Volume 281 — North Carolina Reports

1. Evidence 31 — best evidence rule Under the best evidence rule, a writing is the best evidence of its contents, and the writing itself must ordinarily be produced unless its nonproduction is excused; however, this rule applies only where the contents or terms of the writing are in question.<page_number>Page 21</page_number> 2. Evidence 31 — best evidence rule — personal observations The best evidence rule did not prohibit a courtroom clerk from testifying as to his personal observations regarding the racial composition of jury venires during a specific period of time simply because the clerk had made a record of his observations. 3. Criminal Law 162 — objection to evidence — specified ground — appellate review When an objection to evidence is made on a specific ground, the competency of the evidence will be determined on appeal solely on the basis of the grounds specified. 4. Criminal Law 175 — findings of fact — conclusions of law — appellate review While the trial court's findings of fact will not be disturbed on appeal if there is competent evidence to support them, the trial court's conclusions of law are subject to review, and where rulings are made under a misapprehension of the law, the order of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require. 5. Constitutional Law 29; Grand Jury 3; Jury 7 — systematic exclusion of Negroes If the conviction of a Negro is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race, the conviction cannot stand. 6. Constitutional Law 29; Jury 7 — racial discrimination in jury — burden of proof If a motion to quash alleges racial discrimination in the composition of the jury, the burden is upon defendant to establish it; but once a prima facie case of racial discrimination is established, the burden of going forward with rebuttal evidence is upon the State. 7. Constitutional Law 29; Grand Jury 3; Jury 7 — racial composition of jury A defendant is not entitled to demand a proportionate number of his race on the jury which tries him or on the venire from which petit jurors are drawn. 8. Constitutional Law 29; Grand Jury 3; Jury 7 — racial composition of jury — officials' denial of discrimination The mere denial by officials charged with the duty of listing and summoning jurors that there was no intentional, arbitrary or systematic discrimination on the ground of race is not sufficient to overcome a prima facie case. 9. Constitutional Law 29; Grand Jury 3; Jury 7 — jury source — tax list A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county, and the jury commission is not limited to the sources specifically designated by the statute.<page_number>Page 22</page_number> 10. Constitutional Law 29; Grand Jury 3; Jury 7 — grand and petit juries — racial composition — systematic exclusion A person has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury; he does have a right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. 11. Constitutional Law 29; Jury 7 — systematic exclusion of Negroes — insufficiency of evidence Defendants' evidence that the black adult population of the county amounted to 20% of the total county population and that during the biennium beginning January 1970 approximately 10% of the petit jurors appearing for service in the courtroom were Negro, held insufficient to make out a prima facie case of racial discrimination. 12. Constitutional Law 29; Jury 7 — systematic exclusion of Negroes — prima facie case — absence of necessity for State to go forward Even if defendants made out a prima facie case of racial discrimination on the theory of underrepresentation of Negroes on the juries, defendants' own evidence relieved the State of the burden of going forward with the evidence where defendants exhausted the State's sources of information and their evidence shows that any disparity in racial representation on juries of the county did not result from discrimination in the preparation and drawing of the jury list, the State not being required to repetitiously present evidence already elicited by defendants. 13. Constitutional Law 29; Grand Jury 3; Jury 7 — address on jury list card — black or white neighborhood — opportunity for discrimination Testimony by jury commissioners that, in some instances, they could determine from the address shown on the raw jury list card that the person named thereon lived in a predominantly black or predominantly white neighborhood did not show an "opportunity for discrimination" sufficient to make out a prima facie case of racial discrimination. 14. Constitutional Law 29; Grand Jury 3; Jury 7 — jury list — absence of persons 18 to 21 years old The absence from the jury list of the names of persons between the ages of 18 and 21 during the period from 21 July 1971, the effective date of the amendment of G.S. <cross_reference>9-3</cross_reference> lowering the age requirement for jurors from 21 years to 18 years, and 21 September 1971, the date of defendants' trial, is not unreasonable and does not constitute systematic exclusion of this age group from jury service. 15. Constitutional Law 29; Grand Jury 3; Jury 7 — selection and drawing of jurors — constitutionality of statutes The North Carolina statutory plan for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group. G.S. Ch. 9, Art. I.<page_number>Page 23</page_number>

1. Criminal Law 106 — nonsuit — necessity for corroboration of confession A felony conviction may not be based upon or sustained by a naked extrajudicial confession of guilt uncorroborated by any other evidence. 2. Homicide 21 — murder during robbery — evidence aliunde confession — sufficiency In this prosecution for first degree murder there was ample evidence aliunde defendant's confession to sustain a finding by the jury that defendant shot and killed deceased while robbing him, notwithstanding defendant introduced evidence which tended to contradict the testimony for the State, where the State presented evidence tending to show that the owner of a grocery store was shot to death in his store, that while 100 to 150 feet from the store defendant asked another person who ran the store and if anyone was in the store with the owner, that at that time defendant had a .32 caliber pistol, that a witness saw defendant go into the store when the owner was in the store alone, heard a noise like a pistol shot, and saw defendant run out of the store, that the owner was found lying on the floor of the store and thereafter died as the result of a gunshot wound in the chest, that when an officer arrived at the scene, the cash register was empty except for nickels and pennies, that shortly after the shooting defendant was seen with considerable money in his possession and that defendant later told a friend that he killed "the dude" and hid the money in the woods. 3. Homicide 4 — felony-murder rule — premeditation and deliberation When a murder is committed in the perpetration or attempt to perpetrate any robbery, burglary or other felony, G.S. <cross_reference>14-17</cross_reference> declares it murder in the first degree; in those instances the law presumes premeditation and deliberation and the State is not put to further proof of either. 4. Criminal Law 99, 170; Homicide 15 — homicide during robbery — ownership of stolen property — questions by court In a prosecution for a homicide committed in the perpetration of a robbery, defendant was not prejudiced by the trial court's inquiry as to the ownership of the store where the crime occurred and the merchandise therein, proof of such ownership not being essential to establish the robbery. 5. Criminal Law 34; Homicide 15 — confession — intent to commit other crimes — competency In a prosecution for a homicide committed in the perpetration of a robbery, a portion of defendant's confession which related to<page_number>Page 82</page_number> his intent to commit other robberies prior to the commission of the crime for which he is charged, held competent to show defendant's intent to commit a robbery, to establish the chain of circumstances leading up to the matter on trial, and to properly develop the evidence in the case at bar. 6. Criminal Law 169 — objection — similar testimony admitted without objection The benefit of an objection is lost where the same evidence had twice been admitted without objection. 7. Criminal Law 51 — caliber of bullet — expert testimony — absence of finding by court The trial court did not err in allowing a police officer to give an opinion as to the caliber of the bullet removed from the body of the deceased where there was ample evidence to support a finding that the officer was an expert in ballistics, notwithstanding the court did not specifically find that the officer was an expert, since it will be presumed from the admission of the testimony that the court found the officer to be an expert. 8. Criminal Law 166 — abandonment of assignments of error Assignments of error not discussed in the brief are deemed abandoned. Supreme Court Rule 28.

1. Kidnapping 1 — definition of the crime Kidnapping is the unlawful taking and carrying away of a person by force and against his will; the distance the victim is carried is not material. G.S. <cross_reference>14-39</cross_reference>; G.S. <cross_reference>4-1</cross_reference>. 2. Kidnapping 1 — fraud — threats and intimidation In the kidnapping of a person the law considers the use of fraud as synonymous with force, and threats and intimidation are equivalent to the actual use of force or violence. 3. Kidnapping 1 — fraud and intimidation — sufficiency of evidence The State's evidence was sufficient to permit the jury to find that defendant was guilty of the crime of kidnapping by practicing both fraud and intimidation to overcome the will of the victim and secure control of her person, where it tended to show that defendant gained entry into the home of the retarded, 15-year-old victim by falsely telling her that he wished to use the telephone, that once inside his acts and words were calculated to frighten and intimidate, that defendant instructed the victim to turn out the porch light, not to scream and to accompany him to his car, that defendant led the victim out the door by the hand telling her he was taking her out for a five-minute drive, and that the victim went with defendant because she was afraid. 4. Criminal Law 161 — necessity for exceptions Any error asserted on appeal must be supported by an exception duly taken and shown in the record exceptions which appear for the first time in the purported assignments of error present no question for appellate review. Supreme Court Rules 19 and 21. 5. Criminal Law 161 — assignments of error — requisites Each assignment of error must specifically state the alleged error so that the question sought to be presented is therein revealed. 6. Criminal Law 163 — assignment of error — failure to charge An assignment based on the court's failure to charge should set out the defendant's contention as to what the court should have charged. 7. Criminal Law 146 — appellate rules — indigent appellants Appellate rules of practice are applicable to indigent defendants and their court-appointed counsel as they are to all others. 8. Criminal Law 146 — constitutional question — failure to raise in trial court Ordinarily, appellate courts will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court below.<page_number>Page 101</page_number> 9. Criminal Law 146 — appellate rules — mandatory The rules of the Supreme Court are mandatory and will be enforced. 10. Criminal Law 161 — appeal as exception to judgment The appeal itself is considered an exception to the judgment and presents for review any error appearing on the face of the record proper. 11. Criminal Law 75, 169 — erroneous admission of inculpatory statement — harmless error Although the admission in this kidnapping prosecution of defendant's inculpatory statement to a police officer was erroneous because there was neither evidence nor findings to show that defendant waived his right to counsel, either in writing as provided by former G.S. <cross_reference>7A-457</cross_reference>, or orally as provided by the Miranda decision, such error was harmless where (1) defendant's statement was not coerced or involuntary but was voluntarily made, (2) the statement would not be sufficient alone to convict defendant but is simply an admission of facts that, taken with others, tends to show guilt, and (3) defendant's guilt was shown beyond a reasonable doubt by competent, untainted, direct as well as circumstantial evidence. 12. Criminal Law 169 — admission of incompetent evidence — harmless error The admission of evidence which is technically incompetent will be treated as harmless unless it is made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded.

1. Constitutional Law 30 — speedy trial — delay between warrant and trial Defendant was not denied his constitutional right to a speedy trial by the delay between the issuance of a warrant charging him with homicide on 19 July 1969 and his trial at the 19 April 1971 session of court, where defendant was committed to the State Hospital for 60 days upon motion of his counsel, defendant was granted continuances on two occasions, defendant was out on bail for most of the time between 12 December 1969 and the date of his trial but made no effort to obtain a speedier trial, and defendant has failed to<page_number>Page 222</page_number> show that he was prejudiced by the delay or that the State wilfully or by its neglect caused arbitrary or oppressive delay. 2. Jury 5 — competency of juror — discretion of court The question of the competency of jurors is a matter within the trial judge's discretion, and his rulings thereon are not subject to review on appeal unless accompanied by some imputed error of law. G.S. <cross_reference>9-14</cross_reference>. 3. Jury 5 — father-in-law of solicitor — competency as juror The trial court did not err in the denial of defendant's challenge for cause directed to the district solicitor's father-in-law as a juror, where the challenge was allowed only after the juror stated, upon being questioned by the court, that he would not convict on his relationship to the solicitor, and after it was ascertained that the district solicitor was not prosecuting defendant's case. 4. Constitutional Law 29; Criminal Law 135; Jury 7 — jurors opposed to death penalty — challenge for cause The trial court properly allowed the State's challenges for cause to prospective jurors who stated, in effect, that under no circumstances could they vote for a verdict which would result in the imposition of the death penalty. 5. Constitutional Law 31; Criminal Law 88 — right of cross-examination The witnesses in criminal trials must be present and subject to cross-examination. Sixth and Fourteenth Amendments to the U.S. Constitution; Article I, 23 of the N.C. Constitution. 6. Constitutional Law 31 — right of confrontation The right of confrontation is an absolute right rather than a privilege and must be afforded an accused not only in form but in substance. 7. Constitutional Law 31; Criminal Law 80; Death 1 — Homicide 15 — cause of death — competency of death certificate — right of confrontation — due process — harmless error In a homicide prosecution, defendant's right to confrontation and his right to fundamental fairness in a criminal trial guaranteed by due process were violated by the admission in evidence of the hearsay and conclusory statement in the victim's death certificate that "the immediate cause of death was hemorrhage and asphyxia due to or as a consequence of stab wounds of left neck"; however, the admission of such evidence was harmless error beyond a reasonable doubt in view of the other overwhelming evidence of defendant's guilt. Sixth Amendment to the U.S. Constitution; Article I, 11 (Now Article I, 23) of the N.C. Constitution; G.S. 130-66. 8. Criminal Law 169 — erroneous admission of evidence — violation of constitutional right The improper admission of evidence which violates a right guaranteed by the U.S. Constitution does not constitute prejudicial<page_number>Page 223</page_number> error unless there is a reasonable possibility that such evidence contributed to defendant's conviction.

1. Master and Servant 55 — workmen's compensation — compensable death Under the Workmen's Compensation Act a compensable death is one which results to an employee from an injury by accident arising out of and in the course of his employment. G.S. <cross_reference>97-2</cross_reference> (6). 2. Master and Servant 59 — workmen's compensation — assault Although an assault is an intentional act, it may be an accident within the meaning of the Compensation Act when it is unexpected and without design on the part of the employee who suffers it. 3. Master and Servant 56 — workmen's compensation — "in the course of" — "arising out of" As used in the Workmen's Compensation Act, the words "in the course of the employment" refer to the time, place and circumstances under which an accidental injury occurs, and the phrase "arising out of the employment" refers to the origin or cause of the accidental injury. 4. Master and Servant 59 — workmen's compensation — murder by employee's husband — in the course of employment The deaths of two employees were the result of injury by accident arising in the course of their employment where they were unexpectedly shot and killed by the husband of one of the employees while performing their duties on the premises of their employer, where their employment required them to be, but the risk was not an incident of the employment. 5. Master and Servant 56 — workmen's compensation — injury arising out of employment An injury arises out of the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.<page_number>Page 235</page_number> 6. Master and Servant 59 — workmen's compensation — assault by third person When the moving cause of an assault upon an employee by a third person is personal or the circumstances surrounding the assault furnish no basis for a reasonable inference that the nature of the employment created the risk of such an attack, the injury is not compensable even though the employee was engaged in the performance of his duties at the time. 7. Master and Servant 59 — workmen's compensation — murder of employees by jealous husband The deaths of two employees of a grocery store who were unexpectedly shot and killed by the femme decedent's husband while they were performing their duties on the premises of their employer did not result from injuries arising out of their employment, where all the evidence showed that the femme decedent had left her husband because of his excessive drinking, and that the husband murdered his wife, her employer and her male co-worker because he believed (1) that the co-worker had replaced him in his wife's affection and (2) that if the employer discharged his wife, which the employer refused to do, she would have to return to him, the employer's refusal to discharge the femme decedent not having made the risk that her husband would assault her or one of her fellow employees a risk arising out of the employment, and the risk of murder by a jealous husband not being one which a rational mind would anticipate as an incident of the employment of both sexes in a business.

1. Constitutional Law 29; Criminal Law 135; Jury 7 — jurors opposed to death penalty — excusal for cause The trial court in a first degree murder prosecution properly excused six jurors for cause when each stated on voir dire examination that he would not vote in favor of the death penalty under any circumstances no matter how aggravated the case and no matter what the facts may be. 2. Criminal Law 92 — consolidation of murder cases for trial The trial court properly consolidated for trial indictments charging defendant with the first degree murders of his wife and mother-in-law. 3. Criminal Law 166 — abandonment of assignments of error Assignment of error is deemed abandoned where appellant's brief sets out no reason or argument and cites no authority in support thereof. Supreme Court Rule 28. 4. Criminal Law 87; Witnesses 1 — list of State's witnesses — testimony by witness not listed In a first degree murder prosecution wherein the State furnished defense counsel a list of State's witnesses prior to selection of the jury, the trial court did not abuse its discretion in allowing the State to present a witness whose name was not on the list, where each juror stated upon interrogation by the court that he did not know the witness by sight or by name, and the court found that the name of the witness was not available to the State at the time the jury was selected and that defendant had suffered no prejudice by the fact that the name of the witness was not furnished prior to the jury selection. 5. Criminal Law 97 — additional evidence after jury arguments The trial court did not abuse its discretion in allowing the State to recall two witnesses who had previously been examined and to elicit additional evidence from them after the State and defendant had rested and all arguments to the jury had been made, where defendant was given an opportunity to offer additional rebuttal evidence and the State's additional evidence was inconsequential. 6. Constitutional Law 29; Criminal Law 135; Homicide 31 — first degree murder — death penalty — constitutionality — former G.S. <cross_reference>15-162.1</cross_reference> Sentences of death could not constitutionally be imposed on defendant for crimes of first degree murder committed while the statute allowing a defendant to plead guilty to a capital crime and receive a life sentence, G.S. <cross_reference>15-162.1</cross_reference>, was in effect, since<page_number>Page 262</page_number> during that time the death penalty applied only to those defendants who asserted their constitutional right to plead not guilty; consequently, sentences of death imposed on defendant for first degree murder are vacated and the cases are remanded to the superior court for imposition of sentences of life imprisonment.

1. Taxation 25 — ad valorem taxes — value of property For purposes of taxation, all property, real and personal, is required to be appraised, as far as practicable, at its true value in money, which means the amount for which such property can be sold in the usual manner of sale. G.S. <cross_reference>105-294</cross_reference>. 2. Taxation 25 — ad valorem taxes — farmland — tobacco and peanut allotments Tobacco and peanut allotments, held as incidents of the ownership of farmland, are among the factors to be considered in appraising such land for ad valorem taxation. 3. Taxation 25 — duties of County Board of Equalization and Review — appeal to State Board of Assessment It is the duty of the County Board of Equalization and Review, when so requested, to hear any taxpayer owning taxable property in<page_number>Page 534</page_number> the county with respect to the valuation of his property or of the property of others and to eliminate unlawful discriminations in the valuations of all properties in the county, G.S. <cross_reference>105-327</cross_reference> (g); any taxpayer aggrieved by the order of the County Board of Equalization and Review may appeal to the State Board of Assessment. G.S. <cross_reference>105-329</cross_reference>. 4. Taxation 25 — ad valorem taxes — State Board of Assessment The State Board of Assessment is given the general supervisory power over the valuation and taxation of property throughout the State and authority to correct improper assessments. G.S. <cross_reference>105-276</cross_reference>. 5. Taxation 25 — order of State Board of Assessment — judicial review Upon appeal from the County Board of Equalization and Review, the State Board of Assessment has full authority to determine property valuations, including the standard uniform schedules of values required by G.S. <cross_reference>105-295</cross_reference> to be used in the appraisal of real property within the county, and its orders with reference to such valuations and standards of value are final and conclusive, subject only to judicial review for errors of law or abuse of discretion. 6. Taxation 25 — State Board of Assessment — ad valorem taxes on farmlands — increase in valuation of tobacco and peanut allotments The superior court did not err in overruling a county's exceptions to an order of the State Board of Assessment revising the ad valorem taxation schedule for farmlands in Nash County by increasing the valuation of tobacco allotments from 40 cents per pound to 80 cents per pound and peanut allotments from $150 per acre to $300 per acre. 7. Costs 1 — attorneys' fees as part of costs In the absence of statutory authority therefor, a court may not include an allowance of attorneys' fees as part of the costs recoverable by the successful party to an action or proceeding. 8. Costs 1; Taxation 25 — tobacco and peanut allotments — proceeding before State Board of Assessment — increase in valuation — costs — attorneys' fees The superior court properly denied taxpayers' motion for an allowance of their attorneys' fees as part of the costs of their successful action before the State Board of Assessment to increase for ad valorem taxation the valuation of tobacco allotments from 40 cents per pound to 80 cents per pound and the valuation of peanut allotments from $150 per acre to $300 per acre.

1. Rules of Civil Procedure 50 — motion for directed verdict — consideration of evidence On motion for a directed verdict by the defendant, the court must consider the evidence in the light most favorable 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. G.S. <cross_reference>1A-1</cross_reference>, Rule 50 (a). 2. Insurance 106 — automobile liability policy — action by injured third party — burden of proof In an action by an injured person to recover under an owner's automobile liability policy issued to the negligent driver, the injured person has the burden of alleging and proving that the negligent driver was insured under such policy at the time of the accident. 3. Insurance 80 — owner of automobile Under the Motor Vehicle Responsibility Act of 1953, the "owner" of a vehicle includes the holder of title and a mortgagor, conditional vendee or lessee having the right of purchase and the right of possession. 4. Evidence 31 — best evidence rule Ordinarily, a document is the best evidence of its own contents, and before parol testimony is competent to prove the contents, the party offering such testimony must first account satisfactorily for his failure to produce the original, such as proof of loss or destruction of the original. 5. Evidence 31 — best evidence rule — contents of automobile title certificate The trial court properly excluded parol testimony as to the contents of an automobile title certificate where there was no evidence that the title certificate had been lost or destroyed, the certificate itself being the best evidence of its contents.<page_number>Page 583</page_number> 6. Insurance 106 — automobile owner's liability policy — action by injured third party — insured not owner of the automobile The trial court properly allowed defendant insurer's motion for directed verdict in an action by an injured third party to recover under an owner's automobile liability policy issued to the negligent driver, against whom plaintiff had previously obtained a judgment, where the evidence showed that on the date the accident occurred the registered title holder of the automobile in question was a person other than the insured, and there was no attempt to show that the registered title holder had transferred title in the manner prescribed by G.S. <cross_reference>20-72</cross_reference> (b), or that the lienholder which purportedly transferred title to the insured had foreclosed its lien or complied with G.S. <cross_reference>20-77</cross_reference> in order to procure a new title certificate.

1. Eminent Domain 3 — public purpose In any condemnation proceeding the question of what is a public purpose is one for the court. 2. Eminent Domain 3 — public purpose — construction or enlargement of street The taking of property to construct or enlarge a public street is, as a matter of law, a taking for a public purpose, and the advisability of widening a public street is a matter within the discretion of a city's governing body. 3. Eminent Domain 1 — choice of route — review A city council's choice of a route, or the land to be condemned for a street, will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of discretion. 4. Eminent Domain 1 — abuse of discretion — allegations — question of fact Upon specific allegations tending to show bad faith, malice, wantonness, or oppressive and manifest abuse of discretion by the condemnor, the issue raised becomes a question of fact to be determined by the judge. 5. Costs 1 — statutory authority Costs may be taxed solely on the basis of statutory authority. 6. Costs 4 — unnecessary expenses Even when allowed by statute, costs and expenses unnecessarily incurred by the prevailing party may not be taxed against the unsuccessful party. 7. Costs 4 — expense of surveys, maps, etc. The expense of procuring surveys, maps, plans, photographs and documents are not taxable as costs unless there is clear statutory authority therefor or they have been ordered by the court. G.S. <cross_reference>38-4</cross_reference>.<page_number>Page 685</page_number> 8. Costs 4 — witness fees Unless authorized by statute, witness fees cannot be allowed and taxed for a party to the action. 9. Costs 4 — witness fees — expert witness fees — party's own testimony A successful party is not entitled to have either a witness fee or an expert witness fee for his own testimony taxed against his losing adversary. 10. Costs 4 — time spent in hearing A party is not entitled to recover as costs either the statutory compensation for witnesses or an hourly wage or per diem for time such party spent in attending hearings and securing evidence. 11. Costs 4 — attending hearings and securing evidence — mileage, meals, and hotel A party is not entitled to recover as costs an allowance for mileage and for meals and hotel bills expended in securing evidence and attending hearings. 12. Costs 4 — expert witness fees — competency of testimony Expert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent. 13. Costs 4 — engineering expenses — expert witness fee — irrelevancy of evidence Where a proceeding instituted by a city to condemn a right-of-way over respondents' land for the purpose of widening a street was dismissed without prejudice because the city had not complied with statutory procedural requirements, the respondents are not entitled to recover as costs taxable against the city (1) engineering expenses incurred for the purpose of showing that public convenience did not require the city to widen the street and that another plan more acceptable to respondents was as good as the city's plan, or (2) an expert witness fee for testimony by a civil engineer that the plan favored by respondents was as good as the city's plan, since such evidence was totally irrelevant to the question of the city's right to condemn the property in question. 14. Costs 4 — attorneys' fees In the absence of express statutory authority, attorneys' fees are not allowable as part of the court costs in civil actions. 15. Costs 4 — condemnation proceeding — counsel fees — taxation as costs Unless the petitioner in a condemnation proceeding submits to a voluntary nonsuit or otherwise abandons the proceeding, the court is authorized to tax counsel fees as a part of the costs of such proceeding only for an attorney appointed by the court to appeal for and protect the rights of any party in interest who is unknown or whose residence is unknown. G.S. 40-2; G.S. 40-24.<page_number>Page 686</page_number> 16. Costs 4 — interest on costs Interest on costs properly assessed may not be allowed without statutory authority, and such interest is expressly disallowed by statute in this State. G.S. <cross_reference>24-5</cross_reference>.

Homicide 31; Criminal Law 135 — first degree murder — death sentence — remand for sentence of life imprisonment Pursuant to a mandate of the Supreme Court of the United States vacating the death penalty imposed upon defendant for first degree murder, the case is remanded to the superior court for imposition of a sentence of life imprisonment.<page_number>Page 749</page_number>

Homicide 31; Criminal Law 135 — first degree murder — death sentence — remand for sentence of life imprisonment Pursuant to a mandate of the Supreme Court of the United States vacating the death penalty imposed upon defendant for first degree murder, the case is remanded to the superior court for imposition of a sentence of life imprisonment.