Volume 286 — North Carolina Reports

1. Pleadings 38; Rules of Civil Procedure 12 — motion for judgment on pleadings A motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain; when the pleadings do not resolve all the factual issues, judgment on the pleadings is generally inappropriate. G.S. <cross_reference>1A-1</cross_reference>, Rule 12 (c). 2. Pleadings 38; Rules of Civil Procedure 12 — judgment on pleadings — burden of proof Judgment on the pleadings is a summary procedure and the judgment is final; therefore, the movant is held to a strict standard and must show that no material issue of fact exists and that he is clearly entitled to judgment. 3. Pleadings 38; Rules of Civil Procedure 12 — motion for judgment on pleadings — consideration of allegations Upon motion for judgment on the pleadings, all well pleaded factual allegations in the nonmoving party's pleadings are taken as true and all contravening assertions in the movant's pleadings are taken as false. 4. Pleadings 38; Rules of Civil Procedure 12 — motion for judgment on pleadings — consideration of nonmovant's pleadings All allegations in the nonmovant's pleadings, except conclusions of law, legally impossible facts, and matters not admissible in evidence at the trial, are deemed admitted by the movant for purposes of the motion for judgment on the pleadings. 5. Corporations 13; Fraud 9 — sale of corporate stock — misrepresentations that corporation was "gold mine" and "going concern" — sufficiency of allegations of fraud In an action by the former president and general manager of a corporation to recover on a promissory note given by defendant corporate directors for the purchase of stock in the corporation, defendants stated a counterclaim of fraud sufficient to overcome plaintiff's motion for judgment on the pleadings where they alleged that plaintiff ran the corporation without holding any meetings of the board of directors and without interference from defendants, and that plaintiff falsely represented to defendants that the business was a "gold mine" and a "going concern" when he knew that the corporation's cash funds had decreased by $20,000 since he became president, that $20,000 had been borrowed for the corporation, that a corporate demand note was delinquent, and that the corporate working capital was so depleted and corporate income so inadequate that the corporation could not pay its normal operating expenses.<page_number>Page 131</page_number> 6. Fraud 1 — elements of fraud The essential elements of actionable fraud are: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. 7. Fraud 3 — subsisting or ascertainable fact To constitute fraud, a subsisting or ascertainable fact as distinguished from a matter of opinion or representation relating to future prospects must be misrepresented. 8. Fraud 3 — definite and specific misrepresentation Generally, a misrepresentation must be definite and specific to constitute fraud, but the specificity required depends upon the tendency of the statement to deceive under the circumstances. 9. Corporations 13; Fraud 3 — seller of corporate stock — describing business as "gold mine" — duty to disclose financial circumstances When the president and general manager of a corporation undertook to describe the business as a "gold mine" and a "going concern" to prospective purchasers of his stock in the corporation, he incurred the concomitant duty to make full disclosure of any extenuating financial circumstances which counteracted his positive assertions concerning the condition of the corporation. 10. Fraud 3; Vendor and Purchaser 6 — seller's duty to disclose defects to buyer When the circumstances make it the duty of the seller to apprise the buyer of defects in the subject matter of the sale known to the seller but not to the buyer, suppression of the defects constitutes fraud.

1. Jury 2, 5 — motion to summon jurors from another county — motion to exclude jurors from community where crime occurred — publicity of prior trials In this first degree murder prosecution, the trial court did not abuse its discretion in the denial of defendant's motions for the summoning of a jury from another county and, alternatively, for the exclusion from the jury panel of residents of the community in which the offense occurred, made on the ground that two former trials of defendant for the same crime were given extensive newspaper publicity<page_number>Page 141</page_number> and were the subject of general conversation in the community, where the record contains no evidence as to the extent or nature of such publicity, nothing in the record indicates that any juror at the third trial heard any discussion of the case, saw any newspaper account of it or had formed an opinion as to defendant's guilt, and it does not appear in the record that defendant exhausted his peremptory challenges or that any challenge for cause by him was not allowed. G.S. <cross_reference>9-12</cross_reference> (a). 2. Homicide 21 — first degree murder — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for first degree murder where it tended to show that the victim was strangled to death, that defendant was left by his companions afoot, in the vicinity of the victim's home after midnight, less than 12 hours before her body was discovered, and that defendant told his girl friend that he entered the victim's home through a window and, in an attempt to rape her, choked her until she stopped struggling and thereafter stole coins from her dresser drawer. 3. Criminal Law 112 — instructions — reasonable doubt Unless he is requested to do so, the trial judge is not required to define "reasonable doubt" in his instructions to the jury and, if he undertakes to define it, he is not limited to the use of an exact formula. 4. Criminal Law 112 — instructions — reasonable doubt as possibility of innocence — harmless error The trial court's definition of reasonable doubt as a possibility of innocence, though disapproved, was favorable to defendant and did not constitute prejudicial error. 5. Criminal Law 114 — statement of contentions — no expression of opinion In a prosecution for first degree murder, the trial court did not express an opinion that the jury should find that the victim was killed in stating the State's contention that defendant was attempting to steal goods or moneys or to commit rape "at the time of the killing of" the victim. 6. Criminal Law 87 — allowance of leading questions The trial court did not err in allowing witnesses for the State to testify in response to leading questions by the prosecuting attorney. 7. Criminal Law 135; Homicide 31 — first degree murder — commission prior to 18 January 1973 — life sentence The proper sentence to be imposed upon one convicted of murder in the first degree, committed prior to 18 January 1973, is a sentence to imprisonment for life. 8. Criminal Law 77 — confession to girl friend — admissibility In a prosecution for first degree murder, there was no error in the admission of the testimony of defendant's girl friend who recounted to the jury the defendant's confession to her that he strangled the victim in an attempt to commit a rape upon her.<page_number>Page 142</page_number>

1. Master and Servant 49 — workmen's compensation — farm labor exemption — delivery of eggs to retailer An employee whose duties consisted of cleaning, grading and packaging of eggs, delivering eggs by motor vehicle to retail customers on a regularly maintained schedule, and keeping records of sales and collecting for the eggs she delivered was not a "farm laborer" excluded from coverage under the Workmen's Compensation Act by G.S. <cross_reference>97-13</cross_reference> (b). 2. Master and Servant 48 — workmen's compensation — agricultural exemption — egg producers delivering eggs to retailers When egg producers formed a business association with a registered trade name, sought to increase the profits of the business by selling and delivering eggs over stated routes to stores, institutions and individuals, and subjected their employee to the daily hazards of operating a motor vehicle upon the highways to places far removed from the farm, their business ceased to be "agriculture" within the meaning of G.S. <cross_reference>97-2</cross_reference> (1), which exempts "agriculture" from the meaning of "employment" under the Workmen's Compensation Act. 3. Master and Servant 48 — workmen's compensation — exemption for agriculture — service business It is only when a farmer departs from his agricultural pursuits and clearly enters into a service business or another business remote from the direct production of agricultural products that his services cease to be "agriculture" within the meaning of G.S. <cross_reference>97-2</cross_reference> (1).

1. Damages 4 — injury to personal property — measure of damages The measure of damages for injury to personal property is the difference between its fair market value immediately before and immediately after the injury. 2. Damages 13 — price paid by purchaser as evidence of value The price voluntarily paid by a purchaser is some evidence of market value if the sale is not too remote and the purchase price is probative of the value of the property at the time in question. 3. Damages 13 — boat purchased at government surplus sale — competency of purchase price In an action to recover damages for injury to a boat owned by plaintiff, evidence of the purchase price of the boat was not rendered incompetent by remoteness or by extensive changes in its condition where the evidence tended to show that plaintiff purchased the boat fourteen months before the accident at a government surplus sale in Charleston, S.C., the boat was tested in the water for three days and then towed to Charlotte, N.C., where it was placed on a wooden cradle in plaintiff's driveway, and the boat was roughly in the same condition at the time of the accident as it was at the time plaintiff purchased it. 4. Damages 13 — government surplus sale — no compulsory sale — price paid for boat competent evidence In an action to recover damages for injury to plaintiff's boat which he had purchased at a government surplus sale, the amount which plaintiff bid and paid for his boat was competent since the government was under no compulsion to sell.

1. Indictment and Warrant 9 — crime charged in indictment — lesser included offenses A defendant brought to trial under an indictment, proper in form, may, if the evidence so warrants and the trial is free from error, be properly convicted of the offense charged in the indictment or of a lesser offense all of the elements of which are included in the offense charged in the indictment and all of which elements can be<page_number>Page 203</page_number> proved by proof of the allegations of fact contained in the indictment. G.S. <cross_reference>15-170</cross_reference>. 2. Narcotics 1 — possession and sale of controlled substances — separate offenses Neither the offense of unauthorized possession nor the offense of unauthorized sale of a controlled substance is included within the other offense and one placed in jeopardy as to the one offense is not thereby placed in jeopardy as to the other; thus, one charged with both offenses may be convicted of both and sentenced to imprisonment for each. 3. Narcotics 1, 4.5 — possession with intent to deliver — possession as lesser included offense — instructions proper Possession is an element of possession with intent to deliver a controlled substance, and the unauthorized possession is of necessity an offense included within the charge that the defendant did unlawfully possess with intent to deliver; consequently, the trial court did not err in instructing the jury that, under the indictment charging defendant with possession of heroin with intent to deliver, it might find defendant guilty of the unauthorized possession of a controlled substance.

Appeal and Error 46 — Court evenly divided — judgment affirmed — no precedent Where the Court was equally divided on the question presented and one Justice did not participate in the hearing or disposition of the case, the decision of the Court of Appeals is affirmed without becoming a precedent.

1. Courts 21 — contract made in different state — what law governs Sales contract executed in Pennsylvania but performed in Illinois was governed by the substantive law of Pennsylvania, as determined by the Supreme Court in an earlier appeal of the case. 2. Appeal and Error 68 — effect of Supreme Court decision on subsequent proceedings The decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal. 3. Sales 14; Uniform Commercial Code 20 — breach of warranty — evidence of value six years after sale — remoteness Where the measure of damages in this action for breach of warranty of fitness of trailers was the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, evidence as to the trade-in value of the trailers some six years after the delivery and acceptance was too remote in time to be competent and the trial court properly excluded it.<page_number>Page 236</page_number> 4. Sales 14; Uniform Commercial Code 20 — breach of warranty — value of trailers — depreciation schedule properly excluded Depreciated value is an arbitrary valuation and does not necessarily reflect fair market value, and depreciation is a means of setting aside a reserve or sinking fund for replacement, and, further, a tax deduction for business expenses; therefore, depreciation schedules and depreciated values did not fairly point to the value of trailers at the time they were delivered by defendant and accepted by plaintiff, and such evidence was properly excluded in an action for breach of warranty of fitness of the trailers. 5. Evidence 19 — condition of property — condition at another time Whether evidence of condition at one time is competent as evidence of condition at another time depends altogether on the nature of the subject matter, the length of time intervening, and the extent of the showing, if any, on the question of whether or not the condition had changed in the meantime. 6. Sales 14; Uniform Commercial Code 20 — warranty of fitness of trailers — hardness tests — exclusion improper Trial court in an action for breach of warranty of fitness of trailers erred in excluding evidence of hardness tests made on the top rails of the trailers some six years after their manufacture, since the hardness of metal is such a constant, immutable characteristic that the six-year time lapse was greatly diminished in significance; furthermore, plaintiff was allowed to introduce evidence of hardness tests and defendant should have been allowed to introduce refuting evidence. 7. Sales 14; Uniform Commercial Code 20 — breach of warranty — instruction as to cause of malfunction In an action for breach of warranty of fitness of trailers, the trial court's instruction that, "When a semi-trailer malfunctions, it obviously lacks fitness regardless of the cause of the malfunction," was erroneous, since the charge should have limited the malfunction necessary to constitute a breach to something done or not done by defendant in manufacturing the trailers.

1. Jury 7 — jurors opposed to death penalty — challenge for cause proper Jurors who indicated that they were irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence were properly excused for cause. 2. Jury 7 — general reservations of juror about death penalty — excusal for cause improper The trial court erred in excusing for cause a juror who voiced general reservations about the death penalty but who made no affirmative, unequivocal statement that she was unwilling to consider the death penalty or that she was irrevocably committed to vote against it regardless of the facts and circumstances that might be revealed by the evidence; however, the erroneous allowance of the improper challenge for cause does not entitle defendant to a new trial. 3. Criminal Law 102 — argument of counsel — discretionary control by trial judge Argument of counsel must be left largely to the control and discretion of the presiding judge and counsel must be allowed wide latitude in the argument of hotly contested cases. 4. Criminal Law 102 — jury argument — matters arguable Counsel for both sides are entitled to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom; however, counsel may not place before the jury incompetent and prejudicial matters, may not travel outside the record by injecting into his argument facts of his own knowledge or other facts not included in evidence, and may not argue principles of law not relevant to the case. 5. Constitutional Law 33; Criminal Law 102 — jury argument — comment on defendant's failure to testify The prosecuting attorney's remark, "Now, it is a principle of law that, when applied in these trials, that the State nor the defense cannot show a person's criminal record unless that person testified from this witness stand . . .," amounted to a suggestion in unmistakable terms that defendant had failed to testify, and such remark violated the rule of G.S. <cross_reference>8-54</cross_reference> that counsel may not comment upon the failure of a defendant in a criminal prosecution to testify. 6. Criminal Law 88 — cross-examination — inquiry as to prior convictions and misconduct for impeachment only The law is that a witness, including the defendant in a criminal case, may be cross-examined for purposes of impeachment with respect to prior convictions of crime, and the witness may also be cross-examined about specific acts of misconduct and may be asked disparaging<page_number>Page 510</page_number> questions concerning collateral matters relating to his criminal and degrading conduct. 7. Criminal Law 88, 102 — jury argument concerning prior criminal record — impropriety — failure of court to give curative instruction Argument of the prosecuting attorney which suggested to the jury that defendant had a prior criminal record which, but for the "legal principle" that "the State . . . cannot show a person's criminal record unless that person testified . . .," the State would have offered evidence to prove was improper and erroneous, and failure of the court to instruct the jury that the argument was improper with prompt and explicit instructions to disregard it required that defendant be given a new trial.

1. Homicide 12 — indictment — premeditated murder or murder in perpetration of felony A bill of indictment drawn under G.S. <cross_reference>15-144</cross_reference> is sufficient to sustain verdict of guilty of murder in the first degree if the jury finds from the evidence and beyond a reasonable doubt that the defendant killed the deceased with malice, after premeditation and deliberation, or that he killed the deceased in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony. 2. Homicide 12; Indictment and Warrant 13 — murder indictment — purpose of bill of particulars If a defendant is charged with murder in the first degree by a bill of indictment drawn under G.S. <cross_reference>15-144</cross_reference> and desires to know whether the State relies on proof the killing was done with premeditation or deliberation, or in the perpetration or attempt to perpetrate a felony, he should apply for a bill of particulars as provided in G.S. 15-143; the function of such a bill of particulars is (1) to inform the defense of the specific occurrences intended to be investigated on the trial and (2) to limit the course of the evidence to the particular scope of inquiry. 3. Indictment and Warrant 13 — bill of particulars — denial proper In a prosecution for arson and first degree murder, the trial court did not abuse its discretion in denying defendant's motion for a bill of particulars where the arson indictment set out the county in which the alleged offense occurred, the date of the occurrence, the street address of the house alleged to have been burned, and the name of the occupants therein, the murder indictments gave the date, the county where the offense was alleged to have occurred, and the names of the alleged victims, defendant was familiar with the house involved and its occupants, all information surrounding the commission of the crimes was well known to defendant, and the solicitor announced that he would make out a case of premeditation and deliberation and would also make out a case of homicide in the perpetration of a felony. 4. Arson 4; Homicide 21 — premeditated murder — murder in perpetration of arson — sufficiency of evidence of both Where the evidence tended to show that prior to the fire witnesses heard defendant say he was going to burn the house in question, defendant told the homeowner that he was going to burn her house and her baby, and after the fire was set defendant made the statement that he had "burned [the house] down," such evidence was sufficient to permit the jury to find that defendant committed premeditated murder or murder in the perpetration or attempt to perpetrate arson, and the trial court did not err in submitting both to the jury.<page_number>Page 598</page_number> 5. Criminal Law 6 — intoxication as defense — specific intent as element of crime Except where a crime requires a showing of specific intent, voluntary intoxication is not a defense to a criminal charge. 6. Homicide 8 — defense of intoxication — specific intent as element of crime Specific intent is not an element of the crime of arson, but it is a necessary constituent of the elements of premeditation and deliberation in first degree murder, and a showing of legal intoxication to the jury's satisfaction will mitigate the offense to murder in the second degree. 7. Homicide 8 — first degree murder — intoxication as defense — insufficiency of evidence Testimony by witnesses that defendant had been drinking but that he was not drunk did not constitute evidence that defendant's mind was so intoxicated and his reason so overthrown that he could not form a specific intent to kill, nor did defendant at any time say he was so drunk that he did not know what he was doing but instead recited in detail his actions on this occasion; therefore, the trial court was not required to instruct the jury as to defendant's intoxication. 8. Criminal Law 26; Homicide 31 — felony-murder — separate punishment for felony — error Since arson was an essential and indispensable element in the State's proof of murder committed in the perpetration of the felony of arson, it afforded no basis for additional punishment, and the trial court erred in failing to arrest the judgment. 9. Constitutional Law 36; Homicide 31 — first degree murder — death penalty proper <block_quote> Defendant's constitutional and statutory rights were not violated by the imposition of the death penalty in this first degree murder case.</block_quote>