State v. Herren

• Citation: 92 S.E. 596
• Decision Date: 26 May 1917
• Docket Number: (No. 529.)
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. HERREN.

(173 N.C. 801)

92 S.E. 596

STATE.

v.HERREN.

(No. 529.)

Supreme Court of North Carolina.

May 26, 1917.

Appeal from Superior Court, Buncombe County.

John R. Herren was convicted of bigamy, and he appeals. New trial.

The defendant is indicted under Acts 1913, c. 26, which defines bigamy and makes cohabitation in North Carolina following a bigamous marriage in another state indictable and punishable as bigamous. The state did not offer any evidence.

When the case was called for trial, the defendant admitted:

(a) That defendant and Dizzie V. Hun-sucker were married in the state of North Carolina.

(b) That subsequently defendant went to the state of Georgia.

(c) That defendant obtained a divorce in Georgia.

(d) That defendant was thereafter married in Georgia to Stella Taylor.

(e) That defendant, subsequent to said second marriage, returned to the state of North Carolina, and has been living in North Carolina with said Stella Taylor as man and wife prior to this indictment.

The defendant then offered in evidence the record in a suit for divorce in the superior court of Pulton county, Ga., wherein John R. Herren was plaintiff and Lizzie V. Herren was defendant. The record, duly certified under the act of Congress, was allowed as evidence, but, after the defendant had rested, his honor excluded the record, holding that defendant had not offered evidence of his identity with the plaintiff in the Georgia suit. Defendant excepted.

The complaint In the Georgia suit alleged that the plaintiff, John R. Herren, and the defendant, Lizzie V. Herren, were married in Buncombe county, N. C, on March 28, 1896. The marriage record of Buncombe county shows that John R. Herren, the defendant, and lizzie V. Herren, the prosecutrix, were married in Buncombe county, N. C, on March 28, 1896.

A decree was rendered in the action in Georgia dissolving the bonds of matrimony prior to the second marriage of the defendant. There was a verdict of guilty, and the defendant appealed from the judgment pronounced thereon.

J. W. Haynes and Mark W. Brown, both of Asheville, for appellant.

J. S. Manning, Atty. Gen., and R. H. Sykes, Asst. Atty. Gen., for the State.

ALLEN, J. The defendant in this Indictment is John R. Herren, and it is charged in the indictment that his first wife was named Lizzie V. Herren, and the plaintiff in the proceeding for divorce in Georgia was John R. Herren, and the defendant therein was Lizzie V. Herren.

This identity of names, nothing else appearing, furnishes evidence of the identity of person.

"Identity of name is prima facie evidence of identity of person, and is sufficient proof of the fact, in the absence of all evidence to the contrary." 10 R. C. L. 877; Wilson v. Holt. 83 Ala. 528, 3 South. 321, 3 Am. St. Rep. 768; Estate of Williams, 128 Cal. 552, 61 Pac. 670, 79 Am. St. Rep. 67; Summer v. Mitchell, 29 Fla. 179, 10 South. 562, 14 L...