(after stating the facts). The record has the same defect that was found to exist in the case of the State v. Lockyear, 95 N. C., 633, and must be disposed of in the same manner. The action of the Court perfects the verdict by removing that which made it conditional, and as in case of a general verdict, calls for a judgment discharging the defendant, if there are no other charges against him requiring a further detention.
The argument has been, however, upon the merits, the liability of the defendant to a criminal prosecution upon the facts found; and as the question is one of public interest and ought to be settled, we will proceed to express the conclusion at which we have arrived, as was done in the former case.
The section (3116) which makes the selling of any “spirituous liquor ” within a prohibited district a misdemeanor, is part of chapter 32 of The Gode, and the first section thereof (3110), in express terms, sanctions the sale of “wines from grapes, blackberries, currants, gooseberries, raspberries and strawberries manufactured in this State from fruit raised in the State,” when'“sold in bottles corked or sealed up and not to be drunk on the premises," and which wines do not “contain any foreign admixture of spirituous liquors” and “ derive their ardent>spirit from vinous fermentation.”
The special verdict finds all the conditions necessary for -exoneration ih the -act imputed as criminal. The statute does not, therefore) punish the act of the defendant, and, as mod--ified, has no application to what he did. The Attorney-*517General urges that this qualifying portion of the enactment is in conflict with the Constitution of the United States in discriminating in favor of home products, and, therefore, being void, leaves the other section in operation. But these consequences do not follow. The discrimination may be inoperative when it affects injuriously the interests and rights of those who undertake to dispose of similar products of other States introduced into this, but it cannot lop off an essential exception or qualification of the penal statute, and leave the penal part of it in force. It must stand or fall in the form which the legislative will has assumed, and the sale of such wines as are described is not prohibited. The invalidity of an essential interwoven part of the enactment may avoid it altogether, where it is sought to be enforced against one who sells similar wines manufactured in another State, but this unauthorized discrimination cannot, in disregard of the legislative intent, render that an offence not made such in the act itself.
The argument at the bar has been principally directed to-an inquiry as to the meaning of the tei'm “spirituous liquors,” in which we do not propose to follow, further than to say, the inclination of our opinion, in construing this penal enactment in connection with the use of the words in other parts of The Code, is to confine it to such liquors as are formed from distillation, and not to extend it to such as generate alcohol by vinous fermentation only, according to the definitions given both by Dr. Webster and Dr. Worcester in their dictionaries. But we leave the point undecided, and open for a fuller consideration, when it shall be directly presented and require determination.
But the appeal must be dismissed, and this will be certified for final judgment in the Court below.
Dismissed.