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 *571to 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.”
*572Tbe 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 *573seen. 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.
*574Tbe 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.