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 Pac. 611), and the instruction excluding such from their consideration was erroneous. (State v. Dale, 110 Wn. 181,188 Pac. 473; State v. Bruno (Utah), 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 Pac. 352, 355; 7 Cal. Jur. 584; 7 R. C. L. 974; *Page 641 Kempe v. Kennedy, 5 Cranch (U.S.), 173, 3 L. ed. 70; Ex parteWatkins, 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; Colt 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 Pac. 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 App. Div. 454, 68 N.Y. Supp. 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 Mass. 134, 29 N.E. 204; Porter v.State, 62 Fla. 79, 56 So. 406; Wolfe v. Abbott, 54 Colo. 531,131 P. 386.) It is, therefore, unnecessary to determine whether the docket may be conclusive *Page 642 of the jurisdiction of the probate court since it did not so show.
Four pints of "moonshine whiskey" and several sacks of empty bottles were, without a search-warrant, obtained by a member of the sheriff's office from a cellar or outhouse on the premises where appellant, as a member of the family of his brother-in-law, one Neely, resided. It is contended that, timely application having been made therefor, these exhibits should have been suppressed under the recent decision of this court in State v. Arregui, ante, p. 43, 254 P. 788. Neely, who was in possession of the premises, is not herein objecting to the introduction of this evidence nor complaining of any violation of his constitutional rights and appellant cannot object to a search of premises of which he was not in possession nor over which he had no right of control. InFindley v. State (Okl. Cr.), 234 P. 227, it was held that the right to complain of an illegal search and seizure inures to the accused only; and when the party to whom the premises belong does not object to the search, exhibits seized thereunder are admissible in evidence. To the same effect areBowling v. Commonwealth, 193 Ky. 642, 237 S.W. 381; Gray v.Commonwealth, 198 Ky. 610, 249 S.W. 769; Whitaker v.Commonwealth, 197 Ky. 283, 246 S.W. 825; 1 Blakemore on Prohibition, sec. 1038, p. 658; 1 Cornelius, Search and Seizure, sec. 12, p. 62, sec. 17, p. 75; State v. Fowler,172 N.C. 905, 90 S.E. 408, 410; Francis v. State (Okl. Cr.),221 Pac. 785; Commonwealth v. Tucker, 189 Mass. 457, 4 Ann. Cas. 268, 76 N.E. 127, 131. The evidence was admissible as corroborative of the testimony as to the illegal sale charged in the information. (1 Blakemore on Prohibition, secs. 295, 296, 299; 2 Wollen and Thornton, Law of Intoxicating Liquors, sec. 930, p. 1601; 33 C. J. 752, 753; People v. Petrovitch,67 Cal.App. 405, 227 P. 978; People v. Malone, 68 Cal.App. 615,229 P. 1000; State v. Lipman, 163 Minn. 431,204 N.W. 163; Parsons v. State, 209 Ala. 630, 96 So. 720; Statev. Balsamo (Mo.App.), 246 S.W. 963; Reub v. State,96 Tex. Cr. 345, 247 S.W. 867.) *Page 643
Appellant offered no instruction relative to the weight to be given to the testimony of a witness when successfully impeached, hence no error was committed in refusing so to instruct. (State v. Harness, 10 Idaho 18, 76 P. 788; People v.Biles, 2 Idaho 114, 6 P. 120.)
The neglect of the trial court to instruct the jury that they might find the defendant guilty of any lower offense included was not error because no instruction was offered thereon or requested by defendant. (State v. White, 7 Idaho 150,61 Pac. 517.)
Reversed and remanded for a new trial in accordance herewith.
Taylor and T. Bailey Lee, JJ., concur.
Budge, J., concurs in the conclusion reached.
Wm. E. Lee, C.J., took no part in the opinion.