Volume 27 — North Carolina Court of Appeals Reports

Appeal by defendant Max Glaseo from Ervin, Judge. Order entered 19 November 1974 in Superior Court, Mecklenbukg County. Heard in the Court of Appeals 8 May 1975. This is a civil action in which plaintiff seeks an accounting and to recover damages from the individual and the corporate defendants for breach of a contract relating to services performed in this State.

Appeal by plaintiffs from Long, Judge. Judgment entered 30 December 1974 in Superior Court, Cabarrus County. Heard in the Court of Appeals 13 May 1975. Civil action to obtain specific performance of an option to convey real property.

<p>Appeal by defendant from Canaday, Judge. Judgment entered 9 January 1975 in Superior Court, Durham County. Heard in the Court of Appeals 10 June 1975.</p> <p>Defendant was indicted for conspiring with Curtis Williams and Alfred Jackson to commit armed robbery. After a first trial and conviction, on appeal defendant was awarded a new trial. State v. Alston, 17 N.C. App. 712, 195 S.E. 2d 314 (1973). On retrial the State introduced evidence to show that on 3 September 1971 Williams and Jackson were apprehended by the police while in the act of robbing the McDougald Terrace office of the Durham Housing Authority. There was no evidence that defendant was in the vicinity when the robbery took place. Williams testified that defendant conceived the plan for the robbery, agreed with. Williams and Jackson as to the manner in which it was to be carried out, agreed with them as to the division of the expected proceeds, furnished the guns used in the robbery, and arranged for the transportation of Williams and Jackson to the scene of the robbery.</p> <p>Defendant offered no evidence. The jury found him guilty. From judgment imposing a prison sentence, defendant appealed.</p>

Appeal by defendant from Thornburg, Judge. Judgment entered 1 November 1974 in Superior Court, Catawba County. Heard in the Court of Appeals 17 June 1975. At a session of Superior Court held in Catawba County in October 1973, defendant was tried before Judge Sammie Chess, Jr. and a jury on indictments in ten criminal cases, each indictment containing two counts charging defendant with feloniously forging and feloniously uttering certain checks.

<p>1. Judgments § 21— consent judgment -r- grounds for setting aside</p> <p>A consent judgment, being a contract, cannot be changed without the consent of the parties or set aside except upon proper allegation and proof that consent was not in fact given or that it was obtained by fraud or mutual mistake, the burden being upon the party attack- • ing the judgment.</p> <p>2. Cancellation and Rescission of Instruments § 4— unilateral mistake</p> <p>In general, a unilateral mistake in the making of an agreement, of which the other party is ignorant and to which he in no way contributes, will not afford grounds for avoidance of the agreement.</p> <p>3. Judgments § 21; Boundaries § 15— consent judgment fixing boundary — motion to vacate</p> <p>In an action to vacate a consent judgment locating a boundary line as shown on a map prepared by a court-appointed surveyor on the ground that plaintiffs’ mistaken belief as to what was represented on the map was induced either by the surveyor’s mistake or his intentional fraud in failing to portray on the map their contentions as expressed orally to him at the time of the survey, the evidence supported the court’s findings that the surveyor had surveyed the contentions of the plaintiffs and that he did not intentionally defraud plaintiffs where plaintiffs alleged the dividing line was a straight line and the evidence showed the surveyor’s line was a straight line between points contended for by plaintiffs.</p>

Appeal by plaintiffs from Bailey, Judge. Judgment entered in 73CvS2782 on 15 November 1974, and judgment entered in 73CvS2781 on 22 November 1974. Heard in the Court of Appeals 10 June 1975. Plaintiffs brought suit against Virginia Homes Manufacturing Corporation (Virginia) for breach of contract and negligence in the construction, delivery and manufacture of a mobile home.

<p>1. Homicide § 20— photographs of victim — admissibility for illustration</p> <p>The trial court did not err in allowing into evidence five photographs of deceased for the purpose of illustrating the testimony of an expert medical witness as to the cause of death.</p> <p>2. Homicide § 19— evidence of victim’s character, threats — no evidence of self-defense</p> <p>The trial court in a second degree murder prosecution did not err in excluding evidence concerning threats made by the victim against defendant, the specific act of violence by the victim against defendant in pointing a gun at his head, the fact that the victim had a gun hidden outside the building at the time of the shooting, and the reputation of the victim as a vicious man, since such evidence was admissible only upon the presentation of viable evidence of the necessity of self-defense, and defendant presented no such evidence.</p> <p>3. Homicide § 31— voluntary manslaughter — thirty years’ imprisonment — excessive punishment</p> <p>Imposition of a prison sentence of thirty years upon a conviction of voluntary manslaughter was greater than the punishment allowed by statute, and the case is remanded for entry of judgment imposing a sentence within the statutory limit of twenty years.</p>

Appeal by defendant from Chess, Judge. Judgment entered 27 February 1975 in Superior Court, Richmond County. Heard in the Court of Appeals 27 August 1975. In March 1972 defendant was convicted and received a suspended sentence and probation. At the revocation hearing in February 1975 defendant’s probation officer testified as hereafter set out that defendant had violated certain conditions of probation.

Appeal by defendant from Hobgood, Judge. Judgment entered 7 January 1975 in Superior Court, Warren County. Heard in the Court of Appeals 26 August 1975. By indictment proper in form, defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. A shotgun was the weapon allegedly used and Thomas Walter Turner was the alleged victim.

Appeal by defendant from Friday, Judge. Judgment entered 16 January 1975 in Superior Court, Rutherford County. Heard in the Court of Appeals 28 August 1975. Defendant was tried on a warrant charging him with operating a motor vehicle on a public highway while under the influence of intoxicating liquor. He was found guilty in district court and appealed to superior court where he pled not guilty and was found guilty by a jury.

1. Master and Servant 47 — Workmen's Compensation Act — liberal construction The Workmen's Compensation Act should be construed liberally so that its benefits are not denied upon technical and narrow interpretation, and the strict rules applicable to ordinary civil actions are not appropriate in proceedings under the Act. 2. Master and Servant 85 — jurisdiction of Industrial Commission after award — case kept open for additional evidence Where plaintiff presented evidence concerning his medical treatment for ten weeks but failed to present evidence of subsequent treatment, including back surgery, at a Veteran's Hospital, the Industrial Commission could keep the case open to allow plaintiff another opportunity to gather the missing evidence essential to the determination of the issue.

1. Criminal Law 138 — severity of punishment — discretionary matter for trial court So long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office, and when the sentence imposed is within statutory limits, it cannot be considered excessive, cruel or unreasonable and will not be reviewed on appeal; notwithstanding the principle that such sentences are nonreviewable, appellate courts have reviewed sentences when the particular sanction imposed is clearly and palpably gross, harsh and abusive, but only when such an abuse of discretion is readily discernible will appellate courts intercede. 2. Larceny 10 — felonious larceny conviction — sentence to maximum term — no abuse of discretion In an armed robbery case where defendant was convicted of felonious larceny, the trial court did not abuse its discretion by imposing the maximum sentence of ten years upon the defendant, an indigent college student with no prior record.