#### THE STATE v. WILLIAM UNDERWOOD.

The Act (Rev. Code c. 107, s. 71) which renders persons of color incompetent as witnesses in certain cases, is repugnant to the Constitution, and was repealed thereby.

MisdemeaNOR, in mismarking a sheep, tried before Buxton, J., at Fall Term 1868 of the Superior Court of UNION.

Upon the trial his Honor allowed one Barnett, a person of color, to be introduced as a witness for the State. The defendant excepted.

Yerdict, guilty; Buie for a new trial, rule discharged; Judgment, and Appeal.

Pearson, C. J.

We are of the opinion that the Act, Bev. 'Code, ch. 107, sec. 71, which makes persons of color incapa-*99bile of being witnesses, except against each other, is repealed by the Constitution.

Note. — The same decision was made at this term in the case oí State Yr jBell and Waggoner, on an indictment for Fornication and Adultery. .

According to that instrument, persons of color are entitled to vote and to hold office. The greater includes the less — and the effect is to take away the mark of degradation imposed by the statute under consideration. We see every day persons of ■ color holding seats in the Senate and in the House of Representatives, and filling places in the Executive departments of the State; so it would be incongruous and absolutely absurd, to rule that a free person of color is incompetent as a witness against a white man charged with the offence of mismarking one • of his neighbor’s sheep.

The statute must be taken to be repugnant to the spirit, if not the letter of the Constitution.

We see no occasion to elaborate the question, and indeed ■.there is but little room for discussion. The new order of things ’brought about by emancipation, the XIII Article of the amendments of the Constitution of the United States, the Civil Rights '.bill, the military rule to which the State was subject while the government was provisional, and the approval by Congress of the present State Constitution, tend to support our conclusion, ■and to show, in fact, that it is unavoidable, in order to make the parts of our system harmonize, and work together as a -consistent whole. There is no error. This will be certified, &c.

Pee. CuRiAM. Judgment affirmed.