175 N.C. 804 | N.C. | 1918
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
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
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
“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
"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.