#### STATE v. J. E. BURNETT.

(Filed 22 February, 1922.)

1. Intoxicating Liquor — Spirituous Liquoi’ — Arrest—Warrant—State Statutes — Federal Statutes.

A national prohibition officer, in making an arrest, is confined to tbe authority given him by the Federal statutes, and no additional power to make an arrest without a warrant can be conferred by our State statute, O. S., 4544, providing that a sheriff, etc., entrusted with the care and *704preservation of the peace, may arrest without warrant whenever they know, or have reasonable ground to believe, that a felony has been committed, etc.

2. Same — Manufacture—Distillation—Misdemeanor—Acts in Presence of Officer — Criminal Daw.

The authority of a Federal prohibition officer to make an arrest is confined to the'provisions of the National Prohibition Act, whereunder the unlawful distillation of spirits for the first offense is only a misdemeanor, and the authority to make arrest specifically referred to another Federal statute providing the same powers and protection, in making arrests, as that formerly conferred upon such officers for the enforcement of existing laws relating to the manufacture and sale of liquor under the laws of the United States, which permit an arrest without a warrant only when the person or persons charged are found by them in “the act of operating an illicit distillery.”

8. Same — Felony.

A national prohibition officer was not charged with the duty of enforcing the Federal Lever Act, with reference to the manufacture or sale of spirituous liquor, mating the offense a felony, nor clothed with the powers incident to such enforcement, before it was repealed.

4. Same — Rules of Revenue Department — Courts—Judicial Notice.

The rules and regulations of the Internal Revenue Department, when approved by the Secretary of the Treasury, and not unreasonable or in conflict with the statutes appertaining to the subject, are considered binding, and may be taken note of by the court, and thereunder a national prohibition officer is unauthorized to arrest without a warrant the person charged with unlawful distillery when such person was not therein engaged at the time of the arrest.

5. Intoxicating Liquors — Spirituous Liquors — Arrest—Warrants — State Statutes — Federal Statutes — Courts—Jurisdiction.

C. S., 4544, authorizing an arrest of the offender against the law applies only to peace officers of the State, and in the enforcement of the State law, and does not affect the conduct or powers of Federal officers unless the principles therein are extended to such officers by a Federal statute, when in the enforcement of a valid Federal law.

6. Same — United States Marshal — Federal Prohibition Officers.

The effect and purpose of Revised Statutes U. S., sec. 788, are restricted to United States Marshals and their deputies, and do not extend to national prohibition agents to arrest without warrants in the1 enforcement of the National Prohibition Act.

7. Same — Felonies—Arrest by Private Persons.

A Federal prohibition officer, acting under the National Prohibition Act, can derive no further authority to arrest an offender without a warrant than the Federal statute itself provides; and no further power can be acquired by him by virtue of our State statute, C. S., 4543, permitting such to be done by a private person, in case of felony, such as murder, rape, and the like, when the unlawful act has been committed in his presence.

*7058. Homicide — Murder—Arrest—Warrant—Instructions—Federal Prohibition Officers — Appeal and Error — Prejudicial Error.

Where, on a trial for murder, there was evidence that the deceased, a national prohibition officer, and another specially deputized, entered the premises of defendant and attempted to arrest the prisoner without a warrant for the unlawful distillation of liquor, when he was not actually engaged therein, and chased the prisoner with pistols drawn, and while fleeing, and in reasonably apparent danger of his life, the prisoner shot and killed the prohibition officer, an instruction to the jury that under the circumstances the deceased had the right to make the arrest without a warrant constitutes reversible error, for which a new trial will be granted on appeal.

Appeal by defendant from Bryson, J., at tbe July Term, 1921, of SwaiN.

Tbe indictment is for murder of one J. H. Eose, a prohibition agent of tbe Federal Government, while tbe latter was engaged in tbe effort to arrest tbe prisoner for alleged violation of tbe Federal, prohibition law.

Tbe prisoner was convicted of murder in tbe second degree, and from judgment on tbe verdict appealed.

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

Thurman Leatherwood, Bourne, Parker & Jones, and Felix F. Alley for defendant.

Hoke, J.

There was evidence on the part of tbe State tending to show that on tbe morning of 25 October, 1920, tbe deceased, a prohibition agent of tbe Federal Government, with two others,'Charles Beck, an assistant deputized for tbe purpose, and J. M. Welch, a State deputy sheriff, went to tbe home of tbe prisoner iii Swain County, about seventeen miles south of Bryson City, and found on tbe immediate premises two barrels of apple pomace in a state of fermentation; that Burnett, tbe prisoner, came up and said be was intending to make vinegar out of tbe pomace. Eose told him it was against tbe law to make vinegar in that way, as there was alcohol in it, etc. That Eose and Charlie Beck went over to prisoner’s orchard and found five other barrels of pomace, and near there found a still place with fresh ashes, showing signs of use “since the rain.” Going back to tbe bouse they found that Burnett bad disappeared, and tbe visiting party went on to some other places in tbe neighborhood; that in tbe afternoon Eose and Charles Beck returned to home of defendant for‘the purpose of arresting him; that tbe prisoner at that time was at bis crib near tbe bouse unloading corn or roughness, and when be saw tbe deceased and bis deputy, tbe prisoner started to run, was called to several times to halt, but be moved around tbe barn; that Eose and deputy pursued, both having their pistols out, and as they came *706in view of prisoner around tbe barn, tbe latter fired from a straw stack where be bad stopped and killed deceased; tbat be then ran on and Beck, tbe deputy, pursued, firing at bim seven or eight times till be passed out of sight; tbat neither tbe deceased nor bis.deputy made any demonstration with their pistols till after deceased was shot, but bad them in their bands, and Rose’s pistol went off as be fell, mortally wounded, apparently without aim.

There were facts in evidence which seemed to permit tbe inference tbat Rose may have bad a warrant, but none was exhibited at tbe time of tbe occurrence. Defendant, a witness in bis own behalf, testified be was not engaged in making brandy at the time; tbat be intended to make some, but some one stole bis still, and to keep bis fruit from going to waste be bad crushed bis apples into pomace with tbe purpose of making vinegar, and did not know be was violating any law in doing this; tbat be bad gone off when the parties went over into bis orchard, but not with any purpose of flight, but only to drive bis cattle up on tbe mountain to keep them off bis crop, which was not under bis fence, and this was bis custom; tbat when be returned, tbe deceased and Beck and tbe deputy sheriff bad gone somewhere and be ate bis dinner and then went to hauling up bis corn, and was at the crib unloading it when the deceased and his assistant returned and were coming towards bim with their pistols out; tbat witness went towards and around tbe barn and tbe two pursued bim with their pistols out and deceased fired one shot at witness, bitting bim in tbe leg; tbat witness fell over tbe bars at tbe end of tbe barn and got bis gun, which bad been left near tbe straw stack in tbe morning when be bad returned from a squirrel bunt; tbat at time witness fired, deceased was pointing bis pistol at witness, and tbe other man also bad a drawn pistol, and'witness shot as tbe only thing be could do to save himself. Tbat witness saw no warrant nor beard any claim of one, and beard no call to bait, and did not bear either of tbe men speak during the occurrence; tbat after witness fired tbe gun be continued bis flight and was shot at several times by Beck until witness passed out of view, when be sat down and washed tbe blood off and tied up bis leg where be bad been wounded. Tbe wife of defendant testified tbat one of tbe men fired at her husband as be went towards tbe barn from tbe crib; tbat she did not bear them make any call to her husband to bait, but were advancing towards bim with their pistols out.

On this, tbe evidence chiefly pertinent, tbe cause was submitted to tbe jury, and defendant, as stated, was convicted of murder in tbe second degree. While tbe court, in a clear and comprehensive charge, presented tbe case in every aspect of tbe testimony, and in tbe main correctly, we think there was error to tbe defendant’s prejudice in an instruction tbat under a Federal statute, commonly known as tbe Lever Act, it was made *707a felony to use fruits or food material for tbe production of distilled spirits for beverage purposes, and that this being true, or if it were true on the facts as accepted by the jury, the deceased was empowered to arrest the prisoner without warrant, the State statute, O. S., 4544, providing that “a sheriff, coroner, constable, police, or other officer entrusted with the care and preservation of the peace may arrest without warrant whenever they know,'or have reasonable ground to believe, that a felony has been committed or a dangerous wound given, that a particular person is guilty and may escape if not immediately arrested.”

It seems that this Lever Act, constituting the felony as stated, chapter 53, 40 U. S. Statutes at Large, continued to be in force and effect till the spring of 1921, several months after this occurrence. See Hamilton v. Distillery & Warehouse Co., 251 U. S., 146; Resolution Congress, 41 Statutes at Large, p. 1359. But if this be conceded, we are of opinion that the instruction of his Honor excepted to cannot he sustained for the reason that the deceased was not charged with the duty of enforcing the Lever Act, nor clothed with the power incident to such enforcement, but was a prohibition officer, charged only with the duties of enforcing the National Prohibition Act, and the Harrison Narcotic Act. Under this statute, chapter 85, 41 H. S. Statutes at Large, part 1, p. 305, sec. 29, the unlawful distillation of spirits for the first offense is only a misdemeanor, and in section 28 the officers charged with the enforcement of the law are given the same powers and protection in making arrests, etc., as that formerly conferred upon them for the enforcement of existent laws relating to the manufacture and sale of liquors under the law of the United States. Referring to the laws in question, Compiled Statutes, p. 220, being chapter 125, section 9, 20 Statutes at Large, p. 341, it will be noted that the power of arrest without warrant under cases like that presented here was only given when the officer found the person or persons charged in the “act of operating an illicit distillery.”

And “then he shall be taken forthwith before some judicial officer and his case investigated.”

¥e are confirmed in this view by the rules and regulations issued by the Internal Revenue Department for the guidance of its officials in enforcement of the Federal laws coming under its supervision and control. These regulations, when approved by the Secretary of the Treasury, and when not unreasonable or in conflict- with the statutes appertaining to the subject, are considered as binding, and may be taken note of by the courts. Campbell v. U. S., 95 U. S., 571; S. v. R. R., 141 N. C., 846, and from a perusal of same, Regulations, No. 12, it appears that under the National Prohibition Act, the Federal Prohibition Commissioner is charged with the enforcement of the Federal laws relating to the production, sale, and taxation of spirituous liquors, etc.,' and also *708of the ITarrison Narcotic Act, and that “the field officers or prohibition agents under Mm have jurisdiction of same class cases.” And in reference to arrests without warrant, the authority is stated as follows:

> “Arrests without warrants. — Section 28 of Title II of the National Prohibition Act (see article 4) has the effect of giving prohibition enforcement officers the same authority to arrest illicit distillers without warrants as is conferred by the act of 1879 (see article 270). An officer may also, in most jurisdictions, make an arrest without a warrant whenever he actually witnesses the commission of any offense under the prohibition statute and the arrest is made immediately thereafter. With respect to the procedure after such an arrest is made see below (preliminary hearings). An officer belonging to the Internal Revenue Service should not make arrests, however, except in cases arising under section 26 of the act (see article 54), so long as he is reasonably satisfied that the offender may be found when wanted.”

In the case before us it appears from all the testimony that the prisoner at the time of the attempted arrest was at his corn crib on his own premises unloading corn into the crib from his wagon; that he was not engaged at the time in operating a distillery or in making use of fruits or grain in production of distilled spirits, and on these facts, as we understand them, he.was not liable to arrest by deceased without a warrant duly issued for the purpose. John Bad Elk v. U. S., 177 U. S., 529; S. v. Bryant, 65 N. C., 327.

In so far as the State statute is concerned, C. S., 4544, that in itself applied, and is clearly intended to apply to peace officers of the State, and in the enforcement of the State law, and does not affect the conduct or powers of Federal officers unless the principles therein are extended to such officers by a Federal statute, and when in enforcement of a valid Federal law. The only Federal statute called to our attention which purports to do this, Compiled Statutes U. S., 1918, sec. 1312; Revised Statutes U. S., sec. 788, restricts the effect and purpose to U. S. marshals and their deputies, and does not extend or apply to these prohibition agents, charged only, as stated, with enforcement of the prohibition and narcotic acts, and with the powers of arrest as therein given.

It could not be seriously contended that deceased, as a private citizen, could make this arrest because of knowledge that under the Lever Act a felony had been committed. Under our local statutes, C. S., 4543, such a power is restricted to felonies committed in the immediate presence of the person and applies only to the graver felonies, such as murder, rape, and the like. S. v. Bryant, supra. And there is no statute or principle that would extend it to deceased on the facts of this record, from which it appears he was acting and professing to act under a specific Federal statute which expressly defined his powers of arrest without warrant, *709restricting them to cases where an offender is presently engaged in the commission of the crime. Of a surety be could not have greater rights as a private citizen than the statute gave to him as an officer of the law.

On the facts as now presented, we are of opinion that no right to arrest the prisoner without a warrant has been shown, and for the error in the instruction the prisoner is entitled to a

New trial.