majority"> Clark, J.

After stating the case, proceeded: The Code, § 908, provides that in any proceeding begun before a Justice of the Peace, whether in a civil or a criminal action, the Court in which such action shall be pending “ shall have power to amend any warrant, process, pleading or proceeding in such action, either in,form or substance,” and either before or after judgment. It is held that the section confers '‘unrestricted power of amendment” in such cases, provided the *487 amendment does not change the nature of the offence intended to be charged. State v. Vaughan, 91 N. C., 532. “Any amendment may be made that perfects the charge of the offence, whether such amendment affects the form or the substance,” provided it does not “charge an entirely different offence in substance from that at first intended.” State v. Crook, 91 N. C., 536; State v. Smith, 103 N. C , 410; State v. Baker, 106 N. C., 758. The warrant may refer to the affidavit, which thereby becomes a part of it, and the Court can amend either affidavit or warrant, or both. State v. Sykes, 104 N. C., 695; State v. Winslow, 95 N. C., 649. The charge in the present case, as set out in the affidavit and warrant before the 'Justice, was, of course, defective. Had it not been, there would have been no need of amendment. But the amendment did not change the offence intended to be charged. It merely perfected and made the charge more correctly and specifically, and was within the power of the Court. The defendant contends, however, that it was improvidently allowed in this case, because the Justice was not present, and the affidavit was not sworn to after the amendment. This is a misconception of the object of the act. The amendment is not for the purpose of perfecting the process to secure the arrest of the defendant. That has been already done. There is no need after amendment that the affidavit be re-sworn, or that the warrant be again served, nor can there be any necessity that the Justice be present. The amendment rests in the discretion of the Court, and does not require the concurrence or consent of the Justice. The amendment is to perfect and make more regular the same charge which had, therefore, been insufficiently or defectively made before the Justice of the Peace. Essential words, such as “ unlawfully,” “ wilfully,” and others, without which the warrant treated as^an indictment on the trial in the Superior Court would be fatally defective, can be supplied by amendment even after verdict. State v. Crook, and other cases cited above. This differs from an amend *488 ment of an affidavit in attachment, which should be again sworn to after amendment. Bank v. Frankford, 61 N. C., 199. Here the Court has jurisdiction by the arrest of the defendant who is before it, and the amendment of the affidavit is only because it is made a part of the warrant by being referred to therein, and the amendment is really of the warrant.

The defendant asked the Court to charge, “if the jury should believe, from the evidence, that the defendant agreed to begin work on the following Monday for Beasley, and to pay him for advances by picking cotton during the week, but was arrested by Beasley on Tuesday, then he was not guilty.” This was properly refused. Having failed to begin work according to contract, the defendant had necessarily failed “ to begin and complete the work ” as agreed. The criminal offence is not the promise to pay for the advances in work and the failure to do so. That would be a mere breach of contract, and could not subject the party to liability to imprisonment. The offence charged is, that the defendant with intent to cheat and defraud, “obtained the advances upon an agreement to begin work to pay for the same on Monday,” and “unlawfully and wilfully failed to commence and complete said wmrk according to contract, without a lawful excuse.” If the defendant, with such fraudulent intent, procured the advances on the promise to begin woik on Monday, and unlawfully and wilfully failed to begin on that day, without lawful excuse, the offence was complete. The charge of the Court, which was very clearly and correctly expressed, was as follows: “In order to convict, the State must show to the full satisfaction of the jury spmething more than obtaining the advances, a promise to work to pay for the same, and a breach of that promise. Nothing else being shown, these facts would constitute only a breach of contract, and for this the defendant could not be prosecuted criminally. The jury must be fully satisfied of an element of fraud in the trans. *489 action. If the jury believe, from’ the evidence, that the defendant obtained these advances, and promised to commence work on Monday morning to pay therefor, and at the time he obtained the advances and made the promise, intended to keep his word and commence work, and after-wards, being attracted by higher wages, or for other cause, failed to do so, he would not be guilty. But if the jury are fully satisfied that at the time he obtained the advances and made the promise (if he did make it), the defendant did not intend to commence work, but Used the promise as an artifice or fraud for the sole purpose of obtaining the advancements, then he would be guilty. The jury must be satisfied that the defendant’s object and purpose was to cheat and defraud.”

In view of this charge, and what we have already said, it is not necessary to discuss the motion made in arrest of judgment, on the ground that the act creating the offence was in violation of section 1G, article 1 of the Constitution of North Carolina. That section provides, “there shall be no imprisonment for debt in this State, except in cases of fraud.” The offence denounced by this statute is not the failure to comply with the contract, but the fraud in making it to obtain advances with intent to cheat and defraud. Ordinarily it might be somewhat difficult to show such intent, in the absence of admissions of the defendant. Certainly evidence merely of the agreement to work, the obtaining advances thereon and the failure to comply, would not warrant or support a verdict. But here there is no exception that the evidence was not sufficient to go to the jury, and, indeed, for that reason probably the entire evidence is not sent up.

Affirmed.

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