Volume 25 — North Carolina Court of Appeals Reports

Automobiles 114 — involuntary manslaughter — negligence by defendant and victim — instructions Court's instruction allowing the jury to find defendant guilty of involuntary manslaughter if they believed the collision resulting in the decedent's death was caused by the concurring negligence of defendant and the decedent was not erroneous since one can be guilty of involuntary manslaughter whenever his culpable negligence is a proximate cause of the victim's death.

1. Criminal Law 127 — motion in arrest of judgment A motion in arrest of judgment must be based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record and may be made for the first time on appeal. 2. False Pretense 2 — sufficiency of indictment Indictment was sufficient to charge defendant with the crime of obtaining money by false pretense by representing that real property sold to prosecutrix was not subject to any encumbrances when defendant knew the property was subject to two deeds of trust. 3. False Pretense 1 — elements of offense The elements of the crime of obtaining property by false pretense are (1) a false representation of a subsisting fact, whether in writing, by words, or by acts, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one obtains something of value from another without compensation. 4. False Pretense 3 — representation land is free of encumbrances The false representation that land is free and clear of all encumbrances when knowingly made in order to effect a sale may be the subject matter of an offense of obtaining property by false pretense. 5. False Pretense 3 — representation land is free from encumbrances — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for obtaining money by false pretense where it tended to show that<page_number>Page 361</page_number> defendant, who was engaged in the construction and sale of houses, represented to prosecutrix and her husband, now deceased, that certain property was free and clear of encumbrances, that he gave them a warranty deed for the property so stating, that prosecutrix and her husband made a $1,000 cash down payment on the property and executed a purchase money deed of trust for $9,150, and that there were deeds of trust on the property securing an outstanding indebtedness of more than $9,000. 6. False Pretense 3.5 — instructions In a prosecution for obtaining money by false pretense, the court's instruction that defendant would not be guilty if he made no false representation "or if he did but if it was not calculated to deceive and did not deceive the purchasers" did not require the jury to negate two elements of the crime in order to find defendant not guilty where the court correctly set forth each of the essential elements of the offense in the immediate prior portion of the charge. 7. False Pretense 3.5 — application of law to evidence In a prosecution for obtaining money by false pretense, the court properly applied the evidence to the element of the offense requiring defendant to obtain something of value from another without compensation by referring to the evidence that plaintiff paid money to defendant in exchange for a deed to a lot which defendant falsely represented to be free and clear of encumbrances. 8. Criminal Law 118 — charge on contentions — necessity for objection Objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction or they are deemed waived.

1. Appeal and Error 9 — moot question — matter of public interest — no dismissal of appeal The general rule that an appeal presenting a moot question will be dismissed is inapplicable where the question involved is a matter of public interest. 2. Municipal Corporations 6 — investigative hearing by city council — live radio and television coverage A city council conducting hearings investigating corruption in the police department pursuant to G.S. <cross_reference>160A-80</cross_reference> has authority to adopt rules providing not only for press coverage but also for live radio and television coverage. G.S. <cross_reference>160A-81</cross_reference>.

1. Larceny 1 — element of trespass An act of trespass is an essential element in the crime of larceny. 2. Larceny 7 — furniture in trailer — defendant in lawful possession — no trespass — nonsuit proper The trial court erred in denying defendant's motion for nonsuit in a prosecution for larceny of furniture where the evidence tended to show that defendant rented a trailer furnished by the landlord for six months, the furniture was in the trailer for defendant's use and enjoyment, defendant had complete access as well as control over it<page_number>Page 413</page_number> by virtue of his tenancy even though title remained in the landlord, and defendant therefore was in lawful possession of the furniture at the time of the taking.

1. Boundaries 8 — boundary only in dispute — processioning proceeding Where the parties stipulated that boundary only was involved, the controversy became in effect a processioning proceeding, and it was therefore the duty of the judge to determine what constituted the divisional line and where it was actually located on the premises. <block_quote> 2. Trial 6 — stipulations — binding effect Where facts are stipulated, they are deemed established as fully as if determined by the verdict of a jury; a stipulation is a judicial admission, and as such, is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent from the necessity of producing evidence to establish the admitted fact.</block_quote> 3. Boundaries 14, 15 — court survey contrary to stipulated boundary — judgment based on court survey erroneous Where the parties stipulated the beginning point of a boundary line and stipulated the location of the line by metes and bounds, the<page_number>Page 417</page_number> trial court erred in admitting testimony by a court appointed surveyor as to a completely different boundary line than that stipulated by the parties and in fixing a boundary line which had been excluded from consideration of the court by the parties' stipulation and one which was contrary to the judicial admission of the parties.

1. Appeal and Error 9 — commitment to mental health care facility — appeal from order — mootness Though respondent in this proceeding for involuntary commitment to a mental health facility was unconditionally discharged some five months before her appeal from the order committing her to a hospital was heard in the Court of Appeals, her appeal was not moot since potentially adverse collateral consequences might continue so long as the judgment of involuntary commitment remained unchallenged. 2. Insane Persons 1 — commitment to mental health care facility — findings required Statutory mandate requires as a condition to a valid commitment order that the district court find two distinct facts: first, that the respondent is mentally ill or inebriate as those words are defined in G.S. 122-36; and second, that the respondent is "imminently dangerous to himself or others." G.S. 122-58.1, .2.<page_number>Page 443</page_number> 3. Insane Persons 1 — failure to find respondent dangerous to herself or danger imminent — commitment improper Where there was no finding by the trial court that respondent was dangerous to herself as defined in G.S. 122-58.2 (1) or that the danger was imminent, it was error for the court to enter an order that respondent be committed to a mental health care facility.

1. Larceny 7 — doctrine of possession of recently stolen property — sufficiency of evidence Evidence was sufficient for the doctrine of possession of recently stolen property to apply in this prosecution for felonious larceny where such evidence tended to show that officers requested permission from defendant's brother to search the brother's apartment two days after the break-in and larceny were reported, the brother gave his permission and accompanied officers to the apartment, they found the stolen property in the apartment, the property had not been there when the brother left his apartment for work that morning, defendant was the only person other than the brother who had a key to the apartment, and on that same day defendant admitted that he had the stolen merchandise in his possession, and the trial court properly submitted the evidence to the jury.<page_number>Page 454</page_number> 2. Larceny 7 — evidence of felonious larceny insufficient — verdict of guilty of misdemeanor larceny Where the jury acquitted defendant of felonious breaking and entering and the trial court failed to instruct the jury to fix the value of the property taken in order to determine whether the value was in excess of $200, the burden of proof as to value in excess of $200 being upon the State as an essential element of the crime of felonious larceny where defendant was not found guilty of felonious breaking and entering as a part of the same occurrence, the verdict must be treated as a verdict of guilty of misdemeanor larceny.

1. Indictment and Warrant 12 — amendment of warrant — offense charged not changed The trial court did not err in allowing the solicitor to amend a warrant charging that defendant attempted to obtain money by making threatening phone calls where the amendment added nothing to the original allegations and did not change the offense charged. 2. Criminal Law 107; Telephone and Telegraph Companies 5 — threat made by defendant — variance between allegation and proof not fatal Variance between the State's allegations and proof was not fatal where the warrant charged that defendant threatened his victim by telling him he would take his life but the evidence showed that defendant threatened only to beat his victim, since either threat would fall within the proscription of G.S. <cross_reference>14-196</cross_reference> (a) (2) against using in telephonic communication language "threatening to inflict bodily harm." 3. Criminal Law 126; Jury 1 — juror unable to hear — unanimity of verdict Where the record showed that the jurors returned to the courtroom before reaching a verdict, the foreman asked if he could accept the vote of a juror who had been unable to hear all of the testimony, and the court sent the jury back to deliberate without answering the question, the trial court did not err in denying defendant's motion for mistrial made on the ground that in effect only eleven jurors decided the case, since the record showed that the verdict as finally rendered was the unanimous verdict of all twelve jurors and that each assented thereto.

Guaranty — action against guarantor — striking of defenses In a bank's action against the guarantor of a loan made by the bank, the trial court erred in striking defendant guarantor's defenses (1) that the bank acted fraudulently in that it knew or had reason to know that defendant was being misled or was induced to enter into the guaranty agreement in ignorance of facts materially increasing his risk and failed to inform him of such facts, (2) that the loan was in truth a cash settlement of prior lawsuits by the principal debtors against the bank and that plaintiff never expected to be repaid any part of the loan except that amount guaranteed by defendant, and (3) that the guaranty agreement was not supported by consideration since the loan was a settlement of prior lawsuits; however, the trial court properly struck defendant's defenses (1) that unsound banking practices in making the loan bar plaintiff's action, (2) that the loan<page_number>Page 523</page_number> violated federal and state statutes and was contrary to public policy, and (3) that plaintiff failed to take timely action against the principal debtors.

1. Husband and Wife 12 — separation agreement — resumption of marital relations — agreement terminated Where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose insofar as it remains executory. 2. Husband and Wife 12 — separation agreement — resumption of marital relations — jury question In an action to enforce the provision of a separation and property settlement agreement requiring transfer of certain property, the trial court erred in entering summary judgment where the question as to whether the parties became reconciled and renewed their marital<page_number>Page 528</page_number> relations, thereby terminating the agreement, presented a question of fact to be determined at a trial of the action.

Criminal Law 79, 102 — pleas of guilty by nontestifying codefendants — remarks by prosecutor In a prosecution for conspiracy to possess marijuana with intent to distribute, defendant was denied his fundamental right to a fair trial when, during the jury selection, cross-examination of witnesses and jury argument, the prosecuting attorney on five occasions referred to the fact that codefendants who were not witnesses had pled guilty to the same charge, notwithstanding the trial court on each occasion sustained objections to the remarks and instructed the jury not to consider them.

Divorce and Alimony 23 — child support — absence of findings The trial court erred in entering an order for child support without making findings as to the ages and circumstances of the children where such order provided (1) that $5200 in child support be placed in escrow by the clerk to be distributed to defendant at the rate of $32.50 per week for the minor son of the parties, and (2) that after payment of $12,200, the amount in which plaintiff was delinquent in making support payments, plaintiff would be relieved of further obligation to support his children.

Divorce and Alimony 23 — decrease in child support — changed circumstances There was a sufficient showing of changed circumstances to support reduction of defendant's child support payments where the evidence showed that defendant's net income from salary had decreased because of increased deductions for social security and income taxes his V.A. benefits had decreased, and plaintiff's net income had increased from $129 to $388 per month.

1. Insane Persons 1; Jury 1 — involuntary commitment proceeding — no right to jury trial Respondent in a proceeding for involuntary commitment to a mental health care facility was not entitled to a trial by jury. 2. Insane Persons 1 — finding of imminent danger — sufficiency of evidence In a proceeding for involuntary commitment to a mental health care facility, evidence was sufficient to support the trial court's finding that respondent was imminently dangerous to himself and to others.<page_number>Page 643</page_number>

Crime Against Nature 1 — constitutionality of statute G.S. <cross_reference>14-177</cross_reference> which provides that the crime against nature is a felony is constitutional.

Insane Persons 1 — involuntary commitment — sufficiency of findings The involuntary commitment of a prison inmate to a State mental hospital was supported by the court's finding that she suffers from mental illness resulting in her refusal to eat which makes her imminently dangerous to herself. G.S. 122-58.8 (b).

1. Intoxicating Liquor 2; Administrative Law 4 — ABC Board — compelling production of records — absence of probable cause The Board of Alcoholic Control may require the holder of a distillery representative's permit to produce relevant business books and records without abridging his Fourth Amendment rights even though the Board lacks traditional probable cause. G.S. 18A-15 (12). 2. Intoxicating Liquor 2; Administrative Law 4 — ABC Board — compelling production of records — absence of evidence of rule violation The Board of Alcoholic Control was not required to have evidence that the holder of a distillery representative's permit had violated its rules and regulations before it undertook an investigation of him and required him to produce books and records pertaining to promotional activities in this State for a distillery. 3. Administrative Law 4 — administrative agency — compelling production of records An administrative agency may require the production of documents only when its investigation is authorized by law and conducted pursuant to a legitimate purpose, the information sought is relevant to a lawful subject of investigation, and the demand for production is reasonable and specific in directive so that compliance is not unreasonably burdensome. 4. Intoxicating Liquor 2; Administrative Law 4 — production of records — sufficiency of order Order of the Board of Alcoholic Control requiring the holder of a distillery representative's permit to produce all books and records pertaining to his promotional activities in this State for a distillery was not so overbroad as to be impermissibly burdensome. 5. Intoxicating Liquor 2; Administrative Law 4 — denial or revocation of permit — due process — notice and hearing The Board of Alcoholic Control must give notice and an opportunity to be heard to an applicant or permittee before it can refuse or revoke a permit for failure to produce records as ordered by the Board pursuant to G.S. 18A-15 (12).<page_number>Page 684</page_number> 6. Intoxicating Liquor 2; Administrative Law 5 — refusal to renew permit — declaratory judgment — authority of superior court — due process hearing In a declaratory judgment action instituted after the Board of Alcoholic Control refused to renew petitioner's permit to operate as a distillery representative when petitioner failed to produce certain business records as ordered by the Board, the superior court had no authority to order the Board to issue a permit to petitioner but was limited to a declaration that petitioner is entitled to a due process hearing before the Board before action is taken to revoke or deny renewal of his permit.

1. Divorce and Alimony 24 — child custody — insufficiency of findings Findings that "defendant is a fit and suitable person to have the custody of the children born of the union" and that "plaintiff is a fit and suitable person to have visitation rights with the children" are insufficient to sustain an award of custody. 2. Divorce and Alimony 8 — abandonment without physical departure One spouse may abandon the other without physically leaving the home; in that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. 3. Divorce and Alimony 8 — constructive abandonment The constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a wilful failure, as by a wilful failure to provide adequate support. 4. Divorce and Alimony 8 — abandonment — decrease in support — insufficient findings Finding that while living apart plaintiff supplied his wife and family with funds and materials in excess of $600 per month but that<page_number>Page 696</page_number> in August 1973 cut the amount to $80 per week was insufficient to sustain the court's conclusion that plaintiff abandoned defendant in August 1973 where there was no finding that plaintiff brought their cohabitation to an end without justification, without consent of the other spouse and without intent of renewing it, and there was no finding that plaintiff's reduction of support was wilful or without excuse. 5. Divorce and Alimony 16 — attorney's fee — insufficient findings The trial court's award of an attorney's fee to defendant cannot be sustained where the court failed to make findings of fact upon which a determination of its reasonableness could be based. 6. Divorce and Alimony 16 — alimony based on capacity to earn — insufficient findings The trial court erred in basing the amount of plaintiff's alimony and child support payments on his capacity to earn rather than on his actual earnings where there was no finding that plaintiff was failing to exercise his capacity to earn because of a disregard of his marital obligation.

1. Parent and Child 1 — parent's control over child — no absolute right Courts regard with great deference the parent's right to bring up a child as he or she so chooses, yet this parental authority is not viewed as absolute. 2. Constitutional Law 23 — minor committed to mental health care facility — applicability of due process requirements A fifteen year old child who never gave his consent to confinement in the forensic unit of Dorothea Dix Hospital was entitled to due<page_number>Page 703</page_number> process procedures guaranteed by the Fourteenth Amendment to the U.S. Constitution. 3. Insane Persons 1 — commitment of minor to health care facility upon parent's request — inadequate protection of constitutional rights At present, Article 4 of G.S. 122 providing for voluntary commitment to a mental health care facility is constitutionally inadequate to protect the interest of a minor who is admitted at the parent's request. 4. Constitutional Law 23; Insane Persons 1 — commitment of minor upon parent's request — procedural due process required Commitment of a minor to a mental health care facility solely upon authorization of his mother was permissible procedure since the judicial deference afforded to parental authority along with the parent's interest in being able to seek immediate treatment and the policy of encouraging voluntary admissions outweigh any interest the minor may have in a pre-admission hearing; however, the continued confinement of a minor based on an admission without a prior hearing requires procedural safeguards consistent with the Due Process Clause, and such procedural due process should be afforded at the earliest possible time after admission.