State v. Miday , 263 N.C. 747 ( 1965 )

140 S.E.2d 325 (1965) 263 N.C. 747

STATE
v.
William H. MIDAY.

No. 822.

Supreme Court of North Carolina.

February 24, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, Asst. Atty. Gen. Richard T. Sanders, Staff Atty. Theodore C. Brown, Jr., for the State.

Barrington & Britt, Lumberton, for defendant.

DENNY, Chief Justice.

The defendant excepts to and assigns as error the ruling of the court below to the effect that only written evidence of the teachings of a religious organization is admissible and that parol evidence by a member of such organization with respect to its teachings is inadmissible.

We concur in the view that when a religious organization has duly adopted and promulgated certain official documents in which the doctrines, teachings, articles of faith, et cetera, are set forth, parol evidence is inadmissible, under the best evidence rule, to prove the contents of such documents. Mahoney-Jones Co. v. Osborne, 189 N.C. 445, 127 S.E. 533. The best evidence rule requires the production of the documents or properly certified copies thereof in order to prove their contents. There is no evidence on the record in this case to the effect that the Miracle Revival Fellowship has officially adopted and promulgated such documents.

Moreover, while parol evidence is not admissible to vary, explain, or contradict a written instrument when the enforcement of the terms of such instrument is the basis of the cause of action or the substantial issue between the parties, Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, the rule that parol evidence is not admissible does not apply when the writing is collateral to the issue involved in the action. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Deaton v. Coble, 245 N.C. 190, 95 S.E.2d 569.

We do not consider the letters introduced below, which do not purport to represent anything more than the unverified expression as to what the Miracle Revival Fellowship teaches, to be of such character as to warrant the exclusion of oral testimony with respect to such teachings by bona fide ministers and members of this religious organization. We hold that the exclusion of such evidence constituted prejudicial error.

G.S. § 130-93.1 (h) provides as follows: "This article shall not apply to children whose parent, parents, or guardian are bona fide members of a recognized religious organization whose teachings are contrary to the practices herein required, and no certificate for admission to any private, public or parochial school shall be required as to them."

In our opinion, it is not necessary for a religious organization to forbid vaccination in order for its teachings to come within the meaning of the statute and to authorize the exclusion sought; that it is for the jury under proper instructions to determine whether or not the evidence concerning the teachings of the Miracle Revival Fellowship is such that the defendant was justified in his position against vaccination and immunization of his child.

Religious organizations generally do not prohibit their members from consuming alcoholic beverages; however, no one would seriously contend that they do not teach against the consumption of alcoholic beverages by their members. In our opinion, the letter introduced in evidence below, dated 23 September 1963, is susceptible of the inference that the Miracle Revival Fellowship does teach that the better way is to rely on one's faith rather than on inoculations and immunization to prevent diseases. The letter says: "* * * (W)hen the laws of the land contradict the religious convictions of the individual on what God's word teaches, we do take the position that it is better for him to obey God rather than man. * * *

"Therefore, we feel that this man is within his rights according to our teachings and his own convictions in taking the stand he takes." (Emphasis added.)

The defendant assigns as error, among others, the following excerpts of the court's charge to the jury:

"The interpretation of a writing, when the writing is exhibited to the court, is not for the jury or for the defendant, or for the State. It becomes the duty of the court to interpret the writing, that is what the meaning of the writing is. The jury, when there is a conflict in evidence, it not being in writing has to determine the facts. But, if the writing is offered in evidence and if there be some statements in the writing that may produce an argument and may give rise to contention as to what was the meaning of the writing or the letters, then it becomes the duty of the court to interpret as a matter of law what the writing means. And it has been contended that there are sufficient statements in these letters to justify the court in concluding that this Miracle Revival Fellowship teaches a doctrine contrary to the statute. However, the court has examined the letters carefully and the court is of the opinion and so rules and instructs the jury that these letters do not indicate that the Miracle Revival Fellowship teaches a doctrine that is contrary to the practices required under the statute. (Exception No. 10.)

"* * * (I)f the State has satisfied you from the evidence and beyond a reasonable doubt that the defendant did fail to immunize this child, Paul Edward Miday, against the disease of smallpox, and you believe all of the evidence and find all of the facts to be true in respect to the defendant's contention that he comes within the exemption that requires or permits one to send a child to school, rather permits one not to have a child immunized for smallpox. it would be your duty under the instructions of the court and under the interpretation the court has given that statement and to these letters, to return a verdict of guilty on the charge of failure to immunize his child from the disease of smallpox, as charged in the bill of indictment." (Exception No. 11.)

The instruction on the second count, the failure of the defendant to have his child immunized against poliomyelitis, was substantially in accord with that given on the first count with respect to the defendant's failure to have his child vaccinated against smallpox.

We think the above instruction was erroneous, that the jury should have been given the opportunity to consider and determine what weight should be given to the contents of the letters introduced in the trial below. Moreover, the further instruction was tantamount to a peremptory instruction, and the defendant is entitled to a new trial on the counts charging him with failure to have his child immunized against smallpox and poliomyelitis.

With respect to the defendant's conviction for failing to send his child to school as required by G.S. § 115-166, it appears that the defendant did everything within his power to keep his child in school except to waive what he believed to be his rights under G.S. § 130-93.1(h). So long as the defendant, in good faith, was asserting his rights as he conceived them under the statute, in our opinion he was not subject to conviction under G.S. § 115-166. Moreover, § 115-169 reads as follows:

"Any parent, guardian or other person violating the provisions of this article shall be guilty of a misdemeanor, and upon conviction shall be liable to a fine of not less than five dollars ($5.00) nor more than twenty-five dollars ($25.00), and upon failure to pay such fine, the said parent, guardian or other person shall be imprisoned not exceeding thirty days in the county jail."

There is nothing in this record tending to show that the court below has heretofore imposed a fine on this defendant for failure to send his child to school, and by reason of his failure to pay such fine the prison sentence was imposed. The sentence imposed, purportedly pursuant to G.S. § 115-169, was without sanction of law.

The defendant is entitled to a new trial on counts Nos. 1 and 2 in bill of indictment No. 17984, and to have the judgment reversed upon his conviction for failure to send his child to school as charged in bill of indictment No. 17985.

On counts Nos. 1 and 2 in bill of indictment No. 17984—New Trial.

The conviction upon bill of indictment No. 17985—Reversed.