29 S.E.2d 744 | N.C. | 1944
Criminal prosecution tried upon indictment charging the defendants with bigamous cohabitation in violation of G.S.,
The controlling facts as disclosed by the record are:
1. That the male defendant was married to Carrie Ora Wyke in 1916; that they lived together in Caldwell County, this State, as husband and wife for more than 23 years and reared a family of four children; that they have not lived together since the male defendant deserted his home on 7 May, 1940; that Carrie Ora Wyke Williams had brought no divorce proceeding against her husband at the time of the first trial of this cause in the spring of 1941, at which time she testified in the case, and that she is now dead.
2. That the feme defendant was married to Tom Hendrix in 1920; that they lived together in this State as husband and wife for more than 19 years; that no children were born of this marriage; that they have not lived together since the feme defendant deserted her home on 7 May, 1940; that Tom Hendrix had brought no divorce proceeding against the feme defendant prior to the first trial of this cause, at which time he testified in the case, but that he has since, and remarried.
3. That Tom Hendrix was working in the store of the male defendant at the time the defendants herein left the State; that the first knowledge he had of his wife's departure was "when he went home at night and she was gone."
4. That both of the defendants appeared at the Alamo Court, Las Vegas, Nevada, on 15 May, 1940.
5. That the male defendant instituted action for divorce in Clark County, Nevada, on 26 June, 1940, charging his wife with "extreme cruelty towards this plaintiff." Service of summons was obtained by publication, and no appearance was made by the defendant, Carrie Ora Williams, albeit notice was served on her by the sheriff of Caldwell County, North Carolina. A decree of absolute divorce was granted by the Nevada Court on 26 August, 1940, for cause set out in the complaint. I. S. Thompson appeared as counsel for plaintiff in the action.
6. That the feme defendant instituted action for divorce in Clark County, Nevada, on 26 June, 1940, alleging failure to support and "extreme mental cruelty" on the part of her husband. Service of summons was obtained by publication, and no appearance was made by the defendant, Tom Hendrix, though he sent plaintiff's counsel a post card saying that upon receipt of original appearance he would sign it. This he never did. O. B. Williams testified for the plaintiff in the case. He said the plaintiff had been living at the Alamo Court, Las Vegas, since 15 May, 1940, and that he had seen her every day while there. The plaintiff testified that she arrived in Clark County, Nevada, on 15 May, 1940, with intention of establishing an indefinite permanent residence. A decree of absolute divorce was granted by the Nevada court on 4 October, *186 1940, for causes set out in the complaint. I. S. Thompson appeared as counsel for plaintiff in the action.
7. That the defendants were married in the State of Nevada on 4 October, 1940, and shortly thereafter in the fall of 1940, returned to North Carolina and are now living together at Pineola, Avery County, N.C. A true bill was returned against them at the February Term, 1941, Caldwell Superior Court.
8. The case was tried at the February-March Term, 1941, Caldwell Superior Court, which resulted in verdict and judgments against the defendants, and these were upheld on appeal.
When the matter was again called for trial at the November Term, 1943, Caldwell Superior Court, the defendants entered a plea of former jeopardy, and moved to dismiss on the ground that the judgment of affirmance had been "reversed" by the Supreme Court of the United States, and, therefore, the defendants were entitled to be discharged. Overruled; exception.
Verdict: Guilty as charged in the bill of indictment.
Judgments: Imprisonment in the State's Prison as to male defendant for not less than one nor more than three years, as to feme defendant for not less than 8 nor more than 24 months.
The defendants appeal, assigning errors.
This is the same case that was before us at the Fall Term, 1941, reported in
The short and simple facts upon which the case was made to turn in the court below are these: For many years the defendants lived with their respective spouses in the village of Granite Falls, Caldwell County, this State. The feme defendant's husband worked in the store of the male defendant. The defendants disappeared from their respective homes on 7 May, 1940. Eight days thereafter they both appeared at the Alamo Court, Las Vegas, Nevada. Exactly six weeks later each filed suit for *187 divorce in Clark County, Nevada, on grounds recognized in that State, but not in this State. No appearance was made by the nonresident defendant spouse in either case. Service was by publication. Both defendants employed the same attorney. The uncontested divorces were granted on 26 August and 4 October, 1940, respectively. On the day of the last divorce, the defendants were married in the State of Nevada, and almost immediately thereafter they returned to North Carolina and have since lived together in this State. In all, they were out of the State about six months. The defendants were convicted of bigamous cohabitation at the February-March Term, 1941, Caldwell Superior Court, and judgments pronounced. The judgments were affirmed on appeal, and later reversed by the Supreme Court of the United States and the cause remanded for proceedings not inconsistent therewith.
Our former decision was predicated primarily upon the ground that the Nevada divorce decrees, here in question, were not entitled to full faith and credit in this jurisdiction, because they were obtained on constructive service and no appearance had been made in the divorce proceedings by the nonresident defendants named therein. For this position we relied upon the celebrated case of Haddock v. Haddock,
When the matter reached the Supreme Court of the United States oncertiorari the Haddock case was overruled. This removed the principal ground upon which our decision had been made to rest. The logical result, therefore, was a reversal of the judgment of affirmance. Williams andHendrix v. North Carolina,
The contention is advanced that as the Supreme Court of the United States grounded its decision on the assumption the defendants had acquiredbona fide domiciles in the State of Nevada (the only occasion for overruling Haddock v. Haddock), based in part at least on concession of evidence to support such a finding, the assumption must continue throughout all subsequent proceedings, and that so far as the present prosecution is concerned, no further inquiry into the matter is permissible. The argument is that originally the prosecution assumed it might *188
assail the Nevada divorce decrees on one or two grounds: first, want of domicile in the divorce forum, Bell v. Bell,
The conclusion is a non sequitur. Even if the jury had found the defendants were domiciled in Nevada, still under the doctrine of Haddock, the divorce decrees, since they were entered on constructive service, might have been, and in fact for this very reason were, held for naught in North Carolina. This, and this alone, is what the court of last resort overruled and "reversed." The record did not disclose a finding by the jury that the defendants had actually acquired bona fide domiciles in Nevada. Indeed, they may have found just the reverse. The verdict was a general one and there was evidence to support the State's challenge to the defense on the single ground of defective process or on the dual ground of no bona fide
domicile and no valid process, albeit the record indicated the latter as the basic cause for sustaining the challenge. The indefiniteness of the record in this respect, however, coupled with an admission which the State regarded as immaterial under the Haddock case, supra, induced the reversal of the judgment of affirmance. In other words, the legal theory upon which the State chiefly relied to defeat the defense set up by the defendants was disapproved. This did not perforce preclude further challenge to the defense on other grounds. It eliminated the second premise, but it did not work an acquittal of the defendants. An error in respect of the defense set up in a criminal action would not dispose of the indictment. Moreover, the concession was made in the appellate court. Had such admission been made by the solicitor in the trial court and acted upon by the jury, a different situation might have arisen. But that is another matter. 20 Am. Jur., 469. See S. v. Butler,
The effect of the decision of the Supreme Court of the United States in this case is to preserve the sufficiency and effectiveness of constructive service of process in actions for divorce in proper cases of domicile. The pronouncement is that full faith and credit to such proceedings may no longer be denied in other states of the Union upon this ground alone. Speaking directly to the point, the majority opinion says: "So when a court of one state acting in accord with the requirements of procedural due process alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause because its enforcement or recognition in another state would conflict with the policy of the latter."
The issue of domicile was expressly left open, as witness the following from the opinion: "Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit to Nevada divorce decrees because, contrary to the findings of the Nevada court, North Carolina finds that no bona fide domicile was acquired in Nevada." And further: "If the case had been tried and submitted on that issue (domicile) only, we would have quite a different problem, as Bell v. Bell indicates. We have no occasion to meet that issue now and we intimate no opinion on it. However, it might be resolved in another proceeding, we cannot evade the constitutional issue in this case on the easy assumption that the petitioners' domicile in Nevada was a sham and a fraud."
Following this last suggestion and faced with the appraisal that the case had been tried in the main upon an unsound principle of law, we remanded it for another hearing or a new trial, as is the rule in this jurisdiction.
We now come to the exceptions noted during the trial after the special pleas had been overruled.
The defendants are charged with bigamous cohabitation in violation of G. S.,
Upon the issues raised by the pleas of traverse, the prosecution offered evidence tending to show that each of the defendants had been previously married; that their respective spouses were still living at the time of the first trial; that the defendants had undertaken to contract a marriage in the State of Nevada, and that thereafter they had cohabited with each other in this State. This made out a prima facie case, sufficient to carry the issue to the jury, and hence the demurrer to the evidence was properly overruled. S. v. Herron,
It will be observed that the statute does not apply to persons who have been "lawfully divorced" from the bond of the first marriage at the time of the second marriage. Such persons are exempt from the operation of the statute, and properly so. Hence, a lawful divorce from the bond of the first marriage at the time of the second marriage would be a defense to the prosecution.
The defendants set up in defense their respective divorces obtained in the State of Nevada. The court instructed the jury that the record of these divorces, offered by the defendants, constituted prima facie evidence of their lawfulness and binding effect, not only in the State of Nevada, but also in the State of North Carolina and every other state. Loughran v.Loughran,
In reply, the prosecution contended that neither of the defendants had acquired an actual, bona fide domicile in the State of Nevada at the time of the institution of the divorce actions, and that the proceedings, while apparently regular, were in fact void for want of jurisdiction. Andrews v.Andrews,
In this connection the court instructed the jury as follows:
1. "If a person has a domicile in North Carolina, and such person leaves North Carolina and goes to the State of Nevada simply and solely for the purpose of obtaining a divorce in the State of Nevada, and with the intention of returning to the State of North Carolina when such divorce is obtained, such person never loses his domicile in North Carolina, and never acquires a new domicile in the State of Nevada."
2. "If a court in a suit in the State of Nevada should grant a divorce to a plaintiff who is not domiciled in Nevada, against a nonresident spouse who is not domiciled in the State of Nevada, and who is not personally served with summons in Nevada, and who does not enter a general appearance in the suit in the court in Nevada, then the divorce granted *191 by the court in Nevada in such instance is void, and is not entitled to full faith and credit in the state in which the nonresident spouse has his or her domicile."
If these pronouncements be sound, the exceptions taken on the trial are without substantial merit and cannot be sustained.
The first instruction would seem to be in accord with the decisions on the subject. Leaving one's domicile of origin and going into another state simply and solely for the purpose of obtaining a divorce, with a mind of immediately returning, is not sufficient to effect a change of domicile.McKarthy v. McKarthy,
Domicile is a matter of fact and intention. In re Martin,
On the other hand, the jury was instructed that if the defendants went to Nevada with the requisite intent and actually acquired a domicile there, though they later changed their minds and returned to this State, the courts of that state acquired jurisdiction of the marital status of the defendants and the decrees in evidence would be entitled to full faith and credit in this State and every other state. Davis v. Davis,
Perhaps it should be noted that what is here said in respect of the "burden of satisfaction" has reference to a defense pleaded in a criminal action, the validity of which is challenged by the prosecution. S. v.Harris, supra. "When a divorce is set up as the sole defense to an indictment, as in this case, the invalidity of such defense is not a collateral matter, but a legitimate reply by the State directly impeaching the defense set up." S. v. Herron, supra. It should not be confused with the rules applicable in civil actions. 143 A.L.R., 1307.
The second instruction above quoted is directly supported by what was said in Bell v. Bell,
In Andrews v. Andrews, supra, it was said that in divorce actions, domicile is the inherent element upon which jurisdiction must rest, whether the proceeding be ex parte or inter partes. Where one's domicile is, there will his marital status be also. The marriage relation is interwoven with public policy to such an extent that it is dissolvable only by the law of the domicile. So the domiciliary state, and no other, furnishes the proper forum for valid divorce proceedings. Domicile of at least one of the parties is the sine qua non to jurisdiction in actions for divorce. 143 A.L.R., 1298. A domicile once obtained is never lost until another is acquired. Reynolds v. Cotton Mills, supra.
Here, the jury has found that the defendants were domiciled in this State when they brought their actions for divorce in Nevada; that they *193
had acquired no bona fide domicile in that state, and that the Nevada decrees were ineffectual to sever the marriage ties. The result was a rejection of the pleas interposed by the defendants, and a conviction as charged in the bill of indictment. The record and the law applicable to the facts appearing thereon support the jury's findings. German Sav. LoanSecurity v. Dormitzer,
It was held in Thompson v. Whitman,
There remains to be considered the constitutionality of the statute under which the defendants have been indicted and convicted. It is challenged upon the ground that it offends both the Federal and State Constitutions. This was the subject of investigation in the case of S. v.Moon,
From a legal standpoint, it all comes to this: On the first appeal the State relied on the case of Haddock v. Haddock. We were minded to follow that case. It was overruled by the Supreme Court of the United States. The State now relies on the case of Bell v. Bell. We are disposed to follow this case.
A careful perusal of the record leaves us with the impression that the case has been tried in accordance with the pertinent decisions on the subject, and that it is free from reversible error. Hence, the verdict and judgments must be upheld.
No error. *194