*1 COURT. THE SUPREME Hereon. State reasonable doubt beyond further find must it, court construes contradiction express this is an sell, had the intent to the defendant effecting anything. it without passed Legislature the statute and the possession plain the law-makers The intention of and that intent, he evidence of prima article should forbidden facie but was incumbent proven, did not need to be the intent If the purpose facie case. this was not negative prima defendant to byit ? The construction placed upon it enacted statute, why the statute exactly the matter as was before the Court leaves passed. R. JOHN HERRON.
STATE v. December, 1917.) (Filed 22 Defense—Divorce—Judgments—Constitutional Bigamy 1. Law — —Criminal Law —Residence—Fraud. and a thereto Where a has contracted here, but resides cohabits who has married thereafter sec. it is eral residence .another Revisal, 1913, amending 26, Laws of is indicted under ch. granted in the other and offers defense divorce not in of the “full faith and credit” clause of the Fed- contravention Constitution, be shown the courts of our State that required acquired laws of such other State was not good faith, fraud, but in and that the decree therein was therefore void. Bigamy Defense—Divorce—Evidence—Trials—Questions 2. —Criminal Law — Jury. granted bigamy, State, upon Proof of a trial for in our own courts is evidence which should be submitted to the proper instructions. Bigamy 3. Law —Defense—Divorce—Residence—Instructions— —Criminal Burden of Proof. solely Where a decree of divorce in another State is relied on aas de- bigamy fense on a trial for which is attacked the State for insufficient supporting evidence, residence in such other satisfy required must of the bona fide of his residence for the time, beyond but not a reasonable doubt. Marriage 4. —Divorce—Residence. require party seeking Where the laws of another State that a a divorce preceding must show a residence of twelve months the commencement of suit, may the days he remaining obtain a bona fide domicile there a few spending practically or weeks while all of his time in this State. Appeal 5. and Error. Exception pages taken to judge’s three and a half of the record of the charges is a appeal. “broadside attack” and will not be considered on Aieen, J., concurring. SPRING- N.C.] v. Hebbon. Lane, J.,
Appeal from at July Term, of BuN- *2 COMBE.
Attorney-General and Assistant Manning Attorney-General Sykes for the State.
J. Haynes W. and Mark W. Brown for defendant.
Clase:, C. J. Tbe defendant was convicted tbe violation of tbe following wbicb paragraph was inserted Revisal, amendment in 3361, by chapter 26, Laws 1913: “If any person, being married, shall contract a marriage with any other outside of this which State, marriage would be punishable as if bigamous contracted within this State, and shall thereafter cohabit with such person in he State, shall be guilty of felony punishable as eases of bigamy.”
On the trial the defendant admitted that he was first married Lizzie Y. Hunsucker in this who is still living, and that he after- wards obtained a divorce in Georgia was married to Stella Taylor. The court ruled that the admission to the regard divorce was a mat- ter of defense to be proven by the defendant. He then in evidence put the transcript of a from Superior record Court of Georgia purport- ing to be the record of the divorce proceedings of John R. Herron Lizzie Y. Herron, and certain also sections of the laws of Georgia regard to divorce, and rested.
The State offered evidence that the defendant had never been a resi- dent of Georgia, but had maintained his residence in this State; that he had married said in Georgia Stella and afterwards removed to this State, and had they lived as man and inwife Asheville. The defendant then offered depositions that he was a resident of for twelve months preceding of divorce proceedings, required by beginning the laws State.
Exceptions 1, 2, and 3 raise the question whether a decree of divorce can be attacked a criminal action bigamy a State other than that in which the divorce was secured. In Haddock v.
U. S., 882, after an exhaustive review of the law in the several States as to the faith and credit to be given to decree of divorce in another Justice White said: “The mere domicile within the State Chief of one party to the marriage does not give the courts juris- of that State diction to render decree of divorce enforcible all the virtue States by of the full faith and credit clause of the Federal against Constitution nonresident who did not appear and was only constructively served with notice of the pendency action.” White, Justice degree' classifying respect States to the Chief
of credit which accord to decrees said of divorce IN THE SUPREME OOUET. decline, “which North Carolina the States classify among be would comity, recognize and enforce as their own principles even decrees of divorce rendered in other within their own borders citizens one rendering jurisdiction only same had over States when the court derived from a suggestion doubt Bidwell parties,” Bidwell, does show 402. An examination of that case out of the that North Carolina should be taken class of States of a divorce rendered in court which recognize decline'to In parties. one of the had over personally Dakota where both parties appeared was rendered South counsel. neither has a Bid-well case our Court said: “Where forum, having such court domicile in the though controversy, a decree of divorce void *3 themselves parties may appeared voluntarily jurisdiction to'the of court.” a having created by The referred Justice suggestion to White Chief in Bid-well: following paragraph
doubt in his mind is the Bid-well now to be that the domicile doctrine, however, “The better seems where in or good in and not fraud faith, of the defendant has acquired a of domicile, former this kind should violation of some law of of recognized jurisdiction within the binding everywhere, certainly be any the United or one of them.” conflict with the contention of State But that does not suggestion not set by that the domicile in up in not by fraud, acquired a bona but was obtained domicile, served with only constructively as the defendant’s wife was good faith down In the Bid/well case it laid that process publication. by in "m or must have been acquired good, domicile fraud faith some domicile.” law of of former that when set follows, therefore, It necessarily in State bad Georgia, allege the divorce could defense of in acquire a domicile attempting faith and fraud of the defendant Andrews, it is said a State S., 14, In 188 U. that Andrews who citizens, its invalid “A decree of divorce own may hold x>rocured into gone prohibiting domicile State retaining 'while their fraud of law the domicile.” another divorce in of State procure Schlacter, 61 N. the decision of defendant stresses York, marriage in New for in that case the point, which'is not marriage obtained, and in divorce was second and the second marriage, divorce, “the is, also that State —that conformity all in the State and in marriage were effected same Schlacter, supra. stated in laws of that State,” SPRING- C.] State v. attempted in this State. The took marriage place
In case tbe first Georgia, the second occurred divorce and in this State in violation of lived together thereafter parties that the out, validity so Revisal, 3361, above amendment to in Georgia. domicile alleged the bona depends upon defense -fide Harris, held: “A it is decree of In Harris v. personal without service by wife, obtained in this State.” To same the husband is a of summons upon Bell, held that S., 175, 181 U. “The Court effect Bell the husband’s suit for be jurisdiction had no Pennsylvania had a domicile in and the decree of Pennsylvania, cause neither party credit in New York any divorce was entitled to no faith and domicile That decision is based the evidence State.” in was not bona fide and could not be Pennsylvania the husband action. subsequent quired “A 181 U. it is said: Streitwolf, S., 179, judgment Streitwolf in another State attacked collaterally
of divorce rendered subject- without either of the jurisdiction the court was showing the defendant. Thus the person matter of the suit or of the domi be overcome that the proof of the decree foreign court.” jurisdiction ciled within the territorial elementary said: “It is S., 573, U. it is In Haddock full faith and credit clause of the Constitution is invoked that where the another, in one State of decree rendered the enforcement compel the court which the decree was And if there was either of open inquiry. rendered is or of the the courts of *4 the full faith and credit are not virtue of required by another State decree.” the Constitution to enforce such clause of “In 197: The Court has held Arrington Arrington, legal and not notice, where the defendant is not served with all cases in another State attorney, judgment the by original present nullity.” is a Leach, 95 229: virtue of the “By in Miller v. Constitu
And the Congress thereof, and pursuance of the States acts tion United the same as domestic footing other States are judgments put ex them, conclusive of all involved questions are judgments. They properly and whether the parties fraud in their cept procurement, the court.” brought before “If a is void because the court foreign 816 states: divorce Cyc., or of the decree parties,
was without jurisdiction State,” whatever of another and cites to is no effect courts given State, 28 held that Ala., 12, which proposition Thompson sustain the THE SUPREME COURT. 758- Hereon.
State prosecution State defense to a in another was no divorce obtained a void Bolich, Ct., which 18 Pa. Co. adultery, for Com. subsequent defense to a desertion. foreign prosecution is no held that an indictment, the sole defense to a divorce is set up When but a matter, defense is not a collateral of such case, invalidity this set the defense directly impeaching up. reply by State legitimate the status of the citizens cannot determine “The courts one State at to a of divorce therefore validity State. decree give of another To a resident the State of forum. must be least one of have jurisdiction, courts the decree Otherwise the of that Cyc., extra-territorial effect.” given will not be Whitman, held that constitu- S., 457, 85 U. it is Thompson inquiry tional “does not provision prevent The which a offered evidence was rendered. judgment court rendered, be judgment record of contradicted if it court necessary to the facts to shown give did record exist, that such facts will be a notwithstand- not recite did exist.” ing may not and while the
In this case the does so judgment recite, petition defendant petitioner (the does state that a citizen herein) it is not verified his The months, twelve even oath. find “that has been to our sufficient submitted consideration proof to authorize a total but this have been divorce,” erroneous con- an finding jury. Certainly clusion of law or erroneous of fact it is State in in- estoppel prove this proceeding as the showing, found, that in fact the was not a bona citizen the divorce now invalid as a Georgia, therefore defense. Indeed, the defendant in his brief “The Court frankly says: Supreme the United States credit has held that full faith and clause does to actions and that apply right the States alone determine what given effect shall be the decrees of States Atherton, this class of cases. S., 170; Atherton 181 U. Haddock S., 201 U. 604.” exceptions 4, 9, As to as otherwise charge proper, a decree of divorce have been fraudu- alleged entirely could lent, knowing this, have been though compelled would accept it. mere of a decree does not offering of divorce valid. The in- court properly this to structions given. charge
It was not error for the court to that the defendant must *5 beyond “to the satisfaction of the but not a jury, doubt,” reasonable he obtained divorce after residence for of statutory period twelve N. SPRING TERM, 1918. 0.] months The defendant Georgia. especially stresses tbe concluding as follows: “If a reasonable remains paragraph charge doubt your mind as guilt you to the or he has satisfied other words that he had obtained bona divorce after he. fide will months, bona fide resident of that State for twelve then why you return a verdict of guilty.”
The fact marriage former and of the cohabitation this State under the admitted, guilty second the defendant was marriage being unless he showed to the satisfaction that he had a valid jury alleged. The court told the that “the burden is jury the satisfaction jury, beyond not. but that he doubt, jury, reasonable to the satisfaction of obtained twelve months Georgia such divorce while a resident of the State of find law there, provided before the suit that was the bringing and added at the con- time,” further, of the State at the clusion, guilt “if a reasonable doubt minds as to your remains defendant,” guilty.” to “return a verdict of not with another woman The first and the second cohabitation to raise a being admitted, only way the lifetime of the first during is, in the minds of the as the court charged, reasonable doubt beyond the satisfaction of the but not jury, the defendant to “to had a valid divorce— doubt,” a reasonable that the defendant obtained such fact—otherwise he was is, guilty he must satisfy doubt. reasonable beyond 6, 7, 8, regard domicile, cannot be sustained.
Exceptions leave this togo Georgia, remaining defendant could not there time, weeks at a all of his time days spending practically a few domicile in thereby obtain bona printed charge relating 8 is to to more Exception pages 3% “broadside subjects. than and distinct This is a attack” twenty separate Morrison, and cannot be considered. McKinnon charge, Cameron, 166 in Anno. Ed.; N. and cases cited thereto Wade, C., 379; N. Cutshall, 110 and S. v. C., 538,
The defendant further cites S. v. N. but it the statute Ray, C., 710, authority, change was to kind that so as to embrace cases of this the amendment respect Revisal, 3361, by made to ch. Laws 1913. The evidence undisputed shows that the defendant and Stella after the second Taylor, marriage, did cohabit and live man and together wife, unless the statute it was shown to the satisfaction of the but not
beyond doubt, a reasonable that the divorce set as a defense valid.
760' THE SUPREME COURT.
State v. de- from the conviction of the upon, appeal was here before This case Herron, 801, for a second time the de- C., v. 173 fendant, S. the jury. guilty by fendant has been found No error. marriage relation the proceedings, divorce J., concurring: Allen, res, jurisdic- and each State has exclusive the in thing litigation,
is the citizens. marriage status its tion the over the en the State where decree is are not residents of If and the decree subject-matter, the court has tered, process, notwithstanding question the due service is'void the resi in the courts of the State of inquired credit full faith and clause of the violence doing dence without collected is discussed the authorities The question Constitution. (201 v. and in the note to Haddock Haddock 9 R. et L., seq., C. 1. Cases, U. 5 Anno. S., 562), Schlacter, v. 61 N. whether C.,
A S. as to expressed doubt is in a but the authorities prosecution, be made criminal this inquiry Lolley, that it can be done. Rex v. country and in this hold England 237; 434; & 14 Ont. L. v. C., Brinkley, R., R. R. C. Rex Hood Dawell, Baker, Mich., People 76 N. 263; People 247; Y., 56 Ind., Westmoreland, St., 317; C., 37 Ohio 78; VanFossen 145.
If divorce that the of resi- imoceeding question the record shows it is recited is on, decree, presumption dence was passed on decree favor of burden is attacking it prove that not a resident when was plaintiff granted; if and the no recital and no record shows finding ques- there is that him considered, tion residence was not the burden is on relies on who residence, the decree to as otherwise would not that the appear jurisdiction. court had
The record relied on in this prosecution that clear does not show residence was but the question passed on, that inference is was not considered. It is stated in the petition, has verified, petitioner is not that been a resident of for twelve months and the referred again residence is to in No issue as to residence proceeding.
nor con- any adjudication decree, is there recital or and on the and of the trary language verdict decree show that the cause I think, alone considered. therefore this condition of- it was record, when the defendant married the admitted first here, time there was no error in the burden imposing on residence SPRING 1918. N. O.] v. McIver. Cases, Anno. (see is a conflict of note authority while there Again, holding Carolina is line with the courts North 29), 28 and process in another State on rendered substituted decree Harris, 115 N. Wilson, 568; Harris Irby invalid. of divorce obtained case: “The the last Court.says *7 husband, domiciled Colorado, against wife, State. Irby him a service State, without personal Wilson, 21 568.” Bidwell, in conflict is not The decision Bidwell brought her the wife In the Bidwell case the earlier decisions. and her husband, maintenance, support action for the courts granted by a decree absolute divorce as a defense Massachusetts, in an of the courts of and also Dakota, North in which for the husband against action instituted wife wife appeared be-valid. The adjudged Dakota decree was the North $10,000 was awarded North Dakota action and and answered in the action child, her minor Massachusetts custody the care a decree ren of the effect of so that parties appeared, action as raised as either process could dered substituted in both. wife appeared the husband and based on in the relied on defendant-is expression opinion of the United which were Supreme decisions Court
two modified the case of or since either misunderstood Haddock Haddock. PETER
STATE v. McIVER. (Filed 1917.) December, — — — Speed Manslaughter Limits —Trials— Automobiles 1. Criminal Law Questions Jury Negligence. — greatly exceeding speed an truck while The driver of automobile general statute, signal a town and of the and without or ordinance of boy bicycle warning, street, into a on his at a and death resulted ran cross boy. Upon manslaughter, held, trial and statute to the are intended to should the the ordinance protect citizen, life and limb of reasonably anticipated meeting crossing, some one at the statute, of his reckless of the ordinance and evidence jury. circumstances, carry the case to sufficient Negligence—Contributory Negligence. 2. Same — recklessly signal warning, Where one without drives automobile statute, speed general in excess of the and the limit fixed ordinance thereby injures town, or kills at a his another street intersection of