This is an appeal from a conviction for violation of tho National Prohibition Act (27 USCA) by manufacturing whisky.
While several -assignments of error are made and presented here; they all depend upon one matter. That matter is the action of the court in denying a motion to suppress certain evidence claimed to- have been secured by an unlawful search and seizure. The contention of the appellant is that the search was made upon a warrant which, for stated reasons, was illegal. The government contends that the warrant was entirely legal, but that, if the warrant bo not sufficient, the search was legal because made in connection with an arrest for a felo-nv committed in the presence of the officers.
I. The Warrant.
The undisputed facts in connection with tho warrant are that on May 4, 193.1, a prohibition agent went to a two-story brick residence and there smelled the odor of mash emanating therefrom. Upon the strength of this information, he appeared before the commissioner and made application for a search warrant for violation of the internal revenue laws. lie filed an affidavit that he had distinctly smelled tho odor of mash emanating from the building, that ho was fully acquainted with the odor of mash when used in the manufacture of distilled spirits, and that such spirits were being unlawfully man*932ufaetured on the premises at the time without payment of tax. The commissioner found this to be probable cause, and issued the warrant to affiant and others named as “Prohibition agents, and officers in the Bureau of Prohibition of the United States of America” for a violation of the internal revenue laws.
The motion to suppress sets forth three numbered grounds, but it may best be understood as based on two grounds with two reasons for each ground. The first ground (a) is the insufficiency of the affidavit as a basis for the warrant; the second ground (b) is the claimed lack of authority to issue a search warrant either upon an affidavit of prohibition enforcement officers or to such officers.
(a) Sufficiency of the Affidavit.
Although the sufficiency of the showing upon which the warrant issued is attacked, that affidavit does not appear in this transcript. However, the parties treat the showing in the warrant as sufficiently revealing the contents of the affidavit, and we may so regard it. USCA, title 18, § 616. Appellant claims this showing is fatally defective in two respects: First, in failing to allege sales (this being a residence); and, second, the odor of mash used for distilling purposes is not probable cause to believe unlawful distillation.
As to the contention that it was necessary to allege sales since the showing was that this was a private residence, we think it is sound under the circumstances here. It may well be that, where officers have in mind a violad tion of the internal revenue laws concerning the taxation of intoxicants, they need not allege sales in a residence. However, when the resulting prosecution is based upon violation of the National Prohibition Act, it would be a complete evasion of section 25, of title 2 thereof (USCA, title 27, § 39), to' permit evidence to be introduced therein which was secured in violation of that section, even though it might have been properly admissible in a prosecution for violation of the internal revenue law because procured in accoi'danee with statutes governing search and seizure for violations of the internal revenue law. Since the warrant is void for this reason, we need not examine the other contentions concerning the sufficiency of the warrant.
II. Arrest.
While the government contends that the warrant was entirely legal, yet it also contends that, if the warrant were illegal, the search in this instance was legal because made as an incident to and following the arrest of appellant for the commission of a felony in the presence of the officers. The evidence in connection with this latter contention is that the prohibition agents went to this residence with the search warrant, presumably for the purpose of making a search thereunder. When they stopped their ear in front of the house, they smelled the odor of mash and saw the defendant inside of the house. One of them went to the front door and another around toward the back door. As the latter walked around the side of the house, he saw the defendant looking out of a window, and he then told him they were government officers and “asked him to open the door.” Defendant then opened the front door, whereupon there came out of the open door a very strong odor of mash. Defendant was then and there placed under arrest, and the officers thereafter made the search and seizure. One of the officers stated in evidence that, while they had a search warrant at the time they entered, the search was made “by the fact a crime was taking place in our presence.” The officers, however, did serve appellant with a copy of the search warrant, with an inventory thereon of the articles seized, which was signed by one of them. From this evidence it appears that the search and seizure were made under both authorities; that is, the warrant and also as incidental to an arrest for a felony committed in the presence of the officer's. If the officers made a lawful arrest for a crime committed in their presence, they were justified in searching the place in order to find and seize the things used to carry on the crime for which the arrest was made, and the fact they also had a search warrant covering the same or a different offense would not detract from that power [Marron v. U. S., 275 U. S. 192, 198, 48 S. Ct. 74, 72 L. Ed. 231; Billingsley v. U. S., 16 F.(2d) 754, 756, this court; Lee Kwong Nom v. U. S., 20 F.(2d) 470, 472 (C. C. A. 2); Vachina v. U. s., 283 F. 35, 36 (C. C. A. 9)], and this is true even though it turns out that the search warrant is void or does not eover the articles seized (Marrón v. U. S., supra; Billingsley V. U. S., supra; Vaehina v. U. S., supra). Here, the search was not made until after the arrest, and it was made to secure evidence of the commission of the crime for which the arrest was made.
The arrest was properly made as for a crime committed in the presence of the officers because from the strong odor of mash and the presence of the appellant in this residence the officers were justified in making the arrest for this crime. Taylor v. U. S., 286 U. S. 1, 6, 52 S. Ct. 466, 76 L. Ed. 951; Tay*933lor v. U. S., 55 F.(2d) 58, 50 (C. C. A. 4); Wida v. U. S., 53 F.(2d) 424 (C. C. A. 8); Gerk v. U. S., 33 F.(3d) 485 (C. C. A. 8); Lee Kwong Nom v. U. S., 20 F.(2d) 470, 472 (C. C. A. 2); Billingsley v. U. S., 16 F.(2d) 754 (C. C. A. 8); Weeke v. U. S., 14 F.(2d) 398 (C. C. A. 8); Book v. U. S., 12 F.(2d) 370, 373 (C. C. A. 8); Mulrooney v. U. S., 46 F.(2d) 995 (C. C. A. 4); De Pater v. U. S., 34 F.(2d) 275, 276, 74 A. L. R. 1413 (C. C. A. 4); Schulte v. U. S., 11 F.(2d) 305 (C. C. A. 5); Tritico v. U. S., 4 F.(2d) 664 (C. C. A. 5); Garske v. U. S., 1 F.(2d) 620, 623 (C. C. A. 8); McBride v. U. S., 284 F. 436, 418 (C. C. A. 5), certiorari denied 261 U. S. 614, 43 S. Ct. 359, 67 L. Ed. 827.
The judgment is affirmed.