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.
*569It 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.
*570Tbe' 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.