State v. Westmoreland
56 S.E. 673
S.C.
1907
Check Treatment

T'he opinion of the Court was delivered by

Mr. Justice Woods.

This appeal is from a- conviction and sentence in the Court of General Sessions for Lexington County for the crime of adultery. The State proved the marriage of the defendant ito his wife Matey, his separation from her, and his living in Lexington County with one Dora Burgess as if she were his lawful wife. In support of his defense, that he had been divorced from his wife Ma’lsy,. and, therefore, could riot be guilty of the crime of adultery, defendant offered the record of divorce proceedings in the Superior Court of Richmond County, Ga., instituted under the statute of Georgia which allowed divorce on the ground of wilful desertion continued for three years, which proceeding's had resulted in a judgment of divorce a vinculo matrimonii. In that suit the wife appeared in person, acknowledged service of the libel, and waived all further and other service and notice, and the record was admitted to be in all respects regular on its face. The State, however,. on the ground that the Georgia Court was without jurisdiction, assailed the judgment, and undertook to prove it a nullity by introducing parol evidence to the effect that the defendant, Westmoreland, at the time of the filing of the petition for divorce and the rendition of the judgment, was not in fact a resident of Richmond County, but of Lexington County, in this State.

On this point the Circuit Judge charged the jury, if the defendant was -a resident of 'the State of Georgia- at the time the divorce proceedings were carried through the Georgia Court, then- the decree of divorce must be recognized in this State as a complete protection to him -against the -charge of adultery; but if -he Went to Georgia for a mere temporary purpose, with no intention to- become a resident, then the Georgia- Court was without jurisdiction- and its decree would *148 be a nullity, having no effect on the status of the defendant, Westmoreland, as a married man, and, therefore, affording him no protection.

1 In the second and third exceptions -it is submitted the Circuit Court should not have allowed the record of the Georgia Court, regular on its face, to be attacked by the introduction of parol evidence showing want of jurisdiction; and should not have submitted to the jury, under such evidence, the question of the domicile or residence of the defendant necessary to confer jurisdiction on the Georgia Court; but, on the contrary, should have charged that the jurisdiction of the Georgia Court was not subject to collateral attack, that the defendant must be considered legally divorced from his wife> and, therefore, entitled to an acquittal of the charge of living in adultery with another woman.

Any discussion of the principle involved in these exceptions would be a work of supererogation, for the point has been1 decided and the decision reaffirmed by the Supreme Court of the United States, the tribunal whose authority is final in such matters. After elaborate discussion in an opinion rendered by Mr. Justice Bradley, in Thompson v. Whitman, 18 Wallace, 457, 21 L. Ed., 897, the Court reached the conclusion thus well stated in the syllabus: “Neither the constitutional provision that full faith and credit shall be given in each State to the public acts, records and judicial proceeding's of every other State, or the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the Court by which a judgment offered in evidence was rendered. The record of a judgment rendered in another State may be contradicted as to the facts necessary to- give the Court jurisdiction; and If it be shown that such facts did not exist, the record will be a nullity, notwithstanding that it may recite they did exist.” This decision was afterwards followed in State of Wisconsin v. Ins. Co., 127 U. S., 265, 32 L. Ed., 239; Streitwolf v. Streitwolf, 181 U. S., 177, 45 L. Ed., 807; Andrews v. Andrews, 188 U. S., 15, 47 L. Ed., 366; German Savings & Loan Society v. Dormitzer, 192 U. *149 S., 125, 48 L. Ed., 373; and it is referred to with approval in Haddock v. Haddock, 201 U. S., 561, 50 L. Ed , 885, and McCreery v. Davis, 44 S. C., 21, 22 S. E., 414.

. The distinction between these cases and Harding v. Harding, 198 U. S., 331, is obvious. In that case the attempt was not made in the California Court to impeach the judgment of an Illinois Court of record on account of any alleged nonexistence of the fact necessary to' the j urisdiction of the Illinois Court, but 'to disprove a finding as to the desertion of the wife — a finding of fact made after the jurisdiction had attached] and it Wias held the judgment of the Illinois Court on that issue was conclusive on the California Court.

Any finding.by the Georgia Court in this case appearing in its record, that the defendant was a resident of that State, would in this State avail only as prima faicie proof of the fact, and evidence to rebut the presumption in favor of such finding was competent. It is said in Thompson v. Whitman, supra: “If it is once conceded that the validity of a judgment may be attacked collaterally 'by evidence showing that the Court had no jurisdiction, it is not perceived how any allegation contained in the record itself, however strongly made, can affect the right so to1 question it. The very object of the evidence is -to invalidate the paper as a record. If that can be successfully done, no statements contained therein have any force. If any such statements could be used to prevent inquiry, a slight form of words might always be adopted so as to effectually nullify the right of such inquiry. Recitals of this bind must be regarded like assentations of good faith in a deed, which avail nothing if the instrument is shown to1 be •fraudulent. The records of the domestic tribunals of England and some of the States, it is true, are held to import absolute verity as Well in relation to' jurisdictional as to other facts, in all collateral proceedings. Public policy and the dignity of the 'Courts are supposed to require that no averment shall be admitted toi contradict the record. But, as we have seen, 'that rule has no extra territorial force.”

*150 The defendant complains that the following request, to charge was refused: “One of the records in this case is a certificate of marriage of William, Westmoreland and Adora Burgess in the State of Georgia, and such marriage in that State, after divorce there obtained, is valid in this State.” At the time this indictment was found the defendant was a resident of this State, and as we have seen, the State of South Carolina in a proceeding' instituted for the •enforcement of its own laws could inquire into the jurisdiction of the Georgia Court to grant the divorce interposed by the defendant as his protection. If upon such inquiry it be found the Georgia Court had no jurisdiction, the divorce as to this State, at least, would be an absolute nullity ab initioand the marriage in Georgia no marriage. If that divorce falls, the second marriage must of necessity fall with it, and the place of the ceremony could make no difference.

2 The defendant also preferred this request which was refused: “That if you find this defendant did all within- the purview of his knowledge toi comply with the laws in securing a divorce and thereby keepi from1 living in adultery, that while so, acting, he unknowingly violated the laws of this State, that under such circumstances the innocence of the law coupled with no- knowlerge of the facts excuses him.” All acts upon which the conviction depends were the acts of the def endant and all omissions which made his defence unavailing', including the omission to establish a domicile in Georgia conferring jurisdiction on the Courts of that State, were omissions of the defendant. There was, therefore, nothing in the evidence upon which a charge as to lack of knowledge by the defendant of tire facts, could apply. The absence of an intention .to violate the statute is not a defense. State v. Reeder, 36 S. C., 497, 15 S. E., 544; State v. Assman, 46 S. C., 564, 24 S. E. 673.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.