#### STATE v. ZIP WILKERSON.

(Filed 5 November, 1913.)

1. Spirituous Liquor — Unlawful Sale — 'Possession — Prima Facie Case — Burden of Proof — Interpretation of Statutes.

Chapter 44, Laws 1913, making it unlawful, with certain exceptions, for any person, etc., to keep in his possession for the purpose of sale, spirituous liquors, etc., enacting that the possession of more than one gallon thereof shall constitute pr/imia, faoie evidence of t.he violation of the statute, does not relieve the State from the burden of the issue and of proving that the one *432in whose possession more than one gallon of whiskey was found, under its “search and seizure” provision, and who was indicted and tried under this statute, was guilty of the violation of the law, beyond a reasonable doubt, and while the prima facie case, unexplained, is sufficient to sustain a verdict of guilty, yet the defendant is not required to show, by the greater weight of the evidence, that the whiskey was in his possession for lawful purposes, for such, in effect, would require him to establish his own innocence, and relieve the State of the burden' of the issue, which - is placed upon it.

2. Spirituous Liquor — Burden of Proof — Prima Facie Case — Instructions, Conflicting — Trials.

Where a defendant is tried for the violation of the prohibition laws of this State, under chapter 44, Laws 1913, making the possession of more than one gallon of spirituous liquor prima facie evidence of its violation, an erroneous instruction which placed upon him the burden of showing that he did not have the spirituous liquor for an unlawful purpose, is not cured by also placing the burden upon the State to show that he. was guilty of the offense charged beyond a reasonable doubt.

3. Spirituous Liquor — Unlawful Sale — Principal and Agent — Trials —Questions for Jury — Interpretation of Statutes.

It is- not in violation of our prohibition law for' one to receive here money from another as his agent and go to another State by private conveyance or otherwise, and purchase spirituous liquor there, and deliver it here, when his act as agent is 'bona fide (Revisal, sec. 3634) ; and he is entitled to receive a reasonable compensation, at least, for the services thus rendered, but not as any part of the purchase price, the intent and the true • nature of the transaction, in proper instances, being questions for the jury under instructions from the court on the law applicable. . . .

4. Same — Instructions.

Upon a trial for a violation of our prohibition law, there was evidence tending to show that the defendant was found in possession of eleven gallons of whiskey, which possession, under chapter '44, Laws 1913, was made prima facie evidence of an intent to unlawfully sell the same or of keeping it for sale, contrary to the statute. There was evidence in behalf of the defendant that he had received from each of ten customers at his store the price for one gallon of whiskey, for which he agreed to go to Virginia and make the purchase as their agent, charg*433ing 25 cents a gallon for his services as such. He was returning from his trip with eleven gallons of whiskey, having purchased One gallon for his own use, when he was seized and searched and the whiskey was found- in his possession: Reid, it was reversible error for the court to instruct the jury that the defendant must show by the preponderance of the evidence that he was acting tona fide as the agent for others, as testified, in order to acquit him.

5. Spirituous Liquor — Offense Charged — Conviction—Constitutional Law.

Where one is indicted for the sale of spirituous liquor, and tried under chapter 44, Laws 1913, making possession of a certain quantity prima fade evidence of a guilty purpose in having it, he may not be convicted under the provisions of chapter 133, Laws 1911, known as the “Club Act,” for it would be a violation of his constitutional rights to charge him with thé commission of one crime and convict him of a different one.

6. Criminal Law — Burden of Proof — Directing Verdict.

The burden of proof being on the State to show that a defendant committed the criminal offense with which he stands charged, it is error for the court, under any circumstances, to direct a verdict of guilty.

Allen, J., concurring;’Clark, C. X, dissenting.

Appeal by defendant from Cline, J., at October Term, 1913, of YaNCE.

Tbe defendant was arrested upon a warrant issued by tbe recorder of Yanee County, and based upon tbe following affidavit of M. N. Parrisb:

'M. N. Parrisb, being duly sworn, complains and says tbat at and in said county on or about 28 April, 1913, Zip Wilkerson did unlawfully and willfully bave in bis possession 11% gallons of whiskey for sale, contrary to tbe statute in sucb case made and provided, and against tbe peace and dignity of tbe State.

(Signed) M. N. Pareish.

He was tried before tbe recorder, convicted, and appealed to tbe Superior Court. Tbe evidence at bis trial in tbe latter court tended to sbow tbat defendant bad been employed by. ten men near Henderson in Yanee County, wbo were customers at bis *434store, to gO' to Virginia and buy for them 10 gallons of whiskey, 1 gallon for each man. He agreed to do so if they would pay Mm $2.SO for the service. Each of them gave him $2 to pay for tbe wMskey, and 25 cents for buying and hauling it. He hauled for the public, and kept a horse and buggy and also a wagon for the purpose. He went to Virginia in his buggy, bought the liquor there with the money, and was hauling it back for delivery to them, when, on the way to his home, he was arrested by the officer, with the whiskey in Ms possession. He bought a gallon for Mmself, and had in his wagon, at the time of the arrest, 11 gallons of corn liquor in three kegs and two bottles. The gallon which he bought for. himself was for his personal use and not for sale, nor did he know that any of the other persons for whom he bought the liquor intended to sell it or any of it. He received only 25 cents from each man for buying and hauling it.

Upon this evidence, which in the main was the testimony of the defendant Mmself, at least the material parts of it, the court charged the jury that if they found, beyond a reasonable doubt, the defendant had in his possession more than one gallon of spirituous liquor at the time of his arrest, and he was not a druggist and had no medical depository, the law made it prima facie evidence of the violation of the act passed by the General •Assembly in 1913, known as'the “Search and Seizure Law”; that is to say, if those facts had been proven to them beyond a reasonable doubt, that statute puts upon the defendant the duty of going forward and satisfying the jury by the greater weight of the evidence that, in fact, he did not have the liquor in Ms possession for the purpose of sale, and, further, that if he bought the liquor as above set forth, and it was taken while in his possession before the bulk was broken or there had been any distribution among the men for whom he bought it, then, as matter of law, he was guilty of violating the act of 3 March, 1913, known as the “Search and Seizure Law,” and they should convict; but if they had a reasonable doubt about it, they should acquit. The jury returned a verdict of guilty. Judgment was entered thereon, and defendant appealed.

*435 Attorney-General Bichett and Assistant Attorney-General Gal-vert for the State.

Hewy T. Powell and T. M. Pittman for defendant.

Walker, J.,

after stating tbe case: Tbe defendant was charged with a violation of tbe act of 1913, it being chapter 44, entitled “An act to secure tbe enforcement of tbe laws against tbe sale and manufacture of intoxicating liquors,” ratified 3 March, 1913. Tbe act makes it unlawful for any person, firm, association, or corporation, other than druggists or medical depositories, duly licensed, “to have or keep in bis, their, or its possession, for tbe purpose of sale, any spirituous, vinous, or malt liquors,” and makes proof of any one of certain facts prima facie evidence of tbe violation of the act; and, among others, it is provided that “tbe possession of more than one gallon of spirituous liquors at any one time, whether in one or more places,” shall constitute such prima facie evidence of tbe fact that it is kept for sale in violation of tbe act.

Having clearly before us tbe nature of tbe particular charge against tbe defendant, tbe law alleged to have been violated and tbe proof offered in support of tbe charge, we are prepared now to consider tbe objection urged by tbe defendant’s counsel to tbe charge of tbe court.

Tbe jury were instructed that tbe fact of bis having in bis possession more than one gallon of tbe liquor made out a prima facie case against tbe defendant. If tbe court bad stopped here, and not qualified this instruction, it would have been correct; but it did not do so, but went beyond tbe terms of tbe statute and the law when it further charged that it then was tbe duty of tbe defendant “to go forward and satisfy tbe jury, by tbe greater weight of tbe evidence, that be did not have the liquor in bis possession for tbe purpose of sale.” In this further instruction we think there was error. Tbe defendant, as we have shown, is charged, under tbe act of 1913, with unlawfully having spirituous liquor in bis possession for tbe purpose of selling it, and nothing else, and proof of the possession of more than one gallon of such liquor is made prima facie evidence of *436the unlawful act, wbicb is, that it is held by him for the purpose of sale, an act forbidden by the general law. It is not made unlawful for a person to have more than one gallon of spirituous liquor in his' possession, but it is criminal to have possession of that quantity for the purpose of sale, and while the bare possession of so much may, in itself and as a fact, be innocent, it is yet made primen facie evidence of guilt under the statute, as in S. v. Barrett, 138 N. C., 630. But-it is only evidence, and while it has the added force or weight of being prima facie, the latter means no more than that it is sufficient for the jury to convict upon it, alone and unsupported, if no other proof is offered; but upon the whole evidence, whether consisting of the mere fact of possession or of additional facts, the jury -are not bouncl to convict, but simply may do so if they find, beyond a reasonable doubt, or are fully satisfied that the defendant is guilty. -Prima facie means at first; on the first. appearance; on the face of it; so far as can be judged by the first disclosure; presumably. These are the definitions of the law, as we learn from- the books. Black’s Dict. (1 Ed.), 539.

The jury are no more required to convict upon a prima facie case than they are to acquit because of the presumption of innocence. They must judge themselves as to the force of the testimony and its sufficiency to produce in their minds a conviction of guilt. In civil cases the rule is the same (with a difference in the quantum), 'as prima facie evidence only carries the case to the jury, and does not entitle the party in whose favor it has been offered to a verdict as matter of right.

Referring to this rulé, as applied to civil cases, and the presumption, or prima facie case, arising under the maxim, res ipsa loquitur, which presents one of the strongest of such cas.es, the Supreme Court of the United States has recently said: “In our -opinion, res ipsa loqmtwr means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking; but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily *437tbat tbey require it; tbat tbey make a ease to be decided by tbe jury, not tbat tbey forestall tbe verdict. Res ipsa loquitur, where it applies, does not convert tbe defendant’s general issue into an affirmative defense. When all tbe evidence is in, tbe question for tbe jury is, wbetber tbe preponderance is witb tbe plaintiff. Sueb, we tbink, is tbe view generally taken of tbe. matter in well considered judicial opinions.” Sweeney v. Erving, 228 U. S., 233. Tbe Court cites witb approval tbe numerous cases decided by tbis Court on tbe same subject. Womble v. Grocery Co., 135 N. C., 474; Stewart v. Carpet Co., 138 N. C., 60; Lyles v. Carbonating Co., 140 N. C., 25; Ross v. Cotton Mills, ibid., 115; Board of Education v. Makely, 139 N. C., 31; Overcash v. Electric Co., 144 N. C., 572; Winslow v. Hardwood Co., 147 N. C., 275.

Justice Hoke says, for tbe Court, in Furniture Co. v. Express Co., 144 N. C., at p. 644: “It may be well to note bere tbat, in using tbe terms prima facie and presumptive, tbe terms do not import tbat tbe burden of tbe issue is changed, but tbat on tbe facts indicated tbe plaintiff is entitled to have bis cause submitted to tbe jury under a proper charge as to its existence or nonexistence and tbe effect of any presumption which may attach, as indicated in tbe eases,” citing several of tbe cases to which we have already referred.

It may, therefore, be taken as settled in tbis Court, at least, and we believe tbe same may be said of most, if not all, of tbe courts, tbat prima facie or presumptive evidence does not, of itself, establish tbe fact or facts upon which tbe verdict or judgment must rest, nor does it shift tbe burden of tbe issue, which always remains witb him who bolds, tbe affirmative. It is no more than sufficient evidence to establish tbe vital facts without other proof, if it satisfies tbe jury. Tbe other party may'be required to offer some evidence in order to prevent an adverse verdict, or to take tbe chances of -losing tbe issue if be does not, but it does not conclude him or forestall tbe verdict. He may offer evidence, if be chooses, or be may rely alone upon tbe facts raising tbe prima facie case against him, and be has tbe

*438right to have it all considered by the jury, they giving such weight to the presumptive evidence as they may think it should have under the circumstances.

The defendant is not required to take the laboring oar and to overcome the case of the plaintiff by a preponderance of evidence, is what we said in Winslow v. Hardwood Co., supra, and substantially the same thing was said in the other cases we have cited. This is undoubtedly the rule in civil cases, and it applies with greater force to criminal cases, where the defendant has the benefit of the doctrines of reasonable doubt and the pre-nsumption of innocence. How can we say that prima facie evi-1/denee, or that which is apparently sufficient, excludes all reason-11 able doubt of guilt, and by its own force overcomes the pre-I sumption of innocence? The bare statement of the proposition is sufficient to show its fallacy. It would destroy the presumption of innocence and take away the protection of the other rule as to reasonable doubt. The presumption of innocence attends the accused throughout the trial and has relation to every essential fact that must be established in order to prove his guilt beyond a reasonable doubt. Kirby v. U. S., 174 U. S., 47. He is not required to show his innocence; the State must prove his guilt. No valid conviction can be had in law which is based solely upon prima facie evidence as conclusive and foreclosing the verdict, or which even casts upon the defendant the burden of showing his innocence by the greater weight of the evidence. We know of no such rule, and it finds no warrant in the language of the statute. The decisions are all the other way, when rightly interpreted. In a case very similar to this one, the Court held that the jury must consider all the circumstances, whether introduced by the State or the accused, in connection with the evidence proving the possession of the liquor, taking into account as well the presumption of the defendant’s innocence. S. v. Cunningham, 25 Conn., 195.

But directly to the point, and one which exactly fits this case, is the case of People v. Cannon, 139 N. Y., 32, where the Court thus sets forth with great force and clearness the limitations upon the power of the Legislature to create such presumptions, *439tbeir extent and scope, and tbe rights of the defendant, notwithstanding them: “It cannot be disputed that the courts of this and other States are committed to the general principle that even in criminal prosecutions the Legislature may with some limitations enact that when certain facts have been proved, they shall be prima, facie evidence of the existence of the main fact in question. (See cases cited in 103 N. Y., 143, supra.) The limitations are that the fact upon which the- presumption is to rest must have*some fair relation to, or natural connection with, the main fact. The inference of the existence of the main fact because of the existence of the fact actually proved must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary, and the accused must have in each case a fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence and given such weight to the presumption as to it shall seem proper. A provision of this kind does not take away or impair the right of trial by jury. It does not in reality and finally change the burden of proof. The people must at all times sustain the burden of proving the guilt of the accused beyond a reasonable doubt. It, in substance, enacts that, certain facts being proved, the jury may regard them, if believed, as sufficient to convict, in the absence of explanation or contradiction. Even in that case the court could not legally direct a conviction. It cannot do so in any criminal case. That is solely for the jury, and it could have the right, after a survey of the whole case, to refuse to convict unless satisfied beyond a reasonable doubt of the guilt of the accused, even though the statutory prima facie evidence were uncontradicted. The case of Commonwealth v. Williams (6 Gray, 1) supports this view.”

In Board of Excise v. Merchant, 103 N. Y., 143, the Court in dealing with this very question says that by the presumption or pririia facie case arising by statute from possession of the liquor, “the burden of proof is not even really changed,” and then adds that the case must'be submitted to the jury, notwithstanding the presumption, upon the evidence, whatever it is, *440“with the burden still resting upon the prosecution to establish the guilt,” the offense in that case being an unlawful sale of liquor.

It is also stated as law in Black on Intoxicating Liquors that “the Legislature has undoubtedly a very extensive power in respect to fixing or modifying the rules of evidence to be applied by the courts. The exercise of this power, however, in relation to criminal proceedings, is subject to certain important limitations, among which are the following: (1) The Legislature, in enacting rules of evidence, must not usurp judicial functions; (2) such rules must not be of the nature of ex post facto laws, or illegally retroactive in their operation; (3) they must not deprive the accused of his constitutional right to be confronted with the witnesses against him; (4) the Legislature cannot compel a defendant to furnish evidence against himself; (5) nor deprive him of his right to a trial by jury; (6) it would be unlawful to make any given fact or state of facts conclusive evidence of guilt, in negation of the common-law presumption of innocence. The rules of evidence in prosecutions under the liquor laws have frequently been the subject of legislative attention, and the changes made have sometimes shown a wide departure from common-law principles. All such statutes — which for the most part are designed to facilitate convictions by admitting presumptive or indirect proof of certain facts — must be brought to the test of constitutional principles such as those above enumerated. If found to be in violation thereof, they are not defensible on any ground of public policy or the welfare of the community. As a rule, however, these acts have been so framed as to escape constitutional objection. Thus, a provision that, in prosecutions for the common selling of intoxicating liquors, delivery in or from any building or place other than a dwelling-house shall be deemed prima facie evidence of a sale, is constitutional and valid. This neither conclusively determines the guilt or innocence of the party who is accused nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried. And the same is true of a statute providing that, whenever an unlawful sale of liquor is alleged, and *441a delivery proved, it shall not be necessary to prove a payment, but such delivery shall be sufficient evidence of sale. So if a law -enacts that where a person is seen to drink intoxicating liquor on the premises' of one who has simply a license to sell liquor for consumption off the premises, it shall be prima facie evidence that the liquor was sold by the occupant of the premises with the intent that it should be drunk thereon.”

This Court has fully sustained this principle and approved these authorities by citing and relying upon them in S. v. Barrett, 138 N. C., 630. It was held in Barrett’s case that notwithstanding the statute expressly, declares that the possession of more than a -gallon of spirituous liquor shall be prima facie evidence of the purpose to sell it, it is, at last and in its essence, but evidence of guilt, and not conclusive or determinative of defendant’s guilt even by itself and unexplained. It further holds that there is no shifting of the burden to the defendant,'but it rests upon the State to establish the accusation of the bill of indictment beyond a reasonable doubt.

It will be observed that, in our case, the court placed the entire burden upon the defendant to show his innocence, for the instruction to which exception was taken is that the statute requires him to satisfy the jury by the greater weight of the evidence that in fact he did not have the liquor in his possession for the purpose of sale, whereas, according to all the authorities, and especially in Barrett’s case, the burden is on 'the State throughout the trial. The defendant profited little or nothing by the subsequent charge that, .if the jury had a- reasonable doubt about the facts recited by the court, being those which the defendant must prove by the greater weight of the evidence, they should acquit. This, to say the least of it, was very confusing, if not contradictory. "What advantage did he gain by the charge as to reasonable doubt, after the jury had been told that there was a presumption against him and he must “satisfy them by the greater weight of evidence” of his innocence? It deprived him of the presumption of innocence, and practically eliminated the benefit of the doctrine as to reasonable doubt by so weakening it that it amounted to nothing; and all of this *442was done under a statute (act o£ 1913) wbicb merely establishes a prima facie case for the State, sufficient,' it is true, to carry the case to tbe jury, with tbe right to convict, but. leaving in full force the doctrine of reasonable doubt and also the presumption.of innocence; for a man, even under our present laws, may have more than a gallon of liquor in his possession for a perfectly lawful and innocent purpose. It is not the possession that is unlawful, but the forbidden purpose for which it is held.

The Attorney-General admitted that there was error in the charge, under.the decisions in S. v. Barrett, 138 N. C., 645; S. v. McIntyre, 139 N. C., 600; S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654, and S. v. Mostella, 159 N. C., 461; but he argued that what defendant did and proposed to do with the liquor, in law, constituted a sale, by his own admission on the stand. "We do not assent to this position. It was lawful to buy the liquor in Virginia, and if he made the purchase there, acting solely and in good faith as agent for the other persons, who sent him there for the purpose of buying it for them, he would not be guilty of selling liquor if he had delivered it. It was so decided in S. v. Whisenant, 149 N. C., 515, as we think, where it appeared that the defendant, as agent, had ordered some whiskey for the prosecuting -witness, which was to be shipped from another State, where our laws did not operate, and when it arrived, he delivered it to the witness. It was held, if defendant acted bona fide, that he was not guilty, although he ordered the whiskey as agent and received the money for it; and it was further said to be a transaction of interstate commerce. - Under either view, defendant could buy liquor for another, as his agent, if he acted in good faith and was not concealing, under the guise of an agency, a transaction which was in fact a sale. If liquor can thus be ordered through an agent from another State, without violating the law, if done bona fide, why cannot the agent go into that State in person and buy it, where it can be lawfully sold, and then transport and deliver it himself? An agent may also receive at least a fair compensation for his services, provided the money is paid to him strictly as such, and not as any part of the price for the liquor. His *443intent and tbe true nature of tbe transaction were questions for tbe jury, under a proper charge from tbe court. S. v. Allen, 161 N. C., 226, supports tbis view directly, and tbe facts were mucb libe those in tbis case. S. v. Johnson, 139 N. C., 641, is not in point, for there tbe jury found that tbe prosecuting witness, Brown, bad paid tbe price of tbe liquor, which was fixed by tbe defendant beforehand. There was no agency. He was not buying for another, but selling to him.

Nor is tbe defendant indictable under Revisal, sec. 3534, as be procured tbe liquor in Virginia, where it was lawful to sell it. S. v. Smith, 117 N. C., 809; S. v. Burchfield, 149 N. C., 537. Tbe case of S. v. Smith, just cited, seems to be decisive of tbe point here raised, and, we think, is fatal to tbe judge’s charge. It is there held that it is no more unlawful to buy through one’s agent than to buy- directly himself, and tbe agent, when be buys lawfully, is just as innocent as bis principal would be if be bad bought himself, tbe real question being whether there was a bona fide agency or a sale in disguise. It is a question of intent, without regard to tbe fair appearance of tbe transaction. What is it, in fact or in substance and legal effect, is tbe question; and in tbis view, which is tbe true one, we are forcibly reminded of what Justice Ruffin observed in S. v. Gilbert, 87 N. C., 527, with'regard to an indictment for carrying a concealed weapon. He said tbe offense of which tbe defendant is charged forms no exception to tbe general rule, that to constitute a crime there must be a criminal intent, and tbe Court perceived no good reason why it should be. “Tbe law is a wholesome one, and its constant enforcement according to its true spirit and intention meets tbe desires and expectations of every well disposed and peaceable citizen; but some care should be used, lest by pushing its requirements too far it may result in a reaction of sentiment against it.”

If it be said that defendant is guilty under Laws -1911, cb. 133, known as tbe “Club Act,” it is quite enough to say that be was not indicted, nor was be convicted, under that law, and be has not bad any opportunity to defend himself against any such charge. Tbe Attorney-General concedes that be is charged only *444with violating tbe act of 1913, and tbe judge below so expressly charged tbe jury. Besides, if tbe indictment bad been framed upon tbe act of 1911, cb. 133, there is no fact made presumptive or prima facie evidence by it, and tbe charge would, if possible, be more erroneous than if confined to tbe act of 1913, as it should be. It may be, as argued by .counsel, that upon tbe evidence in this case tbe jury would be warranted, under proper instructions, in convicting tbe defendant of tbe offense created by tbe act of 1911, cb. 133, if be bad been charged with a violation of that act. We need not give any opinion on that question, it not being raised on this record, as there is no allegation upon which such a conviction could be based, and no reference whatever to tbe act. Tbe allegations and proof must correspond. It would be contrary to all rules of procedure and violative of bis constitutional right to charge him with tbe commission of one crime and convict him of another and very different one. He is entitled to be informed of tbe accusation against him and to be tried accordingly. S. v. Ray, 92 N. C., 810; S. v. Sloan, 67 N. C., 357; S. v. Lewis, 93 N. C., 581; Clark’s Cr. Proc., 150.

We think that there is evidence sufficient to sustain a conviction upon tbe present indictment, but tbe jury must be so guided by tbe court as to find tbe facts essential to establish bis guilt.

Tbe question here is as to tbe bonw fides of tbe defendant. Was be really acting solely in tbe capacity of agent when be purchased tbe liquor, or was that a mere pretense, under cover of which be was violating tbe law by selling liquor, or having it for sale ? Tbe case should have been submitted to tbe jury in this aspect, with tbe burden on tbe State to make out its case to their full satisfaction. If defendant was acting honestly and not deceptively,' be bad tbe right to buy liquor in Virginia, where it was lawful to sell to him, and to return to this State' with it for tbe purpose of making delivery to tbe parties for whom be .bought it, and if this was all, it would not constitute a sale of tbe liquor or tbe possession of it with tbe unlawful purpose to sell, within tbe meaning of tbe act of 1913. S. v. Allen, 161 N. C., 226. Tbe possession of tbe liquor, though, would carry tbe case to tbe jury.

*445Tbe rule as to tbe legal effect or significance o£ prima facie evidence bas long prevailed in tbis and other courts, and we are not aware of any decision of tbis Court wbicb bas stated it or bas applied it otherwise than is done in tbis case.

There was error in tbe charge of tbe court in tbe respect pointed out, for wbicb another trial is ordered.

New trial.

AlleN, J.,

concurring: I believe in the enforcement of tbe prohibition law, as I do in the• enforcement of all law; but I cannot agree to convict of one offense when tbe defendant is charged with another, because intoxicating liquors are tbe subject of investigation.

Tbe Search and Seizure Law (cb. 44, Laws 1913, sec. 2) says: “It shall be unlawful for any person to have or keep in bis possession, for tbe purpose of sale, any spirituous, vinous, or malt liquors.”

Tbe charge in tbe warrant is that tbe defendant “did unlawfully and willfully have in bis possession 11% gallons of whiskey for sale.”

Tbe warrant follows tbe language of tbe statute, and there can be no doubt that tbe defendant was charged with a violation of tbe act of 1913. But if there is any doubt about tbe charge against tbe defendant, there is none as to bow be was tried, because tbe presiding judge, in bis charge to tbe jury, said: “Gentlemen of tbe jury: Tbe defendant, Zip "Wilkerson, is indicted here, charged with tbe violation of a'n act passed by tbe General Assembly in 1913, known as tbe Search and Seizure Law. He 'is charged in tbe bill as having in bis possession for tbe 'purpose of sale more than one gallon of liquor.”

He then charged tbe jury as to tbe effect under tbe act of 1913 of .the prima facie case made by tbe possession of more than one gallon of intoxicating liquors; and of tbis charge tbe Attorney-General, who prosecutes in behalf of tbe State, says in bis brief: “Under tbe decisions of this' Court, there was error in tbis instruction. S. v. Barrett, 138 N. C., 645; S. v. McIntyre, 139 N. C., 600; S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654; S. v. Mostella, 159 N. C., 461.”

*446All of these cases, cited by the Attorney-General to show that tbe charge of his Honor was erroneous, were concurred in by the Chief Justice.

It is certain, therefore, if the rule upon which the opinion of the Court rests was adopted in an' ill-advised moment to accord with a highly technical conception of the doctrine laid down by a text-writer, and is a mere metaphysical proposition, it has been reiterated time and again, with the consent of all the members of the Court; and as it has been used at least twice (S. v. Barrett, S. v. Dowdy) for the conviction of those charged with violating the prohibition law, it is hardly fair or legal*to change it now to enable the State to convict under one statute, when the defendant is charged under another.

The defendant has not been charged with an offense under the Club Act of 1911, nor has he been tried under that act, and there is no contention that he was tried according to 'law, as heretofore declared by this Court, under the Search and Seizure Law of 1913.

It should be kept in mind that neither life, nor limb, nor liberty,- nor property, has any security or abiding place except by adhering to the Constitution, and that it provides that, “In all criminal proceedings every man has the right to be informed of the accusation against him”; that “No man shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment,” etc.; that “No man ought to be taken, imprisoned, or disseized of his’freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land”; and that if a citizen can be tried in the Superior Court before a jury, and when he has been tried illegally, can be convicted here, without a jury, of another and different charge, the safeguards of the Constitution amount to nothing.

Clark, C. J.,

dissenting: The warrant in this case charges that the defendant “did unlawfully and willfully have in his possession 11% gallons whiskey for sale.” There is no reference to any particular statute.

*447Upon tbe defendant’s own evidence, be bad in possession 11 gallons of whiskey, for wbicb be bad been paid in advance, and wbicb in return for tbe money be was to divide out among ten men. Upon tbis, tbe judge should have simply told tbe jury that if they believed tbe defendant’s testimony, be was guilty. Anything that tbe judge said other than tbis was simply sur-plusage, harmless and immaterial, for upon tbe defendant’s own testimony tbe verdict of guilty was correct, and should, be sustained.

We can pass by, for tbe present, tbe exception to tbe judge’s charge un tbe effect of a prima facie case. If tbe instruction was erroneous, it was harmless, for upon tbe defendant’s own showing tbe judge should have charged tbe jury to find him guilty. On tbe stand, tbe defendant testified that be bad in bis possession 11 gallons of whiskey in three kegs; that for a fee of $2.50 be went to Virginia and bought tbis whiskey in bulk; that be brought it back to North Carolina and was going to divide and deliver it to tbe ten men who bad “chipped in” $2.50 each to buy it with, when be was arrested. Tbe possession of tbe whiskey and bis purpose in having it are thus admitted.

S. v. Johnson, 139 N. C., 641, is exactly in point. There Johnson agreed to go from Charlotte to Salisbury and get half a gallon of whiskey, bring it back to Charlotte and deliver it to Brown, who before be left Charlotte paid him $1, tbe purchase price of whiskey. Brown, J., said:1 “We think tbe facts set out in tbe special verdict disclose an agreement or contract to deliver to Tom Brown half a gallon of whiskey, entered into in tbe city of Charlotte on 15 July by tbe defendant, and a receipt of tbe agreed price; also a delivery of tbe whiskey next morning, in pursuance of tbe agreement. These facts constitute a sale of liquor upon tbe part of tbe defendant within tbe prohibition territory.”

This is exactly the case here. Tbe defendant received tbe money from tbe other parties, to go to Virginia, where be got tbe whiskey in bulk and brought it back for tbe purpose of dividing it and delivering it to tbe several purchasers, according to contract. If, as tbe Court said in S. v. Johnson, supra, *448“These facts constitute the sale of liquor” after the delivery, then unquestionably, having it in possession for such purpose is having it “in possession for sale.”

The question, therefore, taking defendant’s testimony as true, is, when a number of persons have raised a fund and put it in the hands of an agent to buy whiskey, and he has such whiskey in his possession, to be afterwards divided out by him to them in proportion to the money that each had paid in, whether this is having it in possession for an illegal purpose.

The identical question was raised in S. v. Colonial Club, 154 N. C., 177, and the Court there held by a vote of three to two that this did not constitute “having liquor in possession for the purpose of sale.” The Legislature at the first ensuing session enacted (Laws 1911, ch. 133) that such a condition should constitute having liquor in possession for an illegal purpose, and a misdemeanor. That is conclusive of this case.

Chapter 133, Laws 1911, provides as follows (leaving out the verbiage which is not pertinent to this defendant) : “Any corporation, club, association, person or persons that shall directly or indirectly . . . in any manner aid in keeping ... a elubroom or other place [here a buggy] where intoxicating liquors are received, Teept, or stored, for barter, sale, exchange, distribution or division, among the members of -any such club or association or aggregation of persons by any means whatever, or that shall act as agents in ordering, procuring, buying, storing, or keeping intoxicating liquors for any such purpose, shall be guilty of a misdemeanor.” Upon the defendant’s evidence, he was an agent in procuring intoxicating liquor for sale or division among the aggregation of persons who furnished him the money for that purpose. He was therefore guilty of a misdemeanor under said chapter. He had, in the language of the warrant, “unlawfully and willfully in his possession 11 gallons of whiskey,” and was guilty of a misdemeanor under that chapter.. It was mere surplusage to charge further that he had it for sale.

It is true that the title of the act is “To prohibit the sale or handling of intoxicating liquors by clubs or associationsBut *449the body of the aet, as above stated, is broader, and makes it a misdemeanor for any agent to procure intoxicating liquor for distribution or division among the members of any aggregation of persons.

There is no question of interstate commerce involved, as in S. v. Whisenant, 149 N. C., 515 (if indeed the latter case is law since the passage of the Webb-Kenyon Act). The whiskey was not ordered from a Yirginia house. When the whiskey was delivered to the defendant in Yirginia he received the full title to the property. Under his contract made in North Carolina and to be performed in North Carolina, he took the whiskey home with him, and it was found in his possession in this State, and he admitted that he had it for the purpose of division among the ten men who had paid him the money, which act was to be done here. It makes no difference that they paid him in advance. The sale was not completed until a division among the aggregation of persons for whom he had bought the whiskey. No one of them had any title or ownership in the whiskey till such partition should be made, and he had it in possession for the unlawful purpose of a sale by means of such division.

There could be but one inference from the evidence, and the judge might well have charged the' jury that if they believed the evidence to return a verdict of guilty. S. v. R. R., 149 N. C., 508.

In S. v. Herring, 145 N. C., 418, the Court held (Hoke, J.) that taking orders and procuring whiskey to be thereafter delivered to the parties who had furnished the agent with the money for such purchase made the defendant guilty of a sale if the whiskey was delivered. It follows that if the whiskey is intercepted before the division and delivery, such agent is guilty of ‘‘having it in possession for sale.”

In S. v. Burchfield, 149 N. C., the Court held (Walker, J.) that under Revisal, 3534, it was a-misdemeanor for any one “to procure. for or deliver spirituous liquors to another, and that such agent was punishable even though he had no interest in the sale other than as agent of the purchaser, and that his acting-solely as agent for the buyer was no defense.”

*450It follows that upon the defendant’s own testimony he was guilty of a misdemeanor, both under Revisal, 3534, and Laws 1911, ch. 133.

It is therefore unnecessary to review the charge of the court as to the effect of prima facie evidence. It is certain that the judge’s charge was correct under the uniform rulings of this Court until a very recent period, when the Court, in what may be well termed an ill-advised moment, changed its former clear ruling to accord with a highly technical conception of the doctrine laid down by a text-writer. It may well be doubted if any jury has ever been impaneled in North Carolina which would be affected by the difference in the formula, whether that formerly in use or that which is now considered more correct is used. In this day, when the American Bar Association and the demands of a practical age, and indeed the opinion of all the leading courts, are in favor of abolishing useless distinctions which can be of no use in the better administration of justice, it is unfortunate that stress should be laid upon this. It would be well to return to the older and more logical formula, or at least to hold that the variance is immaterial, for the difference can never be understood or appreciated by a jury, whose object should be simply to ascertain the real facts of the controversy submitted to them.

But whatever may be said in favor of the change which has been made, the failure to use it was absolutely immaterial in this case, for upon the defendant’s own testimony he is guilty of a misdemeanor embraced within the terms of the warrant, “the unlawful possession of the 11 gallons of whiskey.” The ■ defendant testified that he had it in possession, undivided, for the purpose of division and distribution. The judge charged the jury that they must find beyond a reasonable doubt the facts, which he recited and which under the statute would “constitute prima facie evidence,” and added that “if they found those facts beyond a reasonable doubt, then, the duty was on the defendant to go forward and satisfy the jury by the greater weight of the evidence that he did not have such liquor in his possession for the purpose of sale.” This was the long recognized and logical *451method of expressing to the jury the legislative meaning of a prima facie ease. There is no logical ground to contest its correctness. It can only be criticised on highly metaphysical grounds.

There is nothing in the Constitution which consecrates this or any other technicality or formula. The repetition of an error which has been found injurious or unnecessary does not make it any less harmful. Hoke v. Henderson, 15 N. C., 1, had been repeated countless times and endured for seventy years. But it was founded in error, and, like all other errors, was fated to pass away. Mial v. Ellington, 134 N. C., 131. The same is true of many other decisions which have been reversed. ' Most technicalities that prove harmful are abolished by legislation, because the courts are very slow in reforms of this kind. In the present case the formula- used by the judge below is in accordance with that which was recognized throughout this State till a very short time ago, and no harm, but great good, would follow a return to our former rulings on that subject. The public policy of a State is expressed by the lawmaking power, and the sole object of the courts should be to construe and execute the law in the spirit in which it was enacted. The only way to enforce the law is to enforce it, and in its integrity.

In this State the defendant made the contract to furnish ten men with whiskey; in this State they paid him the money for it; in this State he had the whiskey ready to divide and deliver to them. Is there no law yet that makes possession of whiskey under these circumstances “unlawful and willful,” as charged in this warrant?

To small avail is the act of the General Assembly of 1908 and its approval on a referendum, and to small avail are the acts of Congress and the subsequent acts, both State and Federal, curing all defects discovered by the courts, if this transaction can escape the condemnation of the law. There was one who said he could “drive a coach and six through any act of Parliament.” It seems that legislators and Congressmen are still unable to use language effectively to express their meaning when that language is subjected to the critical eyes of courts.