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.