material fact, as the death of B., then it does apply, and a second trial cannot be had upon the ground that the commonwealth has now secured the testimony. In such a case there is but one offense. It is unlike this one. In this character of case the state could upon the trial of one indictment select one particular act or offense, and proceed for it; and under the other indictment, although found at the same time, it could prove a different one. It does not follow, therefore, that an acquittal under one indictment is necessarily an acquittal, not of one only, but of every act within the year the proof of which would have sustained the first indictment. If this were the rule, then, although the accused might have committed the offense a hundred times within the year, yet an acquittal upon an indictment, under which it could only be convicted for a single commission, would be a complete protection as to all, although in point of fact but the one unlawful act had been investigated. The statement of a proposition leading to such a result is its own refutation."

A qualification to this general rule was later well expressed in the same opinion where the court added:

If

"In a case like this one it [the commonwealth] cannot, upon the trial of the second indictment, prove any act which it even attempted to prove upon the other trial. the attempt embraced the entire year in a sort of drag net way, then it may properly be said that the accused has been tried for all the offenses attempted to be proven. He has in such a case been in jeopardy as to all the unlawful acts of the year of the character of that named in the indictment, and it does not matter that the state may have then failed to show his guilt. If it could upon the trial of one indictment inquire as to whether at this time or that, or whether during a certain time, the accused had not committed the offense, and then, because it failed to elicit his guilt, retry him upon another indictment, and go over the same ground, he would be subject to continuous trials. Such a rule would be unjust to the citizen, and violative of not only the letter, but the spirit of the law. Whether the accused has been once in jeopardy, whether the state has upon the trial of another indictment proved or tried to prove the same offense, is, however, in a case like this one, where there is testimony tending to so show, a question of fact, to be submitted to a jury under proper instructions."

In this case it was conceded that the government neither proved nor attempted to prove, under the information, the commis

sion of either of the crimes of which the plaintiffs in error stand convicted under the indictment.

[3] It is lastly contended that an acquittal of the charge of maintaining a common nuisance was also an acquittal of the included crimes of unlawfully possessing intoxicating liquor and unlawfully selling intoxicating liquor. But possession and sale are not included crimes. It has been so often determined by this and other courts that the possession or sale of intoxicating liquor, and the maintaining of a common nuisance, are separate and distinct crimes, and that a party may be convicted of possession or sale though acquitted of the nuisance charge, that the question is no longer an open one. The mere possession of intoxicating liquor or the mere sale of intoxicating liquor does not of itself constitute a common nuisance. There are elements in the latter crime not found in the former, and therefore an acquittal of the charge of maintaining a common nuisance is not an acquittal of the charge of unlawful possession or unlawful sale. Lee Choy v. United States (C. C. A.) 293 F. 582. The judgment is affirmed.

been imposed on one count, it is immaterial that certain counts were merged with others.

5. Searches and seizures 7-Search on open premises without warrant held not unreasonable (Const. Amend. 4).

Search without a warrant on open premises

count 4, unlawful transportation of intoxicating liquor, the exact amount being unknown; count 5, transportation of intoxicating liquor in one certain Ford automobile; count 6, "keeping, maintaining, and operat

not unreasonable, under Const. Amend. 4.

6. Searches and seizures 7-Special protection to people in "persons, houses, papers, and effects" does not extend to open fields (Const. Amend. 4).

Special protection afforded by Const. Amend. 4 to persons houses, papers, and effects, is not extended to open fields.

7. Criminal law 394-That officers may have been trespassers in making search of

open field does not exclude evidence.

That officers, making search of open field more than a quarter mile from defendant's residence, after detecting odor of fermenting mash and seeing drunken man come from such direction, may have been trespassers, does not exclude evidence.

8. Intoxicating liquors 143-Word "place," as used in law defining common nuisance as

room, house, building, boat, vehicle, structure, or place where liquor is sold, is limited to things of same kind (National Prohibition Act, tit. 2, § 21 [Comp. St. § 101382]]]). Under the rule ejusdem generis, the word "place," as used in National Prohibition Act, tit. 2, § 21 (Comp. St. § 101382jj), defining nuisance as any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, or bartered, is limited to things of same kind.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Place.]

In Error to the District Court of the

United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.

W. M. Koth was convicted of unlawful possession of illicit spirits, possession of still and other property designed for manufacture of liquor, unlawfully manufacturing intoxicating liquor, unlawful transportation, and with keeping, maintaining, and operating a still as a public and common nuisance, as a place where intoxicating liquor was sold, manufactured, kept, and bartered, and he brings error. Affirmed, except as to count for maintaining a nuisance, and as to that reversed and remanded.

Defendant and two others were jointly charged in six counts with violating the National Prohibition Act (Comp. St. § 101384 et seq.). Count 1, the unlawful possession of illicit spirits; count 2, possession of a complete still and other property designed for the manufacture of liquor; count 3, unlawfully manufacturing intoxicating liquor at the place designated in the information;

and situated at a ranch about six miles east of Liberty Lake, on Mica Peak, near the Idaho-Washington boundary line, county of Kootenai, state of Idaho, as a public and common nuisance, to wit, as a place where intoxicating liquor containing more than one-half of one per cent. of alcohol, to wit, certain spirituous liquor commonly known as moonshine whisky, the same being designated, intended, and fit for use as a beverage, were sold, manufactured, kept and bartered."

The defendant was convicted on counts 1 2, 3, 4, and 6. A fine of $500 was imposed on counts 1, 2, and 4, and imprisonment in the county jail for six months on count 3, and four months on count 6, and a fine of $500; jail sentences to run consecutively. From this judgment writ of error is prosecuted. He charges error (a) in the admission of evidence, obtained and seized upon unlawful search; (b) in refusing to require the government to elect as between counts 2 and 3; (c) imposing sentences on counts 1, 2, and 3, as manufacturing and possession of distilled spirits, and manufacturing includes possession of property designed for manufacture.

The testimony shows that as the agents the odor of fermenting mash and distillation were approaching the premises they detected of spirits some quarter of a mile from the house, and saw Randall, a defendant, "coming up the hill from the direction in which they found the still later and in an intoxicated condition, talking to himself and mumbling some words that we didn't distinguish, and he staggered into the house." These premises were not the defendant's place of residence. The agents went down a "stone boat trail some 300 yards to where the still had been pointed out to us, the location of the still, and we found Koth operating the still. There was a fire underneath the cooker of the still, and the finished prodduct was running out of the end of the coil and there was about 40 gallons of the finished product there."

At the conclusion of the government's case the defendant moved for a directed verdict of not guilty on the ground that the evidence was obtained by illegal search. This was denied by the court, except as to count 5. The motion was renewed at the close of

the defendant's case, and denied. Exception was taken to the instructions of the court in failing to instruct that a public nuisance or place must be such as to be offensive and annoying to the public, and on the ground that under the evidence there was no house, building, or place as provided by the National Prohibition Act used or employed in the manufacture of liquor. The court clearly defined a nuisance under the National Prohibition Act, and, among other things, said: "If you find that Koth owned and operated this still, and more or less continuously manufactured intoxicating liquor, namely, moonshine whisky, at this particular place, then he would be guilty of maintaining a nuiIt is continuity of manufacturing or keeping for sale or selling intoxicating liquor that makes the place a nui

sance.

sance.

Robertson & Paine, of Spokane, Wash., for plaintiff in error.

H. E. Ray, U. S. Atty., and Sam S. Griffin and William H. Langroise, Asst. U. S. Attys., all of Boise, Idaho.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge (after stating the facts as above). [1-7] It was not error to receive this evidence. The most that can be said is that the officers were trespassers. Raine v. United States (C. C. A.) 299 F. 407. The court did not err in denying the motion to elect. Congress has power to define offenses and what act shall constitute an offense, and from the pleadings it appears that neither is necessarily or at all included in any of the others. Raine v. United States, supra; Earl v. United States (C. C. A.) 4 F. (2d) 532; Singer v. United States (C. C. A.) 288 F. 695; Bell v. United States (C. C. A.) 285 F. 145; Foster v. United States, 256 F. 207, 167 C. C. A. 423. Nor did the court err in the imposition of sentence under the several counts. The sentence imposed upon counts 1, 2, and 4 did not exceed that which might have been imposed on count 4. There was but one sentence. It was a permissible sentence on count 4.

While count 2, charging possession of property designed for the manufacture of intoxicating liquor at a certain time and place, is merged with count 3, unlawfully manufacturing intoxicating liquor at the same time and place, and count 1, charging possession of intoxicating liquor from the same liquor manufactured in count 3, or transported in count 4, and merged in either one or both (Reynolds v. United States [C.

C. A.] 280 F. 1; Morgan v. United States [C. C. A.] 294 F. 82; Tritico v. United States, 4 F. [2d] 664; Patrilo v. United States [C. C. A.] 7 F.[2d] 804; Rouda v. United States [C. C. A.] 10 F.[2d] 917; Dexter v. United States [C. C. A.] 12 F. [2d] 777), no sentence is resting on either count 1 or 2. "Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient." Kuehn v. United States (C. C. A.) 8 F. (2d) 265; Wetzel v. United States, 233 F. 984, 147 C. C. A. 658.

The search was not unreasonable. It was upon open premises. "The special protection accorded by the Fourth Amendment tổ the people in their 'persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter

and the house is as old as the common law." Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Raine v. United States, supra. The officers were more than a quarter of a mile from the premises, smelled fermenting mash and fumes of distilling then in progress, and saw a drunken man approach from the direction of the still. Vaught v. United States (C. C. A.) 7 F.(2d) 370; United States v. Borkowski (D. C.) 268 F. 408; United States v. McBride (D. C.) 287 F. 214. The fact that the officers may have been trespassers does not exclude the evidence, after what they saw, heard and smelled. Raine v. United States, supra; Vaught v. United States, supra; Hester v. United States, supra; United States v. McBride, supra; Schulte v. United States (C. C. A.) 11 F. (2d) 105. [8] Whether the court erred in defining a nuisance depends upon section 21, title 2, of the National Prohibition Act (Comp. St. § 101382jj). In "any room, house, building, boat, vehicle, structure or place," the word "place" expresses simply locality and not kind. It is an expansive term. It may be synonymous with house, city or town. Inhabitants of Palmer v. Wakefield, 102 Mass. 214. "Place,' as used in a city ordinance fixing penalty for disorderly conduct in any street, house, or place," implies a definite locality of the some kind or nature or character. Barton v. City of La Grande, 17 Or. 577, 22 P. 111. Qualifying words and terms are necessary to indicate the place. "The word

'place' is a very indefinite term.

It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must, generally, be

In Error to the District Court of the United States for the Southern Division of the Northern District of California; Adolphus F. St. Sure, Judge.

Ivor Armstrong was convicted of possession of property for manufacture of liquor, maintenance of nuisance by manufacturing liquor, manufacture and possession of liquor, and with maintenance of nuisance by keeping liquor for sale, and he brings error. Affirmed.

Plaintiff in error seeks reversal of conviction on five counts. Two informations were

filed in this case, one June 10, 1925, in four counts, charging the defendant and another with violation of the National Prohibition Act (Comp. St. § 101381 et seq.) on May 22, 1925, at 1143 Post street, San Francisco -count 1 charging possession of property designed for the manufacture of liquor, etc.; count 2, the maintenance of a nuisance by manufacturing liquor on the premises; count 3, manufacture of the same liquor; count 4, unlawful possession of the same liquor. This information was predicated upon the affidavit of E. A. Powers.

August 13, 1925, the defendant moved to quash the search warrant and exclude from the evidence articles seized on the ground that the warrant was not issued in the name

of the President or the United States; that the affidavit does not state facts constituting probable cause; that the affidavit does not name the owner or occupant of the building. This motion was denied by Judge Kerrigan. A bill of exceptions was presented to Judge Kerrigan August 31, "to be used on writ of error to review the order denying the petition to quash the search warrant and exclude evidence." This was settled, approved, and allowed September 10, 1925. The defendants brought the matter here on writ of error. See Jacobs et al. v. U. S. (C. C. A.) 8 F.(2d) 981. On motion the writ was dismissed, on the ground that the order denying the petition to return the seized property was not a final order.

were

On September 30, 1925, by leave of court, a new information, styled an "amended" information, was filed against the defendant, predicated upon the affidavit of Fred A. Lea. The acts charged in counts 1, 2, 4, and 5 identical with counts, 1, 2, 3, and 4 in the first information, except that the defendant alone is charged. Count 3 in the new information charged maintenance of a nuisance by keeping for sale 395 gallons of so-called "jackass brandy" at 1143 Post street, etc.

On October 3, 1925, a motion to quash the new information was made, alleging that the

court had not power to authorize it; that it was in violation of the Sixth Amendment to the Constitution; that there is a misjoinder in counts 2 and 3, each charging a nuisance on the same premises at the same time and place; and that defendant will be twice placed in jeopardy for the same offense, in violation of the Fifth and Sixth Amendments to the Constitution. This motion was denied.

On May 11, 1926, the cause came on for trial before Judge St. Sure, and a verdict was returned May 13, at 3:40 p. m. Witness Powers, on behalf of the government, testified that on May 22, 1925, he was a prohibition agent, and had been for two years and nine months; that he had visited 1143 Post street, the premises in issue, several times. It consisted of a garage and automobile repair shop. The occasion of the first visit was tracing a shipment of "so-called 'corn sugar,' which is used in the manufacture of to the garage. whisky •

• 99

On May 22, with Lea and two police officers he visited the premises, and "on the mezzanine floor we found four copper stills, two of them still warm, and 395 gallons of socalled 'jackass brandy' in whisky barrels," and other things mentioned. The plaintiff then offered the stills and samples of the liquor in evidence. Defendant objected, on the ground that it was illegally taken, in violation of the Fourth and Fifth Amendments to the Constitution, and on cross-examination identified a search warrant, and also specified "each and every ground theretofore stated in support of the motion previously made to quash the search warrant and exclude the evidence. The objection was overruled, and thereafter certain other witnesses were sworn and testified for the government and for the defendant.

Two bills of exceptions are in the record -one to the proceeding under the first information, where the defendant and another were charged, and which was brought to this court on error (Jacobs et al. v. United States, supra); and the proceeding under the new information, where the defendant alone is charged, and on which conviction was had.

William F. Herron, of San Francisco, Cal., for plaintiff in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge (after stating the facts as above). [1-4] It must be ob