
    STATE v. THOMAS M. GEGEN.
    147 N. W. (2d) 925.
    January 20, 1967
    No. 40,148.
    
      Patrick W. Hawkins, for appellant.
    
      Robert W. Mattson, Attorney General, Joseph P. Summers, Corporation Counsel, and Gerald A. Alfveby and Thomas M. Mooney, Assistant Corporation Counsel, for respondent.
   Per Curiam.

Defendant was charged with driving and having control of a motor vehicle while under the influence of an intoxicating beverage.

The state called Police Officer Donald Irving Mars. On direct examination he was asked what he and defendant talked about while they were in the squad car on the way to the police station. He testified:

“Q. What did you talk about?
“A. Well, he wanted to know why I was picking on him and the fact he wasn’t driving. And he said, you can’t stop me for drunken driving. And I told him, he was not being charged with that, and then the conversation went back and forth along that line trying to explain to him what the situation was.
“Q. What did you say?
“A. Well, he said, did you see me driving? And I said, no, I did not see you drive. And that’s about the gest [sic] of the conversation.
“Q. Did you have any other conversation on the way up to the police station, other than on that subject?
“A. Well, he said that he had one prior and he wasn’t going to take this lying down.” (Italics supplied.)

Defendant’s counsel promptly moved for mistrial. The court denied the motion. It should have been granted.

It is hard for us to believe that the question was not asked deliberately and that the prosecutor did not know the answer he was going to get. If prosecutors and police officers persist in trying to inject into a trial indirectly matters which they know they cannot introduce directly the only solution is to let them try the case over.

Reversed and new trial granted.

Mr. Justice Peterson, not having been a member of this court at the time of the submission, took no part in the consideration or decision of this case. 
      
       See, City of Sioux Falls v. Johnson, 78 S. D. 272, 100 N. W. (2d) 750.
     