Volume 276 — North Carolina Reports

1. Taxation 24 — ad valorem tax — situs of corporate property — principal office The tax situs of a corporation's tangible personal property is at the place of the corporation's principal office in this State, G.S. <cross_reference>105-281</cross_reference>, G.S. <cross_reference>105-302</cross_reference>(a), unless such property or a part thereof has a tax situs elsewhere and is thus not within the taxing jurisdiction of the State. 2. Taxation 9, 25 — ad valorem tax — levy on corporation engaged in interstate commerce The ad valorem property tax may be levied upon personal property of an individual or corporation engaged in interstate commerce the same as upon any other property as long as the effect of such taxation does not place interstate commerce at a competitive disadvantage with intrastate commerce. 3. Constitutional Law 23 — due process — tax laws The test of whether a tax law violates due process is whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. 4. Taxation 24 — ad valorem tax — situs of property — common carrier engaged in interstate commerce — sufficiency of findings In an action by a common carrier of freight, who maintains its principal office in a county in this State, seeking (1) a judgment to require the county to assess the carrier's ad valorem tax by an apportionment method based on the ratio of miles traveled by the carrier's vehicles in this State to the total miles traveled and (2) a refund of a portion of ad valorem taxes paid to the county under protest in 1963 and 1964, plaintiff's evidence is held insufficient to support findings that any of its vehicles engaged in interstate commerce acquired a nondomiciliary tax situs in 1963 and 1964 and that inclusion of those vehicles by the county in its tax assessment cast an undue burden on interstate commerce, the plaintiff having failed to show either that its vehicles were operated along<page_number>Page 20</page_number> fixed routes and on regular schedules into, through, and out of the nondomiciliary states or that its vehicles were habitually situated and employed in other states throughout the year; consequently, all of the carrier's property was subject to ad valorem taxation in the county. G.S. <cross_reference>105-281</cross_reference>, G.S. <cross_reference>105-302</cross_reference>(a).

1. Automobiles 108 — family purpose automobile — sufficiency of evidence In this action for the wrongful death of a guest passenger, allegations that the femme defendant kept and maintained an automobile as a family purpose automobile and that the male defendant was a member of her household failed for lack of supporting proof where plaintiff's evidence tended to show that, although the automobile was registered in her name, the femme defendant contributed neither to the purchase price nor to the maintenance of the automobile which was never in her possession and that defendant was not a member of her household. 2. Pleadings 36; Trial 26 — necessity for both pleadings and proof The court cannot submit a case to the jury on a particular theory unless such theory is supported by both pleadings and evidence, proof without allegation being as ineffective as allegation without proof. 3. Automobiles 105 — proof of registration — G.S. <cross_reference>20-71.1</cross_reference> — failure to allege agency In this action for the wrongful death of a guest passenger, proof of registration of the automobile in the name of the femme defendant is insufficient to take the case to the jury as to her under G.S. <cross_reference>20-71.1</cross_reference> where the complaint did not allege that defendant driver was the agent, servant or employee of the femme defendant, or that the driver acted or purported to act for her at any time in the use of the automobile.<page_number>Page 69</page_number> 4. Automobiles 105 — proof of registration — prima facie evidence of agency — necessity for allegation of agency Proof of registration of an automobile is prima facie evidence of ownership and that the agent was acting for the owner's benefit and in the scope of his employment, but there must be allegation of agency to make evidence of agency admissible against the principal. 5. Automobiles 51, 68 — oversized, unbalanced tire — speeding — sufficiency of evidence of negligence In this action for the wrongful death of a guest passenger in an automobile accident, plaintiff's evidence was sufficient to go to the jury on the issue of defendant driver's negligence where it tended to show that defendant placed an oversized, unbalanced tire on the right rear wheel of the automobile involved in the accident which would cause the vehicle, during road use, to shimmy and vibrate to the extent he should have known that speed would render the vehicle unsafe, that defendant was driving 60 mph in a 55 mph speed zone, and that the wheel broke down and the automobile wrecked. 6. Automobiles 23 — duty of driver to keep automobile properly equipped It is the duty of one operating a motor vehicle upon the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to the occupants or to other travelers. 7. Automobiles 30 — speeding — negligence Driving in excess of the lawful speed limit is negligence. 8. Sales 17, 22 — defective automobile — action against manufacturer — negligence — implied warranty — sufficiency of evidence In this action against an automobile manufacturer for the wrongful death of an automobile passenger in an accident which occurred when a wheel on the automobile failed, plaintiff's evidence is held sufficient to go to the jury on the issue of the manufacturer's negligence in manufacturing and placing on the market a defective automobile and on the issue of the manufacturer's breach of implied warranty, where it tends to show that the right rear wheel broke loose from the moving vehicle when the five lug nuts pulled through and ruptured the metal hub which attached the rim to the axle, that this wheel was on the vehicle at the time of its delivery to the manufacturer's sales agent, that the metal used in the structure of the damaged wheel was of the softest and weakest commercially available grade of steel and contained non-metallic impurities and slag inclusions which made the wheel less resistant to deformation, that the impurities could have been discovered by an inspection at the time of manufacture, and that the use of a stronger steel free of impurities or the use of a greater thickness of the type used could or might have prevented the loss of the wheel. 9. Sales 22 — negligence by manufacturer — selection of materials — failure to inspect A manufacturer's negligence may be found over an area quite as broad as his whole activity in preparing and selling the product or designing<page_number>Page 70</page_number> the article; it may arise by selecting materials for use in the manufacturing process or in failing to make reasonable inspection for hidden defects.

1. Appeal and Error 1, 3 — appeal from Court of Appeals to Supreme Court — substantial constitutional question — dismissal of appeal For failure of appellant to show that a substantial constitutional question is involved such as will entitle him to an appeal as a matter of right from a decision of the Court of Appeals pursuant to G.S. <cross_reference>7A-30</cross_reference>(1), the Supreme Court dismissed the appeal from a decision of the Court of Appeals. 2. Judgments 24, 31 — motion to set aside judgment for excusable neglect — questions of fact — jury trial A motion to set aside a former judgment on the grounds of mistake, surprise or excusable neglect is addressed to the court, and questions of fact arising on the motion are for the court and are not issues of fact for the jury.

1. Searches and Seizures 1; Criminal Law 84 — search and seizure incident to lawful arrest — admissibility of seized evidence A police officer may search the person of one whom he has lawfully arrested as an incident of such arrest and in the course of such search may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof, such article being properly introduced into evidence if otherwise competent. 2. Narcotics 1 — possession of LSD It is a felony to possess lysergic acid diethylamide (LSD) in any quantity for any purpose, in the absence of proof that the possession was lawful under the provisions of the Narcotic Drug Act. 3. Arrest and Bail 3 — arrest without warrant — likelihood of evasion of arrest — G.S. 15-41 The likelihood of evasion of arrest, frequently referred to as the likelihood of escape, by the person to be arrested is not a factor to be considered in determining the right of a police officer to arrest without a warrant when the offense, felony or misdemeanor, has been committed in the presence of the officer, or when the officer has reasonable ground to believe that the offense has been committed in his presence by the person to be arrested. G.S. 15-41. 4. Narcotics 1 — possession of LSD — continuing offense The felony of unlawful possession of lysergic acid diethylamide (LSD) is a continuing offense, committed wherever, whenever, and so long as a person has such substance in his possession, whatever the purpose of such possession. 5. Arrest and Bail 3 — arrest without warrant — possession of LSD — reasonable belief felony being committed in officer's presence In this prosecution for the unlawful possession of LSD, finding by the trial court that the officers who arrested defendant had reasonable ground to believe that defendant, at the time of his arrest, was in the possession of some quantity of LSD and, therefore, was presently committing a felony in the presence of the officers, is held supported by the State's uncontradicted evidence that one of the officers was advised by a confidential informer, who had on many previous occasions given the officer reliable information pertaining to narcotics, that defendant, whose dress was described to the officer, and a male companion were in the possession of and selling LSD in the vicinity of a certain restaurant, that the officers went to a nearby building and observed defendant and his companion in the restaurant parking lot acting in a manner consistent with the information the officers had received, that this occurred about midnight, as the restaurant was closing, in an area where the officers knew narcotics had been peddled before, that the<page_number>Page 99</page_number> officers saw defendant and his companion enter a nearby washerette, and that the officers entered the washerette and placed defendant and his companion under arrest without a warrant upon the charge of unlawful possession of LSD. 6. Arrest and Bail 3 — arrest without warrant — reasonable ground for belief — reliable hearsay information Reasonable ground for belief, which is an element of an officer's right to arrest without a warrant under G.S. 15-41(2) and under one of the situations provided for in G.S. 15-41(1), may be based upon information given to the officer by another, the source of such information being reasonably reliable, and it is immaterial that such hearsay information is not itself competent in evidence at the trial of the person arrested. 7. Searches and Seizures 1; Criminal Law 84 — Fourth Amendment to U.S. Constitution — applicability to states Provisions of the Fourth Amendment to the United States Constitution relating to searches and seizures, are incorporated into the Fourteenth Amendment and thus constitute limitations upon the power of state officers, as well as upon the power of Federal officers, to search and to seize articles in the possession of those suspected of criminal offenses and upon the admission of such articles into evidence in state courts. 8. Arrest and Bail 3; Criminal Law 84; Searches and Seizures 1 — validity of arrest and search without warrant — admissibility of seized evidence No right conferred upon defendant by the United States Constitution or by the Constitution or statutes of this State was violated in the arrest and search of defendant without a warrant, in the seizure of LSD pills found upon him or in the admission of those pills in evidence, where the officers who arrested defendant had reasonable ground to believe that defendant, at the time of his arrest, was committing a felony in their presence by the possession of LSD.

1. Municipal Corporations 12 — policeman — governmental function A police officer in the performance of his duties is engaged in a governmental function. 2. Municipal Corporations 12 — waiver of governmental immunity In the absence of statutory authority a municipality has no power to waive its governmental immunity. 3. Municipal Corporations 12 — waiver of governmental immunity — purchase of liability insurance In the absence of some affirmative action by a municipality, the purchase of motor vehicle liability insurance constitutes a waiver of its governmental immunity to the extent of the insurance policy so obtained. G.S. 60-191.1 [160-191.1]. 4. Statutes 5 — statutory construction The intent of the Legislature controls the interpretation of a statute, and in ascertaining this intent the courts should consider the<page_number>Page 173</page_number> language of the statute, the spirit of the Act and what it sought to accomplish, and the changes to be made and how these should be effected. 5. Evidence 3 — facts within common knowledge — renewal of liability insurance It is common knowledge that liability insurance must be renewed periodically and that a renewal policy often has slight modifications as to the vehicles or employees insured or other similar changes. 6. Municipal Corporations 12 — waiver of governmental immunity — renewal of liability insurance — prior resolution against waiver Municipality did not waive its governmental immunity for the negligent operation of a police car by its renewal in 1965 of a liability insurance policy on such vehicle, where the municipal governing body had passed in 1951, after the enactment of G.S. 160-191.1, a resolution against waiver of its governmental immunity, the municipality not being required to adopt a new resolution against waiver each time it renews a liability policy or acquires a new policy, since its resolution remains in effect until amended rescinded or repealed by the governing body.

1. Husband and Wife 14 — estate by entireties A title conveying real estate to a husband and his wife, nothing else appearing, creates an estate by the entireties. 2. Husband and Wife 15 — estate by entireties — condition of the premises Where a husband and wife own a home as tenants by the entireties, the husband is responsible for the condition of the premises. 3. Negligence 59 — injury to infant licensee — home of defendant — unmarked glass door — nonsuit In an action for injuries received by a five-year-old social guest when he walked or ran into a clear and unmarked glass door in defendant's home, plaintiff's evidence was insufficient to submit the issue of defendant's negligence to the jury, where it tended to show that plaintiff's mother, who was present, knew that the glass door had been closed and that plaintiff was walking towards it, but that she failed to take timely action to prevent the accident, and there was no evidence that defendant was aware of any danger to plaintiff. 4. Negligence 59 — injury to infant licensee — duty of parents Ordinarily, when the parent of an infant licensee is present with the infant and has full knowledge of the condition of the premises, the duty to warn of defective conditions falls on the parent. 5. Negligence 59 — duty of owner to infant — dangerous condition on premises — presence of parents Ordinarily, there is a duty on the owner to exercise ordinary care for protection of one of tender years, after his presence in a dangerous situation is or should have been known, but this duty of care does not apply when the infant is accompanied by his parent or by someone to whom his custody has been committed by the parent.

1. Constitutional Law 33 — self-incrimination The privilege against self-incrimination relates only to testimonial or communicative acts of the person seeking to exercise the privilege and does not apply to acts not communicative in nature. 2. Criminal Law 43 — admissibility of motion pictures Generally, the basic principles which govern the admissibility of photographs apply to motion pictures, and where they are relevant and have been properly authenticated, they are admissible in evidence. 3. Constitutional Law 33; Criminal Law 43 — self-incrimination — sound motion pictures of defendant Talking motion pictures of an accused in a criminal prosecution are not per se testimonial in nature, and where they are properly used to illustrate competent and relevant testimony of a witness, their use does not violate an accused's privilege against self-incrimination.<page_number>Page 254</page_number> 4. Criminal Law 43 — admissibility of illustrative motion pictures — slight variation The State cannot introduce substantive evidence or add to the testimony of a witness under the guise of using a moving picture to illustrate the testimony of the witness, but if the testimony of the witness is generally consistent with the illustrative moving picture, a slight variation only affects the credibility of the evidence. 5. Criminal Law 43, 76 — motion pictures containing in-custody statement — necessity for voir dire In this prosecution for operating a motor vehicle upon the public highways while under the influence of intoxicating liquor, defendant's automobile having wrecked and the driver having left the scene, the trial court erred in the admission, over defendant's objection, of sound motion pictures containing an in-custody statement by defendant which placed defendant at the scene of the wreck and destroyed his contention that his intoxication resulted from drinking subsequent to the wreck, where the trial court did not conduct a voir dire hearing in the absence of the jury to determine whether defendant's statement contained in the sound pictures was voluntarily and understandingly made after he had been fully advised of his constitutional rights. 6. Criminal Law 76 — in-custody statements — admissibility — necessity for voir dire hearing In-custody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised of his constitutional rights. 7. Criminal Law 43 — admissibility of illustrative motion pictures — duties of trial judge The trial judge is required to examine carefully into the authenticity, relevancy and competency of a motion picture offered to illustrate a witness' testimony, and if he finds it to be competent, to give the jury proper limiting instructions at the time it is introduced. 8. Criminal Law 43 — admission of motion picture — preview by defense counsel When a moving picture is offered into evidence, upon defendant's request the trial judge should allow defendant's counsel to preview it so that he can intelligently enter objections to those portions which he may deem uncorroborative or otherwise objectionable. 9. Criminal Law 43, 76 — sound motion picture containing incriminating statement by defendant — necessity for voir dire When a sound motion picture offered into evidence contains incriminating statements made by defendant from his knowledge of the offense, upon defendant's objection the trial judge must conduct a voir dire to determine the admissibility of the in-custody statements or admissions contained in the sound picture.<page_number>Page 255</page_number> 10. Criminal Law 43 — photographs and motion pictures of misdemeanants — G.S. <cross_reference>114-19</cross_reference> G.S. <cross_reference>114-19</cross_reference> does not prohibit the admission of photographs or motion pictures of a defendant charged with a misdemeanor, the statute being concerned with the compilation and preservation of statistics and records rather than the creation of a new rule of evidence.

1. Taxation 25; Administrative Law 2 — ad valorem taxes — undervaluation of rural realty — taxpayers' action — mandamus — exhaustion of administrative remedies In taxpayers' action seeking (1) a writ of mandamus to compel the county commissioners to revalue all real property in the county at its true value in money and (2) an injunction to restrain the commissioners from assessing real property according to an adopted schedule of values, the taxpayers contending that the schedule undervalued rural property in the county by at least fifty percent, the superior court has no authority to issue mandamus commanding the commissioners to revalue all real property in the county at its true value in money, since taxpayers must first exhaust the statutory administrative remedies in the county board of equalization and review and in the State Board of Assessments; thereafter the taxpayer may resort to the courts, but only to obtain review for errors of law or abuse of discretion by the Board. G.S. <cross_reference>105-327</cross_reference>, G.S. <cross_reference>105-329</cross_reference>, G.S. <cross_reference>105-275</cross_reference>(3). The decision in Stocks v. Thompson, <cross_reference>1 N.C. App. 201</cross_reference>, is expressly disapproved.<page_number>Page 317</page_number> 2. Mandamus 1 — clear legal right — enforcement Mandamus issues only to enforce a clear legal right. 3. Mandamus 2 — control of administrative discretion Mandamus will not lie to control the discretion vested in a governmental agency or official. 4. Mandamus 1 — when issued — alternative remedies Mandamus cannot be employed if other adequate means are available to correct the wrong for which redress is sought; e.g., when the legislature has provided an effective administrative remedy. 5. Taxation 25 — ad valorem taxes The assessment, listing, and collection of ad valorem taxes is governed by the Machinery Act, G.S. <cross_reference>105-271</cross_reference> et seq. 6. Statutes 5 — presumption that legislature acted with common sense It is presumed that the legislature acted in accordance with reason and common sense and that it did not intend an unjust or absurd result. 7. Taxation 25 — ad valorem tax — taxpayers' remedy — statutory agencies — exhaustion of remedies By virtue of the statutes which provide for appeals to the county board of equalization and to the State Board of Assessment, the legislature has provided adequate means whereby the individual taxpayer may contest not only the valuation which the county commissioners have placed upon his own property but the entire tax list or assessment roll, and the taxpayer must exhaust this administrative remedy before he can resort to the courts. The decision in Stocks v. Thompson, <cross_reference>1 N.C. App. 201</cross_reference>, is expressly disapproved.

1. Death 3 — wrongful death action — damages recoverable — pre-1969 law Prior to the 1969 Act rewriting the wrongful death statute, the measure of damages recoverable under the statute for the loss of a human life was the present value of the net pecuniary worth of the deceased based upon his life expectancy. G.S. 28-174; Chapter 215, Session Laws of 1969. 2. Death 3 — 1969 wrongful death statute — date of application — pending litigation The 1969 Act rewriting the wrongful death statute ex vi termini does not apply retroactively where the death occurred prior to April 14, 1969, and an action therefor was instituted on or before April 14, 1969, and was pending on that date. 3. Death 3 — wrongful death action — damages recoverable — 1969 Act — retroactive application The 1969 Act rewriting the wrongful death statute, which now permits the recovery of (1) expenses for care, treatment and hospitalization incident to the injury resulting in death, (2) compensation for pain and suffering of the decedent, (3) the reasonable funeral expenses of decedent, (4) punitive damages, (5) nominal damages, and (6) the present monetary value of decedent to persons entitled to receive the damages recovered, held to create a new right of action for wrongful death; and the Act does not have retroactive application to an action for wrongful death where the death occurred prior to April 14, 1969, the effective date of the Act. Chapter 215 of the Session Laws of 1969. 4. Statutes 8 — retroactive effect of statute — rule of construction Ordinarily, an intention to give a statute a retroactive operation will not be inferred; if it is doubtful whether the statute was to operate retrospectively, the doubt should be resolved against such operation. 5. Statutes 8 — retroactive effect of statutes — rule of construction Where the effect of giving a statute a retroactive operation would be to create a new liability in connection with a past transaction, or to invalidate a defense which was good when one statute was passed, or to render the statute or amendment unconstitutional, the statute will be regarded as operating prospectively only. 6. Statutes 8 — retroactive law defined — application to remedial or procedural statutes A retrospective law is one which creates a new obligation and imposes a new duty, or attaches a new disability, in respect of transactions or considerations already passed; hence, remedial statutes,<page_number>Page 330</page_number> or statutes relating to remedies or modes of procedure, do not come within the legal conception of a retrospective law. 7. Deaths 3; Statutes 8 — wrongful death action — 1969 Act — retroactive effect Where the 1969 Act rewriting the wrongful death statute related solely to changes in substantive rights and did not affect procedural requirements, a section of the Act providing that the Act is inapplicable to pending litigation will not be construed so as to have retroactive application to those deaths which occurred prior to the effective date of the Act but were not the subject of pending litigation. G.S. 28-174; Chapter 215, Session Laws of 1969.

1. Narcotics 4 — possession for purpose of sale — prima facie case — sufficiency of evidence In a prosecution for possession of barbiturates for the purpose of sale the State's evidence is held sufficient to be submitted to the jury under the provision of G.S. <cross_reference>90-113.2</cross_reference>(5) making the possession of 100 or more capsules prima facie evidence that such possession is for purpose of sale where the evidence tends to show that 205 capsules were found concealed in defendant's home, that an SBI chemist tested three or four of the capsules and found them to contain barbiturates, and that all of the capsules<page_number>Page 362</page_number> were of identical coloration and had the same code number "Lilly F65" impressed on them. 2. Evidence 8 — prima facie case A prima facie case does nothing more than carry the case to the jury for its determination. 3. Evidence 8; Criminal Law 32 — prima facie evidence Prima facie evidence is no more than sufficient evidence to establish the vital facts without further proof, if it satisfies the jury. 4. Criminal Law 103 — the trial — function of jury — proof of guilt In a criminal case the jury is at full liberty to acquit the defendant if it is not satisfied from all the evidence — including prima facie evidence — that defendant's guilt has been proven beyond a reasonable doubt. 5. Criminal Law 32 — inferences created by statute — effect The inference or conclusion which may be drawn from certain facts recited in a criminal statute may justify, but not compel, a verdict adverse to the defendant. 6. Criminal Law 32 — prima facie evidence — burden of proof Ordinarily, the establishment of prima facie evidence does not shift the burden of the issue from the State to the defendant. 7. Narcotics 1; Criminal Law 32 — prosecution — negativing of exceptions In a prosecution under Article 5A of G.S. Ch. 90, the Uniform Narcotic Drug Act, it is not necessary for the State to offer proof negativing any exception, excuse, proviso, or exemption contained in Article 5A. G.S. <cross_reference>90-113.4</cross_reference>. 8. Indictment and Warrant 9 — charge of crime An indictment must allege all the elements of the offense charged. 9. Constitutional Law 28 — defendant's right to be informed of crime A defendant is entitled to be informed of the accusation against him and to be tried accordingly. 10. Criminal Law 115 — conviction on lesser included offense A defendant indicted for a criminal offense may be convicted of the charged offense or of a lesser included offense when the greater offense charged in the bill contains all the essential elements of the lesser offense, all of which could be proved by proof of the allegations of fact contained in the indictment. G.S. <cross_reference>15-170</cross_reference>. 11. Criminal Law 115 — lesser included offense — necessity for instructions Where there is evidence of defendant's guilt of a lesser included offense, the court must charge thereon even when there is no specific prayer for the instruction; error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime.<page_number>Page 363</page_number> 12. Narcotics 1 — elements of the offenses — defenses — exemptions and exceptions The exceptions to and the exemptions from the provisions of G.S. 90 113.2(3) and G.S. <cross_reference>90-113.2</cross_reference>(5) are not constituent elements of the statutory crimes, but are matters which defendant may prove as defenses to the charges created by the respective statutes. 13. Narcotics 1 — felony prosecution — lesser included offense of possession for purpose of sale The misdemeanor of the unlawful possession of barbiturates, G.S. 90 113.2(3), is a lesser included offense of the felony of possession of barbiturates for the purpose of: sale, G.S. <cross_reference>90-113.2</cross_reference>(5). 14. Narcotics 4 — felony prosecution — evidence of misdemeanor — submission of issue In a prosecution on indictment charging defendant with the felony of possession of 205 capsules of a barbiturate for the purpose of sale, there was ample evidence to support a jury finding that defendant was guilty of the lesser included misdemeanor of unlawful possession of barbiturates, and the trial court erred in failing to submit the misdemeanor issue to the jury. 15. Indictment and Warrant 9 — charge of statutory crime — use of "and" Where a statute sets forth several ways by which the offense may be committed, the warrant or indictment correctly charges conjunctively.

1. Courts 3 — superior court — jurisdiction — actions for personal injuries The superior court is a court of general jurisdiction and has jurisdiction in all actions for personal injuries caused by negligence, except where its jurisdiction is divested by statute. Article IV, 2, N.C. Constitution; G.S. <cross_reference>7A-240</cross_reference>; G.S. <cross_reference>7A-242</cross_reference>. 2. Courts 3 — superior court — jurisdiction — workman's compensation By statute the superior court is divested of original jurisdiction of all actions which come within the provisions of the Workmen's Compensation Act. 3. Master and Servant 85 — jurisdiction of Industrial Commission The Industrial Commission is not a court of general jurisdiction but is an administrative board with quasi-judicial functions, and has only that jurisdiction conferred by statute, which jurisdiction may not be conferred or enlarged by act or consent of the parties. 4. Master and Servant 93 — workmen's compensation claim — determination of jurisdiction by Industrial Commission When the jurisdiction of the Industrial Commission is invoked by the filing of a workmen's compensation claim with it, the Commission's first order of business is to determine if the claim is properly before it and then proceed according to law. 5. Master and Servant 87 — workmen's compensation claim — admission of liability under Compensation Act — subsequent common-law tort action Where plaintiff had filed a workmen's compensation claim with the Industrial Compensation Act, plaintiff was not precluded from thereafter filing in the superior court a civil action for personal injuries, absent an unchallenged determination of jurisdiction by the Industrial Commission coupled with action resulting in recovery by plaintiff, or a challenge to its jurisdiction resulting in a final appellate holding establishing the Commission's jurisdiction. 6. Master and Servant 87; Pleadings 15; Courts 2 — action for personal injuries — plea in bar — workmen's compensation action — procedure by trial court Where defendant alleged as a plea in bar to plaintiff's action for personal injuries that plaintiff was an employee of defendant at the<page_number>Page 372</page_number> time she was injured and was limited to an action in the Industrial Commission under the Workmen's Compensation Act, the trial court, sitting without a jury by consent of the parties, followed the proper procedure in determining the plea in bar by hearing evidence offered by the parties, finding facts, reaching conclusions of law and thereupon entering judgment, since the court's determination of the plea in bar necessarily exercised the inherent judicial power of the court to determine its jurisdiction. 7. Appeal and Error 57 — review of findings of fact Findings of fact by a trial judge are conclusive when supported by competent evidence, even when there is a conflict in the evidence, but an exception to a finding of fact not supported by competent evidence must be sustained. 8. Master and Servant 87; Pleadings 15; Appeal and Error 57 — action for personal injures — plea in bar — workmen's compensation action — employee or independent contractor — sufficiency of evidence to support court's findings In this hearing upon defendant's plea in bar to plaintiff's action for personal injuries on the ground that plaintiff was an employee of defendant at the time she was injured and was limited to an action in the Industrial Commission under the Workmen's Compensation Act, the record evidence does not support the trial judge's findings of fact upon which he based his conclusions of law that plaintiff, who had contracted to work as a counselor and head of the saddle seat riding program at defendant's summer camp, was not an employee of defendant but was an independent contractor, and that the superior court had jurisdiction of the subject matter, and defendant's plea in bar was improperly overruled.

1. Criminal Law 146, 174 — constitutional questions — appeal of right — preserving question for review While an appeal lies of right to the Supreme Court from any decision of the Court of Appeals in a case which directly involves a substantial question arising under the Constitution of the United States or the Constitution of this State, in order to exercise this right, the appellant must follow appropriate procedures for raising and for preserving for review such constitutional question.<page_number>Page 405</page_number> 2. Criminal Law 169 — admission of incompetent evidence — failure to object Nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered, even though appellant asserts the evidence was obtained in violation of his rights under the Constitution of the United States or under the Constitution of this State. 3. Criminal Law 146, 174 — consideration of constitutional questions by Supreme Court — necessity for raising question in trial court and Court of Appeals The Supreme Court will not pass upon the merits of a litigant's contention that his constitutional right has been violated by a ruling or order of a lower court unless, at the time the alleged violation of the right occurred or was threatened by a proposed procedure, ruling or offer of evidence, or at the earliest opportunity thereafter, the litigant made an appropriate objection, exception or motion and thereafter preserved the constitutional question at each level of appellate review by an appropriate assignment of error and by argument in his brief. 4. Criminal Law 146, 174 — failure to raise search and seizure question below — defendant's status as tenant not known by defense counsel Assertion by defendant for the first time in his notice of appeal to the Supreme Court that he was a tenant of the room wherein he lay asleep and drunk when a ring was taken from his finger by a police officer, and that the constitutional question which he now attempts to raise with reference to the taking of the ring was not raised in the Court of Appeals because defendant's status as a tenant was only recently communicated to defendant's attorney, if true, does not exempt defendant from the rule that constitutional questions not properly raised in the trial court and the Court of Appeals will not be considered by the Supreme Court. 5. Criminal Law 146, 174 — failure to raise properly any constitutional question — dismissal of appeal Appeal is dismissed for failure of defendant to raise by appropriate and available procedures any substantial constitutional question for consideration of the Supreme Court, where defendant's notice of appeal and brief present only questions as to the constitutionality of the admission of a ring taken from defendant by police officers while defendant was asleep and drunk and the admission of testimony concerning defendant's statements and actions while in the company of two police officers in a police car, but the record shows that, in the trial court, defendant did not object to any testimony of any witness concerning the entry of police officers into the room where defendant was found, the taking of the ring from his finger, the identification of the ring, or any statement or action of the defendant while in the presence of police officers, the record shows no exception to any ruling of the trial court with reference to these matters, and upon appeal to the Court of Appeals, no ruling of the trial court relating to any of these matters was assigned as error.<page_number>Page 406</page_number>

1. Master and Servant 47, 58 — interpretation of G.S. <cross_reference>97-12</cross_reference> — suicide by employee — objective of Compensation Act An interpretation of G.S. <cross_reference>97-12</cross_reference> as prohibiting compensation to the dependents of an employee who intentionally killed himself is not compatible with the objective of the Workmen's Compensation Act, which is to provide for the injured workman, or his dependents in the event of his death, at the cost of the industry which he was serving. 2. Master and Servant 47 — construction of Compensation Act Benefits under the Workmen's Compensation Act should not be denied by a technical, narrow and strict construction. 3. Master and Servant 58 — workmen's compensation — suicide resulting from compensable accident — intervening act When suicide is the end result of an injury sustained in a compensable accident, it is an intervening act but not an intervening cause. 4. Master and Servant 58 — workmen's compensation — suicide resulting from compensable accident An employee who becomes mentally deranged and deprived of normal judgment as the result of a compensable accident and commits suicide in consequence thereof does not act wilfully within the meaning of G.S. <cross_reference>97-12</cross_reference>, and his death is compensable under the Compensation Act. 5. Master and Servant 97 — workmen's compensation — hearing by Commission under misapprehension of the law — remand for necessary finding of fact Where a claim for compensation for the death of an employee who committed suicide while totally disabled from a compensable accident was heard and reviewed in the Industrial Commission under the misapprehension that G.S. <cross_reference>97-12</cross_reference> prohibited compensation for the death of an employee who intentionally took his own life, even though his death was directly attributable to the injuries he received in the accident, the cause must be returned to the Industrial Commission for a specific finding whether the employee's suicide was attributable to an abnormal mental condition resulting from the compensable accident, no finding with respect thereto having been made. 6. Master and Servant 85 — workmen's compensation — rehearing by Industrial Commission The Industrial Commission, in a proper case, may grant a rehearing and hear additional evidence. 7. Master and Servant 93 — workmen's compensation — rulings upon objections to evidence — answers "for the record" Ordinarily, when objection is made to a question propounded to a witness in a workmen's compensation hearing, the proper procedure is<page_number>Page 418</page_number> for the commissioner to require counsel to state the grounds of objection and then to make his ruling; when a ruling is deferred and the witness is allowed to answer "for the record," the ruling should be entered in the transcript before the hearing commissioner makes his award. 8. Master and Servant 93 — workmen's compensation — suicide — causal relation to accident — hypothetical questions — expert testimony In this proceeding upon a claim for compensation for the death of an employee who committed suicide while totally disabled from a compensable accident, doctor's answers "for the record" to hypothetical questions seeking to establish a direct causal relation between the employee's accident and suicide were competent.

Frauds, Statute of 7; Boundaries 10; Vendor and Purchaser 3 — option contract — description or land Description in an option contract referring to the land to be conveyed as "a certain tract or parcel of land located in _____ Township, Guilford County, North Carolina, and described as follows: About Four Acres situated at the North-East Intersection of Mt. Hope Church Road and Interstate 85" is held insufficient to comply with the statute of frauds, and consequently the option is unenforceable. G.S. <cross_reference>22-2</cross_reference>.

1. Witnesses 1 — competency of witness — unsoundness of mind Unsoundness of mind does not per se render a witness incompetent. 2. Witnesses 1 — mental capacity of witness — discretionary ruling of court In determining the competency of a witness the trial judge is not bound by expert testimony and, notwithstanding the opinion evidence of a psychiatrist that the State's material witness could not give reliable testimony, the judge did not abuse his discretion in ruling the witness mentally competent to testify where (1) the judge observed and questioned the witness closely on voir dire, (2) the witness' subsequent testimony on the trial was clear and consistent on all material matters and fully corroborated by his family and law-enforcement officers, and (3) the psychiatrist had not seen the witness for more than a year and a half prior to trial. 3. Criminal Law 163 — assignment of error to charge — requisite An assignment of error must set out that portion of the charge which defendant contends is an erroneous statement of the law. 4. Criminal Law 63 — mental capacity of murderer — form of question to psychiatrist The trial court properly refused to permit a psychiatrist to state if he had an opinion whether the murderer knew right from wrong on the day of the homicide. 5. Criminal Law 5 — insanity of accused — exemption from criminal responsibility Insanity will exempt an accused from criminal responsibility only if, at the time he commits the act which would otherwise be illegal, he was incapable of knowing the nature and quality of his act or of distinguishing between right and wrong with relation thereto. 6. Criminal Law 163 — assignment of error on the failure to charge An assignment of error based on a failure to charge should set out the defendant's contention as to what the court should have charged. 7. Criminal Law 10, 168 — accessory before fact to murder — instructions on guilt of principal — harmless error In a prosecution of defendant as an accessory before the fact to the murder of her husband, in which prosecution the defendant was found guilty and given a sentence of life imprisonment, defendant was not prejudiced by trial court's failure to instruct the jury that if the murderer, by reason of insanity, was not guilty of the murder then the defendant could not be guilty as an accessory before the fact, since all the evidence tended to show that if the defendant was not an accessory then she was the principal felon and guilty of murder in the first degree.<page_number>Page 642</page_number> 8. Homicide 2 — parties to a murder Parties involved in the commission of a murder are either principals or accessories. 9. Criminal Law 9 — principals in the first and second degree A principal in the first degree is the person who actually perpetrates the deed either by his own hand or through an innocent agent; any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting, or advising in its commission, or is present for that purpose, is a principal in the second degree. 10. Criminal Law 9 — distinction between principals The distinction between principals in the first and second degrees is a distinction without a difference; both are principals and equally guilty. 11. Criminal Law 10 — accessory before the fact An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. 12. Criminal Law 10 — distinction between principal and accessory Ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed. 13. Criminal Law 9 — commission of crimes through innocent agent — status of absent party If a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime and is punishable accordingly, although he was not present at the time and place of the offense. 14. Homicide 2; Criminal Law 10 — accessory or principal — inciting mental defective to kill another Where one incites or employs a mental defective to kill another, the question whether the employer is guilty as a principal depends upon whether the defective was criminally responsible for his act under the McNaughten rule. 15. Homicide 31 — first degree murder — punishment The punishment specified in G.S. <cross_reference>14-17</cross_reference> for first-degree murder is either death or imprisonment for life. 16. Criminal Law 168 — review of the charge A charge must be construed contextually as a whole. 17. Homicide 2, 23; Criminal Law 10 — accessory to murder — instructions — causal relationship between principal and accessory In a prosecution of defendant as an accessory before the fact to the murder of her husband, the charge of the trial court, when construed as a whole, clearly instructed the jury that before they could convict the defendant they must find that her requests and demands that the principal murder her husband caused the principal to commit the crime.<page_number>Page 643</page_number> 18. Criminal Law 161 — assignments and exceptions Asserted error must be based on an appropriate exception and must be properly assigned. Rules of Practice in the Supreme Court No#. 19 and 21. 19. Criminal Law 161 — assignment of error — question presented — form and sufficiency An assignment of error must show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. 20. Criminal Law 161 — assignment of error — mere reference to record page A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. 21. Criminal Law 146 — Supreme Court — mandatory rules The rules of practice in the Supreme Court are mandatory and will be enforced. 22. Homicide 23; Criminal Law 10 — accessory to second-degree murder — instructions In a prosecution of defendant as an accessory before the fact to the murder of her husband, defendant was not prejudiced by an instruction which would permit the jury to return a verdict of guilty as an accessory to murder in the second degree. 23. Homicide 2; Criminal Law 10 — accessory to murder There can be an accessory before the fact to murder in the second degree. 24. Statutes 11 — repeal by implication Courts will not presume that the legislature intended a repeal by implication. 25. Statutes 5 — presumption that legislature acted with knowledge of existing law It is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law. 26. Homicide 31; Criminal Law 138 — accessory to murder — severity of punishment — lesser sentence for murderer Defendant was convicted as an accessory before the fact to the murder of her husband and was sentenced to life imprisonment; the actual murderer was sentenced to <cross_reference>20-30</cross_reference> years' imprisonment upon acceptance of his guilty plea to second-degree murder. Held: Defendant's objection that her sentence exceeded that of the murderer is without merit, since both sentences were authorized by statute. 27. Homicide 31 — accessory to murder — punishment The punishment for an accessory before the fact to murder in any degree is imprisonment for life.<page_number>Page 644</page_number> 28. Homicide 31; Constitutional Law 20, 36 — accessory to murder — life sentence — cruel and unusual punishment — equal protection of laws Imposition of a sentence of life imprisonment upon defendant's conviction of accessory before the fact to the murder of her husband — the actual murderer having received a sentence of <cross_reference>20-30</cross_reference> years' imprisonment upon acceptance of his guilty plea to second-degree murder — was not cruel and unusual punishment nor did it deny defendant the equal protection of the laws in violation of the Fourteenth Amendment. 29. Constitutional Law 20 — equal protection of the laws — quantum of punishment Equal protection of the laws is not denied by a statute prescribing the punishment to be inflicted on a person convicted of a crime unless it prescribes different punishment for the same acts committed under the same circumstances by persons in like situations. 30. Attorney and Client 5 — obligations of court-appointed counsel — compliance with rules of Supreme Court The rules of the Supreme Court are applicable to indigent defendants and their court-appointed counsel as well as to all others, and the obligations of court-appointed counsel to his client and to the court are no less than those of privately retained counsel. 31. Criminal Law 146; Attorney and Client 5 — infractions of Supreme Court rules — warning to court-appointed counsel The Supreme Court cannot be expected to continue the practice of indulging infractions of its rules by court-appointed counsel in criminal cases.

1. Criminal Law 22, 170 — arraignment — defendant's utterance of guilty — harmless effect Defendant was not prejudiced by his remark during the arraignment, "No, sir, I have to plead guilty, your Honor," which remark was made in response to the solicitor's request that the court enter a plea of not guilty for defendant, who was standing mute, where (1) the prospective jurors were not questioned as to whether they had heard defendant's remark and were biased thereby, (2) defendant did not challenge the array or exhaust his peremptory challenges, and (3) the trial court entered a plea of not guilty for the defendant. 2. Jury 7 — challenge to special venire — waiver Objection to a special venire is waived by failure to challenge the array. 3. Jury 7 — objection to individual jurors — waiver Defendant may not object to the acceptance of individual jurors when he has failed to exhaust his peremptory challenges. 4. Criminal Law 91; Constitutional Law 31 — motion for continuance — additional tests to determine defendant's pathological intoxication Motion by defense counsel for a continuance on the ground that there<page_number>Page 691</page_number> was a possibility the defendant was suffering from pathological — intoxication at the time he allegedly murdered the deceased and that therefore defendant should be administered a brain wave test following his ingestion of alcohol to determine if he was subject to such intoxication, held properly denied by the trial court in the exercise of its discretion and with no denial of defendant's constitutional rights, where (1) the motion was made on the opening day of a special term of court ordered for this trial, (2) a special venire of 150 jurors from another county had been summoned on motion of defendant, (3) defense counsel had learned of a psychiatrist's views on pathological intoxication at least one month prior to trial and could have ascertained at that time if defendant had been given a test following alcohol ingestion, and (4) a test result favorable to defendant would not have given him a valid defense to first degree murder in this State. 5. Criminal Law 91; Constitutional Law 31 — motion for continuance — discretionary and constitutional grounds A motion for continuance is ordinarily addressed to the sound discretion of the trial court, whose ruling thereon is not subject to review absent an abuse of discretion; but where the motion is based on a right guaranteed by the Federal and State Constitutions, the motion presents a question of law and the order of the court is reviewable. 6. Constitutional Law 31 — due process — time to procure evidence — confrontation Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. 7. Criminal Law 6 — legal excuses — voluntary drunkenness — crimes of specific intent The general rule that voluntary drunkenness is no legal excuse for crime does not obtain with respect to crimes where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature. 8. Homicide 4 — first degree murder — specific intent crime Murder in the first degree is a specific intent crime in that a specific intent to kill is a necessary ingredient of premeditation and deliberation. 9. Homicide 8 — defense of intoxication — first degree murder The fact that, after his intent to kill was deliberately and premeditately formed when sober, defendant voluntarily drank enough intoxicants to produce pathological intoxication and then executed his murderous intent, held not to constitute a valid defense to murder in the first degree in this State. 10. Criminal Law 166 — the brief — abandonment or assignments Assignments of error not discussed in defendant's brief are deemed abandoned. Rules of Practice in the Supreme Court No. 28. 11. Criminal Law 163 — broadside exception to charge An assignment of error based on an exception "to the entire charge<page_number>Page 692</page_number> of the court" is broadside and is ineffectual to bring up any part of the charge for review. 12. Criminal Law 163 — objection to statement or contentions — waiver Objections to the statement of contentions must ordinarily be brought to the attention of the court before verdict; otherwise they are deemed to have been waived. 13. Criminal Law 163 — broadside exception to charge An assignment of error that "the charge to the jury was not fair and impartial and was prejudicial to the defendant," held broadside and ineffectual. 14. Criminal Law 146 — mandatory rules of Supreme Court The rules of the Supreme Court are mandatory and will be enforced. 15. Criminal Law 161 — appeal as exception to judgment — irregularity in verdict — review Even though defendant in a first-degree murder prosecution did not except to the verdict or to the judgment of life imprisonment based thereon, his appeal was an exception to the judgment and to any other matter of law appearing on the face of the record; consequently, the Supreme Court could consider the irregularity in the verdict and determine that defendant had not been prejudiced thereby. 16. Criminal Law 135; Homicide 31 — punishment of life imprisonment — irregularity in verdict Although the jury's verdict of "recommendation of mercy" in a first-degree murder prosecution was not in accord with G.S. <cross_reference>14-17</cross_reference>, the trial court was correct in treating the verdict as if the jury had recommended that the punishment be imprisonment for life and in imposing a sentence of life imprisonment.