WALKER and ALLEN, JJ., dissent as to the jurisdiction of the recorder's court, and concur as to second proposition. Criminal proceeding. The defendant was convicted and sentenced to twelve months on the roads, and appeals. Under the Search and Seizure Act of 1913, a warrant was sworn out against the defendant, charging him with having in his possession, for the purpose of sale, 29 barrels of whiskey, 71 half-pints, and 38 quarts of corn whiskey. The action was originally tried in the recorder's court of Edgecombe County, and, upon conviction, the defendant appealed to the Superior Court.
In the Superior Court the evidence disclosed that under a proper search warrant a lawful officer found concealed in different parts of the livery and feed stables of the defendant a large quantity of whiskey in quart, pint, and half-pint bottles, all of which was claimed by the defendant as his own. *Page 426
There was no evidence of any sale by the defendant, nor by any one in his presence, nor by any one to his knowledge; but there was evidence of sale by another upon the premises of the defendant.
It further appeared that all of this whiskey was shipped into the State of North Carolina and delivered to the defendant prior to 1 April, 1913.
The whiskey was found in defendant's possession 17 April, 1913. The Search and Seizure Act of 1913, ch. 44, contains these provisions:
"SEC. 9. That this act shall not apply to any act committed prior to its ratification.
(532) "SEC. 10. That this act shall be in force from and after the first day of April, 1913.
"Ratified 3 March, 1913."
1. The first point pressed by the learned counsel for the defendant is that the recorder's court had no jurisdiction, and that the defendant should have been indicated in the Superior Court and tried upon such bill.
We are of opinion that this question has been settled at least by a majority of this Court by repeated decisions adverse to such contention. S.v. Lytle, 138 N.C. 738; S. v. Dunlap, 159 N.C. 491.
2. It is assigned as error that the court instructed the jury: "Upon the foregoing facts the court stated that he would hold that the Search and Seizure Law of 1913 applied to this case, and instructed the jury that the possession of liquor in the quantity as testified to constituted a primafacie case, and that if they should find beyond a reasonable doubt the facts to be true, and should further find purpose of sale, then they should return a verdict of guilty, but otherwise they should return a verdict of not guilty."
The form and phraseology of this charge is in complete conformity to what is said in S. v. Wilkerson, ante, 431, and S. v. Russell, ante, 482. But the learned counsel contends that the court erred in applying the rule of evidence prescribed in the statute to this case, and that under the facts the law as to this defendant is ex post facto.
We do not think this position is tenable. A statute is ex post facto which by its necessary operation and in its relation to the offense or its consequences alters the situation of the accused to his disadvantage.Thompson v. Missouri, 171 U.S. 386; Thompson v. Utah, 170 U.S. 343.
At the time this offense occurred, that is, when the liquor was found in defendant's possession, the law had been in force seventeen days. The statute by express language does not apply to acts committed prior (533) to its ratification, which was on 3 March, 1913. The record does not show that this liquor was acquired prior to that date.
In any event the defendant had full opportunity to get rid of his *Page 427 liquor, which he could have done by shipping it out of the State between the ratification of the act and the date it was found in his possession.
It was his own folly that he continued to retain it in violation of the statute.
No error.