State v. Dunn

• Decision Date: 30 July 1927
• Docket Number: 5059
• Citation: 44 Idaho 636,258 P. 553
• Parties: STATE, Respondent, v. CHRIS DUNN, Appellant
• Court: Idaho Supreme Court

258 P. 553

44 Idaho 636

STATE, Respondent, v. CHRIS DUNN, Appellant

No. 5059

Supreme Court of Idaho

July 30, 1927

CRIMINAL LAW - CONVICTION AS PERSISTENT VIOLATOR - ESSENTIAL ELEMENTS OF CRIME-QUESTION FOR JURY-JURISDICTION OF INFERIOR COURT-FAILURE TO MAKE NECESSARY PROOF-EVIDENCE ADMISSIBLE AS TO ILLEGAL SALE-FAILURE TO INSTRUCT NO ERROR.

1. On prosecution for being a persistent violator of the prohibition law, the state must plead and prove previous conviction, as an essential element of the crime.

2. Former conviction, as an essential element of the offense of being a persistent violator of the prohibition law, is a ques- tion of fact for the jury, so that instruction taking the question from them invades their province.

3. Since, in a felony case, under Const., art. 1, sec. 7, and C S., sec. 8904, the jury must determine all issues of fact taking from them the question of former conviction as an element of offense of being persistent violator of the prohibition law is prejudicial.

4. Under C. S., sec. 8837, one pleading judgment of inferior court must affirmatively prove jurisdiction of the court over the subject matter.

5. Docket of probate court, whose judgment of conviction was pleaded, not disclosing that the criminal complaint charged a crime committed within the county in which the probate court was established, under C. S., sec. 6474, fails to make necessary proof of the inferior court's jurisdiction.

6. Articles, though obtained by illegal search of premises in the possession of another, are admissible against defendant who resided there as member of the family of his brother-in-law.

7. Failure to instruct relative to weight to be given testimony of witness successfully impeached, or that jury might convict of any lower offense included, was not error, no instruction being offered or requested.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Defendant was convicted of being a persistent violator of the state prohibition law. Reversed and remanded.

Reversed and remanded.

F. C. Keane and Latham D. Moore, for Appellant.

A search without a search-warrant and without the permission of the person whose private home is searched is unlawful and unreasonable. (State v. Arregui, ante, p. 43, 254 P. 788.)

Where timely application for the suppression of evidence secured under an unlawful search is made, it devolves upon the state to justify the action of its officers, and facts justifying the actions of its officers should be submitted to the court at the time of the hearing on the petition. (State v. Arregui, supra.)

The reception in evidence of property unlawfully seized by officers, and without due process of law, after the court had made inquiry into and found that such evidence had been seized unlawfully, is reversible error. (State v. Arregui, supra.)

Facts constituting the jurisdiction of the court entering a judgment of conviction of a first offense, where a person is accused of being a persistent violator of the prohibition law, must be established upon the trial of the case. (C. S., sec. 8837.)

Proof of a former conviction is a question of fact for the jury to determine by an unanimous verdict. (State v. Scheminisky, 31 Idaho 504, 174 P. 611; State v. Dale, 110 Wash. 181, 188 P. 473.)

A court cannot invade the province of the jury by instructing the jury that they should find a certain fact as proven, even though the proof of such fact be conclusive. (State v. Dale, supra; State v. McLennan, 40 Idaho 286, 231 P. 718.)

An instruction need not be formally requested where it is indicated to the court that it has failed to instruct the jury on a material issue. (State v. Nicholas, 222 Mo. 425, 121 S.W. 12.)

The trial court should have instructed the jury that the jury could find the appellant guilty of a sale of intoxicating liquor under the proof adduced by the state on the trial of this case. (C. S., sec. 8997.)

Jurisdiction of the subject matter of an action must be determined by the allegations of the complaint. (8 R. C. L., sec. 56.)

Frank L. Stephan, Attorney General, John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.

A person cannot complain of an unlawful search when the premises searched are not his own property or under his control or direction. (Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; Commonwealth v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L. R. A., N. S., 1056; Findley v. State (Okla. Cr.), 234 P. 227; Francis v. State (Okla. Cr.), 221 P. 785; Bowling v. Commonwealth, 193 Ky. 642, 237 S.W. 381; State v. Fowler, 172 N.C. 905, 90 S.E. 408.)

No warrant is necessary to search premises where permission of the owner or person in control of the same is secured. (State v. McLennan, 40 Idaho 286, 231 P. 718; State v. West, 42 Idaho 214, 245 P. 85.)

A person may consent to the jurisdiction of the person. (Ex parte Adjuria, 188 Cal. 799, 207 P. 516.) The court will take judicial notice of the jurisdiction of a lower court over the subject matter of an action. (15 C. J. 734.)

An erroneous instruction is not cause for reversal unless it is prejudicial. (State v. Rice, 7 Idaho 762, 66 P. 87.)

If a conviction could have been sustained had a particular instruction been omitted, the giving of such instruction, even though erroneous, is not prejudicial error. (State v. Marren, 17 Idaho 766, 107 P. 993; State v. Silva, 21 Idaho 247, 120 P. 835; State v. Brill, 21 Idaho 269, 121 P. 79.)

It is not error to fail to give an instruction where no request is made for the same. (State v. Jurko, 42 Idaho 319, 245 P. 685; State v. Knudtsen, 11 Idaho 524, 83 P. 226; State v. Harness, 10 Idaho 18, 76 P. 788.)

If appellant desired an instruction on the lesser crime involved in the aggravated offense, he should have requested the same. (State v. Dale, 110 Wash. 181, 188 P. 473.)

GIVENS, J. Taylor and T. Bailey Lee, JJ., concur, Budge, J., concurs in the conclusion. Wm. E. Lee, C. J., took no part in the opinion.

OPINION

GIVENS, J.

Appellant appeals from the judgment entered on a verdict finding him guilty of being a persistent violator of the state prohibition law.

A certified copy of the docket of the probate court was admitted in evidence and appellant was identified as having been the same person who was the defendant in the probate proceeding. The court instructed the jury:

" . . . . that the record made in the Probate Court, a certified copy of which has been read to you, is sufficient evidence upon which you may find and should find that he has theretofore been convicted of the crime of violating the prohibition law; and you will consider that fact as proven by the evidence introduced before you, so that question is out of the way."

It was incumbent upon the state to allege and prove, as an essential element of the crime charged, the previous conviction. (State v. Adams, 22 Idaho 485, 126 P. 401; 16 C. J. 1342, and cases cited.) This was a question of fact to be determined by the jury (State v. Scheminsky, 31 Idaho 504, 174 P. 611), and the instruction excluding such from their consideration was erroneous. (State v. Dale, 110 Wash. 181, 188 P. 473; State v. Bruno (Utah), 69 Utah 444, 256 P. 109.) Since, in a felony case, a jury (Const., art. 1, sec. 7), must determine all issues of fact (C. S., sec. 8904), this error was prejudicial.

C. S., sec. 8837, provides that "In pleading a judgment or other determination of, or proceeding before a court or officer of special jurisdiction, . . . . the facts constituting jurisdiction . . . . must be established on the trial." In the case of courts of "inferior" or "limited" jurisdiction, the rule is general that no presumption of jurisdiction exists, but, if jurisdiction be shown, then the course of procedure is presumed valid. (Ex parte Goldsworthy, 22 Cal.App. 354, 134 P. 352, 355; 7 Cal. Jur. 584; 7 R. C. L. 974; Kempe v. Kennedy, 9 U.S. 173, 5 Cranch (U. S.), 173, 3 L.Ed. 70; Ex parte Watkins, 28 U.S. 193, 3 Pet. (U. S.) 193, 7 L.Ed. 650; Anderson v. Gray, 134 Ill. 550, 23 Am. St. 696, 25 N.E. 843, Smith v. Clausmeier, 136 Ind. 105, 43 Am. St. 311, 35 N.E. 904; State v. Dolby, 49 N.H. 483, 6 Am. Rep. 588; In re Williams, 102 Cal. 70, 41 Am. St. 163, 36 P. 407; State v. Hartwell, 35 Me. 129.) The party relying upon a judgment of an inferior court must affirmatively prove the jurisdiction of the court over the subject matter. (Hahn v. Kelly, 34 Cal. 391, 417, 94 Am. Dec. 742; Coit v. Haven, 30 Conn. 190, 79 Am. Dec. 244; 16 C. J. 183; People v. Warden of County Jail, 100 N.Y. 20, 2 N.E. 870; Wilkinson v. Moore, 79 Ind. 397; Smith v. Clausmeier, supra; Rickard v. Council of City of Santa Barbara, 49 Cal.App. 58, 192 P. 726.)

The portion of the docket material herein is as follows:

"June 23, 1926:--R. E. Garrison files criminal complaint against the above named defendant, Chris Dunn, charging said defendant with the commission of a crime against the state of Idaho, to-wit: Unlawful possession of intoxicating liquor."

C. S sec. 6446, defines matters over which the probate court has criminal jurisdiction and expressly limits its power to render judgments in cases involving "offenses committed within the respective counties in which such courts are established." The docket in this case fails to disclose that the criminal complaint charged appellant with any crime committed within the county in which the probate court rendering the judgment was established. Such proof must be furnished in order to prove the previous conviction. (People v. McLaughlin, 57 A.D. 454, 68 N.Y.S. 246, 15 N.Y. Cr. R. 337; State v. Alford, 142 Mo.App. 412, 127 S.W. 109. See, also, State v. Rose, 125 La. 1080, 52 So. 165; Commonwealth v. Connor, 155...