putative father, at his discretion, instead of being committed to prison or to the house of correction, may bind himself as an apprentice to any person whom he may select, for such time and at such price as the court may direct. The binding shall be by indenture in open court, and the price obtained shall be paid to the county treasurer. On the indenture being signed by the presiding judge of the court and by the master receiving such apprentice, the person thus bound shall be treated and regarded as an apprentice in all matters except education.

Code, s. 38.

Sec. 77 (263). Procedure for legitimating bastards.

The putative father of any illegitimate child may apply by petition in writing to the superior court of the county in which the father may reside, praying that such child may be declared legitimate; and if it shall appear that the petitioner is reputed the father of the child, the court may thereupon declare and pronounce the child legitimated; and the clerk shall record the decree.

Code, s. 39.

Sec. 78 (264). Effects of legitimation.

The effect of such legitimation shall extend no further than to impose upon the father all the obligations which fathers owe to their lawful children, and to enable the child to inherit from the father only his real estate, and also to entitle such child to the personal estate of his father, in the same manner as if he had been born in lawful wedlock; and in case of death and intestacy, the real and personal estate of such child shall be transmitted and distributed according to the statute of descents and distribution among those who would be his heirs and next of kin in case he had been born in lawful wedlock.

Code, s. 40.

BAWDY AND DISORDERLY HOUSES.

Sec. 79. Inmates declared vagrants.

That all keepers and inmates of bawdy-houses, assignation houses, lewd and disorderly houses, and places where illegal sexual intercourse is habitually carried on, are declared to be vagrants within the meaning of section three thousand seven hundred and forty of the Revisal of one thousand nine hundred and five.

That it shall be the duty of the chief of police, marshal, constable or other chief ministerial officer of each city and town in

this state to furnish to the police justice, recorder, mayor or other trial officer of such city or town a list of the bawdy, assignation, lewd and disorderly houses, and places where illegal sexual intercourse is carried on, together with the names of the keepers and inmates of such houses and places, in such city or town, every thirty days, and it shall be the duty of such police justice, recorder, mayor or other trial officer, upon the filing of such list, to issue his warrant for such persons herein declared to be vagrants, and to punish such persons as may be guilty under this act, as provided in section three thousand seven hundred and forty, Revisal of one thousand nine hundred and five: Provided, that in trials under this act any keeper, inmate or employee of the house or places, or either of them, shall be competent and compellable to give evidence of the character and nature of such house or such place, and the character and acts of the keepers and inmates of such houses and places; but said person so testifying shall not be prosecuted or punished for violation of any law about which crime such person shall have been required to testify.

If any chief of police, marshal, constable or other chief ministerial officer of any city or town shall fail to furnish the list of houses and places provided for in this act, or shall suppress the name or names of such persons as he is required herein to report, he shall be guilty of a misdemeanor, and upon conviction therefor shall be fined or imprisoned, or both, at the discretion of the court.

1907, c. 1012.

Sec. 80. Rule of evidence.

That on a prosecution in any court for keeping a disorderly house or bawdy-house, or permitting a house to be used as a bawdyhouse, or used in such a way as to make it disorderly, or a common nuisance, evidence of the general reputation or character of the house shall be admissible and competent; and evidence of the lewd, dissolute, and boisterous conversation of the inmates and frequenters, while in and around the house, shall be prima facie evidence of the bad character of the inmates and frequenters, and of the disorderly character of the house.

That the manager or person having the care, superintendency or government of a disorderly house or bawdy-house is the "keeper" thereof, and that one who employes another to manage and conduct a disorderly house or bawdy-house is also the "keeper" thereof.

1907, c. 779.

WHAT CONSTITUTES A BAWDY-HOUSE.-A bawdy-house is not the habitation of one lewd woman, but the common habitation of prostitutes; a brothel, and one woman can not be indicted for keeping a bawdy-house merely because

she is unchaste, lives by herself, and habitually admits one, or many, to an illicit cohabitation with her. Evans, 27 (5 Ired.), 603.

Evidence that defendant's daughter had given birth to a bastard child, and on one occasion had been seen in bed with a man in defendant's house; that on another occasion defendant was seen in bed with a man, and her daughter at the same time in another room in bed with another man, and that on still another occasion the defendant was discovered near a public road in the act of illicit sexual intercourse close to her house, is not sufficient to warrant a conviction either for keeping a bawdy-house or a disorderly house. Calley, 104-858.

TOWN ORDINANCE.-Under a general power in a charter to suppress houses of ill fame, a city may pass an ordinance forbidding owners to rent houses for the purpose of being used as bawdy-houses, or with a knowledge that they will be so used by the lessee; (but its authorities are not thereby empowered to define what is a house of ill fame, or declare a given house to be a bawdy-house, or to enact that the permitting of prostitution by the owner or occupant of any house therein shall constitute such owner ог occupant the keeper of a house of ill fame. Webber, 107-962.)

EVIDENCE.-Evidence that the female members of a witness's family were not permitted, on account of the character of the house, to pass by it on their way to Sunday-school, is properly left to the jury as some evidence of annoyance. Robertson, 86-628.

DISORDERLY HOUSE.-On indictment for keeping a disorderly house, the evidence was that the house was within a few feet of a public highway and a place where liquors were sold and drunk and near a distillery; that lewd behavior by defendant's daughter had been seen at various times, and that she had given birth to a bastard child; that there were frequent firing of guns on the premises both night and day, and that the house was a resort for men of bad repute, and had been annoying to eight or ten families in the immediate neighborhood, and was so offensive that women would not pass the place unattended: Held, that a request for an institution that all the evidence did not establish the character of the house as disorderly was properly refused. Wilson, 93-608.

Defendant lived in the country, remote from any public road, and loud noises and uproar were often kept up by his five sons when drunk, but he did not encourage them, except by getting drunk himself, but would sometimes endeavor to quiet them, and only two families in a thickly settled neighborhood were disturbed by the noises: Held, that defendant was not guilty. Wright, 51 (6 Jones), 25.

A keeper of a saloon who permits promiscuous assembling about his shop of persons who cause disturbance by loud noises, quarreling and swearing, such disturbance being the probable consequence of his conduct, is guilty of keeping a disorderly house. Thornton, 44 (Bus.), 252.

Permitting a man's slaves to meet and dance on his premises on Christmas or other holiday, even though other slaves with the permission of their masters participated in the enjoyment, and though some of the younger members of the owner's family occasionally join in the dance, does not constitute the offense of keeping a disorderly house or any other offense. Boyce, 32 (10 Ire.), 536.

One who entertains strangers only occasionally, although he receives pay for it, is not an inn-keeper; and if on such occasions gambling, drinking and fighting take place, he is not indictable as the keeper of a disorderly house, for it is not a common nuisance. Mathews, 22 (2 D. & B.), 424.

A disorderly house is one kept in such a way as to disturb or scandalize the public generally, or the inhabitants of a particular neighborhood, or the passers-by. Wilson, 93-608.

INDICTMENT. An indictment which charges that defendant kept an "illgoverned house is sufficient without charging in words that it was a "disorderly house," nor is an omission to charge that it was "to the common nuisance" fatal. Wilson, 93-608.

Where it appeared that defendant lived in the country, remote from any public road, and that loud noises and uproar were kept up by his five sons, when drunk, whom he did not encourage except by getting drunk himself, but would sometimes endeavor to quiet them, by which disorder only two families in a thickly settled neighborhood were disturbed, it was held that defendant was not guilty. Wright, 51-25.

BEST IMPRESSION OF WITNESS.

On indictment of a woman for drowning her child, a witness who stated that he saw the prisoner going toward the river with a child in her arms, but that he was a hundred yards away and was not sure who the child was, can not give it as his best impression that the child was the prisoner's, since such impression may very reasonably be a mere inference. Thorp, 72

186.

A witness may give his "best impressions" or "opinion" as to facts, as for instance the time or place of the commission of a certain act, or who did the act, but he can not state a mere inference from what he saw or knew. Thorp, 72-186.

[See the title Evidence, subdivision 27, "Expression of Opinion of Witness."]

Sec. 81 (3361). Bigamy.

BIGAMY.

If any person, being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in the state of North Carolina, or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony, and imprisoned in the state's prison or county jail, for any term not less than four months nor more than ten years; and any such offense may be dealt with, tried, determined and punished in the county where the offender shall be apprehended, or be in custody, as if the offense had been actually committed in that county: Provided, that nothing herein shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within. that time, nor shall extend to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage, nor to any person whose former marriage

shall have been declared void by the sentence of any court of competent jurisdiction.

Code, s. 988; 9 Geo. IV., c. 31, s. 22; R. C., 34, s. 15; 1790, c. 323; 1809; c. 783; 1829, c. 9.

VARIANCE. IN THE NAME OF FIRST WIFE.-Where the indictment alleges that the first wife's name was Dixie Marshall; and there is evidence that her name was Lee Emma Dixie Marshall, and also evidence that she was known as Dixie Marshall, it is not error for the court to charge that there is no variance if the jury find that she "was known as Dixie Marshall and was so known and acknowledged and married by defendant." Davis, 109-780.

EVIDENCE.-Evidence that defendant was advised that his first marriage was void for want of a license, and that he married a second time, believing such to be the case, is properly rejected. A license only relieves the minister or justice performing the ceremony from the penalty, and is not necessary to the validity of the marriage, and ignorance of the law could not excuse defendant. Robbins, 28 (6 Ired.), 23.

MARRIAGE SOLEMNIZED BY OFFICER DE FACTO SUFFICIENT. It is not necessary for the state to show that the magistrate who solemnized the first marriage "was duly appointed and qualified," but it is sufficient to prove that such justice was at the time a de facto officer.-Davis, 109-780.

OMISSION OF JUSTICE'S NAME IN JOURNALS OF THE LEGISLATURE.-The fact that the name of the justice who solemnized the first marriage does not appear in the journals of the legislature among the justices elected by that body is not sufficient to show even that he was not an officer de jure, since justices. in certain cases, are appointed by the governor and also by the clerk of the superior court. Davis, 109-780.

BURDEN ON DEFENDANT TO SHOW WANT OF MENTAL CAPACITY.-Where want of mental capacity at the time of the second marriage is relied on as a defense, the burden is on the defendant to satisfy the jury, but not beyond a reasonable doubt, that he had not sufficient mental capacity to know right from wrong. Davis, 109-780.

SECOND WIFE A COMPETENT WITNESS.-The second wife is a competent witness either for or against the husband. Patterson, 24 (2 Ired.), 346.

CARNAL KNOWLEDGE NOT NECESSARY.-Consummation by carnal knowledge is not necessary to the validity of a marriage. Patterson, 24 (2 Ired.), 346.

NAME OF FIRST WIFE NEED NOT BE GIVEN.-It is not necessary that the indictment should give the name of the first wife at all. Davis, 109-780.

ACT CONSTITUTIONAL.-Revisal, section 3361, is constitutional under the state and federal constitutions. When a man having a lawful wife admits a second marriage in another state, the bigamous marriage is exploited by his living openly and avowedly in this state with his wife by the second marriage, and the offense may be dealt with, tried, determined and punished in the county where the offender may be apprehended or be in custody. Long, 143-670.

INDICTMENT, DATE OF OFFENSE.-Revisal, section 3361, does not by its language make it necessary for the indictment to state the dates of the marriages in a charge of the felonious offense of bigamy, and section 3255 thereof provides that no judgment upon any indictment for a felony or misdemeanor shall be stayed or reversed for omitting to state the time at which the offense was committed, where time is not of the essenec of the offense. Long, 143-670.

Under an indictment for bigamy, Revisal, it is unnecessary to state where the second marriage took place. Long, 143-670.