State v. Brame

• Decision Date: 28 February 1923
• Docket Number: 82.
• Citation: 116 S.E. 164,185 N.C. 631
• Parties: STATE v. BRAME.
• Court: North Carolina Supreme Court

116 S.E. 164

185 N.C. 631

STATE v. BRAME.

No. 82.

Supreme Court of North Carolina

February 28, 1923

Appeal from Superior Court, Vance County; Horton, Judge.

Bud Brame was convicted of receiving more liquor than allowed by law, and he appeals. Affirmed.

Criminal prosecution tried upon an indictment charging the defendant with having or keeping in his possession, for the purpose of sale, certain spirituous liquors (C. S. § 3379), and with receiving, at one time or in one package, certain spirituous or vinous liquors or intoxicating bitters in a quantity greater than one quart (C. S. § 3385), and further with receiving certain spirituous or vinous liquors or intoxicating bitters in a quantity or quantities totaling more than one quart during the space of 15 consecutive days (C. S. § 3386), and with shipping and transporting the same in violation of C. S. § 3384. The following is the form of the verdict as recorded:

"The jury come into court and say for their verdict that the defendant is guilty of receiving more liquor than allowed by law, and not guilty of retailing or transporting liquor."

From a judgment of eight months on the roads, the defendant appealed, assigning errors.

R. S McCoin and Kittrell & Kittrell, all of Henderson, and Murray Allen, of Raleigh, for appellant.

J. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY J.

The defendant excepts to the form of the verdict upon the ground that it is not responsive to the issues submitted to the jury, or to the counts contained in the bill of indictment. By correct intendment and interpretation, viewing the trial in its entirety, as disclosed by the record, we think it is clear that the verdict rendered amounts to a conviction of the defendant of having violated the following provisions of C. S. § 3385:

"It is unlawful for any person, firm or corporation at any one time, or in any one package, to receive at a point within the state of North Carolina for his use or for the 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 five gallons."

State v. Parker, 152 N.C. 790, 67 S.E. 35 ("guilty of carrying a concealed weapon in a suit case"), State v. Whitaker, 89 N.C. 472 ("guilty of receiving stolen cotton"), and State v. Hudson, 74 N.C. 246 ("guilty of shooting"), all presenting verdicts which were held to be insufficient, are not in conflict with this position. State v. Lemons, 182 N.C. 828, 109 S.E. 27; State v. Godwin, 138 N.C. 585, 50 S.E. 277, and cases there cited.

But it is contended by the defendant that, since the adoption of the Eighteenth Amendment to the Constitution of the United States, and the enactment by Congress of 41 Stat. 305, known as the Volstead Act, this section of our prohibition law has been superseded, and is no longer of any force or effect, because, it is alleged, the statute in question undertakes to authorize or to sanction, in a measure, at least, what the federal laws prohibit. Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946; State v. Green, 148 La. 376, 86 So. 919. The prosecution on the other hand, contends that this section of our law is constitutional and valid except the last 18 words of the statute, and that with these words, or all after the words "intoxicating bitters," omitted or stricken out, the section should be upheld as a valid enactment of our Legislature. The following from the National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946, is cited as authority for this position:

"The first section of the [Eighteenth] 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."

We can accept neither contention though cogent and plausible arguments have been advanced in favor of each position. As said by the late Justice Allen in State v. Helms, 181 N.C. 570, 107 S.E. 228:

"It would be a strange application of law to hold that a defendant, being tried in the state courts for violating a statute of the state, could be convicted because he had violated a federal statute, or that giving to the Volstead Act the effect of striking down all provisions of state statutes in conflict with its terms it should have further operation to render a citizen of the state indictable under a state statute, which has had a

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