Opinion
(Filed 18 November, 1914.)
1. Schools, Separate — White and Colored Races — Statutes — Parent — Party in Interest — Evidence — Negro Blood — General Reputation — Hearsay.
Children having any admixture of colored blood are by statute (Revisal, sec. 4086) forbidden entrance into the public schools for white children; and where a witness has testified as to the general reputation of the grandmother of the child, whose parent is seeking to enter him in a school for white children, that she was of mixed blood, but on cross-examination that she had heard such reputation had sprung up through jealousy of two or three white men in the neighborhood in the last few years, the latter is admissible as to the general reputation. Where the parentage of an ancestor of the child is relevant, testimony of general reputation of such parentage should be elicited, and a question, "Who was said to be her mother?" is held incompetent, in this case, as hearsay.
2. Schools, Separate — White and Colored Races — Negro Blood — Statutes — Parent and Child — Party in Interest — Declarations of Parent — Impeaching Evidence.
Where the entrance of a child into a white public school is denied on the ground that it had an admixture of colored blood in its veins (Revisal, sec. 4086), and the father of the child brings suit against the county board of education to compel its admission to such school, the father is but a nominal party, the party in interest being the child, and testimony of other witnesses of his declarations to them that he had married a negress can only be received as hearsay evidence in impeachment of his contradictory testimony, given by him as a witness, and not as substantive evidence. In this case, if it were erroneous on the trial for the judge to confine the admissibility of the evidence of this character to the purposes of impeachment, the distinction is too slight to be the ground for a new trial. Supreme Court Rule 27, 164 N.C. 548. The tendency of the court and of the times not to afford the appellant a new trial unless prejudicial error has been committed by the trial court, discussed by CLARK, C. J.
APPEAL by defendants from Allen, J., at June Term, 1914, of WAKE.
W. B. Snow and Armistead Jones Son for plaintiff.
Percy J. Olive and H. E. Norris for defendants.
WALKER, J., dissenting.
This is an action against the county board of education of Wake and the school committee of District No. 2 (white) of House's Creek Township. The plaintiff alleges that his children belong to the white race and are entitled to attend said school, but have been wrongfully and unlawfully debarred by defendants from attending the same on the false allegation that they are of mixed blood, and asks a mandamus to compel the defendants to admit his children to the said school (240) for whites. The defendants answer, admitting that plaintiff's children have been debarred, and aver that they are of mixed blood and therefore not entitled to attend.
It is admitted in the answer that the plaintiff, who is the father of the children, is of the white race. It is also admitted that Nan Powers was the mother of Mrs. J. R. Medlin and the grandmother of plaintiff's children. It was contended by plaintiff that John Powers and Lucy Powers, who are admitted to be of the white race, were the parents of Nan Powers, but this was denied by the defendants.
Revisal, 4086, forbids the admission of children to the white schools if there is any admixture of colored blood. Johnson v. Board of Education, 166 N.C. 468. The jury found that the children of the plaintiff were of unmixed white blood and entitled to attend the white school.
Exceptions 1 and 2 not being brought forward in defendants' brief, are abandoned. Rule 34.
Elma Maynard testified, on cross-examination in respect to Annie Powers, that the general reputation was that she was of mixed blood. The witness was then asked "If that general reputation has not sprung up through envy and jealousy of two or three men in that neighborhood in the last few years?" To which she replied: "I have heard so. I went to school with some of Mr. Medlin's children. It is generally reputed that two or three men started the rumor that Medlin's children were mixed blooded." This was a matter in the discretion of the court. It showed by the witness's testimony that there was no general reputation as to Nan Powers being of mixed blood; that what the witness meant was that there was a widely spread report which was not believed, because it was of general repute that it was a trumped-up charge.
Exceptions 4, 5, 7, 8, 18, 20, 23, and 26 seem to present substantially the same question, which is exemplified by the question, "Who was said to be her mother?" Here it is not the general reputation that is asked for, but merely hearsay. To make such questions competent, the witness should have been asked, first, if she knew the general reputation. This defect applies to all these questions. The defendant did not offer to show general reputation in the family.
Exceptions 9 and 10 are those most strenuously contested. Thad Ivey, who was a witness for the defendants, testified that plaintiff Medlin had said to him: "I married a nigger"; and Hardie Bagwell, also witness for defendants, testified that Medlin said in his presence that he "knew his wife was one-fourth nigger."
J. R. Medlin denied having made such statements, and testified that his wife was the daughter of Annie Powers, who was white, and that he had never known that she was reported to be of mixed blood; that Annie Powers was the daughter of John Powers and Lucy Powers, who are admitted on this trial to be of the white race.
There was much conflicting evidence, but the jury found that the (241) evidence showed that the children were of purely white blood.
Exceptions 9 and 10 are because the judge stated that the evidence of Bagwell and Ivey as to Medlin's statement was "impeaching evidence. The parties involved here are the children. It is only what we call impeaching evidence. It only affects Mr. Medlin's testimony as a witness, but it is not what we call substantive evidence as to the real color of the children. He denies having said that, and it is only a question affecting his testimony, that does not go to the jury in respect to the color of the children." Had this evidence of contradictory statements been as to any other witness than Medlin, unquestionably such contradictory statements would have been impeaching and not substantive evidence. As the judge stated, it could not affect the color of the children. It was not evidence as to their color, but hearsay impeaching the truth of his statement on the trial. Evidence of contradictory statements are not substantive evidence, but merely impeaching testimony, unless it is an admission by a party in interest. The contradictory statement is hearsay, and therefore incompetent except to impeach the credibility of the testimony of the witness, except when the statement is a declaration against interest. Here, while Medlin was the nominal plaintiff, he was not possessed of such interest as would have made his admission against the interest of the children receivable as such. 1 Greenleaf Ev., sec. 176. If he had signed a statement that the children were not white, it would not have been competent in an action brought directly by them, unless he had gone on the stand and testified to the contrary, and then it would have been competent only to impeach his credibility. The judge ruled correctly. Besides, if it had been otherwise the jury could not have been prejudicially affected by the distinction, which they could not be expected to comprehend, between impeaching evidence by reason of a contradictory statement which lessens the weight of witness's testimony and calling such contradictory statement substantive evidence. The distinction between the two is not easily appreciated by a jury. Formerly new trials were given by reason of the distinction. But the Court, appreciating the fact that new trials should not be given on such slight distinction, in Rule 27, 164 N.C. 548, prescribed: "When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by the court when it is admitted, it will not be ground for exception that the judge fails in his charge to again instruct the jury especially upon the nature of such evidence, unless his attention is called to the matter by a prayer for instruction; nor will it be ground of exception that evidence competent for some purposes, but not for all, is admitted generally, unless the appellant asks at the time of admission that its purpose shall be restricted."
(242) The tendency of the courts and of the times is that new trials shall not be granted unless it can be seen that the error, if one is committed, materially contributed to the result of the trial. This is hardly possible, when the error alleged is that evidence was substantive and not impeaching only, when the contradictory statement is made by a nominal plaintiff who is suing in behalf of the beneficial plaintiffs, whose rights he could not prejudice by any admission out of court, though such statement by him might well be calculated, if believed by the jury, to disparage the weight of his testimony at the trial.
The other exceptions do not require discussion. They were evidently taken out of abundant caution in a hotly contested case. The question at issue is almost entirely one of fact. It is one in which a jury would be naturally deeply interested and in which the jurors have the great advantage over any other mode of trial in that, knowing the witnesses, they can weigh the credit to be given to their testimony.
The burden was upon the plaintiff to make out his case by the preponderance of the testimony, and when a jury of twelve white men have determined the issue, as they have done in this case, in a matter of this kind, there can be little doubt of the correctness of their conclusion.
No error.