
    State of Minnesota vs. James P. Ahern.
    Argued June 15, 1893.
    Affirmed July 14, 1893.
    Error Held Harmless.
    In a criminal trial the attorney for the state, speaMng to the jury upon a certain point,, commented upon the fact that the defendant had not testified in his own behalf. This was error, hut Jteld harmless, for the reason that the evidence of defendant’s guilt was conclusive and uncontradicted.
    Burden of Proof.
    In prosecutions for an unlicensed sale of intoxicating liquor the burden is on the defendant to show that he had a license.
    Immaterial Matter.
    The quantity of liquor sold is immaterial, if it he less than five gallons.
    
      Appeal by defendant, James P. Ahem, from an order of the District Court of Goodhue County, W. C. WilHston, J., made February 20, 1893, denying his motion to set aside a verdict of guilty and grant him a new trial.
    He was indicted for selling intoxicating liquof on August 9, 1892, at the Town of Goodhue in that county, without license, to Otto Carlson, in quantity less than five gallons. He pleaded not guilty. On the trial Carlson testified that defendant kept a “blind pig,” and that on the day named he bought of defendant at this place a half pint of brandy. Defendant did not testify on the trial. The County Attorney in his closing address to the jury said to them:
    “If the liquor sold was not brandy, as testified to by Carlson In this case, it was an easy matter for defendant to take the stand and refute the charge, but he did not do it.”
    To this remark the defendant then and there objected and duly excepted. Being found guilty, he moved for a new trial. It was denied, and he appeals.
    
      J. G. McClure and F. M. Wilson, for appellant.
    The burden of proving that the defendant was not licensed to sell intoxicating ’ liquors was on the State, but the court refused to so charge the jury. It is true that courts in a majority of the states of the Union have held otherwise in this class of cases, and this court in two' instances has given sanction to- the rule; but the doctrine is at variance with the mies of evidence in both civil and criminal cases, and we venture to ask the court to again consider the matter. We do- not go into any -argument of the question, but submit it on what is said in Meha-n v. State, 7 Wis. 670, and Hepler v. State, 58 Wis. 46, and the authorities there cited.
    The court should have set the verdict aside and granted a new trial for the misconduct of the prosecuting attorney in alluding to and commenting upon the neglect of the accused to testify. 1878 G. S. ch. 73, § 7.
    The only means of correcting errors and abuses of this Mnd is the granting of new trials. In the cases cited below new trials were granted for improper remarks of the prosecuting attorney, independent of any statute. Mitchum v. State, 11 Ga. 615; Tucker v. Henniker, 41 N. H. 317; Jenkins v. Ore Dressing Go., 65 N. C. 563; 
      State v. Williams, 65 N. C. 505; Rolfe v. Inhabitants of Rumford, 66 Me. 564; Brownlee v. Hewitt, 1 Mo. App. 360; Thompson v. State, 43 Tex. 268; State v. Kring, 1 Mo. App. 165; State v. Smith, 75N. G. 306; State v. Foley, 45 N. H. 466; Winter v. Sass, 19 Kan. 556; Far man v. Lauman, 73 Ind. 568; Fry v. Bennett, 3 Bosw. (N. Y.) 220; Brown v. Swineford, 44 Wis. 282; Coble v. Coble, 79 N. G. 589; Ormsby v. Johnson, 1 B. Mon. 80; Ferguson v. State, 49 Ind. 33; Foe y. People, 49 Ill. 410; State y. Reilly, 4 Mo. App. 392; Sfciíe y. Clouser, 72 Iowa, 302; Corning y. Woodin, 46 Mich. 44; Basse y. State, 68 Wis. 530; Felix Y. Scharnweber, 119 Ill. 445; Gallinger y. La/ce S/iore Traffic Co., 67 Wis. 529; Henry v. Sioux City & P. R. Co., 70 Iowa, 233; Ziiffie lioeft & Ft. S. R. Co. Y. Gavenesse, 48 Ark. 106; Brennan v. City of St. Louis, 92 Mo. 482; Willis v. Lowry, 66 Tex. 540; Chandler v. Thompson, 30 Fed. Bep. 38; Manning y. Bres-nahan, 63 Mich. 584; Huekhold v. St. Louis, I. M. & S. Ry. Co., 90 Mo. 548.
    
      H. W. Childs, Attorney General, and George B. Edqerton, his assistant, for the State.
    In a prosecution for selling intoxicating liquors without a license, the burden of proving such license is upon the defendant. State v. Schmail, 25 Minn. 370; State v. Pfeifer, 26 Minn. 175; State v. Bach, 36 Minn. 234.
    The County Attorney, in using the language he did, committed an error; but, inasmuch as he at once apologized to the court and to the jury for the use of the language, claiming that the same was inadvertently used, the error was cured. People v. Hess, 85 Mich. 128; People v. Greenwall, 115 N. Y. 520; People v. Hopt, 4 Utah, 247; United States v. Kuntze, 2 Idaho, 446; Robinson v. State, 82 Ga. 535; Sutton v. Commonwealth, 85 Ya. 128.
    This court has held that an improper remark made by counsel, not appearing ti> have been sanctioned by the court, is no ground for exception. State v. Brown, 12 Minn. 538, (Gil. 448;) State v. Reid, 39 Minn. 277,
   Dickinson, J.

Upon the trial of an indictment for the sale of intoxicating liquor without a license, the county attorney commented upon the fact that the defendant had not testified in his own behalf as to the kind of liquor sold. This is admitted on the part of the state to have been error. It was a violation of an express provision of the statute passed for the protection of defendants in criminal cases, and the error would have been fatal, under ordinary circumstances. No apology by counsel, nor charge by the court, could be deemed to have certainly averted the consequences which might naturally result, or to have cured the error. But it was harmless, in this case, from the fact that the evidence so conclusively showed the defendant’s guilt that the jury could not have returned a verdict for the defendant without willfully disregarding their duty, and it is not to be supposed that they would have done that. The evidence on the part of the state was complete, positive, and uncontradicted, and nothing appears to< raise a doubt as to its credibility. It is unreasonable to suppose that the result might have been different if counsel had not made the improper remark referred to.

(Opinion published 55 N. W. Rep. 959.)

It has been repeatedly ruled in this court that it is for the defendant, in this class of cases, to prove that he has a license. The burden is not on the state to prove the contrary.

The second requested instruction — that the state must prove the sale of one pint of liquor, “and no more” — was erroneous. The quantity was not material, if it was less than five gallons.

The third assignment of error is based upon a misconstruction of the plain meaning of the charge.

Order affirmed.  