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.