Volume 288 — North Carolina Reports

1. Attorney and Client 2 — admission to bar — standards — good moral character While a State cannot exclude a person from the practice of law for reasons that contravene the Due Process or Equal Protection Clauses of the Fourteenth Amendment, a State can require high standards for admission to the bar, including good moral character and proficiency in its laws, so long as the qualifying standards have a rational connection with the applicant's fitness or capacity to practice law. 2. Attorney and Client 2; Administrative Law 1 — admission to bar — qualifications determined by Legislature — delegation of authority to Board of Law Examiners It is well established that the constitutional power to establish the qualifications for admission to the Bar of this State rests in the Legislature, and it is equally well settled that the Legislature may delegate a limited portion of its power as to some specific subject matter if it prescribes the standards under which the agency is to exercise the delegated authority. 3. Attorney and Client 2; Constitutional Law 12 — character requirements for admission to bar — constitutionality The "character and general fitness" requirement of G.S. <cross_reference>84-24</cross_reference> and the "good moral character; requirement of Rule VIII of the<page_number>Page 2</page_number> Rules Governing Admission to the Practice of Law in the State of N.C. are constitutionally permissible standards for admission to the Bar. 4. Attorney and Client 2 — admission to bar — good moral character — burden on applicant Facts relevant to the proof of the good moral character of an applicant for admission to the N.C. Bar are largely within the knowledge of the applicant and are more accessible to him than to an investigative board; accordingly, the burden of proving his good moral character traditionally has been placed upon the applicant in this State and in other jurisdictions. 5. Attorney and Client 2 — Constitutional Law 12 — burden of proof of moral character — authority of Board of Law Examiners to make rule Since the burden of proof provision of Rule VIII of the Rules Governing Admission to the Practice of Law in the State of N.C. provides for the orderly determination of an applicant's moral character, that provision is within the legitimate rule-making power constitutionally delegated to the Board of Law Examiners in G.S. <cross_reference>84-25</cross_reference>. 6. Attorney and Client 2 — Board of Law Examiners — determination of character and general fitness requirements The General Assembly has entrusted to the Board of Law Examiners the duty of examining applicants and providing rules and regulations for admission to the Bar; in this regard the Board of Law Examiners must determine whether applicants for admission to the Bar possess the qualifications of character and general fitness for an attorney, and if the proof offered by an applicant fails to satisfy the Board that the applicant has the requisite moral character required by G.S. <cross_reference>84-24</cross_reference> and Rule VIII, it is the Board's duty to deny his application. 7. Administrative Law 5 — Board of Law Examiners — review of findings on appeal G.S. <cross_reference>84-24</cross_reference> establishes the Board of Law Examiners as an administrative agency of the State, and its findings of fact are conclusive on appeal if properly supported by the evidence. 8. Attorney and Client 2 — moral character of bar applicant — sufficiency of findings Findings by the Board of Law Examiners were sufficient to support the Board's conclusion that applicant had not carried his burden of showing his good moral character where the Board found that applicant enlisted in the Air Force, was twice punished under the U.S. Code of Military Justice, and was given a general discharge under honorable conditions, applicant was arrested and investigated on a charge of burglary, was later charged with trespass, failed to appeal at trial and was found guilty, applicant was convicted of driving under the influence and was granted limited driving privileges by the court, applicant subsequently drove a vehicle in violation of the terms of his driving privileges, and applicant's answers to the Board's questions were incomplete and misleading.<page_number>Page 3</page_number>

1. Criminal Law 75 — admission of confession — absence of express finding of voluntariness Defendant's confession was properly admitted in evidence where the trial court made findings supported by the evidence on voir dire that defendant was given the Miranda warnings, that he was not intoxicated at the time of the confession, that he understood his rights and that he waived his rights in writing before making the statement; failure of the court to make an express finding that the confession was voluntary was not error where the evidence was not conflicting and tended to show the confession was voluntary. 2. Criminal Law 23 — guilty pleas — withdrawal by defendant — court's refusal to accept In a prosecution for arson, felonious breaking and entering, larceny from the person, and assault with a deadly weapon with intent to kill, the trial court did not err in refusing to accept defendant's tender during trial of guilty pleas to the felonies of breaking or entering, larceny from the person and burning an unoccupied building where defendant stated during questioning by the court, "I believe I will go on and let the jury decide it." 3. Arson 4; Burglary and Unlawful Breakings 5; Larceny 7 — sufficiency of evidence for jury The State's evidence, including testimony of the victim and defendant's confession, was sufficient for the jury in a prosecution for arson, breaking and entering and larceny from the person. 4. Arson 6 — life imprisonment — act making change in punishment retroactive A defendant sentenced to death for a crime of arson committed prior to 8 April 1974, the effective date of the statute changing the punishment for arson from death to life imprisonment, is entitled to have his case remanded for imposition of a sentence of life imprisonment pursuant to the 1975 Act which made the change in punishment retroactive. Chapter 703, 1975 Session Laws.

Appeal by. the State pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals, reported in 24 N.C. App. 76, 210 S.E. 2d 91 (1974), which reversed the judgment entered by Exum, J., at the 25 February 1974 Session of the Superior Court of Craven.

1. Rules of Civil Procedure 56 — motion for summary judgment — burden of proof A party moving for summary judgment under Rule 56 has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court, and his papers are carefully scrutinized while those of the opposing party are on the whole indulgently regarded. G.S. <cross_reference>1A-1</cross_reference>, Rule 56. 2. Rules of Civil Procedure 56 — summary judgment — showing required The movant for summary judgment must show (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. 3. Rules of Civil Procedure 56 — summary judgment — purpose Rule 56 does not authorize the court to decide an issue of fact, but rather to determine whether a genuine issue of fact exists. 4. Automobiles 64 — striking of dog — summary judgment for defendant In an action to recover damages for injuries to plaintiff and her dog received when a bus driven by defendant struck plaintiff's dog, plaintiff attempted to separate the dog and a group of children gathered around the dog, and the dog bit plaintiff on the hand, the trial court properly entered summary judgment in favor of defendant where plaintiff's deposition offered by defendant established a total lack of negligence on defendant's part and plaintiff offered no evidence in opposition thereto. 5. Negligence 17 — rescue doctrine — negligence of another The rescue doctrine does not apply unless it is shown that the peril was caused by the negligence of another. 6. Rules of Civil Procedure 56 — summary judgment in negligence cases While summary judgment is ordinarily not appropriate in negligence cases, it is appropriate where a motion for summary judgment is supported by evidentiary matter showing a total lack of negligence on the movant's part and no evidence is offered in opposition thereto.<page_number>Page 376</page_number>

1. Public Officers 9 — action against officers — acts which should have been done G.S. 109-34 giving a plaintiff a cause of action against officers and their sureties has been broadly construed over its long history to cover not only acts done by the officers but also acts that should have been done. 2. Death 4; Public Officers 9; Sheriffs and Constables 4 — death of prison inmate — wrongful death action against officers — statute of limitations Although a cause of action was available to plaintiff under G.S. 109-34 with its attendant six year statute of limitations, plaintiff chose to bring an action for wrongful death allegedly caused by the negligence of the defendant officers in not providing medical attention for plaintiff's jailed intestate, and the two year statute of limitations provided for in G.S. <cross_reference>1-53</cross_reference> (4) was applicable; therefore, plaintiff is entitled to his day in court on his wrongful death action where plaintiff's intestate was imprisoned on 13 September 1971 and died on the next day, and the action was commenced on 12 September 1973.

Death 9 — abandonment of child — right to proceeds for wrongful death of child When the Legislature, in G.S. 28-173, provided that the proceeds of an action for wrongful death "shall be disposed of as provided in the Intestate Succession Act," it meant the Intestate Succession Act as modified by G.S. Ch. 31A entitled "Acts Barring Property Rights"; therefore, a father who abandoned his child when the child was a minor is precluded by G.S. <cross_reference>31A-2</cross_reference> from sharing in the proceeds of the settlement of a claim for wrongful death of the child.

1. Criminal Law 92 — consolidation of charges against two defendants The trial court properly consolidated for trial charges against the two defendants for being accessories before the fact to the murder of the femme defendant's husband and for conspiracy to murder the femme defendant's husband. 2. Criminal Law 66 — suggestive photographic identifications — effect on in-court identification Although the witness twice failed to identify the femme defendant during the trial and the photographic procedures before trial and during a noon recess were impermissibly suggestive since five photographs of only the femme defendant were shown to the witness, the photographic procedures did not give rise to a very substantial likelihood of irreparable misidentification and thus taint the witness's subsequent in-court identification of the femme defendant as the woman with whom he had talked about killing her husband where the witness had a substantial opportunity to observe and converse with the femme defendant in the front seat of his car, the witness had identified no other person prior to the pretrial photographic identification, the femme defendant had changed her appearance from the time the witness first saw her, and before viewing the photographs during the noon recess the witness had already privately identified the femme defendant from viewing her profile in the courtroom. 3. Criminal Law 87; Witnesses 9 — redirect testimony — subject not covered on cross-examination The trial court did not err in permitting a State's witness to testify on redirect examination concerning his identification of the femme defendant although no questions concerning her identity had been asked on cross-examination. 4. Criminal Law 66 — in-court identification — motion to reopen voir dire The trial court did not abuse its discretion in the denial of defendant's motion made at the end of her cross-examination of a State's witness to reopen the voir dire examination concerning the in-court identification of her by the witness since ample evidence was presented during the voir dire, no new evidence was brought out on cross-examination of the witness, and there was ample opportunity originally to cross-examine all of the State's witnesses and offer independent evidence. 5. Criminal Law 77 — admissions — necessity for voir dire In a prosecution for accessory before the fact to the murder of femme defendant's husband and conspiracy to murder him, the trial court did not err in the denial of the femme defendant's motion to conduct a voir dire on the admissibility of testimony by a witness as<page_number>Page 515</page_number> to admissions made to him over the telephone by the male defendant that the victim was killed by a State's witness for $5000 and that he and the femme defendant were in love and to be married where there was no indication that the male defendant's constitutional rights were violated before he made the admissions. 6. Conspiracy 5 — testimony by co-conspirator prior to identification of defendant In a prosecution of two defendants for conspiracy to murder the femme defendant's husband, the trial court did not err in the admission against the femme defendant of testimony by a co-conspirator before his in-court identification of the femme defendant since wide latitude is allowed in the order of proof in a conspiracy case, and a prima facie case of conspiracy was developed against the femme defendant prior to the close of the evidence. 7. Criminal Law 73, 80 — telephone calls — business records — hearsay Testimony by the revenue accounting manager of a telephone company as to the number of calls made between various telephone numbers was admissible under the business records exception to the hearsay rule since the actual records were duly authenticated and introduced into evidence; however, testimony by the accounting manager as to the number of calls between other numbers was inadmissible hearsay where no records were introduced into evidence, but error in the admission of such testimony was harmless beyond a reasonable doubt since there was plenary competent evidence concerning calls between those numbers and the inadmissible calls were only corroborative of testimony of the State's witnesses. 8. Conspiracy 5 — telephone calls — relevancy In a prosecution for conspiracy to murder the femme defendant's husband, testimony concerning telephone calls made between telephones to which defendants and the killer had access was relevant to corroborate testimony of the State's witnesses and to show the close contact between the male defendant, the femme defendant and the killer during the course of the crime. 9. Conspiracy 5; Criminal Law 79 — acts of co-conspirator — admission against defendant In a prosecution for conspiracy to murder the femme defendant's husband, evidence that a $6,526.61 loan was made to the male defendant shortly before defendants paid a third person $5000 to commit the murder was admissible against the femme defendant since acts of a conspirator in furtherance of the conspiracy while the conspiracy was active are admissible against a co-conspirator when a prima facie case against the co-conspirator has been shown. 10. Conspiracy 5; Criminal Law 79 — declarations of co-conspirator — admission against defendant In a prosecution for conspiracy to murder the femme defendant's husband, testimony as to telephone calls between two witnesses and the male defendant concerning the male defendant's search for a person to commit the murder was properly admitted against the femme<page_number>Page 516</page_number> defendant as declarations of a co-conspirator in furtherance of the conspiracy while the conspiracy was active. 11. Conspiracy 5; Criminal Law 79 — declarations of co-conspirator after conspiracy ended — inadmissibility against defendant In a prosecution for conspiracy to murder the femme defendant's husband, testimony as to the male defendant's telephone call to the killer following the killing to find out whether "the heat was on" the killer was improperly admitted against the femme defendant since declarations of a conspirator made after the conspiracy has ended are not admissible against the other conspirators; however, the admission of such testimony against the femme defendant was harmless error since the testimony did not implicate the femme defendant and there was plenary competent evidence to show that the two defendants conspired to kill the femme defendant's husband. 12. Conspiracy 5; Criminal Law 79 — declarations of co-conspirator after conspiracy ended — inadmissibility against defendant — harmless error Testimony that the male defendant told the witness by telephone that a third person had killed the femme defendant's husband for $5000 and that defendants were in love and to be married was improperly admitted against the femme defendant since the testimony involved declarations made outside the presence of the femme defendant after the conspiracy to kill the femme defendant's husband had ended; however, the admission of such testimony was harmless error since the facts related in the telephone conversation about the femme defendant were established by plenary competent evidence and there was overwhelming evidence showing the femme defendant's participation in the crime. 13. Criminal Law 81 — best evidence rule — tape recording of telephone conversation The best evidence rule did not require the exclusion of testimony as to a telephone conversation by one of the participants in the conversation on the ground that a tape recording of the conversation was available. 14. Conspiracy 5 — telephone call between conspirators — competency In a prosecution for conspiracy to murder the femme defendant's husband, evidence of a telephone call allegedly made by the femme defendant to the male defendant from a hospital after the femme defendant's husband was shot but before his death was competent as circumstantial evidence of a continuing conspiracy. 15. Criminal Law 95 — illustrative exhibits — no limiting instruction when admitted The trial court did not err in refusing to give an instruction at the time exhibits were admitted that they were being admitted only for the limited purpose of illustrating the witness's testimony where the court-instructed the jury in the first portion of its charge that the exhibits were admitted only for such purpose.<page_number>Page 517</page_number> 16. Conspiracy 6 — conspiracy to murder — sufficiency of evidence The State's evidence was sufficient to be submitted to the jury on the issue of the femme defendant's guilt of conspiracy to murder her husband where it tended to show that the femme defendant expressed to the killer her desire, both privately and in concurrence with the male defendant, to have her husband killed and that she participated in planning the killing. 17. Criminal Law 10 — accessory before the fact An accessory before the fact is one who counseled, procured, commanded or encouraged the principal to commit the crime but who was not present when the crime was committed. 18. Criminal Law 10; Homicide 21 — accessory before fact to murder — sufficiency of evidence The State's evidence was sufficient to be submitted to the jury on the issue of femme defendant's guilt as an accessory before the fact to the murder of her husband. 19. Criminal Law 99 — conduct of trial — impartiality — no expression of opinion The trial judge did not conduct a trial in a partial manner or express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> when he suggested that defense attorneys object in a certain order, stated reasons for sustaining some defense objections, sustained his own objection on one occasion and stated the reason therefor, and asked witnesses various clarifying questions and gave numerous instructions to facilitate the jury's role and maintain order in the court. 20. Conspiracy 5; Criminal Law 128 — erroneous admission of evidence — violation of sequestration order — unavailability of tape recording — motions for mistrial In a prosecution for conspiracy to murder the femme defendant's husband, the trial court did not err in the denial of the femme defendant's motions for mistrial made when the court erroneously admitted evidence of declarations of the male defendant which were merely narrative of what the femme defendant had done or wanted done and erroneously admitted hearsay testimony, or when the prosecutor, after soliciting from the killer the testimony that he was a married man, stated, "I just want to let it all come out, Mr. Whealton," since the testimony and statement were insignificant in context with the plenary competent evidence offered by the State, and the court allowed defendant's motion to strike them and instructed the jury to disregard them; nor did the court err in failing to declare a mistrial when two deputy sheriffs violated a sequestration order by showing photographs of the femme defendant to a State's witness during a recess, or when a tape recording of a telephone conversation became unavailable to defendant because the officer in possession of it had gone to South Carolina to testify in another case and had become ill. 21. Criminal Law 114 — necessity for charging on circumstantial evidence — statements by court — reference to direct evidence — no expression of opinion The trial court did not express an opinion in instructing the jury that the court did not have to charge the jury on circumstantial<page_number>Page 518</page_number> evidence since there was direct or eyewitness evidence that defendants committed the crimes charged, but that, the court was charging on circumstantial evidence because there was some circumstantial evidence. 22. Criminal Law 112 — charge on circumstantial evidence In the absence of a specific request, the trial court did not err in failing to charge concerning circumstantial evidence that "before any circumstance upon which the State relies may be considered by you as tending to prove the guilt of either defendant, the State must prove that circumstance beyond a reasonable doubt." 23. Criminal Law 113 — failure to recapitulate certain evidence The trial court did not err in failing to include in its recapitulation of the evidence that a witness on two occasions during direct examination failed to identify the femme defendant where the jury was reminded of the witness's initial failures when the court instructed the jury as to the circumstances enabling the witness to identify the femme defendant during redirect examination, and defendant failed to request such instruction. 24. Criminal Law 114 — instructions — reference to defendants in the conjunctive The trial court did not express an opinion on the evidence in a portion of the charge referring to defendants in the conjunctive where the charge, when considered contextually, made it clear that the guilt or innocence of each defendant was to be judged separately. 25. Criminal Law 10; Homicide 12 — accessory before fact — sufficiency of indictment A bill of indictment was sufficient to charge the offense of accessory before the fact to murder although it did not specifically allege that defendant was not present at the time the offense was committed. 26. Criminal Law 84 — fruit of poisonous tree — tape recording of telephone call — legality The testimony of a State's witness was not inadmissible as fruit of the poisonous tree on the ground that defendant's telephone conversation with a third person was recorded on tape where the recording was made with the third person's consent and was thus legal, and the testimony of the State's witness was obtained by means sufficiently distinguishable from the tape recording that it was purged of any primary taint. 27. Criminal Law 87 — admission of testimony — necessity for voir dire The trial court did not err in the admission of the testimony of a State's witness without allowing a voir dire examination of him where there was nothing in the record to indicate any viable basis for excluding the witness's testimony. 28. Criminal Law 21 — necessity for preliminary hearing At the time of defendant's trial, a defendant could properly be tried on a bill of indictment without the benefit of a preliminary hearing.<page_number>Page 519</page_number> 29. Criminal Law 80; Constitutional Law 31 — denial of motion for pretrial discovery The trial court did not err in the denial of defendant's motion for pretrial discovery of a tape recording and photographs since there was nothing to indicate the tape recording was to be used in the trial, there was no right to pretrial discovery of photographs, and the photographs would have been of little benefit to defendant; nor did the court err in the denial of the remainder of defendant's motion for pretrial discovery since it failed to specify the information sought and amounted to a fishing expedition for information. Former G.S. <cross_reference>15-155.4</cross_reference>. 30. Constitutional Law 31 — access to exculpatory evidence — denial of motion for pretrial discovery Defendant was not denied the right to have access to exculpatory evidence by the denial of his pretrial motion for discovery where defendant failed to show that any evidence favorable to him was suppressed. 31. Criminal Law 100 — permitting private prosecutor The trial court did not err in allowing a private prosecutor to assist in the prosecution of defendant on charges of accessory before the fact of murder and conspiracy to commit murder. 32. Criminal Law 91 — motion for continuance — employment of additional counsel The trial court did not err in the denial of defendant's motion for a continuance to allow defendant to employ additional counsel or in the failure to advise defendant of his right to proceed without counsel. 33. Criminal Law 22 — counsel's misstatement of plea — no instruction to disregard Where counsel for defendant stated that defendant entered a plea of guilty to both charges, defendant thereupon stated, "Not guilty," and defendant's counsel replied, "I beg your pardon. Not guilty," the court did not err in failing to instruct the jury to disregard counsel's misstatement concerning the plea since the jurors present could not have misunderstood what occurred. 34. Conspiracy 5 — telephone calls between conspirators — statements of conspirators — admissibility In a prosecution for conspiracy to murder the femme defendant's husband, testimony of a mobile telephone operator that defendants had told her that they were going to get married and that she had heard defendants conversing over the telephone fifteen or twenty times during the three months preceding the murder was competent on the question of the existence of a conspiracy. 35. Conspiracy 3; Criminal Law 10 — conspiracy to murder — accessory before the fact — no merger of crimes The crime of conspiracy to commit murder does not merge into the crime of accessory before the fact of murder, and defendant was properly convicted of both crimes.<page_number>Page 520</page_number> 36. Conspiracy 5; Criminal Law 10; Homicide 21 — conspiracy to murder — accessory before fact to murder — sufficiency of evidence The State's evidence was sufficient to be submitted to the jury on the issue of the male defendant's guilt of accessory before the fact to the murder of the femme defendant's husband and conspiracy to murder the femme defendant's husband.

1. Utilities Commission 2 — manufacturer of plastic telephone directory covers — no regulation by Utilities Commission Since complainant, a manufacturer and distributor of plastic covers designed to fit over the outside cover of a telephone directory, is not a public utility, its production in another state and distribution in N.C. of its plastic covers are not subject to regulation by the Utilities Commission. G.S. <cross_reference>62-3</cross_reference> (23); G.S. <cross_reference>62-2</cross_reference>; G.S. <cross_reference>62-30</cross_reference>; G.S. <cross_reference>62-31</cross_reference>. 2. Utilities Commission 6, 9 — manufacturer of plastic telephone directory covers — interest in tariff and rule — standing to file complaint and appeal Complainant manufacturer and distributor of plastic telephone directory covers had the requisite interest in a telephone company<page_number>Page 716</page_number> tariff declaring telephone directories to be the property of the telephone company and forbidding any person to attach to the directory any cover not furnished by the telephone company upon the pain of having such person's telephone service suspended and had the requisite interest in the rule requiring such tariff promulgated by the Utilities Commission; therefore, complainant had standing to file the complaint which initiated the proceeding and had standing to prosecute the appeal. G.S. <cross_reference>62-73</cross_reference>; G.S. <cross_reference>62-92</cross_reference>; G.S. <cross_reference>62-96</cross_reference>. 3. Utilities Commission 1 — commission as administrative agency — regulatory authority conferred by statute The Utilities Commission, being an administrative agency created by statute, has no regulatory authority except such as is conferred upon it by Ch. 62 of the General Statutes, and, obviously, the Commission may not, by its order, require or authorize a rule or practice by a public utility company which is forbidden by statute, or authorize such company to refuse to perform a duty imposed upon it by statute, unless Ch. 62 of the General Statutes has conferred such authority upon the Commission. 4. Telephone and Telegraph Companies 1; Utilities Commission 2 — telephone service — discontinuance without justification — authority of Utilities Commission G.S. <cross_reference>62-140</cross_reference> requires a telephone company serving in this State to render telephone service, without discrimination, to all within its service area who apply therefor, and a refusal by the company to serve without a reasonable justification therefor is a violation of the company's duty and the Commission has no authority to permit it. 5. Telephone and Telegraph Companies 1; Utilities Commission 6 — order prohibiting attachment of additional covers to telephone directories — suspension of service as penalty — unreasonableness of order It is unreasonable for a telephone company to discontinue service to a subscriber for the sole reason that such subscriber elects to place an opaque cover upon the directory supplied to him by the company, and such discontinuance cannot be justified on the grounds that (1) the subscriber will forget the name of his telephone company, the towns listed in the directory or other information printed on the directory cover once he places an opaque cover on his directory, (2) the printing on the added cover of telephone numbers of the advertising customers of the producer of the cover is an infringement of the telephone company's copyright of its directory, (3) attachment of the added cover to the directory poses a serious threat to the quality of the telephone company's service in that the printed list of "emergency numbers" on the added cover may include an occasional "wrong number," (4) title to the directory is reserved by the telephone company and the attachment of the added cover to the book is a trespass on the company's property, and (5) the covers carry advertisements of local businesses and therefore compete with the telephone company's yellow page advertising.