State v. Miller

• Decision Date: 12 April 1944
• Docket Number: 289.
• Citation: 29 S.E.2d 751,224 N.C. 228
• Parties: STATE v. MILLER et al.
• Court: North Carolina Supreme Court

29 S.E.2d 751

224 N.C. 228

STATE v. MILLER et al.

No. 289.

Supreme Court of North Carolina

April 12, 1944

Criminal prosecution upon a warrant charging defendants with fornication and adultery.

The evidence tends to show that Sam Miller is of negro blood that he and Josephine Shook, a woman of white blood, entered into a purported marriage and cohabitated as man and wife in Catawba County, North Carolina.

There was a verdict of guilty as to the defendant Sam Miller. From judgment imposing prison sentence, which was suspended upon certain conditions, defendant Miller appeals.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

W H. Childs, of Lincolnton, for defendant.

DENNY Justice.

Prior to the argument of this case, it was agreed by counsel for the appellant and the Attorney General for the State that on this appeal the Court should consider the following question only, towit: Was the evidence sufficient to take the case to the jury on the question as to whether or not Sam Miller is of negro blood, within the prohibited degree as provided in the Constitution of North Carolina, Art. XIV, Sec. 8, and the statute passed pursuant thereto, G.S. § 51-3, C.S. § 2495?

It was admitted at the outset of the trial below by counsel representing the defendants, that defendants entered into a marriage in South Carolina and returned to Catawba County North Carolina, where they lived together and did bed and cohabit with one another as man and wife; and it was further admitted that if the defendant, Sam Miller, is of negro blood within the prohibited degree, that said marriage is null and void.

The section of the Constitution and the statute referred to above, provide in substance, that all marriages between a white person and a negro or between a white person and a person of negro descent to the third generation, inclusive, shall be void. Therefore, every person who has one-eighth negro blood in his veins is within the prohibited degree within the meaning of the Constitution and the statute. Ferrall v. Ferrall, 153 N.C. 174, 69 S.E. 60, and the cases there cited.

There is some evidence tending to show that Henry Hewitt, a negro, was the father of the defendant, Sam Miller. There is also evidence tending to show that the defendant, Sam Miller, is a negro within the prohibited degree, and the jury by its verdict so found.

Our legislature has not prescribed an exclusive mode or manner in which, in cases of this character, the percentage of negro blood must be ascertained. State v. Watters, 25 N.C. 455. However, this Court has approved various ways to ascertain the extent to which white and negro blood are commingled in a person.

In the case of State v. Chavers, 50 N.C. 11, the defendant was indicted as a 'free person of color' for carrying about his person a shot gun, contrary to law, and the statute defining free persons descended from negroes, read as follows: 'That all free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person shall be deemed free negroes and persons of mixed blood.' Upon the sufficiency of the evidence to establish the fact that defendant was a free negro, the Court said: 'We think there was testimony sufficient to be left to the jury, tending to prove that the defendant was a free negro. The evidence introduced to show the color of his father--the kind of hair which he and his father both had, was competent, and that, together with his confessions, and his own color, which his own counsel called upon the jury to inspect, was sufficient for the consideration of the jury upon the question submitted to them. Upon its weight and its sufficiency to...