¶1The 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.”
¶2There 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.
¶3Objection 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.
¶4We 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.