¶1 While the statutes in this State are full and sufficient to cure all formal defects in the procedure incident to a criminal prosecution, the requirement remains that in any and every such prosecution, whether by indictment or warrant, either alone or in connection'with the accompanying affidavit, the defendant shall be informed of the accusation against him, and this accusation must be set forth with sufficient certainty to enable the court to say what offense has been committed and to know what punishment may # be imposed in case of conviction. Hendersonville v. McMinn, 82 N. C., 533; Clark’s Criminal Procedure, 150.
¶2 At the time of this occurrence 'prohibition had not gone into effect in the city of Asheville, and, in order to constitute a criminal offense in that locality for a violation of either the State or municipal law, it was required that the sale of spirituous liquors should have been without license. The procedure, therefore, under which this conviction was had is fatally defective, in that it contains no allegation of a sale without license. State v. Holder, 133 N. C., 709.
¶3*865 Again, while the warrant ■ and accompanying affidavit give indication that tbe offense charged was for the violation of some municipal ordinance, the ordinance is not set forth or described, nor is it referred to in any way sufficient to identify it, and for this reason a prosecution cannot be sustained under it as an offense against a municipal regulation.
¶4 Referring to this position, as well as that first stated, in McMinn's case, supra, Ashe, J., for the Court, said: “The process under which the defendant was arrested is so defective in 'form and substance as not to warrant the judgment pronounced upon him in- the court below. It should have set out the ordinance, but instead of doing so it charges the defendant with the violation of one of the ordinances of the town of Hendersonville, prohibiting the sale of intoxicating liquors, implying that there was more than one ordinance of the town on that subject. Which did he violate ? If it was intended to be a criminal prosecution, the warrant is the indictment; and every indictment must state the facts and circumstances constituting the offense with such certainty that the defendant' may be enabled to determine the species of the offense with which he is charged, in order that he may know how to prepare his defense and that the court may be in no doubt as to the judgment it should pronounce if the defendant be convicted. Archb. Or. PL, 42, 43.”
¶5 Further, in State v. Lytle, 138 N. C., 738, we have held that, under certain circumstances, one-and the same act or sale may constitute distinct offenses, the one being in violation of a State law and the other of a town ordinance requiring a municipal license; and if it be conceded that such a condition obtains here, on conviction under this warrant, as it now stands, the Court is unable to determine whether the punishment should be imposed for the one offense or the other, and therefore no valid judgment can be pronounced.
¶6 For the reasons indicated, we are of opinion that the judgment against the defendant should be arrested, and it is so ordered.
¶7 Judgment Arrested.