The
following bill of indictment was sent to the grand jury, who
returned a true bill: "The jurors of the State, upon
their oath, present: That O. B. Williams and Lillie Shaver
Hendrix, late of the County of Caldwell, on the 4th day of
October, in the year of our Lord One Thousand Nine Hundred
and Forty, with force and arms, at and in the county
aforesaid, unlawfully, wilfully and feloniously did get
married to each other in the City of Las Vegas in the State
of Nevada, and thereafter returned to the State of North
Carolina and did live together and cohabit together in the
said State of North Carolina and in Caldwell County, the said
O. B. Williams having a living wife, one Mrs. O. B. Williams
living in Caldwell County, North Carolina, at the time of his
said marriage to Lillie Shaver Hendrix and the said Lillie
Shaver Hendrix having a living husband, one Tom Hendrix
living in Caldwell County, North Carolina, at the time of her
marriage to the said O. B. Williams, against the form of the
statute in such case made and provided and against the peace
and dignity of the State. L. S. Spurling, Solicitor. Returned
a True Bill, A. S. Nelson, Foreman Grand Jury."
The
defendants entered a plea of "Not guilty". Upon the
trial the jury returned the verdict: "Upon their oaths
say that said O. B. Williams and Lillie Shaver Hendrix are
guilty as charged in the Bill of Indictment."
The
State's evidence: Mrs. Carrie Williams (Mrs. O. B
Williams) testified: "That she was a Wyke before her
marriage; that she now lives about four miles east of Granite
Falls, Caldwell County, North Carolina; that she married O
B. Williams on May 30, 1916, in Caldwell County; that she and
Williams lived together as husband and wife between 23 and 24
years, or until about May 7, 1940; that they had reared a
family of four children; that they had not lived together
since May 7, 1940; that she had not brought any action for
divorce against O. B. Williams." Cross-examination:
"I happen to have a paper that the Sheriff served on me
here. I read it."
Tom
(Thos. George) Hendrix testified: "I live in this
county. I was married to Lillie Shaver Hendrix about twenty
years ago. We lived as husband and wife at Saw Mills in this
county until May, 1940. We have not lived together since that
time. I have brought no divorce proceedings against my
wife." Cross-examination: Witness admits his signature
on a card. The card is as follows: Address side: "I. S.
Thompson, Attorney-at-Law Rooms 5 & 6 Griffith Bldg., Las
Vegas, Nevada." Reverse side: "Dear Sir: Upon
receipt of the original appearance, I will sign same.
(Signed) Thomas Hendrix."
The
State introduced a certificate of marriage, by the County
Recorder, David Farnsworth, dated October 8, 1940, between
the defendants in Clark County, Nevada: "State of
Nevada, County of Clark, ss. This is to Certify That the
undersigned, C. H. Sloan, did, on the 4th day of October, A.
D., 1940, join in lawful wedlock O. B. Williams of Las Vegas,
State of Nevada, and Lillie Esther Shaver of Las Vegas, State
of Nevada, with their mutual consent in the presence of Mrs.
Jack Pembroke and Mrs. Charles H. Sloan, who were witnesses.
C. H. Sloan, Baptist Minister. Mrs. Jack Pembroke Mrs.
Charles H. Sloan, witnesses. Recorded at the request of C. H.
Sloan. Filed Oct. 8, 1940. David Farnsworth, County
Recorder." This was duly authenticated.
I. M.
Vance, witness for the State, testified, in part: "I
have seen Mr. Williams and Mrs. Hendrix there at their home.
*** I have seen them together about eight months. I
couldn't say that they cook and eat at their home. They
live there."
T. A.
Thompson testified, in part: "I live in Pineola, Avery
County. I know Mr. Williams and have known him since some
time in February. I met them in Pineola Baptist Church. Q. Do
you know whether they are living together and have been
living together for some time in Pineola as husband and wife?
Ans: Yes. Q. Have they? Ans: Yes. To the best of my knowledge
they have lived together since about August or September, I
wouldn't say exactly."
R. G.
Buchanan testified, in part: "I live in Pineola, Avery
County. I know the two defendants, Mr. Williams and the
woman, and have known them for about eight months. They live
in Pineola as man and wife. (Cross-examination). I have known
them something like six or eight months. I have been to their
home twice. I have known their general reputation since they
have been in the community, and it is good."
The
State rested. Motion by defendants for judgment of nonsuit.
Motion overruled. Exception by defendants.
Defendants' Evidence: Exemplified copy of the divorce
proceedings from the Eighth Judicial District of the Court of
the State of Nevada in and for Clark County in an action
entitled "Lillie Esther Hendrix v. Thomas George
Hendrix". The complaint alleges:
"The
plaintiff complains of the defendant and for cause of action
alleges:
"I.
That on June 27th, 1920, in Icard, State of North Carolina,
the plaintiff and the defendant intermarried and ever since
have been and are now wife and husband.
"II.
That plaintiff is now and has been a resident of the State of
Nevada for a period of more than six weeks immediately
preceding the commencement of this action; she has been and
now is, a resident of the County of Clark, State of Nevada.
"III.
That there is no issue of said marriage.
"IV.
That the defendant has willfully neglected for the period of
over one year immediately preceding the commencement of this
action to provide plaintiff with the common necessities of
life, although having the ability to do so; that such neglect
was and is not the result of poverty on the part of the
defendant, which he could not avoid by ordinary industry.
"For
a second and separate cause of action against the defendant,
plaintiff alleges:
"V.
That the allegations set forth in paragraphs I, II and III,
of plaintiff's first cause of action are true and are
hereby made a part of this cause of action.
"VI.
That during the term of said marriage, the defendant has been
guilty of extreme mental cruelty toward this plaintiff by his
words, actions and conduct; and plaintiff therefore alleges,
that during the term of said married life the defendant has
been guilty of extreme cruelty toward the plaintiff.
"Wherefore,
plaintiff prays judgment against the defendant dissolving the
bonds of matrimony now existing between the plaintiff and the
defendant, and restoring said parties to the status of single
persons. I. S. Thompson, Attorney for plaintiff."
Subscribed and sworn to before I. S. Thompson, Notary Public,
seal attached on June 26, 1940.
"In
the Eighth Judicial District Court of the State of Nevada in
and for Clark County. No. 10651. Lillie Esther Hendrix,
plaintiff, vs. Thomas George Hendrix, defendant--Affidavit
for Publication of Summons. Filed July 22, 1940. Lloyd S.
Payne, Clerk, By Helen Scott, Deputy." The affidavit,
among other things, says: "That the defendant, Thomas
George Hendrix, resides outside the State of Nevada, to-wit,
at 391 Fuller Street, Akron, Ohio, and that he is not now and
cannot be found in the State of Nevada and that
defendant's present place of residence is 391 Fuller
Street, Akron, Ohio." Subscribed and sworn to before I.
S. Thompson, Notary Public, seal attached July 20, 1940.
"In
the Eighth Judicial District Court of the State of Nevada in
and for Clark County. No. 10651. Lillie Esther Hendrix,
plaintiff, vs. Thomas George Hendrix, defendant--Order
Directing Publication of Summons. Filed July 22, 1940. Lloyd
S. Payne, Clerk, by Helen Scott, Deputy Clerk." Then is
set forth the Order, signed by Roger Foley, District
Judge--Summons be by publication: "On motion of I. S.
Thompson, attorney for plaintiff, it is ordered that the
service of the summons in this action be made upon the
defendant, Thomas George Hendrix, by publication thereof in
the Las Vegas Evening Review Journal, a newspaper published
in the City of Las Vegas, County of Clark, State of Nevada,
hereby designated as the newspaper most likely to give notice
to said defendant; that said publication be made for a period
of four weeks and at least once a week during said time. And
it further in like manner satisfactorily appearing to me that
the residence of said defendant is known as 391 Fuller
Street, Akron Ohio, and that his post office address is 391
Fuller Street, Akron, Ohio; it is ordered and directed that a
copy of the summons and complaint in this suit be deposited
in the United States Post Office at the City of Las Vegas,
County of Clark, State of Nevada, postpaid, directed to said
defendant at his said post office address. Dated this 22 day
of July, 1940."
"In
the Eighth Judicial District Court of the State of Nevada in
and for Clark County. Lillie Esther Hendrix, plaintiff, vs.
Thomas George Hendrix, defendant-- Summons." Then is set
forth the summons, duly signed, dated 26th day of June, 1940.
"Returned and filed October 4, 1940. Lloyd S. Payne,
Clerk, Dolores Yturri, Deputy. I. S. Thompson, Attorney for
Plaintiff, Rooms 5 & 6 Griffith Bldg., Las Vegas,
Nevada--13--1575. Sheriff's Return. Received at
Sheriff's Office, Summit County, July 24th, 9:19 A. M.,
1940." "Affidavit of Mailing Copy of Summons and
Complaint--Filed Oct. 4, 1940. Lloyd S. Payne, Clerk. By
Dolores Yturri, Deputy."
Affidavit
made by George W. Thompson (same last name as the Attorney),
setting forth the publication and the mailing of the copy of
Summons and Complaint, to Akron, Ohio. "Subscribed and
sworn to before me, this 10th day of August, 1940. I. S.
Thompson, Notary Public. (Attorney in the case)."
Affidavit
of foreman of newspaper: "That the attached was...
