after stating tbe case: Tbe defendant was charged with a violation of tbe act of 1913, it being chapter 44, entitled “An act to secure tbe enforcement of tbe laws against tbe sale and manufacture of intoxicating liquors,” ratified 3 March, 1913. Tbe act makes it unlawful for any person, firm, association, or corporation, other than druggists or medical depositories, duly licensed, “to have or keep in bis, their, or its possession, for tbe purpose of sale, any spirituous, vinous, or malt liquors,” and makes proof of any one of certain facts prima facie evidence of tbe violation of the act; and, among others, it is provided that “tbe possession of more than one gallon of spirituous liquors at any one time, whether in one or more places,” shall constitute such prima facie evidence of tbe fact that it is kept for sale in violation of tbe act.
Having clearly before us tbe nature of tbe particular charge against tbe defendant, tbe law alleged to have been violated and tbe proof offered in support of tbe charge, we are prepared now to consider tbe objection urged by tbe defendant’s counsel to tbe charge of tbe court.
Tbe jury were instructed that tbe fact of bis having in bis possession more than one gallon of tbe liquor made out a prima facie case against tbe defendant. If tbe court bad stopped here, and not qualified this instruction, it would have been correct; but it did not do so, but went beyond tbe terms of tbe statute and the law when it further charged that it then was tbe duty of tbe defendant “to go forward and satisfy tbe jury, by tbe greater weight of tbe evidence, that be did not have the liquor in bis possession for tbe purpose of sale.” In this further instruction we think there was error. Tbe defendant, as we have shown, is charged, under tbe act of 1913, with unlawfully having spirituous liquor in bis possession for tbe purpose of selling it, and nothing else, and proof of the possession of more than one gallon of such liquor is made prima facie evidence of *436the unlawful act, wbicb is, that it is held by him for the purpose of sale, an act forbidden by the general law. It is not made unlawful for a person to have more than one gallon of spirituous liquor in his' possession, but it is criminal to have possession of that quantity for the purpose of sale, and while the bare possession of so much may, in itself and as a fact, be innocent, it is yet made primen facie evidence of guilt under the statute, as in S. v. Barrett, 138 N. C., 630. But-it is only evidence, and while it has the added force or weight of being prima facie, the latter means no more than that it is sufficient for the jury to convict upon it, alone and unsupported, if no other proof is offered; but upon the whole evidence, whether consisting of the mere fact of possession or of additional facts, the jury -are not bouncl to convict, but simply may do so if they find, beyond a reasonable doubt, or are fully satisfied that the defendant is guilty. -Prima facie means at first; on the first. appearance; on the face of it; so far as can be judged by the first disclosure; presumably. These are the definitions of the law, as we learn from- the books. Black’s Dict. (1 Ed.), 539.
The jury are no more required to convict upon a prima facie case than they are to acquit because of the presumption of innocence. They must judge themselves as to the force of the testimony and its sufficiency to produce in their minds a conviction of guilt. In civil cases the rule is the same (with a difference in the quantum), 'as prima facie evidence only carries the case to the jury, and does not entitle the party in whose favor it has been offered to a verdict as matter of right.
Referring to this rulé, as applied to civil cases, and the presumption, or prima facie case, arising under the maxim, res ipsa loquitur, which presents one of the strongest of such cas.es, the Supreme Court of the United States has recently said: “In our -opinion, res ipsa loqmtwr means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking; but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily *437tbat tbey require it; tbat tbey make a ease to be decided by tbe jury, not tbat tbey forestall tbe verdict. Res ipsa loquitur, where it applies, does not convert tbe defendant’s general issue into an affirmative defense. When all tbe evidence is in, tbe question for tbe jury is, wbetber tbe preponderance is witb tbe plaintiff. Sueb, we tbink, is tbe view generally taken of tbe. matter in well considered judicial opinions.” Sweeney v. Erving, 228 U. S., 233. Tbe Court cites witb approval tbe numerous cases decided by tbis Court on tbe same subject. Womble v. Grocery Co., 135 N. C., 474; Stewart v. Carpet Co., 138 N. C., 60; Lyles v. Carbonating Co., 140 N. C., 25; Ross v. Cotton Mills, ibid., 115; Board of Education v. Makely, 139 N. C., 31; Overcash v. Electric Co., 144 N. C., 572; Winslow v. Hardwood Co., 147 N. C., 275.
Justice Hoke says, for tbe Court, in Furniture Co. v. Express Co., 144 N. C., at p. 644: “It may be well to note bere tbat, in using tbe terms prima facie and presumptive, tbe terms do not import tbat tbe burden of tbe issue is changed, but tbat on tbe facts indicated tbe plaintiff is entitled to have bis cause submitted to tbe jury under a proper charge as to its existence or nonexistence and tbe effect of any presumption which may attach, as indicated in tbe eases,” citing several of tbe cases to which we have already referred.
It may, therefore, be taken as settled in tbis Court, at least, and we believe tbe same may be said of most, if not all, of tbe courts, tbat prima facie or presumptive evidence does not, of itself, establish tbe fact or facts upon which tbe verdict or judgment must rest, nor does it shift tbe burden of tbe issue, which always remains witb him who bolds, tbe affirmative. It is no more than sufficient evidence to establish tbe vital facts without other proof, if it satisfies tbe jury. Tbe other party may'be required to offer some evidence in order to prevent an adverse verdict, or to take tbe chances of -losing tbe issue if be does not, but it does not conclude him or forestall tbe verdict. He may offer evidence, if be chooses, or be may rely alone upon tbe facts raising tbe prima facie case against him, and be has tbe
*438right 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 case 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 cases, and it applies with greater force to criminal cases, where the defendant has the benefit of the doctrines of reasonable doubt and the pre-nsumption of innocence. How can we say that prima facie evi-1/denee, or that which is apparently sufficient, excludes all reason-11 able doubt of guilt, and by its own force overcomes the pre-I sumption of innocence? The bare statement of the proposition is sufficient to show its fallacy. It would destroy the presumption of innocence and take away the protection of the other rule as to reasonable doubt. The presumption of innocence attends the accused throughout the trial and has relation to every essential fact that must be established in order to prove his guilt beyond a reasonable doubt. Kirby v. U. S., 174 U. S., 47. He is not required to show his innocence; the State must prove his guilt. No valid conviction can be had in law which is based solely upon prima facie evidence as conclusive and foreclosing the verdict, or which even casts upon the defendant the burden of showing his innocence by the greater weight of the evidence. We know of no such rule, and it finds no warrant in the language of the statute. The decisions are all the other way, when rightly interpreted. In a case very similar to this one, the Court held that the jury must consider all the circumstances, whether introduced by the State or the accused, in connection with the evidence proving the possession of the liquor, taking into account as well the presumption of the defendant’s innocence. S. v. Cunningham, 25 Conn., 195.
But directly to the point, and one which exactly fits this case, is the case of People v. Cannon, 139 N. Y., 32, where the Court thus sets forth with great force and clearness the limitations upon the power of the Legislature to create such presumptions, *439tbeir extent and scope, and tbe rights of the defendant, notwithstanding them: “It cannot be disputed that the courts of this and other States are committed to the general principle that even in criminal prosecutions the Legislature may with some limitations enact that when certain facts have been proved, they shall be prima, facie evidence of the existence of the main fact in question. (See cases cited in 103 N. Y., 143, supra.) The limitations are that the fact upon which the- presumption is to rest must have*some fair relation to, or natural connection with, the main fact. The inference of the existence of the main fact because of the existence of the fact actually proved must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary, and the accused must have in each case a fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence and given such weight to the presumption as to it shall seem proper. A provision of this kind does not take away or impair the right of trial by jury. It does not in reality and finally change the burden of proof. The people must at all times sustain the burden of proving the guilt of the accused beyond a reasonable doubt. It, in substance, enacts that, certain facts being proved, the jury may regard them, if believed, as sufficient to convict, in the absence of explanation or contradiction. Even in that case the court could not legally direct a conviction. It cannot do so in any criminal case. That is solely for the jury, and it could have the right, after a survey of the whole case, to refuse to convict unless satisfied beyond a reasonable doubt of the guilt of the accused, even though the statutory prima facie evidence were uncontradicted. The case of Commonwealth v. Williams (6 Gray, 1) supports this view.”
In Board of Excise v. Merchant, 103 N. Y., 143, the Court in dealing with this very question says that by the presumption or pririia facie case arising by statute from possession of the liquor, “the burden of proof is not even really changed,” and then adds that the case must'be submitted to the jury, notwithstanding the presumption, upon the evidence, whatever it is, *440“with the burden still resting upon the prosecution to establish the guilt,” the offense in that case being an unlawful sale of liquor.
It is also stated as law in Black on Intoxicating Liquors that “the Legislature has undoubtedly a very extensive power in respect to fixing or modifying the rules of evidence to be applied by the courts. The exercise of this power, however, in relation to criminal proceedings, is subject to certain important limitations, among which are the following: (1) The Legislature, in enacting rules of evidence, must not usurp judicial functions; (2) such rules must not be of the nature of ex post facto laws, or illegally retroactive in their operation; (3) they must not deprive the accused of his constitutional right to be confronted with the witnesses against him; (4) the Legislature cannot compel a defendant to furnish evidence against himself; (5) nor deprive him of his right to a trial by jury; (6) it would be unlawful to make any given fact or state of facts conclusive evidence of guilt, in negation of the common-law presumption of innocence. The rules of evidence in prosecutions under the liquor laws have frequently been the subject of legislative attention, and the changes made have sometimes shown a wide departure from common-law principles. All such statutes — which for the most part are designed to facilitate convictions by admitting presumptive or indirect proof of certain facts — must be brought to the test of constitutional principles such as those above enumerated. If found to be in violation thereof, they are not defensible on any ground of public policy or the welfare of the community. As a rule, however, these acts have been so framed as to escape constitutional objection. Thus, a provision that, in prosecutions for the common selling of intoxicating liquors, delivery in or from any building or place other than a dwelling-house shall be deemed prima facie evidence of a sale, is constitutional and valid. This neither conclusively determines the guilt or innocence of the party who is accused nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried. And the same is true of a statute providing that, whenever an unlawful sale of liquor is alleged, and *441a delivery proved, it shall not be necessary to prove a payment, but such delivery shall be sufficient evidence of sale. So if a law -enacts that where a person is seen to drink intoxicating liquor on the premises' of one who has simply a license to sell liquor for consumption off the premises, it shall be prima facie evidence that the liquor was sold by the occupant of the premises with the intent that it should be drunk thereon.”
This Court has fully sustained this principle and approved these authorities by citing and relying upon them in S. v. Barrett, 138 N. C., 630. It was held in Barrett’s case that notwithstanding the statute expressly, declares that the possession of more than a -gallon of spirituous liquor shall be prima facie evidence of the purpose to sell it, it is, at last and in its essence, but evidence of guilt, and not conclusive or determinative of defendant’s guilt even by itself and unexplained. It further holds that there is no shifting of the burden to the defendant,'but it rests upon the State to establish the accusation of the bill of indictment beyond a reasonable doubt.
It will be observed that, in our case, the court placed the entire burden upon the defendant to show his innocence, for the instruction to which exception was taken is that the statute requires him to satisfy the jury by the greater weight of the evidence that in fact he did not have the liquor in his possession for the purpose of sale, whereas, according to all the authorities, and especially in Barrett’s case, the burden is on 'the State throughout the trial. The defendant profited little or nothing by the subsequent charge that, .if the jury had a- reasonable doubt about the facts recited by the court, being those which the defendant must prove by the greater weight of the evidence, they should acquit. This, to say the least of it, was very confusing, if not contradictory. "What advantage did he gain by the charge as to reasonable doubt, after the jury had been told that there was a presumption against him and he must “satisfy them by the greater weight of evidence” of his innocence? It deprived him of the presumption of innocence, and practically eliminated the benefit of the doctrine as to reasonable doubt by so weakening it that it amounted to nothing; and all of this *442was done under a statute (act o£ 1913) wbicb merely establishes a prima facie case for the State, sufficient,' it is true, to carry the case to tbe jury, with tbe right to convict, but. leaving in full force the doctrine of reasonable doubt and also the presumption.of innocence; for a man, even under our present laws, may have more than a gallon of liquor in his possession for a perfectly lawful and innocent purpose. It is not the possession that is unlawful, but the forbidden purpose for which it is held.
The Attorney-General admitted that there was error in the charge, under.the decisions in S. v. Barrett, 138 N. C., 645; S. v. McIntyre, 139 N. C., 600; S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654, and S. v. Mostella, 159 N. C., 461; but he argued that what defendant did and proposed to do with the liquor, in law, constituted a sale, by his own admission on the stand. "We do not assent to this position. It was lawful to buy the liquor in Virginia, and if he made the purchase there, acting solely and in good faith as agent for the other persons, who sent him there for the purpose of buying it for them, he would not be guilty of selling liquor if he had delivered it. It was so decided in S. v. Whisenant, 149 N. C., 515, as we think, where it appeared that the defendant, as agent, had ordered some whiskey for the prosecuting -witness, which was to be shipped from another State, where our laws did not operate, and when it arrived, he delivered it to the witness. It was held, if defendant acted bona fide, that he was not guilty, although he ordered the whiskey as agent and received the money for it; and it was further said to be a transaction of interstate commerce. - Under either view, defendant could buy liquor for another, as his agent, if he acted in good faith and was not concealing, under the guise of an agency, a transaction which was in fact a sale. If liquor can thus be ordered through an agent from another State, without violating the law, if done bona fide, why cannot the agent go into that State in person and buy it, where it can be lawfully sold, and then transport and deliver it himself? An agent may also receive at least a fair compensation for his services, provided the money is paid to him strictly as such, and not as any part of the price for the liquor. His *443intent and tbe true nature of tbe transaction were questions for tbe jury, under a proper charge from tbe court. S. v. Allen, 161 N. C., 226, supports tbis view directly, and tbe facts were mucb libe those in tbis case. S. v. Johnson, 139 N. C., 641, is not in point, for there tbe jury found that tbe prosecuting witness, Brown, bad paid tbe price of tbe liquor, which was fixed by tbe defendant beforehand. There was no agency. He was not buying for another, but selling to him.
Nor is tbe defendant indictable under Revisal, sec. 3534, as be procured tbe liquor in Virginia, where it was lawful to sell it. S. v. Smith, 117 N. C., 809; S. v. Burchfield, 149 N. C., 537. Tbe case of S. v. Smith, just cited, seems to be decisive of tbe point here raised, and, we think, is fatal to tbe judge’s charge. It is there held that it is no more unlawful to buy through one’s agent than to buy- directly himself, and tbe agent, when be buys lawfully, is just as innocent as bis principal would be if be bad bought himself, tbe real question being whether there was a bona fide agency or a sale in disguise. It is a question of intent, without regard to tbe fair appearance of tbe transaction. What is it, in fact or in substance and legal effect, is tbe question; and in tbis view, which is tbe true one, we are forcibly reminded of what Justice Ruffin observed in S. v. Gilbert, 87 N. C., 527, with'regard to an indictment for carrying a concealed weapon. He said tbe offense of which tbe defendant is charged forms no exception to tbe general rule, that to constitute a crime there must be a criminal intent, and tbe Court perceived no good reason why it should be. “Tbe law is a wholesome one, and its constant enforcement according to its true spirit and intention meets tbe desires and expectations of every well disposed and peaceable citizen; but some care should be used, lest by pushing its requirements too far it may result in a reaction of sentiment against it.”
If it be said that defendant is guilty under Laws -1911, cb. 133, known as tbe “Club Act,” it is quite enough to say that be was not indicted, nor was be convicted, under that law, and be has not bad any opportunity to defend himself against any such charge. Tbe Attorney-General concedes that be is charged only *444with violating tbe act of 1913, and tbe judge below so expressly charged tbe jury. Besides, if tbe indictment bad been framed upon tbe act of 1911, cb. 133, there is no fact made presumptive or prima facie evidence by it, and tbe charge would, if possible, be more erroneous than if confined to tbe act of 1913, as it should be. It may be, as argued by .counsel, that upon tbe evidence in this case tbe jury would be warranted, under proper instructions, in convicting tbe defendant of tbe offense created by tbe act of 1911, cb. 133, if be bad been charged with a violation of that act. We need not give any opinion on that question, it not being raised on this record, as there is no allegation upon which such a conviction could be based, and no reference whatever to tbe act. Tbe allegations and proof must correspond. It would be contrary to all rules of procedure and violative of bis constitutional right to charge him with tbe commission of one crime and convict him of another and very different one. He is entitled to be informed of tbe accusation against him and to be tried accordingly. S. v. Ray, 92 N. C., 810; S. v. Sloan, 67 N. C., 357; S. v. Lewis, 93 N. C., 581; Clark’s Cr. Proc., 150.
We think that there is evidence sufficient to sustain a conviction upon tbe present indictment, but tbe jury must be so guided by tbe court as to find tbe facts essential to establish bis guilt.
Tbe question here is as to tbe bonw fides of tbe defendant. Was be really acting solely in tbe capacity of agent when be purchased tbe liquor, or was that a mere pretense, under cover of which be was violating tbe law by selling liquor, or having it for sale ? Tbe case should have been submitted to tbe jury in this aspect, with tbe burden on tbe State to make out its case to their full satisfaction. If defendant was acting honestly and not deceptively,' be bad tbe right to buy liquor in Virginia, where it was lawful to sell to him, and to return to this State' with it for tbe purpose of making delivery to tbe parties for whom be .bought it, and if this was all, it would not constitute a sale of tbe liquor or tbe possession of it with tbe unlawful purpose to sell, within tbe meaning of tbe act of 1913. S. v. Allen, 161 N. C., 226. Tbe possession of tbe liquor, though, would carry tbe case to tbe jury.
*445Tbe rule as to tbe legal effect or significance o£ prima facie evidence bas long prevailed in tbis and other courts, and we are not aware of any decision of tbis Court wbicb bas stated it or bas applied it otherwise than is done in tbis case.
There was error in tbe charge of tbe court in tbe respect pointed out, for wbicb another trial is ordered.
New trial.