graphers." While Mr. Justice Douglas wrote a dissenting opinion upon other phases of the case, in which the chief justice concurred, he concurs in the construction put upon the word "transport," in so far as it is involved in the present appeal, saying: "It is from the latin word 'transportare,' compounded from the words 'trans,' meaning over or beyond, and 'portare,' to carry. It does not mean simply to remove from one place, but includes also the idea of carrying to another place." For the purpose of disposing of this appeal, the adoption of either definition of the word "transport" leads us to the same conclusion. The Supreme Court of the United States in Gloucester Ferry Co. v. Penna., 114 U. S. 203, 5 Sup. Ct. 828 (29 L. Ed. 158), says: "Transportation implies the taking of persons or property at some point and putting them down at another." Webster defines the word "transport" thus: "To carry or bear from one place to another; to remove; to convey; as to transport goods; to transport troops." International Dict. 1530; Black's Law Dict. 1184. His honor was of the opinion that the word included delivery. Hence he submitted the second issue directed to the inquiry whether the defendant did, within a reasonable time, "transport and deliver" the goods, and, in accordance with that view, instructed the jury that it was the duty of the defendant, not only to transport the goods but to deliver them within a reasonable time. The exception to this ruling presents the question upon which the decision of this appeal depends. It is undoubtedly true that the common law imposes the duty upon every common carrier to receive, transport, and deliver all goods, merchandise, etc., offered for that purpose, and that for a failure to do either it is liable to an action for damages. For failing to receive goods, a penalty is imposed by section 2631, Revisal 1905.

We find, upon an examination of the authorities, that the word "deliver" is of entirely different origin and signification from the word "transport." To "transport" an article, it must be received and retained by the person charged with the duty; whereas, to "deliver," the person intrusted with the possession of it must part with it. Hence, the word is compounded of "de" and "liberare," "to set free; to set at liberty; to give over" -this of course importing that the duty of transporting has been discharged, completed, because the delivery can only be made after the transportation is complete. Webster, Inter. Dict. 386; Century Dict. vol. 2. "A delivery of an article consists in handing the article to the person to whom delivery is made." Bellows v. Folsom, 27 N. Y. Super. Ct. (4 Rob.) 43. "As between carrier and consignee, delivery implies the mutual acts of the two." United States v. McCready (C. C.) 11 Fed. 225.

Again, it is evident that the Legislature had in mind the distinction between the duty to "transport" and to "deliver," because the

*

former is the act of the carrier without the intervention or aid of the consignee; whereas, the latter cannot be accomplished without the concurrence of the consignee. A person upon whom the duty to transport is imposed is the sole actor; whereas, the duty to deliver necessarily involves the acceptance by the person to whom delivery is to be made, or, as said by the court, it "implies the mutual acts of the two." The idea of parting with the possession and control of an article or paper writing as an essential element in the delivery of it is illustrated in many instances; as in the delivery of a deed which is separate and distinct from signing and sealing, but equally essential to its validity. Daniel, J., in Moore v. Collins, 15 N. C. 388, says: "A deed may be delivered, by words, without any act of delivery by the grantor, as if the writing sealed lieth upon the table, and the feoffor or obligor saith to the feoffee or obligee, 'Go and take up the said writing,' etc. The words must amount to an authority or license, in the person addressed, to take possession of the deed, and a reception of the instrument by the person spoken unto must follow the speaking of the words. Whenever the words evidence an assent in the feoffor or obligor to part with the writing as a deed, and, at the same time, evidence a willingness that the person spoken unto should take the writing as a deed, and a reception of the writing by the person addressed follows the speaking, then the words amount to a delivery." The Legislature could not have intended to impose a penalty upon the carrier for not doing something, which necessarily involved the presence and acceptance by the consignee or his agent. If the consignee live in the country, or at some distance from the depot, or for any cause fail to call for the goods within the four days, it cannot be that the carrier should be liable to a penalty for not delivering, when there was no person to whom delivery could be made. It is for this reason that, upon the completion of the transportation-that is, the carrying from the point of shipment to the destination-he must, when called for, deliver. If not called for, a new duty with different measure of liability is imposed upon the carrier. He must place the goods in a warehouse or other proper place, and care for them until called for. He ceases to be a carrier and becomes a warehouseman. Hilliard v. Railroad, 51 N. C. 343, wherein Ruffin, J., says: "Naturally, a contract to carry goods from one point of a railroad to another point, on the same road, is fulfilled by the transportation of them to the point of destination and having them there in a state ready to be delivered. * Considering the unloading upon arrival, and, in the absence of the consignee, the depositing in the warehouse as part of the transportation, the court sees no reason why, ordinarily, the liability as carrier should not terminate with the transit of the goods. After the goods are placed in

tinct duties imposed by law. For a failure to perform the first in a reasonable time, a penalty is imposed. For a failure to perform the second, the consignee has his action for damages. The testimony showed that the goods were received for shipment August 10, 1906, and were at Williamston, their destination, on August 14th. The statute declares that prima facie this was a reasonable time for transportation. It will be observed that the standard fixed by the statute, by which to measure reasonable time, is the ordinary time required for carrying, etc. This distance between Jamesville and Williamston is stated to be 11 miles. Whether the goods were transported within a reasonable time, measured by the statutory standard, is a question for the jury; the burden upon the facts found being with the plaintiff to show that the time was unreasonable. The question in controversy was whether the goods were transported within a reasonable time.

In refusing to submit an issue directed to that question, and in instructing the jury, as set out in the case on appeal, there was error, for which defendant is entitled to a new trial.

CLARK, C. J. (dissenting). It is found by the jury, by consent, that the goods were received by the defendant at Jamesville, N. C., August 10, 1906, and were not delivered to the consignee at Williamston till August 20th. It is admitted that the goods were applied for by the consignee on August 14th, and again on August 17th. Williamston is only 11 miles from Jamesville, and there is no intermediate station. This is an appeal from a judgment for a penalty of $20 for unreasonable delay, under Revisal 1905, § 2632.

The jury found that there was unreasonable delay in getting the goods from Jamesville to the plaintiff at Williamston. It would not seem that this conclusion could be reasonably controverted. The defense is that the goods really reached Williamston August 14th, and were in the warehouse of the defendant, but that the agent of the defendant there delivered to the consignee on August 14th a different package, and on August 17th erroneously told the consignee that the goods had not come, but, finding on August 20th that the goods were there, so informed the consignee, who came that day and got them. The defendant contends that it did not fail to "transport" the goods in a reasonable time, because in fact they got to Williamston by August 14th, though it denied them to the consignee till August 20th. The defendant is surely "sticking in the bark." There is no technical mystery in the word "transport." It simply means to "carry." The contract which the defendant made by the bill of lading was not merely to carry the goods from Jamesville to Williamston, but from the consignor at Jamesville to the consignee at the defendant's station at Williamston. It in

cludes, according to the due and recognized course of dealing of common carriers, and by the very terms of the contract, taking the goods from the consignor at the defendant's station at Jamesville, and their delivery to the consignee at the defendant's station at Williamston. Nothing else would be a discharge of the contract in the bill of lading to transport the goods from "A" at one point to "B" at another. It is not contended by the consignee that the goods should be delivered to him elsewhere than at the defendant's warehouse in Williamston, but there was certainly no compliance (till August 20th) with the contract to deliver to the consignee, for he applied at the defendant's depot at that place, and was refused the goods. They are not carried or transported to him at Williamston when on his application at the proper place he is denied them.

The "carrying" or "transporting" of goods within a reasonable time is a common-law duty. Revisal 1905, § 2632, simply enforces the discharge of that duty by the penalty therein provided. The common-law duty of transporting goods to the consignee was not performed, if upon application of the consignee at the office of the carrier the goods are not delivered to him. It is a matter of vital importance to the public that carriers shall perform their common-law duty of carrying goods to consignees without unreasonable delay. Both Congress and the State Legislatures have been engaged in framing statutes to regulate the conduct of common carriers, by prohibiting excessive charges and prohibiting discrimination and delays in the discharge of their duties to the public, and in other respects. It cannot be a reasonable and just construction of Revisal 1905, § 2632, that the Legislature meant that this railroad has discharged its contract and legal duty to carry these goods to the consignee at Williamston by carrying them to Williamston, but refusing them to the consignee when he applied for them. to "make the law of none effect." It is to "keep the word of promise to the ear, but to break it to the hope."

That is

It was probably negligence, and not intentional, that the agent at Williamston denied that the goods were there. So it would have been if the goods had laid at Jamesville. It was not necessary that unreasonable delay in transporting the goods to the consignee should be willful. That there is another statute (Revisal 1905, § 2631), compelling the carrier under a penalty to receive goods when tendered, in no wise takes from the purview of the contract in the bill of lading the duty of transporting them thereafter, and carrying them not merely to Williamston, but delivering them to the consignee at that place, when demanded by him. The goods do not necessarily go into the carrier's warehouse at the place of destination, but are often delivered from the car or the platform. The defendant's agent at the destination is as much a

part of the “transporting” force as the shipping clerk at the place of origin. Delay due to the negligence of either is the negligent delay of the carrier. This is a remedial statute. It should be given the plain every-day well-understood meaning of the words which are used to guaranty the enforcement of the duty of the railroad company to carry the goods to the consignee when applied for by him at the place of destination. It is said by Macaulay, in his History of England (chapter 12), quoting a current statement, that an ingenious lawyer could "drive a coach and six through an act of Parliament." However that may have been as to the lawyers of England in the courts of that day, it is not true in the courts of this state, whose earnest object, in this case, as in all others, is to ascertain and effectuate, not defeat, the intent of the Legislature, especially as to remedial legislation widely affecting the business of the state. The difference between the members of the court is as to what was the relief which the Legislature meant to guaranty shippers by this statute. It could hardly have deemed that it would be any relief to the public to require the common carrier merely to transport the goods without unreasonable delay to its warehouse at the destination, while denying their possession to the consignee when demanded. The goods are still unreasonably delayed as long as delivery of them to the consignee is refused without cause. What can it matter to the consignee where the goods are detained, so long as they are in fact unreasonably detained by the carrier and refused to him? Was It the object of the statute to prohibit merely unreasonable delay in carrying the goods to the destination, or to secure their prompt receipt by the consignee at the destination?

The object of the court being to search for and ascertain the intent of the Legislature in enacting Revisal 1905, § 2632, it will throw light upon that investigation to note that, in section 2641 in the same subchapter, it is provided that, when only a portion of the shipment has reached the place of destination, "the carrier shall be required to deliver to the consignee such portion of the consignment, as shall have been received, upon payment or tender of the freight charges due upon such portion." It is not controverted here that the freight was paid, and, if the transportation of part of the consignment includes delivery to the consignee, there must be a violation of the statute giving a penalty for unreasonable delay, when all of the goods are received and none are delivered when (as here) the freight is paid and the goods are demanded. Besides section 2633 of the same subchapter provides: "Upon payment or tender of the amount due on any shipment which has arrived at its destination, common carrier shall deliver the freight in question to the consignee or consignees," These sections 2633 and 2641 show that a delivery of goods upon demand is a constituent

such

element in discharging the duty of transporting the goods to the consignee, an unreason. able delay to do which justly subjected the carrier to the small penalty of $20 here recovered for taking 10 days to carry this consignment 11 miles from the consignor at one station to the consignee at the next station upon the same road; there being no station between. If the statute cannot be enforced because the defendant's negligence and delay in getting the goods from the consignor to the consignee occurred after they reached the defendant's station at Williamston, instead of before, then the law as thus construed is a very defective relief to the public from the evil intended to be remedied, and gives to any carrier free hand to destroy the business of any consignee, if disposed to discriminate against him.

Revisal 1905, § 1868, provides that game wardens shall possess all the powers held by a constable at common law and under the statutes. Section 3708 declares that the prohibition against carrying concealed weapons shall not apply to officers of the state or any county, city, or town, charged with the execution of the laws while discharging their official duties. Held, that a game warden, shown to have had a concealed pistol in his possession while not in the actual performance of his duties, was not within the exception of section 3708, even if invested with the power of a constable for all purposes.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Weapons, § 10.]

2. SAME-CRIMINAL PROSECUTIONS-DEFENSE. The unlawful carrying of a concealed pistol by a game warden is not excused by the fact that the warden. acting under the advice of the' clerk of the court that, being a constable, he had the right to carry the pistol, carried it under that belief.

3. SAME EVIDENCE OF INTENT.

Revisal 1905, § 3708, forbids the carrying of deadly weapons about the person, except on one's premises, and declares that the possession of a deadly weapon, if carried about the person, shall be prima facie evidence of concealment, if the accused is at the time off his premises. Held, in a prosecution for carrying a concealed pistol, where accused himself testified that he had the pistol in his pocket a part of the time, and that it was then hidden from view, his further testimony that "he did not intend to conceal the pistol" was inadmissible. 4. CRIMINAL LAW-TRIAL - INSTRUCTIONS PROVINCE OF COURT AND JURY.

Under Revisal 1905, § 535, providing that no judge in charging the jury shall give an opinion whether a fact is sufficiently proven, but that he shall state in a plain manner the evidence, and explain the law, a charge, "If you believe the evidence, defendant is guilty, and you will return a verdict of guilty," is open to criticism.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1732-1735.] 5. SAME.

In a criminal prosecution, the jury, having been out but a few minutes, returned into court,

and, upon the judge inquiring as to what their trouble was in reaching a verdict, replied that some of them found the defendant guilty, and others not guilty. The court, upon receiving a reply from each juror that he believed the evidence as given, then said: "If you believe the evidence, return a verdict of guilty." Held, that the action of the court constituted reversible error, even if not a direct violation of Revisal 1905, § 535.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1731-1735.]

Appeal from Superior Court, Lenoir County; E. B. Jones, Judge.

G. F. Simmons was convicted of carrying a concealed weapon, and he appeals. Reversed, and new trial granted.

The defendant was indicted for carrying a concealed weapon, to wit, a pistol. He attempted to justify upon the ground that he was bird and game warden and entitled, by Revisal 1905, § 1868, to exercise all the power and authority of a constable at the common law and under the statutes of this state. He was not on duty when the pistol was found on his person. The weapon was in his possession on the night in question. Не dropped it from his pocket into the mud, picked it up, stepped upon the sidewalk of South street in Kinston, and wiped it with his handkerchief. After cleaning it, he dropped it into his pocket. The pistol was first in his hand, and then in his pocket; sometimes in view, and sometimes not in view. The above is taken from the defendant's own testimony. He proposed to show by the clerk of the court that the latter advised him, when he took the oath of office, that he, being a constable, had a right to carry the pistol, and that he carried it under that belief. And he also proposed to testify that "he did not intend to conceal the pistol." All this testimony was excluded, and the defendant excepted. The evidence of the state tended to show that the defendant carried the pistol on his person, and that a part of the time it was concealed. The court charged the jury as follows: "If you believe the evidence, the defendant is guilty, and you will return a verdict of guilty." The jury retired, and, after being out a few minutes, came into court, whereupon the judge inquired of them what was their trouble in reaching a verdict, and they replied that some of them thought the defendant guilty, and others thought him not guilty. The court then inquired of each juror if he believed the evidence, and each juror replied that he did believe the evidence as given on the stand, whereupon the court told the jury again: "If you believe the evidence, return a verdict of guilty." The defendant excepted to each of the instructions. There was a verdict of guilty, and judgment was entered thereon. Defendant appealed.

Loftin & Varser and M. H. Allen, for appellant. The Attorney General, for the State.

WALKER, J. (after stating the case). The fact that the defendant was game warden at the time he was found with the pistol in his pocket did not excuse him for carrying it concealed. Even if he was invested with

the power and authority of a constable for all purposes, and not only to the extent that was necessary for the efficient discharge of his official duties as game warden, it appears that he was not then in the actual performance of those duties. He does not therefore come within the exception of the statute. Revisal 1905, § 3708; State v. Hayne, 88 N. C. 625; State v. Boone, 132 N. C. 1107, 44 S. E. 595. The advice of the clerk of the court that the defendant had, as constable, the right to carry a pistol, is equally ineffectual as a defense to this indictment. "Ignorance of the law excuses no man." If he would take advice as to the criminality of a contemplated act, he must be sure that it is correct, for otherwise he will be as guilty, if he does the act, as if he had not taken it. State v. Boyett, 32 N. C. 336; State v. Dickens, 2 N. C. 406. Even the advice of an attorney learned in the law has been held to be insufficient to protect his client against a criminal prosecution for illegally voting at an election. State v. Downs, 116 N. C. 1064, 21 S. E. 689. The rule is of general application in cases of this kind. We find it thus stated in 12 Cyc. at page 155: "It is no defense for the accused to show that he believed in good faith that the law which he violated was unconstitutional. Nor will it avail him that he acted in good faith, under the advice of counsel; or that he is a foreigner, and that the act with which he is charged is not a crime in his country" -citing numerous cases to support the text. There are, of course, some exceptions to the rule.

Defendant offered to testify that he did not intend to carry the weapon concealed. The criminal intent in this, and in like offenses created by statute, is the intent to do the forbidden act. State v. McDonald, 133 N. C. 684, 45 S. E. 582. The statute provides that the possession of a deadly weapon, if carried about the person, shall be prima facie evidence of concealment, if the accused is at the time off his premises. It is not necessary to a conviction that the state should show an intention to use the weapon for any unlawful purpose, for it is the intent to conceal, and not the intent to use it in any particular way, that renders the act of carrying it criminal. State v. Dixon, 114 N. C. 850, 19 S. E. 364; State v. Reams, 121 N. C. 556, 27 N. E. 1004; State v. Brown, 125 N. C. 704, 34 S. E. 549. In this case, the defendant himself testified that he had the pistol in his pocket a part of the time, and that it was then concealed or hidden from view. It necessarily follows, if this be true, that he knew that it was thus concealed. He has shown no valid excuse for carrying it in his pocket