Volume 285 — North Carolina Reports

1. Homicide 18 — premeditation and deliberation — proof by circumstantial evidence Premeditation and deliberation are not usually susceptible of direct proof and are therefore susceptible of proof by circumstances by which the facts sought to be proved may be inferred. 2. Homicide 18 — premeditation and deliberation — circumstances to consider Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are want of provocation an the part of the deceased, conduct of defendant before and after the killing, use of grossly excessive force or the dealing of lethal blows after deceased has been felled. 3. Homicide 21 — premeditation and deliberation — sufficiency of circumstantial evidence Where the evidence tended to show that defendant shot one victim twice and the other victim three times, that both victims died as a result of shots through the heart, and that severe head wounds which exposed the skull were inflicted upon both victims before the shots were fired, the ingredients of premeditation and deliberation necessary in first degree murder could be inferred, and the trial court properly denied defendant's motion for nonsuit.<page_number>Page 123</page_number> 4. Criminal Law 52 — psychiatrist's opinion — personal examination as basis — admissibility In a first degree murder case the trial court did not err in allowing a psychiatrist to base his expert opinion as to the sanity of defendant upon both his own personal examination and other information contained in the patient's official hospital record, though that other information itself would have been inadmissible.

1. Criminal Law 113 — court's duty to charge on defenses The trial court has the duty to charge the jury on all defenses presented by defendant's evidence without special request therefor. G.S. <cross_reference>1-180</cross_reference>. 2. Homicide 28 — duty to instruct on self-defense Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant's evidence. 3. Homicide 28 — instructions — final mandate — possible verdicts — not guilty by reason of self-defense The trial judge in a homicide prosecution erred in failing to include not guilty by reason of self-defense as a possible verdict in his final mandate to the jury, and such error was not cured by the discussion of the law of self-defense in the body of the charge.

1. Criminal Law 29 — mental capacity of defendant to stand trial — determination by trial court Trial court did not err in denying defendant's motion for a jury trial on the question of defendant's competency to stand trial, since the preliminary question of a defendant's mental capacity to plead to a bill of indictment and to aid in the preparation and conduct of his defense is properly a question to be decided by the trial court in its discretion. 2. Criminal Law 75 — admissibility of confession In a prosecution for first degree murder and armed robbery, the trial court did not err in admitting defendant's confession where the evidence on voir dire disclosed that defendant was given all warnings and cautions required by the State and Federal rules of evidence, defendant understood them and freely and voluntarily waived the right to have counsel present, and defendant then stated that he shot the victim and took money from the place of business. 3. Homicide 25; Robbery 5 — first degree murder and armed robbery — separate crimes — instructions In a prosecution for first degree murder and armed robbery where the charges were consolidated under G.S. <cross_reference>15-152</cross_reference> on the ground that they were separate and distinct felonies, connected in time, place, and surrounding circumstances, the trial court properly submitted both offenses to the jury, and separate conviction and sentence on each charge is upheld.

1. Criminal Law 86 — improper impeaching question — no prejudicial error In a prosecution for traveling 90 mph in a 65 mph zone, defendant was not entitled to a new trial where the court overruled his objection<page_number>Page 196</page_number> to the solicitor's improper question, "Did you see Trooper Willis [who was asked to stand] . . . when he clocked you travelling 94 miles per hour in a 65 mile zone?" 2. Criminal Law 169 — objection to testimony — inclusion of testimony in record Where objections to questions are sustained and counsel wishes to insert in the record what the witnesses' answers would have been, the better practice is to excuse the jury and complete the record in open court in the absence of the jury. 3. Automobiles 117; Criminal Law 114 — instructions — comment by court In a prosecution where defendant was charged with speeding, trial court's remark in explaining the speeding statute, "which doesn't make one bit of sense on earth," was not prejudicial to defendant. 4. Criminal Law 157 — necessary parts of record on appeal A case on appeal must show the organization of the trial court, a valid charge (information, warrant or indictment), arraignment and plea, verdict, judgment, and appeal entries. 5. Criminal Law 157 — sufficiency of record on appeal The record on appeal in a speeding case, though deficient in certain particulars, nevertheless contained enough information from which the Supreme Court could conclude that the superior court was regularly held and had jurisdiction of the defendant and of the offenses charged.

Automobiles 2 — habitual offender statute — revocation of driver's — license — nature of proceeding Since a driver's license revocation proceeding is not intended to punish the habitual offender of traffic laws but to remove from the highway one who is a potential danger to himself and other travelers, the proceeding is not criminal in nature, and the trial court's judgment which held the habitual offender statute unconstitutional and which was based on a misconception as to the nature of the proceeding was properly reversed by the Court of Appeals.

1. Criminal Law 88 — cross-examination to show bias — limitation improper Where a State's witness testified that he shared a cell with defendant and defendant admitted to the witness that he committed the robbery and murder in question, the trial court erred in refusing to allow defendant to cross-examine the witness as to who was paying the living expenses of the witness and his wife, neither of whom was working, and who procured a bond for the witness which was reduced from $5,000 to $400, since that evidence might show the witness's bias and have a bearing on his credibility. 2. Criminal Law 117, 119 — accomplice testimony — request for instructions — denial improper Where the evidence was sufficient to permit a finding that a witness was an accessory before the fact to the offense of robbery and murder, the trial court erred in failing to comply with defendant's request that the judge charge the jury to scrutinize the witness's testimony, even though defendant withdrew the request, since the withdrawal resulted from pressure by the trial court to do so.

Insurance 69 — uninsured motorist provision — wrongful death claim barred by statute of limitation — no recovery under contract provision The two-year statute of limitations applicable to tort claims for wrongful death and not the three-year limitation on actions on contracts applied to bar plaintiff's claim under an uninsured motorist endorsement on a policy issued by defendant, since defendant, in undertaking "to pay all sums which the insured or his legal representative shall be legally entitled to recover . . .," assumed liability only for damages for which plaintiff could recover judgment in a court of law in an action against the uninsured motorist.

1. Arrest and Bail 3 — arrest without warrant — reasonable ground Officers acted on reasonable ground and with probable cause when they stopped defendant and his companion and took them to the police station for photographing and fingerprinting, since the officers had been informed by officers in another town that a man<page_number>Page 329</page_number> fitting defendant's description had committed an armed robbery aided and abetted by a man fitting the description of defendant's companion and that the two robbers had been seen in a vehicle registered to defendant's companion. 2. Arrest and Bail 3 — warrantless arrest — armed robbery — reasonable belief that defendant will evade arrest Armed robbery is a crime of violence, the very nature of which suffices to support a reasonable belief that defendant would evade arrest if not immediately taken into custody; therefore, officers who had reasonable grounds to believe that defendant and his companion had committed an armed robbery lawfully arrested defendant and his companion without a warrant. 3. Criminal Law 66 — in-court identification — observation at crime scene as basis The trial court in an armed robbery case did not err in admitting an in-court identification of defendant by two eyewitnesses where the evidence tended to show that one witness gave a detailed description of defendant as one of the robbers, picked defendant's photograph out of a group of eight photographs, and then observed defendant as he was brought alone into a hallway to be observed by the witnesses, while the second eyewitness did not identify defendant from the group of photographs or from the hallway showup, but subsequently made up her mind that defendant was one of the robbers, based on her observation of defendant at the crime scene. 4. Criminal Law 60 — fingerprint evidence — testimony of officer who lifted prints The trial court did not err in admitting testimony of an officer that he had lifted latent fingerprints from an adding machine at the crime scene, though the officer had not been qualified as an expert, since the officer's testimony indicated that he had been lifting prints for ten years and was well qualified to perform that procedure and since the officer made no attempt to express an opinion with respect to the prints. 5. Criminal Law 60 — fingerprint evidence — chain of custody of evidence The trial court did not err in allowing an expert witness to testify that latent fingerprints lifted by an officer from the crime scene and fingerprints of defendant on a fingerprint card were the same since there was no breach in the chain of custody of the evidence as indicated by testimony that the officer who lifted the prints personally mailed them together with a fingerprint card of defendant's prints to the SBI in Raleigh, the envelope containing these was received unopened by the witness, he opened the envelope, ran tests on the two sets of prints, and concluded that they were made by the same person. 6. Criminal Law 118 — alibi — formal instruction not required Although the trial court did not use the word "alibi" in its charge or recapitulation of the evidence, the court did make it quite clear that the burden was on the State to prove all essential elements of the crime charged and that defendant did not have to prove anything in<page_number>Page 330</page_number> order to be found not guilty; therefore, the charge afforded defendant the same benefits a formal charge on alibi would have afforded.

Criminal Law 80, 89; Incest — motel registration card — genuineness not proved — admission erroneous The trial court in a prosecution for incest erred in admitting into evidence a motel registration card bearing the names of defendant and his daughter where there was no evidence identifying the handwriting as defendant's, nor was there evidence identifying defendant as the man who registered at the motel and signed defendant's name to the card; furthermore, even if the card had been admitted for the restricted purpose of corroborating the prosecuting witness, as the Court of Appeals erroneously held, defendant thereby suffered prejudice entitling him to a new trial.

1. Constitutional Law 30 — speedy trial — factors in determining abridgment of right The determination whether the constitutional right of a speedy trial has been violated involves the length of the delay, the reason for the delay, the defendant's assertion of his right to speedy trial and prejudice resulting to the defendant from the delay. 2. Constitutional Law 30 — availability of witness delay in trial-right to speedy trial denied Defendant's right to a speedy trial was violated where defendant petitioned for a speedy trial on the grounds that four witnesses material to his defense were then available, but they were itinerant workers and their continued availability was extremely doubtful, the State failed to call the case for trial promptly and offered no explanation for the delay, and defendant then moved for dismissal, indicating what testimony the witnesses would have given and the unavailability of the witnesses at that time.

1. Criminal Law 21 — preliminary hearing — necessity A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction. 2. Criminal Law 99 — expression of opinion by trial judge The provisions of G.S. <cross_reference>1-180</cross_reference> may be violated at any stage of the trial by comments on the testimony of a witness, by remarks which tend to discredit a witness, by imbalancing the evidence in the charge to the jury or by any other means which intimate an opinion of the trial judge in a manner which would deprive an accused of a fair and impartial trial before the jury; however, in the exercise of his duty to supervise and control the course of a trial so as to insure justice for all parties, the court may interrogate a witness for the purpose of clarifying his testimony, and it is the duty of the trial judge to control the examination and cross-examination of witnesses. 3. Criminal Law 99 — remarks of trial judge — burden of showing prejudice An accused is not entitled to a new trial because of remarks of the trial judge unless they tend to prejudice defendant in light of the circumstances in which they were made, and the burden of showing that he has been deprived of a fair trial by such remarks is upon defendant. 4. Criminal Law 88 — scope of cross-examination — restriction proper Defendant was not prejudiced where the trial judge restricted that portion of the cross-examination which sought to have an untrained witness distinguish between felonies and misdemeanors, or where the judge allowed an assistant solicitor to relate a witness's additional convictions, since the witness was a prisoner at the time he testified and he had already admitted to extensive criminal activities. 5. Criminal Law 99 — admonition by trial judge to witness — no expression of opinion Where the trial judge told a witness, "Listen, you don't have to talk like that," the remark was simply an admonition to the witness to give serious and responsive answers to questions put to him, and it did not reflect on the witness's credibility or amount to an expression of opinion as to the weight of the evidence. 6. Criminal Law 87 — leading question — definition A leading question is one which suggests the answer desired and is a question which may often be answered by yes or no. 7. Criminal Law 87 — leading questions — discretion of trial court It is generally recognized that an examining counsel should not ask his own witness leading questions on direct examination; however,<page_number>Page 483</page_number> it is firmly entrenched in the law of this State that it is within the sound discretion of the trial judge to determine whether counsel shall be permitted to ask leading questions, and in the absence of abuse the exercise of such discretion will not be disturbed on appeal. 8. Criminal Law 87 — leading question — guidelines for allowance Counsel should be allowed to lead his witness on direct examination when the witness (1) is hostile or unwilling to testify, (2) has difficulty in understanding the question because of immaturity, age, infirmity or ignorance, or where (3) the inquiry is into a subject of delicate nature such as sexual matters, (4) the witness is called to contradict the testimony of prior witnesses, (5) the examiner seeks to aid the witness's recollection or refresh his memory when the witness has exhausted his memory without stating the particular matters required, (6) the questions are asked for securing preliminary or introductory testimony, (7) the examiner directs attention to the subject matter at hand without suggesting answers, and (8) the mode of questioning is best calculated to elicit the truth. 9. Criminal Law 87 — leading questions allowed — no abuse of discretion The trial court did not abuse its discretion in allowing the solicitor to ask leading questions of two State's witnesses. 10. Criminal Law 89 — bad character — showing by specific acts improper The general rule is that the State cannot show bad character by specific acts, and the solicitor may not place before the jury incompetent or prejudicial matters not legally admissible in evidence by the use of insinuating questions. 11. Criminal Law 96, 169 — improper question — objections sustained — evidence of like import subsequently admitted Where not more than three questions were directed to State's witnesses concerning one defendant's complicity in the drug traffic and defense counsel's objections were sustained as to each question in the presence of the jury so that the jury must have known that the questions were not for their consideration, defendant was not prejudiced by the trial court's failure to instruct the jury to disregard the questions asked by the solicitor; furthermore, any prejudice which might have arisen because the jury heard the unanswered questions was rendered harmless by the subsequent admission without objection of evidence of like import to that which the solicitor had apparently sought to elicit.

1. Taxation 24 — ad valorem taxes — greige goods in finishing plant — nonresident owners — manufacturing Nonresident owners of textile greige goods shipped from outside North Carolina to a textile finishing plant in Forsyth County for processing and reshipment to the owners or to their customers were not engaged in manufacturing in North Carolina, and the business premises of the finishing plant were not also the business premises of the nonresident owners for purposes of ad valorem taxation of the goods. G.S. <cross_reference>105-304</cross_reference> (b)(1); G.S. <cross_reference>105-304</cross_reference> (d)(1), (2). 2. Taxation 24 — ad valorem taxes — greige goods in finishing plant — nonresident owner — purchase site — destination — tax situs Textile goods owned by nonresident converters which were shipped from outside North Carolina to a textile finishing plant in Forsyth County for processing and reshipment to the converters or to their customers at designated places outside North Carolina, and which were in the possession of the finishing plant on 1 January 1972, were not "situated" or "more or less permanently located" in Forsyth County on that date and, therefore, did not have a tax situs in Forsyth County on that date. 3. Taxation 24 — ad valorem taxation — greige goods in finishing plant — resident owner Greige goods manufactured either inside or outside North Carolina, shipped to a textile finishing plant in this State for processing, and owned by a North Carolina corporation when in the finishing plant's custody on January 1st are subject to ad valorem taxes in North Carolina; whether such goods are taxable in the county where the principal office and place of business of the North Carolina corporate owner is located or the county where the property is physically situated is a matter for determination by the State Board of Assessment. 4. Taxation 24 — ad valorem taxes — greige goods in finishing plant — nonresident owners — purchase site — destination — tax situs Textile goods in the custody of a finishing plant in Forsyth County on 1 January 1972 which had been purchased by the nonresident owners from North Carolina mills for shipment to destinations outside North Carolina after being processed by the finishing plant or which had been purchased by the nonresident owners from mills outside North Carolina for shipment to North Carolina customers<page_number>Page 599</page_number> after being processed by the finishing plant were subject to ad valorem taxation by Forsyth County.

1. Eminent Domain 6 — evidence of value — testimony by owner Unless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value even though his knowledge on the subject would not qualify him as a witness were he not the owner. 2. Eminent Domain 6 — evidence of value — opinion of owner Where defendant's attorney in a land condemnation proceeding asked defendant if he was familiar with the fair market value of real<page_number>Page 646</page_number> estate in the vicinity of his property and if he had an opinion satisfactory to himself as to the fair market value of his property on and after the date of the taking, defendant's answer, "Yes, sir, I think so," to both questions was a positive assertion that he knew land value in the vicinity of his property and had an informed opinion satisfactory to himself as to the value of the property on the pertinent date. 3. Eminent Domain 6; Trial 16 — evidence of value — comparable tracts — testimony stricken Trial court's failure to allow plaintiff's motion for mistrial in a land condemnation proceeding did not constitute prejudicial error where the court ruled that the purchase price paid in asserted comparable sales considered by realtors in valuing defendants' land would not be admitted in evidence, defendants' attorney asked a witness what one such comparable tract sold for, the court sustained plaintiff's objection but the witness answered anyway, and the trial court allowed plaintiff's motion to strike and instructed the jurors that they would not consider the witness's statement. 4. Eminent Domain 6 — evidence of value — offers inadmissible Mere offers, whether made by the owner of comparable properties or to him, are inadmissible to establish value in a land condemnation proceeding; however, an offer by the owner, made at or about the time of the taking, to sell his land for a lesser price than he now contends it is worth, is competent to contradict his present contention. 5. Eminent Domain 6 — evidence of value — opinion based on prices of comparable tracts — admissibility Where a witness in a land condemnation proceeding stated that, among other things, he investigated asking prices of comparable properties in the vicinity of defendants' property and then considered everything he knew in arriving at his estimates of value, his opinion was not inadmissible by reason of the fact that the comparable prices were part of his general knowledge and he did not exclude them from his considerations. 6. Eminent Domain 6 — evidence of value — elements which may be considered Although a witness should consider only proper elements of value, unless he has based his opinion in a material degree upon elements which cannot legally be considered, without separating such elements from those which may legally be considered, such opinion is not incompetent. 7. Eminent Domain 7 — jury instructions — no prejudicial error Plaintiff was not prejudiced by the trial court's error in instructing the jury with respect to damages to property adjoining that of defendants where it was obvious that the court meant property remaining in defendants' tract. 8. Trial 52 — refusal to set aside verdict for excessive award — no abuse of discretion The trial court's refusal to set aside the jury verdict in a land condemnation proceeding is not disturbed on appeal where there was no showing that the court abused its discretion.<page_number>Page 647</page_number>

1. Telephone and Telegraph Companies 1; Utilities Commission 6 — telephone rates — inadequate service due to bad management — effect on fair rate of return — denial of rate increase When, upon substantial evidence, a public utility is found to be rendering grossly inadequate service due to bad management and managerial indifference, and the rates presently charged by it yield a return sufficient to pay the interest on its indebtedness and a substantial dividend upon its stock, but less than that which would be deemed a fair return upon the fair value of its properties were the service adequate, the Utilities Commission may lawfully deny it authority to increase its rates for such service. G.S. <cross_reference>62-133</cross_reference>. 2. Telephone and Telegraph Companies 1; Utilities Commission 6 — purpose of public utility laws The primary purpose of G.S. Chapter 62 is not to guarantee to the stockholders of a public utility constant growth in the value of and in the dividend yield from their investment, but is to assure the public of adequate service at a reasonable charge.<page_number>Page 672</page_number> 3. Utilities Commission 6 — statutes assuring utility of adequate revenue — purpose Provisions of G.S. Chapter 62 designed to assure a public utility of adequate revenues are in the nature of corollaries to the basic proposition that the public is entitled to adequate service at reasonable rates and safeguards against administrative action which would violate constitutional protections by confiscation of the utility's property. 4. Utilities Commission 6 — rate of return — zone of reasonableness For a utility rendering acceptable service, there is a zone of reasonableness extending over a few hundredths of one percent within which a rate of return fixed by a regulatory commission will not be disturbed by the courts. 5. Telephone and Telegraph Companies 1; Utilities Commission 6 — service inadequacies — condition of properties — bad management — consideration of both In a telephone rate case, the Utilities Commission did not err in considering service inadequacies due to the condition of the properties in determining fair value and also in considering service inadequacies due to the quality of the management and personnel of the company in determining a fair return upon the fair value of the properties. 6. Telephone and Telegraph Companies 1; Utilities Commission 6 — failure to remedy inadequacies of service — denial of rate increase Where the Utilities Commission granted a telephone company increases in rates three times in a period of five years notwithstanding its finding of serious inadequacies in the company's service, and the company has indicated that it does not intend to make two of the improvements in service ordered by the Commission unless compelled to do so, the Commission cannot be deemed to have acted arbitrarily in saying that it would permit the company to raise its rates so as to increase its return on the fair value of its properties from 6.65% to at least 8.02% if its service were adequate but it will not now permit such increase in view of the company's persistent disregard of such inadequacy of service. 7. Telephone and Telegraph Companies 1; Utilities Commission 6 — excessive prices paid to affiliate — deduction from original cost Evidence that in instance after instance a telephone company paid to an affiliated company for equipment and materials prices far in excess of those paid by companies in the Bell System to Western Electric Company for like or superior equipment and materials supported the Utilities Commission's finding that such prices were so excessive as to indicate bad faith or mismanagement by those who control the telephone company, and such finding supported the Commission's deduction from the original cost, and so from the replacement cost and fair value, of the telephone company's properties on account of the excessive prices paid to the affiliated company. 8. Telephone and Telegraph Companies 1; Utilities Commission 6 — excessive plant margin — deduction from original cost There was sufficient evidence to support the Utilities Commission's deduction from original cost, and so from replacement cost and<page_number>Page 673</page_number> fair value, of the properties of a telephone company because of overbuilding of plant and the resulting excessive plant margins. 9. Telephone and Telegraph Companies 1; Utilities Commission 6 — necessary working capital — administrative question The amount of cash working capital reasonably required in a telephone company's operations is an administrative question upon which the Utilities Commission's determination is conclusive. 10. Telephone and Telegraph Companies 1; Utilities Commission 6 — rate case — rates charged by other utilities While rates charged by one telephone company do not, per se, constitute a standard by which to determine the reasonableness of those of another company, evidence of comparative rates may have some relevancy for use as a guide to the limits of the zone of reasonableness when the territories served and operating conditions are similar. 11. Telephone and Telegraph Companies 1; Utilities Commission 6 — evidence of rates charged by other similar utilities — absence of prejudice In a telephone rate case, the Utilities Commission did not commit prejudicial error in the admission of rate tariffs of other telephone companies having similar territories and operating conditions where the order of the Commission does not indicate that it gave any effect to such evidence other than use as a guide to the limits of the zone of reasonableness and it is inconceivable that the order would have been different had such evidence not been introduced. 12. Telephone and Telegraph Companies 1; Utilities Commission 6 — rates yielding return below that allowed in prior proceeding A telephone company's properties were not confiscated by the Commission's order continuing in effect rates which will yield a rate of return below that determined by the Commission to be reasonable in a prior proceeding, since such determinations are not res judicata and do not forbid either a higher or lower rate of return in a subsequent proceeding. 13. Utilities Commission 6 — replacement cost — uncontradicted expert testimony — rejection by Commission The Utilities Commission is not required to accept in full the conclusion of an expert witness as to replacement cost, even though it be uncontradicted by other evidence in the record. 14. Telephone and Telegraph Companies 1; Utilities Commission 6 — telephone rate case — inadequate service due to plant deficiencies — effect on replacement cost — failure to find facts — harmless error Failure of the Utilities Commission to find facts with respect to the effect it gave to inadequacy of service due to plant deficiencies in determining replacement cost, and so the fair value, of a telephone company's properties was not prejudicial error where it is apparent that the Commission's denial of the utility's request for an increase in rates was due to a finding of gross inadequacies of service due to management and personnel deficiencies rather than to plant deficiencies, and the effect given by the Commission to inadequacy of<page_number>Page 674</page_number> service due to plant deficiencies in determining fair value does not appear to have been large in relation to its finding of fair value.

1. Appeal and Error 68 — interlocutory decision — law of case in subsequent proceeding An interlocutory decision of the Court of Appeals did not constitute the law of the case on review by the Supreme Court of a subsequent decision in the same case. 2. Appeal and Error 22, 68 — interlocutory order — no petition for certiorari — effect on subsequent proceedings Failure of plaintiff to petition for a writ of certiorari to review an interlocutory decree of the Court of Appeals does not preclude the Supreme Court from granting certiorari after final judgment and thereupon considering and rectifying any errors which occurred at any stage of the proceedings. 3. Appearance 2; Rules of Civil Procedure 12 — general appearance — lack of jurisdiction over person — waiver Defendants who were South Carolina residents clearly became subject to the jurisdiction of the North Carolina courts when they made a general appearance by obtaining an extension of time to answer or otherwise plead.