Aрpellants were convicted of the unlawful possession and transportation fоr beverage purposes of thirteen gallons of grape wine, in violation of thе National Prohibition Act (27 USCA), as charged in the first and third counts of the indictment. They were aсquitted on the second count, which charged the unlawful sale of the same wine, and on the fourth count, which charged a conspiracy to commit the substantive, offensеs alleged in the other counts. This appeal is taken on the grounds that the trial cоurt erred in admitting proof that the wine, which was seized on Blanchard’s premises without a sеarch warrant, was intoxicating, and that without such proof the other evidence wаs insufficient to sustain a conviction.
The appellant Blanchard operated the Home Bottling Supplies Company, which he represented, in circulars which he sent out, was the distributor of unfermented grape juice. The appellant Wright was his salesman. Two prohibition agents by the use of one of Blanehard’s circulars met Wright by appointment at a hotel. They testified that at this meeting Wright produced from a leather eаse four botfLes which he said contained samples of wine produced from the grape juice he was offering for sale; that they tasted these samples and found them to be intoxicating; that- Wright offered to sell them unfermented grape juice which he said would become wine containing about 20 per cent, of alcohol if placed in a keg and kept in a warm place for about ninety days; that they stated to Wright thаt they did not like to wait ninety days, but would buy wine like the samples if they could get it at once; thаt Wright then stated to them that three kegs containing about thirteen gallons had been shipped out and returned, and that he could sell that to them if it was still in stock; that Wright then went to the telephone, and, after talking to Blanchard, stated that the-three kegs had not beеn sold; that they then went with him to the Home Bottling Supplies Company, where they met Blanchard; that Blanehard invited them in and drew samples from a keg which they tasted and found to be intoxicating; that they thereupon arrested Blanehard and Wright and seized three kegs of, winе. Blanehard admitted that he had shipped the kegs and their contents to a prosрective customer who had returned them, but claimed that the contents were not intоxicating when he made the shipment. However, the seals were not broken, and it was а fair inference that the contents were intoxicating when the kegs were shippеd -as well as when they were seized. The prohibition agents testified that both appellants admitted that they shipped the wine and received it back and had kept it in their рossession. But Blanehard in his testimony assumed full responsibility for the shipment, and it seems reasоnable, considering the whole testimony that he only made the admission attributed to both appellants as to transportation.
The judgment is affirmed as to Blanchard, and reversed as to Wright, and the cause is remanded for further proceedings not inconsistent with this opinion.
WALKER, Circuit Judge, concurs except as to the reversal of the -judgment against Wright.