# State v. . Williams

> Supreme Court of North Carolina · December 10, 1941 · 220 N.C. 445

URL: https://www.frixlaw.com/law-library/cases/9808708

## Case

- **Full name:** State v. O. B. Williams and Lillie Shaver Hendrix.
- **Court:** Supreme Court of North Carolina
- **Decided:** December 10, 1941
- **Citations:** 220 N.C. 445; 17 S.E.2d 769; 1941 N.C. LEXIS 566
- **Precedential status:** Published
- **Opinion:** Concurrence by BaeNHIll
- **Judges:** Clarksok, Stacy, Winborne
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Williams v. North Carolina, 317 U.S. 287 (1943).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9808708

## Opinion text

*463 BaeNHIll, J.,
concurring: When tbe State offered evidence tending to show the first marriage of each of the defendants; that the wife of the defendant "Williams and the husband of the defendant Hendrix are each still living; the second contracts of marriage and subsequent cohabitation of the defendants within this State it made out a prima facie case which, nothing else appearing, would require a verdict of guilty. That each of the defendants had been divorced was a fact to be proven in defense. S. v. Norman, 13 N. C., 222 ; S. v. Melton, 120 N. C., 591 ; S. v. Herron, 175 N. C., 754 , 94 S. E., 698 ; Thompson v. S., 20 Ala., 12 ; Com. v. Bolich, 18 Pa. Co. Ct., 401 . Hence the question here presented is this: Have the defendants presented evidence of a valid defense ?
The decrees of divorce relied upon by defendants were obtained in the State of Nevada on constructive service. The court rendering the judgments had no jurisdiction of the person of the respective defendants therein. Arrington v. Arrington, 102 N. C., 491 , and 127 N. C., 190 ; Harris v. Harris, 115 N. C., 587 ; Pridgen v. Pridgen, 203 N. C., 533 , 166 S. E., 591 ; Tyson v. Tyson, 219 N. C., 617 ; Thompson v. S., supra; Bell v. Bell, 181 U. S., 175 , 45 L. Ed., 804 .
Marriage is regarded as creating a status within the protection and control of the laws of the matrimonial domicile which, from considerations of public policy, will not be deemed destroyed unless the resident party has been brought within the jurisdiction of the foreign state by more than constructive service. Tyson v. Tyson, supra.
Judgments of divorce rendered by the foreign state are not protected by the full faith and credit clause (Art. IV, sec. 1) of the Federal Constitution. The mere domicile within the state of one party to the marriage does not give the courts of the state jurisdiction to render a decree of divorce enforceable in all the other 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. Haddock v. Haddock, 201 U. S., 562 , 50 L. Ed., 867 ; S. v. Herron, supra; Thompson v. S., supra. They are subject to attack for want of jurisdiction of the rendering court over the person of the defendant named therein. Thompson v. Whitman, 85 U. S., 897 ; Haddock v. Haddock, supra; S. v. Herron, supra.
That the marriage of the defendants was consummated in another state is immaterial. “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 shall be punished as in eases of bigamy.” C. S., 4342; S. v. Moon, 178 N. C., 715 , 100 S. E., 614 ; S. v. Herron, supra.
*464 It follows that under our law the defendants failed to establish a divorce or second marriage effective as a valid defense to the prosecution. The divorce decrees, being rendered upon constructive service, were without foree or effect within this State. Their subsequent marriage, had it been contracted in this State, was bigamous. Cohabitation thereunder within this State constituted a bigamous cohabitation.
For the reasons stated I agree that the judgment below should be affirmed.
Stacy, O. J., and WiNBORNE, J., join in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9808708. Public record. Not legal advice.