Volume 282 — North Carolina Reports

1. Eminent Domain 6 — fair market value — uses of the property In determining fair market value in condemnation proceedings, the essential inquiry is, "what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted — that is to say, what is its worth from its availability for all valuable uses?" 2. Eminent Domain 6 — value of land adaptable to subdivision In appraising an undeveloped tract of land which is adaptable to subdivision, the question is not what the tract might be worth if subdivided and sold as improved lots but what it was worth in the open market in its existing condition on the day of the taking. 3. Eminent Domain 6 — maps showing proposed subdivision — illustrative purposes — prejudicial error In a proceeding to determine the value of 268.5 acres of land condemned by the State adjacent to Confederate Fort Fisher, the trial court committed prejudicial error in the admission for illustrative purposes of two maps showing a proposed subdivision of the condemned property for resort residential use and proposed motel, marina and office sites, where the State did not contend that the land was not adaptable to resort residential use, and the trial court failed to give the jury positive instructions that it could not value the land on a per-lot basis and an explanation of why it would be improper to do so.<page_number>Page 2</page_number> 4. Eminent Domain 6 — undeveloped land — conditional sale of proposed subdivision lots — evidence of value of condemned land In a proceeding to determine the value of undeveloped land condemned by the State, the trial court committed prejudicial error in the admission of evidence of conditional sales by respondents of eight acres of the land condemned, embracing twenty lots in a proposed subdivision of the land, for $160,000, the deeds and purchase money having been placed in escrow to be delivered only when the proposed subdivision was completed, since the transactions do not disclose what the buyers would have been willing to pay for the property as it was on the date of the purported sales. 5. Eminent Domain 6 — value of undeveloped land — sales price of other developed land In this proceeding to determine the value of undeveloped land condemned by the State adjacent to Confederate Fort Fisher, the trial court erred in permitting respondents, on cross-examination of a State's expert witness, to elicit testimony that lots fronting 200 feet on the ocean and extending back 100 feet on the developed portion of Shell Island had been sold for $15,000, as there was no evidence which would make values on Shell Island evidence of the value of the condemned property, and the only purpose in eliciting the testimony was to induce thereby a liberal award. 6. Eminent Domain 6 — value of condemned land — sales price of similar land The price paid at voluntary sales of land, similar in nature, location and condition to the condemnee's land, is admissible as independent evidence of the value of the land taken if the prior sale was not too remote in time; whether two properties are sufficiently similar to admit evidence of the purchase price of one as a guide to the value of the other is a question to be determined by the trial judge in the exercise of a sound discretion. 7. Eminent Domain 6 — value of condemned property — condemnor's purchase price for other property for same project — inadmissibility Evidence of the price paid by the condemnor in purchasing neighboring property for the same project is inadmissible to prove the value of the condemned land, no matter how similar the lands may be, as the sale to a prospective condemnor is highly unlikely to be a fair test of market value. 8. Eminent Domain 6 — value of condemned property — evidence of proposed uses The trial court in a condemnation proceeding committed prejudicial error in permitting one of the owners to testify that "at a future date" the owners "proposed" to construct a marina, a motel and condominiums on the condemned property. 9. Eminent Domain 6 — value of condemned property — evidence that streets had been rough graded — prevention of subdivision In a proceeding to determine the value of 268.5 acres of land<page_number>Page 3</page_number> condemned by the State, it was competent for the owners to show that, on the day of the taking, streets had been rough graded and surveyor's control stakes placed on 28.5 acres as initial steps in laying out a subdivision on that portion of the condemned property, since (1) the evidence tended to show that such area was adapted to use as a residential subdivision, and (2) the grading work was a part of the overall condition of the land when taken and one factor to be considered in determining the value which that area had at that time for development as a residential subdivision; however, the value of the property was not augmented because the condemnation proceeding prevented the owners from carrying out their plans to develop a subdivision. 10. Eminent Domain 5 — amount of compensation — character of landowner The character of a landowner is irrelevant to his right to receive just compensation when his land is taken by the State. 11. Witnesses 5 — character evidence for corroborative purposes Until the credibility of a party who has testified in his own behalf has been impeached by imputations of bias, inconsistencies in his statements, or otherwise, his good character may not be proved to corroborate his testimony. 12. Eminent Domain 7 — condemnation proceeding — instructions as to character of owners — error The trial judge in a condemnation proceeding in effect made himself a character witness for the owners and thereby bolstered the credibility of the testimony of one of the owners when he instructed the jury that the owners appeared to be "fine high quality citizens, good people and they are entitled to just compensation." 13. Eminent Domain 7 — condemnation proceeding by the State — instructions on shortcomings on part of State — error In a condemnation proceeding instituted by the State, the trial court erred in instructing the jury that it behooves all citizens and governmental agencies to strive constantly to overcome any shortcomings on the part of the State, as such instruction carried the implication that the State had not dealt fairly with respondents and suggested that the jury should right the wrong. 14. Costs 4 — expert witness fees — necessity that witnesses be subpoenaed The trial court was without authority to allow expert fees to respondents' witnesses who testified without having been subpoenaed or to tax the State with the costs of their attendance. G.S. <cross_reference>7A-314</cross_reference> (a) and (d).

1. Constitutional Law 30 — speedy trial — reasonableness of delay The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed. 2. Constitutional Law 30 — speedy trial — 17 months between offense and trial Defendant in a murder prosecution was not denied his right to a speedy trial where seventeen months elapsed between the offense and the trial, where no substantial actual prejudice to defendant appeared in the record, where the delay resulted from a congested docket, a lack of judges for special sessions, and an attempt to give priority to jail cases, and where defendant agreed to a continuance as late as four and a half months prior to trial. 3. Constitutional Law 30 — speedy trial — length of delay alone Length of delay in absolute terms is never per se determinative on the issue of denial of a defendant's right to a speedy trial. 4. Constitutional Law 30 — speedy trial — court congestion a justification for delay Congestion of criminal court dockets has consistently been recognized as a valid justification for delay between commission of an offense and trial.<page_number>Page 118</page_number> 5. Constitutional Law 30 — speedy trial — burden of proof Defendant failed to carry his burden of showing that delay in trying his case was due to the neglect or willfulness of the prosecution where the record showed that there was a backlog of approximately 1000 criminal cases on the docket, that 125 jail cases had priority over defendant's case, and that despite the congestion the trial took place eight months after the solicitor prosecuting the case took office.

1. Criminal Law 149 — dissent in Court of Appeals — right of State to appeal The aggrieved party, whether the State or the defendant, may appeal to the Supreme Court as of right from any decision of the Court of Appeals in which there is a dissent. G.S. <cross_reference>7A-30</cross_reference> (2). 2. Searches and Seizures 3 — probable cause defined Probable cause means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. G.S. <cross_reference>15-25</cross_reference> (a). 3. Searches and Seizures 3 — search warrant — necessity of affidavit An affidavit signed under oath or affirmation by the affiant and indicating the basis for the finding of probable cause by the<page_number>Page 126</page_number> issuing magistrate must be a part of or attached to the warrant. G.S. <cross_reference>15-26</cross_reference> (b). 4. Searches and Seizures 3 — affidavit based on hearsay — necessity of setting out underlying facts or circumstances The affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable. 5. Searches and Seizures 3 — description of premises — insufficiency of affidavit to support warrant An affidavit describing premises rented by defendant and detailing the existence of arrest warrants for defendant and two others on charges of possession and sale of narcotics was insufficient to support the issuance of a search warrant for the premises in that the affidavit revealed no underlying facts and circumstances from which the issuing officer could find that probable cause existed to search the premises described, but the affidavit implicated the premises solely as a conclusion of the affiant. 6. Searches and Seizures 3 — sufficiency of affidavit — implication of described premises An affidavit must supply reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender. 7. Criminal Law 84 — admissibility of evidence of LSD tablets — insufficient affidavit to support warrant Evidence of 289 LSD tablets found in defendant's apartment was improperly admitted where such evidence was obtained as a result of a search warrant issued upon an affidavit insufficient to establish probable cause for a search of the described premises.

1. Constitutional Law 4; Divorce and Alimony 2 — contested absolute divorce action — preservation of right to jury trial Defendant's request for a jury trial in an absolute divorce action should be governed by former G.S. <cross_reference>50-10</cross_reference>, in effect at the time he filed his answer, providing that request be made "prior to the call of the action for trial" rather than by Rule 38 of the Rules of Civil Procedure, providing that request be made within ten days after the service of the last pleading; consequently, by reason of his written request filed before trial but more than ten days after service of the last pleading, defendant was entitled to a jury trial. 2. Divorce and Alimony 1 — contested divorce action — trial at criminal session — void judgment Trial of a contested divorce action at a criminal session of district court over defendant's protest and in disregard of his motion for continuance for trial at a civil session rendered judgment in that action a nullity. G.S. <cross_reference>7A-49.2</cross_reference> (a).

1. Criminal Law 161, 166 — assignments of error abandoned — review of record Assignments of error which are not brought forward in the brief are deemed abandoned; however, when an accused is convicted of a capital offense with recommendation of life imprisonment, the court on appeal will consider the entire record for possible prejudicial error. 2. Criminal Law 161 — capital crime — review of record — no error A review of the entire record showed it to be without error where it revealed that defendants were positively identified as perpetrators of the crimes of robbery with firearms and rape, that in-court identifications of defendants were not tainted by improper pre-trial identification procedures, that defendants were represented by competent counsel, and that defendants were tried under valid indictments in a properly organized court before a fair trial judge.

1. Disorderly Conduct and Public Drunkenness 1 — disorderly conduct statute — unconstitutional provisions Provisions of the disorderly conduct statute which make it unlawful to cause a public disturbance by wilfully or wantonly creating "a hazardous or physically offensive condition" or by "offensively coarse" utterances and acts such as "to alarm and disturb persons present" are held unconstitutionally vague and overbroad. Former G.S. <cross_reference>14-288.4</cross_reference> (a) (2) and (3). 2. Constitutional Law 18 — freedom of speech The public expression of ideas may not be prohibited merely because the ideas are offensive, disturbing, or alarming to some hearers. 3. Constitutional Law 18 — statute prohibiting constitutionally protected speech A statute which defines proscribed activity so broadly that it encompasses constitutionally protected speech cannot be upheld in the absence of authoritative judicial limitations. 4. Indictment and Warrant 12 — conviction in district court — amendment of warrant in superior court In an appeal to the superior court from a disorderly conduct conviction in the district court, the trial court properly allowed the State to amend the warrant to comply with the trial court's construction of the disorderly conduct statute. 5. Disorderly Conduct and Public Drunkenness 1 — disorderly conduct statute — acts or utterances likely to provoke breach of peace — constitutionality Provision of the disorderly conduct statute proscribing acts and language likely to provoke a breach of the peace is constitutional. Former G.S. <cross_reference>14-288.4</cross_reference> (a) (2). 6. Disorderly Conduct and Public Drunkenness 1 — hospital emergency room — public place A hospital emergency room is a public place within the purview of the disorderly conduct statute. 7. Disorderly Conduct and Public Drunkenness 2 — disorderly conduct in hospital emergency room — sufficiency of evidence The State's evidence was sufficient for the jury on the issue of defendant's guilt of disorderly conduct by acts and language calculated to provoke a breach of the peace where it tended to show that defendant was under the influence of an intoxicant while in a hospital emergency room, that he refused medical attention from a physician<page_number>Page 158</page_number> solely because the physician was white, and that when he was informed that a black doctor whom he had demanded was not immediately available, he began shouting profanities, cursing all whites, and loudly voicing unfounded complaints. 8. Arrest and Bail 6 — resisting arrest without warrant — legality of arrest Defendant could not legally resist his arrest for the misdemeanor of disorderly conduct where the arresting officer had reasonable grounds to believe that defendant had committed that crime in his presence and thus was empowered to arrest defendant without a warrant. G.S. <cross_reference>14-223</cross_reference>; G.S. 15-41 (1). 9. Criminal Law 171 — error relating to one charge — concurrent identical sentences — harmless error Erroneous instruction on a disorderly conduct charge was harmless where the sentence imposed for disorderly conduct was made to run concurrently with an identical sentence imposed for the offense of resisting arrest. 10. Indictment and Warrant 8 — charges of resisting and assaulting officer — election by the State The trial judge was not required to make the State elect between the charges of resisting an officer and assaulting an officer at the beginning of the trial and before any evidence had been introduced; however, the trial court should have required such an election at the conclusion of the evidence where the evidence showed that the assaults were the means by which the officer was resisted. 11. Constitutional Law 34; Criminal Law 26 — double jeopardy — multiple punishments for same offense The constitutional guaranty against double jeopardy protects a defendant from multiple punishments for the same offense. 12. Criminal Law 26, 171 — assaulting and resisting officer — double jeopardy — concurrent sentences — arrest of judgment Defendant's constitutional right against double jeopardy was violated when he was convicted of resisting an officer and assaulting an officer based on the same conduct, and the judgment imposed for assaulting an officer will be arrested even though concurrent, identical sentences were imposed in each case.

1. Constitutional Law 31; Criminal Law 95 — implicating statement o codefendant — right to cross-examination of declarant — admission proper Testimony by an officer with respect to a statement made to him by one defendant which implicated a codefendant in the murder for which defendants were on trial was properly admitted where the codefendant had an opportunity to cross-examine the defendant making the statement but failed to do so and where the officer had previously testified, without objection, to the implicating statement. 2. Homicide 24 — felony-murder rule — sufficiency of evidence to support instruction Evidence was sufficient in a first degree murder case to support an instruction on the felony-murder rule where such evidence tended to show that defendants and one Chavis left defendant Wright's home with a common intent to commit robbery against an undetermined person, that defendant Glenn and Chavis discussed robbing a cab driver in the presence of defendant Wright and that the three engaged a cab to take them to a given destination after which Glenn or Wright shot and killed the cab driver with Wright's pistol. G.S. <cross_reference>14-17</cross_reference>. 3. Criminal Law 86 — cross-examination of defendant — inquiries concerning prior convictions Inquiries made of defendant Wright on cross-examination concerning prior convictions for unrelated criminal offenses were admissible for purposes of impeachment.<page_number>Page 365</page_number> 4. Criminal Law 80, 169 — recorded past recollection admissible — admission of similar testimony without objection Testimony of record of a pawnshop employee of sale of ammunition to one D. E. Wright several days before the murder of a cab driver with a pistol requiring the same caliber ammunition was admissible as a recorded past recollection though the employee testified that he did not recognize defendant Wright and that he had no independent recollection of the transaction apart from his records. 5. Homicide 21 — sufficiency of evidence to withstand nonsuit Evidence in a first degree murder prosecution was sufficient to withstand motion for nonsuit where such evidence tended to show that the two defendants and one Chavis were at a bus station armed with a pistol belonging to defendant Wright, that after discussing the robbery of a cab driver, Wright engaged a cab to a given destination, that bullets found in deceased cab driver's body were fired from Wright's pistol, that Wright led police officers to the place where the gun was hidden after the crime and that defendant Glenn told an officer that Wright shot the man. 6. Criminal Law 112, 114, 168 — jury instructions — reasonable doubt as possibility of innocence — caution against jurors taking strong individual positions — no error The trial court did not commit prejudicial error in its instructions to the jury when it cautioned the jurors against taking strong individual positions from the outset of their deliberations and defined reasonable doubt as a possibility of innocence. 7. Constitutional Law 36; Criminal Law 135 — first degree murder — sentence of life imprisonment — possibility of death sentence not prejudicial Where the jury returned a verdict recommending life imprisonment in a first degree murder case, the defendants had no standing to challenge the constitutionality of the statute under which they were indicted providing for punishment of death, nor could defendants complain of the court's instruction to the jury that one of the possible verdicts was first degree murder, resulting in punishment of death. 8. Criminal Law 113 — jury instructions supported by evidence Statements with respect to defendant Wright made by the trial judge in his recapitulation of the evidence to the jury were fully supported by the evidence.

1. Contracts 5; Evidence 32 — part of contract in parol and part in writing When part of a contract is in parol and part in writing, the parol part can be proven if it does not contradict or change that which is written. 2. Frauds, Statute of 7; Vendor and Purchaser 1 — oral guarantee of acreage A guarantee of the number of acres to be conveyed is not required to be in writing. 3. Evidence 32 — memorandum of sale of realty — parol evidence- guarantee of acreage Where the evidence established that the parties did not intend to incorporate their entire agreement in a memorandum of sale stating that the sales price of two farms was $110,000 and that the farms contained 400 acres, the parol evidence rule did not preclude plaintiffs' evidence that defendant had agreed orally on a sales price of $275 per acre for a guaranteed 400 acres and had agreed orally to refund to plaintiffs $275 per acre for any shortage of<page_number>Page 478</page_number> acreage, since the alleged oral agreement was not in conflict with any of the provisions of the memorandum of sale. 4. Rules of Civil Procedure 50 — allowance of judgment n.o.v. — ruling on alternate motion for new trial Even though the trial court allows a motion for judgment n.o.v., the court must also rule on an alternative motion for a new trial so that a party can appeal conditionally from an adverse ruling on the alternate motion. G.S. <cross_reference>1A-1</cross_reference>, Rule 50.

1. Searches and Seizures 1 — bag of money in plain view in defendants' automobile — admissibility In a breaking and entering and larceny case there was no error in the admission of evidence concerning a bag of money where there was evidence that an officer was given permission to enter defendants' automobile to obtain the registration card from the glove compartment and at that time, without any search, observed the bag and its contents. 2. Arrest and Bail 3 — officer's authority to stop motorist Officers had authority to stop the vehicle occupied by defendants to determine the validity and presence of the driver's license and registration card. G.S. <cross_reference>20-183</cross_reference> (a); G.S. <cross_reference>20-57</cross_reference>.<page_number>Page 504</page_number> 3. Arrest and Bail 3 — driver's license check — time of arrest — necessity for probable cause Where defendants were stopped pursuant to G.S. <cross_reference>20-183</cross_reference> (a), they were not taken into custody and placed under arrest until after an officer commented on the presence of money in the vehicle and after the ensuing flight of defendant King; therefore, the existence of probable cause at the time the car was stopped was not essential. 4. Arrest and Bail 3; Searches and Seizures 1 — statutory provision for driver's license check — constitutionality The provisions of G.S. <cross_reference>20-183</cross_reference> (a), giving an officer the authority to stop a vehicle to determine the validity and presence of the driver's license and registration card, when balanced with the State's obligation to preserve order and enforce safety on its streets and highways, do not constitute such an encroachment on the individual's constitutional rights as to render the statute invalid. 5. Searches and Seizures 1 — vehicle search at police station — reasonableness Where defendants' automobile was stopped on a public street for a driver's license and vehicle registration check at 2:30 a.m. an officer observed money in a paper bag in the vehicle and occupants of the vehicle were taken into custody, such circumstances presented a fleeting opportunity for search which made it impractical to obtain a search warrant; therefore, the action of the officers in removing the car and searching it at the police station was reasonable if probable cause to search existed. 6. Searches and Seizures 1 — vehicle search — probable cause — admissibility of burglary tools In a breaking and entering, larceny and safecracking case where the evidence showed (1) the presence in an automobile of two men seen running from an area behind Weil-Creech Oil Company toward the then parked automobile in the early morning hours, (2) the presence in the automobile of a bag of money, some of which was wrapped in material bearing the inscription "Weil-Creech," and (3) the flight of one of the occupants when an officer commented on the presence of the money, officers had reasonable grounds to believe that defendants had committed a crime and that the automobile in which they were riding contained evidence pertaining to the crime; therefore, evidence concerning burglary tools found pursuant to the search conducted when the vehicle was removed to the police station was properly admitted by the trial court.

1. Trusts 4 — judicial modification of trust The courts will modify a trust instrument to preserve the purpose of the trust or protect its beneficiaries when some exigency or emergency not anticipated by the trustor will defeat his intent. 2. Trusts 4 — Duke Endowment — investments — distribution of principal — judicial modification There was ample evidence to support findings by the trial court that the purposes and objects of the Duke Endowment have been<page_number>Page 677</page_number> threatened by unanticipated changes of circumstances brought about by inflation and by provisions of the Tax Reform Act of 1969 which might require the Endowment to divest itself of all but 25% of the outstanding stock of Duke Power Company by 1979, and a provision of the Endowment indenture restricting investments by the trustees to investments in Duke Power Company and certain government bonds was properly modified by the trial court to allow the trustees to in vest the trust funds in other securities and properties and to grant the trustees authority to distribute principal of the Endowment to the extent necessary to comply with the provisions of the Tax Reform Act of 1969. 3. Trusts 10 — distribution of corpus — when permitted The general rule that the principal or corpus constituting the subject matter of a trust cannot be distributed prior to termination in the absence of express or implied authority in the trust instrument is subject to two exceptions: (1) a court may permit modification of the instrument when essential to protect the trust and its beneficiaries from an unforeseen exigency threatening to destroy the settlor's intent and purposes in creating the trust, and (2) a court may order invasion of the corpus for the necessary support of a beneficiary when the interest of another beneficiary is not thereby impaired. 4. Trusts 4 — determination of intent of trustor The intent of a trustor will be determined by the language he chooses to convey his thoughts, the purposes he seeks to accomplish, and the situation of the other parties to or benefited by the trust. 5. Trusts 6 — extent of trustee discretion Ordinarily, the extent of the discretion conferred upon trustees by a settlor depends upon the terms of the trust and the nature of the powers interpreted in the light of all the circumstances known to the settlor when he executed the trust instrument. 6. Trusts 4 — interpretation of trust indenture — question of law The interpretation of a trust indenture is a question of law for the court which is subject to review by the appellate courts. 7. Trusts 4 — Duke Endowment — discretion to withhold income — options for use of withheld income — additions to corpus — subsequent distribution prohibited In giving the trustees of the Duke Endowment the discretion to withhold income distributable to beneficiaries other than Duke University and either to (1) accumulate the withheld amounts for expenditure in future years, (2) add the withheld amounts to the trust corpus, (3) pay the withheld amounts to or for the benefit of another trust purpose, or (4) pay the withheld amounts to or for the benefit of any like charitable purpose or like charitable hospital, the trustor intended that the exercise of one option would exclude successive action under another option with respect to the same withheld funds; therefore, once the trustees added funds to the corpus under option (2), the withheld funds could not be recalled and used for another purpose pursuant to another option.<page_number>Page 678</page_number> 8. Trusts 4 — Duke Endowment — additions of income to corpus — excise tax — absence of emergency permitting modification of trust The record does not show that a 4% excise tax provided by the Tax Reform Act of 1969 on approximately $116,000 of annual income derived from an accumulation of withheld distributable income which has been added to the corpus of the Duke Endowment would create such an exigency or emergency which might frustrate the intent and purposes of the trustor so as to permit judicial modification of the trust indenture to give the trustees authority to distribute such additions to corpus. 9. Trust 4 — Duke Endowment — distribution of principal — trustees' judgment The trial court did not err in determining that a distribution of principal of the Duke Endowment permitted by the court to the ex tent required by the Tax Reform Act of 1969 need not be made to the same beneficiaries, for the same purposes and in the same percentages of distribution provided in the trust indenture or in accordance with any other predetermined formula, but that such distribution should be made according to the trustees' judgment.