Volume 275 — North Carolina Reports

1. Notice 1 — necessity for notice The rule that parties to an action are fixed with notice of all motions or orders made during the term of court at which the cause is regularly calendared for trial unless actual notice is required by the constitution or statute must bend to embrace common sense and fundamental fairness.<page_number>Page 91</page_number> 2. Judgments 6; Trial 30 — vacating nonsuit judgments during term — notice to plaintiff During the term at which he enters judgments of nonsuit in plaintiff's actions, trial judge has the authority, upon his own motion and without giving notice, to vacate the nonsuits and to restore the cases to the docket but in the absence of official notice that the cases have been reinstated, plaintiff is not charged with knowledge of any further proceedings in the cases. 3. Infants 5; Insane Persons 2 — next friend — guardian ad litem Although technically a next friend represents a plaintiff and a guardian ad litem represents a defendant, there is no substantial difference between the two, the class of persons for whom next friends and guardians ad litem may be appointed being the same. G.S. 1-64, G.S. <cross_reference>1-65</cross_reference>. 4. Insane Persons 2 — jurisdiction to appoint next friend for adult plaintiff An adult plaintiff who is not an idiot or lunatic must be non compos mentis before the court has jurisdiction to appoint a next friend for him. 5. Notice 1 — necessity of notice in absence of statute Notwithstanding the silence of a statute, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard. 6. Insane Persons 2 — appointment of next friend — mental incapacity — notice and hearing When a party's lack of mental capacity is asserted and denied — and the party has not previously been adjudicated incompetent to manage his affairs — he is entitled to notice and an opportunity to be heard before the judge can appoint either a next friend or a guardian ad litem for him. 7. Constitutional Law 24; Damages 5 — due process — right to recover damages The right to recover damages for injury to one's property is no less a property right than the right to sell or use the property which was damaged. 8. Attorney and Client 3; Constitutional Law 24 — denial of litigant's right to conduct lawsuit Normally, a litigant has a fundamental right to select the attorney who will represent him in his lawsuit, to conduct his litigation according to his own judgment and inclination, and — if the case is to be compromised — to have it settled upon terms satisfactory to him; if this right is taken from him upon a factual finding which he disputes, fundamental fairness and the constitutional requirements of due process require that he be given an opportunity to defend and be heard. 9. Insane Persons 2 — appointment of next friend — notice A person for whom a next friend or guardian ad litem, is proposed is entitled to notice as in case of an inquisition of lunacy under (G.S.<page_number>Page 92</page_number> <cross_reference>35-2</cross_reference>, and, by analogy to G.S. 1-581, ten days' notice is appropriate unless the court, for good cause, should prescribe a shorter period. 10. Insane Persons 2 — appointment of next friend — necessity for hearing Where the party for whom a next friend or guardian ad litem, is proposed does not deny at the hearing the allegation that he is incompetent, and the judge is satisfied that the application is made in good faith and that the party is non compos mentis, the judge may proceed to appoint a next friend to act for him; but if the party asserts his competency, he is entitled to have the issue determined as provided in G.S. <cross_reference>35-2</cross_reference>. 11. Insane Persons 2 — appointment of next friend — validity of appointment Where plaintiff has had neither notice that her competency to manage her affairs was challenged nor an opportunity to be heard on the issue, order of trial court appointing an attorney as her next friend is void, and the attorney's settlements of her actions against a redevelopment commission for the destruction of her property are not binding upon her, notwithstanding they were approved by the court. 12. Insane Persons 2 — necessity for next friend — cases of emergency An inquisition is not always a condition precedent for the appointment of a next friend or a guardian ad litem, as where, in an emergency, it is necessary, pendente lite, to safeguard the property of a person non, compos mentis whose incompetency has not been adjudicated. 13. Insane Persons 2 — appointment of next friend — criterion of mental incompetency The law will not deprive a person of the control of his lawsuit or his property unless he is "incompetent from want of understanding, to manage his own affairs," G.S. <cross_reference>35-2</cross_reference>; the words "affairs" encompasses a person's entire property and business — not just one transaction or one piece of property to which he may have a unique attachment. 14. Insane Persons 2 — appointment of next friend — criterion of mental incompetency Incompetency to administer one's property depends upon the general frame and habit of mind and not upon specific actions such as may be reflected by eccentricities, prejudices, or the holding of particular beliefs. 15. Insane Persons 2 — appointment of next friend To authorize the appointment of next friend or guardian ad litem it is not enough to show that another might manage a man's property more wisely or efficiently than he himself. 16. Constitutional Law 21 — incident of private property — right to expend for lost causes It is one of the incidents of the cherished right of private property that ordinarily an individual may expend his property in fighting a lost cause for for any legal purpose whatever.<page_number>Page 93</page_number> 17. Insane Persons 2 — "incompetent from want of understanding to manage his own affairs" It is not possible to frame a definition of the phrase "incompetent from want of understanding to manage his own affairs," G.S. <cross_reference>35-2</cross_reference>, which will include every aberration which might produce the incompetency to which reference is made. 18. Insane Persons 2 — essentials of mental incompetency A person is incompetent to manage his affairs is his mental condition is such that he is incapable of transacting, the ordinary business involved in taking care of his property and if he is incapable of exercising rational judgment and weighing the consequences of his acts upon himself, his family, his property and estate. G.S. <cross_reference>35-2</cross_reference>. 19. Insane Persons 2 — essentials of mental competency If a person understands what is necessarily required for the management of his ordinary business affairs and is able to perform those acts with reasonable continuity, if he comprehends the effect of what he does, and can exercise his own will, he is not lacking in understanding within the meaning of the law and he cannot be deprived of the control of his litigation or property. G.S. <cross_reference>35-2</cross_reference>.

1. Negligence 11 — primary and secondary liability Primary and secondary liability between defendants exists only when (1) they are jointly and severally liable to the plaintiff, and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former. 2. Pleadings 19; Negligence 10; Torts 2 — allegation of joint and concurring negligence Allegation by plaintiff that defendants jointly and concurrently proximately caused her injuries is a conclusion of the pleader and is not admitted by demurrer. 3. Indemnity 3; Pleadings 14; Torts 3 — establishing right to indemnity from another defendant In order for one defendant to establish a right to indemnity from a second defendant, he must allege and prove (1) that the second defendant is liable to plaintiff, and (2) that the first defendant's liability to plaintiff is derivative, that is, based on tortious conduct of the second defendant, or that the first defendant is only passively negligent but is exposed to liability through the active negligence of the second defendant.<page_number>Page 133</page_number> 4. Negligence 25; Pleadings 14; Torts 3 — action in tort — rights inter se of defendants — cross-action for breach of warranty In an action for personal injuries against an automobile driver and the used car dealer who sold the automobile to the driver, where plaintiff alleged defendant driver was negligent (1) in the actual operation of the automobile and (2) in failing to inspect the brakes to determine whether they were adequate before driving on the highways, defendant driver is not entitled to maintain a cross-action against defendant car dealer based on breach of express and implied warranty that the automobile was free of mechanical defects, since under plaintiff's allegations the driver will not be entitled to indemnification from the car dealer but will be held liable for plaintiff's injuries only because of his own active negligence.

1. Constitutional Law 11 — exercise of police power — test of validity Statute requiring the operator of a motorcycle on a public highway to wear a protective helmet is a valid exercise of the police power only is it contributes in any real and substantial way to the safety of other travelers.<page_number>Page 169</page_number> 2. Statutes 4 — presumption of constitutionality The Supreme Court must assume that acts of the General Assembly are constitutional and within its legislative power until and unless the contrary clearly appears. 3. Automobiles 140; Constitutional Law 13 — constitutionality of statute requiring motorcycle operators to wear helmets The requirement of G.S. <cross_reference>20-140.2</cross_reference>(b) that the operator of a motorcycle on a public highway wear a protective helmet is held constitutional as a valid exercise of the police power since the statute bears a real and substantial relationship to public safety.

1. Criminal Law 26, 135 — double jeopardy — capital cases — life imprisonment at first trial — retrial Where defendant was awarded a new trial by the Supreme Court after having been tried for the capital crime of rape and found by a jury to be guilty of rape with a recommendation of life imprisonment, the court at defendant's retrial properly denied defendant's plea in abatement by which he contended that he should not again be tried for his life, defendant having waived his protection against reprosecution for the same offense by his appeal and the vacated sentence not being a ceiling for punishment upon retrial. 2. Criminal Law 76, 178 — former appeal — admissibility of confession — law of the case Where on former appeal of this case the Supreme Court passed upon the admissibility of inculpatory statements allegedly made by defendant to police officers, reconsideration by the Supreme Court of the admissibility of such statements at defendant's retrial is precluded by the doctrine of law of the case where the evidence relating to the admission of the statements in the retrial is substantially the same as that at the previous trial. 3. Criminal Law 76 — determination of admissibility of confession The findings of fact by the trial judge upon the voir dire as to the admissibility of defendant's inculpatory statements to police officers, being supported by competent evidence, are binding on appeal and are held sufficient to support the court's conclusion that the statements were freely, voluntarily, knowingly and intelligently made.<page_number>Page 243</page_number> 4. Rape 5 — sufficiency of evidence In this rape prosecution, defendant's motion for nonsuit is properly denied where the State's evidence tends to show that a rape was committee on the prosecutrix, that window screens were removed and prosecutrix' house was entered on the night of the alleged rape, that defendant admitted to police officers that he removed window screens from the house occupied by prosecutrix, entered the house and placed his hand upon the body of a woman lying on a bed, that a month after the alleged rape defendant was arrested on a peeping tom charge approximately two and one-half blocks from prosecutrix' house, and that when arrested defendant was wearing a baseball cap and galoshes similar to those described by prosecutrix as worn by her assailant. 5. Criminal Law 112 — necessity for instructions as to circumstantial evidence In this rape prosecution, the court did not commit prejudicial error by failing to instruct the jury as to the rule of circumstantial evidence in absence of a request for such instructions where the State's evidence consisted mainly of direct evidence of the prosecutrix and the inculpatory statements of defendant, and the only circumstantial evidence offered was incidental and corroborative.

1. Evidence 3 — matters of common knowledge — beam of locomotive headlights It is a matter of common knowledge that a locomotive headlight casts an intense but narrow beam far ahead in order that the train crew may spot defects in the rails or obstructions on the roadbed. 2. Railroads 5 — crossing accidents — duty of motorist The law casts upon the operator of a motor vehicle a continuing duty to look and listen before entering upon a railroad crossing.<page_number>Page 278</page_number> 3. Negligence 1 — acts constituting negligence — sight and hearing Ordinarily, when a diligent use of one's senses of sight and hearing discloses danger in time to avoid it, failure to take the proper precaution constitutes negligence. 4. Railroads 6 — crossing accidents — reliance on flagman and warning devices A plaintiff who knows of the railroad's custom to have a flagman at a crossing to direct traffic and to have the engine's whistle blowing and its bell ringing for a crossing has the right to place some reliance on the custom or usage, but plaintiff is not entitled to rely entirely thereon and omit the exercise of all ordinary care for his own safety. 5. Negligence 26 — burden of proof In tort actions involving issues of negligence and contributory negligence, plaintiff has the burden of showing defendant's negligence. 6. Negligence 29, 35 — non-suit — contributory negligence A motion to nonsuit should be sustained unless there is evidence before the jury from which it may, but not must, find each material fact necessary to make out a case of actionable negligence; even then, nonsuit is proper if plaintiff's own evidence so clearly establishes his contributory negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn from that evidence. 7. Appeal and Error 59 — review of nonsuit — discussion of evidence In passing on a judgment of nonsuit, the appellate court must examine all the evidence in the record; but if the nonsuit is reversed and the cause remanded for trial, the appellate court will ordinarily discuss only so much of the evidence as discloses the basis for decision. 8. Railroads 5 — crossing accidents — contributory negligence In an action to recover for injuries received when plaintiff motorist collided in the nighttime with a train engine standing on a railroad crossing, plaintiff's evidence is held not to disclose contributory negligence as a matter of law where it shows that the street on which plaintiff approached the tracks was on a downgrade and that a trestle above the street obstructed plaintiff's view of the tracks until he was within seventy-two feet thereof, that the lights of the engine were not visible to plaintiff but the lights of a street beyond the tracks were, that plaintiff was familiar with the custom of the railroad to place a flagman at this crossing to warn of the presence of a train on the crossing, but that there was no flagman at the crossing when the accident occurred, and that plaintiff first saw the engine partially obstructing his lane of traffic when he was within eight to ten feet of the engine but was unable to avoid the collision.

1. State 7 — Tort claims Act — requisites of affidavit It is necessary to a recovery under the Tort Claims Act that the affidavit of claimant set forth the name of the allegedly negligent employee and the acts of negligence relied upon. 2. State 7 — tort claim — failure of affidavit to name employee — jurisdiction of Commission In this tort claim action against a county board of education based upon the alleged negligence of a school bus driver, the Industrial Commission had jurisdiction to hear the claim, notwithstanding the affidavit failed to name the allegedly negligent bus driver, where prior to the hearing claimant was permitted to amend the affidavit to name the bus driver, and defendant's counsel stipulated that the named bus driver was an employee of defendant and was paid out of the nine months school fund and stated that he was not taken by surprise by the amendment. 3. Administrative Law 4 — necessity for fair trial While a hearing before an administrative agency need not be as formal as that before a court, no essential of a fair trial may be dispensed with. 4. State 7 — hearings by different members of Industrial Commission — waiver of objection In this tort claim proceeding before the Industrial Commission,<page_number>Page 355</page_number> defendant is held to have waived objection to procedure whereby a second hearing at which defendant presented its evidence was conducted by a different hearing officer than the one who conducted the original hearing and entered the opinion and award of the Commission, where defendant had notice beforehand of the identity of the officer who would conduct the second hearing but failed to object thereto. 5. Administrative Law 4 — decision by officer not present when evidence presented An administrative decision is not invalid merely because an officer who was not present when the evidence was taken made or participated in the decision, provided he considers and acts upon the evidence received in his absence. 6. State 8 — Tort Claims Act — contributory negligence The State Tort Claims Act does not authorize recovery unless the claimant is free from contributory negligence. 7. State 8 — Tort Claims Act — contributory negligence by minor claimant Substantive case law concerning a minor's capability for negligence applies to claims under the State Tort Claims Act, and six-year-old claimant is incapable of contributory negligence as a matter of law.

1. Trial 21 — nonsuit — consideration of evidence Upon motion for nonsuit, all the evidence which supports plaintiff's claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff's favor. 2. Trial 21 — nonsuit — consideration of evidence Upon motion for nonsuit, defendant's evidence which contradicts that of plaintiff or tends to show a different state of facts and acts of contributory negligence not alleged in the answer should be disregarded. 3. Negligence 35 — nonsuit for contributory negligence When opposing inferences are permissible from plaintiff's evidence, nonsuit on the basis of contributory negligence as a matter of law should be denied.<page_number>Page 364</page_number> 4. Automobiles 8 — duty to maintain lookout The operator of a motor vehicle is under a duty in the exercise of due care to keep his vehicle under control and to keep a reasonably careful lookout so as to avoid collision with persons and vehicles upon the highway, this duty requiring that the operator be reasonably vigilant and that he anticipate and expect the presence of others. 5. Automobiles 8 — duty to maintain lookout It is the duty of a driver not merely to look but to keep a lookout in the direction of travel, and he is held to the duty of seeing what he ought to have seen, it being required that he increase his vigilance when the danger is increased by darkness or other conditions obscuring his view. 6. Automobiles 62 — striking pedestrian — failure to keep proper lookout Plaintiff pedestrian's evidence tending to show that she was struck by a motorcycle operated by the minor defendant as she was crossing a city street at night in an unmarked crosswalk at an intersection, that the street was straight, level and dry, that the weather was clear and the intersection was well lighted, but that defendant failed to see plaintiff until he was within 20 feet of her, is held sufficient to be submitted to the jury on the issue of defendant's negligence in failing to keep a proper lookout. 7. Negligence 35 — nonsuit for contributory negligence Nonsuit on the ground of contributory negligence is proper only if plaintiff's evidence, considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn therefrom. 8. Automobiles 83 — pedestrian in unmarked crosswalk — contributory negligence In this action for injuries received when plaintiff pedestrian was struck by defendant's motorcycle, the Court of Appeals erred in concluding that plaintiff was contributorily negligent as a matter of law for failure to see the motorcycle and to use ordinary care for her own safety where plaintiff's evidence would support the inference that she was crossing the street at an unmarked crosswalk at an intersection and thus had the right-of-way under G.S. <cross_reference>20-173</cross_reference> (a), and the evidence shows nothing unusual in the motorcycle's approach which would have put plaintiff on notice that the cyclist did not intend to obey the law and yield the right-of-way. 9. Automobiles 40 — pedestrian in unmarked crosswalk — assumption that motorist will yield right-of-way In the absence of anything which gives or should give notice to the contrary, a pedestrian crossing in an unmarked crosswalk at an intersection is entitled to assume and to act upon the assumption, even to the last moment, that others will observe and obey the statute which requires them to yield the right-of-way. 10. Automobiles 105 — proof of vehicle registration — prima facie evidence of ownership and agency In an action against a minor defendant and his father for injuries received when plaintiff was struck by a motorcycle operated by the minor<page_number>Page 365</page_number> defendant, proof of registration in the name of the father is prima facie evidence of ownership by him and agency in the driver under G.S. <cross_reference>20-71.1</cross_reference> (b) and is sufficient to carry the case to the jury against the father, notwithstanding plaintiff's further evidence is sufficient, if true, to rebut the prima facie evidence that the father owned the motorcycle and that the minor defendant was driving it as the owner's agent.

1. Adverse Possession 17 — color of title Color of title is a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance. 2. Adverse Possession 17 — color of title — description in deed When the description in a deed embraces not only land owned by the grantor but also contiguous land which he does not own, the instrument conveys the property to which grantor had title and constitutes color of title to that portion which he does not own. 3. Adverse Possession 17 — color of title — valid deed A valid deed — a muniment of title — may serve as color of title. 4. Adverse Possession 17 — color of title — commissioner's deed Commissioner's deed, which was executed and delivered to plaintiff's predecessor in title in a special proceeding brought by an administrator C.T.A. to make assets to pay debts, constitutes color of title to all the land described therein. 5. Adverse Possession 6 — tacking possession — beneficiary under a will Plaintiff, who succeeded to her title as beneficiary under a will, is entitled to tack her adverse possession of lappage to such possession by the testator as she is able to establish.<page_number>Page 386</page_number> 6. Adverse Possession 18 — color of title — presumptive possession to outermost boundaries of deed When one enters upon a tract of land and asserts his ownership of the whole under color of title, the law will extend his occupation of a portion thereof to the outer bounds of his deed, provided no part of the premises is held adversely by another; and his exclusive and uninterrupted possession for seven years will ripen title to all the land embraced within the deed. 7. Adverse Possession 4 — lappage in description of deeds Where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title. 8. Adverse Possession 4 — lappage in description of deeds If one of two rival claimants to land is seated on the lappage and the other not, the possession of the whole interference is in the former. 9. Adverse Possession 4 — lappage in description of deeds If both rival claimants have actual possession of some part of the lappage, the possession of the true owner, by virtue of his superior title, extends to all not actually occupied by the other. 10. Adverse Possession 4 — lappage in description of deeds — possession under junior grant — presumption To mature a title under a junior grant when a portion of the boundary of the junior grant laps on a superior title, there must be shown adverse and exclusive possession of the lappage or the law will presume possession to be in the true owner as to all that portion of the lappage not actually occupied by the junior claimant. 11. Adverse Possession 1 — possession — telephone right-of-way Where telephone company acquired from defendant's predecessors in title a right-of-way across a tract of land for its lines and an underground cable, its possession of the right-of-way did not inure to the benefit of defendant for purpose of showing possession of the tract by defendant. 12. Adverse Possession 4 — adverse possession of lappage — boundaries of lappage — proof When a junior grant incorporates a portion of a senior grant, it is not necessary for the junior grantee claiming title by seven years adverse possession under color to show that the boundaries of the lappage were visible on the ground, although the claimant must establish the required adverse possession within those lines. 13. Trial 21 — motion to nonsuit — consideration of evidence In passing upon a motion for nonsuit, the evidence and every legitimate inference from it must be considered in the light most favorable to plaintiff. 14. Adverse Possession 25 — color of title — sufficiency of proof In proving title by continuous, open and adverse possession of land under color of title for seven years, nothing must be left to conjecture.<page_number>Page 387</page_number> 15. Adverse Possession 1 — what constitutes adverse possession Adverse possession consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be repeated as to show they are done in the character of owner, in opposition to right or claim of any other person, and not as an occasional trespasser; it must be as decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner. 16. Adverse Possession 25 — lappage — color of title — continuous possession — sufficiency of evidence In an action in trespass to try title wherein plaintiff and defendant dispute a lappage of 2.82 acres and defendant has the superior record title to the lappage but is not in possession of it, plaintiff's evidence is held insufficient to show continuous possession of the lappage by her and her predecessor in title for more than seven years under color of title. 17. Adverse Possession 1 — permission to hunt Permission to hunt, like the payment of taxes, is evidence of an adverse claim, but it is not possession. 18. Adverse Possession 25 — nature of the adverse possession Adverse possession is denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible, such acts to be so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. 19. Adverse Possession 1 — cutting timber or pulpwood When cutting timber or pulpwood is relied upon to show adverse possession it must be kept up with such frequency and regularity as to give notice to the public that the party cutting it or having it cut is claiming the land as his own.

1. Administrative Law 3; Injunctions 11 — injunction to restrain new bids for State contract — sufficiency of evidence In this action to restrain defendants, officials of the State, from accepting new bids for television transmitting equipment after plaintiff had previously submitted the lowest bid for such equipment, plaintiff's evidence that a competitive bidder objected to an award of the contract to plaintiff on the ground that a small item in plaintiff's specifications failed to meet the bid requirements, that an agent of the competitive bidder was present at a hearing upon the bids held before the State Purchasing Officer but that plaintiff was neither notified nor present at the hearing, and that when a representative of plaintiff requested a hearing, he was told that an irrevocable decision had been made to call for new bids, is held insufficient to warrant the court in restraining the call for new bids, defendants having been given the right 143-52.1 and by the bid proposal, and there being no evidence that defendants acted corruptly, in violation of the law or in excess of authority. 2. Injunctions 3; Mandamus 2 — exercise of discretionary duty Neither mandamus nor mandatory injunction may be issued to control the manner of exercising a discretionary duty. 3. Injunctions 8, 11; Mandamus 4; State 4 — action against individual State officials — action against State — consent to suit Action to restrain individual defendants, officials of the State, from accepting new bids for television transmitting equipment and for a mandatory injunction requiring defendants to award the contract to plaintiff as lowest original bidder, is held to constitute an action against the State where every act charged against any defendant was performed in his capacity as representative of the State and related to<page_number>Page 494</page_number> a contract to be performed by the State, and the State not having consented to the suit, defendants' demurrer should be sustained and the action dismissed.

1. Conspiracy 3 — criminal conspiracy defined A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme, that is, the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way by unlawful means.<page_number>Page 652</page_number> 2. Conspiracy 3 — overt act — withdrawal of conspirator Since the commission of an overt act is not an element of criminal conspiracy in this jurisdiction, an attempted withdrawal by one of the conspirators prior to an overt act in furtherance of the agreement will not prevent a verdict of guilty of conspiracy. 3. Conspiracy 3 — accomplishment of purpose — necessity It is not necessary that the purpose of the conspiracy be accomplished in order for a verdict of guilty to stand. 4. Conspiracy 3 — union of wills — pretended acquiescence There can be no conspiracy unless there is a union of wills; and if one person feigns acquiescence in a proposal of another to pursue an unlawful enterprise, there is no conspiracy. 5. Conspiracy 3 — conspiracy with self One person cannot conspire with himself. 6. Conspiracy 3 — conspiracy of three or more — union of purpose between two If three or more persons conspire to commit a crime, the fact that there is a union of purpose between only two will not bar a prosecution and conviction of the two. 7. Conspiracy 6 — sufficiency of evidence — unsupported testimony of co-conspirator The unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. 8. Conspiracy 6 — criminal conspiracy to murder husband of defendant — conflicting evidence of State — intent of co-conspirator In a prosecution charging that femme defendant unlawfully conspired with two other persons to murder her husband, defendant's motions, for judgment as of nonsuit were properly denied, notwithstanding that the co-conspirators, who were witnesses for the State, testified on cross-examination that they never intended to kill defendant's husband but intended only to trick defendant into giving them money, where the State's evidence was also to the effect that defendant asked one co-conspirator to procure someone to kill her husband, that the co-conspirator, with defendant's knowledge, purchased a quantity of bullets for his .38 pistol, that defendant and the co-conspirator went to an airport to meet the other co-conspirator who pretended to have arrived from New York, that defendant directed the co-conspirators to a farmhouse to which her husband went almost every day, that defendant furnished the co-conspirators with a description and some pictures of her husband, and that the co-conspirators accepted $2550 in cash from defendant, one co-conspirator testifying that he "received the money for doing just what we were talking about, to kill him." 9. Criminal Law 90 — impeachment of own witness A party cannot introduce testimony to impeach or discredit the character of his witness.<page_number>Page 653</page_number> 10. Criminal Law 106 — defense established by State's evidence — nonsuit When a complete defense is established by the State's evidence in a criminal action, a defendant may avail himself of such defense by a motion for judgment as of nonsuit. 11. Criminal Law 90 — testimony by State's witness as to exculpatory facts If the witness for the State testifies to facts against the State's contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. 12. Criminal Law 106 — nonsuit — where State's evidence is both exculpatory and inculpatory When the substantive evidence offered by the State is conflicting — some tending to inculpate and some tending to exculpate the defendant — it is sufficient to overrule a motion for judgment as of nonsuit. 13. Criminal Law 106 — conflict in testimony of the State — role of jury Where the State vouched that its witnesses were worthy of belief as to all of their testimony, and there was conflict in the testimony, it was for the jury, as the trier of the facts, to believe all the testimony or to believe a part and reject a part, or to reject it all. 14. Conspiracy 6 — sufficiency of evidence — circumstantial evidence A criminal conspiracy may be established by circumstantial evidence from which the conspiracy may be legitimately inferred.

1. Homicide 24, 28 — instructions — burden of proving mitigation or self-defense — satisfaction of jury — greater weight of evidence In this homicide prosecution wherein the State's evidence of an intentional killing with a deadly weapon raised presumptions that the killing was unlawful and with malice, defendant was not prejudiced by the trial court's erroneous instruction that the burden on defendant to prove to the satisfaction of the jury circumstances which would reduce second-degree murder to manslaughter or establish self-defense required a higher degree of proof than proof by the greater weight of the evidence, where the jury, by returning a verdict of first-degree murder, established that defendant killed deceased with malice, premeditation and deliberation, and the evidence did not entitle defendant to an instruction upon mitigation or self-defense. 2. Homicide 24, 28 — instructions — burden of proving mitigation or self-defense — satisfaction of jury Where there is evidence sufficient to establish an affirmative defense or to rebut the presumptions which arise against a defendant when a killing results from his intentional use of a deadly weapon, the court should instruct the jury that defendant has the burden of proving his defense or mitigation to the satisfaction of the jury — not by the greater weight of the evidence or beyond a reasonable doubt — but simply to the satisfaction of the jury. 3. Homicide 27 — instructions — error in charge on manslaughter — verdict or first-degree murder Ordinarily, when the jury is instructed that it may find defendant guilty of first-degree murder, second-degree murder, manslaughter or not guilty, and the verdict is guilty of second-degree murder, an error in the charge on manslaughter will require a new trial since it cannot be known whether the verdict would have been manslaughter if the jury had been properly instructed; but where the jury was properly instructed as<page_number>Page 663</page_number> to both degrees of murder and yet found defendant guilty of first-degree murder, error in the charge on manslaughter was harmless. 4. Homicide 30 — failure to instruct on involuntary manslaughter In this homicide prosecution, defendant's evidence did not entitle him to an instruction on involuntary manslaughter where it showed that defendant had become and remained the aggressor when he shot deceased and that he intentionally discharged his pistol when it was pointed in ceased's direction.

1. Criminal Law 88; Constitutional Law 31 — right of cross-examination — impeachment — restriction on repetitious questions Where defendant's cross-examination of the prosecuting witness for impeachment purposes repeatedly elicited the answer that the witness had testified in a former trial that he believed the defendant was holding card number six in a police identification lineup, action of the trial court in precluding further examination on this point did not deprive defendant of his right of cross-examination, the court having the right to restrict repetitious and argumentative inquiry. 2. Constitutional Law 31 — right of cross-examination — common law — constitutional guarantees The right of cross-examination is a common law right and is guaranteed by the N.C. Constitution, Art. I, 11, and also by the Sixth Amendment to the U.S. Constitution, which is made applicable to the states by the Fourteenth Amendment. 3. Constitutional Law 31; Criminal Law 88 — right of cross-examination — common law rule The right to confront affirms the common law rule that in criminal trials by jury the witness must be present and subject to cross-examination under oath. 4. Criminal Law 88 — cross-examination on the examination-in-chief The defendant is entitled to a full and fair cross-examination upon the subject of the witness' examination-in-chief, and this is an absolute right rather than a privilege. 5. Criminal Law 88 — cross-examination — impeachment — repetitious questions — restrictions When cross-examination is made for the purpose of impeaching the credibility of a witness, the method and duration of the cross-examination for this purpose rest largely in the discretion of the trial court, which may properly exclude such cross-examination when it becomes merely repetitious or argumentative. 6. Constitutional Law 1 — power of states to make rules of evidence — U.S. Supreme Court The United States Supreme Court will not encroach upon the powers of<page_number>Page 671</page_number> the states to make their own rules of evidence in their own courts as long as they serve a legitimate state purpose not prohibited by the U.S. Constitution. 7. Constitutional Law 31 — cross-examination — impeachment — repetitious questions — discretion of trial court The rule allowing the trial judge to exercise his discretion to limit cross-examination for the purpose of impeachment when it becomes repetitions or argumentative does not violate any provision of the U.S. Constitution, it appearing that the rule is for a legitimate and fair state purpose and does not contravene due process.

1. Appeal and Error 9 — moot and academic questions When, pending an appeal to the Supreme Court, a development occurs by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the<page_number>Page 676</page_number> reason that the Supreme Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court. 2. Appeal and Error 9 — moot and academic questions — dismissal of appeal In this action to enjoin a county board of education from diverting a school building from use in the education of elementary school pupils to use by a county technical institute for vocational education of adults, and from expending county tax funds for the maintenance of that building when so used, plaintiff's appeal to the Supreme Court upon constitutional grounds from a decision of the Court of Appeals which affirmed judgment of nonsuit entered in the superior court is dismissed as moot, where all activities of the technical institute at the school building in question have ceased since the decision of the Court of Appeals was rendered, and the school building is now being, used exclusively for the education of elementary public school pupils.