SYMES, District Judge.
Plaintiff in error, Fred Nelson, and his wife, Bessie Nelson, were indicted and convicted of a felony, to wit, possession of intoxicating liquor, two pints of whisky, in Osage county, Okl., the same being in and upon Indian country. Fred Nelson alone brings the case here, the writ having been dismissed as to Bessie Nelson.
The indictment rests upon two statutes. Section 17 of the Act of March 2, 1917, 39 Stat. 969 (U. S. Comp. Stat. § 4137a), reads, “That all of Osage county, Oklahoma, shall hereafter be deemed to be Indian country within the meaning of the acts of Congress making it unlawful to introduce intoxicating liquors into the Indian country;” and by Act of June 30, 1919, 41 Stat. 4 (U. S. Comp. Stat. 1923 Supp. § 4137aa), it is provided “that on and after July 1, 1919, possession by a person of intoxicating liquors in the Indian country or where the introduction is or was prohibited by treaty or federal statute shall he an offense and punished in accordance with the provisions of the Acts of [523]*523July 23,1892 (27 Stat. p. 260), and January 30, 1897 (29 Stat. p. 506).”
The errors assigned may be grouped under four heads: (1) Error in overruling motion to quash indictment and suppress evidence. (2) Permitting Graves and Cooper, two government witnesses, to testify as to the results of a search of the persons of the defendants after arrest. (3) Refusal of the lower court to direct a verdict at the close of the government’s case, and at the close of , all the testimony. (4) Alleged errors in the court’s instructions to the jury. For convenience points 1 and 2 may be diseussed together.
1,2. Nelson and his wife, while driving an automobile on the public road, were stopped by the three officers, the prosecuting witnesses, searched, and' liquor found in the possession of the wife, Bessie Nelson. At the opening of the trial defendants filed a written motion to exclude the evidence of these witnesses on the ground that they had no search warrant. This motion was denied and no exception taken. The motion was renewed after the trial had begun, whereupon the court excused the jury and offered to take testimony from both sides on the question. No evidence was tendered, except that of the three officers. The court made a finding of fact that they were justified in intercepting the automobile, and arresting and searching the defendants without a warrant. The objection was again renewed when the first of the officers was called to the witness stand.
The facts are: Nelson, his wife and brother, residents of Hominy, Osage county, OH., left town very early one morning in Nelson’s car for Sapulpa. After proceeding some distance they turned around because, as one of them testified they found the road impassable, and were on their way back to town when they were first stopped by the witness Pyle, and thé ear and their persons searched. No liquor was found and they were permitted to go. Before reaching town, they passed officers Graves and Cooper. Cooper was a police officer in Hominy, and Graves and Pyle, who had joined them, were agents of the Interior Department charged with the suppression of liquor traffic among Indians. The officers followed, and passing them, as they made a detour to avoid going through town, ordered them to stop, stating that they wanted to arrest and search them for whisky, which they proceeded to do. Nothing was found in the automobile or on the persons of Fred Nelson or Ms brother. The officers testified that Mrs. Nelson was dressed very.thinly, and that they saw two large, old-fashioned wMsky bottles concealed in her bosom. She objected to being searched, unless it was done by a woman. The officers acquiesced, and they all drove to the home of a Mrs. Mitchell, who searched Mrs. Nelson and found an empty bottle on her. One of the agents testified that, while driving to the Mitchell home, Mrs. Nelson emptied one of these bottles, containing corn wMsky, so that it saturated her clothing and the seat and floor of the automobile with the liquid.
Cooper, the local police officer, testified that he saw them leave town on the morning in question; that he'had information that defendants were accustomed to go out in the country early in the morning and bring back whisky, just at the time the night police shift went off duty, and return before the day shift went on; that Fred Nelson had been refused a license to drive a taxicab, because he trafficked in liquor; and that he had caught him once before in a liquor violation and obtained a conviction against Mm. The other two officers had practically the same information.
The facts in Carroll v. U. S., 267 U. S. 132, 45 S: Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, are in many respects similar to those in the case at bar There the officers, late in September, 1921, had some conversation with Carroll and one or two others for the purchase of liquor, but the negotiations came to naught. During the two months following, and up to the time of the arrest, the same officers were engaged in patroling the main highway leading from Detroit to Grand Rapids looking for violations of the ProMbition Act. They had observed Carroll going by on more than one occasion in an automobile. On December 15th the officers again saw Carroll and another of the defendants coming out of Detroit. They stopped them and searched the car and found a quantity of liquor therein. The court stated as a fact that “the officers were not anticipating that the defendants would be coming through on the Mghway at that particular time, but when they met them there they believed they were carrying liquor, and hence the search, seizure, and arrest.”
The opinion states that Congress, by the National Prohibition Act and the act supplemental to national proMbition (42 Stats. 222, 223 [Comp. St. § 1013814 et seq.]), made a clear distinction between the necessity for a search warrant in searching private dwellings, and that of automobiles, and that such distinction is not inconsistent with the Fourth Amendment of the Constitution, [524]*524which, as has been frequently held, denounces only such searches and seizures as are unreasonable. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, points out that the search for, and seizure of, stolen and forfeited goods, or goods liable to duties, being concealed to avoid the payment thereof, or articles which it is unlawful for a person to have in his possession, is a totally different thing from a search and seizure of the private books and papers of a citizen for the purpose of obtaining information to be used as evidence. Boyd v. U. S., supra; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654—do not pass upon the question at bar. The Carroll Case further says that the primary object of section 26, tit. 2, of the prohibition statute (Comp. St. § 10138%m.m) is the seizure of contraband liquor, and that the arrest of the transporter is merely incidental.
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SYMES, District Judge.
Plaintiff in error, Fred Nelson, and his wife, Bessie Nelson, were indicted and convicted of a felony, to wit, possession of intoxicating liquor, two pints of whisky, in Osage county, Okl., the same being in and upon Indian country. Fred Nelson alone brings the case here, the writ having been dismissed as to Bessie Nelson.
The indictment rests upon two statutes. Section 17 of the Act of March 2, 1917, 39 Stat. 969 (U. S. Comp. Stat. § 4137a), reads, “That all of Osage county, Oklahoma, shall hereafter be deemed to be Indian country within the meaning of the acts of Congress making it unlawful to introduce intoxicating liquors into the Indian country;” and by Act of June 30, 1919, 41 Stat. 4 (U. S. Comp. Stat. 1923 Supp. § 4137aa), it is provided “that on and after July 1, 1919, possession by a person of intoxicating liquors in the Indian country or where the introduction is or was prohibited by treaty or federal statute shall he an offense and punished in accordance with the provisions of the Acts of [523]*523July 23,1892 (27 Stat. p. 260), and January 30, 1897 (29 Stat. p. 506).”
The errors assigned may be grouped under four heads: (1) Error in overruling motion to quash indictment and suppress evidence. (2) Permitting Graves and Cooper, two government witnesses, to testify as to the results of a search of the persons of the defendants after arrest. (3) Refusal of the lower court to direct a verdict at the close of the government’s case, and at the close of , all the testimony. (4) Alleged errors in the court’s instructions to the jury. For convenience points 1 and 2 may be diseussed together.
1,2. Nelson and his wife, while driving an automobile on the public road, were stopped by the three officers, the prosecuting witnesses, searched, and' liquor found in the possession of the wife, Bessie Nelson. At the opening of the trial defendants filed a written motion to exclude the evidence of these witnesses on the ground that they had no search warrant. This motion was denied and no exception taken. The motion was renewed after the trial had begun, whereupon the court excused the jury and offered to take testimony from both sides on the question. No evidence was tendered, except that of the three officers. The court made a finding of fact that they were justified in intercepting the automobile, and arresting and searching the defendants without a warrant. The objection was again renewed when the first of the officers was called to the witness stand.
The facts are: Nelson, his wife and brother, residents of Hominy, Osage county, OH., left town very early one morning in Nelson’s car for Sapulpa. After proceeding some distance they turned around because, as one of them testified they found the road impassable, and were on their way back to town when they were first stopped by the witness Pyle, and thé ear and their persons searched. No liquor was found and they were permitted to go. Before reaching town, they passed officers Graves and Cooper. Cooper was a police officer in Hominy, and Graves and Pyle, who had joined them, were agents of the Interior Department charged with the suppression of liquor traffic among Indians. The officers followed, and passing them, as they made a detour to avoid going through town, ordered them to stop, stating that they wanted to arrest and search them for whisky, which they proceeded to do. Nothing was found in the automobile or on the persons of Fred Nelson or Ms brother. The officers testified that Mrs. Nelson was dressed very.thinly, and that they saw two large, old-fashioned wMsky bottles concealed in her bosom. She objected to being searched, unless it was done by a woman. The officers acquiesced, and they all drove to the home of a Mrs. Mitchell, who searched Mrs. Nelson and found an empty bottle on her. One of the agents testified that, while driving to the Mitchell home, Mrs. Nelson emptied one of these bottles, containing corn wMsky, so that it saturated her clothing and the seat and floor of the automobile with the liquid.
Cooper, the local police officer, testified that he saw them leave town on the morning in question; that he'had information that defendants were accustomed to go out in the country early in the morning and bring back whisky, just at the time the night police shift went off duty, and return before the day shift went on; that Fred Nelson had been refused a license to drive a taxicab, because he trafficked in liquor; and that he had caught him once before in a liquor violation and obtained a conviction against Mm. The other two officers had practically the same information.
The facts in Carroll v. U. S., 267 U. S. 132, 45 S: Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, are in many respects similar to those in the case at bar There the officers, late in September, 1921, had some conversation with Carroll and one or two others for the purchase of liquor, but the negotiations came to naught. During the two months following, and up to the time of the arrest, the same officers were engaged in patroling the main highway leading from Detroit to Grand Rapids looking for violations of the ProMbition Act. They had observed Carroll going by on more than one occasion in an automobile. On December 15th the officers again saw Carroll and another of the defendants coming out of Detroit. They stopped them and searched the car and found a quantity of liquor therein. The court stated as a fact that “the officers were not anticipating that the defendants would be coming through on the Mghway at that particular time, but when they met them there they believed they were carrying liquor, and hence the search, seizure, and arrest.”
The opinion states that Congress, by the National Prohibition Act and the act supplemental to national proMbition (42 Stats. 222, 223 [Comp. St. § 1013814 et seq.]), made a clear distinction between the necessity for a search warrant in searching private dwellings, and that of automobiles, and that such distinction is not inconsistent with the Fourth Amendment of the Constitution, [524]*524which, as has been frequently held, denounces only such searches and seizures as are unreasonable. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, points out that the search for, and seizure of, stolen and forfeited goods, or goods liable to duties, being concealed to avoid the payment thereof, or articles which it is unlawful for a person to have in his possession, is a totally different thing from a search and seizure of the private books and papers of a citizen for the purpose of obtaining information to be used as evidence. Boyd v. U. S., supra; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654—do not pass upon the question at bar. The Carroll Case further says that the primary object of section 26, tit. 2, of the prohibition statute (Comp. St. § 10138%m.m) is the seizure of contraband liquor, and that the arrest of the transporter is merely incidental.
Page 158 (45 S. Ct. 287): “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for the belief that the contents of the automobile offend against the law.” In other words, the ear is the offender. And page 149 (45 S. Ct. 283): “On reason and authority the true rule is that, if the search and seizure without a warrant are made upon probable cause — that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction — the search and seizure are valid.” And page 161 (45 S. Ct. 288): “ ‘If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.’ ” See, also, Garske v. U. S. (C. C. A.) 1 F.(2d) 620.
In view of the testimony in this record, we do not feel justified in saying that the lower court erred in denying the motion to suppress the evidence. The officers acted upon the defendant’s reputation as a law violator, his suspicious conduct, the unusual hour of the day he was out ,and their knowledge of his previous conviction for a similar offense, etc. We are not permitted to substitute our judgment for that of! either the officers or the lower court, as long as we
find no abuse of the measure of discretion that they must necessarily be allowed to exercise. There is nothing to show that the officers were actuated by any other motive than a proper performance of their duty.
It appears that the same motion had been made and denied at the opening of the trial, and no exceptions saved; so as a matter of right the defendant was not entitled to delay the trial by again raising the same question. Such objections must be seasonably presented. Rossini v. U. S., 6 F.(2d) 350 (8th C. C. A.). Further, the liquor in question to which defendant’s objection goes, was found on Mrs. Nelson, who is not objecting. The husband elaims no interest in it, and cannot complain if her constitutional rights were violated. Brooks v. U. S. (C. C. A.) 8 F. (2d) 593; Bilodeau v. U. S., 14 F. (2d) 582. And as said in McGuire v. U. S. (Jan. 3, 1927) 47 S. Ct. 259, 71 L. Ed.-:
“Even if the officers were liable as trespassers ab initio, which we do not decide, we are concerned here not with their liability, but with the interest of the government in securing the benefit of the evidence seized, so far as may be possible without sacrifice of the immunities guaranteed by the Fourth and Fifth Amendments.”
3. The defendant did not stand on his motion for a directed verdict at the close of the government’s ease, but waived it by introducing evidence on his own behalf. Marron et al. v. U. S. (C. C. A.) 8 F.(2d) 251; Youngblood v. U. S. (C. C. A.) 266 F. 795. We do not find that this motion was repeated at the close of all the testimony. While defendant was not shown to have had any liquor actually on his person, yet the jury were justified in believing, as they evidently did, that he was at least aiding or procuring the commission of an act constituting an offense defined in any law of the United States (C. C. § 332 [Comp. St. § 10506]), and, as his counsel argues, there is a 'presumption that he is in some measure responsible for the criminal acts of his wife committed in his company.
“And if a wife act ifi company with her husband in the commission of a felony, other than treason or homicide, it is conclusively presumed that she acted under his coercion, and is consequently without any guilty intent.” Trust Co. v. Sedgwick, 97 U. S. 304, 24 L. Ed. 954.
4. The last point relates to alleged improper remarks of the court made in the course of his instructions to the jury. The language referred to might well have been left unsaid, but no specific exception was tak[525]*525en thereto, and when read in the light of the instructions as a whole, does not require reversal on our own motion.
It follows that the judgment of the lower, court should be affirmed; and it is so ordered.