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 *198behalf 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.