{
  "id": 8692931,
  "name": "THE STATE vs. WHITMEL DEMPSEY",
  "name_abbreviation": "State v. Dempsey",
  "decision_date": "1849-06",
  "docket_number": "",
  "first_page": "384",
  "last_page": "388",
  "citations": [
    {
      "type": "nominative",
      "cite": "9 Ired. 384"
    },
    {
      "type": "official",
      "cite": "31 N.C. 384"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T20:18:40.677102+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE vs. WHITMEL DEMPSEY."
    ],
    "opinions": [
      {
        "text": "Ruffin, C. J.\nThe indictment is founded on the Act of 1S40, ch. 30, which makes it a misdemeanor in \u201cany free negro, mulatto, or free person of color,\u201d to carry about his person or keep in his house any shot gun or other arms, specified, \u201cunless he obtain a license from the County Court.\u201d The only question at the trial was, whether the defendant was such a person as came within the description in the Act. The Court is not prepared to say, whether the evidence given by the State on that point be competent or not. The question is not one of pedigree in the ordinary acceptation of the term, as the descent of the defendant from Joseph Dempsey was admitted on both sides, and the dispute was simply upon the fact, whether Joseph Dempsey was, as contended by one side, a negro, or a mulatto, that is, one begot between a white and a black, as contended by the other side. We are not aware, that hearsay from a stranger has been received as to a point of fact of that nature, and we are not disposed to say, it ought tobe admitted, without further consideration. The Court does not, however, mean to intimate an opinion, that it is inadmissible ; for, in our country, so little attention is paid to the registry of hirths and deaths and pedigree generally, as to make it extremely difficult, and in some cases impossible, to prove the blood of a person even for four generations in any other way. Necessity may therefore, perhaps, compel the admission of such evidence. The Court, however, is not called on to give to the point further consideration in this case, because we hold, that the defendant was properly convicted upon his own showing ; which, therefore, rendered the first point immaterial, and in that way prevented an error on it from being prejudicial to the defendant, and a ground for reversing the judgment, as has been frequently ruled. For, if a party will not rely on an exception by itself, which he takes, but will go on and prove the case for the other side, and put the whole in his bill of exceptions, he must abide the consequences. It would be preposterous to disturb a conviction, which was proper, and must have been rendered independent of the alleged error, and upon the party\u2019s own proofs or admissions.\nThat the defendant was guilty, according to his own evidence and the construction placed on it by himself, we hold upon the same ground which his Honor took on the trial \u2014 namely: that the defendant was descended within the fourth degree from a negro ancestor, and so is within the Act. The evidence on the part of the defendant did not carry the white blood of Joseph Dempsey farther back than his mother; and, admitting, it to be mixed, it is a fair inference against the defendant, who is most likely to be cognizant of the truth and able to prove it, that Joseph Dempsey derived no white blood through his father. Indeed, the defendant contended for nothing of the kind on the trial, but prayed an instruction, which yielded in terms, that Joseph\u2019s father was a negro, and, consequently, that he must have been half and half, or a mulatto, properly speaking. That being so, and the great grand-father being, thus, in the first degree from a negro, the defendant is necessarily in the fourth degree ; and that brings him within the Act, although the mother of each generation was a white woman. It is true, that the defendant is not a negro, who is a black person, entirely of the African race. Nor is he a mulatto, according to the proper original signification of the term, which has just been explained. And the Court could hardly undertake of itself to construe the expression \u201cperson of color,\u201d so as to bring one within the statutes, creating felonies, or otherwise highly penal, merely because he derived from some remote ancestor a tinge of color that was not white ; and the judiciary could not be regulated by degrees in such cases, without some legislative authority. There is, however, abundant authority of that kind, which relieves the Court from all difficulty in this respect, by distinctly defining, who are mulattoes in our law or persons of color, as the subjects of our disabling or penal statutes. Thus in the Act of 1777, the evidence of \u201cmulattoes or persons of mixed blood,\u201d namely, those \u201cdescended from negro ancestors, to the fourth generation inclusive,\u201d is made incompetent except against negroes, Indians, Mulattoes, or such persons of mixed blood. In a great number of States, \u201cfree negroes\u201d and \u201cmulattoes,\u201d and \u201cpersons of mixed blood,\u201d or \u201cpersons of color,\u201d are subjected to disabilities or punishment. They are to be found in the Revised Statutes under several heads, but mostly under that of \u201cslaves and persons of colorand in the 74th section of that Act, taken from that of 1826, it is enacted, that \u201call free mulattoes, descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall come within the provisions of the Act.\u201d The Constitution, likewise, in the third section of the first article of the amendment, describes in the same manner the free mulattoes or free persons of mixed blood, who are not admitted to vote for representatives in the legislature. It is thus very clear, that the term \u201cfree person of color\u201d in the Act of 1840, and in that of 1823, making it a capital felony for a person of color to make an assault with intent to commit a rape on a white woman, and in other penal statutes, is to be understood in our law, at this day, to mean a person descended from a negro within the fourth degree inclusive, though an ancestor in each intervening generation was white. Therefore this conviction and sentence ought to stand.\nPbR Curiam. Ordered to be certified accordingly.",
        "type": "majority",
        "author": "Ruffin, C. J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State."
    ],
    "corrections": "",
    "head_matter": "THE STATE vs. WHITMEL DEMPSEY.\nThe term \u201cfree person of color,\u201d in our penal statutes, is to be understood in our law to mean a person descended from a negro, within the fourth degree inclusive, though an ancestor in each intervening generation was white.\nAppeal from the Superior Court of Law of Bertie County, at the Spring Term 1849, his Honor Judge Manly presiding.\nThe defendant was indicted as a free man of color for carrying arms without a license. On behalf of the State a witness deposed, that he formerly knew one Barnacaslle, who was a very old man, and died some years before the institution of this prosecution : that the said Barnacastlo lived many years in the neighborhood of the defendant and his father, and was well acquainted with the defendant\u2019s father and his family: and that he, the witness, heard Barnacastle say, that he knew the paternal great-grand-father of the defendant, who was called Joseph Dempsey, alias Darby, and that he was a coal black negro. To the admission of this evidence the defendant objected; but the Court received it,\nThe defendant then gave evidence, that the mother of Joseph Dempsey, the. defendant\u2019s great grand-father, was-a white woman, and that said Joseph, was a reddish cop*per colored man, with curly red hair and blue eyes: that the said Joseph\u2019s wife was a white woman, and. that they, had a son, named William : that the said. William also married a white woman, and had issue a son by her, named Whitmel: and that said Whitmel married, a white, woman, and they are the parents of the defendant.\nUpon this evidence the counsel ior the defendant moved' the Court to instruct the jury, that, although the father of Joseph Dempsey was a negro, the defendant, nevertheless* was not a free person of color within the statute. But the Court refused to give that instruction, and instructed the jury, that, supposing Joseph Dempsey to be of half negro blood, the defendant, being his great grand-son, was in the fourth generation from negro ancestors, and therefore within the prohibition of the Statute.\nThe jury found for the State, and after sentence the defendant appealed, upon the grounds, that improper evidence was admitted, and that the jury was misdirected\u00bb\nAttorney General, for the State.\nNo counsel for the defendant."
  },
  "file_name": "0384-01",
  "first_page_order": 414,
  "last_page_order": 418
}