BROGDEN, J., dissents. Criminal prosecution tried upon an indictment charging the defendant with having in his possession "certain utensils and contrivances, to wit, distilling outfit, jars, jugs, worm, beer, malt, barrels, etc., designed *Page 729 and intended for the use in the unlawful manufacture of intoxicating liquors," contrary to the provisions of 3 C. S., 3411 (d).
The evidence for the State tends to show that on the afternoon of 7 February, 1928, two officers of Caldwell County were out in the woods looking for a still; they found the defendant about 300 yards from his house; he had a spade digging a place in the side of a branch, while near by was a big sheet-iron vessel with a wooden bottom in it, "a big sheet-iron distillery," as the witness described it, about three feet deep, holes punched in the top to nail a head on, capacity apparently 100 gallons. On seeing the officers, the defendant ran away and did not return until about three hours thereafter.
The defendant testified that the receptacle he had was intended for use in watering his tobacco plants; that it was unfit for distilling purposes; that the branch, so called, was only a drain and had no water in it at the time; that he did not run from the officers; and that he was not preparing or intending to make any liquor.
Motion for judgment as in case of nonsuit; overruled; exception.
Verdict: Guilty.
Judgment: "Prayer for judgment continued two years upon condition that the defendant pay a fine of $50.00 and the costs, and upon further condition that he does not violate the prohibition laws and upon further condition that he does not take a drink." Objection and exception.
Defendant appeals, assigning errors. after stating the case: The second sentence of 3 C. S., 3411 (d) is as follows: "It shall be unlawful to have or possess any liquor or property designated for the manufacture of liquor intended for use in violating this article, or which has been so used, and no property rights shall exist in any such liquor or property." The word "designated," appearing herein, was evidently intended for "designed," and may be so regarded. S. v. Bell,184 N.C. 701, 115 S.E. 190. We omit any consideration of the clause, "or which has been so used," as it is unnecessary to decide its meaning or validity on the present appeal.
While it does not appear that the Volstead Act, 41 U.S. Statutes at Large, 305, contains a provision exactly like the one under which the defendant has been indicted (Danovitz v. U.S., decided 5 May, 1930), and notwithstanding the Turlington Act, ch. 1, Public Laws, 1923, was ostensibly adopted "to make the State law conform to the National law *Page 730 in relation to intoxicating liquor," nevertheless it is the generally accepted view that the several States may legislate more stringently on the subject than the Congress has done. S. v. Lassiter, ante, 352. This power existed in the States prior to the adoption of the Eighteenth Amendment and the passage of the Volstead Act, and such power is still preserved to them under the Tenth Amendment to the Constitution of the United States. S. v.Harrison, 184 N.C. 762, 114 S.E. 830.
It is true that in the instant case the defendant's evidence, if believed, would have warranted an acquittal, but the State's evidence, considered in its most favorable light, the accepted position on a motion to nonsuit, was apparently sufficient to carry the case to the jury. In this respect, we find no error. The defendant is not charged with an attempt to commit a crime. (S. v. Addor, 183 N.C. 687, 110 S.E. 650), but with having in his possession certain utensils designed and intended for use in the unlawful manufacture of intoxicating liquor. The fact that they had not been completely assembled or arranged for the purpose would seem to make no difference under the language of the statute.
The form of the judgment would seem to be objectionable. S. v. Gooding,194 N.C. 271, 139 S.E. 436; S. v. Schlichter, 194 N.C. 277,139 S.E. 448. Prayer for judgment may not be continued over the defendant's objection. S. v. Burgess, 192 N.C. 668, 135 S.E. 771. Here the defendant did object to its continuance. Hence, the judgment, as entered, will be stricken out and the cause remanded for a valid judgment.
Error, and remanded.
BROGDEN, J., dissenting.