concurring: It seems to me that th.e distinction between the sale of liquor under a general prohibitory statute, of the character of that upon which this indictment was drawn, and the like offense when the act is prohibited— for instance, near a church or other place — is simply this: That in the former there may be repeated indictments for different offenses, while in the latter the crime consists in doing the proscribed act in or near a certain place, or within a given distance of a certain locality. Where there may be numerous indictments arising out of different offenses, as where a man sells liquor in violation of the general statute, the name of the person to whom the liquor is sold should be given, by every elementary rule of criminal pleading which has been adopted, to protect the defendant from double punishment .and to enable him to make his defense and to successfully plead his former conviction or acquittal, for there may be many offenses committed by the violation of the same law on different occasions. Not so, perhaps, where the offense consists in selling in a prohibited place. It makes no difference to whom the defendant sold, so that it appears that he had sold within the prohibited distance of the church or other place intended to be protected. Selling in the pro*426hibited place is the offense. Tbe writer of this opinion is not willing, at present and without further reflection, to assent to the doctrine that, even in the latter case, the name of the purchaser should not be given, if known, because we should always be careful to safeguard the defendant against a second prosecution for the same offense, as it is abhorrent to us, living as we do under a system of laws and a Oonstitution which forbids double punishment, to impose two penalties for the same crime. It is contrary to the fundamental principles of the common law, to Magna Carta and to the Bill of Rights. Const., Art. I; Com. v. Blood, 4 Gray (Mass.), 31; Capritz v. State, 1 Md., 569; Dorman v. State, 34 Ala., 216. We should be careful, therefore, to see that, in .administering the criminal law, whether in pleading, evidence or practice, we do not depart from this manifestly just and well-established principle. The people of this State, who are really and substantially the prosecutors in all criminal proceedings, do not ask that any man be punished, or even be exposed to punishment, twice for the same criminal act.
Justice Bynum, who always stated a principle of law with conciseness and vigor, in State v. Stamey, 71 N. C., 203, says: “The purpose of setting forth the name of the person on whom the offense has been committed -is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have notice of the specific charge and have the benefit of an acquittal or conviction if accused a second time.” See, also, State v. Blythe, 18 N. C.,, 199; State v. Ritchie, 19 N. C., 29; State v. Faucett, 20 N. C., 107, and, in the reports of other States, State v. Allen, 32 Iowa, 491; State v. Steedman, 8 Rich. (S. C.), 312; Dorman v. State, supra; Capritz v. State, supra; Com. v. Blood, supra. Mr. Bishop, in his work on Statutory Crimes (Ed. of 1813), sec. 1037, classifies the courts in respect to their-decisions upon this subject, and places this Court with those-who have held that it is essential to a valid indictment to *427state tbe name of tbe person to whom tbe liquor was sold. He also recognizes tbe distinction between tbe cases wbicb I have attempted to point out in this opinion. State v. Steedman, supra.
No one,- of course, in tbis particular prosecution, is seeking to punisb tbe defendant twice for tbe same offense. That is palpably not tbe question. It is tbe liability to be punished hereafter upon a second prosecution and for tbe same act, by reason of a material defect in tbe bill. Tbe distinction between tbe two cases is too plain for argument. And again, shall a citizen be tried hereafter by “indictment, presentment or impeachment,” as required by Article I, sections 12 and 17, of tbe Constitution, or merely by a bill of particulars ? Unhesitatingly I declare in favor of tbe former method, under-wbicb tbe freemen of England and tbis country have heretofore been safe against untrue and unjust accusation against them. We may soon imperil tbe liberty of the citizen by impairing and thereby gradually abolishing tbe .forms of law intended for bis protection. Trials are not conducted now as they were in tbe days of Sir Walter Raleigh. We live not under a king or a potentate, but in a democracy — tbe best form, we think, of all government, where every man has an equal chance, or should have, before tbe law, and tbe right, “in all criminal prosecutions, to be informed of the accusation against him, and to confront bis accuser and witnesses with other witnesses, and to have counsel for bis defense, and not be compelled to give evidence against himself, or to pay costs, jail fees or (even) necessary witness fees of tbe defense, unless found guilty.” Constitution of tbe State, Art. I, sec. 11. If tbis bad been tbe law of England, as it should have been, when Raleigh was called to tbe bar to answer tbe charge against him be would, perhaps, have escaped tbe ignominy of tbe block. Even tbe ancient forms and tbe old lore should not be neglected or disregarded, as we cannot well know what-tbe law is except by what it has been, and bow it has gradu*428ally developed by degrees into a perfect and more liberal system. But however, in our rapid progress towards a more sensible administration of justice, we may have regarded mere forms of procedure, we should not, by a too1 liberal construction, jeopardize the liberty of the citizen, and especially should we not deliberately violate his constitutional right and privilege.