The opinion
GILBERT, Circuit Judge
(dissenting). The dwelling house of the plaintiff in error was a two-story structure. He and his family lived in the upper story. The lower story was made for a garage. It was unconnected with the upper story. The only.access to it was from the outside. The prohibition agents detected strong odors of fermentation and distillation, which were noticeable a half a block away from the premises. Having tried without success to obtain peaceable entrance into the garage, they forced one of the doors and entered. They found therein three 20-gallon stills in full operation, with fires burning under each, 1,500 gallons of mash, one hydrometer, and 25 gallons of jackass brandy. It is contended that, there having been no proof of sale of liquor thereon, the premises were immune from search and seizure, by virtue of National Prohibition Act, tit. 2, § 25 (Comp. Stat. Ann. Supp. 1923, § 10138%m), providing that no warrant shall issue to search any private dwelling, unless used for the unlawful sale of intoxicating liquor, or in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel, or boarding house. It would be a permissible construction to hold that the defendant’s garage, devoted, as it was, to manufacturing purposes, was a shop within the meaning of the statute. The Century Dictionary gives as one definition of a shop:
“A room or building in which the making, preparing, or repairing of any article is carried on, or in which any industry is pursued.”
A definition in 25 Amer. & Eng. Enc. of Law, 1058, is:
“A building in which mechanics labor and sometimes keep their manufactures for sale.”
In Chicago, R. I. & P. Ry. Co. v. Denver & R. G. R. Co. (C. C.) 45 Fed. 304, 314 , Judge Caldwell said:
“Commonly, the word ‘shop’ means a building inside of which a mechanic carries on his work.” *
In State v. Hanlon, 32 Or. 95 , 48 Pac. 353 , it was held that a room wherein a workman pursued his business and kept his tools or the products of his labor was a shop, and in McNab v. McGrath, 5 U. C. Q. B. O. S. 516, a shop was held to be a room where manufactures of some kind are carried on.
But, irrespective of the question whether the room so occupied here as a distillery was a shop, there can be no doubt that the purpose to which the plaintiff in error devoted it partook of the nature of the classes of business specified as creating exceptions to the statute. It seems reasonably clear from the language of the statute that Congress intended to except from the protection against search all dwelling" houses,, a considerable portion of which are devoted to business purposes. The business purposes in contemplation were illustrated by re *369 ferring to shops, saloons, etc.; but obviously it was not the intention to limit the exception to the precise kinds of business so enumerated. Otherwise there would have been no occasion to insert the words “such as.” In other words, it is inferable that Congress intended to illustrate its purpose by reference to certain specified kinds of business, but did not intend to limit the exception to those which were enumerated, or to exclude others not dissimilar thereto.
A private dwelling, used partly for dwelling house purposes and partly for carrying on any well-known business, should be held to be within the exception, as, for instance, a dwelling house used partly for a factory, a public garage, a filling station, a brewery, a distillery, or a storage warehouse. It may be conceded, as was held in United States v. Kelih (D. C.) 272 Fed. 484 , that a dwelling house does not lose its character as such, and become a distillery, merely because a home-made still is found in operation therein; but in the present case the upper story was used as a dwelling house, and the basement, unconnected therewith, was used as a distillery, and the plaintiff in error was engaged in manufacturing intoxicating liquors upon a large scale, and indisputably for commercial purposes. It would, indeed, be a strained construction of the statute which would mean that a distiller or a brewer may so construct his dwelling as to combine with it a brewery or a distillery, and thereby obtain immunity from search or seizure.
In Grogan v. Walker & Sons, 259 U. S. 80 , 42 Sup. Ct. 423, 66 L. Ed. 836 , 22 A. L. R. 1116, it is held that all the provisions of the Volstead Act are to be liberally construed, to the end that the use of intoxicating liquors as a beverage may be prevented. The premises here in question not being immune from search, it was not necessary that the officers should obtain a search warrant. They had the convincing evidence of their senses that a crime was being committed thereon and in their presence. Said Judge Rogers in Agnello v. United States (C. C. A.) 290 Fed. 671 , 679:
“It is well settled that, where an officer is apprised by any of his senses that a crime is being committed in his presence, he may arrest without a warrant. * * * And it is equally true that in such cases an officer may without a warrant enter a building in which the crime is being committed and may search the same.”
In Herine v. United States (C. C. A.) 276 Fed. 807 , this court held that, where the peace and quiet of people was being disturbed by loud and boisterous noise ip. a certain apartment, the seizure of the wines and liquors being used therein was no invasion of the security given by the Fourth Amendment. In Vachina v. United States (C. C. A.) 283 Fed. 35 , we held that where a bottle containing intoxicating liquor, unlawfully in the defendant’s possession, was in plain sight, the seizure thereof by officers was legal, whether or not they had a valid search warrant; the defendant being in the actual commission of an offense in the presence of the officers. A similar ruling was made by this court in Kathriner v. United States (C. C. A.) 276 Fed. 808 . In McBride v. United States, 284 Fed. 416 , the Circuit Court of Appeals for the Fifth Circuit held that the federal agents, who discovered by the sense of *370 smell distillation in an unoccupied house, were warranted in entering and arresting the offender without a warrant, and seizing the still; the court ruling that where an officer is apprised by any of his senses that a crime is being committed, it being committed in his presence, search and seizure are legal. Certiorari was denied in that case. McBride v. United States, 261 U. S. 614 , 43 Sup. Ct. 359, 67 L. Ed. 827 .
“The knowledge that justifies belief as to the actual or probable existence of the crime may arise from any of the senses.” United States v. Kaplan (D. C.) 286 Fed. 963, 973 .
The commission of the crime is “deemed to be in the presence of such officer, when the latter is apprised thereof by his own senses.” United States v. Daison (D. C.) 288 Fed. 199, 202 . An offense is in view of an officer, when his senses afford him evidence that it is being committed. In re Mobile (D. C.) 278 Fed. 949 .
“If an officer may arrest when he actually sees the commission of a misdemeanor or a felony, why may he not do the same, if the sense of smell informs him that a crime is being committed?” United States v. Borkowski (D. C.) 268 Fed. 408, 412 .
About five minutes after the officers entered the premises of the plaintiff in error, and while the distillation was still in progress, he admitted in their presence that he was operating the stills and owned the stills and mash.
The opinion of the majority of this court rests upon the proposition, which in my judgment is untenable, that here the offense of manufacturing liquor unlawfully was not committed in the presence of the officers, for the reason that the defendant himself was not at the time in the garage. He had placed the mash in the stills, had lighted the fires under each, and had gone away. In the meantime, and in the presence of the officers, the unlawful manufacture of liquor was going on, the distillation was in uninterrupted progress, and the jackass brandy was “dropping from the cooler into the container.” The defendant, had he been present, could probably have done nothing to add to those activities. The forces which he had set in operation constituted a continuing offense against the law. The manufacture of the forbidden liquor,was his act, notwithstanding that at the moment he may have been far distant from the scene. In 1 Bishop, New Criminal Procedure, § 183, it is said:
“These officers may avert a criminal act in the process of commission before them, either by arresting the doers, or by seizing and detaining the instruments of crime. And the power of arrest extends, possibly, to any indictable wrong in their presence.”
I submit that the judgment should be affirmed as to all counts.