Volume 101 — North Carolina Court of Appeals Reports

Automobiles and Other Vehicles 68 (NCI4th) — prayer for judgment continued — conditions — judgment not rendered appealable The trial court's prayer for judgment continued for operating a vehicle without a license upon the condition that plaintiff not violate any motor vehicle laws and make a $75 contribution to the school board was a true prayer for judgment continued and not a final judgment which would allow DMV to revoke plaintiff's license pursuant to N.C.G.S. <cross_reference>20-28.1</cross_reference> for a moving violation committed while his license was revoked, since plaintiff was already obligated to obey the motor vehicle laws and that condition thus was not a punishment, and the $75 "donation" was not restitution because the school board was not an aggrieved party, was not a fine because it was directed to an entity other than the county for use by the public schools, but was unenforceable surplusage. <block_quote> Am Jur 2d, Automobiles and Highway Traffic 134, 148; Forfeitures and Penalties 68.</block_quote> <block_quote> What amounts to conviction or adjudication of guilt for purposes of refusal, revocation, or suspension of automobile driver's license. 79 ALR2d 866.</block_quote>

1. Homicide 30 (NCI3d) — second degree murder — no error in submitting The trial court did not err in a homicide prosecution by submitting second degree murder as a possible verdict where testimony that defendant Goodson was in the back seat holding a woman down while another defendant pummeled her and then confronted her with a knife, in conjunction with testimony that the woman's inert body was dragged to the side of the road, permits an inference beyond any reasonable doubt that defendant Goodson acted with malice and in concert in the unlawful killing of the victim. Am Jur 2d, Homicide 525. 2. Criminal Law 58 (NCI4th) — second degree murder — first degree murder charge dismissed — not final dismissal The trial court's dismissal of a first degree murder charge was not a final dismissal of the criminal proceeding pursuant to N.C.G.S. <cross_reference>15A-931</cross_reference>(a) (1983) where the prosecutor requested a dismissal of the first degree murder charge before requesting a charge on second degree murder. The record clearly shows that the State's request for a dismissal on the charge of first degree murder was predicated on its request for a charge of second degree murder. Am Jur 2d, Criminal Law 512, 513; Homicide 211. 3. Constitutional Law 338 (NCI4th) — second degree murder — death qualified jury — no error The trial court did not err by allowing the State to seek a conviction of second degree murder with a death qualified jury. The death qualification of a jury does not deprive a defendant of his constitutional right to a trial by a jury representing a cross-section of the community, and there is no reason a jury qualified to reach a verdict on a charge of first degree murder would not be qualified to reach a verdict on second degree murder. Am Jur 2d, Homicide 466.<page_number>Page 666</page_number> 4. Criminal Law 89.4 (NCI3d) — impeachment of witnesses — prior inconsistent statements — admissible The trial court did not err in a murder prosecution by allowing the State to impeach a witness with his own prior inconsistent statements because the prior statements used to impeach the witness were not collateral but related directly to the connection between defendant and the victim on the day in question. Am Jur 2d, Witnesses 527. 5. Criminal Law 89 (NCI3d) — conflicting and incredible testimony — issue of credibility rather than competence The trial court did not err in a murder prosecution by admitting testimony which defendant contended was conflicting and incredulous. Conflicts in the testimony of a witness affect his credibility and not his competence. Am Jur 2d, Witnesses 658, 659. 6. Criminal Law 319 (NCI4th) — murder — defendants joined — no error The trial court did not err by allowing the State's motion for joinder of defendants in a murder prosecution where there was a sufficient basis to support a conviction of this defendant apart from the testimony of his codefendant. This defendant would have received a fair trial even if he had presented a defense adverse to the testimony of his codefendant. Am Jur 2d, Homicide 461. 7. Criminal Law 66.9 (NCI3d) — murder — photographic identification — not impermissibly suggestive The trial court did not err in a murder prosecution by denying defendant's motion to suppress a photographic identification of defendant where the evidence showed that the attending officers were suggestive with respect to the name of the defendant but not at all suggestive with respect to the photographic image. Am Jur 2d, Criminal Law 798. <block_quote> Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures. 39 ALR3d 1000.</block_quote><page_number>Page 667</page_number>