GILBERT, Circuit Judge
(after stating the facts as above). Error is assigned to the refusal of the court to return, suppress, and exclude the evidence obtained upon-the searches of the premises of the plaintiff in error, and it is contended that the search warrant was void because issued to a prohibition agent, that a prohibition agent is not authorized by law to execute a search warrant, and that the prohibition agents were not authorized to enter the inclosed premises of the plaintiff in error in a clandestine and stealthy manner under the authority of a search warrant,'without serving or attempting to serve the same. It is further contended that the prohibition agents were not competent to testify to any fact obtained by them on the premises of the plaintiff in error, their entry having been made secretly, and without service or attempted service until after the arrest of the plaintiff in error.
The contention is that the portion of the Volstead Act, which adopts the provisions of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212a-10212h) as to the conditions of the issuance of search warrants and the form and service thereof by “civil officers,” makes it certain that, under clause 2, section 2, article 2, of the Constitution, the officers so referred to, are such only as hold their appointment through the President, or through the courts, or through the heads of departments, and United States v. Musgrave (D. C.) 293 Fed. 203, is cited, in which it was so held. We are unable to agree with that contention. Our views coincide with those expressed in United States v. Daison (D. C.) 288 Fed. 199, United States v. Keller (D. C.) 288 Fed. 204, United States v. Syrek (D. C.) 290 Fed. 820, United States v. O’Conner (D. C.) 294 Fed. 584, and United States v. American Brewery Co. (D. C.) 296 Fed. 772.
The National Prohibition Act (Comp. Stat. Ann. Supp. 1923, § 10138%b) directs the Commissioner of Internal Revenue, his assistants, agents, and inspectors, to investigate and report violations of the War Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 3115ll/i2h), and confers upon such Commissioner, his assistants, agents, and inspectors, power to swear out warrants before the United States commissioners or other officers. Section 10138%e recognizes prohibition agents as officers of the United States. It provides that the Commissioner of Internal Revenue, his assistants, agents, and inspectors, “and all other officers of the United States” whose duty it is to enforce the. criminal laws, shall have the power for the enforcement of the War Prohibition Act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under tire laws of the United States. Title 2, § 1, subd. 7 (41 Stat. 308 [Comp, St. Ann. Supp. 1923,_ § 10138%]), provides that any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose. Section 28 of the same title (section 10138%o) gives to the Commissioner, his assistants, agents, and inspectors, power and protection — -
[410]*410“in the enforcement of this act or any provisions thereof which is conferred hy law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.”
These 'inclusive words should be held to mean that the prohibition agent is constituted a peace officer. Convincing evidence that such is the intention of the statutes is found in section 6 in the act supplementary to the National Prohibition Act (42 Stat. 223 [Comp. St. Ann. Supp. 1923, § 10184a]), which imposes a penalty on any officer, agent, .or employé of the United States engaged in the enforcement of the National Prohibition Act who shall search a private dwelling without a warrant directing such search, “or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property.” Clearly by implication this statute recognizes the power of prohibition agents to execute search warrants.
It is contended that the plaintiff in error was entitled to the exclusion of all evidence of what the officers saw and heard upon his premises on the night of December 19, for the reason that their entry thereon was clandestine and unlawful; no service having been made of the search warrant. It is true that the officers went upon the premr ises at night and in a secret manner, and awaited the appearance of the plaintiff in error; they having caused to be sent him what purported to be a friendly warning to the effect that officers would be there in the morning, and the advice that he “dump that stuff in the willows.” The appearance.of the plaintiff in error and his codefendant, Brite, upon the scene, was evidence to the officers that they had come in response to the warning, and that the illicit still in the dugout belonged to them. 'The officers heard Brite tell the plaintiff in error to stay and watch the place and “kill the first son of a bitch that shows up.” They heard one of them remark “that it smelled pretty strong down there,” referring to the dugout, and heard the other answer that he would go down and open it and let the air out. The officers had noticed the strong odor of .fermentation, and after the dugout had been opened by Brite they saw the contents of it. When they told the plaintiff in error he was under arrest, he began firing, and thereupon several shots were exchanged, and one of the officers was mortally wounded.
The foregoing is the substance of the testimony as to what occurred on December 19. There was clearly no error in its admission. The officers were armed with a search warrant, but there was no occasion to use it. . They did not need to serve it in order to go upon the land of the plaintiff in error. They had no occasion to open the door of the dugout. It was opened by Brite. They had ample evidence of their senses that a crime was then and there being, committed. Conclusive against the contention here urged is Hester v. United States, 44 Sup. Ct. 445, 68 L. Ed.-, decided by the Supreme Court on May 5, 1924. In that case the officers had no warrant for search or arrest. The evidence which they offered consisted of articles which they found in the dooryard of the premises of the accused. Said the court:
“The special protection accorded hy the Fourth Amendment to the people in their ‘persons, houses, papers and effects’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”
[411]*411Nor was the plaintiff in error entitled to the exclusion of the evidence obtained by the officers on December 21. On that morning the plaintiff in error had been arrested and he had left one Jack Leonard in charge of his ranch. When the officers arrived on the premises, Leonard gave full permission to enter and search for evidence. The officers discovered certain articles which tended to show that there had been distillation at the dugout, and proof of what they found was received in evidence. Notwithstanding that the officers had omitted to bring with them their search warrant, they could lawfully, with the consent of the owner, enter upon and search the premises. Dillon v. United States (C. C. A.) 279 Fed. 639; Maldonado v. United States (C. C. A.) 284 Fed. 853; Windsor v. United States (C. C. A.) 286 Fed. 51. The case is unlike Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed.
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GILBERT, Circuit Judge
(after stating the facts as above). Error is assigned to the refusal of the court to return, suppress, and exclude the evidence obtained upon-the searches of the premises of the plaintiff in error, and it is contended that the search warrant was void because issued to a prohibition agent, that a prohibition agent is not authorized by law to execute a search warrant, and that the prohibition agents were not authorized to enter the inclosed premises of the plaintiff in error in a clandestine and stealthy manner under the authority of a search warrant,'without serving or attempting to serve the same. It is further contended that the prohibition agents were not competent to testify to any fact obtained by them on the premises of the plaintiff in error, their entry having been made secretly, and without service or attempted service until after the arrest of the plaintiff in error.
The contention is that the portion of the Volstead Act, which adopts the provisions of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212a-10212h) as to the conditions of the issuance of search warrants and the form and service thereof by “civil officers,” makes it certain that, under clause 2, section 2, article 2, of the Constitution, the officers so referred to, are such only as hold their appointment through the President, or through the courts, or through the heads of departments, and United States v. Musgrave (D. C.) 293 Fed. 203, is cited, in which it was so held. We are unable to agree with that contention. Our views coincide with those expressed in United States v. Daison (D. C.) 288 Fed. 199, United States v. Keller (D. C.) 288 Fed. 204, United States v. Syrek (D. C.) 290 Fed. 820, United States v. O’Conner (D. C.) 294 Fed. 584, and United States v. American Brewery Co. (D. C.) 296 Fed. 772.
The National Prohibition Act (Comp. Stat. Ann. Supp. 1923, § 10138%b) directs the Commissioner of Internal Revenue, his assistants, agents, and inspectors, to investigate and report violations of the War Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 3115ll/i2h), and confers upon such Commissioner, his assistants, agents, and inspectors, power to swear out warrants before the United States commissioners or other officers. Section 10138%e recognizes prohibition agents as officers of the United States. It provides that the Commissioner of Internal Revenue, his assistants, agents, and inspectors, “and all other officers of the United States” whose duty it is to enforce the. criminal laws, shall have the power for the enforcement of the War Prohibition Act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under tire laws of the United States. Title 2, § 1, subd. 7 (41 Stat. 308 [Comp, St. Ann. Supp. 1923,_ § 10138%]), provides that any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose. Section 28 of the same title (section 10138%o) gives to the Commissioner, his assistants, agents, and inspectors, power and protection — -
[410]*410“in the enforcement of this act or any provisions thereof which is conferred hy law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.”
These 'inclusive words should be held to mean that the prohibition agent is constituted a peace officer. Convincing evidence that such is the intention of the statutes is found in section 6 in the act supplementary to the National Prohibition Act (42 Stat. 223 [Comp. St. Ann. Supp. 1923, § 10184a]), which imposes a penalty on any officer, agent, .or employé of the United States engaged in the enforcement of the National Prohibition Act who shall search a private dwelling without a warrant directing such search, “or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property.” Clearly by implication this statute recognizes the power of prohibition agents to execute search warrants.
It is contended that the plaintiff in error was entitled to the exclusion of all evidence of what the officers saw and heard upon his premises on the night of December 19, for the reason that their entry thereon was clandestine and unlawful; no service having been made of the search warrant. It is true that the officers went upon the premr ises at night and in a secret manner, and awaited the appearance of the plaintiff in error; they having caused to be sent him what purported to be a friendly warning to the effect that officers would be there in the morning, and the advice that he “dump that stuff in the willows.” The appearance.of the plaintiff in error and his codefendant, Brite, upon the scene, was evidence to the officers that they had come in response to the warning, and that the illicit still in the dugout belonged to them. 'The officers heard Brite tell the plaintiff in error to stay and watch the place and “kill the first son of a bitch that shows up.” They heard one of them remark “that it smelled pretty strong down there,” referring to the dugout, and heard the other answer that he would go down and open it and let the air out. The officers had noticed the strong odor of .fermentation, and after the dugout had been opened by Brite they saw the contents of it. When they told the plaintiff in error he was under arrest, he began firing, and thereupon several shots were exchanged, and one of the officers was mortally wounded.
The foregoing is the substance of the testimony as to what occurred on December 19. There was clearly no error in its admission. The officers were armed with a search warrant, but there was no occasion to use it. . They did not need to serve it in order to go upon the land of the plaintiff in error. They had no occasion to open the door of the dugout. It was opened by Brite. They had ample evidence of their senses that a crime was then and there being, committed. Conclusive against the contention here urged is Hester v. United States, 44 Sup. Ct. 445, 68 L. Ed.-, decided by the Supreme Court on May 5, 1924. In that case the officers had no warrant for search or arrest. The evidence which they offered consisted of articles which they found in the dooryard of the premises of the accused. Said the court:
“The special protection accorded hy the Fourth Amendment to the people in their ‘persons, houses, papers and effects’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”
[411]*411Nor was the plaintiff in error entitled to the exclusion of the evidence obtained by the officers on December 21. On that morning the plaintiff in error had been arrested and he had left one Jack Leonard in charge of his ranch. When the officers arrived on the premises, Leonard gave full permission to enter and search for evidence. The officers discovered certain articles which tended to show that there had been distillation at the dugout, and proof of what they found was received in evidence. Notwithstanding that the officers had omitted to bring with them their search warrant, they could lawfully, with the consent of the owner, enter upon and search the premises. Dillon v. United States (C. C. A.) 279 Fed. 639; Maldonado v. United States (C. C. A.) 284 Fed. 853; Windsor v. United States (C. C. A.) 286 Fed. 51. The case is unlike Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, where it was held that the act of a man’s wife in allowing government officers to enter his home without a warrant, for the purpose of making a search, was not a waiver of his constitutional privilege against unreasonable search and seizure; the court being of the opinion there.was “implied coercion.” In the present case there was neither actual nor implied coercion. The permission to search was freely given. What is here said in regard to the evidence obtained on December 21 is applicable in every respect to the evidence obtained on December 26.
It is to be conceded that there was no authority to search the dwelling house of the plaintiff in error, there having been no showing of illegal sale of liquor therein. But the only assignment of error which challenges the introduction of evidence of what was seen by the officer in the dwelling house is directed to the proof that one of the officers noticed several sacks of sugar in the house. The introduction of that evidence could not have prejudiced the plaintiff in0error, in view of the overwhelming proof, of the distillation of liquor at the dugout, and the presence of apparatus therefor, and the large quantity of material for fermentation found elsewhere upon the premises of the plaintiff in error.
The point is urged, although it is unsupported by assignment of error, that, the plaintiff in error could not be lawfully punished both for the manufacture of intoxicating liquor and the possession of materials and property to be used in such manufacture; the contention being that evidence to sustain either count will sustain the other. Gavieres v. United States, 220 U. S. 338, 31 Sup. Ct. 421, 55 L. Ed. 489, and Morgan v. Devine, 237 U. S. 632, 35 Sup. Ct. 712, 59 L. Ed. 1153, are cited, together with Reynolds v. United States (C. C. A.) 280 Fed. 1, in which it was held that the defendant could not be punished under each of two counts, one charging the manufacture of intoxicating liquors and the other the possession of implements and materials designed for such manufacture, where the charges contained in the respective counts grew out of substantially the same transaction. Not all of the evidence is contained in the bill of exceptions. There is nothing in the record before us to show that the two charges grow out of the same transaction. Necessarily, in a charge of manufacturing intoxicating liquor, there must be implied the possession of the necessary material and apparatus to manufacture it.
[412]*412But one engaged in such manufacture might well be charged with the possession of property intended for use in manufacturing intoxicating liquor, which was not yet actually used by him in the particular act of manufacturing liquor of which he was charged. Such was evidently the case here. There' was evidence that the plaintiff in error had, elsewhere than at the dugout, large quantities of material adapted to the manufacture of liquor; and certain it is, in the absence of an assignment of error, that the record here does not show that the court in imposing sentence committed that plain error which is requisite to entitle us to review its action. The two counts are not more incompatible than counts which have been sustained by this and other courts. Massey v. United States (C. C. A.) 281 Fed. 293; De Jianne v. United States (C. C. A.) 282 Fed. 737; Bell v. United States (C. C. A.) 285 Fed. 145; Traversi v. United States (C. C. A.) 288 Fed. 375; Singer v. United States (C. C. A. 288 Fed. 695.
The judgment is affirmed.
RUDKIN, Circuit Judge. I see no special reason for disagreeing with the conclusion of Judge GIDBERT on the question of the validity of the search warrant, or the authority of the prohibition agents to execute it, but neither the validity of the warrant nor the authority to execute it is involved in the present case.
On the first visit to the ranch there was no invasion of the home. The utmost that can be claimed is that the officers were trespassers there, and conceding all this testimony as to what they saw and heard was clearly competent. If this testimony was competent,there is no question as to the guilt of the accused, and for that reason I concur in the judgment. I do not concede, however, that the officers derived any authority to make the subsequent searches, either from a search warrant not in their possession or from the consent given by a mere servant or caretaker.