Opinion
29539.
DECIDED OCTOBER 20, 1942.
Adultery and fornication; from Berrien superior court — Judge W. R. Smith. January 12, 1942.
William Story, Corbitt Summer, for plaintiff in error.
H. W. Nelson, solicitor-general, contra.
1. "Actual domicile of one party or the other in the State in which a decree of divorce is granted being essential to the jurisdiction to make it, whether such domicile in fact exists, may be collaterally inquired into when the decree is sought to be used in another State, and, if it clearly appears that such domicile was lacking, the decree will be treated as a nullity, and the status of the parties unaffected thereby."
2. Applying the above-stated law to the evidence in this case, we think the Georgia court had the right to collaterally inquire into the jurisdiction of the Florida court, and that neither the defendant nor his wife had an actual domicile in the State of Florida where the decree of divorce was granted, and that a fraud was committed upon the Florida court; hence the jury were authorized to find that the divorce was a nullity, and to so treat it. Durden v. Durden, 184 Ga. 421 ( 191 S.E. 455); Adams v. Adams, 191 Ga. 537 (3) ( 13 S.E.2d 173).
3. Hence the accused's contention, that when he as defendant contests his wife's petition for a divorce in Florida and goes into court and files his answer and makes no mention or objection to the jurisdiction, then the divorce when granted is legal and valid, even if correct, is not applicable in this case, as there is no evidence in the record to show that he filed an answer in the Florida divorce proceedings.
4. "The law of the preponderance of evidence is not applicable in criminal cases. . . The only appropriate charge in a criminal case on the subject of the weight of evidence is the fundamental principle that the State is required to prove the guilt of the accused beyond a reasonable doubt." Mill v. State, 2 Ga. App. 398 ( 58 S.E. 673).
DECIDED OCTOBER 20, 1942.
In the instant case the prosecution was for adultery and fornication, and the defense was based on the validity of a divorce in another State. The evidence was undisputed that W. P. Lipham had carnal knowledge of Helen Wommack, an unmarried woman. The defendant contends that his wife, Sinie Lipham, had sued him for a divorce in Florida; that the Florida court had granted both the defendant and his wife a divorce; and that his marriage to Helen Wommack after such divorce stopped any criminal action against him for adultery and fornication between Helen Wommack and himself. The question here is thus presented, whether the divorce was legal. The defendant introduced a Florida divorce decree, purporting to grant a divorce between him and his wife, Sinie Lipham. As to the jurisdiction of the Florida court this decree recited: "That while the parties to this case are in Polk County, Florida, . . the parties each having submitted themselves to the jurisdiction of the court, the court takes jurisdiction of the whole matter." No other part of the record of the alleged divorce proceeding in Florida was introduced. The indictment charged the commission of the offense on August 14, 1941, and the trial took place in October, 1941. The evidence was to the effect that under the Florida law the Florida court could not take jurisdiction of a divorce case until after the applicant had been a bona fide resident of Florida for ninety days. The brother of Helen Wommack testified that he lived about a quarter mile from the defendant's place, and that on a Friday morning, after he caught them on Monday night committing adultery and fornication, the defendant and his wife left for Florida; that "Lipham has lived right there where he is now living for the past four or five years. His wife lived right with him, slept in the same bed with him. They left or disappeared Friday, August, 1941, to go to Florida. Both disappeared at the same time. I don't know where they went. . . Mr. Lipham's wife's given name is `Sinie.' She is living. I saw her this morning, she is in the courtroom." Helen Wommack testified in part: "Mr. and Mrs. Lipham have not lived in Florida for the last four years, except only on a visit going down there. Their last visit was along in June, best I remember. They was there somewhere around a week. They went and came back together, and they went back home and lived together like they always did; and they continued to live together till he went to Florida, him and her, and got a divorce. I don't remember what time they went to Florida. He went on Friday, I think, and came back on Sunday or Sunday night, and she stayed in Florida. She went with him the best I remember, the Friday before we got married. We were married on Thursday. Six days from the time he left for Florida he married me. I think it was Friday he went. He carried his wife down there with him. They left; I reckon she went with him. In other words they disappeared. He came back Monday or somewhere between Sunday and Monday, he told me but I forget. I did not see her till she came home somewhere between a week and a week and a half, and she did not appear back with him. . . Mrs. Lipham could not have lived in Florida three or four months in the last two years and me not know it."
1. "The right, under the Constitution of every State in the United States, to regulate the matter of marriage and divorce within its own borders, and to defend it against encroachment, and to fix and declare the matrimonial status of its own citizens, is undoubted, and the full faith and credit provision of the Constitution is not to be construed so as to defeat this right, nor is the provision applicable at all save to judgments rendered with jurisdiction, which is the power to adjudge, and jurisdiction may be collaterally inquired into." De Bouchel v. Candler, 296 Fed. 482. "Actual domicile of one party or the other in the State in which a decree of divorce is granted being essential to the jurisdiction to make it, whether such domicile in fact exists, may be collaterally inquired into when the decree is sought to be used in another State, and, if it clearly appears that such domicile was lacking, the decree will be treated as a nullity, and the status of the parties unaffected thereby." Id. "A State in which an applicant for divorce is a mere sojourner, in which the other party is not domiciled, has no jurisdiction to grant a decree on substituted service, but is a mere meddler, and such a decree, even though authorized by its own laws, is not entitled to full faith and credit elsewhere as a matter of right, and should not be recognized by comity because directly tending to overthrow the power of every State to deal with the matrimonial status of its own citizens." Id.
Applying the above-stated law to the evidence in this case, we think the Georgia court had the right to inquire collaterally into the jurisdiction of the Florida court, and that neither of the parties, the defendant nor his wife, had an actual domicile in the State of Florida where the decree of divorce was granted, and that a fraud was committed on the Florida court. Hence, the jury were authorized to find that the divorce was a nullity and to so treat it, and thus the evidence authorized the verdict finding the defendant guilty of adultery and fornication. Dyal v. Dyal, 187 Ga. 600 ( 1 S.E.2d 660); Drake v. Drake, 187 Ga. 423 ( 1 S.E.2d 573); Solomon v. Solomon, 140 Ga. 379 ( 78 S.E. 1079).
2. There is no evidence in the record that the defendant came into court and filed his answer. Hence, the defendant's contention "that when the defendant contests a petition for divorce, and comes into court and files his answer, and makes no mention or objection to the jurisdiction then the divorce, if granted, is a legal and valid divorce," even if correct, is not applicable to this case.
3. The court charged in part: "The defendant contends that he was legally divorced in Florida, and that subsequent to being legally divorced in Florida that he married the female involved in this case. In this connection, gentlemen, I charge you that if the defendant in this case were legally divorced in Florida and legally married the female involved in this case, that would suspend this prosecution, and he could neither be further prosecuted nor punished. . . I charge you further, gentlemen, that if the defendant in this case really and in good faith believed that he had a valid and legal divorce in Florida at the time he married the female in question, he would not be guilty." This being a criminal case, the defendant did not have to prove that he was innocent of the offense charged or make explanation of any matters that would show that he was not guilty. But the burden was on the State at all times down to the moment of his conviction to prove that he was guilty as charged. He might, however, introduce evidence and explanations to show that he was innocent. 5 Reid's Branson Instructions to Juries, 30, § 3307. The charge did not impose on the accused the burden of showing more than that he had a legal divorce; nor could the jury have understood to the contrary. The defendant in a criminal case is not required to satisfy the jury of the existence of any fact which, if true, is a defense. Douglas v. State, 51 Ga. App. 141, 145 ( 179 S.E. 857). It is sufficient if, from the evidence or the want of evidence, there is created in the minds of the jury a reasonable doubt of the guilt of the defendant. There was nothing in the charge from which the jury might have understood that the burden of proof in any way shifted from the State to the defendant. But on the other hand the court clearly charged that in this case the defendant "enters upon the trial of the case with the presumption of innocence in his favor. That presumption remains with him until and unless the State shall overcome and remove it by the introduction of testimony in your presence and hearing sufficient to convince your minds beyond a reasonable doubt of the guilt of the accused;" and concluded his charge with: "If you do not believe the defendant to be guilty, or if you have a reasonable doubt about his guilt, it would be your duty to acquit him." Field v. State, 126 Ga. 571 (5) ( 55 S.E. 502). It was not error to fail to charge, in the absence of a request, that the defendant "was only required to show by a preponderance of the evidence that his divorce was legal and valid." "The law of the preponderance of evidence is not applicable in criminal cases; and where in a particular case there is testimony in behalf of the State and the defendant, and the issue to be determined depends upon the weight which the jury may give to the conflicting evidence, it is error to charge said law." Mill v. State, supra.
The court did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.