. v. Poythress, 174 N. C., 809. 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- Re-visal and numerous decisions of this Court, is one of liberality in allowing amendments in the Superior Court of warrants issued by justices of the peace, and such amendments are allowed even after verdict (S. v. Smith, 103 N. C., 410), and even after a special verdict (S. v. Telfair, 130 N. C., 645). 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. S. v. Baker, 106 N. C., 758. 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 allows, all of them different offenses, and we held that notwithstanding this the amendment could be made under the statute (Revisal 1905, sec. 1467). S. v. Winslow, 95 N. C., 649; $. v. Davis, 111 N. C., 729; S. v. Sharp, 125 N. C., 634 (74 Am. St., 663); S. v. Yoder, 132 N. C., 1113; S. v. Sykes, 104 N. C., 694. 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 mag*807istrates 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, sec.'3353-A. 1 Wharton’s Or. Evidence (10 Ed.), sec. 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: U. S. v. Gray, 2 Cranch C. C., 675, Fed. Cas. No. 15251; U. S. v. Stevens, 4 Cranch C. C., 341, Fed. Cas. No. 16391; Caldwell v. S., 17 Conn., 467; People v. Lock Wing, 61 Cal., 380; People v. Buchanan, 1 Idaho, 681. See U. S. v. Johnson, 12 Rep., 135. See, also, S. 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 Or. Evidence, sec. 261, n. 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 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 passing upon the defendant’s guilt. Some of the courts have suggested the necessity of a natural connection between the fact inferred or presumed and the fact upon which the presumption or inference is based, as a condition of the power of the Legislature to declare-prima facie rules of evidence.

Thus the Court, in S. v. Beach, 147 Ind., 74, and 36 L. R. A., 179 (cited in S. v. Thomas, infra), declared, obiter, that a law which provides that certain facts are conclusive proof of guilt would be unconstitutional, “as also would one which makes an act prima facie evidence of crime which had no relation to a criminal act and no tendency whatever to establish a criminal act.”

So the Court, in People v. Cannon, 139 N. Y., 32, 36 Am. St. Rep., 668, said: “The fact upon which the presumption is to rest must have some fair relation to or natural connection with the main fact. The in*808ference of tbe existence of tbe main fact because of tbe existence of tbe fact actually proved must not be merely and purely arbitrary or wholly unreasonable, unnatural, or extraordinary.” Tbis qualification of tbe legislative power is denied in 2 Wigmore on Evidence, sec. 1354, p. 1672, upon tbe theory that if tbe Legislature can make a rule of evidence at all, it cannot be controlled by tbe judicial standard of rationality any more than its economic fallacies can be invalidated by tbe judicial conception of economic truth. Without, however, conceding that tbe rationality of tbe legislative rule of evidence is in no case open to judicial examination, it is probably safe to assume that tbe courts will be reluctant except in extraordinary cases, to declare that tbe legislative rule is so irrational as to be invalid. Banks v. S., 52 S. E. (Ga.), 74. (Same case and note in 2 Law Reports Anno. (N. S.), p. 1007, especially tbe note at pp. 1008 and 1009, where tbe subject is discussed with a citation of some of tbe authorities bearing upon it.) See, also, S. v. Thomas, 2 L. R. A. (N. S.), p. 1011, citing S. v. Beach, 147 Ind., 74 (36 L. R. A., 179); S. v. Boyd, at tbis term; Jones v. Brim, 165 U. S., 180.

“It is within tbe power of tbe Legislature to prescribe a rule of general application based upon a state of things which is ordinarily evidence of tbe ultimate fact sought to be established.” Hawker v. S., of New York, 170 U. S., 189, 197.

Tbe principle seems to be quite well settled that tbe Legislature has tbe power to declare that reputation, in certain instances, shall be evidence as to tbe character of a bouse in which illicit traffic is carried on (S. v. Beach, 36 L. R. A., 179), and it may further declare that certain facts shall be prima facie or presumptive evidence of another fact. S. v. Barrett, 138 N. C., 630; S. c., 1 L. R. A. (N. S.), 626. If such facts were made conclusive proof of tbe criminal act, a different question would be presented; but they are not in this case, as tbe statute does not go to that extent. Tbe Barrett case has received tbe approval of tbis Court many times since it was decided. S. v. Wilkerson, 164 N. C., 432, where statutes making certain facts evidence or even prima facie evidence of another fact involved in tbe issue have been upheld, and tbe distinction between those statutes which may be valid and those which may not be valid is fully stated. S. v. Divine, 98 N. C., 778, presented a different question and is easily distinguished from the cases above cited.

Fourth. The objections to the charge of the court cannot be sustained. The learned judge eliminated so much of the complaint as contained the separate charge of keeping a bawdy house and submitted all of the relevant evidence to the jury on the sole issue of vagrancy. There were circumstances in evidence which taken with the reputation of the house would warrant the jury in finding that the defendant was a vagrant *809witbin tbe meaning of tbe statute. Any extended discussion of tbe facts would be useless. It may be tbat bis Honor should not have excluded tbe charge of keeping a bawdy bouse as contended by tbe State, but if it was error to do so, it is plain tbat it was one committed in favor of tbe defendant, and she will not be beard by tbe law to complain.

"With reference to tbe remaining allegations in tbe complaint and tbe evidence to support them, tbe court charged almost in tbe very language of tbe statute, and at least substantially so, and tbe jury could not well' have been misled as to tbe issue they were trying or as to what was necessary to constitute guilt.

No error.