The appellant, George Whitman, was convicted on a charge of having intoxicating liquor in his possession in a public place, and. he appeals from the judgment entered upon such conviction, and from an order denying a new trial.
The record shows the following facts: On April 20, 1924, a barber shop in the city of Burke was searched by officers, who found in a closet in the reаr of the shop a bottle marked “Clover Blossom Toilet Water. Ai pleasing Face Lotion. 'Contains Grain Alcohol 50 per сent.” This bottle contained “Moonshine Whisky.” It is admitted that the defendant was the proprietor of the shop; that he had plaсed the bottle and its contents in the closet and knew that they were being kept there. But as a defense defendant testified thаt he bought the liquor as a face lotion and believed it to be that and had no knowledge that the bottles contained intoxicating liquors or liquors which were capable of being used for beverage purposes.
But expert evidence introduced by the state was to the effect that the liquors seized in defendant’s shop contained 44 per cent of alcohol and wеre capable of being used as beverages; also that these seized liquors differed in color and in alcoholic сontent, and other content, from the Clover Blossom face lotion; that this face lotion contained 50 per cent оf denatured alcohol and is unfit to. be used as a beverage.
In their brief appellant’s counsel say:
“There is no question as to the sufficiency of the evidence to sustain the verdict, so it is unnecessary to print all the state’s testimony.”
The assignments as to the giving and refusal of instructions raise but one question, viz., whether the defendant, knowing that the bottles and their contents were being kept in his shop, would be relieved of criminal liability if he did not know that the liquor was intoxicating and1 capable of being used for beverage purpоses. Appellant’s counsel contends that, to- be -convicted of the offense charged, defendant must know the illegal character of the liquor.
Section 10278, R. C., provides that “it shall be unlawful for any person to keep or have, for personal use or otherwise,” intoxicating liquors in any public place. The statute does not contain the word “knowingly” or any similar term making scienter an element of the offense. The text-writers and the courts have clearly distinguished between offenses mala in se аnd those which are merely mala prohibita. And the courts have held, with very few exceptions, that, where there is nothing in the statutе to indicate that scienter is an element of the offense, the- knowledge or lack of knowledge of the defendant is immаterial. This court has clearly asserted its adherence to this rule. State v. Sasse, 6 S. D. 212,
In the case last cited Chief Justice Taft discusses the rule that:
“The state may in the maintenance of a public policy provide ‘that he who shall do them shall do them at his peril and will not be heard to plead in defense goоd faith or ignorance.’ ”
As supporting their contention, defendant’s counsel cite State v. Wyatt, 47 S. D. 576,
As to the alleged misconduct of the state’s attorney, the record shows that at one time during" his argument to the jury the state’s attorney said that people outside the courthousе and in Burke had told him about the defendant being a bootlegger and selling moonshine, and later in his argument stated that the reason hе was trying the case again was that two of the jurymen who sat on the jury in the prior trial of the case had admitted to him that they had bоught liquor of the defendant. On each occasion defendant's counsel objected to the making of these statements аnd the trial court admonished the jury that in arriving at a verdict they should not consider any statements not made from the witness stand.
Under any ordinary circumstances the making of such statements by the prosecuting attorney would be such misconduct as would entitle the defеndant to a new trial, and it is doubtful whether any admonition from the court could overcome the prejudice which such statemеnts must be presumed to create. But the record shows that the defendant’s counsel, in his argument, said of the state’s attorney:
“He knew when this case was tried at the last term of court, when the jury disagreed, how the jury stood, and he also knows that it is customary under such сircumstances to1 dismiss a criminal case. Now I am a taxpayer of this county, and it is not right that taxpayers of this county be burdened with the expense of trying
This statement of defendant’s counsel рlainly invited the reply made by the state’s attorney, and it is well established that no one can take advantage of error or misconduct which he has invited.
“The argument of the district attorney having been provoked and invited by counsel for the defendant, it cannot now be assigned and relied upon as misconduct requiring a reversal.” People v. Sliscovich,
See, also, 16 C. J. 911, and the many cases there cited; State v. Parks, 25 N. M. 395,
We find no reversible error in the record, and the judgment and order appealed from are affirmed.