#### STATE v. MARVIN HANFORD.

(Filed 6 January, 1938.)

1. Intoxicating Liquor § 9c — Evidence that liquor was found in defendant’s home in room rented to third person held insufficient for jury.

Evidence that fifteen gallons of intoxicating liquor were found in defendant’s home in a room rented by defendant to a third person, without evidence that defendant had any control over the whiskey in the room or knew that it was there is insufficient to be submitted to the jury on a charge of having possession of intoxicating liquor, for the purpose of sale, and the action is remanded for judgment as of nonsuit. O. S., 4643.

2. Constitutional Law § 14: Criminal Law § 43 — Evidence of result of search of premises embraced in warrant before alteration is competent.

Where an officer alters a search warrant by inserting another name in addition to the name appearing in the warrant when issued, but searches only the room rented by the person whose name originally appeared in the warrant, the search does not exceed the authority under the valid warrant, and evidence of the results of such search is competent. Ch. 339, sec. 6%, Public Laws of 1937.

Appeal by defendant from *Sink, J.,*at October Special Term, 1937, of AlamaNce.

Reversed.

The defendant was tried at the October Special Term, 1937, of the Superior Court of Alamance County on a criminal warrant which was issued by a justice of the peace of said county on a duly verified complaint that “on or about 3 July, 1937, Marvin Hanford willfully and feloniously did have in his possession, illegally, fifteen (15) gallons of intoxicating liquor for the purpose of sale, contrary to the form of the statute and against the peace and dignity of the State.”

He was first tried and convicted on said warrant in the general county court of Alamance County. He appealed from the judgment of the general county court to the Superior Court of Alamance County, in which court the action was tried *de novo,*as provided by statute.

At the close of the evidence for the State, the defendant moved for judgment dismissing the action as of nonsuit. The motion was denied, and defendant excepted. No evidence was introduced by the defendant.

The evidence was submitted to the jury, who returned a verdict that the defendant is “guilty of having whiskey in his possession for the purpose of sale.”

From judgment on the verdict the defendant appealed to the Supreme Court, assigning errors in the trial and in the judgment.

*Attorney-General Seawell and Assistant Attorney-General McMullan for the State.*

*John J. Henderson for defendant.*

*747CONNOR, J.

On 3 July, 1937, on tbe complaint of a police officer of Alamance County, wbicb was duly verified, a justice of tbe peace of said county issued a search warrant by wbicb tbe said officer was authorized to search tbe premises of one Lacey Scott, located on a public road, near tbe town of Burlington, in said county, for intoxicating liquor alleged to be in tbe possession of tbe said Lacey Scott on said premises. After tbe said warrant bad been issued, and before it was served, tbe officer, without notice to tbe justice of tbe peace and without bis authority, inserted in both tbe complaint and tbe warrant tbe name of tbe defendant Marvin Hanford. Tbe name of Lacey Scott, wbicb appeared in tbe complaint and in tbe warrant when tbe warrant was issued by tbe justice of tbe peace, was not erased from either tbe complaint or tbe warrant.

Tbe officer went to tbe borne of tbe defendant Marvin Hanford, and after advising him and Lacey Scott, both of whom were at defendant’s borne, that be bad tbe warrant, authorizing him to search their premises, tbe officer proceeded to search tbe bouse of tbe defendant Marvin Han-ford, and a room in said bouse, wbicb was occupied by Lacey Scott.

In a back room in defendant’s bouse tbe officer found fifteen gallons of whiskey and twenty empty cases. This room was occupied by Lacey Scott, to *whom the*defendant Marvin Hanford bad rented *the*room. Tbe doors to tbe room were closed, but were not locked, at tbe time of tbe search. Both Lacey Scott and tbe defendant Marvin Hanford told tbe officer that tbe whiskey was tbe property of Lacey Scott. There was no evidence tending to show that tbe defendant Marvin Hanford bad any control over tbe whiskey found in Lacey Scott’s room, or that be knew that tbe whiskey was in tbe room. In tbe absence of such evidence, there was error in tbe refusal of tbe court to allow defendant’s motion for judgment dismissing tbe action as of nonsuit.

There was no evidence tending to show that tbe officer searched tbe premises of tbe defendant Marvin Hanford, under tbe search warrant in bis possession at tbe time be went to defendant’s home. He searched only tbe premises of Lacey Scott, as be was authorized to do under a valid search warrant. Tbe evidence tending to show tbe results of such search was not incompetent under tbe provisions of section 6% of chapter 339, Public Laws of North Carolina, 1937. Tbe evidence was competent, but not sufficient to show that tbe whiskey found in tbe room wbicb tbe defendant bad rented to Lacey Scott was in tbe possession of the defendant.

Tbe action is remanded to tbe Superior Court of Alamance County for judgment in accordance with this opinion. C. S., 4643. Tbe judgment is

Eeversed.