54 S.E. 416 | N.C. | 1906
The plaintiffs, children within the school age, resident in Avery's Creek Township, Buncombe County, on 1 August, 1905, entered, as pupils, the school established in said township, in pursuance of law, for children of the white race. They attended the school for one week, when they were excluded therefrom by the defendants, who have since continued to refuse them admittance to the school, after demand duly made by the plaintiffs. The defendants admit that the plaintiffs are within the school age and resident within said township and assignable to the schools established *383 therein, and admit further that they have excluded them from the schools of said township established for the white race, and claim the right so to exclude them on the ground that the plaintiffs are not children of the white race, but are of mixed blood, having a certain amount of negro blood. The cause was made to depend and did depend on that single question whether the plaintiffs were children of the white race pure and unmixed with any negro blood. The form of the issue is as follows: "Are the plaintiffs entitled to admission in the white schools of Buncombe County?" Under the charge of the court the jury rendered a verdict in favor of the plaintiffs; judgment on the verdict, and the defendants excepted and appealed. While the principle involved in this issue is one of supreme importance, not only to the parties litigant, but to the entire Commonwealth, the questions as presented to us in the case on appeal are very much restricted in their scope and (484) import, and are without serious difficulty.
The Constitution and statutes of North Carolina require that the children of the white race and the children of the colored race must be taught in separate public schools. In obedience to this requirement the defendants have established separate public schools for the two races in Avery's Creek Township. It is conceded that the plaintiffs are children within the school age, resident in that township, assignable to the public schools therein, and that if they are children of the white race, a substantial right has been unlawfully denied them by defendants, properly enforcible by mandamus.
The issue is, in form, determinative of the controversy and such as enabled the parties to present every phase of the evidence relevant to the question involved. After a very full investigation the jury have answered the issue in plaintiff's favor, and if this answer has been given after a trial free from error, the verdict must and should be an end of the matter.
The claim and allegations of defendants placed the mixture of negro blood in Jeffrey Graham (now dead), a great-grandfather of plaintiffs, who lived in Buncombe County about forty or forty-four years ago. In the deposition of William Whitesides, offered by plaintiffs as evidence to show that their ancestor, Jeffrey Graham, was of pure white blood, the witness stated that he lived as a neighbor to Jeffrey Graham four years about forty or forty-four years ago, and the following question and answer were assigned for error:
"Q. Do you remember whether Jeffrey Graham voted, and if so, state *384 when and where? A. There was nothing said against his voting, and I think he always voted."
It is well established that in questions of race ancestry, general or common reputation is received under certain conditions, and the principle applies here. Wigmore on Evidence, sec. 1605, p. 1594; (485) Bryan v. Walton,
Defendants do not insist on this position, but rest the objection on the fact that this is simply an opinion of the witness. We do not think, however, that this is a correct interpretation of the question and answer.
A witness who undertakes to testify to objective facts and qualifies his testimony by using the terms, "I think," or "I have an impression," etc., if the witness has had no physical observation or has made no note of the facts, but is merely stating to the court and jury his mental inference or deduction, this, as a rule, is incompetent. But if the witness has had opportunity to note relevant facts himself and did observe and note them, and simply qualifies his testimony in this way because his impression or memory is more or less indistinct, this, while in the form of opinion, is really the statement of a fact, and will be so received. Greenleaf Ev. (16 Ed.), sec. 430 (i). And so it is here. The witness was a neighbor of Jeffrey Graham for four years or more and speaks from his own observation. He is giving to the jury impressions of things he saw and noted, and not an inference or deduction from things he had not seen, and the evidence was properly received.
Again, it is urged for the defendants that there was error in the judge's charge, duly pointed out by exception, as follows: "If you find (486) that the plaintiffs and their ancestors have not heretofore associated with negroes, but have associated with white people on terms of social equality, and that their ancestors went to white schools, claiming to be of Portuguese descent, this evidence must be considered in arriving at a conclusion as to what race they belonged, and you should consider in this connection the declaration of Jeffrey Graham that he *385
was of Portuguese descent." The error insisted upon here being that the judge in effect declared as a fact that Jeffrey Graham had made said declarations, and this, the defendants contend, is in violation of the statute which prohibits a judge from expressing an opinion as to whether a relevant fact is or is not sufficiently proved. Revisal, sec. 535. But we do not think that the charge is open to this criticism. We have held inS. v. Exum,
While the defendants have no doubt acted throughout from a conscientious purpose to do their full duty in the premises, and while the exigencies of the case may have made it desirable and perhaps necessary to bring the matter before a jury for decision, we deem it not improper to say that we have examined the record in which the entire testimony is set out, and are of opinion that the jury have rendered a righteous verdict and that the truth of the matter has been established.
No error.
Cited: Horne v. Power Co.,