It is undoubted that if the finding of the trial court stands the only legal *Page 353 conclusion which can be drawn from the facts by this court is that which the majority opinion draws. The question of law, which is fairly raised upon the appeal, and which compels me to reach a different conclusion from that reached by my associates, concerns the method adopted by the trial court in permitting the State to secure these facts by a method contrary to our procedure, and one in derogation of the constitutional rights of the accused.
The information charges the accused with neglect and refusal to support his wife and child. The State offered evidence to prove the date of marriage of the accused and his wife, that they had lived during their married life in Hartford and that the accused had not furnished support for his wife and child since December 26th, 1928, and rested its case.
The accused, as the first witness in his behalf, testified to having supported his wife and child while he was living with them in Hartford and of his wife having left him three times. Counsel stipulated that the accused had not supported his wife since about December 30th, 1928, to the time of the trial, March 22d 1929. His counsel then inquired of him, "Whether or not you obtained a divorce in another State of this Union?" He replied, in Reno, Nevada.
An exemplified copy of the divorce judgment and decree was then offered in evidence. It was in due form and contained all jurisdictional requirements of the State of Nevada. The State objected to its admission until the accused had established "that he was an actual bona fide resident of the State of Nevada."
Thereupon the court ruled, "Well, before admitting it, if you are going to claim that it was fraudulently obtained, obtained through fraud, or anything of that kind, I will permit you to examine him before I admit it." *Page 354
The State then, over the objection and exception of the accused, inquired of him concerning his place of employment in October, 1927, and at present, that he had had no home of his own while living with his wife but that they had resided with his parents, he furnishing the bedroom which they occupied and they living in the rest of the house with the rest of the family, and that he arrived in Nevada July 26th, 1928, alone. The State then inquired: "Before you left you obtained a leave of absence from your employer?" Counsel for the accused objected upon the ground that the jurisdiction was determined by the Nevada decision and cannot be collaterally attacked and inquired into here. The court overruled the objection and the accused duly excepted, and the witness testified that he had talked with his employer who agreed that if he came back within four months his position would be kept open for him.
He was also inquired of by the State as to whether he had ever instructed the registrars to take his name from the Hartford voting list, and whether he had not regularly supported his wife during the time he was in Nevada under an arrangement made with the probation officer.
He was then further inquired of by the State as to his residence in Reno, the house he lived in, his places of eating, his employment or attempts to secure employment there, as to whether he there paid taxes, joined a church, owned property, or had anything there except his clothing, or had charge accounts at stores, or had subscribed to magazines, or consulted a lawyer with regard to divorce before leaving Hartford, as to his mail in Reno, his vacation in the coming summer, as to his being on the voting list in Nevada, as to his purpose in going to Nevada, and as to whether he had visited his child after returning to Hartford. *Page 355
The State then inquired as to the charge of intolerable cruelty found by the Nevada court, claiming that it was on the same footing as the evidence in regard to whether the accused was a bona fide resident of Nevada. The court excluded the question upon the objection of counsel for the accused and the State duly excepted. Counsel for the State claimed from the facts elicited from this preliminary examination that the residence of the accused in Nevada was colorable.
The court then ruled that it would admit the judgment and decree of the Nevada court and later pass upon the force and effect it would give it. The decree purported to be upon the grounds of intolerable cruelty and desertion. Counsel for the accused renewed his objection claiming that it was for the State to establish that the decree was colorable and not for the accused to disprove that claim for the reason that a foreign court decree does import verity.
Counsel for the accused then said he had no additional evidence to offer. The court then examined the accused as to how he and his wife came to live apart and if he then wished his wife to come back.
Later the court inquired of the accused as to whether he went to Reno to get a divorce, as to when it occurred to him there to get one, as to when he consulted a lawyer and brought his action, as to whether it was about that time he discovered his wife had been intolerably cruel to him and had deserted him, as to whether he recovered his health after he obtained his decree, and as to the places he had been in, within and outside Nevada during his residence in Reno.
The facts tending to show that the residence of the accused in Reno was a colorable one were elicited almost entirely by the State or by the court in the preliminary examination of the accused which was permitted by the court prior to its decision relative to *Page 356 admitting in evidence the decree. Practically this is true as to paragraphs ten, eleven, twelve, fifteen, sixteen, seventeen, eighteen, nineteen and twenty-five of the finding.
No objection was offered by the State to the offer in evidence of the decree because it was defective in authentication in any particular, nor did the trial court question it in these particulars, nor do counsel for the State in this court suggest its deficiency in any of these particulars.
Upon its offer it was admissible and to refuse its admission was to deny full faith and credit to the decree of a State of the Union in violation of the first section of Article IV of the Constitution of the United States. Bank of North America v. Wheeler, 28 Conn. 433,439; Hampton v. M'Connel, 16 U.S. (3 Wheat.) 234.
To require an accused to give testimony tending to prove that this decree was a colorable one was to make him incriminate himself which was a violation of § 9 of Article First of the Constitution of Connecticut.
The burden of proving that this decree was a colorable one was upon the State and it could not satisfy this burden by testimony from the accused obtained from him by compulsion and against the objection and protest of his counsel. Gildersleeve v. Gildersleeve,88 Conn. 689, 92 A. 684; 19 Corpus Juris, 175, and cases cited in note 67.
Other facts elicited upon this point by the State or the court were obtained in large part from the accused and after he had rested his case and were not responsive to the direct examination of the accused, and were open to the same grave constitutional objections as was the entire preliminary examination. *Page 357
Upon the facts thus obtained from the accused the court reached the conclusion "that this accused did not go to Reno with the bona fide intention of making that his domicil; that his so-called residence or domicil there was merely a colorable one; that when he left Hartford to go to Reno he had no intention of making Reno his domicil, nor did he, when he was in Reno, intend to establish his domicil, but at all times he intended, as soon as his decree was granted, if it was, to return to Hartford. Therefore, this court, under the rule laid down in the Gildersleeve case, is not required to recognize the validity of the Reno divorce."
I am in full accord with the doctrine of our court upon the invalidity of a foreign divorce which is merely colorable through the failure of a plaintiff to acquire a bona fide residence in the jurisdiction granting the divorce.
There is, however, something involved in this case of far higher consideration than the punishment of the accused for his neglect and refusal to support his wife and child, and that is the maintenance of the conduct of our trials in accordance with our rules of procedure which are based upon fairness and the preservation of constitutional rights which are essential to the Union of our States and to the individual rights of our citizens. *Page 358