State v. Williams, 291.

Decision Date12 April 1944
Docket NumberNo. 291.,291.
PartiesSTATE . v. WILLIAMS et al.
CourtNorth Carolina Supreme Court

29 S.E.2d 744
224 N.C. 183

STATE .
v.
WILLIAMS et al.

No. 291.

Supreme Court of North Carolina.

April 12, 1944.


[29 S.E.2d 745]

Appeal from Superior Court, Caldwell County; S. J. Ervin, Jr., Special Judge.

O. B. Williams and another were convicted of bigamous cohabitation, and they appeal.

No error.

[29 S.E.2d 746]

Criminal prosecution tried upon indictment charging the defendants with bigamous cohabitation in violation of G.S. § 14-183, C.S. § 4342.

The controlling facts as disclosed by the record are:

1. That the male defendant was married to Carrie Ora Wyke in 1916; that they lived together in Caldwell County, this State, as husband and wife for more than 23 years and reared a family of four children; that they have not lived together since the male defendant deserted his home on 7 May, 1940; that Carrie Ora Wyke Williams had brought no divorce proceeding against her husband at the time of the first trial of this cause in the Spring of 1941, at which time she testified in the case, and that she is now dead.

2. That the feme defendant was married to Tom Hendrix in 1920; that they lived together in this State as husband and wife for more than 19 years; that no children were born of this marriage; that they have not lived together since the feme defendant deserted her home on 7 May, 1940; that Tom Hendrix had brought no divorce proceeding against the feme defendant prior to the first trial of this cause, at which time he testified in the case, but that he has since and remarried.

3. That Tom Hendrix was working in the store of the male defendant at the time the defendants herein left the State; that the first knowledge he had of his wife's departure was "when he went home at night she was gone."

4. That both of the defendants appeared at the Alamo Court, Las Vegas, Nevada, on 15 May, 1940.

5. That the male defendant instituted action for divorce in Clark County, Nevada, on 26 June, 1940, charging his wife with "extreme cruelty towards this plaintiff". Service of summons was obtained by publication, and no appearance was made by the defendant, Carrie Ora Williams, albeit notice was served on her by the sheriff of Caldwell County, North Carolina. A decree of absolute divorce was granted by the Nevada Court on 26 August, 1940, for cause set out in the complaint. I. S. Thompson appeared as counsel for plaintiff in the action.

6. That the feme defendant instituted action for divorce in Clark County, Nevada, on 26 June, 1940, alleging failure to support and "extreme mental cruelty" on the part of her husband. Service of summons was obtained by publication, and no appearance was made by the defendant, Tom Hendrix, though he sent plaintiff's counsel a post card saying that upon receipt of original appearance he would sign it. This he never did. O. B. Williams testified for the plaintiff in the case. He said the plaintiff had been living at the Alamo Court, Las Vegas, since 15 May, 1940, and that he had seen her every day while there. The plaintiff testified that she arrived in Clark County, Nevada, on 15 May, 1940, with intention of establishing an indefinite permanent residence. A decree of absolute divorce was granted by the Nevada Court on 4 October, 1940, for causes set out in the complaint. I. S. Thompson appeared as counsel for plaintiff in the action.

7. That the defendants were married in the State of Nevada on 4 October, 1940, and shortly thereafter in the fall of 1940, returned to North Carolina and are now living together at Pineola, Avery County, N. C. A true bill was returned against them at the February Term, 1941, Caldwell Superior Court.

8. The case was tried at the February-March Term, 1941, Caldwell Superior Court, which resulted in verdict and judgments against the defendants, and these were upheld on appeal. 220 N.C. 445, 17 S.E.2d 769. The judgment of affirmance was reversed on certiorari to the Supreme Court of the United States, and the cause remanded for proceedings not inconsistent with the opinion filed therein. 317 U. S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A. L.R. 1273. The case was thereupon remanded for a new trial in accordance with the opinion of the Supreme Court of the United States. 222 N.C. 609, 24 S.E.2d 256.

When the matter was again called for trial at the November Term, 1943, Caldwell Superior Court, the defendants entered a plea of former jeopardy, and moved to dismiss on the ground that the judgment of affirmance had been "reversed" by the Supreme Court of the United States, and, therefore, the defendants were entitled to be discharged. Overruled; exception.

Verdict: Guilty as charged in the bill of indictment.

Judgments: Imprisonment in the State's Prison as to male defendant for not less than one nor more than three years, as to

[29 S.E.2d 747]

feme defendant for not less than 8 nor more than 24 months.

The defendants appeal, assigning errors.

Harry M. McMullan, Atty. Gen, and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen, for the State.

W. H. Strickland, of Lenoir, for defendants.

STACY, Chief Justice.

This is the same case that was before us at the Fall Term, 1941, reported in 220 N.C. 445, 17 S.E.2d 769, with ample reference to pertinent statutes and full statement of the facts, to which reference may be had to avoid repetition.

The short and simple facts upon which the case was made to turn in the court below are these: For many years the defendants lived with their respective spouses in the village of Granite Falls, Caldwell County, this State. The feme defendant's husband worked in the store of the male defendant. The defendants disappeared from their respective homes on 7 May, 1940. Eight days thereafter they both appeared at the Alamo Court, Las Vegas, Nevada. Exactly six weeks later each filed suit for divorce in Clark County, Nevada, on grounds recognized in that State, but not in this State. No appearance was made by the nonresident defendant spouse in either case. Service was by publication. Both defendants employed the same attorney. The uncontested divorces were granted on 26 August and 4 October, 1940, respectively. On the day of the last divorce, the defendants were married in the State of Nevada, and almost immediately thereafter they returned to North Carolina and have since lived together in this State. In all, they were out of the State about six months. The defendants were convicted of bigamous cohabitation at the February-March Term, 1941, Caldwell Superior Court, and judgments pronounced. The judgments were affirmed on appeal, and later reversed by the Supreme Court of the United States and the cause remanded for proceedings not inconsistent therewith.

Our former decision was predicated primarily upon the ground that the Nevada divorce decrees, here in question, were not entitled to full faith and credit in this jurisdiction, Const.U.S. art. 4, § 1, because they were obtained on constructive serv ice and no appearance had been made in the divorce proceedings by the nonresident defendants named therein. For this position we relied upon the celebrated case of Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, and a number of our own decisions accordant therewith. Tyson v. Tyson, 219 N.C. 617, 14 S.E.2d 673; Pridgen v. Pridgen, 203 N. C. 533, 166 S.E. 591; State v. Herron, 175 N.C. 754, 94 S.E. 698. Aside from this, however, but secondarily, it was suggested that the evidence tended to show the defendants were not bona fide residents of the State of Nevada, and that they had fraudulently obtained their divorces in that State.

When the matter reached the Supreme Court of the United States on certiorari, the Haddock case was overruled. This removed the principal ground upon which our decision had been made to rest. The logical result, therefore, was a reversal of the judgment of affirmance. Williams and Hendrix v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. Not finding it appropriate to do so, the court of last resort did not pass upon the further challenge to the divorce decrees, towit, that the plaintiff in each case had acquired no...

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