On the hearing it was made to appear that, at July criminal term preceding, defendant was convicted or submitted to an indictment charging him and three others with the crime of assault with intent to kill one Burnett. At said July term the following entries appeared upon the record: "With the consent of the solicitor, all the defendants, including the defendant Hardin, submitted to the crime of assault with a deadly weapon. Whereupon prayer for judgment was continued upon the payment of the cost, the defendant agreeing to pay $200 to the private prosecutors to reimburse them for counsel fees paid out in prosecution of this cause, which has been paid, together with the cost." And thereupon order was made in the cause as follows: "Prayer for judgment continued by consent upon payment of the cost; defendants to appear at each criminal term of this court for two years and show that they have been of good behavior and not violated the law in any respect." The case on appeal then proceeds with the further statement that, "On Friday preceding the convening of the November Criminal Term, 1921, of the Robeson Superior Court, the defendant was tried before David H. Fuller, recorder of the Lumberton District, upon two indictments, one charging him with having more intoxicating liquors in his possession than is allowed by law, and another indictment charging him with having sold intoxicating liquors contrary to law. The defendant plead not guilty to both these indictments, and the same was tried before a jury and the defendant was acquitted on both charges; thereafter, to wit, on Monday, the first day of the November Criminal Term, 1921, of the Robeson Superior Court, the solicitor prayed judgment against the defendant upon the indictment tried at the July *Page 873 Criminal Term, 1921, of the Robeson Superior Court, in which prayer for judgment was continued, as set out in the record. Upon this prayer for judgment by the solicitor, and upon statements of the sheriff and deputy sheriff, upon which the facts stated in the following judgment were found, the court entered the following judgment: "At the July term of this court, 1921, the defendant Nasby Hardin was convicted (818) by the jury of an assault with intent to kill Lacy Burnett. Prayer for judgment was continued for two years by consent and upon payment of cost. At this term of the court the defendant was called to appear and show cause that he had been of good behavior. It appeared to the court and the court finds as a fact that the defendant had manufactured and had in his possession more than 150 gallons of wine; and that the defendant had bought grapes in Bladen County; that persons had drunken of the said wine, and numerous persons had been seen going to and from the home of the said Nasby Hardin intoxicated. The said Nasby Hardin was indicted upon the attached warrant and tried by Recorder D. H. Fuller and jury; found not guilty, and these are the same charges in above findings. Thereupon the court, on motion of the solicitor, S. B. McLean, of this district, sentenced the said Nasby Hardin to be confined in the county jail of Robeson County for a term of twelve months, to be worked on the public roads of said county." Defendant excepted and appealed. The power of a court having jurisdiction to suspend judgment of conviction in criminal cases for determinate periods and for a reasonable length of time is fully recognized in this jurisdiction. S. v. Hoggard,180 N.C. 678; S. v. Greer, 173 N.C. 759; S. v. Tripp, 168 N.C. 150; S. v.Everitt, 164 N.C. 399; S. v. Crook, 115 N.C. 760. And these and other cases on the subject hold, also, that the suspended judgment may be on the condition of good behavior of defendant for like determinate and reasonable periods of time, and that on inquiry duly instituted, the court having jurisdiction, and hearing the matter, may in its sound discretion determine for itself whether the conditions have been violated. S. v. Greer, supra;S. v. Tripp, supra; S. v. Everitt, supra. A position that is modified, however, where it is properly made to appear that a defendant has been acquitted by the jury or other competent tribunal having jurisdiction of the criminal offense which is the sole basis of the proceedings. As to that fact, and to that extent, *Page 874 the court or judge hearing the matter of the suspended judgment should be concluded.
The authorities are to the effect further that where a judgment has been suspended on condition of payment of cost and good behavior, etc., the term "good behavior," by correct interpretation, means conduct that is authorized by law and bad behavior such as the law will punish.
In re Spencer, 22 Federal Cases, No. 13233, pp. 921-922. And (819) that in order to a valid sentence on such suspended judgment it must be properly established by pertinent testimony that the conditions have been broken within the meaning and purport of the above principle. S. v. Hilton, 151 N.C. 687. Applying the doctrine, as set forth and approved by these authorities, the sentence of the court imposing judgment on the defendant cannot be upheld, for it appears neither by evidence nor finding of the court that there has been any breach of the criminal law of the State on the part of the defendant since said judgment was suspended. True, his Honor finds that defendant had manufactured and had in his possession as much as 150 gallons of wine. That defendant had bought grapes in Bladen County and persons had been seen coming from his place intoxicated. But the manufacture of wine from grapes is not prohibited by the laws of this State. C.S. 3367. Nor is the possession of any quantity of wine an indictable offense, unless held for purposes of sale. C.S. 3379. And though the section last cited makes the possession of more than three gallons of wineprima facie evidence of guilt, it seems that neither the section nor the rule of proof prevails as to wines made of grapes grown on the premises of the holder. While the facts as found by his Honor may permit and perhaps justify an inference of guilt, the ultimate fact of guilt has not been found by him, nor is it otherwise established the only tribunal which has undertaken to make a finding on the question, to wit, the recorder's court, having found defendant not guilty of any criminal offense. On the record, such action of the recorder's court may not be considered as controlling on the present hearing, from the fact that such court did not have jurisdiction of the offenses charged, the punishment on conviction being discretionary, and the jurisdiction of said recorder's court for offenses of this character being restricted to cases where the punishment may not exceed a fine of $200 or imprisonment for one year, but it no doubt afforded a reason for the hesitation of his Honor in declaring the defendant guilty.
It is urged in support of the present judgment that while the facts found by his Honor may be only evidential as to a breach of the criminal laws of the State, they are sufficient of themselves to amount to a finding as to a violation of the Federal regulations on this subject as contained in the Eighteenth Amendment and the Volstead Act, passed *Page 875 by Congress with the view and purpose of making the amendment effective. Speaking in general terms, this Eighteenth Amendment prohibits within the territory of the United States the manufacture, sale, or transportation of intoxicating liquors for beverage purposes. And the Volstead Act, designed, as stated, to make this amendment effective, makes it a criminal offense to manufacture such liquors for the purpose indicated. The manufacture of intoxicating liquors for other and certain specified purposes is not condemned either by the (820) prohibition amendment or the act of Congress, the statute, however, providing that in order to a lawful manufacture, there must be a permit from the Revenue Department of the Government. Even under the provisions of the Federal law, therefore, the findings of his Honor fail to declare the ultimate fact of defendant's guilt, in that it makes no reference to the purpose of defendant in manufacturing the 150 gallons of wine, nor is it declared whether defendant had or had not a valid permit for the purpose. Apart from this we have held in two or more recent cases that the State courts are without power or jurisdiction to administer the provisions of the Volstead Act. S. v. Barksdale,181 N.C. 621; S. v. Helms, 181 N.C. 566.
When the State court, therefore, suspended judgment on condition that the defendant should be on good behavior, that is, should not break the law for two years, this, without more, should be construed as meaning the State law, the only law the court had jurisdiction to enforce, and where it appears that the defendant is keeping or has kept that law, it is both right and just that the State authorities should keep faith with him and forbear an imposition of sentence.
Again it is contended that the present judgment finds support in S. v.Yates, ante, 753, a decision made at the present term, in which the power of the Governor to annex conditions of similar import to a pardon granted by him, the power being upheld in a forcible and learned opinion byAssociate Justice Adams. In that case the applicant had been condemned by the law, and the Governor was in the exercise of the prerogative of mercy, under a constitutional power containing express provision that except in case of impeachment the Governor could grant pardons, commutations, etc., under such conditions as he may see proper. Acting in amelioration of defendant's condition, the Governor is purposely made a law unto himself, subject to the limitation that the conditions imposed must not be "illegal, immoral, or impossible of performance."
But not so as to the administration of the law by the courts. Here the judge sits in judgment and not in the exercise of mercy. He can only proceed along fixed and well ordered lines, that a citizen, defendant or other, may know his rights, and while he keeps faith, these *Page 876 rights must be recognized and preserved to him. In this case, as we have seen, judgment was suspended with the understanding that he would pay the sum of $200 to the counsel who had prosecuted him. This he has paid, and on the condition that he be of good behavior, that is, that he do not violate the State law. This condition he has thus far kept, so far as the record has established, and for anything that now appears, he is not subject to sentence.
We are not inadvertent to the position urged for defendant (821) that he may no longer be punished under this conviction by reason of having paid the $200 as counsel fee, pursuant to his agreement made at the July Term, 1921, on the principle that a defendant may not be twice punished for the same offense. But the principle invoked, in our opinion, has no application to the facts of this record, it appearing that such payment constituted no part of any judgment against defendant, but was paid in pursuance of his agreement to that effect, and the prayer for judgment being expressly continued on condition of defendant's good behavior for two years, which time has not expired. Such a prayer being made for the amelioration of his condition, and presumably with his consent. S. v. Everitt, supra; S. v. Hilton,supra; S. v. Crook, supra.
For the reason stated, the judgment against the defendant will be set aside, and the cause remanded to be proceeded with in accordance with this opinion, and the Superior Court will inquire and determine whether there has been such a breach of the State law on the part of defendant as will justify and uphold a sentence on the suspended judgment.
Remanded.