State v. . Herren

92 S.E. 596, 173 N.C. 801, 1917 N.C. LEXIS 419

• Court: Supreme Court of North Carolina
• Decided: May 26, 1917
• Status: Published

Opinion

Alleit, J.

The defendant in this indictment is John R. Herren, and it is charged in the indictment that his first wife was named Lizzie V. Herren,- and the plaintiff in the proceeding for divorce in Georgia was John R. Herren and the defendant therein was Lizzie Y. Herren. '

This identity of names, nothing else appearing, furnishes evidence of the identity of person.

“Identity of name is prima facie evidence of identity of person, and is sufficient proof of the fact, in the absence of all evidence to the contrary.” 10 R. C. L., 877; Wilson v. Holt, 83 Ala., 528; Estate of Williams, 128 Cal., 553; Summer v. Mitchell, 29 Fla., 179; Brown v. Metz, 33 Ill., 339; Jackson v. King, 5 Cow. (N. Y.), 237; Chamblee v. Tarbox, 27 Tex., 139.

There w.as also other evidence of the identity of the person. The complaint in Georgia alleged the marriage of plaintiff and Lizzie Y. Herren in Buncombe County, North Carolina, on 28 March, 1896, and the record of marriages of Buncombe County shows the marriage of the plaintiff and the defendant in Buncombe County, the day alleged.

The defendant also introduced evidence tending to prove that he left North Carolina in the fall of 1912, intending to make his home in Georgia, and that he did not thereafter live in North Carolina until some time during the year 1916; that he was seen in Atlanta, where the decree for divorce was rendered, and that while there he showed to a witness copies of the decree for divorce in the action entitled John R. Herren .against Lizzie Y. Herren.

There was, therefore, error in excluding the record of the action in Georgia and in refusing to permit the jury to consider it, and a new trial must be ordered.

New trial.