
    The State of Missouri, Respondent, v. Grant Goodman, Appellant.
    Kansas City Court of Appeals,
    January 16, 1899.
    1. Criminal Law: selling liquor: two counts: election: practice. The action of the trial ?ourt in overruling a motion to elect on which of two counts it will imoceed to trial must be excepted to in order to secure a review.
    2. Criminal Procedure: remarks oe prosecuting attorney: evidence. The prosecuting attorney may in his argument refer to the defendant as a violator of the law for three years if the matters stated by the defendant in his evidence before the jury justify such remark, as in this case.
    
      Appeal from the Bates Circuit Court. — ITon. J. H. Lay, Judge.
    Aeeirmed.
    Hárvey O. Clark for respondent.
    Defendant’s counsel objected to tbe remark of the prosecuting attorney to the effect that “this man bad been violating tbe laws of this state for three years.” This was said in the closing argument for the state in commenting upon defendant’s -boast that “they have been jerking me down here for the last two or three years and never proved it,” and “I wasn’t afraid of them proving it against me, for they can’t do it.” Defendant’s own testimony invited the remark, and it will hardly be contended that this running comment upon defendant’s own evidence by the prosecuting attorney, in the heat of an earnest argument, was prejudicial.
   ELLISON, J.

The defendant was indicted, tried and convicted of selling intoxicating liquor in Bates county without a license. The indictment contains two counts, one charging the sale of a pint of beer and the other a pint of ginger ale, each alleged to be an intoxicating liquor. The evidence as to the sale and the intoxicating character of the drink was sufficient to support the finding of the jury. The liquid was contained in a bottle labeled “ginger ale” but “tasted like beer.”

There was a motion made to compel the state to elect on which count it would prosecute. The motion was overruled and the record fails to show an exception.

Objection was made to remarks made by the prosecutor in the course of his argument to the jury charging defendant with having been “a violator of the laws of the state for three years.” It is enough to say of . this that in our opinion the remark was justified by matters stated by defendant while a witness in his own behalf.

We have not discovered anything in the récord to justify us in interfering with the action of the trial court and the judgment will be affirmed.

All concur.  