Volume 287 — North Carolina Reports

1. Criminal Law 45 — firing of pistol — experimental evidence — admissibility In a murder prosecution where deceased was shot and where defendant objected to admission of evidence of certain experiments conducted with the murder weapon on the ground that there was no evidence to indicate that the weapon was in substantially the same condition at the time of the experiments as it was at the time of the shooting, the failure of the State to show lack of substantial change in the weapon did not rise to the level of prejudicial error in the light of the fact that defendant offered no objection to the admission of the pistol into evidence, and there was no proof or even reasonable suggestion of tampering with or material change in the weapon; however, it would have been the better practice for the State to establish a chain of custody and offer testimony that no substantial change in the weapon had occurred. 2. Criminal Law 45 — experimental evidence — admissibility — review on appeal Although experimental evidence should be received with great care, it is admissible when the trial judge finds it to be relevant and of probative value; even upon such finding the admission of experimental evidence is always subject to the further restriction that the circumstances of the experiment must be substantially similar to those of the occurrence before the court, and whether substantial similarity does exist is a question which is reviewable by the appellate courts in the same manner as is any other question of law. 3. Criminal Law 45 — experimental evidence — similarity of conditions The trial court in a second degree murder case did not err in allowing evidence of certain experiments conducted with the murder weapon since the circumstances of the experiments were substantially similar to those surrounding the crime though the pistol contained only one bullet when the experiments were made as compared with the fact that the weapon had bullets in each chamber when the shooting occurred, and there was no specific showing as to the similarities or dissimilarities between the floor on which the experiments were conducted and the floor in defendant's bathroom where the crime occurred. 4. Homicide 5 — second degree murder — intentional assault with deadly weapon If the State satisfies the jury beyond a reasonable doubt or it is admitted that a defendant intentionally assaulted another with a deadly weapon, thereby proximately causing his death, two presumptions arise: (1) that the killing was unlawful and (2) that it was done with malice, and nothing else appearing, the person who perpetrated such assault would be guilty of murder in the second degree.<page_number>Page 85</page_number> 5. Homicide 21 — intentional assault with deadly weapon — sufficiency of evidence The trial court in this second degree murder prosecution did not err in denying defendant's motion for nonsuit where the evidence was uncontroverted that decedent met her death from a wound proximately caused by a pistol, and the State's evidence concerning the course of the death bullet and experimental evidence concerning the firing of the death weapon left defendant's theory of accident or misadventure with no substantial basis in fact. 6. Homicide 30 — submission of lesser included offense — no prejudice Submission of the offense of involuntary manslaughter to the jury in a second degree murder prosecution was not prejudicial to defendant.

1. Master and Servant 69 — workmen's compensation — award for all injuries Where a workmen's compensation claim is properly pending before the Industrial Commission, the injured employee is entitled to an award which encompasses all injuries received in an accident. 2. Master and Servant 69 — workmen's compensation — single claim for all injuries An injured employee is required to file but a single claim for workmen's compensation, and the amount of the compensation payable<page_number>Page 220</page_number> is predicated on the extent of the disability resulting from the accident. 3. Master and Servant 72, 93 — workmen's compensation — foot injury within original claim Plaintiff's claim for compensation for any permanent partial loss of use of his right foot was embraced within his original claim for compensation and was pending when the Full Commission entered an award covering disfigurement and permanent partial disability to the right arm but failing to make any finding of fact or award with respect to plaintiff's right foot, although evidence of the amount of permanent partial disability of the foot had been presented to the hearing officer; therefore, the Court of Appeals erred in holding that the question of permanent partial disability of the right foot was not properly before the Commission.

1. Criminal Law 34 — evidence of other crimes — competency to show common plan, identity In an armed robbery prosecution, testimony by a participant in the robbery that he and defendant had previously robbed three similar establishments and that defendant had used the same pistol in all of the robberies was admissible to establish a common plan or scheme embracing the commission of a series of related crimes which tended to connect the accused with the commission of the crime charged and was also competent on the question of identity. 2. Criminal Law 169 — objection to evidence — same evidence admitted without objection When evidence is admitted over objection but the same evidence has theretofore been admitted without objection, the benefit of the objection is ordinarily lost. 3. Criminal Law 162 — necessity for objection or motion to strike An objection must be made as soon as the objectionable question is asked and before the witness has time to answer; however, when inadmissibility is not indicated by the question and becomes apparent in the answer, the objection should be in the form of a motion to strike the answer or its objectionable part.

1. Divorce and Alimony 18 — alimony pendente lite — transfer of automobile title The trial judge acted within his authority in directing defendant to transfer possession and title to an automobile as alimony pendente lite. G.S. <cross_reference>50-16.7</cross_reference> (a) and (c). 2. Divorce and Alimony 18 — alimony pendente lite — possession of home — mortgage payments — accruing equity In awarding alimony pendente lite to plaintiff, it was proper for the court to award plaintiff exclusive possession of the home owned jointly by the parties and to require defendant to make the monthly payments on the mortgage in order that plaintiff and their two children might have a place to live; however, the court erred in giving plaintiff "the equity accruing" in the jointly owned property to the extent of the mortgage payments made by defendant pendente lite.

1. Criminal Law 15; Jury 2 — change of venue — jurors from another county — prominence of victim — newspaper publicity In this kidnapping and murder prosecution, the trial court did not abuse its discretion in the denial of defendant's motion for a change of venue or for a jury to be summoned from another county on grounds that the prominence of the victim and inflammatory publicity contained in the local newspapers would prevent a fair trial in the county or by jurors drawn from the county. 2. Criminal Law 76 — admissibility of confession — findings and conclusions — appellate review Findings of fact made by the trial judge after conducting a voir dire hearing on the admissibility of a confession are conclusive and binding on the appellate courts if supported by competent evidence, but the conclusions of law drawn from the facts found are reviewable by the appellate courts. 3. Criminal Law 75 — confession — Miranda warnings — necessity for determination of voluntariness Even though there was ample evidence that the procedural requirements of Miranda were employed by officers upon the taking of in-custody statements from defendant, it must still be determined whether, under all of the surrounding circumstances, defendant made the statements voluntarily and understandingly. 4. Criminal Law 75 — confession — youthfulness — low mentality Defendant's youth and low mentality, standing alone, were not sufficient to render his confession involuntary; nor does the fact that the confession occurred after prolonged interrogation necessarily render it involuntary. 5. Criminal Law 75 — confession — father's advice to waive rights — prolonged interrogation Defendant's confession was not rendered involuntary because his father, a policeman, told him to sign waivers of his rights or because the record discloses prolonged interrogation of a highly impressionable young man where defendant had ready access to his family and friends, before each interrogation defendant was warned of his constitutional rights, including his right to counsel, and the record discloses an absence of promises, threats or other coercive actions. 6. Criminal Law 106 — necessity for evidence in addition to confession While a conviction cannot be sustained upon a naked extrajudicial confession, the case should be submitted to the jury if the State offers into evidence sufficient extrinsic corroborative circumstances as will, when taken in connection with the confession, show that the crime was committed and that the accused was the perpetrator.<page_number>Page 304</page_number> 7. Homicide 21; Kidnapping 2 — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for kidnapping and murder where, is addition to defendant's confession, there was evidence tending to show that defendant had the opportunity to steal the pistol which was shown to have fired the fatal bullets, and that on the night of the crime defendant had in his possession an automobile similar to the one belonging to deceased, a large sum of cash, a pistol the same color as the one which fired the bullets into deceased's body, and some empty shells. 8. Constitutional Law 36; Criminal Law 135 — death penalty for murder Death sentence was constitutionally imposed for first degree murder.

1. Criminal Law 66 — in-court identification — suggestive pretrial procedures — reliable identification — independent origin In a prosecution for rape, felonious assault and armed robbery, pretrial identification procedures were suggestive where defendant was exhibited singly to the victim through a one-way mirror and defendant was the only person who appeared in all of the photographic, showup and lineup identification procedures; however, the totality of circumstances discloses that the victim's identification of defendant was reliable, the court's determination that the victim's in-court identification of defendant was of independent origin was supported by the evidence, and the in-court identification was properly admitted in evidence where the voir dire evidence showed that the victim was with her assailant for about 20 minutes, at times in close proximity at a place where interior and exterior lights made identification possible, the victim's description of her assailant's facial characteristics permitted a police specialist to prepare an adequate composite picture of defendant, the victim was able to describe differences in the hair and beard of defendant as she viewed him at the showup, lineup and trial as compared with his appearance on the day she was attacked and only a month passed between the day of the attack and the victim's positive identification of defendant at the lineup. 2. Criminal Law 85 — character witness — cross-examination — specific acts of misconduct by defendant In this prosecution for rape, felonious assault and armed robbery wherein defendant did not testify, the court erred in permitting the solicitor to ask defendant's character witness on cross-examination whether he knew defendant had served time and was on probation for other crimes, including assault, and whether he would have testified to defendant's good character if he had had such knowledge, and such error was not cured when the court on the following day instructed the jury to disregard the solicitor's questions to the witness.

1. Municipal Corporations 31 — zoning — review of decision by board of adjustments When a proceeding is before the superior court upon certiorari for review of the order of a county board of adjustments, the findings of fact made by the board, if supported by evidence introduced at the hearing before the board, are conclusive. 2. Municipal Corporations 31 — zoning — review of decision of board of adjustments Upon review by certiorari in the superior court of an order of a county board of adjustments, the matter is before the court to determine whether an error of law has been committed and to give relief from an order of the board which is found to be arbitrary, oppressive or attended with manifest abuse of authority it is not the function of the reviewing court to find the facts but to determine whether the findings of fact made by the board are supported by the evidence before the board. 3. Municipal Corporations 30 — zoning — nonconforming use — building or other development — expenditure of money or contractual obligation In order for a landowner to acquire a vested right to continue development of land as a nonconforming use after the enactment of a<page_number>Page 494</page_number> zoning ordinance, it is not material whether the proposed development and use of the land be the construction of a building or some other development, such as construction of recreational facilities, roads, water and sewer lines and the grading, clearing and development of the sites for the proposed use of the property; furthermore, there is no basis for distinction between the actual expenditure of money and the incurring of binding contractual obligations for such expenditure, or between expenditures for the acquisition of the land, for the acquisition of building materials or services and for the making of visible, physical changes in the condition of the land. 4. Counties 5; Municipal Corporations 30 — zoning ordinance — good faith expenditures before passage — knowledge zoning under consideration The developer of a lakeside campsite project did not act in bad faith in making and incurring substantial expenditures and obligations in the development of the project prior to the adoption of a county zoning ordinance which would prohibit the use of the land for such purpose where the evidence in the record shows that at the time the developer acquired and began work on the property it knew no more concerning the county's plans for zoning than that a general consideration of zoning of the entire rural portion of the county was in progress by the Planning Board, that the Planning Board, itself, had not determined what zoning restrictions it would recommend to the county for the area including the land in question, and that the reason the developer proceeded speedily with its development was not to win a race with the proponents of zoning but to get its property in condition to take advantage of the spring and summer market for the sale of campsites; therefore, the developer has a right to continue development of its property as a nonconforming use to which the zoning ordinance does not apply. 5. Counties 5; Municipal Corporations 30 — zoning ordinance — good faith expenditures — attempt to "beat" ordinance Statement by a developer's president at a public hearing several months after development of land had begun that he was aware that zoning "had been in the planning stage for a year or so" and that he was "trying to beat it" does not show bad faith by the developer in proceeding with its proposed development. 6. Counties 5; Municipal Corporations 30 — study of zoning — right of landowner to develop property The right of landowners to develop their properties in ways then lawful cannot be frozen by a county's or a municipality's announcement of its undertaking of a general study of zoning which, at some future date, may or may not lead to the adoption of an ordinance restricting the landowner's proposed use of his land. 7. Counties 5; Municipal Corporations 30 — zoning ordinance — nonconforming use — entire campsite project Although roads had been cut in only five of eight sections of a campsite development project and lots had been staked off in only one area at the time a county zoning ordinance was passed, the entire development constituted a nonconforming use where the evidence<page_number>Page 495</page_number> shows that the detailed map of the project was prepared in eight sections solely in order to permit the use of a scale sufficient to make the map readable, not because of any plan to develop the tract in sections, and that, from the outset, the developer intended to develop the entire property as promptly as possible without interruption and without regard for section boundaries.

1. Injunctions 11; State 2.5 — State buildings — Art Museum Building Commission — open meetings law The open meetings law, G.S. <cross_reference>143-318.1</cross_reference> et seq., does not render void all action taken at a meeting of any governmental body of this State or of one of its political subdivisions if such meeting was not open to the public, and plaintiffs are not entitled to an injunction<page_number>Page 626</page_number> prohibiting the Art Museum Building Commission from performing any of its statutory duties or exercising any of its statutory authorities until all of its meetings are held as open meetings. 2. Injunctions 11; State 2.5 — State buildings — Art Museum — possible directions by 1975 Legislature The possibility that the 1976 General Assembly might give further directions to the Art Museum Building Commission concerning the location and construction of a State Art Museum cannot be the basis for restraining the Commission from acting in accordance with directions previously given. 3. State 2.5 — Art Museum Building Commission — Executive Budget Act The Art Museum Building Commission is subject to the provisions of the Executive Budget Act, G.S. 143-30 through G.S. 143-31.2. 4. Injunctions 11; State 2.5 — Art Museum Building Commission — failure to comply with Executive Budget Act — claim for injunctive relief Plaintiff's complaint states a claim for relief to enjoin the Art Museum Building Commission from carrying out any activities in relation to the location and construction of an art museum until they comply with certain statutes where it alleges that the Commission has failed to comply with the provisions of the Executive Budget Act requiring it to present its budget to the Director of the Budget, to construct all buildings in strict accordance with budget requests and to refrain from receiving bids on such a construction project until the results of a study and review by the Director of the Budget of the Commission's budget requests have been incorporated into the Commission's plans and specifications for construction of the art museum. 5. State 2.5 — State buildings — N.C. Capital Building Authority — art museum The powers of the North Carolina Capital Building Authority (now the Department of Administration) under G.S. Ch. 129, Art. 7, do not extend to the planning and construction of a State Art Museum since those powers have been specifically conferred on the Art Museum Building Commission by G.S. <cross_reference>143B-58</cross_reference>. 6. State 2.5 — art museum — approval of Governor and Council of State The Art Museum Building Commission, having acquired approval of its selection of the site for an art museum from the Governor and Council of State then in office, is not required by G.S. <cross_reference>143B-58</cross_reference> (1) to obtain the approval of each succeeding Governor and Council of State taking office prior to the completion of the museum building. 7. Injunctions 11; State 2.5 — art museum — allocation of site by Department of Administration An allegation that the Department of Administration has not allocated the Polk Prison site to the Art Museum Building Commission for the location of an art museum as required by G.S. <cross_reference>143-341</cross_reference> (4)g states a claim for relief to enjoin the Commission from proceeding with its plan to construct an art museum on that site.<page_number>Page 627</page_number> 8. Injunctions 11; State 2.5 — art museum — Environmental Impact Statement Allegations that the construction of an art museum at the Polk Prison site would significantly affect the quality of the environment of the State and that the Art Museum Building Commission must therefore file an Environmental Impact Statement prior to proceeding with such construction fail to state a claim for injunctive relief against the Commission since there is nothing in the Environmental Policy Act of 1971, G.S. <cross_reference>113A-1</cross_reference> et seq., which makes the filing of such statement a condition precedent to the commencement of construction of a building for which State funds have been appropriated, and since, nothing else appearing, the substitution of an art museum for a prison will not adversely affect the environment. 9. Injunctions 11; State 2.5 — art museum — air pollution control — permit from Environmental Management Commission Allegations that the parking facilities and the heating and air conditioning units for the proposed art museum are subject to the air quality or emission control standards established pursuant to G.S. <cross_reference>143-215.107</cross_reference> and that the Art Museum Building Commission has not obtained a permit from the Environmental Management Commission are insufficient to state a claim for injunctive relief against the Commission where there is no allegation that or wherein the proposed parking facilities and heating and air conditioning units "contravene or will be likely to contravene such standards," since such contravention or likelihood of contravention is, by the terms of the statute, a condition precedent to the necessity for a permit from the Environmental Management Commission. 10. State 2.5 — site of art museum — discretion of Art Museum Building Commission The Art Museum Building Commission, with the approval of the Governor, the Council of State and the North Carolina State Capital Planning Commission, may select whatever site it deems most appropriate for the building of a State Art Museum. 11. Injunctions 11; State 2.5 — art museum — planning of "Cultural Complex" — claim for injunctive relief An allegation that the Art Museum Building Commission has exceeded its statutory authority in that it is planning not only the construction of an art museum but also the construction of a "Cultural Complex," including various other buildings for the purpose of housing therein various activities cultural in nature but not components of an art museum, states a claim for injunctive relief against the Commission since G.S. <cross_reference>143B-58</cross_reference> confers upon the Commission no authority to plan or construct anything but an art museum building and accessories necessary and proper for its successful operation. 12. State 4 — action against State Commission — doctrine of sovereign immunity A suit against a State officer or a State Commission to prevent him or it from performing his or its official duties is a suit against the State within the meaning of the doctrine of sovereign immunity.<page_number>Page 628</page_number> 13. State 4 — defense of sovereign immunity — burden of proof Officers who seek to defend an action on the ground of sovereign immunity must show they were acting within the scope of their authority. 14. Injunctions 11; State 4 — sovereign immunity — exceeding statutory authority The doctrine of sovereign immunity does not authorize the dismissal of the complaint of a citizen and taxpayer who alleges that the members of a State Commission, in excess of their statutory authority, or contrary to law, propose a diversion of State tax funds from the purpose for which such funds were appropriated or other misuse of such funds or of other State property, or are acting in disregard of a statute designed to protect the State from misuse or waste in the expenditure of its tax funds.