State v. Schlachter

Decision Date31 January 1868
CourtNorth Carolina Supreme Court
PartiesTHE STATE v. F. D. SCHLACHTER and LOUISA WITLE.

OPINION TEXT STARTS HERE

*1 Where a marriage has been solemnized according to the laws of another one of the United States, between persons free to marry according to such laws, and the parties afterwards for several years conduct themselves as husband and wife, having children, &c., it seems that an indictment for fornication and adultery is not the proper method of testing the validity of such marriage.

A couple domiciled in New York intermarried there in 1856 and subsequently (before 1861) removed to North Carolina; in January 1864 the wife removed again to New York, in December 1864 obtained a divorce, and in January 1866 re-married (both acts being in accordance with the laws of New York); afterwards she returned to North Carolina with her second husband, and they lived together as man and wife, Held that there is nothing in the doctrines of Irby v. Wilson, 1 D. & B., 568, to impeach such divorce and second marriage, and that it seems that that marriage, being in accordance with the laws of the State where it was solemnized, cannot be impeached in the courts of another State.

( Irby v. Wilson, supra, cited and remarked upon.)

FORNICATION AND ADULTERY, tried upon a case agreed, before Green J., at September Term 1867 of the Criminal Court of CRAVEN.

In 1856 the feme defendant was duly married to one Argos Witle, in New York, and with her husband subsequently removed to North Carolina. They lived together until January 1861, when he entered the military service of the Confederate States, and went to Virginia. In 1863 he deserted that service and returned to Newbern, but did not cohabit with his wife. In January 1864 she“moved” to the State of New York, and subsequently filed a petition for divorce there, alleging as ground for it the adultery of her husband. He was then in the military service of the United States at Newbern, and was brought into court in the divorce proceedings, by publication according to the laws of New York. On the 23d of December 1864, a decree for divorce was given and on the 9th day of January 1865 she in due form remarried with the other defendant, in New York. Since then they have lived together, having two children, &c., in Newbern, North Carolina.

Upon these facts his Honor was of opinion that the defendants were guilty, and fined each of them ten dollars.

The defendants thereupon appealed.

Manly & Haughton, and Hughes, for the appellants .

The domicil of the wife is not that of the husband where it is necessary to assert an adversary interest. Story Confl. 229, a note 2; Irby v. Wilson, 1 D. & B. Eq., 581; Schonwald v. Schonwald, 2 Jon. Eq., 369.

*2 Here the feme's domicil in Dec. 1864 and Jan. 1865 was in N. Y., therefore she and her marital relations were subject to the laws of that State. Story Confl., s. 89; 3 John., ch. 210; 2 Bish. Mar. and Div., 115.

The marriage being valid by the lex loci is valid everywhere. Story Confl., ss. 80 & 80a, 113 & notes, & 121-123b; West Cambridge v. Lexington, 1 Pick., 596; Fergus. Mar. & Div., 269 n. R; 1 Bish. M. & D., 333.

If Schlachter thought the feme defendant was his wife, he committed no crime, 2 Bish. Cr. L., ss. 22 &23; 2 Black. 318; 1 Bish. Cr. L., ss. 367-371, 378, 383.

Atto. Gen., contra .

In an indictment involving the validity of a marriage, the decree of a foreign court may be collaterally impeached. Story Confl., ss. 217, 218; S. v. Patterson, 2 Ire., 356; Duches of Kingston's case, 11 State Trials, 262.

Upon the other points in the case he cited Irby v. Wilson, supra, as confirmed 7 Watts 349 & 15 Johns., 131; 2 Kent, 96, 106-108, 228, 344; Story Confl., pp. 196, 198, 327, 343, &c; Bish. M. & D., 121-3.

PEARSON C. J.

To support the ruling of his Honor in the court below, it was necessary for the Attorney General to maintain the position that the decree of the Superior Court of the State of New York, by which the defendant Louisa was divorced from her former husband Argos Witle, can be treated by the courts of this State as a proceeding void and of no effect not only so far as the rights and liabilities of the said Louisa and Argos Witle are concerned but also as against the other defendant, Schlachter; because, in an indictment for fornication and adultery, both of the parties must be guilty, or the offence is not proved. In other words this court must decide that the decree of the Superior Court of the State of New York is a nullity, in order to support the judgment appealed from.

Irby v. Wilson, 1 Dev. & Bat. Eq., 568, is relied on by the Attorney General to maintain this position. The ruling in that case has been objected to, on the ground that, if the guilty party by a change of domicile can render personal service of process impossible, and there is no way by which personal service can be dispensed with, as by a return of non est inventus to the process followed by advertisement in the newspapers or otherwise, the effect would be to take from the party injured all means of redress.

To this may be added another objection. Mrs. Jones al...

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4 cases
  • State v. Herren
    • United States
    • United States State Supreme Court of North Carolina
    • December 23, 1917
    ...divorce, and the second marriage were all effected in the same state and in conformity with the laws of that state," as stated in State v. Schlachter, supra. In case the first marriage took place in this state. The attempted divorce and the second marriage occurred in the state of Georgia, ......
  • State v. Herren
    • United States
    • United States State Supreme Court of North Carolina
    • December 23, 1917
    ...another state to procure a divorce in fraud of the laws of the domicile." • The defendant stresses the decision of State v. Schlachter, 61 N. C. 520, which is not in point; for in that case the marriage was in New York, and in that state the divorce was obtained and the second marriage was ......
  • Harris v. Harris
    • United States
    • United States State Supreme Court of North Carolina
    • October 16, 1894
    ...Wilson, supra, though the divorce in the Arrington Case was upheld, because of the appearance of the defendant to the action. State v. Schlachter, 61 N. C. 520, merely holds that, where a person divorced by a decree valid in the state where granted marries another by a marriage recognized a......
  • Harris v. Harris
    • United States
    • United States State Supreme Court of North Carolina
    • October 16, 1894
    ...supra, though the divorce in the Arrington Case was upheld, because of the appearance of the defendant to the action. State v. Schlachter, 61 N.C. 520, merely holds that, where a person divorced by a decree valid in the state where granted marries another by a marriage recognized as valid i......

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