(after stating the facts as above). The defendants, by demurrer, challenged the sufficiency of the indictment, and the overruling of that demurrer is assigned as error. Section 3 of title 2 of the National Prohibition Act provides in express terms that “no person shall * * * possess any intoxicating liquor except as authorized in this act.” Section 33 of the same title (Comp. St. Ann. Supp. 1923, § 10138%t), provides that “it shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only * * * provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.” Section 32 (Comp. St. Ann. Supp. 1923, § 10138%s) provides that “it shall not be necessary in any affidavit, information, or indictment * * * to include any defen*935sive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful.”
The first count of this indictment charges that the possession contemplated by the alleged conspiracy “was then and there prohibited and unlawful,” and the second count contains the same averment in reference to the actual possession of intoxicating liquor as charged in that count. If, therefore, these defendants claimed this intoxicating liquor was lawfully acquired, possessed, and used as permitted by section 33, proof of such fact could be offered in defense, but under ¿the provision of section 33, it was unnecessary to negative these defenses, and under section 33, the burden was upon the defendant to prove these facts. Huth v. U. S. (C. C. A.) 295 F. 35-37; Miller v. U. S. (C. C. A.) 300 F. 529-533; Williams v. U. S. (C. C. A.) 3 F.(2d) 933, 934, and eases there cited. The demurrer to the indictment was properly overruled.
It is also claimed that the court erred in denying the petition of defendants to reject the evidence obtained and for the return of the property seized under the authority of the search warrant issued for the search of defendants’ premises. The affidavit upon which this search warrant was issued recites in detail the facts tending to establish probable cause. It is not only sufficient in form but in substance. Steele v. U. S. No. 1, 45 S. Ct. 414, 267 U. S. 498, 69 L. Ed. 757, and Steele v. U. S. No. 2, 45 S. Ct. 417, 267 U. S. 505, 69 L. Ed. 761.
No application was made for the return of the whisky taken from the person of McCormick, nor were any objections made to the testimony offered in reference thereto. In any event it was admissible against Keith and Johnson. Remus v. U. S. (C. C. A.) 291 F. 501, 511, and eases there cited. This evidence was also properly admitted as against McCormick. The first count, of the indictment charges that McCormick was engaged .in this unlawful conspiracy with Keith and Johnson, and evidence was offered tending to prove that he was then and there engaged in the commission of an overt act in furtherance of the purpose of this conspiracy.
His arrest was lawful and the right to search is incident to a lawful arrest. Brady et al. v. U. S. (C. C. A.) 300 F. 540, 543; Baron et al., v. U. S. (C. C. A.) 286 F. 822, 824, 825.
It is further claimed that it was prejudicial error to receive the evidence offered by the government tending to prove the amount, of liquor, bottles, and bottling paraphernalia discovered during the prior searches. It is contended that in the absence of evidence tending to prove their validity it must be conclusively presumed that these search warrants were unlawfully issued, because no arrests and no seizures were made. No objection was made to the introduction of this evidence, and, even if such objection had been made, the evidence was properly received. No presumption obtains that these prior search warrants were unlawfully issued, merely because no arrests or seizures were made. If the search developed no evidence of unlawful possession or unlawful sale, there would be no occasion for arrest and nothing subject to seizure.
At the close of all the evidence the defendants moved the court for a directed verdict, and the overruling of this motion is assigned as error. This presents the question of whether there was any substantial evidence offered by the government to sustain the verdict of the jury. This court cannot determine the weight of the evidence or the credibility of the witnesses. Conspiracy, as a rule, is not susceptible of direct proof of a definite plan or agreement entered into by conspirators, but it is sufficient if the evidence shows such a concert of action in the commission of an unlawful act, or other facts and circumstances from which the natural inference arises that the unlawful overt act was in furtherance of a common design, intent, and purpose of the alleged conspirators. Reed v. H. S. (C. C. A.) 276 F. 273; Davidson v. U. S. (C. C. A.) 274 F. 285.
It is sufficient to say that substantial evidence was offered by the government tending to establish such a state of facts as would justify the inference that this intoxicating liquor, although lawfully purchased, was nevertheless kept and used by the defendants in violation of title 2 of the National Prohibition Act. All of these facts and circumstances, from which such inferences would naturally be drawn, might be fully explained to the satisfaction of the jury; but, unfortunately for the defendants in this case, the jury evidently did not believe their explanation., Baron et al. v. U. S. (C. C. A.) 286 F. 822, 823, 824.
The judgment is affirmed.