(dissenting). I agree that there was failure to sustain the count which charged the maintenance of a nuisance. I cannot agree, however, that the judgment on the other counts should be reversed. The officers took possession of the premises on which there was in operation a large still, supplied with an abundant quantity of material for the manufacture of moonshine whisky. Prior to that timé the plaintiff in error had been under observation, and on several occasions had been followed by one of the officers to the premises upon which the still was operated. While the officers were in possession of the premises, they arrested the plaintiff in error under the following circumstances: They had taken in charge the man who, as manager, was conducting the distilling operations. The plaintiff in error approached, and the manager said to the officers: “Here is one of them.” The officer replied: “Who operates the still?” And he said: “Yes.” “All right, Mr. Heitman,” the officer said, “you are under arrest.”- The plaintiff in error said: “Can’t we fix it up ?” And a little later he said again: “Can’t we fix it up, fellow, I am in a jam.” He made no response to the statement of the manager, made in his presence, that he was one of the men engaged in operating the still. And when testifying on his own behalf he made no denial of any of the items of the evidence above set forth. That evidence, I submit, was ample to prove the charge.
But it is held by the majority of the court that the judgment should be reversed because testimony was erroneously admitted that, on a prior occasion, the plaintiff in error and another were seen in an old bam in a canyon, tacking up black building paper around the walls, and preparing to operate an illicit distillery. “They had,” said the witness, “a large tub there in the center. Evidently it was for a worm- tap. * * * They came out, and laughed at us, and said, ‘You fellows are just about a week ahead of time.’ ” Where the other evidence, as in this case, clearly establishes the guilt of the accused, I can see no justification for setting aside the judgment obtained thereunder, merely because of the erroneous admission of evidence of the prior activities of the accused in the line of illicit distilling, and I submit that to do so is to exalt unduly a mere technicality. In a similar ease, Judge Rogers said: “The objections of the defendant must be serious and clearly prejudicial to justify the court in reversing the judgment and compelling the government to put this man again on his trial.” Fitter v. United States, 258 F. 567, 169 C. C. A. 507. Other eases in point are Forni v. United States (C. C. A.) 3 F.(2d) 354; Raine v. United States (C. C. A.) 299 F. 407; Simmons v. United States (C. C. A.) 300 F. 321; Savage v. United States (C. C. A.) 295 F. 686; Jones v. United States (C. C. A.) 296 F. 632; Simpson v. United States (C. C. A.) 289 F. 188.