Hopkins v. Bowers

• Decision Date: 01 November 1892
• Citation: 16 S.E. 1,111 N.C. 175
• Court: North Carolina Supreme Court
• Parties: HOPKINS et al. v. BOWERS et al.

16 S.E. 1

111 N.C. 175

HOPKINS et al.

v.BOWERS et al.

Supreme Court of North Carolina.

Nov. 1, 1892.

Opinion Evidence — Demurrer to Evidence — Competency of Witness—Validity of Judgment.

1. Where plaintiffs rested their case upon the invalidity of a marriage because the alleged wife was of negro descent, within the prohibition of Code, § 1284 et seq., there is no error in allowing a witness to testify that the alleged wife was a colored person, and reputed to be such, and that, in the opinion of the witness, who knew her, and had had opportunities of observation, she was of mixed blood.

2. While the terms "colored person" and "mixed blood" might not be accurate in an indictment, yet where they have been used by a witness on the trial, and no objection thereto interposed so as to give witness an opportunity to correct his language, it will be assumed that the jury understood the words in their usual signification.

3. When defendant demurs to plaintiffs evidence it will be taken as an admission of the truth of the testimony, together with such impressions favorable to plaintiff as can reasonably be drawn therefrom.

4. There being much testimony to show that the alleged wife was a colored woman, it was competent to put in evidence, as a circumstance in corroboration to be weighed by the jury, that she usually associated with colored people.

5. Evidence sought to be elicited from the alleged wife, one of defendants, to prove her marriage with decedent, under whom plaintiffs claim the lands in suit, was properly excluded under Code, § 590, providing that a person interested in the event of an action shall not be examined as a witness in his own behalf against a person claiming under a decedent concerning a personal transaction with decedent, unless the person so claiming is examined in his behalf in regard to the same transaction.

6. The judgment upon the verdict in favor of plaintiffs was signed by the court, and contained no condition, but the judge made a verbal order to the clerk to set aside the judgment and verdict if defendants filed a bond within five days. Held that, as this verbal order was conditional and of no effect, it did not affect the validity of the judgment in favor of plaintiffs.

Appeal from superior court, Orange county; H. G. Connor, Judge.

Action by John Hopkins and others against Eliza Bowers and others to recover real property. For former report of same case, see 12 S. E. Rep. 984. From a judgment for plaintiffs, defendants appeal. Affirmed.

C. D. Turner, for appellants.

J. W. Graham, for appellees.

Clark, J. The issues as submitted were sufficient, and there is no ground to support the exception for refusing to submit those tendered by the appellants. Humphrey v. Church, 109 N. C. 132, 13 S. E. Rep. 793, and cases there cited. The plaintiff rested his case upon the invalidity ab initio of the alleged marriage between Nash Boothe and Ann Bowers, (or Booth;',) one of the defendants, under the provisions of the Code, §§ 1084, 12S4, 1810; Const, art. 14, § 8. We see, therefore, no force in the first exception, which was to the witness testifying that Ann Boothe was a colored person, and reputed to be such, (State v. Patrick, 51 N.C. 308;) nor to the second exception, which was to the testimony of the witness, who knew her, and had had opportunities of observation, that, in his opinion, said Ann was of mixed blood. It was not necessary that the witness should be an expert to testify to a matter which is simply one of common observation. It has been held in the leading case of Clary v. Clary, 24 N. C. 78, (which has been repeatedly approved,) and upon the same grounds, that one not an expert can give his opinion as to the sanity or insanity or a person he has had opportunities of observing. Besides, the witness really qualified himself as an expert. State v. Jacobs, 51 N. C. 284. The counsel, in his argument here, objected to the expressions "colored person" and "mixed blood, " and cited State v. Chavers, 50 N. C. 11. While those terms might not be accurate in an indictment, it does not appear that any objection to the evidence on that ground was interposed below, so as to give the witness opportunity to correct his language, and we must assume the jury understood the words in their usual signification. When the defendants demurred to the evidence, the ruling of his honor that thereby the defendants admitted the truth of the testimony, together with such inferences favorable to the plaintiffs as could be reasonably drawn therefrom, was unquestionably correct. Bond v. Wool, 107 N. C. 139, 12 S. E. Rep. 281; Nelson v. Whitfield, 82 N. C. 46. Instead of excepting thereto, the defendants are indebted to the favor of the court that they were allowed to withdraw the demurrer. The exception, if any, should have come from the other side.

The fourth exception is also withoutmerit. There was much testimony tending to show that Ann Boothe was a colored woman. It was admissible, therefore, to put in evidence, as a circumstanco in corroboration, to be weighed by the jury, that she usually associated with colored people. Juries are certainly competent to give the proper weight to such evidence in accordance with the social customs prevailing around them, and winch are matters of common observation.

Nor is there any merit in the 5th, 6th,...