
    STATE, Respondent, v. WELLS, Appellant.
    (221 N. W. 56.)
    (File No. 6187.
    Opinion filed Sept. 22, 1928.)
    
      Harry P. Atwater, of Sturgis, for Appellant.
    
      Buell F. Jones, Attorney General, and Bernard A. Brown, Assistant Attorney General, for the State.
   POLLEY, J.

The defendant was convicted of a violation of the Pro'hibtion Law-; his trial being had prior to' the taking effect of chapter 93, Laiws of 1927, amending section 4879, R. C. 1919. His motion for a new trial was overruled, and. he appeals to this court.

At the trial of the case, the defendant requested the court to give the following instruction:

“You are instructed * * * that the fact that the defendant has not testified in this case raises no, presumption against him, and you must give no. thought to the fact that the defendant did not testify in his own behalf in this case in arriving at your verdict.”

This request was refused, and such refusal is assigned as error. The instructions that were given by the court are set out in full in appellant’s ¡brief, but they do not contain the above requested instruction, nor the substance thereof. The above requested instruction is in the exact words of the instruction that was requested in State v. Wimpsett, 46 S. D. 6, 189 N. W. 983. In that case we held that the refusal to give said instruction constituted reversible error, and, upon the authority of that case, the judgment and order appealed from in this case are reversed.

BURCH, P. J., and CAMPBELL and BROWN, JJ, concur.

SHERWOOD, J, dissents.  