Volume 277 — North Carolina Reports

1. Criminal Law 180 — writ of coram nobis Although the writ of coram nobis has been supplanted by statute with reference to any person imprisoned, the writ remains as at common law and is available under our procedure to challenge the validity of a conviction by reason of matters extraneous to the record. G.S. <cross_reference>15-217</cross_reference> et seq.; G.S. <cross_reference>4-1</cross_reference>; N.C. Constitution, Art. IV, 10. 2. Criminal Law 180 — coram nobis — application to Supreme Court Since authority for issuance of the writ of coram nobis derives from the supervisory power of the Supreme Court as conferred by the Constitution, it is necessary that an application be made to the Supreme Court for permission to apply for the writ to the court in which the case was tried. 3. Criminal Law 180 — coram nobis — prima facie showing of substantiality Application for writ of coram nobis will be granted by the Supreme Court only upon a prima facie showing of substantiality. 4. Criminal Law 180 — coram nobis is no substitute for appeal Coram nobis is not a substitute for an appeal. 5. Criminal Law 180 — coram nobis — address to trial court The writ of coram nobis must be addressed to the court in which the defendant was tried.<page_number>Page 189</page_number> 6. Constitutional Law 32; Bastards 1 — willful failure to support illegitimate child — right to counsel The offense of willful failure to support an illegitimate child is not a serious misdemeanor requiring the appointment of counsel or an intelligent waiver thereof. U.S. Constitution, Amendments VI and XIV; G.S. <cross_reference>49-2</cross_reference>; G.S. <cross_reference>49-8</cross_reference>. 7. Bastards 1; Constitutional Law 32; Criminal Law 142 — willful failure to support illegitimate children — right to counsel — effect of support payments and subsequent prosecutions In a prosecution for willful failure to support an illegitimate child, the support payments that a convicted defendant may be required to make to his illegitimate children are not a part of the punishment and are therefore irrelevant to the question of defendant's right to counsel; the fact that defendant may be prosecuted more than once for the offense and sentenced to successive terms of six months' imprisonment is also irrelevant to the question of right to counsel. 8. Bastards 9 — willful failure to support bastard — punishment The authorized punishment for the willful failure or neglect to support an illegitimate child is limited at most to six months in prison. G.S. <cross_reference>49-8</cross_reference>. 9. Criminal Law 4; Constitutional Law 32 — determination of serious offense — punishment Whether an offense is petty or serious is measured, in both state and federal courts, by the punishment authorized by law for the particular offense in question. G.S. <cross_reference>7A-451</cross_reference>. 10. Constitutional Law 29, 32 — right to counsel — right to jury — petty misdemeanor Any crime whose maximum authorized punishment does not exceed six months in prison is a petty offense for which the offender may be tried without a jury and without the assistance of counsel.

1. Rape 8 — carnal knowledge of female under age of 12 — elements of offense The act of carnally knowing and abusing any female child under the age of 12 years is rape; neither force nor intent is an element of this offense. G.S. <cross_reference>14-21</cross_reference>. 2. Rape 8 — carnal knowledge defined The terms "carnal knowledge" and "sexual intercourse" are synonymous; there is carnal knowledge or sexual intercourse in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. 3. Rape 11 — rape of 11-year-old girl — sufficiency of evidence In a prosecution charging defendant with the carnal knowledge of an 11-year-old girl, the State's evidence was positive as to each and every element of the crime.<page_number>Page 198</page_number> 4. Criminal Law 75 — confession by 16-year-old boy — presence of officers In a prosecution charging a 16-year-old defendant with the rape of an 11-year-old girl, defendant's incriminating statements were not rendered inadmissible because of his youthful age; also, the mere fact that defendant made the statements in the presence of several police officers does not render the statements inadmissible, there being no evidence of mistreatment or coercion by the officers. 5. Rape 16 — rape of 11-year-old girl — instructions In a prosecution charging a 16-year-old defendant with the rape of an 11-year-old girl, the fact that the trial court submitted to the jury an issue of defendant's guilt of an assault upon a female by a male person over the age of eighteen years, held not prejudicial to the defendant, where all of the evidence tended to show the completed crime of rape and there was no evidence warranting a guilty verdict of assault upon a female by a male person. 6. Criminal Law 115 — instructions on lesser included offenses The statutes requiring the submission of defendant's guilt of a lesser included offense of the crime charged are applicable only when there is evidence tending to show that the defendant might be guilty of a lesser offense. G.S. <cross_reference>15-169</cross_reference>, G.S. <cross_reference>15-170</cross_reference>.

1. Weapons and Firearms — possession of machine or submachine gun — sufficiency of warrant — motion to quash A warrant charging that the defendant "did possess a machine gun or submachine gun or other like weapon, to wit: a Universal Caliber 30 M1 Carbine, Serial No. 135258, capable of firing 31 shots by the successive pulling of the trigger," is held sufficient to charge a violation of the offense making it unlawful for any person to possess machine guns, submachine guns, or other automatic or semiautomatic weapons, with the exception of such weapons which shoot less than 31 shots; the trial court in this case erred in granting defendant's motion to quash on the ground that the carbine in his possession could only fire 30 shots. G.S. <cross_reference>14-409</cross_reference>. 2. Statutes 5 — construction of words When the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a definite meaning is apparent or definitely indicated by the context. 3. Statutes 5 — ejusdem generis rule In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated. 4. Indictment and Warrant 14 — motion to quash A motion to quash can be properly allowed on the ground that the matter charged does not constitute a criminal offense. 5. Indictment and Warrant 14 — motion to quash — consideration of extraneous evidence In ruling on a motion to quash, the court is not permitted to consider extraneous evidence, and when the defect must be established by evidence aliunde the record, the motion must be denied.

1. Grand Jury 3 — composition of grand jury — systematic exclusion of Negroes — prima facie case. Negro defendants in a first-degree murder prosecution failed to make out a prima facie case that members of their race had been systematically excluded from the grand jury, where (1) the defendants merely showed that a disproportionate number of whites sat on a particular jury and that the tax lists from which the jury list was compiled carried racial designations and (2) the defendants produced no population figures, no evidence of disproportionate representation on past juries, and no evidence of actual discrimination. 2. Criminal Law 15 — change of venue — prejudicial pretrial publicity An article in a local newspaper stating that the defendants' first-degree murder prosecution was among the murder cases on the docket<page_number>Page 287</page_number> and that "this is the third or fourth time they have been up and not been tried," is held insufficient to support defendants' motion for change of venue on ground of prejudicial pretrial publicity. 3. Criminal Law 76, 95, 169 — joint trial of defendants — admission of statements implicating codefendant — harmless error rule In a joint trial of two defendants for first degree murder, it was error to admit statements from the confession of each defendant which implicated his codefendant, neither defendant having taken the stand in his own behalf; nevertheless, such error was not prejudicial where the objectionable statements were merely cumulative of other and overwhelming evidence of the defendants' guilt and could not have had a significant impact upon the average juror. 4. Constitutional Law 30; Criminal Law 167 — federal constitutional errors — prejudicial effect Not all federal constitutional errors are prejudicial. 5. Criminal Law 117 — scrutiny of accomplice's testimony — instructions Failure of the court to caution the jury to scrutinize the testimony of defendant's accomplice is not erroneous where the defendant made no request for such an instruction.

Criminal Law 84; Searches and Seizures 1 — search of car without warrant — seizure of burglary tools and stolen money — legality The warrantless seizure of burglary tools, stolen money and other articles from defendant's car was lawful, and the tools, money and other articles were properly admitted in the trial of defendant for breaking and entering, larceny and safecracking, where (1) defendant was stopped and placed under arrest for running a red light, (2) a passenger in defendant's car fled when officers approached the car, (3) burglary tools were found in an area where the fleeing passenger had dropped something, (4) the arresting officer observed burglary tools on the floorboard of defendant's car and placed defendant under arrest for illegal possession thereof, and (5) the stolen money and other articles admitted in evidence were thereafter discovered by a search of the glove compartment of defendant's car.

1. Constitutional Law 23 — "law of the land" defined The expression "the law of the land," as used in the North Carolina Constitution, has the same meaning as the expression "due process of law," Art. I, 19, of the North Carolina Constitution (as amended in 1970). 2. Constitutional Law 1, 23 — interpretation of the law of the land clause in State Constitution A decision of the Supreme Court of the United States construing the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, though persuasive, does not control the North Carolina Supreme Court's interpretation of the Law of the Land Clause in the Constitution of North Carolina. 3. Municipal Corporations 4, 29; Constitutional Law 13 — exercise of police power — demolition of substandard house — due process Action by a municipality, pursuant to its housing code, in ordering the demolition of a dwelling house without compensation to the owner thereof, and in charging the expense of demolition to the owner upon his failure to demolish the house himself, such action being based upon findings by the city building inspector that the house was unfit for human habitation and that the repairs necessary to bring the house into conformity with the housing code would cost 60% or more of the present value of the house, is held violative of the Law of the Land Clause of the State Constitution, where (1) the house could be repaired so as to comply with the housing code and (2) the owner was not afforded a reasonable opportunity to repair the house. Art. I, 19, of the revised N.C. Constitution (ratified in 1970); G.S. 160-182 et seq. 4. Constitutional Law 4 — standing to assert constitutional right — homeowner threatened with demolition order A homeowner who was faced with a municipal housing inspector's order giving him no alternative but to demolish his home that was declared uninhabitable by the municipality, or to pay the expense of a demolition by the municipality, was not required to propose an alternative remedy for the condition of the house before asserting his constitutional right in the courts. 5. Constitutional Law 11; Municipal Corporations 29 — police power — application to private property The police power of the State, which may be delegated to municipal corporations, extends to the prohibition of a use of private property<page_number>Page 354</page_number> which may reasonably be deemed to threaten the public health, safety, morals, or the general welfare; and, when necessary to safeguard such public interest, it may be exercised without payment of compensation to the owner, even though the property is thereby rendered substantially worthless.

1. Criminal Law 21 — delay in holding preliminary hearing In a prosecution charging defendant with felonious assault and with armed robbery, defendant's contention that he was denied a speedy trial in that he was detained in jail for 41 days without a preliminary hearing is without merit, where a major reason for the delay in holding the preliminary hearing was that the prosecuting witness spent 28 days in the hospital recovering from the assault. 2. Constitutional Law 30; Criminal Law 21 — right to speedy trial — delays in preliminary hearing Constitutional requirements with respect to a speedy trial apply to a preliminary hearing if unreasonable delay in conducting the hearing works a similar delay in the trial. 3. Criminal Law 66; Indictment and Warrant 6 — validity of arrest — contention of illegal photographic identification Defendant's contentions that his arrest was based on an illegal photographic identification by the prosecuting witness and that the evidence obtained as a result of the arrest was consequently inadmissible, held without merit, where there was evidence that, prior to the photographic identification, the prosecuting witness had ample opportunity to observe the defendant on the night of the crime and to learn his name, and where the officer had probable cause to arrest the defendant. G.S. 15-20. 4. Criminal Law 66 — "mug shot" photograph of defendant — admissibility A police department "mug shot" photograph of the defendant was properly admitted to illustrate testimony relating to the defendant's<page_number>Page 381</page_number> identity, where the words "Greensboro Police Department — 11/67" were deleted from the photograph prior to its admission. 5. Robbery 6; Criminal Law 26, 127 — arrest of judgment — conviction of two offenses arising out of the same occurrence A defendant who was convicted of armed robbery and assault with a deadly weapon is entitled to an arrest of judgment on the assault conviction when both offenses arose out of the same occurrence; defendant's contention that the rule should work in reverse so as to nullify the armed robbery conviction is not sustained. 6. Criminal Law 127 — arrest of judgment Judgment may be arrested in a criminal prosecution when — and only when — some fatal error or defect appears on the face of the record proper.

1. Municipal Corporations 30 — power to zone A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes, G.S. 160-172 et seq. 2. Municipal Corporations 30 — power to zone — statutory and constitutional limitations The authority to enact zoning ordinances is subject to the limitations imposed by the enabling statute and the Constitution forbidding arbitrary and unduly discriminatory interference with property rights. 3. Municipal Corporations 30 — zoning ordinance — adoption in accordance with enabling statutes A zoning ordinance or an amendment thereto which is not adopted in accordance with the enabling statutes is invalid and ineffective. 4. Municipal Corporations 30 — zoning ordinance — presumption of validity A municipal zoning ordinance is presumed to be valid, and the burden is on the complaining party to show it to be invalid. 5. Municipal Corporations 30 — zoning amendment — notice and public hearing There must be compliance with the statutory requirements of notice and public hearing in order to adopt or amend a zoning ordinance. 6. Municipal Corporations 30 — adoption of zoning ordinance with alteration of proposal advertised and heard — when additional hearing and notice is required Ordinarily, in order to adopt a zoning ordinance or amendment containing alterations substantially different (amounting to a new<page_number>Page 507</page_number> proposal) from those advertised and publicly heard, there must be additional notice and opportunity for additional hearing; however, no further notice or hearing is required after a properly advertised and properly conducted public hearing when the alteration of the initial proposal is insubstantial or when the initial notice is broad enough to indicate the possibility of substantial changes and the substantial changes made are of the same fundamental character as those contained in the notice and result from objections, debate and discussion at the initial public hearing. 7. Municipal Corporations 30 — substantial alteration of zoning proposal — changes favorable to complainants Alteration of the initial zoning proposal will not be deemed substantial when it results in changes favorable to the complaining parties. 8. Municipal Corporations 30 — amendment to zoning ordinance — alterations of original proposal made after public hearing — necessary for additional notice and hearing No additional notice or public hearing was required for the adoption of an amendment to a municipal zoning ordinance containing alterations of the original proposal made after a public hearing on the proposal had been held where (1) the public notice of the hearing was broad enough to give notice of substantial changes in the area in question, (2) all parties were given an opportunity to be heard at a public hearing, (3) the changes made in the proposed amendment did not alter the fundamental character of the proposal heard and discussed at the public hearing, (4) the alterations incorporated in the ordinance as finally adopted were proposed by the planning commission and the city council as a result of the public hearing, and (5) the alterations, which decreased the area designated for a shopping center and increased the area for apartments, were favorable to the complaining parties. 9. Municipal Corporations 30 — request for rezoning — authority of city council to rezone to requested classification or "higher classification" — ambiguity Provision of a municipal zoning ordinance giving the city council authority to change the existing classification of an area covered by a petition for rezoning "to the classification requested or to a higher classification or classifications without the necessity of withdrawal or modification of the petition," held not unconstitutionally vague and ambiguous in failing to state whether the changed classification must be higher than the requested classification, since the ordinance refers to action to be taken upon a requested change and the phrase "or to a higher classification" obviously refers to the "classification requested." 10. Municipal Corporations 30 — rezoning to higher classification than that requested — omission of adopted classification from code section ranking classifications City council's alteration of a portion of the area involved in a petition for rezoning from the requested classification of B-1SCD to R-20MF was to a "higher classification" than that requested in the petition, notwithstanding R-20MF was inadvertently omitted from the<page_number>Page 508</page_number> section of the zoning code which ranked zoning districts from the highest classification (most restrictive) to the lowest classification (least restrictive), another section of the zoning code having set forth the uses allowed and restrictions imposed under the R-20MR classification, and it being obvious that the R-20MF is less restrictive and thus a higher classification than B-1SCD. 11. Statutes 5 — legislative intent The heart of a statute is the intention of the law-making body, and an act will not be invalidated when the meaning can be gathered from the full context of the statute and other statutes related to the subject. 12. Municipal Corporations 30 — zoning amendment — necessity for three-fourths vote — G.S. 160-176 — rezoned property and buffer zone owned by same party In determining whether a favorable vote of three-fourths of the city council is required by G.S. 160-176 for the adoption of a zoning amendment, it makes no difference that petitioners own both the property to be rezoned and a buffer strip between such property and property owned by the persons who have protested the rezoning. 13. Municipal Corporations 30 — G.S. 160-176 — meaning of "immediately adjacent" and "extending one hundred feet therefrom" As used in G.S. 160-176, the words "immediately adjacent" mean "adjoining" or "abutting," and the words "extending one hundred feet therefrom" refer to the distance to be measured from the zoned property in establishing the ownership of the "area of lots" referred to in the statute. 14. Municipal Corporations 30 — conflict between zoning ordinance and enabling act In case of a conflict between a municipal zoning ordinance and the enabling act, the enabling act controls. 15. Municipal Corporations 30 — zoning ordinance amendment — necessity for favorable vote by three-fourths of city council — buffer zone between rezoned property and protestants' property In order for plaintiffs to invoke the provisions of G.S. 160-176 requiring a favorable vote of three-fourths of the city council to adopt a zoning amendment, they must own 20% or more of the area extending 100 feet from the property sought to be rezoned; consequently, where defendants left a 100-foot buffer zone surrounding the property which they sought to have rezoned, the property of plaintiffs was not "immediately adjacent" to the rezoned property and a three-fourths vote of the city council was not required. 16. Municipal Corporations 30 — creation of buffer zone to avoid three-fourths vote Even if a buffer zone was created for the sole purpose of avoiding the three-fourths vote required by G.S. 160-176, such action would be valid and effective to avoid such a vote.<page_number>Page 509</page_number>

1. Trial 33; Rules of Civil Procedure 51 — application of law to evidence — duty of court The trial court has the duty to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence. Rule of Civil Procedure No. 51(a), formerly G.S. <cross_reference>1-180</cross_reference>. 2. Divorce and Alimony 8, 16 — abandonment defined One spouse abandons the other, within the meaning of G.S. 5016.2(4), where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. 3. Divorce and Alimony 8, 16 — constructive abandonment One spouse may abandon the other without physically leaving the home; in that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. 4. Divorce and Alimony 8, 16 — constructive abandonment A constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a wilful failure, as by a wilful failure to provide adequate support. 5. Divorce and Alimony 8, 16 — constructive abandonment — defect due to illness or physical disability There is no wilful failure, and so no constructive abandonment where the defect of which the departing spouse complains is due to the illness or physical disability of the remaining spouse and his or her consequent inability to act. 6. Divorce and Alimony 8, 16 — alimony without divorce — defense of constructive abandonment In an action by a wife for alimony without divorce, G.S. <cross_reference>50-16.2</cross_reference> does not preclude the husband, who has left the home, from proving as a defense that it was actually the wife who separated herself from him, though she did not leave the home. 7. Divorce and Alimony 16 — defense of constructive abandonment — wife's failure due to physical condition — instructions In this action by the wife for alimony without divorce on the ground of abandonment wherein the husband asserted the failure of the wife to engage in sexual relations with him as justification for his departure from the home, the evidence required the trial court to instruct the jury that if the failure of the wife was not wilful but was due to her health and physical condition, such failure would not<page_number>Page 665</page_number> constitute a constructive abandonment of the husband by the wife and would not be justification for his departure from the home.

1. Homicide 24 — instructions — verdict of not guilty In this prosecution for second degree murder, the trial court did not err in its charge, when considered as a whole, with respect to the circumstances under which the jury might return a verdict of not guilty. 2. Criminal Law 168 — construction of charge as a whole A charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct. 3. Criminal Law 167 — harmless and prejudicial error Insubstantial technical errors which could not have affected the result of the trial will not be held prejudicial. 4. Criminal Law 168 — harmless error in instructions The judge's words may not be detached from the context and incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred. 5. Criminal Law 24, 32 — plea of not guilty — burden of proof Defendant's plea of not guilty puts in issue every essential element of the crime charged. 6. Homicide 14 — second degree murder or manslaughter — proximate cause To warrant defendant's conviction of second degree murder or manslaughter, the State must prove beyond a reasonable doubt that the victim's death proximately resulted from defendant's unlawful act. 7. Criminal Law 78 — stipulations A stipulation of fact is an adequate substitute for proof in both criminal and civil cases. 8. Criminal Law 78 — judicial admissions A judicial admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence; it prevents the party who makes it from introducing evidence to dispute it and relieves the opponent of the necessity of producing evidence to establish the admitted fact.<page_number>Page 681</page_number> 9. Criminal Law 78; Homicide 24 — testimony and stipulation constituting admission — cause of death — instructions In this homicide prosecution, defendant's testimony that he split the victim's head open with a stick of wood and defendant's stipulation that the victim's death was caused by a skull fracture resulting from a blow to the head constituted an admission that the head wound inflicted by defendant was fatal and removed the cause of death from contention; consequently, the trial court did not err in failing to charge specifically on the element of proximate cause, the court's general instructions on proximate cause being sufficient. 10. Robbery 1 — common law robbery denied Robbery at common law is the taking of money or goods of any value from the person of another or in his presence, against his will, by violence or putting him in fear, with the felonious intent to deprive the owner of his property permanently and to convert it to the use of the taker. 11. Criminal Law 176 — review of nonsuit motion — evidence introduced by defendant While defendant, by introducing evidence at the trial, waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence, his later exception to the denial of his motion for nonsuit made at the close of all the evidence draws into question the sufficiency of all the evidence to go to the jury. 12. Criminal Law 106 — nonsuit — evidence exculpates defendant When all the evidence, that of the State and that of defendant, is to the same effect and tends only to exculpate the defendant, his motion for nonsuit should be allowed, but if there is any evidence which reasonably tends to show guilt of the offense charged and from which a jury might legitimately convict, the nonsuit motion should be denied. 13. Robbery 4 — common law robbery of murder victim — formation of intent to take victim's money In this prosecution of defendant for second degree murder and common law robbery of the murder victim, there is no merit in defendant's contention that the charge of common law robbery should have been nonsuited for the reason that the evidence showed that defendant formed the intent to take decedent's money only after the assaults had been completed, the evidence as a whole, including conflicting statements by defendant that he struck deceased only in self-defense and also that the victim was on the ground unconscious when he split the victim's head with a pole and took his wallets because he needed money, being sufficient to support a legitimate conclusion by the jury that defendant formed the intent to rob his victim prior to the violent assault.

1. Robbery 1 — attempted armed robbery — element of the offense The main element of attempted armed robbery is the force or intimidation occasioned by the use or threatened use of firearms. 2. Robbery 1 — attempted armed robbery — description of the property In a prosecution for attempted armed robbery, it is not necessary or material to describe accurately or prove the particular identity or value of the property, provided the indictment shows that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value. 3. Robbery 2 — attempted armed robbery — indictment — description of property An indictment for attempted armed robbery which describes the property involved as "U.S. currency" alleges a sufficient description of the property. 4. Larceny 2; Robbery 1 — money as subject to larceny and robbery Money is recognized by law as property which may be the subject of larceny, and hence of robbery.<page_number>Page 698</page_number> 5. Criminal Law 162 — admission of evidence — waiver of objection When evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost. 6. Robbery 3; Criminal Law 162 — attempted armed robbery — wounds of victim — admissibility of evidence — waiver of objection In a prosecution for attempted armed robbery, testimony relating to the wounds received by the victim and to the victim's physical condition and appearance at the hospital is held admissible in evidence over the defendant's objection, where the defendant permitted similar testimony to be admitted without objection. 7. Criminal Law 168; Robbery 5 — instructions in attempted armed robbery prosecution — lapsus linguae In a prosecution for attempted armed robbery, trial court's inadvertent use of the word "intent" rather than "attempt" in portion of the charge defining "an attempt" was no more than a lapsus linguae and could not have misled the jury to defendant's prejudice. 8. Criminal Law 115 — instructions on lesser included offenses The trial court is not required to submit to the jury the question of a lesser offense, included in that charged in the indictment, where there is no evidence to support such a verdict. 9. Robbery 5 — attempted armed robbery prosecution — submission of possible verdicts The trial court in an attempted armed robbery prosecution was not required to submit an issue of defendant's guilt of attempted common law robbery, where neither the State nor the defendant offered any evidence indicating an intent to rob or steal without the use of the pistol.

1. Kidnapping 1 — failure of statute to define kidnapping The failure of G.S. <cross_reference>14-39</cross_reference> to define kidnapping does not render the statute vague or uncertain, the common law definition being incorporated in the statute by construction. 2. Kidnapping 1 — definition of "kidnap" At common law and as used in G.S. <cross_reference>14-39</cross_reference>, the word "kidnap" means the unlawful taking and carrying away of a person by force and against his will. 3. Kidnapping 1 — threats and intimidation amounting to force The use of actual physical force or violence is not essential to the commission of the offense of kidnapping, it being sufficient if there are threats and intimidation and appeals to the fear of the victim which are sufficient to put an ordinary prudent person in fear for his life or personal safety and to overcome the will of the victim and secure control of his person without his consent and against his will. 4. Indictment and Warrant 9 — charge of crime An indictment is sufficient if it charges the offense in a plain, intelligible, and explicit manner and contains averments sufficient to enable the court to proceed to judgment and to bar a subsequent prosecution for the same offense. 5. Indictment and Warrant 9 — charge in language of statute An indictment for a statutory offense is sufficient, as a general rule, when it charges the offense in the language of the statute. 6. Kidnapping 1 — sufficiency of indictment Bill of indictment charging that defendant "did unlawfully, wilfully, feloniously and forcibly kidnap" a named person, held sufficient to withstand a motion to quash, since the word "kidnap" has a definite legal meaning. 7. Criminal Law 88 — cross-examination for impeachment of witnesses' credibility In this prosecution for the kidnapping of the driver of a prison bus during an escape of prisoners from the bus, cross-examination of defendant's witnesses, prisoners who had participated in the escape, as to how many times they had talked with each other about the case, who planned the escape, and whether one witness had told police he knew nothing about the matter, held competent for the purpose of impeaching the credibility of the witnesses. 8. Criminal Law 88 — scope of cross-examination In North Carolina the scope of inquiry on cross-examination is not confined to those matters testified to on direct examination, but<page_number>Page 705</page_number> questions are permissible to impeach, diminish or impair the credit of the witness. 9. Criminal Law 88 — interest or credibility of witness Questions and answers which directly challenge the interest or credibility of a witness are competent. 10. Criminal Law 88 — cross-examination to show bias Both the State and the defendant have a right to cross-examine witness to show his bias or interest. 11. Criminal Law 89 — impeachment — prior inconsistent statements Prior inconsistent statements of a witness are always admissible for the purpose of impeachment. 12. Kidnapping 1 — distance traveled The distance traveled is not material in a kidnapping prosecution. 13. Kidnapping 1 — prison bus driver — sufficiency of evidence to support verdict Evidence that defendant prisoner held a rifle pointed at the prosecuting witness, who had been driving a bus loaded with prisoners, while another prisoner drove the bus for a distance of one to one and one-half miles, and that the prosecuting witness wanted to get off the bus but was refused permission to do so by defendant, held sufficient to support a verdict finding defendant guilty of kidnapping.

1. Courts 11.1 — personal injury action — jurisdiction of district court The district court division was the proper division to try a personal injury action for recovery of damages in the amount of $5000. 2. Courts 11.1; Rules of Civil Procedure 60 — jurisdiction of personal injury action — judgment dismissing action for failure to prosecute — relief from judgment Although the plaintiff's personal injury action for $5000 was improperly calendared for trial in the superior court division instead of the district court division to which it had been allocated, a judgment by a superior court judge dismissing the action for failure of plaintiff to appear and prosecute the action was not void- plaintiff's relief, if any, from the judgment of dismissal is by a motion in the cause and not by appeal. G.S. <cross_reference>1A-1</cross_reference>, Rule 60(b); G.S. <cross_reference>7A-240</cross_reference>; G.S. <cross_reference>7A-242</cross_reference>- G.S. <cross_reference>7A-243</cross_reference>. 3. Appeal and Error 14 — dismissal of appeal The Court of Appeals properly dismissed an appeal when (1) the appeal was not taken within ten days of the rendition of the judgment<page_number>Page 721</page_number> and (2) the plaintiff failed to give notice to defendants. G.S. <cross_reference>1-279</cross_reference>; G.S. <cross_reference>1-280</cross_reference>.