(dissenting)—Not every erroneous instruction to a jury, even in a criminal case, is preju*190dicial or injurious. It must be shown, or necessarily conclusively presumed, to have injured the party complaining.
Conceding that the instruction given the jury that:
“The complaint also charges that the defendant had been theretofore three times convicted of violating the liquor law of this state passed in 1915. But with this part of the complaint, so far as the question of defendant’s guilt or innocence of the offense is concerned, you have no concern and will disregard it. That has regard only to the punishment, with which the jury are in no way concerned,”
was erroneous, it manifestly in nowise harmed or prejudiced appellant. It in fact separated the alleged fourth or aggravated offense of having, on a certain day in Spokane county, unlawfully transported liquor, from the previous convictions of similar offenses. As the jury had the case, they could have acquitted the appellant of the fourth offense and thereby acquit him of any offense and preclude any punishment under the complaint.
I concede, also, that, under a plea of not guilty in a criminal prosecution, every element of the offense as laid in' the accusation is put in issue and is for the jury to determine, and that the court could not direct a verdict of guilty upon the charge, as held in State v. Holmes, 68 Wash. 7, 122 Pac. 345, and other cases cited by the majority. But here the court did not direct a verdict of guilty. He left to the jury the determination of guilt or innocence of the fourth offense and, as stated by the majority,
“The fact of appellant being convicted upon three former occasions was, we may concede for argument’s sake, conclusively proven upon the trial by the introduction of certified copies of the judgments of such convictions and also by admissions made by defendant upon the witness stand.”
*191Section 32 of the act (Laws 1915, p. 16) under which the prosecution was instituted says that,
“Prosecuting attorneys . . . shall, in preparing complaints, informations or indictments for subsequent offenses, allege such previous conviction therein and a certified transcript from the docket of any justice of the peace or a certified copy of the record under seal of the clerk of any court of record shall be sufficient evidence of any previous conviction or convictions of violations of this act.” Rem. Code, § 6262-32.
The above procedure was strictly followed. What the statute specifies as sufficient evidence was produced, and no jury should be allowed to say that it was either in law incompetent as evidence or insufficient in weight. Not merely “for argument’s sake,” but positively and incontestibly was the fact of three former convictions proven. The certified copies of judgments of conviction of competent courts of one Charles Dale were unimpeachable. State v. Dericho, 107 Wash. 468, 182 Pac. 597. Nothing more was necessary than proof of the identity of the accused. The sworn admissions of this Charles Dale of his three former convictions in the courts from which the records came' of the ■ same offenses so certified conclusively and incontestibly established his identity. Even though his plea to the charge herein was not guilty, if he were proven beyond a reasonable doubt to the satisfaction of the jury to have been guilty of the fourth offense then charged only, he was then incontestably in law proven guilty of all the charge; and the jury found him “guilty as charged in the complaint.”
Our statutes provide that the jury shall determine the guilt and the court shall assess the punishment (in all except first degree murder convictions). While, technically, in the present case, the court, by his *192charge, told the jury not to ‘ ‘ concern themselves with the question of prior convictions of defendant but only to regard the guilt or innocence of defendant of the offense with which he is charged in the complaint,” it was essentially submitting to the jury the only issues under which there was the slightest conflict of fact, the ultimate question which would determine whether or not any punishment would be inflicted, and was not a plain invasion of the province of the jury such as would be the case where there was any fact, circumstance, or reasonable inference deducible from facts and circumstances that might justify a contrary result on the facts.
Our holding in State v. Dericho, supra, is not inconsistent with these comments although the trial court there took the opposite course to that of the trial judge here, and it was approved. My contention is that, under the record in this case, the former convictions were conclusively established as a matter of law and as to that element of the charge there was no question or conflict to be submitted to the jury.
I have much graver doubts as to the correctness of the other instruction criticized by , the majority, and would be confident that it contained an unconstitutional comment on evidence, but that, as the majority say, “When read together with other instructions which seem clearly to tell the jury that they were to judge whether the suit cases did contain intoxicating liquor,” might render the criticized portion unprejudicial. If the case is to be retried, however, I agree with the suggestion that the criticized portion should be corrected.
In the other respects I must dissent from the majority. .