concurring: When this cause was here on the appeal of Gordon, S. v. Gordon, 224 N. C., 304, we held that on .the record before us the petitioner was entitled to a hearing. We did not then attempt to limit or define the hearing to which it was entitled other than to call attention to the fact that this Court, at that time, had not decided whether the provision of G. S., 18-6, “the court, upon conviction of the person so arrested, shall order the liquor destroyed,” is in the nature of a forfeiture or a confiscation as contraband. The question has since been decided. S. v. Hall, 224 N. C., 314.
“Confiscate” is ordinarily used to mean a transfer of property from private to public use or a forfeiture of the property to the State as an act of penal justice for the punishment of crime. Skelley v. St. Louis & S. F. R. Co., 161 S. W., 877.
When the State acts against a rebellious citizen, who has violated the laws of the State, by confiscation of the property used in connection with or in furtherance of the crime committed, the chattel so confiscated is outlawed and becomes contraband in the nature of a public nuisance. It loses its quality as property subject to private ownership. To the extent the order is lawfully entered, it is good against the world and the right of ownership by private individuals ceases to exist.
Confiscation is invoked not only against liquor unlawfully possessed and transported, G. S., 18-6, 13, and 48, but also against gaming tables, punch boards and slot machines, G. S., 14-298, 299, property used in conducting bawdy houses, G. S., 19-1, and the like.
Why then is the petitioner entitled to be heard when Gordon has been duly convicted and the liquor found in his possession has been confiscated ?
The original record in some respects is ambiguous. In the language of the street, it leaves the questions of interstate shipment and of the quantity of liquor being unlawfully possessed and transported “up in the air.” These questions do not affect the guilt of Gordon, but they do, in a large measure, determine the extent to which the order of confiscation is legal and binding, and hence the extent of the rights of the petitioner.
*250Gordon was indicted, charged with tbe unlawful possession, transportation, etc., of “a quantity of intoxicating liquor.” Tbe evidence offered permits at least three inferences :
1. Tbe cargo of liquor in bis possession was not a bona fide interstate shipment. If not, tbe whole cargo was illegally possessed and transported. As to this, that tbe truck was not sealed and tbe packages were not labeled and tbe defendant spent much time around Raleigh and Apex constitute very suspicious, but not conclusive, circumstances.
2. Gordon, having tbe cargo in possession, while in Apex, agreed to sell Mills a part of tbe cargo and in furtherance of that agreement transported tbe whole cargo to a point on tbe Pittsboro road for tbe purpose of making delivery in accord with bis unlawful agreement. Upon such finding it would follow that tbe whole load was unlawfully possessed and transported.
Those who deal in liquor know that it is prone to drift into unlawful channels. When a transportation company delivers to an agent a cargo of unlabeled liquor in 'an unsealed truck in violation of tbe Federal law, it takes tbe risk, and when tbe employee prostitutes tbe shipment to unlawful purposes, it must suffer tbe consequences.
3. Tbe cargo was a bona fide shipment in interstate commerce and tbe employee in charge, while on bis way on a regular or permissible route to bis destination, came in contact with a bootlegger to whom be agreed to sell a part of tbe cargo, all without previous agreement. To accomplish bis purpose be purloined or was in tbe act of purloining a few eases, without any intent to divert any other part of tbe shipment. If so, tbe unlawfulness of bis act would relate only to tbe liquor be pilfered or intended to pilfer. Tbe shipment was being transported in good faith in interstate commerce. Tbe bailee transportation company was acting in good faith. Tbe employee intended, in good faith, to complete tbe shipment — less tbe few cases pilfered by him. Under these circumstances it would be unjust to conclude that tbe whole load bad been diverted into unlawful channels, justifying its condemnation or confiscation so as to deprive tbe petitioner of its property rights therein.
Tbe petitioner insists that tbe inference last stated represents tbe true facts and should be drawn from tbe evidence in tbe original' trial as supplemented by tbe allegations in tbe petition treated as an affidavit.
In tbe original trial, whether tbe liquor was in course of interstate shipment was not decided. Tbe court instructed tbe jury that this was immaterial on tbe question of Gordon’s guilt or innocence. On that record it is impossible to determine whether tbe jury convicted Gordon on tbe theory be bad diverted tbe whole cargo or only purloined and sold, or was about to sell, a small portion thereof while in good faith transporting tbe cargo, as a whole, to its destination in Georgia.
*251Tbe petitioner seeks to raise these questions which materially affect its rights. In the hearing below, the court disregarded the allegations in the petition and found the facts set out in its judgment “from the record in the criminal cause.” In so doing, it did not find the determinative facts. Herein lies the error.
The record in the criminal cause, if clear and unambiguous on the questions here raised, would be as binding upon petitioner as upon Gordon. S. v. Hall, supra. But such is not the case. Additional facts must be found.
Under some circumstances injunctive relief is permissible. McCormick v. Proctor, 217 N. C., 23, 6 S. E. (2d), 870. When, however, there is an action pending, as here, motion in the cause is the proper procedure. Humphrey v. Churchill, Sheriff, 217 N. C., 530, 8 S. E. (2d), 810.
I vote to remand for further hearing.