concurs in the body of the opinion of the court, but dissents from the conclusion. In this cause the defendant 'having been convicted by a jury, at July Criminal Term, 1921, of the Superior Court of Robeson, of the crime of assault with a deadly weapon, with intent to kill,-by the consent of the solicitor and the defendant an entry was made in the cause as follows: “Prayer for judgment continued by consent upon payment of costs; defendant to appear at each criminal term of this court for two years and show that he has been of good behavior and not violated the law in any respect!’
At the very next term of the court, in November, 1921, upon prayer of judgment by the solicitor and upon statement 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 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 costs. At this term of the court the defendant was called to appear and show cause that he had been of good behavior. It appears to the court, and the court finds it a fact, that this defendant had manufactured and had in his possession as much as 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. Thereupon the court, *822on motion of the solicitor, S. B. JIaeLean, of this district, sentenced the said Nasby Hardin to.be confined in the county jail of Eobeson County for a term of 12 months, to be worked on the public roads of said county.”
Upon the said finding of facts by the judge, the only question that can arise is whether the defendant has kept the conditions upon which the sentence was suspended at the previous term, that is, has he been “of good behavior and not violated the law in any respect.”
The Constitution of the United States provides as follows, Article YI (2) : “This Constitution, and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution and laws of any state to the contrary notwithstanding.” This is an injunction upon every state judge which in his oath of office he is sworn to obey as the highest law, any state constitution or law to the contrary notwithstanding.
The Eighteenth Amendment to the United States Constitution -provides : “After one year from the ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States, and all territory subject to the jurisdiction thereof, for beverage purposes is hereby prohibited.” Section 2 of that article provides: “The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation”; and the Yolstead Act, passed in pursuance of that amendment, in section 3, makes it a criminal offense to manufacture intoxicating liquors, and defines wine to be intoxicating liquor, and provides further that in order to be a lawful manufacture there must be a permit from the Eevenue Department of the Government.
As the Constitution of the United States, and the laws made in pursuance thereof, are the highest law of this land, the trial judge could not have held that these facts found by him were not a breach of the conditions upon which judgment had been suspended, and that the defendant had been “of good behavior and had not violated the law in cCny respect." He had violated the highest law known to this Country, the Constitution of the United States, and the laws made in pursuance thereof. It was suggested in the argument here by the defendant’s counsel that the defendant might have procured a permit from the United States Eevenue Department to make this wine, but there is no such suggestion in the evidence, or in the record, and being a matter in defense, it cannot be assumed. The burden was upon the defendant to allege and to prove the exception that would take him from under the statute which denounces such conduct. This is an elementary and uncontradicted principle of criminal law.
*823It was further suggested by counsel that the judge did not find as a fact that the defendant had violated the law, but when the court found that the defendant “had manufactured and had in his possession as much as 150 gallons of wine; that he had bought grapes in Bladen County and numerous persons had drunken of said wine and had been seen coming from his place intoxicated,” he found him guilty of the acts denounced by the law as a crime. It was unnecessary for the judge to give a title to the offense or to add more than this statement of acts which the defendant had committed and which were violations of law.
It was suggested that this Court does not execute the laws of the United States, but the contract of the defendant upon which this judgment was suspended was that he should not violate the law in any respect, and if there had been a State statute expressly authorizing the defendant to manufacture wine and buy grapes and sell the wine, it would have been a nullity in view of the United States Constitution, Art. VI, sec. 2, that the Constitution and the laws of the United States in pursuance thereof “shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution and laws of any state to the contrary notwithstanding.”
It should be noted that the defendant is not bn trial for the manufacture and sale of wine, but had already been convicted by a jury for an assault with- intent to kill. That verdict stands. Judgment thereon was simply suspended upon a contract that he should not violate the law “in any respect,” and a breach of the law, whether it is municipal, State, or Federal, is a violation of the law, and of the obligation “of good behavior.” It is not required that the breach of the law shall be in any one particular respect. It is true that the State, except in a few cases, does not enforce the Federal laws, but when the Eighteenth Amendment forbids doing the things which the defendant has done, it strikes out any state statute, or any proviso in a state statute, if there had been any, which would permit such things to be done, and they become nonexistent in the state statute.
It was contended by the defendant that C. S., 3367, permits wine and cider to be manufactured from grapes, berries, fruits, etc., but it must be noted: (1) That this proviso was enacted long before the ratification of the Eighteenth Amendment, and the enactment of the Volstead Act has had the effect of striking out the permission given by that proviso just as the Nineteenth Amendment struck the word “male” out of every state constitution as a qualification for voting. And, besides, C. S., 3378, a later enactment, forbids in any manner “handling spirituous, vinous, or malt liquors in this State”; and C. S., 3379 (2) makes it prima facie evidence of violation of law to possess more than three gallons of spirituous liquors at any time. That section, without that *824proviso, absolutely forbids any one “to manufacture, or in any manner make or sell, or otherwise dispose of for gain, any spirituous, vinous, fermented, or malt liquors or intoxicating bitters within the State of North Carolina”; and as the superior law has stricken out that proviso, even if the defendant were on trial in a state court for this offense, he would be guilty, for the proviso cannot possibly exempt him. To do that would be to hold that the State act can nullify the Federal Constitution and the laws enacted in pursuance thereof; (3) even if the State could thus nullify the provisions of the Federal amendment and statute, still it would have been incumbent upon the defendant, if on trial, to allege and to set up the fact that this wine was manufactured by him, and that it was not drunk (in the language of the proviso itself) “upon the premises.” Our statute, C. S., 3368, as well as the Yolstead Act, both prescribe that wine is an intoxicating liquor.
I concur in the opinion of the Court that the action of the recorder in finding the defendant not guilty is no estoppel upon the action of the Superior Court putting in operation a suspended judgment, and which cannot be interfered with by judgment in the recorder’s court. S. v. Greer, 173 N. C., 759, which, besides, had no jurisdiction. S. v. Hicks, 179 N. C., 733.
If a man commits a homicide it may be that it was done in the heat of passion or to avenge a fancied or real wrong done him; if he commits larceny, it may be done under the strong influence of hunger of himself or his wife and children; if he commits rape, it may be under the influence of passion; and so of many offenses against the law there may be found more or less extenuating circumstances; but that cannot be said of this offense. To violate the law in this respect the man does not act from passion or strong impulse, or any necessity. He proceeds upon the most sordid basis, and deliberately, with preparation and secrecy, violates the law of his Country, for the sordid purpose of gain. Neither is this a slight offense. It comes as near treason as any in the calendar, for it sets at defiance the solemn enactment expressing the highest and most deliberate will of the supreme power of this Country. It was not enacted in haste, but after nearly a century of discussion and debate. It was considered of sufficient importance to the public welfare 'to be enacted by a two-thirds vote in each House of Congress, and was then ratified by the Legislatures of 46 out of the 48 states in this Union. It was enacted to lessen poverty and crime and other matters detrimental to the public welfare. Every voter, as well as every office holder, has sworn to maintain that provision as the highest law between the two great oceans. Every state judge has sworn to support such provision, “the constitution and laws of any state to the contrary notwithstanding.” The learned judge who tried this case was acting in the performance of *825Tlís duty in calling down upon the head of this defendant punishment for the high crime of which he had been convicted and judgment on which, at his request, had been suspended upon a pledge that for two .years this defendant would not violate the law in any respect upon penalty of the suspended judgment being put in force.
Judge Kerr having found the facts above set out, properly held that the defendant had not kept his obligation “not to violate the law in any respect ” for he had violated the highest law, which even an express State statute could, not nullify — much less could a proviso as to facts unalleged and unproven do so, and the judge did his duty in revoking the suspension of the' judgment when the defendant had so speedily broken the conditions upon which it had been suspended.
It was once an accepted saying that “the King’s writ does not run in -Connaught” — a wild, lawless province in the west of Ireland. But the Constitution and laws of the United States are as much authority in North Carolina as anywhere else throughout the Union. The judge having found that the defendant had “bought grapes in another county, had manufactured as much as 150 gallons of wine, that numerous men had drunken of this wine, and had been seen coming from defendant’s place intoxicated,” if it was error for the judge in this case to hold that the defendant had broken his obligation (on which the judgment against him had been suspended) “not to violate the law in any respect,” then the laws of the United States, set out in the Yolstead Act, do not “run in North Carolina,” and it would not be “a violation of law in any respect” for a great corporation to buy grapes all over the State, manufacture many thousands of gallons of wine, that numerous men should drink of that wine and be seen coming from their factory intoxicated. The sole difference is that here the defendant, already convicted of a serious crime with a judgment suspended on condition he shall be of .good behavior and “not violate the law in any respect” has manufactured as much as 150 gallons — how much more than that does not appear.