#### STATE v. ESTIE FORE.

(Filed 24 December, 1920.)

1. Intoxicating Liquor — Spirituous Liquor — Possession—Presumptions— Evidence.

Evidence that the defendant occupied a room in a city ten miles from his home, fitted up for receiving intoxicating liquor and keeping it for sale, and therein, at the time of his arrest, there was found in his possession more than a quart of whiskey, in several small bottles, and also a whiskey glass, a funnel, empty bottles and fruit jars, is, in the absence of explanation, sufficient to sustain a conviction of the offense of receiving liquor illegally and for an illegal purpose.

3. Same — Statutes—Congress—Volstead Act — Constitutional Law — Concurrent Powers.

The purpose of the Eighteenth Amendment to the Federal Constitution was to prevent the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof *745from tbe United States and tbe territories subject to tbe jurisdiction thereof for beverage purposes, and to give Congress and tbe several States “concurrent power” to enforce these provisions “by appropriate legislation” : 3eld, by giving Congress and tbe Legislatures of the different States “concurrent” powers, tbe latter may enact such laws for tbe accomplishment of tbe main purpose of tbe Eighteenth Federal Amendment as are not in conflict with tbe congressional legislation on tbe same subject-matter, but in addition thereto and coming within tbe police regulations of tbe State, and in tbe enforcement thereof; and our State statutes on tbe subject of tbe presumption that tbe possession of spirituous liquors, in certain quantities, is for tbe purpose of unlawful sale, is not in conflict with tbe Volstead Act of Congress, 41 U..S. Sts. at Large, and is a valid and enforcible enactment.

3. Same.

As to whether our statute upon tbe subject of receiving more than one quart of intoxicating liquor in fifteen days is in conflict with the Volstead Act, Quaeret

Appeal by defendant from Long, J., at tbe September Term, 1920, ■of Buktcombe.

Tbe defendant was convicted of receiving and keeping liquor on band for sale, and from tbe judgment upon such conviction appealed to tbis 'Court. There were four counts in tbe bill of indictment, tbe first charging. tbe transporting of liquor; second, tbe delivering of liquor in a quantity greater than one quart; third, tbe receipt of more than one quart of liquor during fifteen consecutive days; and .fourth, keeping liquor in bis possession for tbe purpose of sale.

“Before tbe impaneling of tbe jury, counsel for tbe defendant moved to dismiss tbe action, for that all laws upon tbe statute books of tbe State of North Carolina referring to tbe manufacture, sale, and transportation of intoxicating liquors were repealed when tbe Eighteenth Amendment to tbe Constitution of tbe United States went into effect, said date being 16 January, 1920, and tbis offense with which tbis defendant is charged having been committed since said date, and tbis court therefore being without jurisdiction.” Motion overruled, and defendant excepted.

Tbe State offered tbe following evidence:

W. H. Harris, a member of tbe police force of Asheville, testified: “That be bad known tbe defendant for about one year; that on tbe night of . August, 1920, be arrested tbe defendant at a boarding-house in tbe city of Asheville; that when be entered tbe room occupied by tbe defendant tbe defendant was on bis bed asleep; that be found there about four pints of whiskey, and some empty bottles, and. a funnel'; that there was also in said room an empty suitcase on tbe floor close to tbe bed occupied by tbe defendant; that there were some empty fruit jars in tbe room, but that there bad not been any whiskey in tbe jars; that they *746were all empty quart jars; that tbe whiskey was in a bureau drawer, also the empty bottles; that be knew of no sale of whiskey being made by the defendant; nor had he seen the defendant offer any whiskey for sale; that, the defendant was partially intoxicated at the time of the arrest; that the total amount of whiskey found in the room was about three and one-half pints, and two empty pint bottles; that the defendant was in his sleeping-room at the time of the arrest; that he smelled of the fruit jars, and that in his opinion there had been no whiskey in them.”

R. H. Luther testified: “I went to his room with Mr. Harris, when the arrest was made. We found- the whiskey contained in the bottles-offered in evidence, and saw six or eight empty bottles and six or eight fruit jars in the room; also a small whiskey glass and a funnel; the-fruit jars were at the foot of the bed in which the defendant was asleep.. The whiskey was in one of the drawers, which was about half-way open. The defendant was drunk or intoxicated when we found him on the bed. The defendant lives near Leicester, about ten miles from this rooming-house.”

At the conclusion of the evidence the defendant moved for judgment of nonsuit upon the ground that there was no evidence to support either-count in the indictment, which motion was overruled, and the defendant excepted.

The jury returned a verdict of guilty on the third and fourth counts,, and from the judgment pronounced thereon the defendant appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

George S. Reynolds for defendant.

AlleN, J.

The evidence is sufficient to sustain the verdict. The-defendant lived ten miles from Asheville, and he was occupying a room in a boarding-house in Asheville, fitted up for receiving liquor and keeping it for sale. At the time of his arrest he had more than a quart of' whiskey in his possession in several small bottles, a whiskey glass, and a funnel, and empty bottles and fruit jars were found in his room. In the absence of explanation the jury might reasonably and -legitimately infer from these circumstances that the defendant was receiving liquor illegally and for an illegal purpose.

The effect of the prohibition amendment and of the Yolstead Act oni State legislation is fully considered in the instructive and learned opinion-by Rugg, Chief Justice, of Massachusetts, in Commonwealth v. Nickerson, recently decided, from which we quote at length, preferring to do-so to presenting the thoughts and reasoning of the Court in our own, language.

*747Tbe defendant was convicted on tbe charge of selling liquor illegally in violation of a statute of tbe State, wbicb tbe defendant insisted waff superseded by tbe Yolstead Act.

Tbe Court says: “Tbe Eighteenth Amendment was proclaimed as-having been ratified, and thus became a part of tbe fundamental law of tbe land, on 29 January, 1919, 40 U. S. Sts. at Large, 1941. Its first two* sections, being tbe ones here pertinent, are in these words:

> “ 'SectioN 1. After one year from tbe ratification of this article, tbe manufacture, sale, or transportation of intoxicating liquors within, the-importation thereof into, or tbe exportation thereof from tbe United States and all territory subject to tbe jurisdiction thereof for beverage purposes are hereby prohibited.

> “ 'Sec. 2. Tbe Congress and tbe several States shall have concurrent-power to embrace this article by appropriate legislation.’

> “Congress, pursuant to tbe power conferred upon it by tbe second section of the Eighteenth Amendment 'to enforce this article by appropriate legislation,’ has enacted tbe National Prohibition Law, being act of 26 October, 1919, cb. 85, acts Sixty-sixth Congress, 41 U. S. Sts. at Large, 305, known as tbe Yolstead Act.”

> “By Title II, s. 1, of tbe Yolstead Act it is provided that, 'The word “liquor” or tbe phrase “intoxicating liquor” shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter and.wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes,’ with exceptions not here material. By s. 3 of the same title it is provided that ‘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 be liberally construed to the end and that the use of intoxicating liquor as a beverage may be prevented.’ By s. 29 the penalty for a sale of liquor in violation of Title II is for a first offense a fine of not more than one thousand dollars or imprisonment not exceeding six months, and for a second or subsequent offense a fine of not less than two hundred dollars, nor more than two thousand dollars, and imprisonment for not less than one month nor more than five years.”

Section 35 provides: “All provisions of law inconsistent with this act are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be construed á’s in addition to existing laws.”

*748Tbe Court then quotes from Rhode Island v. Palmer, 252 U. S., as follows: “ '6. Tbe first section of tbe amendment — tbe one embodying tbe prohibition — is operative throughout tbe entire territorial limits ■of tbe 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.

> “ 7. The second section of the amendment — the one declaring “The ''Congress and the several States shall have concurrent power to enforce ■this article by appropriate legislation” — does not enable Congress or the several States to defeat or thwart the prohibition, but only to enforce it by appropriate means.

> “ '8. The words “concurrent power” in that section do not mean joint ■power, or require that legislation thereunder by Congress to be effective ■shall be approved or sanctioned by the several States, or any of them, ■nor do they mean that the power to enforce is divided between Congress ■and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs.

> “ 'The power confined to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation, and interstate traffic, and is in no wise dependent on <or affected by action or inaction on the part of the several States, or any of them.’ By conclusion 10 the Yolstead Act is declared applicable indifferently to the disposal for beverage of liquors manufactured before •and after the Eighteenth Amendment became effective, and by eonclu•sion 11 the declaration of that act that liquors containing as much as ■one-half of one per cent of alcohol by volume and fit for use for beverage •shall be treated as intoxicating was held to be within the scope of the Eighteenth Amendment.”

Concluding that the Supreme Court of the United States has not given ■an authoritative definition of the words “concurrent power,” he dis- ■ cusses this question at length with full and interesting citation of authority.

> “This is the only instance to be found in the Constitution, or any of ’its amendments, where there is a definite declaration that both Congress ■•and the several States have 'concurrent power to enforce’ any constitutional mandate or power 'by appropriate legislation.’ Certain powers are reserved to the States. Article 1, section 8. Article X of the amend:ments. Certain powers are prohibited to the States, and certain other powers can be exercised by the States only by consent of Congress. .Article 1, section 10. But in the Eighteenth "Amendment alone is there *749express establishment of the existence of concurrent power in Congress and tbe several States to enforce by legislation its provisions.

“The words of the second section of the Eighteenth Amendment are specific to the point that ‘The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation/ This phrase is significantly different from that found in corresponding sections of Amendments XIII, XIV, and XV. In those three instances Congress alone is given power ‘to enforce’ ‘by appropriate legislation.’ Here the several States are joined with the Congress as depositories of concurrent legislative power. It is reasonable to presume that this change in phraseology was adopted understandingly, and imports an intention to effect a change in substance and in scope of the power. Slaughter House cases, 16 Wall., 36, 74. It is hardly likely that in an instrument of such transcendent importance as an amendment to the-Constitution, the conjoining of Congress and the separate States as severally possessors of legislative power for enforcement of prohibition-should under any circumstances be a barren grant or confer merely an-insubstantial shadow upon either. The difference between the phraseology of the Eighteenth Amendment and that of the Thirteenth, Fourteenth, and -Fifteenth Amendments in this particular, according to the-common and approved usage of language, expressed a purpose to repose in the States a substantial power capable of some measure of effective exercise -under all circumstances. The words of the amendment declare a complete possession of power by the States of which they cannot be deprived by Congress. The force and effect of the words of the Eighteenth Amendment, while possibly enlarging the permissible scope of' State legislation respecting importation and exportation of intoxicating • liquors, leaves open to State legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon Congress with its accompanying implications, whatever they may be.

> “Having regard only to the words of the Eighteenth Amendment, the Congress and the several States are placed upon an equality as to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress, if in direct conflict with State legislation, becomes manifest.”

> “The amendment does not require that the exercise of the power by Congress and by the States shall be coterminous, coextensive, and coincident. The power is concurrent, that is, it may be given different manifestations directed to the accomplishment of the same general purpose, provided they are not in immediate and hostile collision one with the-other. In instances of such collision the State legislation must yield.

> *750“We arc of opinion that the word 'concurrent’ in this connection •means a power continuously existing for efficacious ends to be exerted in •support of the main object of the amendment, and making contribution to the same general aim according to the needs of the State, even though 'Congress also has exerted the power reposed in it by the amendment by enacting enforcing legislation operative throughout the extent of its •territory, legislation by the States need not be identical with that of Congress. It cannot authorize that which is forbidden by Congress. But the States need not denounce every act committed within their boundaries which is included within the inhibition of the Yolstead Act, nor provide the same penalties therefor. It is conceivable also that a State may forbid, under penalty, acts not prohibited by the act of Congress. The concurrent power of the States may differ in means adopted, provided it is directed to the enforcement of the amendment. Legislation by the several States approximately designed to enforce the absolute prohibition declared by the Eighteenth Amendment is not void or inoperative simply because Congress in performance of the duty cast upon it by that amendment has defined and prohibited beverages, and has established regulations concerning them. State statutes, rationally adopted to putting into execution the inexorable mandate against the sale of intoxicating liquors for beverage contained in section 1 of the amendment by different definitions, regulations and penalties from those ■contained in the Yolstead Act, and not in conflict with the terms of the Yolstead Act, but in harmony therewith are valid. Existing laws of that character are not suspended or superseded by the act of Congress. The fact that Congress has enacted legislation covering in general the field of national prohibition does not exclude the operation of appropriate State legislation directed to the enforcement by different means of •prohibition within the territory of the State.

> “The power thus reserved to the States must be put forth in aid of the ■ enforcement and not for the obstruction of the dominant purpose of the . amendment.”

The Court then discusses the power of the State under the amendment to enact legislation dealing with intoxicating liquors assuming that the view expressed as to the meaning of “concurrent power” may not be correct, and says: “The general principle as to the right of the States to exercise the power of effective legislation concerning subjects over which Congress also has power was stated in these words (summarizing language of Mr. Justice Story in Houston v. Moore, 5 Wheat., 1, at 49), in Gilman v. Philadelphia, 3 Wall., 713, at 730: 'The States may exercise concurrent independent power in all cases but three: 1. Where the power is lodged exclusively in the Federal Constitution. 2. Where it is given to the United States and prohibited to the States. 3. Where *751from tbe nature and subjects of tbe power, it must necessarily be exercised by tbe National Government.’ ”

Then follows many illustrations from decided eases of tbe application of tbe principle tbat one may be guilty by the same act of a violation of a statute of tbe State and an act of Congress, and concludes:

> “In our opinion tbe irresistible conclusion from these decisions is tbat State legislation which in its practical operation is appropriate to enforce tbe chief aim of tbe Eighteenth Amendment, and to make it more completely operative in all its amplitude is not suspended, superseded, set aside, or rendered inapplicable in its denouncements by tbe Yolstead Act, in so far as not incompatible therewith or in contravention of its provisions.”

Tbe conclusions of the Court are satisfactory to us, and applying them to tbe facts in tbe record, we bold tbat tbe defendant has been properly convicted on tbe eount charging him with having liquor in bis possession for tbe purpose of sale, because the statute denouncing this as a crime is not in conflict with tbe amendment or tbe Yolstead Act, and on tbe contrary, is in aid of and carries out tbe purpose of both.

It is not so clear tbat tbe conviction on tbe count for receiving more than one quart of liquor in fifteen days can be sustained, as tbe statute under which this count is framed permits tbe possession of liquor in limited quantities for beverage purposes, which may conflict with tbe Yolstead Act, but it is not necessary to decide this question, as tbe verdict on tbe other count is sufficient to sustain tbe judgment. S. v. Coleman, 178 N. C., 760.

No error.