Volume 284 — North Carolina Reports

1. Constitutional Law 4 — standing to attack statute — question of law When the facts with reference to a party's relation to a controversy are admitted, whether a party has standing to attack the constitutionality of a statute is a question of law which may not be settled by the parties. 2. Actions 3; Courts — absence of controversy — dismissal of action Whenever it appears that no genuine controversy between the parties exists, the court will dismiss the action ex mero motu. 3. Constitutional Law 4 — standing of taxpayers to attack statute Taxpayers have standing to attack the constitutionality of the Pollution Abatement and Industrial Facilities Financing Act, G.S. <cross_reference>159A-1</cross_reference> et seq., where they alleged that the Act unconstitutionally purports to authorize the issuance of bonds which are exempt from all taxes except inheritance and gift taxes. 4. Appeal and Error 3; Constitutional Law 4 — consideration of constitutionality of statute — public interest The public interest requires that the Supreme Court decide whether the Pollution Abatement and Industrial Facilities Financing Act is<page_number>Page 16</page_number> constitutional in whole or in part, although no revenue bonds authorized by the Act have been offered for sale. 5. Municipal Corporations 1 — municipal corporations — public purpose If a legislative enactment comprehends a public purpose, the agency created under it may function as a municipal corporation; otherwise, not. 6. Municipal Corporations 1 — municipal corporations — public purpose A municipal corporation, even with legislative sanction, cannot engage in a private enterprise or assume any function which is not in a legal sense public in nature. 7. Municipal Corporations 39; Taxation 21 — municipal corporation revenue bonds — exemption from taxation The General Assembly may exempt revenue bonds of a municipal corporation from taxation since the tax-exempt feature makes possible a more favorable sale of the bonds and thereby contributes substantially to the accomplishment of the public purpose for which they are issued. 8. Taxation 7 — public purpose An activity cannot be for a public purpose unless it is properly the "business of government," and it is not a function of government either to engage in private business itself or to aid particular business ventures. 9. Taxation 7 — public purpose — incidental benefit to public Aid to a private concern by the use of public money or by tax-exempt revenue-bond financing is not justified by the incidental advantage to the public which results from the promotion and prosperity of private enterprises. 10. Taxation 7 — public purpose In determining what is a public purpose, the courts look not only to the end sought to be attained but also to the means to be used. 11. Taxation 7 — public purpose — direct assistance to private entity Direct assistance to a private entity may not be the means used to effect a public purpose. 12. Taxation 7 — public purpose — legislative declaration While a legislative declaration that an enactment is for a public purpose carries great weight, it is not conclusive upon the courts. 13. Taxation 7 — public purpose — tax-exempt revenue bonds The public purpose requirement determines not only the projects for which the legislature may authorize the expenditure of tax money but also those which it may empower authorities it creates to undertake and to finance by the issuance of tax-exempt revenue bonds. 14. Constitutional Law 13; Nuisance 10 — abatement and control of pollution — police power The abatement and control of environmental pollution are immediately necessary to the public health, safety, and general welfare; and,<page_number>Page 17</page_number> in the exercise of the State's police power, the legislature has plenary authority to abate and control pollution of all kinds. 15. Constitutional Law 11; Taxation 1 — regulation of private industries — police power — taxing power The power of the State to regulate private institutions and industries under its police power is more extensive than the authority to accomplish the same purpose by use of its taxing power. 16. Nuisance 10; Taxation 7 — Pollution Abatement and Industrial Facilities Financing Act — unconstitutionality The creation of county authorities pursuant to the Pollution Abatement and Industrial Facilities Financing Act for the purpose of financing pollution control facilities or industrial facilities for private industry by the issuance of tax-exempt revenue bonds is not for a public purpose, and the Act violates Article V, 2 (1) of the North Carolina Constitution.

Criminal Law 75 — involuntary written confession — subsequent oral confession — presumption of involuntariness Where the written confession of a retarded eighteen-year-old defendant given on September 25 was involuntary, defendant's oral confession given to the same officers on December 2 after he had spent 63 days in a State Hospital for the purpose of determining his mental competency is likewise presumed to be involuntary in the absence of a showing by the State that defendant was advised before he made the oral confession that the prior written confession was invalid or that it could not be used against him.

1. Master and Servant 94 — workmen's compensation — Commission's modification of commissioner's findings In reviewing a workmen's compensation award of the hearing commissioner, the Industrial Commission is authorized to modify or strike out findings of fact made by the hearing commissioner if in the judgment of the Commission such findings were not proper. G.S. <cross_reference>97-85</cross_reference>. 2. Master and Servant 56 — workmen's compensation — causal relation between employment and injury In order for an injury to be compensable under the Workmen's Compensation Act, there must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected. 3. Master and Servant 56 — workmen's compensation — injury arising "out of" employment It is generally said that an injury arises out of the employment when it is the natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment. 4. Master and Servant 56 — workmen's compensation — building doghouse for personal use — injury arising out of employment Plaintiff, a salesman employed by a cabinet manufacturer, worked in his employer's shop during his training period and obtained permission from his superiors to build a doghouse for his own use from scrap material during working hours when he had nothing else to do. Each of the employer's salesmen was required to work in the shop every third Saturday. While on duty in the shop one Saturday plaintiff cut some cabinet parts and, during a lull, resumed work on his uncompleted doghouse and injured himself with an electric saw. A practice or custom had been established by the employer allowing its employees to use its equipment for personal projects. Held: Plaintiff's use of his employer's electric saw and scrap material to build a doghouse during the Saturday morning lull was a reasonable activity and the risk inherent in such activity was a risk of the employment; therefore, plaintiff's injury arose "out of" his employment within the meaning of the Workmen's Compensation Act.

1. Criminal Law 79 — accomplice's testimony of intention to plead guilty In this safecracking prosecution, trial court did not err in allowing defendant's accomplice, who was a witness for the State, to testify that he intended to plead guilty to a pending charge against him growing out of the same events where the accomplice's previous testimony clearly disclosed his participation in the crime for which defendant was on trial. 2. Criminal Law 79; Safecracking — charge on acts of co-conspirators — harmless error In a safecracking prosecution in which the State's evidence tended to show that, although defendant did not act alone, he participated in each element of the crime charged and defendant's sole defense was alibi, the trial court's instruction that "If two or more persons act together for the common purpose to commit the crime of safecracking, each of them is held responsible for the acts of others done in the commission of the crime of safecracking" did not arise upon the evidence; however, such instruction did not constitute prejudicial error in light of the clear choices afforded the jury by all the evidence of whether to believe the State's evidence or whether to believe defendant's evidence. 3. Criminal Law 112 — additional instruction — failure to charge on burden of proof It was not necessary for the trial court in a safecracking case to charge further on the burden of proof in his additional instruction to the jury where the jury was properly instructed on the burden of proof when the charge is considered as a whole. 4. Criminal Law 139; Safecracking — indeterminate sentence — minimum term In imposing an indeterminate sentence on defendant for safecracking under former G.S. <cross_reference>14-89.1</cross_reference>, the trial court was not confined to the lower limit of ten years provided in the statute but could properly impose a term of not less than twenty-five years to life imprisonment. G.S. <cross_reference>148-42</cross_reference>. 5. Constitutional Law 36; Criminal Law 139; Safecracking — indeterminate sentence — cruel and unusual punishment The authority to impose an indeterminate sentence for safecracking under G.S. <cross_reference>14-89.1</cross_reference> does not result in a lack of uniformity in sentencing so that such an indeterminate sentence constitutes cruel and unusual punishment. 6. Criminal Law 138 — punishment statute changed pending appeal Defendant was not entitled to the benefit of the reduction in punishment for safecracking provided by the 1973 amendment to<page_number>Page 166</page_number> G.S. <cross_reference>14-89.1</cross_reference> where the crime for which defendant was convicted occurred prior to the effective date of the amendment and the amending act provided that it should apply to all offenses committed after its ratification.

Searches and Seizures 3 — search warrant for marijuana — sufficiency of affidavit In a prosecution for possession of marijuana with intent to distribute, there was probable cause for issuance of a search warrant where the affidavit alleged that a deputy sheriff in California telephoned Greensboro and informed officers there that, based on a tip from a reliable informer, he had information that two girls were flying into Greensboro at a specified hour with marijuana in their possession, the California officer described the girls' appearance in detail, the informer's reliability was attested to, the officer in Greensboro verified that the California sheriff was who he claimed to be, and the Greensboro officer confirmed through the airline company that defendant and a companion were passengers on a flight bound for Greensboro.

1. Master and Servant 56 — workmen's compensation — in the course of employment — arising out of employment As used in the Workmen's Compensation Act, the phrase "in the course of the employment" refers to the time, place and circumstances under which an accidental injury occurs; "arising out of the employment" refers to the origin or cause of the accidental injury.<page_number>Page 231</page_number> 2. Master and Servant 56 — workmen's compensation — causal relation between injury and employment To have its origin in the employment an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. 3. Master and Servant 56 — workmen's compensation — traveling employee — choking to death in restaurant There was no causal relation between the death of a university employee and his employment where the employee, during a trip to Washington, D.C., to recruit an employee for the university, choked to death on a piece of meat while dining at a public restaurant with an old friend whom the trip to Washington had enabled him to visit.

1. Wills 28 — construction of will — intent of testator Nothing else appearing, terms used in a will must be construed so as to accomplish the intent of the testator, which is determined from the will itself and the surrounding circumstances known to the testator. 2. Wills 28 — property devised — identity of devisee — construction of will As to the property devised or bequeathed, the will is construed as if executed immediately prior to the testator's death; however, as<page_number>Page 376</page_number> to the identity of the devisee or legatee, it is to be construed, nothing else appearing, in the light of circumstances known to the testator at the time of its actual execution. G.S. <cross_reference>31-41</cross_reference>. 3. Wills 48 — devise to "issue" — inclusion of adopted child It is the express provision of G.S. 48-23 (3) that in any will the word "issue" shall be held to include any adopted person, unless the contrary plainly appears by the terms of the will itself, and such rule of construction shall apply whether the will was executed before or after the final order of adoption and irrespective of whether the will was executed before or after the enactment of the statute. 4. Statutes 5 — clear provisions — construction in accord with intent of Legislature Where the terms of a statute are clear, no construction of its provisions is required, but it is the duty of the Court to apply the statute so as to carry out the intent of the Legislature, irrespective of any opinion the Court may have as to the wisdom of the statute or its injustice to the deceased testator, unless the statute exceeds the power of the Legislature under the Constitution. 5. Statutes 8; Wills 48 — inclusion of adopted children as "issue" — retrospective statute — constitutionality Retrospective statutes destroying or diminishing contingent interests in property do not, per se, deprive the holder thereof of property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the U.S. or Article I, 19 of the Constitution of N.C., or violate any other constitutional limitation upon legislative power; therefore, it was within the power of the Legislature to enact G.S. 48-23 (3) after the death of the testator enlarging the class entitled to take under a provision of a will creating a contingent interest by providing that "issue" include adopted children. 6. Wills 48 — devise to "issue" — adopted child included in class Where testator devised a tract of land to Laura Finch for life and then "to her children, if any, and, if none, then to her brothers and sisters, or to the issue of those that may be dead, share and share alike" and nothing in the devise indicated testator's intent with respect to an adopted child of Laura Finch's sister, the Court is required by G.S. 48-23 (3) to hold that the adopted child is "issue" of the sister within the meaning of the will and takes thereunder a share in the proceeds from sale of the land devised to Laura Finch.

1. Homicide 21 — sufficiency of evidence that victim is dead The State's evidence in a homicide case was sufficient to show that the alleged victim is actually dead, although no witness testified<page_number>Page 392</page_number> that he actually saw the dead body of the victim, where several witnesses testified without objection that they had known the victim before he died, and a medical witness testified about various treatments given to the victim from the time he entered a hospital after he was shot until he died, that the victim died on a certain date, that he had seen the victim's death certificate and autopsy report, and that in his opinion the victim's death resulted from his gunshot injuries. 2. Homicide 12; Indictment and Warrant 17 — indictment — date of shooting and date of death — variance There was no fatal variance between an indictment charging that deceased was killed on 4 September 1971 and evidence that deceased was shot on that date but that he did not die until 29 December 1971. 3. Homicide 15; Criminal Law 52 — medical expert — cause of death — opinion based on treatment and observation Although an expert medical witness was unable to say that he had seen an alleged homicide victim on the date of his death, the witness was properly allowed to give his opinion as to the cause of the victim's death where it is clear that such opinion was based on his treatment and observation of the victim for some four months between the time the victim was shot and the date of his death, it not being necessary to ask the witness a hypothetical question including facts not within his personal knowledge in order for him to state such opinion. 4. Homicide 23 — instructions — reference to "the deceased" The trial court in a homicide case did not err in referring to the alleged victim in the charge as "the deceased" where all the evidence indicated the victim was dead.

Criminal Law 84; Searches and Seizures 1 — warrant to search for marijuana — seizure of other items Officers lawfully seized checks and currency while executing a warrant authorizing a search of defendant's apartment for marijuana, and the checks and currency were properly admitted in defendant's trial for armed robbery, where the currency was found co-mingled with patently contraband drugs and the checks were thrown from a window of the apartment after officers entered it, the officers having had reasonable grounds to believe that a connection existed between the items seized and criminal behavior.

1. Burglary and Unlawful Breakings 1 — burglary defined Burglary is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. G.S. <cross_reference>14-51</cross_reference>.<page_number>Page 417</page_number> 2. Burglary and Unlawful Breakings 2 — breaking or entering — lesser offense of burglary The statutory offense of breaking or entering defined by G.S. <cross_reference>14-54</cross_reference> (a) is a lesser included offense of burglary in the first degree. 3. Criminal Law 115 — necessity for submitting lesser included offense When there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even where there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime. 4. Burglary and Unlawful Breakings 7 — burglary — failure to submit felonious breaking or entering In this prosecution for first degree burglary, the trial court erred in failing to submit to the jury the lesser included offense of felonious breaking or entering where the evidence and the inferences to be reasonably drawn therefrom would not have required the jury to find that defendant entered the dwelling by a burglarious breaking.

1. Criminal Law 163 — exceptions to charge Exceptions to the charge which do not point out specific portions of the charge as erroneous are ineffectual as bases for assignments of error. 2. Criminal Law 163 — assignments of error to charge Assignments of error to the charge were defective in failing to quote in each assignment the portion of the charge to which appellant objects. 3. Criminal Law 163 — failure to charge — assignments of error Where an assignment of error is based on failure to charge, it must set out appellant's contention as to what the court should have charged. 4. Homicide 27 — failure to instruct on voluntary manslaughter — instruction on involuntary manslaughter In a prosecution of defendant for the murder of his wife, defendant was not entitled to an instruction on voluntary manslaughter and was not prejudiced by the court's submission of involuntary manslaughter as a possible verdict where the State's evidence tended to show that defendant intentionally shot and killed his wife, there was no evidence that defendant shot his wife in the heat of passion or in self-defense, and defendant's testimony was to the effect that the pistol discharged when his mother-in-law was attempting to take the pistol from him. 5. Homicide 25 — instructions — premeditation and deliberation — consideration of defendant's conduct after homicide The court's instruction in a homicide case that in determining the question of premeditation and deliberation the jury might consider defendant's conduct before and after as well as at the time of the homicide and all attendant circumstances did not permit the jury to consider defendant's flight on the question of premeditation and deliberation, and the court did not err in failing to charge on the law of flight after having given such instruction. 6. Homicide 14 — accident or misadventure — burden of proof A contention by defendant that a homicide was the result of accident or misadventure is merely a denial of guilt and does not constitute an affirmative defense, and no burden of proof rests on defendant to show accident or misadventure. 7. Criminal Law 6; Homicide 28 — murder case — evidence defendant had been drinking — instructions The trial court in a homicide prosecution properly instructed the jury that it could consider defendant's testimony that he had been<page_number>Page 428</page_number> drinking some whiskey as bearing upon whether the State had satisfied the jury beyond a reasonable doubt that defendant intentionally shot the victim and thereby proximately caused her death and that defendant unlawfully killed the victim in the execution of an actual specific intent to kill formed after premeditation and deliberation. 8. Homicide 27 — instructions — involuntary manslaughter — reckless use of gun The trial court in a homicide case properly instructed the jury on the careless and reckless use of a gun as an element of involuntary manslaughter where defendant's testimony, if considered in the light most favorable to him, disclosed an unintentional homicide caused by his careless and reckless handling of the pistol. 9. Criminal Law 95 — evidence competent for illustration — instructions at time of admission — further instructions in charge Where the court instructed the jury at the time exhibits were admitted that they were competent only to explain and illustrate the testimony of witnesses, the court was not required to repeat such instructions in the charge. 10. Criminal Law 76 — admission of in-custody statements The voir dire evidence fully supported the court's evidentiary and ultimate findings that all statements made by defendant to police in another state were made freely, voluntarily and understandingly after defendant had been clearly and fully advised of all his constitutional rights, and the statements were properly admitted in defendant's homicide trial. 11. Homicide 20 — photographs of victim's body — admission for illustration In this homicide prosecution, photographs of unclothed portions of the victim's body were properly admitted for the purpose of illustrating the testimony of a doctor with reference to the entrance of three bullets and the exit of two of them. 12. Attorney and Client 7 — judgment against indigent defendant for counsel fees — notice and hearing Where the record afforded no basis for passing upon the validity of a judgment providing for the recovery of $1,000 by the State from defendant for services provided defendant as an indigent by the public defender, the Supreme Court vacated the judgment without prejudice to the State's right to apply for a judgment in accordance with G.S. <cross_reference>7A-455</cross_reference> after due notice to defendant and a hearing in the superior court.

1. Attorney and Client 7 — contingent fee contract — scrutiny by courts Contracts for contingent fees are clearly scrutinized by the courts when there is any question of reasonableness of the fee. 2. Attorney and Client 7 — contingent fee contract — execution during attorney-client relationship — reasonableness — burden of proof The burden of proof is upon the attorney to show the reasonableness and fairness of a contract fixing the attorney's fee made during the existence of the attorney-client relationship.<page_number>Page 497</page_number>

Criminal Law 127; Statutes 11; Weapons Firearms — possession of firearm by felon — statute amended pending defendant's appeal — judgment arrested Revision of G.S. <cross_reference>13-1</cross_reference> and <cross_reference>13-2</cross_reference> while defendant's appeal was pending to provide for automatic restoration of citizenship to persons convicted of a felony thereby exempted him from the provisions of G.S. <cross_reference>14-415.1</cross_reference>, and his conviction thereunder for possession of a firearm by a felon must be arrested.

1. Constitutional Law 32 — effective assistance of counsel The general rule is that the incompetency of counsel for the defendant in a criminal prosecution is not a denial of his constitutional right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice. 2. Constitutional Law 32 — effective assistance of counsel The question of constitutional inadequacy of representation cannot be determined solely upon the amount of time counsel spends with the accused or upon the intensiveness of his investigation. 3. Constitutional Law 32 — effective assistance of counsel — divided loyalties — role of advocate Counsel cannot be hobbled by divided loyalties and cannot assume the role of amicus curiae but must function in the active role of an advocate. 4. Constitutional Law 32 — effective assistance of counsel — standard of proof A stringent standard of proof is required on the question of whether an accused has been denied the effective representation of counsel.<page_number>Page 607</page_number> 5. Constitutional Law 32 — effective assistance of counsel — case by case decision Each case must be approached on an ad hoc basis, viewing circumstances as as a whole, in order to determine whether an accused has been deprived of the effective assistance of counsel. 6. Constitutional Law 32 — effective assistance of counsel — advising defendant to make statement to police — witnesses obtained as result of statement Where a defendant charged with the murder of a highway patrolman falsely told his court-appointed attorney that other persons had forced him at gunpoint to drive them from the scene of a break-in and that someone sitting in the back seat of his vehicle had thereafter shot the patrolman, the attorney advised defendant to make a statement to the police, and defendant subsequently made statements to the police in which he stated that someone else did the shooting without prior knowledge on his part and named two other persons who were in his vehicle at the time of the shooting, the conduct of defendant's court-appointed attorney did not amount to a denial of effective assistance of counsel so as to preclude the State from using the two persons named by defendant as witnesses against defendant. Sixth Amendment to U.S. Constitution; Art. I, 19 and 23 of the N.C. Constitution. 7. Constitutional Law 32 — effective assistance of counsel — acquaintance with deceased — law practice with public officials An attorney appointed to represent a defendant charged with murder of a highway patrolman was not fettered by divided loyalties by reason of his casual acquaintance with the patrolman or by the fact that the murder caused much public resentment and the attorney was a member of a firm which included the Speaker-Elect of the N.C. House of Representatives and the Mayor of the Town of Roxboro.