94 S.E. 698 (N.C. 1917), 537, State v. Herren

Docket Nº:537.
Citation:94 S.E. 698, 175 N.C. 754
Opinion Judge:CLARK, C.J.
Party Name:STATE v. HERREN.
Attorney:J. W. Haynes and Mark W. Brown, both of Asheville, for appellant.
Case Date:December 23, 1917
Court:Supreme Court of North Carolina

Page 698

94 S.E. 698 (N.C. 1917)

175 N.C. 754




No. 537.

Supreme Court of North Carolina

December 23, 1917

Appeal from Superior Court, Buncombe County; Lane, Judge.

John R. Herren was convicted of contracting a marriage outside of the state, bigamous if contracted within it, and thereafter cohabiting with the person in the state, and he appeals. No error.

See, also, 92 S.E. 596.

In North Carolina, in prosecution for bigamy, decree of divorce secured by defendant from his first wife in Georgia can be attacked by state by alleging and proving defendant's fraud in attempting to acquire domicile in Georgia.

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

The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.


The defendant was convicted for the violation of the following paragraph which was inserted as an amendment in Revisal, § 3361, by chapter 26, Laws 1913:

"If any person, being married, shall contract a marriage with any other person outside of this state, which marriage would be punishable as bigamous if contracted within this state, and shall thereafter cohabit with such person in this state, he shall be guilty of a felony and punishable as in cases of bigamy."

On the trial the defendant admitted that he was first married to Lizzie V. Hunsucker in this state, who is still living, and that he afterwards obtained a divorce in Georgia and was married to Stella Taylor. The court ruled that the admission in regard to the divorce was a matter of defense to be proven by the defendant. He then put in evidence the transcript of a record from the superior court of Georgia purporting to be the record

Page 699

of the divorce proceedings of John R. Herren v. Lizzie V. Herren, and also certain sections of the laws of Georgia in regard to divorce, and rested.

The state offered evidence that the defendant had never been a resident of Georgia, but had maintained his residence in this state; that he had married said Stella in Georgia, and afterwards removed to this state, and they had lived as man and wife in Asheville. The defendant then offered depositions that he was a resident of Georgia for 12 months preceding the beginning of divorce proceedings as required by the laws of that state.

Exceptions 1, 2, and 3 raise the question whether a decree of divorce can be attacked in a criminal action for bigamy in a state other than that in which the divorce was secured. In Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1, after an exhaustive review of the law in the several states as to the faith and credit to be given to a decree of divorce in another state, Chief Justice White said:

"The mere domicile within the state of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the * * * states by virtue of the full faith and credit clause of the federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action."

Chief Justice White, in classifying the states in respect to the degree of credit which they accord to decrees of divorce in other states, said that he would classify North Carolina among the states "which decline, even upon principles of comity, to recognize and enforce as to their own citizens, within their own borders, decrees of divorce rendered in other states, when the court rendering the same had jurisdiction over only one of the parties," but for a doubt derived from a suggestion in Bidwell v. Bidwell, 139 N.C. 402, 52 S.E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. Rep. 797. An examination of that case does not show that North Carolina should be taken out of the class of states which decline to recognize the validity of a divorce rendered in a court which had jurisdiction over only one of the parties. In that case the decree was rendered in North Dakota, where both parties appeared personally and by counsel.

In the Bidwell Case our court said:

"Where neither party has a domicile in the state of the forum, such court having no jurisdiction of the subject-matter of the controversy, a decree of divorce is void, though both parties may have appeared, and voluntarily submitted themselves to the jurisdiction of the court."

The suggestion referred to by Chief Justice White as having created a doubt in his mind is the following paragraph in Bidwell v. Bidwell:

"The better doctrine, however, now seems to be that, where the domicile of the defendant has been acquired in good faith, and not in fraud or violation of some law of a former domicile, a divorce of this kind should be recognized as binding everywhere, certainly within the jurisdiction of the United States or any one of them."

But that suggestion does not conflict with the contention of the state in this case that the domicile in Georgia set up by the defendant was not a bona fide domicile, but was obtained by fraud, and not acquired in good faith, as the defendant's wife was only constructively served with process by publication. In the Bidwell Case it is laid down that the domicile must have been acquired "in good faith, and not in fraud or violation of some law of a former domicile."

It necessarily follows, therefore, that when the defendant set up the defense of the divorce in Georgia, the state could allege and prove bad faith and fraud of the defendant in attempting to acquire a domicile in Georgia. In Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366, it is said that a state may hold invalid "a decree of divorce procured by its own citizens who, whilst retaining their domicile in the prohibiting state, have gone into 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 also in that state; that is, "the marriage, the 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 this case the first marriage took place in this state. The attempted divorce and the second marriage occurred in the state of Georgia, and the parties thereafter lived together in this state in violation of the amendment to Revisal, § 3361, above set out, so that the validity of the defense depends upon the bona fides of the alleged domicile in Georgia.

In Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 44 Am. St. Rep. 471, it is held:

"A decree of divorce obtained by a wife, resident in another state, * * * without personal service of summons upon the husband, is a nullity in this state."

To same effect is Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804, which held that:

"The court in Pennsylvania had no jurisdiction of the husband's suit for divorce, because neither party had a domicile in Pennsylvania, and the decree of divorce was entitled to no faith and credit in New York or in any other state."

That decision is based upon the evidence that the domicile of the husband in Pennsylvania was not bona fide and could be inquired into in a subsequent action.

In Streitwolf v. Streitwolf, 181 U.S. 179, 21 S.Ct. 553, 45 L.Ed. 807, it is said:

Page 700

"A judgment of divorce rendered in another state may be collaterally attacked by showing that the court was without jurisdiction either of the subject-matter of the suit or of the person of the defendant. Thus the validity of the decree may be overcome by proof that the parties were not domiciled, within the territorial jurisdiction of the foreign court."

In Haddock v. Haddock, 201 U.S. 573, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas, 1, it is said:

"It is elementary that, where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one state of a decree rendered in another, the question of the...

To continue reading