#### STATE v. J. A. CAMPBELL.

(Filed 21 December, 1921.)

1. Constitutional Law — Spirituous Liquors — Intoxicating Liquors — Criminal Law.

Tbe IVth and Vtb Amendments to tbe Federal Constitution are limitations upon tbe Federal Government and do not affect tbe validity of C. S., 3385, making unlawful tbe possession of more than one quart of spirituous liquor, or of C. S., 3384, making tbe carrying and delivery thereof unlawful.

a. Intoxicating Liquors — Spirituous Liquors — Statutes — Possession — Prima Pacie Case — Instructions—Criminal Law.

Where tbe judge has withdrawn from tbe consideration of tbe jury tbe question of prima facie guilt of violating tbe statute from tbe possession of more than one gallon of spirituous liquor, C. S., 3379, a conviction under C. S., 3385, in having more than one quart thereof in possession, will be sustained when supported by competent evidence.

3. Intoxicating Liquors- — Spirituous Liquors — Criminal Law — Warrant for Arrest — Statutes.

Where tbe defendant has been arrested for violating our prohibition law, and at bis own request be is not searched, but voluntarily produces five pints of spirituous liquor concealed in different places on bis person, before the committing magistrate, tbe question of search and seizure without a warrant and the Federal constitutional question predicated thereon does not arise; and he may be convicted under C. S., 3385, 3384, by the provisions of C. S., 4548, relating to an arrest without a warrant for offenses committed in tbe presence of tbe officer, etc.

Hoke and Stacy, JJ., concur in result; Adams, 3\, did not sit in tbe case.

Appeal by defendant from Adams, J., at tbe July Term, 1921, of Buncombe.

Tbe defendant was convicted of having in bis possession spirituous liquors for tbe purpose of sale. He was arrested as be was walking on Cburcb Street in Asheville by officers who bad received information that be bad liquor in bis possession for sale. He was not searched by them, and be requested that they should not do so. They put him in an automobile, and took him to tbe sheriff’s office, where tbe defendant voluntarily took out of bis several pockets 5 pints of corn whiskey, which were later introduced in evidence on bis trial. Officer McLean testified that be told tbe defendant that be bad a search warrant for bis person, thereupon tbe defendant said: “All right, but don’t do it here.” It appears that tbe search warrant was what officer Wells called an “alias John Doe warrant,” which bad been obtained that morning. Tbe warrant was not used at all, except as above stated, and when carried to tbe sheriff’s office tbe defendant voluntarily took tbe whiskey out of bis pockets.

*912Tbe defendant was found guilty by tbe jury, and tbe judge being satisfied from tbe testimony of tbe witnesses, wbo were examined after tbe verdict, stated in tbe judgment: “Tbe defendant bas heretofore been convicted for illegal sale of spirituous liquor and fined, and it appearing from tbe testimony of these witnesses that tbe record of tbe defendant for 'dealing in liquor is bad, it is adjudged that tbe defendant be confined in jail and assigned to work on tbe public roads of Buncombe County for tbe term of two years, not to wear felon’s stripes.” Appeal by defendant.

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

Reynolds, Reynolds & Howell for defendant.

Olaeic, C. J.

C. S., 3379, provides: “It is unlawful for any person, firm, association, or corporation, by whatever name called, to have or keep in possession, for tbe purposes of sale, any spirituous, vinous, or malt liquors.” There was ample evidence in this case submitted to tbe jury which justified tbe verdict that tbe defendant bad liquor in bis possession for tbe purpose of sale.

He bad it in bis possession concealed, and was going from tbe direction of bis borne when taken to tbe sheriff’s office, be voluntarily produced 5 pints of whiskey from as many or more pockets, and be offered no evidence tending to rebut tbe inference that be bad it for an illegal purpose, for be could not conceivably intend to drink it himself.

It is true that C. S., 3379, makes the possession of more than one gallon of spirituous liquors at any one time prima facie evidence of violation of that statute, but tbe court did not charge that there was such prima facie evidence, but tbe contrary. C. S., 3385, makes it unlawful for any person, firm, or corporation at any one time . . . to receive at a point within this State for bis use, or for tbe use of any person, firm, or corporation, or for any other purpose, any spirituous or vinous liquors, or intoxicating bitters in a quantity greater than one quart, or any malt liquors in a quantity greater than 5 gallons; and 0. S., 3384, makes it unlawful for any person to carry or to deliver in any manner or by any means whatever, for hire or otherwise, any spirituous or vinous liquors in a quantity greater than one quart. These two sections have been held valid in numerous decisions, which are cited thereunder in tbe Consolidated Statutes.

Tbe defendant moved for a return of tbe property under tbe authority of Amos v. U. S., 41 Supreme Court Reporter, 266, and that all evidence based on possession of tbe liquor be stricken out by virtue of tbe authority of that case, and tbe Fourth and Fifth Amendments to tbe U. S. *913Constitution. But it bas been uniformly beld that tbe first ten amendments to tbe U. S. Constitution impose limitations only-upon tbe Federal Government and not upon tbe states. 4 Michie Encyc., U. S. Supreme Court, 139, and cases there cited from Barron v. Baltimore, 7 Pet., 250, down to Barrington v. Missouri, 205 U. S., 486, and there are other cases since.

Tbe same ruling bas been often made by this Court. S. v. Patterson, 134 N. C., 611, and cases there cited; S. v. Blake, 157 N. C., 611, and many other cases.

In Burdeau v. McDowell, 41 Supreme Court Reporter, 574, the U. S. Supreme Court beld that tbe Eighth'Amendment applies only to governmental action, and however illegal tbe seizure of private papers by a private person or corporation may be, they are admissible in evidence against tbe defendant. Tbe defendant contends, however, that in a still more recent case, U. S. v. Yuginovichi, Advance Opinions, U. S. Supreme Court (65 L. Ed.), 679, it bas been beld that tbe existing penal statutes as to intoxicating liquors have been repealed by tbe Eighteenth Amendment. But an examination of that opinion shows that tbe bold-ing is that tbe Eighteenth Amendment and tbe National Prohibition Act since “repeal all prior laws only to tbe extent of tbe penalties against tbe manufacture and sale of liquor under tbe revenue laws, since they are inconsistent with tbe amendment, which now makes tbe manufacture and sale of liquor illegal.”

Besides, there was no illegal search, and S. v. Fowler, 172 N. C., 905, is directly in point, which beld that articles illegally obtained from tbe prisoner are not required to be returned to tbe prisoner if evidential. Tbe subject is fully discussed in that very able and clear opinion by Walker, J., to which we could add nothing.

It bas always been beld in this State, as stated in Best on Evidence, 283, that though a person under duress confesses to have stolen goods and deposited them in a certain place, although tbe confession of tbe theft will be rejected, yet bis statement where tbe goods were deposited will be received, if they are found there. S. v. Thompson, 161 N. C., 241. To tbe same purport is tbe reasoning and citations in S. v. Neville, 157 N. C., 591.

Tbe defendant, however, seems to place bis chief emphasis upon tbe allegation that tbe defendant was arrested without a legal warrant, and therefore that bis subsequent voluntary act in making a disclosure voluntarily of the liquor he was carrying on bis person was under duress, and that the liquor should have been returned to him, and that fact should have been struck out as evidence. He relies upon tbe above decisions from tbe IT. S. Supreme Court, and contends that tbe provision in our *914Constitution, Art. I, sec. 15, prohibiting general search warrants being similar, that our -own precedents should be overruled.

Whatever has been the purport of the U. S. decisions, above quoted, in the enforcement of the Fourth and Fifth Amendments to the U. S. Constitution, the construction placed by our own courts uniformly upon our own police regulations must govern us, and we have seen no reasoning which will justify us in overruling them.

In this case there was no search and seizure, and the arrest of the defendant was valid, C. S., 4548, and the evidence of the whiskey being found on his person is competent. In S. v. McNinch, 90 N. C., 699, Smith, G. J., says: “In making an arrest upon personal observation and without a warrant the officer will be excused, though no offense has been perpetrated, if the circumstances are such as to reasonably warrant the belief that it had been.” S. v. McNinch, supra, was for assault and battery.

In a much later case, Brewer v. Wynne, 163 N. C., 322, Hoke, J., in a well reasoned opinion, with citation of apposite authorities, held that when there is an immoral and indecent show taking place in the presence of officers, or where the performance of the act is imminent, or immediate interference is required to prevent it, officers “may arrest, without warrant, any and all persons who aid and assist in such plays and shows whenever, under all the facts as they reasonably appear to them, such course is necessary for the proper and effective performance of their official duty. This, we think, presents the correct interpretation of the statutory provisions controlling the matter, and the position is in accord with our cases dealing generally with the subject, as in Martin v. Houck, 141 N. C., 317; Sossaman v. Cruse, 133 N. C., 470; S. v. Campbell, 107 N. C., 948-953; S. v. Sigman, 106 N. C., 728; S. v. McNinch, 90 N. C., 695; Neal v. Joyner, 89 N. C., 287.”

In 3 Cyc., 886, it is said that where “An offense is committed in the presence or view of an officer, within the meaning of the rule, authorizing .an arrest without a warrant, when the officer sees it, although at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof, or the offense is continuing, or has not been consummated at the time the arrest is made.” In the case at bar the officers had information, which proved to be correct, that the defendant was carrying on his person, concealed, a quantity of liquor in violation of the provisions of the Consolidated Statutes above quoted. The offense was continuing, and the sale had not been consummated at the time the arrest was made. In many cases, unless an arrest is made under these circumstances, the criminal would escape or the crime be committed before the officer could make affidavit and obtain a warrant. For in*915stance, if the officers had information, which was reliable, that one was carrying a concealed weapon, or was on his way to commit an assault with it, surely it would be their duty to arrest the offender though our statute and our decisions require that in such case they should at once take him before a judicial officer and procure a warrant and institute a judicial investigation.

In S. v. Grant, 76 Mo., 236, quoted in the note to Cyc., supra, where a person had stolen butter from an express office, and had carried it several hundred yards when apprehended, the Court held that the larceny might be considered as still continuing so as to authorize his arrest by a police officer. Such arrest is valid,, if there was reasonable ground for the action of the officer. To this effect are many cases cited in the notes to 3 Cyc., 887. Among them, Ex parte Morrill, 35 Fed., 267, where it is said: “At common law, a peace officer might arrest, without warrant, on reasonable grounds of suspicion; if the facts and circumstances which furnish such grounds of suspicion amount to probable cause under the Constitution, which is such cause as will constitute a defense to an action for false imprisonment or malicious prosecutions.” This seems to us a clear definition of the duties and liability of an officer to arrest under circumstances such as in this case, though of course under our statute it is the duty of the officer at once to take the prisoner to a judicial officer to procure a warrant, and investigation. O. S., 4548.

In O'Connor v. Bucklin, 59 N. H., 589, the general rule is thus stated: “An officer, having in his legal custody a'prisoner arrested for violation of the criminal law, may make such sufficient search of his person to ascertain if he has money or other articles of value, by means of which, if left in his possession, he might obtain tools, implements, or weapons with which to effect his escape. If such are found, the officer may take and hold them until they can be safely returned, or otherwise properly disposed of, if in good faith he believes such course necessary for his own, or the public safety, or the safe keeping of the prisoner.” It is further held in that case that an officer, without warrant, may in good faith and for proper purpose make an arrest upon such acts as show a reasonable ground therefor.

The Eighteenth Amendment to the U. S. Constitution and the Federal statutes for the better execution thereof have not repealed the State prohibition legislation except where the latter conflicts with the former. The State legislation, if it is merely more general or more effective than the Federal provisions, is in nowise restricted thereby. The Eighteenth Amendment itself provides that “Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” This gives to the states power to enact legislation to aid even in the enforcement of the Eighteenth Amendment. But it does not restrict the *916power of tbe states to make tbeir own police regulations against intoxicating liquors more extensive and of broader scope than tbe Eighteenth Amendment.

This Court has held to tbe above purport in S. v. Fore, 180 N. C., 744, and we can add nothing thereto. In S. v. Muse, 181 N. C., 506, at last term, the Court held that “A State statute, in furtherance of and not in conflict with the Federal Prohibition Law, may be declared a valid exercise of the police .power of the State, expressly sanctioned by the Eighteenth Amendment to the U. S., Constitution.”

There was no search or seizure in this case, and we have discussed the rules applicable, only in view of the motions made by the defendant. If the “John Doe warrant” was illegal, which we are not called upon to consider, as it is not set out or described, the defendant was arrested without warrant, but the officers complied with the requirement of the statute, which is as follows: “O. S., 4548. Procedure on arrest without warrant. Every person arrested without warrant shall be either immediately taken before some magistrate, having jurisdiction to issue a warrant in the case, or else committed to the county prison, and as soon as may be, taken before such magistrate, who, on proper proof, shall issue a warrant and thereon proceed to act as may be required by law.”

The motion for nonsuit requires no discussion. The indictment was in five counts. The defendant was convicted on the fourth count for keeping in his possession intoxicating liquors for sale. The court charged the jury that the provision in the statute making the possession of more than a gallon of liquor prima facie evidence had no application in this case because the evidence tended to show that the defendant had in his possession not exceeding 5 pints of liquor, but if the jury found beyond a reasonable doubt that the defendant had any quantity of intoxicating liquor in his possession for the purpose of sale to return a verdict of guilty, but if they did not so find the verdict should be not guilty.

There are five other cases at this term, all from Buncombe, upon similar facts, as to which a per curiam opinion affirming the judgment has been entered in accordance with this opinion.

No error.

Hoke and Stacy, JJ., concur in result; AdaÍis, J., did not sit.