(dissenting). The limits of authority of officers to arrest for violation of the National Prohibition Act are now of importance. For this reason I venture to state the grounds of my disagreement with the majority of the court.
The federal prohibition officer arrested Snyder without a warrant, and took from his person four pints of whisky. After the indictment was found the defendant by a formal petition asked the District Judge to hold the evidence of his guilt obtained by the search incompetent, and order “that the United States be not allowed to use” it, on the ground that the arrest of defendant and the search of his person without a warrant was illegal. On this petition the District Judge took testimony. The federal officer, Arrington, testified that while state officers were searching defendant’s premises for intoxicating liquor under a search warrant he came upon the defendant on the street near by, with his hands in his trousers pockets and the neck of a pint bottle showing from his overcoat pocket; that without a- warrant of arrest he approached the defendant, pulled the bottle out of his pocket, asked him to go inside his store, searched him, and found four pints of whisky on his person. The defendant testified, denying that the neck of the bottle was protruding from his. pocket, but admitting that he did have on his person four pints of whisky. The District Judge dismissed the petition, finding the officer was justified in arresting the defendant.
When an officer is authorized by statute to arrest for a misdemeanor committed in his presence or on discovering a person committing a misdemeanor, to justify arrest the officer must have personal knowledge acquired at the time through his hearing, sight, or other sense of the present commission of the crime by the accused. But this does not preclude the idea that the requisite knowledge may be based on a practically certain inference drawn by a reasonable mind from the testimony of the senses. An offense is in the view of the officer when his senses afford him knowledge that it is being committed. Elrod v. Moss (C. C. A. 4th Circuit) 278 Fed. 130 ; Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672. 72 S. E. 51; United States v. Borkowski (D. C.) 268 Fed. 408, 412; 5 C. J. 416; 84 Am. St. Rep. 686, note. Whether the offense was committed in the presence of the officer in this sense is primarily a question for the trial judge, and his finding should not be disturbed on appeal unless it is without support in the evidence.
But the arrest and search were illegal, and the testimony obtained thereby incompetent because the federal prohibition officer had no authority to arrest without a warrant for the misdemeanor of having intoxicating liquor in his possession.
At common law a peace officer was not authorized to make an arrest without warrant for any misdemeanor committed in his presence *5except a breach of the peace. State v. Lutz, 85 W. Va. 330, 101 S. E. 434, 439; 5 C. J. 401, and cases cited.
In most states, however, there are statutes authorizing either peace officers generally or particular officers to arrest for any misdemeanor committed in their presence, although it be not a breach of the peace. These statutes are constitutional and do not impair the rights of the citizen under the Fifth Amendment of the Constitution of the United States or similar state constitutional provisions. Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. R. A. 859, 45 Am. St. Rep. 419; State v. Byrd, 72 S. C. 104, 51 S. E. 542.
Section 788 of the Revised Statutes of the United States (Compiled Stats. § 1312) provides that United States marshals shall have in each state the same powers in executing the laws of the United States as sheriffs and their deputies in such states may have by law in executing the laws thereof. This provision of the Revised Statutes has been applied in Carico v. Wilmore (D. C.) 51 Fed. 196; In re Acker (C. C.) 66 Fed. 290; State v. Dill, 48 S. C. 249, 26 S. E. 567.
The statute of West Virginia (Code of 1913, § 2775) authorizes a justice of the peace or a constable to arrest for an offense committed in his presence of which a justice has jurisdiction. This statute does not extend the authority to arrest without a warrant to sheriffs or other officers not therein mentioned. State v. Lutz, 85 W. Va. 330, 101 S. E. 434, 438.
I am unable to find any statute of the state of West Virginia authorizing sheriffs or their deputies to arrest without a warrant fór a misdemeanor committed in their presence. And therefore United States marshals or deputy marshals have no authority to arrest without warrant under Revised Statutes, § 788.
Section 1014 of the Revised Statutes (Compiled Stat. § 1674) provides that an offender against the laws of the United States may be arrested by certain officers therein mentioned “agreeably to the usual mode of process against offenders in such state.” But neither United States marshals nor prohibition officers are mentioned in the section among the officers who may make such arrest, and therefore that statute has no application. John Bad Elk v. United States, 177 U. S. 535, 20 Sup. Ct. 729, 44 L. Ed. 874. It follows also that section 2, tit. 2, of the National Prohibition Act, making section 1014 of the Revised Statutes applicable to the enforcement of the National Prohibition Act, did not authorize the arrest.
Section 28, tit. 2. of the National Prohibition Act confers upon prohibition inspectors and other officers of the United States whose duty it is to enforce criminal laws the power and protection in the enforcement of the Prohibition Act “which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.” Act March 1, 1879, c. 125, § 9 (Compiled Stat. § 1676), authorizes any marshal or deputy marshal who shall find any person operating an illicit distillery to arrest such person and take him before some judicial officer to be dealt with according to the law. But I can find no provision of the *6law which authorizes a marshal or deputy marshal to arrest without warrant a person found in possession of contraband liquor either in the war prohibition statute or in the old revenue statutes.
Section 26, tit. 2, of the National Prohibition Act authorizes prohibition officers or any officer of the law to arrest any person discovered by him to be transporting intoxicating liquor in a vehicle; but it furnishes no authority to an officer to arrest a person discovered by him to have liquor on his person.
It seems to me, therefore, that the officer had no authority either under the common law or under any statute of the United States to arrest and search the defendant without a warrant upon discovering that he had liquor in his possession.
I think, nevertheless, that the judgment should be affirmed. If all the testimony obtained by the arrest and search be left out of consideration, the evidence which remains was strong against the defendant. Pockets necessarily bulging with four pints of whisky in them, with the neck of a pint bottle protruding from one of them, seems to me to be convincing according to all human experience that the man has intoxicating liquor in his possession, when as in this case there is no denial or explanation of such pregnant facts.
In addition to this, the record shows that in support of his petition to suppress the evidence obtained by his arrest and search the defendant offered himself as a witness before the District Judge and there on cross-examination testified, without objection or claiming any privilege, that he was guilty of having the four pints of liquor in his possession. This court therefore knows beyond all doubt, if not from competent testimony on the trial, certainly from defendant’s testimony printed as a part of the record, that the defendant is guilty. ■ “Examination of the entire record” therefore shows that nothing that occurred on the trial affected the defendant’s substantial rights.
I venture to think it is to just such a case that the amendment of February 26, 1919, to section 269 of the Judicial Code (Comp. St. Ann. Supp. 1919, § 1246) applies, and that a new trial should be refused. That section provides:
“On the Rearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties” 40 Stat. 1181.
It was so construed in principle in the following cases: Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed. 185; Dye v. United States (C. C. A. 4th Circuit) 262 Fed. 6; Sneierson v. United States (C. C. A. 4th Circuit) 264 Fed. 268; Lucadamo v. United States (C. C. A.) 280 Fed. 653.
I think the judgment should be affirmed.