On the 25th of April, 1923, the grand jury in the United States District Court for the District of New Hampshire returned and filed in court an indictment against the defendant (plaintiff in error), a resident of Boston, in the district of Massachusetts, charging that he,- on the 8th day of February, 1923, at Portsmouth, in said district of New Hampshire, “without having received a permit from the Commissioner of Internal Revenue so to do, did then and there unlawfully transport from Boston into Portsmouth a certain quantity of intoxicating liquor, to wit, 68 gallons of *778alcohol containing one-half of 1 per centum or more of alcohol by volume, fit’ for beverage purposes.”
The indictment was based on section 6, tit. 2, of the National Prohibition Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, § 10138%c). The defendant, having been arraigned on the 1st day of May, 1921, and pleaded not guilty, the case was set for trial May 8, 1923. On May 7, 1923, the defendant filed a motion for the return of the alcohol described in the indictment, alleging that it was seized by an officer of the United States without authority, from an automobile which was in the possession of the defendant, in violation of his rights under the Fourth and Fifth Amendments to the Constitution, because the seizure was not made by virtue of a search warrant or by due process of law. At the same time he filed a motion asking that the alcohol be suppressed as evidence and excluded at the trial. . When the case was called for trial he presented the motions and requested that evidence be taken on each motion before the jury was impaneled. The court ordered a jury to be impaneled, stating that he would rule .upon the motions upon hearing the testimony; that, if the evidence- was not admissible, he would rule it out, order the liquor returned, and direct a verdict of not guilty, unless there was other evidence sustaining the indictment, and the defendant excepted.
In his opening statement the district attorney, among other things, said:
“The police will show you that in the Portsmouth police court the nest day Mr. Park pleaded guilty to illegal possession of alcohol.”
Counsel for the defendant objected to the statement as prejudicial, and that evidence thereof would not be admissible. The court thereupon instructed the, jury that the district attorney was merely making an opening statement; that what he said was not testimony in the case, and, unless it was sustained by evidence from witnesses on the stand, they should pay no attention to it. The defendant excepted to the statement.
In the coqrse of the trial the government offered in evidence a certified copy of the record of the proceedings in the Portsmouth police court on the morning succeeding the defendant’s arrest, and offered to show by such record that the defendant then pleaded guilty to the illegal possession of intoxicating liquor. Objection being made, the evidence was excluded.
At the close of all the evidence the defendant entered a motion for a directed verdict, which was denied, subject to exception. The jury found the defendant guilty, and the case is here on his writ of error.
The errors assigned are: (1) That the court erred in denying defendant's motion for the return of the alcohol, on the ground that it had been seized without a warrant and had not been discovered prior to or at the time of the arrest of the defendant and the seizure of the alcohol ; (2) that it erred in overruling the motion to exclude the alcohol as evidence, on the ground that it was illegally seized; (3) that it erred in overruling the defendant’s objection to the statement of the district attorney in his opening to the jury; (4) that it erred in overruling defendant’s objection to the introduction of evidence, through the wit*779ness Ellingwood, with reference to the alcohol that was taken from defendant’s automobile after he was arrested and taken to the station house; (5) that it erred in overruling defendant’s objection to the following question and answer: “Was it a common thing at that time to see a Massachusetts automobile at Portsmouth? A. No, sir;” and (6) that it erred in refusing to direct a verdict for the defendant at the close of all the evidence.
The grounds on which the trial judge denied the defendant’s motions for the return of the alcohol and for its exclusion from evidence are not given. It was a sufficient ground for the denial of the motion to return the alcohol that there was no evidence that it was in the possession of federal officers or any officer of the court, and, as it was not offered in evidence, it might be inferred that it was not in their possession. At any rate, the defendant’s rights in this case were in no way harmed by the denial of either motion; the alcohol not having been offered or received in evidence. The defendant takes nothing by the first and second assignments of error.
The third assignment relates to the statement of the district attorney in his opening to the jury to the effect that the defendant pleaded guilty to the charge of illegal possession of alcohol in the Portsmouth police court the next morning after his arrest. If this statement was improper, we do not think the defendant was harmed, as the court told the jury to disregard it, unless- sustained by evidence, and, when evidence was offered in support of the statement, it was excluded.
The main questions in the case are raised by the fourth assignment of error, wherein it appears that the court permitted evidence to he introduced through the witness Ellingwood, a federal officer, with reference to the alcohol that was taken from the defendant’s automobile after he was arrested and taken to the police station. The same questions are raised by this assignment that would have been presented by the motion to suppress the alcohol as evidence, had it been offered in evidence; for, according to defendant’s contention, both are based on the grounds that the alcohol was seized by an officer of the United States or by state or city police officers acting under direction of an officer of the United States; that the seizure was made without a search warrant or due process of law and was illegal; and that, the seizure being illegal, the alcohol, as well as the testimony as to its seizure, given by the witness Ellingwood, a federal officer, who is alleged to have participated in the seizure, was incompetent.
The competency of the testimony depended upon the determination by the trial judge of certain preliminary questions of fact; and his ruling admitting the testimony is to be upheld, if there was any evidence from which any one of the three following propositions could have been found: (1) That the seizure was made by the state or city officers, without the co-operation of the federal officer, in which case the liquor seized and the testimony given by the witness would have been competent on the trial of the defendant in this court, even though the state or city officers, in making the seizure, acted without a search warrant or without due process of law (Kirkley v. United States [C. C. A.] *780283 Fed. 34; Kanellos v. United States [C. C. A.] 282 Fed. 461; Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159); or (2) that the seizure was made by the state or city officers with the aid and co-operation of the federal officer, and the state or city officers acted in pursuance of a local search warrant, or of some statute of the state authorizing1 the seizure; or (3) that the seizure was made by the federal officer alone, or with the assistance of the state officers, and the federal officer had a federal search warrant, or acted in pursuance of some statute of the United States authorizing the seizure (Gouled v. United States, 255 U. S. 298, 308, 309, 41 Sup. Ct. 261, 65 L. Ed. 647; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177).
We think the evidence was not such as to justify the trial judge in finding that the seizure was made by the state or city officers without the co-operation of the federal officer. Therefore the situation called for by the first subdivision, supra, cannot be regarded as the ground upon which the trial judge based his ruling. There was, however, evidence from which it 'could have found that the seizure was made by the state or city officers with the assistance of the federal officer, and that the state or city officers undertook to act in pursuance of the laws of the state in making the seizure.
It appears that the possession or transportation of intoxicating liquor is made prima facie illegal by the laws of the state. Eaws N. H. 1917, c. 147, § 20, as amended by Laws N. H. 1919, c. 99, § 4. There was evidence that the defendant was arrested and taken to the Portsmouth police station by Officers Hewitt and Gray of the city police force. They testified that they arrested him at 10:20 p. m. and rode with him to the Portsmouth police station in his automobile, which he drove; that on arriving at the station Officer Hewitt remained outside with the car; that the defendant was taken into the station by Gray, where he was booked,, searched, and locked up, the arrest having been made between sunset and sunrise (P. S. N. H. c. 250, § 4); that thereafter Police Officers Gray and Sullivan (houseman at the station),-together with Officer Ellingwood, went to the automobile outside the station ; that Ellingwood found the key to the back of the car attached to a key in the switch lock; that Hewitt unlocked the rear compartment of the car, and that all four participated in carrying the 68 cans of alcohol ipto the station, where it was turned over to the captain of the police. The evidence warranted the trial judge in finding that the defendant was arrested by the city police officers, who took him to the police station and locked him up as required by the laws of New Hampshire, the arrest having been made between sunset and sunrise (section 4, c. 250, P. S. N.H.), to await trial on a charge to be preferred against him within 24 hours from' the time of committal (section 4, c. 250, supra), and that a trial was had the next morning; that the alcohol was seized by the city officers with the assistance of the federal officer, and was stored and. kept by the city officers at the police station.
Had the defendant been returned before a federal commissioner, and the seized liquor held by or turned over to a federal officer for disposi*781tion by a federal court, there would be. some ground for saying that the arrest and seizure were made by federal officers acting under federal authority. Flagg v. United States, 233 Fed. 481, 483, 147 C. C. A. 367. But such was not the case. As the evidence stands, the trial judge would have been warranted in finding that the seizure was by the city officers, aided therein by the federal officer. It is therefore to be as*-sumed that he so found;,but, as the seizure was made without a warrant, the further question is presented whether there was evidence disclosing a special situation, justifying the police officers of Portsmouth, under the laws of the state, in making the seizure, and that the alcohol was lawfully seized.
The Public Statutes of New Hampshire, c. 250, §§ 1, 3 and 4, provide:
“Section 1. By the word ‘officer,’ in this title, shall be intended any sheriff or deputy sheriff, mayor, or city marshal, constable, police officer, or watchman, or other person authorized to make arrests in a criminal case.”
“Sec. 3. An officer, upon view of a crime or breach of the peace or offense against the police of towns, may arrest the offender, and forthwith carry him before the proper court or justice to answer for the offense.
“Sec. 4. If the arrest is made between sunset and sunrise, the person arrested may be committed to jail, to the house of correction, or other place provided for the detention of offenders, or be otherwise detained in custody not exceeding twenty-four hours, within which time he shall be discharged, or taken before a court or justice to answer for the offense.”
See Crowley v. Hurd, 58 N. H. 75; also Laws N. H. 1917, c. 147, § 57, as amended by section 10, c. 99, Laws N. H. 1919.
In the Public Statutes of New Hampshire, c. 251, § 1, subd. 6, provision is made for the issuing of a warrant for the search and seizure of spécific classes of forfeited property and of any property “the subject-matter of any offense not herein specially mentioned.” And by section 6 of said chapter it is provided:
“Sec. 6. An officer who shall find any implement, article, or thing, made, kept, used, or designed to be used, in violation of law, or in the commission of an offense, in the possession of or belonging to a person arrested or liable to he arrested for such offense or violation of law, shall bring such implement, article, Or thing before the justice or court having jurisdiction of the offense, who shall make such order respecting its custody or destruction as justice may require.”
By Public Statutes of New Hampshire, c. 258, §§ 1, 2 and 3, further provision is made for the seizure and disposition of forfeited property, in addition to that provided by section 6, c. 251.
In O’Connor v. Bucklin, 59 N. H. 589, 591, 592, the court in considering the meaning of the words “upon view” as used in section 3, c. 250, above quoted said:
“ ‘Any officer, upon view of any crime or breach of the peace or offense against the police of towns, may arrest the offender, and forthwith carry him before the proper court or justice to answer for the offense.’ G. L. c. 254, § 3. By the construction established by long and uniform understanding and practice, this statute authorizes an arrest by any officer on view of any criminal offense for which the offender is liable to arrest on a warrant. And by the construction established in the same manner the statute re-enacts the common-law rule of this state, which authorizes an arrest by an officer, without a warrant, in good faith, for a proper purpose, and on reasonable grounds. *782On some subjects of this nature, by long usage and common consent, in this state, some of the rules of the common-law of England have been modified, and reasonably conformed to the public safety and welfare, Waldren v. Berry,. 51 N. H. 136. The view spoken of in the statute is such a view as shows legal cause for an arrest, and reasonable ground to believe the plaintiff guilty of a criminal offense was legal cause for the defendant’s obtaining a warrant against him, or arresting him without a warrant.
“ * * * ipjjg statute was not intended to disable the police, and deprive the community of its rightful protection, by deterring officers from the performance of their apparent duty. It means, not that an officer commits a trespass by arresting an innocent but-dangerous insane person, or an innocent person apparently guilty, hut that the officer’s view may, like other sources of information, furnish reasonable ground to believe an arrest ought to be made.”
In other words, it was held that an officer might take into consideration what he sees or learns through his senses at the time and also “’other sources of information”; that if such sources of information furnish reasonable ground to' believe an arrest ought to be made, and he acts in good faith, he is justified in making the arrest.
In State v. Spirituous Liquors, 68 N. H. 47, 49, 40 Atl. 398, the court, in considering section 6, c. 251, and sections 1 and 2, c. 258, of the Public Statutes of New Hampshire, said that “these sections authorize the seizure of property kept in violation of law, but do not authorize a search.” The state court has never interpreted the meaning of the word “find” as used in section 6, c. 251; but by uniform understanding and practice in New Hampshire through a long series of years the language employed in this section (section 6, c. 251) has been regarded as meaning the same as that used in section 3, c. 250, and as authorizing the seizure of a thing kept in violation of law, when in the possession of or belonging to a person arrested for such violation of law; and that the officer making the seizure will be protected, if the information obtained at the time through his senses, together with other sources of information, furnishes reasonable ground to believe that a violation of law is being committed, the officer acting in good faith. See, also, Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459; and particularly La Chance v. Railway, 79 N. H. 291, 292, 294, 109 Atl. 720, 721, where the court was construing section 32, c. 160, of the Public Statutes of New Hampshire, which provides:
‘‘See. 32. -Railroad police officers may preserve order within and about the premises and upon the cars of the corporation upon whose petition they were appointed; they may arrest without a warrant, * * * all persons committing thereon any offense known to the laws of the state, and may take the persons so arrested to the nearest police station, or other place of lawful detention in the county where the offense was committed.”
In construing this statute the court said:
“The statute was passed to provide an immediate remedy in a place where it would be practically impossible to • secure a warrant. In authorizing a railroad police officer to arrest without , a warrant persons committing upon railroad cars ‘any offense known to the laws of the state’ the Legislature must have had in mind the general authority conferred upon police officers to arrest without warrant upon view of crime. P. S. c. 250, §§ 3, 4. ‘The view spoken of in the statute is such a view as shows legal cause for an arrest, and reasonable ground to believe the plaintiff guilty of a criminal offense was *783legal cause for * * * arresting him without a warrant.’ O’Connor v. Bucklin, 59 N. H. 589, 591.”
Statutes authorizing seizure and containing provisions similar to those contained in section 6, c. 251 and chapter 258 of the Public Statutes of New Hampshire exist in Vermont, Maine, and Massachusetts, and have been given a like construction. See section 2 of No. 43, Acts of Vermont of 1882; State v. O’Neil, 58 Vt. 140, 162, 2 Atl. 586, 56 Am. Rep. 557; section 39, c. 27, Revised Statutes of Maine; State v. McCann, 59 Me. 383; State v. Le Clair, 86 Me. 522, 30 Atl. 7; State v. Bradley, 96 Me. 121, 51 Atl. 816; chapter 100, § 86, Revised Laws Mass. 1902; Mason v. Lothrop, 7 Gray (Mass.) 354, 358; Kent v. Willey, 11 Gray (Mass.) 368, 372, 373; Reed v. Adams, 2 Allen (Mass.) 413, 415, 416. See, also, 1 Stat. at Large, p. 43, §§ 23 and 24, and Boyd v. United States, 116 U. S. 616, 623, 6 Sup. Ct. 524, 29 L. Ed. 746.
Section 26, title 2, of the National Prohibition Act of 1919 (Comp. St. Ann. Supp. 1923, § lOlSSj/^nrm) contains a provision authorizing' seizure without a warrant under circumstances similar to section 6, c. 251, of the Public Statutes of New Hampshire. It provides:
“See. 26. When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon; buggy, automobile, water or air craft, or other vehicle, it shall bo his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall toe seized by an officer he shall take possession of the * * * automobile, * * * and gRall arrest any person in charge thereof.”
The authority to seize, without a warrant, given by this statute, is limited to liquors being transported in any vehicle contrary to law, upon discovery by an officer of a person in the act of so transporting. In construing this statute, the words “shall discpver any person in the act of transporting” have been construed differently in the different Circuit Courts of Appeal and District Courts throughout the country. See Lambert v. United States (C. C. A. 9th Cir.) 282 Fed. 413, 414, 417; United States v. Kaplan (D. C. Ga.) 286 Fed. 963, 973; United States v. Rembert (D. C. Tex.) 284 Fed. 996, 1001, 1006; United States v. Hilsinger (D. C. Ohio) 284 Fed. 585, 588; Elrod v. Moss (C. C. A. 4th Cir.) 278 Fed. 123; Kathriner v. United States (C. C. A. 9th Cir.) 276 Fed. 808; United States v. Bateman (D. C. Cal.) 278 Fed. 231; Snyder v. United States (C. C. A. 4th Cir.) 285 Fed. 1, 2, 4; McBride v. United States (C. C. A. 5th Cir.) 284 Fed. 416, 419; United States v. Slusser (D. C. Ohio) 270 Fed. 818, 820, 821.
We think, however, the true* construction and meaning of the statute is that if an officer, at the time of the seizure, has ascertained facts, through the exercise of his senses of sight, ¡smell, etc., and from other sources of information, that would justify a reasonably prudent man in believing that the crime of transporting liquor in a vehicle contrary to law was being committed in his presence, a seizure would be authorized, and that the seizure iu this case would have been authorized had it been made by the federal officer. By this we do not mean that a federal officer, acting under this statute, can make an arrest and seizure *784on mere suspicion, but that he must have ascertained at the time facts that would justify a prudent man in believing that a crime was being committed in his presence. «
But with the proper construction of section 26 of the National Prohibition Act we are not concerned, as the seizure in this case was made by state officers under the authority of local statutes assisted by the federal officer, and it only remains for us to consider, on this branch of the case, whether a situation was, presented from which it could be found that the police officers of Portsmouth, at the time the alcohol was seized, had knowledge of facts acquired through their senses, and other sources of information, which would warrant them, as reasonable men in believing that Park was then in the unlawful possession of alcohol, for, if they did, the seizure was legal, and the evidence given by Elling- , wood was competent, even though he participated with the police officers in making the seizure. It is only when a federal officer participates in 'an illegal seizure that the thing seized or his testimony in relation to it is incompetent. See cases supra.
There was evidence that the car was seen by the officers when it came into Portsmouth about 10:20 in the evening; that it was a Cadillac roadster, bearing a Massachusetts number plate; that this fact, the conditions of travel at the time (there being so much snow few machines could get through from Massachusetts), and the circuitous route taken by the car after arriving in town attracted the attention of the'officers; that while the car was standing in front of the National Hotel, with no one in it, they shook the car; that on doing so the movement of cans and a gurgling sound .could be heard in the car; that the car sagged down pretty well on the rear springs; and that Park told Gray while riding to the station with'him and Hewitt that he had alcohol in the car, which statement was uncontradicted. This evidence discloses that at and before the time the seizure took place the officers making the seizure had information, acquired through their senses of Sight and hearing and from other sources, that Park had liquor in his possession in the car, the possession of which was in violation of the laws of the state, and warranted them as reasonable men in believing that it was so possessed. The seizure was lawful, and the testimony was properly received in evidence.
The fifth assignment has not been argued or briefed by the defendant, and we regard it as waived.
The motion for a directed -verdict was properly denied, as there was abundant evidence to go to the jury.
The judgment of the District Court is affirmed.