The accused was discovered lying under a counter in a store, at night, a short time before the usual hour for closing the store. He was asleep, or pretended to be asleep; appeared to be in a stupor when pulled from under the counter, and would not say anything, did not answer questions put to him, or speak. His presence was discovered because of a “ scrambling ” noise, such as might have been made by him in moving his-foot. A policeman who was sent for arrested the accused. No goods were-found on his person, nor had anything been taken from the store. He still appeared to be in a stupor ; was able to walk to the calaboose, but the officer could “get nothing out of him ” on the way there. Earlier on the same night the arresting officer saw the accused drinking in a saloon, advised him not to-drink any more, else he would get into trouble, and told him to stop drinking and go home. After being so warned, the accused bought a pint of liquor and left, and was not again spen by the officer until the arrest was made, between nine and half-past nine o’clock. Seld, that these facts were *136not sufficient to authorize a conviction of the accused under the Penal Code, § 180, which declares that “ Any person entering a dwelling-house, store, shop, or warehouse, or any other house or building, with intent to steal, but who is detected and prevented from so doing, shall be guilty of a misdemeanor.” Judgment reversed.