The sentence of imprisonment for twelve months cannot be sustained under cb. 215, Laws of 1919, an act passed for the repression of prostitution, because the punishment for all the offenses condemned in tbat act exceeds imprisonment for thirty days, or a fine of $50, and this prosecution was beard in the Superior Court on a warrant issued by the mayor, and not on appeal from the recorder’s court, nor was any indictment found by a grand jury.
It is also clear from the amendment allowed tbat the court was not proceeding under the act of 1919, as it is in the language of sec. 3740, subsec. 7, of the Revisal, which defines vagrancy, and limits the punishment to a fine of $50 or imprisonment for thirty days.
Nor can the judgment be approved on the ground tbat this is a second conviction for the same offense, because the first conviction is not alleged in the warrant. This was the precise question decided in S. v. Davidson, 124 N. C., 839, and it is in accord with the authorities elsewhere.
“Where, in case of repeated convictions for similar offenses, tbe statute imposes an additional penalty, an indictment for a subsequent offense must allege tbe prior convictions, since such convictions, although *732they merely affect the punishment, are regarded as a portion of the description of the offense.” 22 Cyc., 356.
The judgment must therefore be set aside, and the question remaining for decision is whether the warrant is sufficient to sustain any judgment.
It charged vagrancy before amendment, which seemingly is as specific and definite as the warrant, which was held to be valid in S. v. Moore, 166 N. C., 284, but, however this may be, the court, exercising its discretion, allowed an amendment, which it had the power to do (S. v. Cauble, 70 N. C., 64), and the amendment points to the subsection of the act defining vagrancy, which the defendant is alleged to have violated, which is sufficient in a warrant, with which the courts deal more liberally than with indictments.
The fact that the amendment was not reduced to writing at the time it was allowed does not destroy its legal effect, but it is the better practice to require this to be done.
In S. v. Yellowday, 152 N. C., 793, there was a motion in arrest of judgment by the defendant, and one to amend by the State, as in this case, and the amendment allowed, a material one, and it was held that the order of amendment was self-executing, although the amendment was not reduced to writing.
The Court says: “It appears from the record that the court ordered an amendment of the warrant, by the insertion therein of the words, 'without a license so to do,’ but the words were not actually inserted in the complaint or the warrant by the solicitor. The order of the court, as has been decided by this Court several times, was self-executing. In the case of Holland v. Crow, 34 N. C., 280, Chief Justice Ruffin, for the Court, says: 'The variance between the relators in the petition and the scire facias is cured by the order for amendment. It is true, the amendment was not actually made. But the scire facias was issued upon the assumption of the amendment, and all the subsequent proceedings were based upon the supposition that one was as properly a relator as the other, and in such cases the course is to consider the order as standing for the amendment itself.’ He cited the case of Ufford v. Lucas, 9 N. C., 214, in which it is held, as it was in the case just cited, that where, during the pendency of the suit, leave is obtained to amend the writ and change the form of action, if such amendment be not made on the record, and the suit be tried in its amended form or as if the amendment had been actually made, this Court will consider the case as if the amendment had been properly inserted in the writ, warrant, or complaint at the time the order was made by the court. This is a most just and reasonable rule, and is essential to the due administration of the law.”
In this case no objection was made at the time to proceeding as if the amendment had been drawn out, nor is there any claim that the *733amendment appearing in tbe record is not tbe one ordered by tbe court.
We are therefore of opinion tbat judgment may be pronounced on tbe warrant as amended, and following tbe precedent in S. v. Taylor, 124 N. C., 803, and in other cases tbe cause is remanded in order tbat judgment may be entered upon tbe verdict under tbe Yagrancy Act.
Remanded.