
    [No. 18321.
    Department One.
    April 17, 1924.]
    The State of Washington, Respondent, v. Cal Hunt, Appellant. 
      
    
    Intoxicating Liquoes (47) — Prosecutions—Issues and Proof— Pbiob Convictions. In a prosecution for the unlawful possession of intoxicating liquor, charging also a prior conviction, it is not necessary to prove the prior conviction to warrant a verdict of guilty of having liquor in possession only.
    Criminal Law (452, 453) — Appeal—Harmless Error — Instructions — Error Favorable to Appellant. Error in instructions placing too heavy a burden upon the state is not prejudicial to defendant.
    Appeal from a judgment of the superior court for Spokane county, Webster, J., entered October 21,1922, upon a trial and conviction of the unlawful possession of intoxicating liquor.
    Affirmed.
    
      William, S. Lewis, for appellant.
    
      Chas. H. Leavy, M. R. Morton, and Edward M. Con-nelly, for respondent.
    
      
      Reported in 224 Pac. 932.
    
   Per Curiam.

On this appeal from judgment based upon a verdict of the jury finding the appellant guilty of having intoxicating liquor in his possession, the state concedes that the jury was improperly instructed, but contends that tbe instructions were not prejudicial, and in fact were to tbe advantage of tbe appellant. Tbe court instructed tbe jury tbat, under tbe information charging appellant with unlawful possession of intoxicating liquor with intent to sell tbe same, and also tbat tbe appellant bad theretofore been convicted of tbe crime of having liquor in bis possession, it was necessary for tbe state to prove tbat the appellant bad tbe intoxicating liquor for tbe purpose of sale, ánd also bis prior conviction, in order for tbe jury to return a verdict of guilty as charged in tbe information, and that it was necessary for tbe state to prove, in order to warrant a verdict of guilty of the included crime of having liquor in possession, in addition to tbe fact of possession, tbe prior conviction. This, of course, was a greater burden upon tbe state than tbe law imposes. Tbe jury returned a verdict of guilty of possession only. Tbe sentence of tbe court was within tbe limit provided for tbat offense and was not affected by § 7339, Rem. Comp. Stat. [P. C. § 3194], which provides tbat, upon a second conviction of unlawfully possessing intoxicating liquor, tbe fine and imprisonment are materially increased from tbat provided for a first conviction. As contended by :the state, tbe error was in favor of tbe appellant, and therefore there is no reason to reverse tbe case.

Judgment affirmed.  