
    159 So. 267
    CUNNINGHAM v. STATE.
    7 Div. 95.
    Court of Appeals of Alabama.
    Feb. 5, 1935.
    
      Thos. W. Millican, of Fort Payne, for appellant.
    A. A. Carmichael, Atty. Gen., for the State.
   SAMFORD, Judge.

The sheriff of De Kalb county, with three deputies, went to the humble country home of this defendant and without a warrant searched the premises for whisky. In an old trunk in the house the sheriff found three pints of whisky. Who was in possession of this whisky rested in inference and could only be fastened on defendant, by reason of the fact that he was living in the house. The evidence discloses that the defendant was very old, sick, and had been bedridden for two months before the raid. The undisputed evidence is that defendant.did not know of the location of the whisky, who brought it there, or how much or where it was kept. The only evidence tending to connect defendant with any whisky was that those who were attending him in his sickness would from time to time give to him from a cup, some eggs, with whisky in them. The facts surrounding this search and seizure are such as to rebut any guilty scienter on the part of this defendant, in the absence of which a conviction, though perhaps technically inferences might be drawn to support the judgment, should not be allowed to stand. The motion for a new trial should have been granted, and as the facts will probably be the same as appears by this record, a judgment will here be rendered discharging the defendant. Oldacre v. State, 16 Ala. App. 151, 75 So. 827; Fair v. State, 16 Ala. App. 152, 75 So. 828; Fennoy v. City of Hartselle, 23 Ala. App. 294, 124 So. 399; Eldridge v. State, 24 Ala. App. 395, 135 So. 646.

The judgment is reversed, and one will here be rendered discharging the defendant.

Reversed and rendered.  