аfter stating the case: 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 *484 much restricted in their scоpe and import, and are without serious difficulty.
The Constitution and statutes of North Carolina require that the children of the white race аnd the children of the colored race must be taught in separate public schools. In obedience to this requirement, the defеndants 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 thе 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 questiоn involved. After a very full investigation the jury have answered the issue in plaintiffs’ 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 wеre assigned for error: Q. “Do yon remember whether Jeffrey Graham voted, and if so, state when and where ?” A. “There was nothing said against his voting, аnd I think he always voted.” It is well established that in questions of race ancestry, general or common reputation is received under сertain conditions, and the principle applies here. Wigmore on.Evidence, sec. 1605, p.
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1954;
Bryan v.
Walton,
Defendants do not insist on this position, but rest the objection on thе fact that this is simply an opinion of the witness. "\Ye do not think, however, that this is a correct interpretation of the question and answer.
A witnеss 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 physicаl 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 sо 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. ITe is giving to the jury the 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
*486
in the judge’s charge; duly pointed out by exception, as follows: “If you find that the plаintiffs and their ancestors have not heretofore associated with negroes, but have associated with white people оn terms of social equality, and that their ancestors went to white schools, claiming to be of Portuguese descent, this evidence must bе considered in arriving at a conclusion as to what race they belonged, and you should consider in this connection the declаration of Jeffrey Graham that he 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, section 535. But we do not think thаt the charge is open to this criticism. We have held in
State v. Exum,
While the defendants have no doubt acted throughout from a consсientious 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 thе 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.