¶1 — after stating the facts: The Court “must say upon the facts found (as a special verdict) that in law they constitute or do not constitute the offence charged, and thereupon the verdict of the jury is entered in accordance with the opinion of the Court.” State v. Bray, 89 N. C., 480; State v. Stewart, 91 N. C., 566. So the law is written. The rule laid down by the Court has not been followed, and there must be a new trial.
¶2 But the defendant also relied upon the statute of limitations as a bar to the prosecution, and if that question is not discussed now the probable result of omitting to do so will be to bring the case up again on the same point. A presentment is an accusation made, ex mero motu, by a grand jury of an offence upon their own observation and knowledge, or upon evidence before them, and without any bill of indictment laid before them, at the suit of the government. The presentment is founded either upon facts of which the grand jury, or some member of that body, actually had knowledge, or upon specific information given in good faith and deemed by them to be credible. State v. Wilcox (decided at this term). Bouvier’s Law Dic., 4 Bl. Com., 301. “An indictment is a written accusation of an offence, preferred and presented upon oath as true by a grand jury at the suit of the government.” The paper was brought into Court in the regular way by the foreman of the grand jury, presented to the Court and recorded on the minutes with the presentments,, and if, under the accepted definitions, we could hold it sufficient in form to constitute a presentment, the prosecution would not be barred:
¶3*840 But it is a paper drawn in the form of an indictment and •originating, not with the grand jury, but prepared and signed by the Solicitor. This Court has held that the sending of another indictment at a term held before the prose•cution was barred for the same offence, does not prevent the bar of the statute as to one sent subsequently and after the lapse of the period prescribed by statute as the limit. State v. Tomlinson, 3 Ired., 32 We concur with his Honor in his holding that the prosecution was barred by the statute; but for the other defect there must be a new trial. We suppose, however, that upon the state of facts found in the verdict, the Solicitor, in view of the ruling of this Court, will enter a nolle prosequi.
¶4 Error.