Hare v. Board of Education , 113 N.C. 9 ( 1893 )

Avery, J.:

But a single question was raised by the exception to the charge, and that is, whether the Court, in any aspect of the testimony, should have instructed the jury that the children of the plaintiff belonged to the white race, and had a right to insist upon admission into the district school for white children. The inference might have been drawn from the statement of one of the witnesses that the plaintiff’s father was a mulatto, while others testified that he was a negro. “All marriages between a white person * * * and a person of negro or Indian descent to the third generation inclusive are void.” The Code, § 1810. The statute (Laws 1889, ch. 199, §42) provides, “That in determining the right of any child to attend the white or colored schools, the rule laid down in section 1810 of The Code regulating marriages shall be followed.” It is manifest that the jury, acting under the instructions given them, must have found from the testimony that Charles Jones was the father of the plaintiff, and was a full-blooded negro. There was no error in the charge of the Court of which the plaintiff could complain. Whether we concede or deny that for the purpose of establishing the right of a person of mixed blood to contract a marriage with a white person, or gain admission into a school for white children, testimony tending to show that the reputed father of his father was only a negro of the half blood is admissible, or that it is competent for either purpose to go behind the presumption that an admitted slave was a full-blooded negro, and attempt to show the exact proportions in which the Caucasian and negro blood were intermingled in his conception, in either event, if the plaintiff’s father was in fact a full-blooded negro, as the jury must have determined that he was, his children would not be beyond the third generation. This Court, in State v. Chavers, 5 Jones, 11, construed the language of the old statute (Revised Code, ch. 107, §79), “All persons descended from negro ancestors to the fourth generation inclusive,” as classifying with the whites only persons who were removed beyond the fourth, or belonged to the fifth generation. The words used in section 1810, “ to the third generation inclusive,” must, therefore be construed to prohibit intermarriage of whites with persons who are not beyond the third or in the fourth generation from the pure negro ancestor. The statute- in reference to schools is expressly required to be interpreted in the same way as section 1810 of The Code is construed, and it would follow that the plaintiff’s children could not rightfully demand admission into the schools for white children without showing that the negro ancestor was more remote than the father of Charles Jones, and that they themselves belonged to the fourth succession from such ancestor. McMillan v. School Committee, 107 N. C., 609; State v. Watters, 3 Ired., 455. It will be observed that in the statute creating schools for the Croatan Indians, the exclusion extends to the fourth generation, omitting the word “inclusive,” which is synonymous with “the third generation inclusive.” If it'was material to know whether Charles Jones or a white man was the paternal grandfather of the children, and this was a question in dispute, it was competent to show that their grandmother was living with Jones about nine months before the birth of the plaintiff. While in doubtful cases only an expert would be qualified to testify from the appearance of a person as to the exact extent to which white and negro blood are commingled in his veins, it does not require any peculiar scientific knowledge “to be able to detect the presence.of African blood by the color or other physical qualities of the person.” Hopkins v. Bowers, 111 N. C., 175; State v. Jacobs, 6 Jones, 284. There is

No Error.