
    STATE v. ALBERT HELMS.
    (Filed 11 May, 1921.)
    1. Spirituous Liquors — Intoxicating Liquors — Criminal Law — Possession —Prima Facie Evidence — Questions for Jury.
    The unlawful purpose of sale of spirituous liquors is the offense made indictable by our statutes, whether the indictment be under C. S., 3385 or 3386, and not the possession thereof for lawful purposes, though the possession of the specified quantities is prima facie evidence of the illegal purpose, and does not establish a primia facie case of guilt. C. S., 3379.
    2. Same — Burden of Proof — Instructions—Appeal and Error — Trials.
    The possession of the specified quantity of spirituous liquor sufficient to make out prima facie evidence of an unlawful purpose is only sufficient to sustain a verdict of guilty, and does not shift the burden upon the defendant to show his innocence, and an instruction to that effect is reversible error.
    3. Same — Verdict Directing.
    Where the possession of the specified quantities of intoxicating liquors under our statute, C. S., 3385, has made out prima facie evidence of guilt, and the defendant has not introduced evidence, an instruction to the jury placing the burden on the defendant to establish his innocence is reversible error, being equivalent to directing a verdict, which is not permissible' in a criminal case.
    4. Trials — Motions—Evidence—Nonsuit—Statutes—Criminal Law.
    A motion as of nonsuit upon the evidence will not be considered when it is not renewed after the conclusion of all the evidence, as the statute requires.
    5. Spirituous Liquors — Intoxicating Liquors — Possession—Prima Eacie Evidence — Volstead Act — Statutes—Federal Statutes.
    The Volstead Act, title 2, see. 25, has no application to an action in the State Court wherein the possession of specified quantities of intoxicating liquors under our statutes, C. S., 3385, 3386, makes out primia facie evi-deuce of guilt, and an instruction that it made a prima faoie case sufficient to place the burden on the defendant to establish his innocence is reversible error.
    Clase, O. J., dissenting.
    Appeal by defendant from Ray, J., at tbe January Term, 1921, of UNION.
    Tbe defendant was indicted under a bill wbicb in its first count charged him with tbe possession of intoxicating liquors for tbe purpose of selling tbe same. Its second count was as follows: “Did receive said liquor other than by common carrier, contrary to tbe form of tbe statute in such case made and provided, and against tbe peace and dignity of tbe State.” He was convicted upon tbe second count, and from tbe judgment upon such conviction appealed.
    Tbe evidence upon wbicb be was convicted was as follows:
    Frank Irby testified: “That be was policeman of tbe town of Monroe; that be searched tbe premises of tbe defendant on 6 November, 1920, in tbe town of Monroe, under a search warrant; defendant was present and said there was no liquor in bis bouse; found a fruit jar containing some liquor in a closet; defendant said be bad a small quantity for bis sick baby; found another fruit jar containing small quantity in tbe same place; found a bottle of liquor under tbe meal or flour box, and found a jar full in another room on a shelf in some quilts, tbe bouse occupied by defendant and bis family; found several other vessels that smelt of liquor.”
    J. ~W. Spoon, chief of police of Monroe, testified to tbe same effect.
    At tbe conclusion of tbe State’s evidence, defendant moved for judgment as of nonsuit on count in bill charging unlawful receipt of liquor. Motion was overruled, and defendant excepted.
    He then offered tbe evidence of several witnesses as to bis good character. At tbe conclusion of this evidence be did not renew bis motion to nonsuit.
    His Honor charged tbe jury on tbe second count as follows: “It is provided by law in this State that it shall be unlawful for any person, firm, or corporation, at any one time, or in any one package, to receive in tbe State of North Carolina for bis or her own use, or for any other purpose, or for any other person, firm, or corporation to have in their possession for any other purpose any spirituous, vinous, or malt liquors in greater quantity than one quart, or any malt liquors in greater quantities than five gallons. That tbe State has to satisfy.you beyond a reasonable doubt that tbe defendant bad more than a quart of liquor in bis possession.
    “If tbe. State has satisfied you beyond a reasonable doubt under the definition wbicb I have given you already of reasonable doubt, and tbe testimony that it has offered, that the defendant had the liquor in his possession, although it was in different parts of the building, and he inhabited the building it was in, and that the liquor was there belonging to him, the burden of proof being upon the State and the presumption of innocence in favor of the defendant, more than a quart of liquor, then the State has met, as the court charges you, the requirements of law, and made out a prima facie case, and then it would devolve the laboring oar upon the defendant to satisfy you, not beyond a reasonable doubt, but to satisfy you that he did not receive the portion of whiskey he had then, slightly over three quarts, that he did not receive this liquor within fifteen consecutive days. That he did not receive it at times when fifteen consecutive days had intervened between the receipt of the first, second, or third quart, that he received it in that way.”
    (To the foregoing part of his Honor’s charge the defendant excepts.)
    “If you believe the evidence of the State, have no doubt about it on the second count of the indictment, the presumption being in the defendant’s favor and .the burden on the State, nothing else appearing, the court instructs you to return a verdict of guilty of receiving whiskey unlawfully, as charged in the bill of indictment.”
    (To the foregoing part of his Honor’s charge defendant excepts.)
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      Vann & Millilcen for defendant.
    
   Allekt, J.

It cannot be seen from the indictment or the charge of the court whether the defendant is charged with violating sec. 3385 of Consolidated Statutes, which makes it unlawful to receive at one time and in one package more than one quart of spirituous or vinous liquors or intoxicating bitters, or more than five gallons of malt liquors, or under sec. 3386, which prohibits any person, firm, or corporation from receiving during the space of fifteen consecutive days, whether at one time or in one package or not, “any spirituous or vinous liquors or intoxicating bitters in a quantity or quantities totaling more than one quart, or any malt liquors in a quantity greater than five gallons,” but under either the instructions to the jury are erroneous and prejudicial to the defendant.

We note the charge, which is not excepted to, that it is unlawful to possess more than certain quantities of intoxicating liquors, for the purpose of correcting a misconception of our statutes. It is not against our law to have in possession liquor, lawfully obtained, for one’s own use, but it is indictable to have any quantity in possession for the purpose of sale, and the possession of more than one gallon is prima facie evidence of the illegal purpose.

It was also error to charge that proof of the possession of more than one quart of liquor made out a prima, facie case against the defendant, and if this was a correct statement of the law it was erroneous to give to this prima facie case the legal effect of devolving the laboring oar on the defendant to satisfy the jury that he did not receive the liquor within fifteen consecutive days.

The possession of more than one gallon of liquor is made prima facie evidence of having it for sale by statute (C. S., 3319), but no such artificial weight is given to the possession of one quart, and such fact is simply a circumstance for the consideration of the jury. .

Nor does a prima facie case, when legally established, cast the burden on the defendant to satisfy the jury of his innocence. It is sufficient to carry the case to the jury, and upon it alone the jury may, not must, convict, but the burden remains with the State to prove the guilt of the defendant beyond a reasonable doubt.

It was so held in S. v. Barrett, 138 N. C., 630, and in the later case of S. v. Wilkerson, 164 N. C., 437, which has been frequently affirmed, and in which it is said, “It may, therefore, be taken as settled in this Court, at least, and we believe the same may be said of most, if not all, of the courts, that prima facie or presumptive evidence does not, of itself, establish the fact or facts upon which the verdict or judgment must rest, nor does it shift the burden of the issue, which always remains with him who holds the affirmative. It is no more than sufficient evidence to establish the vital facts without other proof, if it satisfies the jury. The other party may be required to offer some evidence in order to prevent an adverse verdict, or to take the chances of losing the issue if he does not, but it does not conclude him or forestall the verdict. He may offer evidence, if he chooses, or he may rely alone upon the facts raising the prima facie case against him, and he has the right to have it all considered by the jury, they giving such weight to the presumptive evidence as they may think it should have under the circumstances.

“The defendant is not required to take the laboring oar and to overcome the ease of the plaintiff by a preponderance of evidence, is what we said in Winslow v. Hardwood Co., supra, and substantially the same thing was said in the other cases we have cited. This is undoubtedly the rule in civil eases, and it applies with the greater force to criminal cases, where the defendant has the benefit of the doctrine of reasonable doubt, and the presumption of innocence.” S. v. Bean, 175 N. C., 749, affirms the Wilkinson case, and is directly in point.

In view of these erroneous instructions, the final direction to the jury, based upon them, was equivalent to directing a verdict, which is not permissible in criminal eases. S. v. Alley, 180 N. C., 663.

Tbe' motion to nonsuit was not renewed after tbe introduction of evidence by tbe defendant, and it cannot therefore be considered. S. v. Killian, 173 N. C., 792.

We bave not discussed tbe prohibition amendment or tbe Yolstead Act,, because, in our opinion, not pertinent to any question raised by this appeal, but it may not be amiss to say that it would be a strange application of law to bold that a defendant, being tried in. the State courts for violating a statute of tbe State, could be convicted because be bad violated a. Federal statute, or that giving to tbe Yolstead Act tbe effect of striking down all provisions of State statutes in conflict with its terms it should bave further operation to render a citizen of tbe State indictable under a State statute, which has bad a material part stricken out without tbe consent of tbe General Assembly, and which as thus changed lias never bad the approval of tbe General Assembly.

It is also well to note that under tbe Yolstead Act, as construed by tbe Supreme Court of tbe United States in Street v. Lincoln Safe Deposit Co., decided 8 November, 1920, it is not unlawful to possess liquor in one’s dwelling, and that it was held in that case that, “Yolstead Act, title II, sec. 25, making it unlawful to possess liquor intended for use in violating that act, does not make unlawful' possession in a storage warehouse by one who intends to use tbe liquor in bis own home for his family and guests, which is permitted by sec. 33 of tbe title.”

This conclusion was reached upon a construction of sec. 33 of tbe Yolstead Act, which is as follows: “It shall not be unlawful to possess liquors in one’s private dwelling while tbe same is occupied and used by him as bis dwelling only, and such liquor need not be reported, provided such liquors are for use only for tbe personal consumption of tbe owner thereof and bis family residing in such dwelling, and of bis Iona fide guests when entertained by him therein.”

New trial.

Claeic, O. J.,

dissenting: Tbe defendant was indicted in tbe first count for having in bis possession intoxicating liquor for tbe purpose of unlawful sale, and in tbe second count in that “He did receive said liquor other than by common carrier, contrary to tbe form of tbe statute,” etc. Tbe jury returned a verdict of guilty of receiving. Tbe only exceptions besides tbe refusal of a motion of nonsuit and to set aside tbe verdict are the following to tbe charge of tbe court:

1. “If tbe State has satisfied you beyond a reasonable doubt under the definition,, which I bave given you already, of reasonable doubt, by tbe testimony that it has offered, that tbe defendant bad tbe liquor in bis-possession, although it was in different parts of tbe building, and be inhabited tbe building it was in, and that tbe liquor was there belonging to Mm, tbe burden of proof being upon tbe State and tbe presumption of innocence in favor of the defendant, more than a quart of liquor, then tbe State has met, as tbe court charges you, tbe requirements of law and made out a prima facie case, and then it would devolve tbe laboring oar upon tbe defendant to satisfy you, not beyond a reasonable doubt, but to satisfy you that be- did not receive tbe portion of whiskey be bad there — ■ slightly over three quarts — that be did not receive this liquor within fifteen consecutive days, that be did not receive it at times when fifteen consecutive days bad intervened between tbe receipt of tbe first, second, or third quart, that be received it in that way.”

2. That tbe court erred in charging tbe jury as follows: “If you believe tbe evidence of tbe State, have no doubt about it on tbe second count of tbe indictment, tbe presumption being in tbe defendant’s favor, and tbe burden on tbe State, nothing else appearing, tbe court instructs you to return a verdict of guilty of receiving whiskey unlawfully as charged in tbe bill of indictment.”

Tbe defendant offered no evidence whatever except witnesses as to bis good character, and be did not renew bis motion to nonsuit at tbe conclusion of tbe whole testimony, which motion therefore we do not consider. S. v. Killian, 173 N. C., 792.

Tbe evidence by tbe State of the defendant’s possession of three quarts and bis previous denial of having any when tbe officers approached tbe dwelling, was uncontradicted, and tbe court properly told tbe jury that if they believed tbe evidence for the State beyond-a reasonable doubt, “tbe presumption being in tbe defendant’s favor — to return a verdict of receiving whiskey unlawfully as charged in tbe bill of indictment.” S. v. Fore, 180 N. C., 744 (Allen, J., for unanimous Court); S. v. Reed, ante, 508; S. v. Pearson, post, 589, top of page.

There is no charge in tbe bill in regard to tbe fifteen days. Tbe statute of North Carolina, 3386, makes it unlawful for “any person; firm, or corporation, during tbe space of fifteen consecutive days, to receive any spirituous or vinous liquors in a quantity or quantities totaling more than a quart, or any malt liquors in a quantity greater than five gallons.” But tbe Eighteenth Amendment to tbe United States Constitution provides: “After one year from tbe ratification of this article tbe manufacture, sale, or transportation of intoxicating liquors within, tbe importation thereof into, or tbe exportation thereof from tbe United States and all territory subject to tbe jurisdiction thereof for beverage purpose^ is hereby prohibited”; and tbe Yolstead Act, sec. 35, provides: “All provisions of law that are inconsistent with this act are repealed only to tbe extent of such inconsistency and tbe regulations herein provided for tbe manufacture or traffic in intoxicating liquor shall be construed as in addition to existing laws.”

Tbe Supreme Court of the United States, in Rhode Island v. Palmer, 253 U. S., 350, said: “The first section of the amendment—the one embodying the prohibition—is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and of its own force invalidates every legislative act, whether by Congress, by a state legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.”

The Volstead Act, known officially as the “National Prohibition Act,” ratified 28 October, 1919, sec. 3, provides: “No person shall, on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall he liberally construed to the end that the úse of intoxicating liquor as a beverage may be preventedThis being of supreme authority, strikes down any and every provision in any act of Congress or of the Legislature or in the constitution of any state, which modifies or interferes with this provision.

It will thus be seen that this provision being self-executing, eliminates from our statute the authority to receive one quart of spirituous liquors for beverage purposes every fifteen days, but leaves in force the prohibition against receiving it at all.

C. S., 3386, thus amended by the force of the Eighteenth Amendment and the Volstead Act, reads as follows: “It is unlawful for any person, firm, or corporation to receive any spirituous or vinous liquors or intoxicating bitters,” etc., subject, of course, to the exceptions provided in the Volstead Act, which, being in other clauses of the act, are, under the settled decisions of the courts, matters of defense which must be set up and proven by the defendant. S. v. Burton, 138 N. C., 578, and cases there cited and citations thereto in Anno. Ed.

The evidence in this case, as recited to the jury in the charge of the court and sent up as a part of the record, is as follows: “That on 6 November, 1920, at the defendant’s home here in Monroe, a search warrant was taken by Mr. Frank Irby and J. W. Spoon, chief of police, who searched the defendant’s premises; when they approached his dwelling they asked him if he had any whiskey in his possession, and he declared he did not have anything; they proceeded with the search and found in one room a portion of whiskey in a cupboard, in a second they found another portion of whiskey between two quilts; in the cook room they found a bottle of whiskey in the flour bin under the dough board, it being concealed; when they found the first whiskey they asked the defendant what he had that for, and he said he had it for the baby; there were four different receptacles of liquor found; two fruit jars with a quart in each, which have been offered in evidence and which you have seen. One fruit jar full of whiskey — they being half-gallon jars — and a pint bottle full of whiskey.”

0. S., 3385, makes it unlawful for any one, “at any one time or in any one package, to receive” in this State for his use or for the use of any one, “or for any other purpose, any spirituous or vinous liquors or intoxicating bitters in a quantity greater than one quart.” So far there is no conflict with the Yolstead Act, except limiting the quantity to one quart, which makes no difference here, as the defendant had more than that quantity, and the Yolstead Act strikes out the limitation “at any one time or in any one package.” The other provision in C. S., 3386, limiting the unlawfulness to cases only where such quantity has been received “during the space of 15 consecutive days,” is also a modification and restriction upon the Yolstead Act, and is therefore stricken out by virtue of that act enacted under the authority of the Eighteenth Amendment.

There are numerous authorities in our State which make restrictions (when valid) a defense which should be set up and proven by the defendant. S. v. Burton, 138 N. C., 578; S. v. Blackley, ib., 622; S. v. Connor, 142 N. C., 701, 702; S. v. Long, 143 N. C., 674, and many other cases.

However, it is not necessary to discuss this proposition for the power of the Federal Government as expressed in .the Yolstead Act enacted under the Eighteenth Amendment strikes out the modification which makes the receipt of a quart not unlawful “if extended over a period of more than 15 days.”

It devolved upon the defendant to set up as a defense and prove that the receipt and possession of the liquor found in his possession comes under some one of the exceptions provided in the Yolstead Act. This the defendant did not attempt to show. The sole evidence offered in his behalf was as to his good character, as to which the court instructed the jury without any exception from the defendant.

The charge of the court in regard to the 15 days limitation, even if erroneous, was therefore absolutely surplusage and immaterial. It was an error in favor of the defendant. The bare, uncontradicted evidence in this case is that the defendant was found in possession of more than three quarts of liquor, that he denied it until it was found, on a search of his house, and he has offered no evidence to bring himself under the exception in the Yolstead Act which would have justified his possession. The jury found the evidence for the State to be true beyond all reasonable doubt, and indeed the defendant did not contradict it, and the law made that fact unlawful.

The State could not enact any valid statutory provision which would make legal the possession of liquor under circumstances not coming within the exceptions in the Yolstead Act, and that act struck out any such provision which was in any statute, State or Federal, prior to the commission by the defendant of this offense.

Tbe United States Supreme Court has held tbat tbe Eifteentb Amendment was self-executing, and struck out, ex propio vigore, any statute or constitutional provision in conflict tberewitb. Guinn v. U. S., 238 U. S., 347; Myers v. Anderson, ib., 369; U. S. v. Mosley, ib., 383; and it bas beld tbe same as to tbe Eighteenth Amendment, Rhode Island v. Palmer, 253 U. S., 350 (both of which amendments were ratified by this State), and we have recognized tbe same effect as to tbe Ninteentb Amendment, which this State did not ratify, by tbe admission of women to suffrage. "When tbe supreme power bas spoken it is not necessary to wait for any state to modify its statutes to conform. Tbe conflicting provision in any statute, State or Federal, is automatically stricken out.

Under the State statute, as amended by tbe Federal statute, striking ■out 'the modifying clause of 15 days given tbe defendant in which to receive a quart, tbe defendant was clearly guilty, and there was no error in tbe charge of which be bad tbe right to complain.  