Lockhart

This is an appeal from a judgment of conviction under two counts of an information — the first charging the unlawful possession of intoxicating liquor; the second, the maintenance of a common nuisance. The undisputed facts are as follows: Pour prohibition agents searched the private dwelling of the appellant without a search warrant, and found therein, and in the basement underneath, 15 gallons of alcohol, 3 gallons of gin, 17 quarts of beer, and some whisky; the quantity not being stated. After searching the private dwelling, one of the agents went before a United States commissioner and procured a search warrant, under and by authority of whieh the agents searched a garage a few feet back of the dwelling, and found therein 140 gallons of alcohol, a part of which at least had been stored there by the appellant on the previous evening. A motion was interposed to suppress all testimony obtained upon the search, on the ground that the seareh was. in violation of the constitutional rights of the appellant. This motion was apparently supported by af-' fidavits and opposed by counter affidavits. When the case was called for trial, the court refused to pass upon the motion to suppress,…