For dismissal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J. Wachenfeld, J. (dissenting). Oliphant, J., concurring in result.
The Appellate Division affirmed the defendant's conviction for bigamy. 35 N.J. Super. 168. Thereafter he sought certification under R.R. 1:10-2 but his application was denied by this court. State v. De Meo, 19 N.J. 330 (1955). He also filed notice of appeal alleging that his constitutional right to trial by jury had been impaired. See R.R. 1:2-1(a). The State filed a motion to dismiss the appeal and decision thereon was reserved pending full argument which has been completed.
In 1941 the defendant married Ann Nasco De Meo and in 1953 he married Josephine De Pasque. Both marriages took place in New Jersey, all parties are still alive, and no intervening final judgment of divorce was ever granted in the United States. However, the defendant's application for license to marry Josephine De Pasque stated that he had been divorced by a Mexican decree dated February 18, 1953. He was indicted for bigamy and was duly tried before County Judge Waugh and a jury. During the trial Ann Nasco De Meo testified that her marriage to the defendant had never been annulled and that she had never obtained a final judgment of divorce although she had received a Mexican decree in the mail; she testified further that a document bearing her signature and apparently used as a power of attorney in the Mexican proceeding had been obtained from her by the defendant who had her sign a blank piece of paper
Counsel for the defendant stated that he was not contending that Ann Nasco De Meo ever went to Mexico and he represented that he did not intend to establish that there was ever any domicil in Mexico. However, he did offer in evidence an exemplified copy of a divorce decree issued under date of February 18, 1953 by the First Civil Court, Bravos District, State of Chihuahua, in a proceeding entitled Ann Nasco DeMeo, plaintiff, v. John DeMeo, defendant. This decree did not purport to rest on any jurisdictional finding of domicil; on the contrary it simply asserted that the plaintiff had appeared by a special attorney and filed a suit for divorce and that the court acquired jurisdiction "by the submission of the plaintiff to the authority of this Court." Judge Waugh declined to receive the Mexican decree in evidence. See State v. Najjar, 1 N.J. Super. 208 (App. Div. 1949), affirmed 2 N.J. 208 (1949). He did permit the introduction of the defendant's application for a license to marry Josephine De Pasque; as hereinbefore noted, the application made specific reference to the Mexican divorce. Cf. Antunes v. Antunes, 23 N.J. Super. 150 (Law Div. 1952). The defendant did not testify in his own behalf.
In his charge to the jury, Judge Waugh clearly explained the State's burden of establishing the elements of the crime of bigamy and the defendant's presumption of innocence which remained "with him throughout the entire trial of the case." He quoted the main body of our statute (N.J.S. 2 A:92-1) which declares that "any person who, having a husband or wife living, marries another person, is guilty of bigamy," and then set forth the statutory exceptions including the one in favor of a person who had been "divorced by the judgment or decree of any authority or court having cognizance thereof." He instructed the jury that domicil was the jurisdictional basis for divorce and that the burden of bringing himself within the statutory exception rested with the defendant. See State v. Reilly, 88 N.J.L. 104 (Sup. Ct. 1915), affirmed 89 N.J.L. 627 (E. & A. 1916). After the jury returned its verdict of guilty, the defendant appealed to the Appellate Division asserting
various trial errors; these were rejected in a persuasive opinion by Judge Goldmann. State v. De Meo, 35 N.J. Super. 168 (1955). As we view the issues presented to and determined by the Appellate Division there were no constitutional questions involved which are reviewable in this court as of right under R.R. 1:2-1(a). In Starego v. Soboliski, 11 N.J. 29, 32 (1952), State v. Pometti, 12 N.J. 446, 450 (1953), and State v. Greenberg, 16 N.J. 568, 571 (1954), we recently pointed out that an appeal under the cited rule is maintainable only where the record reveals a substantial rather than merely a colorable constitutional question. Since we perceive no substantial constitutional question in the instant matter we shall grant the State's motion to dismiss the appeal. However, in view of the important public nature of the matter we shall deal further with the questioned effects of Mexican mail order divorces. See Starego v. Soboliski, supra; City of Newark v. Pulverman, 12 N.J. 105, 108 (1953); State v. Monahan, 15 N.J. 34, 36 (1954); State v. Greenberg, supra.
Domicil is generally said to be the place where the person maintains his permanent home. See Kurilla v. Roth, 132 N.J.L. 213, 215 (Sup. Ct. 1944); State v. Garford Trucking, Inc., 4 N.J. 346, 353 (1950). Cf. 1 Beale, Conflict of Laws 89 et seq. (1935). It is the jurisdictional basis for divorce and is recognized as such in all of our states and throughout the English-speaking world. State v. Najjar, supra. Without it no state may properly grant a divorce; with it any state may grant a divorce which would be entitled to recognition elsewhere under the full faith and credit clause. See Williams v. State of North Carolina (I), 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942); Stultz v. Stultz, 15 N.J. 315, 319 (1954); Zieper v. Zieper, 14 N.J. 551, 559 (1954). Cf. Lea v. Lea, 18 N.J. 1 (1955); Williams v. State of North Carolina (II), 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948); Johnson v. Muelberger, 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552 (1951); Sutton v. Leib, 342 U.S. 402, 72 S. Ct. 398, 96
L. Ed. 448 (1952); May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953).
The Mexican divorce of February 18, 1953 was not based on domicil or any jurisdictional finding thereof; assuming for present purposes that it may have some validity in Mexico itself (cf. Summers, The Divorce Laws of Mexico, 2 Law and Contemporary Problems 310 (1935)), it clearly has no extraterritorial effect and is entitled to no recognition here. See Tonti v. Chadwick, 1 N.J. 531 (1949); State v. Najjar, supra; In re Cohen, 10 N.J. 601 (1952). In the Tonti case the court held that a Mexican mail order divorce was "utterly void for want of jurisdiction of the subject matter"; in the Najjar case a bigamy conviction, based on a remarriage after a similar divorce, was sustained and the divorce was described as "legally void and generally known to be worthless"; and in the Cohen case this court said in an opinion which disbarred an attorney on charges including his participation in the procurement of a Mexican mail order divorce:
"That Mexican mail order divorce decrees obtained merely on signed waivers of jurisdiction without the personal appearance in Mexico of either husband or wife are complete nullities in this State has long been settled. Reik v. Reik, 109 N.J. Eq. 615 (Ch. 1932), affirmed 112 N.J. Eq. 234 (E. & A. 1933); Knapp v. Knapp, 12 N.J. Misc. 599 (Ch. 1934); Newton v. Newton, 13 N.J. Misc. 613 (Ch. 1935); Greenspan v. Greenspan, 19 N.J. Misc. 153 (Ch. 1941). Decisions since 1946 include Tonti v. Chadwick, 1 N.J. 531 (1949) and State v. Najjar, 2 N.J. 208 (1949), affirming 1 N.J. Super. 208 (App. Div. 1949)." (10 N.J. at page 602)
Our most recent expression on the subject is found in Untermann v. Untermann, 19 N.J. 507 (1955), where Justice Oliphant aptly stated that "whatever doubt there may have existed in the minds of some over the years that a Mexican divorce might have some validity in this State was completely dissipated when this case was filed in 1953." The defendant De Meo does not now contend that the divorce of February 18, 1953 has any validity in this State; his position is that the exemplified copy of the Mexican divorce should have been admitted, not to establish that he was legally
divorced, but as evidence tending to support a defense that he acted in good faith and without any intention of violating the bigamy statute. In State v. Najjar, supra, this court held that a defendant who remarries on the basis of a Mexican mail order divorce (which lacks even colorable validity) may not avail himself of a defense based on the absence of criminal intent. The defendant De Meo urges that the Najjar case be re-examined and that our bigamy statute now be construed as affording a comprehensive defense based on the defendant's honest belief that he was free to remarry. See Clark and Marshall, Crimes (5 th ed. 1952), 60, 63; Trowbridge, Criminal Intent and Bigamy, 7 Calif. L. Rev. 1 (1918); Edwards, Mens Rea and Bigamy, 2 Current Legal Problems 47 (1949).
Originally bigamy was an offense against canon law, triable only in the ecclesiastical courts. Although mentioned in the Statute de Bigamis in 1279, it did not become a crime cognizable in common-law courts until the passage of 1 Jac. 1, c. 11 (1603). See State v. Warady, 78 N.J.L. 687, 691 (E. & A. 1910); 2 Wharton's Criminal Law (12 th ed. 1932), § 2030; 3 Burdick, Law of Crime (1946), § 841. The present English act was passed in 1861 and provides that "whoever being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony" -- there then follow exceptions in cases (1) where the other spouse has been absent for seven years and is not known to be alive, (2) where there ...