Volume 280 — North Carolina Reports

1. Criminal Law 104 — motion for nonsuit — consideration of defendant's evidence On motion for nonsuit in a criminal case, defendant's evidence, unless favorable to the State, is not to be taken into consideration; however, when not in conflict with the State's evidence, it may be used to explain or clarify that offered by the State. 2. Homicide 14 — burden of proof In any prosecution for a homicide the State must prove two things: (1) that the deceased died by virtue of a criminal act; and (2) that the act was committed by the defendant. 3. Homicide 21 — insufficiency of evidence of defendant's guilt In this prosecution of defendant for the murder of his wife, the State's evidence, while raising a strong suspicion of defendant's guilt, was insufficient for submission to the jury where it tended to show only that defendant's wife was murdered by an assassin who shot her in the back and in the head, that defendant had the opportunity to commit the crime, and that at the time his wife was killed defendant was drunk and intermittently violent.

1. Injunctions 3; Mandamus 1 — mandatory injunction — mandamus In a suit against a public official or board, there is no practical difference in the results to be obtained by the common-law remedy of mandamus and the equitable remedy of mandatory injunction. 2. Mandamus 1 — nature of the writ The writ of mandamus is an order from a court of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law. 3. Mandamus 1 — personal action The writ of mandamus is a personal action based upon allegation and proof that the defendant has neglected or refused to perform a personal duty which the plaintiff has a clear legal right to have him perform. 4. Mandamus 2 — discretionary duties In a case involving the exercise of discretion, mandamus lies to compel action by a public official but not to dictate his decision unless there has been a clear abuse of discretion. 5. Mandamus 1 — nature of the writ — willingness of defendant to perform duty — past or future wrong The courts of this State have no discretion to refuse the writ of mandamus when it is sought to enforce a clear legal right to which it is appropriate, but the writ will not issue to compel the performance of an act which a defendant shows a willingness to perform without coercion or to redress a past wrong or to prevent a future legal injury.<page_number>Page 90</page_number> 6. Mandamus 2 — application for warrant — refusal of magistrate to examine plaintiffs — magistrate's present readiness to examine plaintiffs Plaintiffs were not entitled to a writ of mandamus compelling defendant magistrate to examine plaintiffs as required by G.S. 15-19 upon their application for a warrant against two deputy sheriffs, where defendant had on one occasion refused to examine plaintiffs but announced in open court that if plaintiffs would reapply to him for a warrant he would examine them upon oath, and, while the trial judge held his decision in abeyance, defendant waited from three to five hours, ready, able and willing to examine plaintiffs pursuant to G.S. 15-19. 7. Mandamus 1 — nature of the writ The court will not issue the extraordinary writ of mandamus merely to enable a party to prove a point or to excoriate a public official for a mistake he stands ready to correct.

1. Criminal Law 117 — instructions — testimony of interested witnesses — designation of defendant and his mother as interested witnesses The trial court did not express an opinion upon the credibility of defendant and his mother in violation of G.S. <cross_reference>1-180</cross_reference> in designating defendant and his mother as interested witnesses during its instructions on the duty of the jury to scrutinize carefully the testimony of any interested witness.<page_number>Page 143</page_number> 2. Criminal Law 115 — error in failure to submit lesser degrees — verdict of guilty of crime charged Error in failing to submit the question of a defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged. 3. Criminal Law 115 — necessity for instructing on lesser degrees The necessity for instructing the jury as to an included crime of lesser degree than that charged arises only when there is evidence from which the jury could find that such included crime of lesser degree was committed. 4. Rape 6 — failure to submit lesser degrees In this rape prosecution, the trial court did not err in failing to submit the lesser included offenses of assault with intent to commit rape and assault on a female where all the evidence was to the effect that defendant had actual sexual intercourse with prosecutrix by force and against her will and defendant relied on the defense of alibi.

1. Criminal Law 104 — motion for nonsuit — consideration of evidence Motion to nonsuit requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. 2. Criminal Law 104 — motion for nonsuit — sufficiency of evidence When considering the motion for nonsuit, the court is not concerned with the weight of the testimony but only with its sufficiency to carry the case to the jury and sustain the indictment. <block_quote> 3. Burglary and Unlawful Breakings 5; Safecracking — breaking and entering — safecracking Evidence of defendants' guilt of safecracking and breaking and entering and larceny of goods valued at $295, held properly submitted to the jury.</block_quote> <block_quote> 4. Criminal Law 128, 129 — motions to set aside verdict and for new trial Defendants' motions to set aside the verdict and for a new trial are addressed to the discretion of the trial court, and refusal to grant them is not reviewable.</block_quote> <block_quote> 5. Criminal Law 127 — arrest of judgment Judgment may be arrested when and only when some fatal error or defect appears on the face of the record proper.</block_quote> <block_quote> 6. Criminal Law 127 — arrest of judgment — review on appeal The review of the denial of a motion in arrest of judgment is ordinarily limited to the question of whether error of law appears on the face of the record and whether the judgment is regular in form.</block_quote> <block_quote> 7. Criminal Law 146 — review on appeal — no error on the record When error does not appear on the face of the record the judgment will be affirmed.</block_quote><page_number>Page 160</page_number>

1. Automobiles 2 — revocation of license — two convictions of reckless driving within a 12-month period The statute authorizing the mandatory revocation of a driver's license upon two convictions of reckless driving within a twelve-month period was not repealed by the subsequently enacted statute authorizing the discretionary suspension of a driver's license upon one or more convictions of reckless driving and one or more convictions of speeding in excess of 55 mph and not more than 75 mph, within a twelve-month period. G.S. <cross_reference>20-16</cross_reference> (a)(9); G.S. <cross_reference>20-17</cross_reference> (6). 2. Statutes 5 — statutory construction The intent of the legislature controls the interpretation of a statute. 3. Statutes 5 — statutory construction — enactment of another statute on same subject A statute is not deemed to be repealed merely by the enactment of another statute on the same subject; the later statute on the same subject does not repeal the earlier if both can stand, or where they are cumulative, and the court will give effect to statutes covering the same subject matter where they are not absolutely irreconcilable and when no purpose of repeal is clearly indicated. 4. Statutes 5 — repeal by implication Repeal of statutes by implication is not favored in this jurisdiction.<page_number>Page 164</page_number> 5. Statutes 5 — statutory construction The language of the statute will be interpreted to avoid absurd consequences.

1. Criminal Law 28 — amnesty defined Amnesty is an exercise of the sovereign power by which immunity to prosecution is granted by wiping out the offense supposed to have been committed by a group or class of persons prior to their being brought to trial. 2. Criminal Law 28 — pleas in amnesty — authority of judge and solicitor Neither the solicitor nor the judge of the superior court has authority under the law of this State to grant amnesty. 3. Criminal Law 28, 30 — testimony by defendant in trial of accomplice — plea in amnesty The State was not precluded from prosecuting defendant by the fact that defendant had testified for the State in the first degree murder trial of his alleged accomplice, and defendant's "plea in amnesty" was properly denied, where defendant, through his attorney, had volunteered to testify for the State because he believed his accomplice was going to place the blame for a killing on him, and there is nothing in the record to suggest any promise by the solicitor or the private prosecutor that defendant would receive any benefit or reward by reason of his proposed testimony. 4. Criminal Law 22, 30 — trial for first degree murder — solicitor's agreement to accept guilty plea to second degree murder — repudiation of plea by defendant There is no merit to defendant's contention that the State violated an agreement with defendant by placing him on trial for first degree murder and that he should have been arraigned and tried only for second degree murder, where the record shows that defendant voluntarily testified for the State in the first degree murder trial of his accomplice, that the solicitor thereafter stated to defendant's counsel his willingness to accept pleas of guilty of second degree murder, kidnapping and armed robbery, that defendant, upon being first arraigned for kidnapping, repudiated a plea of guilty to that charge entered by his attorney and requested a jury trial, that defendant's counsel was allowed to withdraw and other counsel was appointed to represent him, and that defendant subsequently entered pleas of not guilty when arraigned upon the charges of first degree murder, kidnapping and armed robbery. 5. Constitutional Law 30; Criminal Law 135; Homicide 31 — capital crime — single verdict procedure — punishment discretion of jury Constitutional rights of a defendant on trial for the capital crime of first degree murder were not violated by the single verdict procedure or by the fact that the jury had unbridled discretion to determine whether to impose the death penalty. G.S. <cross_reference>14-17</cross_reference>.<page_number>Page 182</page_number> 6. Constitutional Law 36; Criminal Law 135; Homicide 31 — death penalty — cruel and unusual punishment The imposition of the death penalty for murder in the first degree does not constitute cruel and unusual punishment. 7. Criminal Law 92 — consolidation of charges involving different victims The trial court did not err in consolidating for trial charges against defendant for the first degree murder of one person and the kidnapping and armed robbery of another person, where the State contended that the three offenses occurred on the same day and as a part of a single course of action by defendant and his accomplice. 8. Constitutional Law 29; Criminal Law 135; Jury 7 — exclusion of jurors who would never return death penalty In this prosecution for the capital crime of first degree murder, the trial court did not err in allowing the State's challenges for cause to prospective jurors who stated on voir dire that, regardless of the evidence, he or she would not consider returning a verdict upon which the judge would have to impose a death sentence. 9. Criminal Law 101 — trial recesses — failure to instruct jury not to discuss case While it is the better practice for the court, at a recess of a trial, to instruct the jury that during such recess they are not to discuss the case among themselves or with any other person, no prejudicial error is shown in this case by the silence of the record on this point, there being no suggestion of any improper conduct by any juror or of any effort by any other person to communicate with a juror, and there being nothing in the record to indicate that defendant requested the court so to instruct the jury. 10. Criminal Law 5 — refusal of demand for psychiatric examination The trial court did not err in the refusal of defendant's demand, following selection and impaneling of the jury, for a psychiatric examination prior to the beginning of his trial, where there is nothing else in the record that suggests any contention by the defendant that he was not guilty by reason of insanity or that he was mentally incompetent to stand trial, and it is apparent that the demand for psychiatric examination was for the sole purpose of delay. 11. Criminal Law 51, 99 — ruling that witness is an expert — expression of opinion The trial court did not express an opinion as to the credibility of two witnesses for the State by ruling in the presence of the jury that one was an expert in the field of lifting fingerprints and that the other was an expert in the field of fingerprint comparisons. 12. Constitutional Law 32 — dissatisfaction with counsel — refusal to appoint another Where defendant, an indigent, advised the court at the beginning of the third day of the trial that he was not satisfied with his<page_number>Page 183</page_number> attorney, the trial court did not err in advising the court at the beginning right to conduct his own case without counsel, if he so desired, but that, having appointed counsel for him, the court would not appoint another. 13. Criminal Law 43; Homicide 20 — photographs of homicide victim's body It was not error to admit in evidence photographs of the body of a homicide victim as it lay where found, the court carefully instructing the jury that such photograph was allowed in evidence for the sole purpose of illustrating the testimony of the witnesses and not as substantive evidence. 14. Criminal Law 87 — allowance of leading questions The allowance of leading questions is within the discretion of the trial judge. 15. Criminal Law 60 — fingerprints of defendant's accomplice There was no error in the admission of evidence that the fingerprints of defendant's alleged accomplice, as well as those of defendant, were found in kidnap victim's automobile. 16. Criminal Law 75 — admission of in-custody statements No right of defendant under the U.S. Constitution was violated by the admission of in-custody statements made by defendant where the court found upon competent evidence that, prior to interrogation, defendant was given and understood the full Miranda warning, that he voluntarily and understandingly made statements without any promise, threat, reward or hope of reward and that, after being advised of his rights, he waived in writing his right to counsel at such interrogation and his right to remain silent. 17. Criminal Law 75 — capital case — interrogation without counsel — admission of defendant's statements — harmless error Even if the court in this capital case erred in the admission over objection of an in-custody statement made by defendant without the presence of counsel, such error was harmless where defendant, while represented by counsel, had testified to the same facts at the trial of his alleged accomplice, since the State could have introduced the transcript of defendant's testimony at the trial of his accomplice if the court had sustained the objection to the introduction of the in-custody statement. 18. Criminal Law 102 — jury argument — reference to defendant as thief and robber Private prosecutor's reference to defendant in his jury argument as a thief and robber was supported by defendant's own statement admitted in evidence. 19. Homicide 12 — indictment — homicide in perpetration of felony An indictment charging murder in the language of G.S. <cross_reference>15-144</cross_reference> is sufficient to support a conviction of first degree murder upon proof of a murder committed in the perpetration of the felony of robbery, notwithstanding the indictment contained no allegation that the murder was committed in the perpetration of a robbery.<page_number>Page 184</page_number> 20. Robbery 5 — armed robbery — failure to submit common law robbery The evidence in an armed robbery prosecution did not require the court to submit to the jury the lesser included offense of common law robbery.

1. Criminal Law 68, 79; Kidnapping 1 — statements in furtherance of common design — competency against all defendants — testimony placing kidnappers and victim together In this kidnapping prosecution, testimony that one of the defendants asked the victim "if he had any jumping cables and would help start their car," and also asked the victim if he could take his car, held competent against both defendants, notwithstanding the witness testified that she did not know which defendant made the statements, since defendants were jointly engaged in an illegal mission and the statements were made in furtherance of a common design, and since the testimony was relevant on the question of identity in that it placed the kidnappers and their victim together at the time and place in question. 2. Criminal Law 73, 81 — hearsay evidence — best evidence rule Testimony by a kidnap victim that he had told a police officer that he could recognize the kidnappers was not hearsay and did not violate the best evidence rule. 3. Kidnapping 1 — sufficiency of evidence The State's evidence supports the jury's verdict finding the defendant guilty of kidnapping and judgment pronounced thereon.

1. Rules of Civil Procedure 56 — summary judgment A motion for summary judgment should be allowed and judgment entered when the evidence reveals no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 2. Rules of Civil Procedure 56 — summary judgment — genuine and material issue An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action; an issue is "genuine" if it may be maintained by substantial evidence. 3. Rules of Civil Procedure 56 — summary judgment — burden of proof The party moving for summary judgment has the burden of clearly establishing the lack of a triable issue, and his papers are carefully scrutinized and those of the opposing party are indulgently regarded. 4. Municipal Corporations 4 — powers of a municipality A municipality has only such powers as the legislature confers upon it. 5. Municipal Corporations 21 — collection and disposal of garbage — governmental function — governmental immunity There can be no recovery for wrongful death or personal injury against a municipality for negligent acts of omission or commission by its agents or servants while engaged in the governmental function of collecting, removing and disposing of garbage within its territorial limits. 6. Municipal Corporations 21 — landfill operation — disposal of garbage — governmental function — governmental immunity A landfill operation by a municipality for the purpose of disposing of garbage collected within its territorial limits is a governmental function; consequently, governmental immunity would ordinarily preclude recovery from the municipality for wrongful death or personal injuries caused by the negligent acts or omissions of the municipality's agents or servants in operating the landfill.<page_number>Page 514</page_number> 7. Municipal Corporations 21 — city landfill — contract to dispose of county garbage — propriety function — governmental immunity A city was engaged in a proprietary function in operating a landfill for the disposal of garbage where the city had contracted with the county to dispose of county garbage for a fee, since (1) the city received "special corporate benefit" by use of the contract rather than the provisions of G.S. 160-234 for protection against accumulated garbage and refuse within a mile of its corporate limits, and (2) the revenues received by the city under its contract with the county amounted to more than incidental income; consequently, the city was not protected by the doctrine of governmental immunity in actions for wrongful death and personal injuries allegedly resulting from an explosion in a National Guard armory of accumulated methane gas which had been generated in and released from the city's landfill operation.

1. Municipal Corporations 32 — regulation of billiard and dance halls — abatement of nuisances A municipal corporation may by ordinance license and regulate the operation of pool and billiard rooms and dance halls, G.S. <cross_reference>160A-181</cross_reference>; subject to constitutional limitations, it may by ordinance define and abate nuisances. G.S. <cross_reference>160A-174</cross_reference>(a). 2. Evidence 1 — judicial notice — municipal ordinance The courts of this State will not take judicial notice of a municipal ordinance.<page_number>Page 652</page_number> 3. Constitutional Law 20 — equal protection — legislative classifications The equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found. 4. Constitutional Law 20; Municipal Corporations 32 — Sunday closing ordinances — equal protection Sunday closing legislation, like other legislation, may not discriminate arbitrarily either as between persons, or groups of persons, or as between activities which are prohibited and those which are permitted. 5. Constitutional Law 20 — equal protection — classifications The equal protection clauses do not require perfection in respect of classification, and in borderline cases, the legislative determination is entitled to great weight. 6. Constitutional Law 20; Municipal Corporations 32 — ordinance prohibiting operation of billiard hall on Sunday — violation of equal protection A municipal ordinance prohibiting the operation of a billiard hall "at any time on Sunday" violates the equal protection clauses of the United States and North Carolina Constitutions, since the operation of billiard halls on Sunday does not constitute an interference with the peace and quiet of that day in a manner or to an extent substantially different from the operation of other sporting or recreational facilities.

1. Criminal Law 169; Rape 10 — marital status of defendant — evidence admitted over objection — similar evidence admitted without objection In this prosecution for kidnapping, rape and crime against nature, the admission of testimony to the effect that defendant was married at the time of the alleged offenses was not prejudicial error where defendant thereafter fully explained, without objection, his marital status at the time of the alleged crimes, at the time of his arrest, and at the time of the trial. 2. Criminal Law 102, 128 — improper question by solicitor — motion for mistrial In this prosecution for kidnapping, rape and crime against nature wherein the prosecutrix testified that defendant gained entrance to her home when he appeared at the front door and asked if he could come in and see the layout of the home, the trial court did not err in denying defendant's motion for mistrial after the solicitor asked defendant if he had not tried to gain entrance into a woman's house<page_number>Page 666</page_number> in another county by telling her that he was interested in the house and wanted to see the inside thereof, where the court sustained defendant's objection to the question, excused the jury and instructed the solicitor not to ask further questions along that line, and instructed the jury not to consider the question but to strike it from their minds. 3. Criminal Law 46 — evidence of flight An accused's flight from a crime shortly after its commission is admissible as evidence of guilt. 4. Criminal Law 46 — flight 16 days after crimes — competency Evidence that defendant left his home 16 days after the alleged offenses of kidnapping, rape and crime against nature were committed was competent to be considered by the jury in connection with other circumstances in passing upon the question of guilt. 5. Criminal Law 46 — evidence of flight — instructions — defendant's contention In this prosecution for kidnapping, rape and crime against nature, the trial court correctly charged the jury on the effect of evidence of defendant's flight from this State and charged upon defendant's contention that he left the State to prevent his first wife from hang him picked up for nonsupport.

1. Rape 1 — offense defined Rape is the carnal knowledge of a female person by force and against her will. 2. Rape 1 — carnal knowledge defined Carnal knowledge is effected in law if there is the slightest penetration of the female sex organ by the male sex organ. 3. Rape 6 — failure to submit lesser included offenses The trial court in a rape prosecution did not err in failing to submit to the jury the lesser included offenses of assault with intent to commit rape and of assault on a female, where the State's evidence was positive as to each and every element of the crime of rape and there was no conflict in the evidence relating to any element thereof. G.S. <cross_reference>15-169</cross_reference>; G.S. <cross_reference>15-170</cross_reference>. 4. Criminal Law 112 — instructions on reasonable doubt Although the court is not required to define reasonable doubt absent a request, when it does define that term, the definition must be substantially correct. 5. Criminal Law 112 — instructions on presumption of innocence When the trial judge charges correctly on reasonable doubt, he is not required to charge on the presumption of innocence unless there be a special request for such charge. 6. Criminal Law 112 — instruction on reasonable doubt The trial court's instruction that a reasonable doubt is "doubt based on reason and common sense arising from the evidence in the case or the lack of evidence as to any fact necessary to constitute guilt" held sufficient.<page_number>Page 683</page_number> 7. Criminal Law 122 — jury's inquiry regarding parole The trial court in this rape prosecution properly declined to answer an inquiry by the jury foreman regarding defendant's eligibility for parole if given a life sentence and adequately instructed the jury that the question of parole was not a proper matter for their consideration.

1. Indictment and Warrant 5 — capital case — absence of endorsement on indictment When a bill of indictment in a capital case has been returned in open court by a majority of the grand jury as a true bill, and the action of the grand jury is duly recorded in the court's records, the lack of endorsement on the bill will not support a motion to quash. G.S. 15-141.<page_number>Page 690</page_number> 2. Indictment and Warrant 5 — return of indictment — intent of endorsement There is no merit to defendant's contention that the grand jury intended to return not a true bill when it inserted the letter "X" in an endorsement on the indictment stating "this bill found X A True Bill," where the record discloses that the grand jury in a body, seventeen members present and all assenting to the finding, returned as a true bill the indictment charging defendant with the offense of rape. 3. Witnesses 1 — rape trial — competency of six-year-old witness The trial court did not abuse its discretion in ruling, after an extensive voir dire hearing, that a six-year-old rape victim was competent to testify in the trial of her alleged assailant. 4. Rape 4 — bloodstained clothing worn by rape victim — admissibility The trial court did not err in the admission of bloodstained clothing worn by a six-year-old rape victim when she was taken to the hospital, since the clothing was relevant to the State's theory that the victim had been lacerated and torn during the process of being raped by defendant. 5. Rape 8 — victim under age of twelve Consent is not a defense where one is accused of abusing or carnally knowing a female child under the age of twelve years. G.S. <cross_reference>14-21</cross_reference>. 6. Rape 10 — six-year-old victim — evidence that sex matters discussed in her presence In a prosecution for the rape of a six-year-old child, evidence that the victim's father had discussed sexual matters in her presence was not competent as bearing upon consent, since consent is no defense or to impugn the credibility of the victim's testimony, or for any other purpose.

1. Wills 28 — effective date of will A will becomes effective at the testator's death unless a contrary intent appears from the language of the will. G.S. <cross_reference>31-41</cross_reference>. 2. Wills 28 — construction — intent of testator The dominant purpose in construing a will is to ascertain and give effect to the testator's intent, which must be found in the words testator used, in the setting in which he used them. 3. Wills 58 — specified number of shares of stock — accretions occurring between date of will and date of death Where testator owned 900 shares of the stock of a corporation at the time he executed a will bequeathing 10 shares of the stock to his employee "if he is still employed by said Company at the time of my death," and as a result of a recapitalization, the 900 shares were retired and 250,000 shares of new stock were issued to testator in lieu thereof prior to testator's death, it was held that the employee is entitled to receive under the will only 10 shares of the stock as it existed at testator's death without accretions resulting from the<page_number>Page 706</page_number> recapitalization, it being testator's intent that the legatee's right to the gift was to be determined at the time of the testator's death.