The question presented is the constitutionality of a statute making the fact that a defendant was armed with a pistol, for which he had no license, prima facie evidence of his intent to commit a crime of violence. RCW 9.41.030.
*747Harold Oscar Thomas was charged and convicted of murder in the second degree and assault in the first degree. On this appeal, the only error assigned is the admission of testimony that the appellant was carrying a pistol for which he had no license and the court’s instruction to the jury: that
“. . . the fact that the defendant is armed with a pistol and had no license to carry same shall be prima facie evidence of his intention to commit ...”
the crime of violence with which he is charged. This evidence was admitted, and the instruction given pursuant to ROW 9.41.030, which reads:
“In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.”
If this statute is constitutional, it was not error to admit the challenged testimony.
This court recognized, as early as State v. Fitzpatrick (1927), 141 Wash. 638, 251 Pac. 875, and as recently as State v. Person (1960), 56 Wn. (2d) 283, 352 P. (2d) 189, that the legislature may declare that the proof of one fact shall be prima facie evidence of another. The only restriction on this power is that the fact proved must bear a rational connection to the ultimate fact presumed. The test to be applied, as stated in State v. Kelly (1944), 218 Minn. 247, 256, 15 N. W. (2d) 554, 162 A. L. R. 477, is
“ ‘. . . Does our experience demonstrate that the fact presumed is usually and probably co-existent with the fact from which the presumption flows?’ ”
If we phrase our test in terms of what experience demonstrates, we must give a great deal of credence to the legislative enactment. However, we should not, as Mr. Justice McReynolds pointed out in his dissent in Casey v. United States (1928), 276 U. S. 413, 72 L. Ed. 632, 48 S. Ct. 373, replace the thumbscrew as an aid in securing criminal convictions with the much less painful legal presumption.
*748The rationale of our cases upholding comparable statutes in other areas is well stated in State v. Person, supra, and what we said there need not be repeated here.
There is one jurisdiction — Indiana—which considered a statute very similar to the one here in question, and concluded that the fact that a person was armed with an “unlicensed gun” was completely irrelevant to the question of whether or not that person intended a crime of violence. See Everett v. State (1935), 208 Ind. 145, 195 N. E. 77; Powers v. State (1933), 204 Ind. 472, 184 N. E. 549, 86 A. L. R. 166.
Appellant also urges that Alabama has held a similar statute to be unconstitutional. We do not so read the two cases cited, nor the later Alabama case of Parker v. State (1956), 266 Ala. 63, 94 So. (2d) 209. The door is certainly left open for the use of the statute under proper instructions.
But whether it be two states, or one, that has declared comparable statutes unconstitutional, we are not in accord.
The reasoning of the Indiana cases, on the matter of rational relationship does not appeal to us. Since a person can so easily obtain a permit to carry a pistol for any lawful purpose, it would not be unreasonable to infer that anyone who carries a pistol without obtaining a permit does so for an unlawful purpose; and, if a person is involved in a crime of violence, armed with a pistol, the fact that he had no permit or license to carry it is a relevant fact which permits an inference that he intended to commit a crime of violence, which other evidence shows he actually did commit. The distinction must be kept in mind: that the statute does not make the possession of a pistol without a license evidence of the commission of crime, but evidence of intent. This inference of intent is, of course, rebuttable; but, more important, it is not conclusive even if no attempt is made to rebut it. It is sufficient evidence to take the case to the jury on the issue of intent, but the jury is not obligated to attach any weight to it. It considers it for what it may be worth. State v. Person, supra.
*749We hold that there is a rational connection between carrying pistols without a license and intending crimes of violence, and, consequently, the questioned statute is constitutional. The evidence, that the defendant had in his possession a pistol which he had no license to carry, was admissible.
State v. Person, swpra, is authority for the proposition that if an instruction, based on the statute making one fact prima facie evidence of another, is given, the phrase “prima facie evidence” must be explained in such manner as to make it clear that prima facie evidence is not binding on the jury even though no attempt is made to rebut it. Whether an instruction, based on the statute, should be given is arguable. It can be said that when the evidence was admitted, of the defendant’s possession of a pistol which he had no license to carry, and the case was permitted to go to the jury, the state had had all of the advantage it was entitled to receive from the statute and the weight and significance of the evidence was a matter of argument. On the other hand, the defendant might well feel that since the evidence was admitted for a specific and limited purpose, an instruction limiting it to that purpose should be given, either at the time the evidence was admitted or in the instructions given at the close of the trial.
Unfortunately, this case went to the jury a month before our opinion in the Person case was filed; and the definition of prima facie evidence in the instruction1 is in conflict with what we said in that case, and have repeated here — it places a burden on the defendant to “contradict and overcome the evidence,” which has been labelled “prima facie.”
*750If on a retrial an instruction, based on this statute, is given, it must make clear that no such burden is imposed upon the defendant and that the jury need give the fact that he had in his possession a pistol, for which he had no permit, only such weight on the issue of intent as it seems to it to merit.
No objection was raised by the appellant to the definition of “prima facie evidence,” as contained in instruction No. 28; he was objecting to the entire instruction because of his contention that the statute was unconstitutional. While we do not agree with that contention, we do not feel (in view of the aura of uncertainty relating to the effect of such statutes, and the very recent date of a significant clarification in State v. Person, supra, subsequent to the giving of the instructions in this case), that we should adhere to the rule that the trial court must have its attention directed to the specific error contained in an erroneous instruction before that error can be urged as a ground for a new trial in this court.
The conviction is set aside, because of the erroneous definition of prima facie evidence,2 and the case remanded for a new trial.
Finley, C. J., Donworth, Weaver, Rosellini, and Foster, JJ., concur.
Instruction No. 28:
“You are instructed that under the laws oí the State of Washington no person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor.
“You are further instructed that in the trial of a person for committing or attempting to commit a crime of violence, the fact that the defendant is armed with a pistol and had no license to carry same shall be prima facie evidence of his intention to eommit such crime of violence.
“ ‘Prima facie evidence’ means evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence.”
We are not here concerned with a general definition of prima facie evidence, but with a definition of “prima facie evidence” within the purview of RCW 9.41.030 quoted in the second paragraph of this opinion.