Volume 278 — North Carolina Reports

1. Rules of Civil Procedure 50 — ruling on directed verdict — findings of fact In resolving the question whether plaintiff's evidence was sufficient to go to the jury, it was not required or appropriate that the trial court make "Findings of Fact" and state "Conclusions of Law." 2. Rules of Civil Procedure 50 — motion for directed verdict — question presented The motion for a directed verdict under Rule 50 (a) presents substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit under [former] G.S. <cross_reference>1-183</cross_reference>, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. G.S. <cross_reference>1A-1</cross_reference>, Rule 50(a). 3. Rules of Civil Procedure 50 — motion for directed verdict — consideration of evidence On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable<page_number>Page 154</page_number> to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. 4. Rules of Civil Procedure 50 — motion for directed verdict — right to jury trial Defendant's motion for a directed verdict does not operate as a waiver of jury trial. 5. Rules of Civil Procedure 50 — directed verdict — role of the jury The granting of a motion for a directed verdict requires no perfunctory act from the jury. G.S. <cross_reference>1A-1</cross_reference>, Rule 50(a). 6. Rules of Civil Procedure 41, 50 — granting of directed verdict — right to judgment When a motion for a directed verdict under Rule 50(a) is granted, the defendant is entitled to judgment unless the court permits a voluntary dismissal of the action under Rule 41(a)(2). 7. Rules of Civil Procedure 41, 52 — motion for directed verdict — findings of fact Rule 41(b), which requires the court to make findings of fact when rendering judgment on the merits against the plaintiff, has no application on a motion for a directed verdict in a jury trial. G.S. <cross_reference>1A-1</cross_reference>, Rule 41(b) and Rule 52(a). 8. Contracts 32 — interference with contractual rights by third persons — employment by farm equipment dealership — manufacturer's threatened termination of franchise agreement A plaintiff who was discharged from employment as the general manager of a farm equipment dealership failed to offer sufficient evidence that the defendant farm equipment manufacturer had wrongfully and maliciously interfered with his contract of employment with the dealership, the defendant having disapproved of the plaintiff's employment and having threatened the immediate cancellation of the dealership franchise if plaintiff were not discharged, where (1) the defendant had a right under the franchise agreement to terminate the dealership upon a substantial change in its operation and management and (2) there were no special circumstances in the case that would impair the defendant's right of termination.

1. Trial 40; Rules of Civil Procedure 49 — issues submitted to jury It is the duty of the trial judge to submit to the jury such issues as are necessary to settle the material controversies raised in the pleadings. 2. Trial 40; Rules of Civil Procedure 49 — form and number of issues While G.S. <cross_reference>1A-1</cross_reference>, Rule 49(b), provides that issues shall be framed in concise and direct terms and that prolixity and confusion must be avoided by not having too many issues, the form and number of issues to be submitted is nevertheless a matter which rests in the sound<page_number>Page 182</page_number> discretion of the trial judge, assuming that the issue is raised by the pleadings, liberally construed. 3. Fraud 9; Duress; Cancellation of Instruments 3; Husband and Wife 4 — fraud, duress, undue influence — sufficiency of allegations Allegations that defendant husband induced plaintiff wife to transfer to him certain securities by fraudulent concealment and that he "coerced" and "extracted" her signature to the transfer by threats and abuse are sufficient to justify submission to the jury of questions of fraud, duress and undue influence. 4. Fraud 1; Duress; Cancellation of Instruments 2, 3 — fraud, duress, undue influence While fraud, duress and undue influence are related wrongs and, to some degree, overlap, they are not synonymous, and proof of facts sufficient to show one does not necessarily constitute proof of either of the other two. 5. Fraud 1; Duress; Cancellation of Instruments 2, 3 — fraud, duress, undue influence Fraud rests upon deception by misrepresentation or concealment; duress is the result of coercion and may exist even though the victim is fully aware of all facts material to his decision; undue influence may exist where there is no misrepresentation or concealment of a fact and the pressure applied to procure the victim's consent to the transaction falls short of duress. 6. Fraud 7; Cancellation of Instruments 2 — confidential relationship — duty of disclosure — constructive fraud Where a transferee of property stands in a confidential or fiduciary relationship to the transferor, it is the duty of the transferee to exercise the utmost good faith in the transaction and to disclose to the transferor all material facts relating thereto, and his failure to do so constitutes fraud. 7. Fraud 4, 7 — constructive fraud — intent to deceive Intent to deceive is not an essential element of constructive fraud resulting from breach of a fiduciary or confidential obligation. 8. Husband and Wife 1 — confidential relationship between spouses The relationship of husband and wife is the most confidential of all relationships, and transactions between them, to be valid, must be fair and reasonable. 9. Husband and Wife 4; Cancellation of Instruments 2 — confidential relationship — separation of spouses The fact that the transactions in question occurred after the husband's departure from the home, following the wife's disclosure of her own misconduct, does not show that the previously established confidential relationship between them had terminated so as to free the husband to deal with the wife as if they were strangers.<page_number>Page 183</page_number> 10. Cancellation of Instruments 2; Husband and Wife 4 — transfer Or wife's stock to husband — husband's duty to disclose stock value The husband had a clear duty to disclose to his estranged wife the value of stock transferred by her to the husband without consideration where, in addition to the confidential husband-wife relationship, the husband was the president of the corporation whose stock was being transferred and so had full information of its value, the husband knew that the wife had neither such information nor general understanding of corporate securities, the stock is unlisted and is closely held by the husband's family, and the wife was laboring under great emotional strain at the time the stock was transferred. 11. Duress — wrongful act or threat An essential element of duress is a wrongful act or threat. 12. Duress; Cancellation of Instruments 3 — duress — threat to institute legal proceedings While ordinarily it is not wrongful and, therefore, not duress for one to procure a transfer of property by stating in the negotiations therefor that, unless the transfer is made, he intends to institute or press legal proceedings to enforce a right which he believes in good faith that he has, the threat to institute criminal or civil legal proceedings which might be justifiable per se becomes wrongful if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings. 13. Duress; Cancellation of Instruments 3 — duress — action not wrongful per se — totality of circumstances Where a transaction is brought about by the use of threats to take action, not wrongful per se, the presence or absence of duress depends upon the totality of circumstances. 14. Duress; Cancellation of Instruments 3; Husband and Wife 4 — threat to obtain custody of children — coercion to obtain transfer of wife's property — duress An announcement by a husband, to whom the wife has confessed her adultery, that he intends to separate himself from her and to institute legal proceedings to obtain the sole custody of their children constitutes duress when made for the purpose of coercing her into transferring, without consideration, her individual property to the husband, the proposal being to leave the children in her custody if she make such transfer. 15. Cancellation of Instruments 3; Husband and Wife 4 — transfer of wife's property to husband — undue influence In an action to set aside the wife's transfer of corporate stock and debentures to her estranged husband, the evidence was sufficient to support a jury finding of undue influence, even if the jury found that there was no threat sufficient to constitute duress. 16. Cancellation of Instruments of submission of separate issues on fraud, duress and undue influence In an action to set aside the wife's transfer of corporate stock and debentures to her estranged husband, the trial court did not abuse<page_number>Page 184</page_number> its discretion in the submission to the jury of three separate issues on fraud, duress and undue influence, since an answer of any of the three in favor of plaintiff wife would have entitled her to relief, and the submission of those three possibilities to the jury in a single issue would have been confusing and would have necessitated an exceedingly complicated charge. 17. Cancellation of Instruments 6; Fraud 8 — transaction procured by fraud, duress or undue influence — ratification While a transaction procured by fraud, duress or undue influence may be ratified by the victim so as to preclude a subsequent suit to set aside the transaction, an act of the victim will not constitute ratification unless, at the time of such act, the victim had full knowledge of the facts and was then capable of acting freely. 18. Cancellation of Instruments 6 Fraud 8 — wife's transfer of securities to husband — fraud, duress undue influence — ratification — insufficiency of evidence In the wife's action to set aside a transfer of corporate securities to her estranged husband on grounds of fraud, duress and undue influence, defendant husband's evidence was insufficient to show ratification of the transaction by the wife when she signed a gift tax return prepared by his accountant which reported the transfer as a gift from the wife to the husband, where the husband's evidence disclosed that the wife signed the gift tax return believing she was under compulsion of law to do so and that her refusal to sign would be costly to her. 19. Cancellation of Instruments 11; Fraud 13 — failure to instruct on ratification In the wife's action to set aside on grounds of fraud, duress and undue influence the transfer to her estranged husband of her interest in corporate securities, there was no error prejudicial to defendant husband in the failure of the trial court to instruct the jury as to his contention that the wife had ratified the transaction where the evidence was insufficient to support a finding of ratification. G.S. <cross_reference>1A-1</cross_reference>, Rule 51(a). 20. Cancellation of Instruments 11; Fraud 13 — fraud, duress, under influence — instructions — contentions of defendant In the wife's action to set aside her transfer of corporate stock and debentures to her estranged husband, the trial court did not fail in its instructions to apply the facts as contended by defendant to the issues submitted to the jury as to whether the wife's endorsements of the securities were obtained by fraud, duress or undue influence.

1. Homicide 21 — first degree murder — motion to dismiss — question presented On motion to dismiss a charge of murder in the first degree, the trial court must determine the preliminary question whether the evidence in its light most favorable to the State is sufficient to permit the jury to make a legitimate inference and finding that defendant after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose.<page_number>Page 253</page_number> 2. Homicide 18 — premeditation and deliberation — proof Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation by deceased; (2) the conduct of defendant before and after the killing; and (3) the dealing of lethal blows after deceased has been felled and rendered helpless. 3. Homicide 4 — premeditation Premeditation is thought beforehand for some length of time, however short. 4. Homicide 4 — deliberation Deliberation means an intention to kill, executed in a cool state of blood, in furtherance of a fixed design or to accomplish some unlawful purpose. 5. Homicide 21 — first degree murder — sufficiency of evidence Evidence tending to show that the victim's death resulted from four blows to the head rendered by defendant with a board, that defendant bound the victim's hands and feet while he was still alive, and that defendant attempted to hide the body, with the other circumstances, was sufficient to sustain a verdict of guilty of murder in the first degree. 6. Criminal Law 74, 104 — State's introduction of confession — portions favorable to defendant Where the State introduces defendant's confession, defendant is entitled to claim the benefit of any part thereof which is favorable to him. 7. Homicide 28 — failure to instruct on self-defense Evidence that a dispute arose about payment for fuel oil delivered by deceased to defendant, that the deceased took steps toward defendant, and that defendant immediately seized a board and used it with deadly effect, held insufficient to justify an instruction that the jury could return a verdict of not guilty on the ground of self-defense, there being no evidence that defendant used the weapon to repel a felonious assault or to save himself from great bodily harm, or that he struck believing he was in danger. 8. Homicide 9 — self-defense — voluntary entry into fight — notice of withdrawal The right of self-defense is available only to a person who is without fault, and if one voluntarily, that is aggressively and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so. 9. Homicide 14 — intentional killing with deadly weapon — malice A presumption of malice arises from a killing which results from the intentional use of a deadly weapon.<page_number>Page 254</page_number>

1. Criminal Law 134, 136 — sentencing of defendant — commitment for psychiatric treatment prior to sentencing Action of the trial judge in accepting defendant's plea of guilty to burglary and assault and then committing defendant to a State hospital for psychiatric treatment prior to sentencing him, held not prejudicial to the defendant, although it would have been the better practice if the trial judge had sentenced the defendant and thereafter requested the prison authorities to give him necessary medical treatment. 2. Criminal Law 23 — voluntariness of guilty plea — sufficiency of findings of fact Where the evidence supports the finding that defendant entered a plea of guilty voluntarily and with full knowledge of his rights the acceptance of the plea will not be disturbed.<page_number>Page 260</page_number> 3. Criminal Law 161 — assignment of error — exceptions An assignment of error not supported by an exception is ineffectual and will not be considered on appeal. 4. Criminal Law 136 — mental capacity to receive sentence A defendant who had sufficient mental capacity to plead had sufficient mental capacity to receive sentence. 5. Criminal Law 167 — harmless error — new trial Harmless error is not sufficient to justify a new trial. 6. Courts 9 — superior court judge — overruling order of previous judge Ordinarily, one superior court judge may not modify, overrule, or change the judgment of another superior court judge previously made in the same action. 7. Criminal Law 23 — withdrawal of guilty plea — lack of duress In the absence of any evidence that defendant's plea of guilty before the first superior court judge was obtained through duress, second superior court judge properly denied defendant's motion that he be allowed to withdraw his guilty plea and to enter a plea of not guilty. 8. Criminal Law 5 — responsibility for crime — insanity The test for insanity which precludes responsibility for crime is the ability to distinguish the difference between right and wrong. 9. Criminal Law 29 — mental capacity to stand trial If a defendant is capable of understanding the nature and object of the proceedings against him and of conducting his defense in a rational manner, he is sane for the purpose of being tried, though on some other subject his mind may be deranged. 10. Criminal Law 29 — mental capacity to enter plea of guilty — sufficiency of evidence — defendant's sociopathic personality Although there was some evidence that the defendant was suffering from a sociopathic personality, the trial court correctly determined that defendant had mental capacity to enter a plea of guilty to three charges of first-degree burglary, where (1) the State's evidence showed that defendant had no specific mental disturbance and that he knew the difference from right and wrong and could assist in his own defense, and (2) the defendant's own witness testified that defendant was without psychosis and could determine right from wrong.

1. Witnesses 1; Rape 4 — rape prosecution — competency of seven-year-old victim to testify A seven-year-old victim of rape who stated that she knew the meaning of an oath and the consequences of a falsehood was competent to testify in the trial of her assailant. 2. Witnesses 1 — competency of witness — age of witness There is no age below which one is incompetent as a matter of law to testify. 3. Witnesses 1 — test of competency The test of competency is the capacity of the proposed witness to understand and to relate under oath the facts which will assist the jury in determining the truth with respect to the ultimate facts. 4. Witnesses 1 — determination of competency — discretion of court Competency is to be determined at the time the witness is called to testify and rests mainly, if not entirely, in the sound discretion of the trial court in the light of his examination and observation of the particular witness. 5. Witnesses 2 — competency of seven-year-old witness — conflicting testimony on voir dire The competency of a seven-year-old victim of rape to testify as a witness in the trial of her assailant was not affected by her conflicting testimony on the voir dire examination. 6. Criminal Law 104 — motion for nonsuit — sufficiency of the evidence Where taken in the light most favorable to the State, there is sufficient evidence from which a jury could find that the offense charged had been committed and that defendant committed it, nonsuit should be denied. 7. Rape 5 — rape of seven-year-old girl — sufficiency of evidence In a prosecution charging the fifteen-year-old defendant with the rape of a seven-year-old girl, the testimony of the girl, which was corroborated in part by her mother, her grandmother, and the examining physician, was sufficient to withstand defendant's motion for nonsuit. 8. Criminal Law 127 — arrest of judgment — defect on face of record A judgment in a criminal prosecution may be arrested only when some fatal error or defect appears on the face of the record proper.

1. Robbery 4 — armed robbery — sufficiency of evidence Evidence of defendant's guilt of armed robbery was sufficient to withstand his motion for a directed verdict of not guilty at the close of the State's evidence. 2. Criminal Law 170 — solicitor's reference to defendant's failure to testify Solicitor's improper reference to the failure of defendant to testify and to offer evidence in his defense was cured by the trial court's prompt and explicit instructions to the jury to ignore the reference.

1. Criminal Law 26 — plea of double jeopardy — order of mistrial in first trial — improper conduct of juror Where a defendant's first trial for homicide ended in mistrial without his consent, on the ground that a member of the jury had met with the defendant during a weekend recess, the defendant could not properly raise the plea of double jeopardy in his second trial for the same offense, the order of mistrial having been entered for the necessity of doing justice. 2. Criminal Law 26 — double jeopardy — burden of proof The burden is upon defendant to sustain his plea of double jeopardy. 3. Criminal Law 26; Constitutional Law 34 — double jeopardy — constitutional guarantee No person can be twice put in jeopardy of life or limb for the same offense. N.C. Constitution, Art. I, 17- U.S. Constitution, Amendment V.<page_number>Page 335</page_number> 4. Criminal Law 26 — when jeopardy attaches Jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn. 5. Criminal Law 26 — double jeopardy — mistrial in first trial A plea of former jeopardy will not prevail where the defendant's first trial had ended in mistrial for physical necessity or for necessity of doing justice. 6. Criminal Law 101 — order of mistrial — misconduct of juror who met with defendant Trial court's findings of fact tending to support the inference that a juror had met with defendant during a weekend recess in the trial, held sufficient to support an order of mistrial on the ground that a juror had "been tampered with and would be unable to render a fair and impartial verdict." 7. Criminal Law 158 — record on appeal — presumption as to evidence omitted In the absence of evidence in the record on appeal, it will be presumed that an order of mistrial was supported by sufficient evidence. 8. Criminal Law 159 — record on appeal — order of mistrial not signed in term time — harmless effect The fact that an order declaring a mistrial was not signed in term time did not constitute prejudicial error, since the order was available in ample time for the defendant to prepare his case on appeal. 9. Criminal Law 160 — additions to signed order of mistrial — harmless effect Various additions to a signed order of mistrial merely gave a meaning to a sentence which had evidently been clouded by an inadvertent omission and were not prejudicial to the defendant. 10. Criminal Law 101 — mistrial for misconduct of juror — examination of juror In ordering a mistrial, the trial court was not required to examine the very juror whose alleged misconduct in meeting with defendant created the necessity for the mistrial. 11. Criminal Law 43; Homicide 20 — admissibility of photographs — illustration of testimony relating to cause of death Notwithstanding the defendant's admission that the homicide victim had died from a gunshot wound, photographs of the victim were properly introduced to illustrate the testimony of the examining physicians that the fatal bullet had entered the right side of the victim's neck and had exited on the left.<page_number>Page 336</page_number> 12. Criminal Law 42; Homicide 20 — homicide prosecution — admissibility of bloodstained clothing The bloodstained skirt worn by a woman who was sitting next to a homicide victim when he was shot, held admissible in the trial of defendant for the homicide. 13. Criminal Law 88, 169; Witnesses 8 — impeachment of testimony given on cross-examination — prejudicial error When defendant's son denied on cross-examination that he had ever made the statement that his father was in a certain town establishing an alibi for a homicide, it was reversible error to allow the State to offer testimony contradicting the son's denial, such testimony being incompetent and tending greatly to prejudice the defendant's defense of alibi on his trial for the homicide.

1. Constitutional Law 32 — waiver of right to counsel — police lineup Defendant's statement to police officers, after he had been advised of his rights, that he did not need an attorney during a police identification lineup constituted a valid waiver of the right to counsel. 2. Criminal Law 66 — police lineup procedures — question of suggestiveness The fact that the participants in a police identification lineup were required three or four times to change their numbers and to shift their positions in the line did not render the lineup suggestive or conducive to mistaken identification.<page_number>Page 366</page_number> 3. Criminal Law 66 — police lineup — failure to make immediate identification The fact that the defendant was not identified in the first of two police identification lineups goes to the weight of the identification testimony rather than to its competency. 4. Searches and Seizures 1 — warrantless search of automobile at police station — lawfulness of search It was lawful for officers to make a warrantless search of defendant's automobile that had been taken to the police station following the defendant's arrest for armed robbery, where (1) the officers had probable cause to stop the defendant's car and arrest defendant, (2) a search of the car on the highway would have been impractical and perhaps dangerous, and (3) a shotgun barrel and a pistol barrel openly protruded from under the seat of the automobile. 5. Searches and Seizures 1 — lawfulness of warrantless seizure — case where search is unnecessary The constitutional guaranty against unlawful searches and seizures does not prohibit police officers from making a warrantless seizure in cases where a search is unnecessary. 6. Searches and Seizures 1 — seizure of concealed guns in automobile The warrantless seizure of pistols that were wholly concealed under an automobile seat was lawful where the pistols were discovered during the lawful removal of visible weapons from the car.

1. Automobiles 19 — right of way at intersections — T-intersection With reference to the right of way as between two vehicles approaching and entering an intersection, the law of this State makes no distinction between a "T" intersection and one at which the two highways cross each other completely. G.S. <cross_reference>20-38</cross_reference>; G.S. <cross_reference>20-155</cross_reference>; G.S. <cross_reference>20-158</cross_reference>. 2. Automobiles 19 — right of way at intersection — assumption by motorist having right of way Nothing else appearing, the driver of a vehicle having the right of way at an intersection is entitled to assume and to act, until the last moment, on the assumption that the driver of another vehicle approaching the intersection will recognize his right of way and will stop or reduce his speed sufficiently to permit him to pass through the intersection with safety. 3. Automobiles 19, 57 — accident at T-intersection — stop sign not in place — right of way of motorist on dominant highway In a wrongful death action resulting from a two-car collision at a T-intersection at which the stop sign had fallen down, the driver on the dominant highway, who knew that the intersecting servient street on his right was controlled by the stop sign but who was unaware that the sign had fallen on the ground, was not negligent in failing to yield the right of way to the motorist who entered the intersection from the servient street without stopping. 4. Rules of Civil Procedure 50 — motion for directed verdict — consideration of evidence On a motion by defendant for a directed verdict, the plaintiff's evidence must be taken in the light most favorable to him and he is<page_number>Page 439</page_number> entitled to the benefit of all reasonable inferences which may be drawn therefrom. <block_quote> 5. Automobiles 57 — accident at T-intersection — stop sign not in place — negligence of driver on servient street In a wrongful death action resulting from a two-car collision at a T-intersection at which the stop sign had fallen down, the plaintiff administrator, whose deceased was riding in the automobile on the dominant highway, offered sufficient evidence to support jury findings (1) that the defendant's driver approaching the intersection from the servient street could have seen 150 feet away, had she been keeping a proper lookout, that she was approaching the intersection and (2) that such driver was negligent in proceeding to the very verge of the intersection at 30 miles per hour.</block_quote> <block_quote> 6. Automobiles 57 — accident at T-intersection — stop sign not in place — negligence of owner-passenger In a wrongful death action resulting from a two-car collision at a T-intersection at which the stop sign had fallen down, the plaintiff, whose deceased was riding in the automobile on the dominant highway offered sufficient evidence to support a jury finding that the owner-passenger of the car on the servient street was familiar with the intersection and was negligent in failing to inform his agent-driver, who was unfamiliar with the street, that the intersection was ahead.</block_quote>

1. Eminent Domain 6 — sewer line easement — harmless error in admission of testimony Where (1) it had previously been adjudicated that the city acted in good faith and did not abuse its discretion in selecting a sewer route across respondents' property, and (2) the location of the sewer line was a fait accompli and the parties stipulated that the only issue before the judge, who heard the case without a jury, was what damages, if any, resulted to respondents' land from the sewer line as laid, the trial judge erred in allowing respondents to cross-examine the city engineer with reference to another possible location of the sewer line across their property- however, such error will not be held prejudicial where the record contains no suggestion that the judge penalized the city for failing to put the sewer line at another location. 2. Appeal and Error 57 — nonjury trial — presumption that judge disregarded incompetent evidence In a nonjury trial, in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.

1. Criminal Law 87 — leading questions — teenage daughters of the defendant The solicitor could ask leading questions of two teenage sisters whose father was on trial for the murder of his wife, where the sisters were reluctant to disclose the numerous physical clashes and fights that had taken place between their parents. 2. Criminal Law 99 — conduct of trial court — objection to court's angry tone of voice Defendant's contention that the trial judge prejudiced the defense by his angry tone of voice in ruling on defendant's objections to leading questions, held not supported by the record. 3. Criminal Law 158 — conclusiveness of case on appeal The Supreme Court could not consider defendant's affidavit that was not certified as a part of the case on appeal. 4. Homicide 21 — homicide of wife — sufficiency of evidence The State's evidence, which was circumstantial, was sufficient to support a jury finding of defendant's guilt in killing his wife, where there was testimony that (1) the couple had argued and fought over the past two years; (2) the defendant and his wife were arguing on the morning of the crime; (3) later in the day the defendant, in an incoherent state, told his sister that something had happened to his<page_number>Page 503</page_number> wife; (4) the wife was found dead in the kitchen of their home, her body lying in a pool of blood; (5) the defendant was the last person known to have been with his wife when she was alive (6) defendant, when arrested, had human blood stains on his clothes and a fresh scratch on his neck.

1. Courts 9; Constitutional Law 30 — order denying motion to dismiss — authority of another judge to set aside Judge of the superior court was without authority to overrule an order entered in the case by another superior court judge denying defendant's motion to dismiss the charges against him on the ground that he had not been afforded a speedy trial. 2. Constitutional Law 30 — speedy trial — delay in serving warrant or securing indictment After a complaint has been filed, an inordinate delay in serving the warrant or in securing an indictment will violate the right to a speedy trial.<page_number>Page 507</page_number> 3. Constitutional Law 30 — speedy trial — good faith delays The constitutional guarantee of a speedy trial does not preclude good faith delays which are reasonably necessary for the State to present its case, the proscription being against purposeful or oppressive delays which the State could have avoided by reasonable effort. 4. Constitutional Law 30 — speedy trial — delay in service of warrant and trial Defendant was not deprived of his right to a speedy trial by a delay of some fifteen months between the time the warrants were issued and the time they were served and defendant was brought to trial, where the cause of the delay was that some of the evidence necessary for trial was held by officers in another county and could not be released until a case against defendant in that county had been terminated by decision of the Court of Appeals. 5. Criminal Law 26 — when jeopardy attaches Jeopardy attaches when a defendant is placed on trial: (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case. 6. Criminal Law 23 — effect of guilty plea A plea of guilty, if accepted and entered by the court, is the equivalent of a connection. 7. Criminal Law 26 — former jeopardy — guilty pleas accepted by solicitor but rejected by court — subsequent trial Jeopardy did not attach when defendant, prior to the selection or empaneling of a jury, tendered pleas of guilty which were accepted by the solicitor but were rejected by the court because defendant refused to answer upon a "Transcript of Plea" that none of his constitutional rights had been violated. 8. Criminal Law 91 — continuance on court's own motion Where defendant's pleas of guilty were accepted by the solicitor but rejected by the court, the court did not abuse its discretion in continuing the cases on its own motion until the next session, notwithstanding the continuance was opposed by defendant.

1. Criminal Law 23 — acceptance of guilty plea — determination of defendant's sobriety Trial court was warranted in accepting femme defendant's plea of guilty to voluntary manslaughter, where defendant's affirmative answer to the trial court's question, "You're sober now?", cleared up any uncertainty stemming from her previous answer that she was under the influence of "little alcohol." 2. Criminal Law 23 — acceptance of guilty plea — sufficiency of findings Trial court's acceptance of a guilty plea will not be disturbed on appeal where there is plenary evidence that the plea was freely, voluntarily, and understandingly made. 3. Criminal Law 23 — plea of guilty — question presented on appeal A voluntary plea of guilty obviates any necessity of proof by the State, and an appeal therefrom presents for review only whether the indictment charges an offense punishable under the Constitution and law. 4. Criminal Law 23 — acceptance of guilty plea — admission of evidence — punishment — withdrawal of plea The trial court may allow a defendant to withdraw his guilty plea if the evidence presented on the question of punishment is insufficient to support a jury conviction of guilt. <block_quote> 5. Homicide 6 — voluntary manslaughter Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, and without premeditation or deliberation.</block_quote><page_number>Page 514</page_number> 6. Homicide 6 — manslaughter — heat of blood — adequate provocation One who kills a human being while under the influence of passion or in the heat of blood produced by adequate provocation is guilty of manslaughter. 7. Homicide 1 — unintentional killing of third party — liability of accused One who is engaged in an affray with another and unintentionally kills a third person shall be adjudged with reference to his intent and conduct towards his adversary. 8. Homicide 9 — plea of self-defense — applicable circumstances A person who aggressively and willingly enters into an affray without legal excuse or provocation cannot invoke the plea of self-defense. 9. Criminal Law 23 — guilty plea — homicide case — whether evidence justified withdrawal of the plea Evidence presented after femme defendant's guilty plea to the manslaughter of her father-in-law did not require the trial judge to advise defendant to withdraw her guilty plea, where the evidence allowed a reasonable inference that the homicide occurred when the wife willingly and without provocation entered into a second affray with her husband after he had voluntarily quit the first affray.