Herter

On November 1, 1928, the district attorney for Montana filed an information charging appellant, in the first count, with the unlawful possession of intoxicating liquor, and, in the second, with the maintenance of a nuisance under the National Prohibition Act. Appellant was later convicted on the first charge and acquitted on the second, and from a judgment entered January 29,1929, imposing a fine, he prosecutes this appeal.

The assignment he most persistently presses involves the reception over his objection of evidence secured by the prohibition agents in a search of his residence. The residence is at Helena, and the search was made on October 5, 1928, under authority of a search warrant issued by a United States commissioner at Great Falls on September 28th. The warrant was based -upon information contained in an affidavit made the day before by B. M. Sharp, who stated positively that on September 24th he purchased from appellant at his residence a number of drinks of intoxicating liquor, both beer and whisky, for which he paid at the rate of 25 cents a drink; that appellant was keeping quantities of liquor upon the premises and was selling the same; and, further, that by…