McWalters

Plaintiffs in error were convicted of violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, §§ 10138% et seq.) by maintaining a common nuisance on April 5, 1923, at 2184 Grove street, Oakland, and having unlawful possession of liquor on that date and in the same place.

Error is assigned upon the refusal of the court to strike out certain testimony that defendants had been arrested at some previous times for violations of the prohibition law, and to the introduction of a record showing that on a prior date MeWalters pleaded guilty to a violation of the prohibition statute. No objection was made by defendants’ counsel to the questions asked or to the answers given in respect to these matters until after the introduction of the record of conviction of MeWalters, when a motion to strike out “all this testimony” .was made and' overruled, but no exception was taken to the ruling. In the absence of an exception, it is not incumbent upon the trial or appellate court to consider the assignment. Finley v. United States, 256 F. 845 , 168 C. C. A. 191 .

It is .contended that the court erred in admitting a bottle of liquor taken by a witness for the government from a…