Clark v. Clark., 3671.

• Decision Date: 02 July 1947
• Docket Number: No. 3671.,3671.
• Citation: 54 A.2d 166
• Parties: CLARK v. CLARK.
• Court: New Hampshire Supreme Court

54 A.2d 166

CLARK

v.CLARK.

No. 3671.

Supreme Court of New Hampshire.

July 2, 1947.

Transferred from Superior Court, Hillsborough County; Blandin, Chief Judge.

Libel for divorce by Genevieve G. Clark against James W. Clark, Jr. Question transferred without ruling.

Case discharged.

Libel for divorce. There appears to be no dispute that the libellee was tried and convicted by a General Court-Martial of the United States Navy in the First Naval District in Boston, Massachusetts, on January 3, 1946, of ‘absence from station and duty after leave had expired,’ and was sentenced to imprisonment for a term of three and three-fourths years in naval prison. Where he has been confined since January 16, 1946. The question of whether the conviction and imprisonment constitute cause for divorce within the meaning of section 6(IV), c. 339, R.L., is transferred without ruling by Blandin, C. J.

Aaron A. Harkaway, of Nashua, for libellant.

James W. Clark, Jr., pro se.

DUNCAN, Justice.

The statute provides that a divorce shall be decreed in favor of the innocent party for the following cause, among others: ‘IV. Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction.’ R.L. c. 339, § 6(IV). This statutory cause as originally stated was ‘conviction of crime and actual imprisonment in the state prison.’ R.S.1842, c. 148, § 3, and held to be restricted to conviction and imprisonment in New Hampshire. Martin v. Martin, 47 N.H. 52. It was thereafter amended to ‘conviction * * * of crime punishable in this state with imprisonment for more than a year and actual imprisonment under such conviction.’ G.S.1867, c. 163, § 3. It was further amended, to take its present form, in 1937. Laws 1937, c. 4.

The offense for which the libellee was tried and of which he was convicted is a crime, punishable with imprisonment for more than one year. 34 U.S.C.A. § 1200, Articles for the Government of the Navy, Art. 8, (Nineteenth). See State v. McConnell, 70 N.H. 158, 159, 46 A. 458; Tullidge v. Biddle, 8 Cir., 4 F.2d 897. The libellant has been imprisoned under the conviction, by a sentence for more than one year.

The only question remaining for determination is whether convition by general court-martial held in Boston was ‘conviction * * * in any state or federal district’ within the meaning of the statute. It seems plain that it was. The amendment of 1937 was clearly intended to broaden the scope of the statute from conviction of a crime punishable as specified, in this state, to such a crime punishable in any of the United States, or in the District of Columbia. Cf. Bailey v. Smith, D.C., 40 F.2d 958. As the cause for divorce is stated by the statute, it is not restricted to conviction by the court of a state or federal district, and no reason to imply such a limitation is apparent. Except as the word conviction implies the judgment of a court of competent jurisdiction, the nature of the court in which conviction may take place whether state or federal, civil or...