
    [No. 19895.
    Department Two.
    August 26, 1926.]
    The State of Washington, Respondent, v. Henry Pool, Appellant.
    
    
       Criminal Law (451) — Appeal—Habmless Error — Argument and Conduct op Counsel. It is not prejudicial error for the prosecuting attorney, in his argument to the jury, to refer to the fact that at the end of the state’s case, the defendant’s counsel concluded that the state had made out a case and for that reason had put in the defendant’s case.
    Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered December 16, 1925, upon a trial and conviction of the unlawful possession of intoxicating liquor. Affirmed.
    
      Samuel P. Weaver and Ross C. Fisher, for appellant.
    
      Joseph H. Johnston, for respondent.
    
      
       Reported in 248 Pac. 434.
    
   Tolman, C. J.

— Appellant was tried and convicted upon the charge of having intoxicating liquor in his possession and, having been twice previously convicted upon similar charges, was . given a penitentiary sentence.

Appealing, he makes but two assignments of error: First, prejudicial- statements by the prosecuting attorney in his argument to the jury; and second, that the evidence was insufficient to sustain the verdict and a new trial should have been granted.

All that the record discloses as a basis for the first assignment is the following:

“Me. Weaveb: We object to that statement, that the giving of that testimony, by the defendant, is an admission on his part. In order to make the record complete, the argument, as I understand the argument that was made by the prosecuting attorney, is that when the state closed its case that I, myself, being a very bright and very smart attorney, concluded that they had proved their case, and that for that reason I then put in the defendant’s case. The objection is that that is prejudice to the defendant, and I desire to except to it at this time.
“The Coubt: It is very hard.to draw the line of demarcation as to just how far an attorney can go or where he must stop, but you have your opportunity, Mr. Weaver, of replying to this sort of an arguüient, and the jury are the ones to consider the argument and the testimony as well. The objection is overruled.
“Defendant excepted.”

Assuming that that occurred which counsel by his objection says occurred, it amounts to no more than the statement that, at the close of the state’s case, counsel for the defense concluded that evidence had been produced sufficient to take the case to the jury and had failed to make the usual motion. This would be a misstatement of the record, for we find that, at the close of the state’s case, a motion for an instructed verdict was made, but whether in the presence of the jury or not, the record fails to show. If made in the presence' of the jury, the jury knew that the prosecutor was mistaken ; if not so made, the jury knew the case was being submitted to it; and so submitted because either no such motion was made, or because the court had denied such a motion. In either event, we can see no' prejudice to the appellant. In his brief and argument, counsel for appellant takes a position not borne out by tbe record made by bis objection, and of course, that being outside of tbe record, we can not now consider it.

In oral argument, much was said to tbe effect that in tbis case a harmless farmer, whose only fault was a weakness for strong drink, is being sent to tbe penitentiary solely because be pandered to bis own appetite. That, too, is beside tbe question. Tbe law is as tbe legislature made, it, presumably for sufficient reasons; but, being willing to prevent an injustice, if possible, we have given most careful consideration to tbe evidence and can only conclude that it is ample to sustain tbe verdict. It seems unnecessary to set forth tbe evidence in detail, as no two cases are alike on tbe facts; but it is sufficient to say that our reports are filed with cases where tbe evidence was less convincing, and, except for a lack of testimony that tbe possession was for tbe purpose of unlawful sale, in fact, we see nothing to be specially noted.

Tbe judgment appealed from is affirmed.

Mitchell, Mackintosh, Parker, and Askren, JJ., concur.  