Volume 289 — North Carolina Reports

1. Criminal Law 60 — fingerprints — time of impressing — sufficiency of evidence for jury Testimony by a qualified expert that fingerprints found at the scene of the crime correspond with the fingerprints of the accused, when accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed, is sufficient to withstand motion for nonsuit and carry the case to the jury. 2. Criminal Law 60; Burglary and Unlawful Breakings 5 — fingerprint evidence — sufficiency of evidence for jury In a prosecution for felonious breaking and entering of a launderette and larceny pursuant to the breaking and entering, evidence that (1) defendant's thumbprint was found on a vending machine lock at the scene of the crime, a fact defendant solemnly admitted in open court, (2) no other fingerprints — of defendant or anyone else — were found at the scene, and (3) when informed of the fingerprint defendant stated to the police that he had never been in the launderette — a statement later conceded to be false — raised legitimate inferences from which a jury could properly conclude that the thumbprint could only have been impressed on the lock at the time the crime was committed, and defendant's motion to nonsuit on the breaking and entering count was properly denied.<page_number>Page 2</page_number>

1. Taxation 23 — construction of tax statute, exemption Where the meaning of a tax statute is doubtful, it is construed against the State and in favor of the taxpayer unless a contrary legislative intent appears; conversely, a provision of a tax statute providing an exemption from the tax, otherwise imposed, is strictly construed against the taxpayer and in favor of the State. 2. Taxation 23 — construction of tax exemption If the intent of the Legislature is discernible from a tax statute it will prevail regardless of the rule of strict construction against exemptions. 3. Taxation 31 — soft drink tax — "base products" Under the Soft Drink Tax Act, "base products" are taxable as such only when used to complete a soft drink which, if sold bottled, would be subject to the tax.<page_number>Page 124</page_number> 4. Taxation 31 — soft drink tax — applicability By enactment of the Soft Drink Tax Act, the Legislature intended to tax only those "soft drinks," including fruit juice drinks, to which coloring, artificial flavoring or preservative has been added, or which contain less than 35 percent of natural fruit juice, and unless a soft drink is subject to taxation if sold bottled, its ingredients cannot be taxed. 5. Taxation 31 — soft drink tax — frozen concentrated orange juice Since natural orange juice is exempted from taxation under the Soft Drink Tax Act when sold bottled, frozen concentrated orange juice, as an ingredient of natural orange juice, cannot be taxed under the Act.

1. Constitutional Law 36; Homicide 31 — first degree murder — death penalty — constitutionality Imposition of the death penalty upon a conviction of first degree murder was not unconstitutional, and defendant was not denied due process because the district attorney had the absolute discretion to charge and prosecute for a capital offense or to bring the accused to trial upon a lesser included offense.<page_number>Page 160</page_number> 2. Criminal Law 169 — evidence admitted over objection — subsequent evidence admitted without objection — no prejudice The trial court in a first degree murder prosecution did not err in allowing deceased's wife to testify that her husband usually carried a little money in his pocket, since other evidence which was admitted without objection was sufficient to support an inference that a robbery had been committed. 3. Criminal Law 71, 85, 169 — officer's testimony — shorthand statement of fact — character evidence — exclusion not prejudicial Testimony by a police officer which would have shown that the officer's investigation tended to corroborate portions of defendant's statement to the officer was a shorthand statement of fact and should not have been rejected on the ground that it invaded the province of the jury; however, the exclusion of such testimony was not prejudicial since defendant failed to present properly this character evidence and since the officer had already testified to facts which tended to support the conclusion defendant sought to elicit. 4. Homicide 21 — death by stabbing — unlawfulness and malice — sufficiency of evidence Evidence in a first degree murder prosecution was sufficient to permit the jury to find that the killing was unlawful and was done with malice where such evidence tended to show that defendant killed deceased by the intentional use of a deadly weapon, a knife. 5. Homicide 21 — first degree murder — premeditation and deliberation — sufficiency of evidence Evidence in a first degree murder prosecution was sufficient to permit the jury to find that after premeditation and deliberation defendant formed a fixed purpose to kill and did kill his victim where such evidence tended to show that defendant stole a car and thereafter drove it into a ditch in the vicinity of the trailer home occupied by deceased and his wife, defendant then went to the trailer home where deceased allowed him to use the phone and later gave him a glass of water, defendant attacked deceased with a knife upon little or no provocation, defendant then robbed deceased's body ransacked the dwelling, left the body of deceased in his own blood and thereafter returned to rob and tie up the wife of the deceased. 6. Homicide 21 — murder in perpetration of robbery — sufficiency of evidence Evidence was sufficient to permit the jury to find that defendant killed his victim while in the perpetration of a robbery, and it was not error for the trial court to submit the charge of murder in the first degree on the "felony-murder" theory. 7. Criminal Law 114 — jury charge on defendant's contentions — no expression of opinion The trial court did not express an opinion in its jury charge by stating that defendant contended he committed no unlawful homicide and that defendant contended he should be acquitted of manslaughter on the grounds of self-defense, since the trial court's statement was<page_number>Page 161</page_number> consistent with defendant's own testimony; moreover, the challenged statement was favorable to defendant since it presented to the jury a possible complete defense.

1. Homicide 21 — killing of hitchhiker — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a murder prosecution where it tended to show that defendant picked up two hitchhikers, he subsequently held them up with a gun and knife, demanded money and submission to homosexual acts, a fight ensued, and one of the hitchhikers was stabbed and shot and died as a result of these wounds. 2. Homicide 14 — unlawfulness and malice — constitutionality of presumptions The presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. 3. Homicide 24 — heat of passion on sudden provocation — self-defense — burden of proof — jury instructions Trial court's instructions which placed upon defendant the burden of proving that there was no malice on his part in order to reduce the crime from second degree murder to manslaughter and the burden of proving self-defense in order to excuse his act altogether<page_number>Page 240</page_number> were not invalidated by Mullaney v. Wilbur, <cross_reference>421 U.S. 684</cross_reference>, since that decision applied only to trials conducted on or after 9 June 1975, and defendant was tried in March, 1975. 4. Homicide 26 — second degree murder — intent to kill — jury instructions The trial court did not err in instructing that second degree murder differs from first degree murder, inter alia, in that a specific intent to kill is not an element of second degree murder. 5. Criminal Law 46 — flight of defendant — admissibility of evidence The trial court in a murder prosecution did not err in admitting evidence of flight consisting of testimony that defendant was arrested at his home some days after the crime with his car fully loaded with clothing and cooking utensils, nor did the court err in failing to instruct the jury, without request, on the weight to be accorded this evidence. 6. Criminal Law 43 — photography of crime scene — admissibility The trial court did not err in admitting into evidence several photographs of the crime scene although the witness who identified the photographs had been at the scene at night and the photographs had been taken during the daytime. 7. Criminal Law 34, 169 — defendant's guilt of other offense — evidence not prejudicial Defendant was not prejudiced by the district attorney's cross-examination of him concerning prior convictions where defendant unresponsively volunteered information as to charges against him, and the trial court allowed defendant's motion to strike all the testimony and instructed the jury to disregard it. 8. Criminal Law 86 — defendant's undesirable military discharge — admissibility The trial court did not err in allowing cross-examination of defendant concerning the circumstances of his undesirable discharge from military service. 9. Criminal Law 86 — impeachment of defendant The trial court did not err in allowing the State to show for purposes of impeachment that defendant did not voluntarily turn himself in to police officers where defendant had already testified that he "did not want to run" and where there was already abundant evidence of the circumstances of defendant's arrest.

1. Boundaries 10 — ambiguous description in deed — deed void A deed purporting to convey an interest in land is void unless it contains a description of the land sufficient to identify it or refers to something extrinsic by which the land may be identified with certainty. 2. Boundaries 10 — description of land conveyed — admissibility of parol evidence When a deed itself, including its references to extrinsic things, describes with certainty the property intended to be conveyed, parol evidence is admissible to fit the description in the deed to the land; however parol evidence is not admissible to enlarge the scope of the description in the deed. G.S. <cross_reference>8-39</cross_reference>. 3. Boundaries 10 — patently ambiguous description of land — inadmissibility of parol evidence When it is apparent upon the face of a deed itself that there is uncertainty as to the land intended to be conveyed and the deed itself refers to nothing extrinsic by which such uncertainty can be resolved, the description is said to be patently ambiguous, and parol evidence may not be introduced to remove a patent ambiguity since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument. 4. Boundaries 10 — deed conveying pocosin land — patently ambiguous description — deed void The description in a deed conveying a "tract of Pocosin Land adjoining the lands of the late Henderson Luton others, containing by estimation, Three Hundred and Nineteen acres" was patently ambiguous and referred to nothing extrinsic to which one could turn in order to identify with certainty the land intended to be conveyed; therefore, the deed was void and could not be the basis for a. valid claim of title in the plaintiffs.

1. Kidnapping 1 — sufficiency of indictment An indictment alleging that defendant "unlawfully, wilfully, did feloniously and forcibly kidnap" a named person was sufficient to charge the offense of kidnapping, it being unnecessary for the indictment to allege that the victim was forcibly carried away against her will. 2. Burglary and Unlawful Breakings 3 — burglary indictment — felony intended While an indictment for burglary must specify the particular felony which defendant intended to commit at the time of the breaking and entering, the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of the felony, it being enough to state the offense generally and to designate it by name. 3. Burglary and Unlawful Breakings 3 — burglary indictment — sufficiency Indictment was sufficient to charge the crime of first degree burglary where it alleged that at 2:00 a.m. on a specified date defendant feloniously and burglariously broke and entered the dwelling house occupied by a named person "with intent to kidnap the said" person. 4. Criminal Law 42 — kidnapping — handcuffs used by defendant — admissibility The trial court in a kidnapping case properly admitted into evidence handcuffs which defendant placed on the victim's wrists where the victim identified them as the handcuffs used by defendant, notwithstanding the victim did not say they were in substantially the same condition as when defendant used them.<page_number>Page 425</page_number>

1. Homicide 21 — first degree murder — sufficiency of evidence The State's evidence was sufficient to be submitted to the jury on the issue of defendant's guilt of first degree murder where it tended to show: the victim died as a result of gunshot wounds inflicted by a shot fired from a house trailer some 80 feet away; a short time before the shooting, defendant had test fired a 12 gauge shotgun; 12 gauge shotgun wadding was found in a straight line between the trailer and bodies after the shooting; a freshly fired 12 gauge shotgun was later found in defendant's house hidden between the quilts and mattress of a bed; defendant was the only person in the trailer when the fatal shots were fired; defendant attempted to run down the victim with a car shortly before the shooting; defendant had driven back and forth by the victim before the killing; defendant fired a second shot after two others also wounded by the first shot were able to rise; and defendant left the scene hurriedly after the shooting without offering any assistance. 2. Criminal Law 102, 170 — jury argument invited by opposing counsel — harmless error Jury argument by the district attorney in which he repeatedly referred to the fact that defense counsel was from another area of the State was invited by defense counsel's jury argument severely attacking the credibility of two State's witnesses and the honesty of local law enforcement officers and did not constitute prejudicial error. 3. Homicide 24 — presumptions of malice and unlawfulness — Mullaney decision The trial court's instruction in a first degree murder case on the presumptions of malice and unlawfulness arising upon proof of a killing by the intentional use of a deadly weapon does not contravene the decision of Mullaney v. Wilbur, <cross_reference>421 U.S. 684</cross_reference>; furthermore, the Mullaney decision is not retroactive and does not apply to the trial of defendant held before that decision was rendered.<page_number>Page 513</page_number> 4. Constitutional Law 36; Homicide 31 — constitutionality of death penalty The death penalty for first degree murder is not unconstitutional.

1. Homicide 21 — first degree murder — sufficiency of evidence Testimony by an eyewitness, an SBI agent who related defendant's own account of the manner of killing the victim and his reasons for killing her, and a pathologist who described the stab wounds in the victim's heart and abdomen was sufficient to establish an unlawful<page_number>Page 523</page_number> killing done with premeditation, deliberation, and actual malice, and thus to sustain a verdict of murder in the first degree. 2. Criminal Law 75 — in-custody statements — waiver of counsel — necessity for express finding The trial court in a homicide case erred in the admission of defendant's in-custody inculpatory statements without an express finding that defendant had knowingly and intelligently waived his right to counsel before making the statements where the voir dire evidence concerning defendant's waiver of counsel was conflicting.

1. Larceny 7 — disappearance of tractor and boggs — possession of boggs — insufficient evidence of larceny of tractor Evidence that a tractor and disk boggs which were attached to the tractor by a three-point hitch were stolen on 15 May, that defendant sold the boggs on 22 May, and that the boggs were very heavy and usually moved with a tractor, held sufficient to be submitted to the jury on the issue of defendant's guilt of larceny of the boggs but insufficient to be submitted on the issue of defendants' guilt of larceny of the tractor. 2. Larceny 4; Indictment and Warrant 17 — larceny indictment — ownership laid in owner and person in possessing There was no fatal variance between an indictment charging larceny of disk boggs "of one Newland Welborn and Hershel Greene" and evidence that Greene had legal title to the boggs and that Welborn had borrowed them and had possession of them when they were stolen since both persons named in the indictment had a sufficient property interest in the boggs to support a larceny conviction, and since it is proper to allege both the real owner and the special owner in the indictment.

1. Constitutional Law 29 — motion to quash — systematic exclusion of Negroes — opportunity for investigation Trial court's summary denial of defendant's motion to quash the petit jury array on the ground of systematic exclusion of Negroes therefrom did not deny defendants a reasonable time and opportunity to investigate and present evidence in support of their motion where counsel was appointed almost five months previously and defendants could have investigated all aspects of the alleged systematic racial exclusion during such time, defendants supported their motion only with inadequate affidavits, and the record contains nothing to suggest that defendants desired more time to procure additional evidence on the question. 2. Constitutional Law 29 — systematic racial exclusion — blacks in county — black veniremen — insufficient showing Defendants' showing by affidavit that 24 percent of the population of the county is black while only 13.56 percent of the veniremen called were black was insufficient to make out a prima facie case of systematic racial exclusion from the petit jury array which the State was required to rebut since there was no showing that the selection procedures in any manner provided a clear and easy opportunity<page_number>Page 645</page_number> for racial discrimination, and there was no showing that for a substantial period of time there has been only token representation of the Negro race upon the juries of the county. 3. Criminal Law 15; Jury 2 — change of venue — special venire — pretrial publicity In this prosecution for first degree murder, the trial court did not err in the denial of defendants' motion for a change of venue or, in the alternative, for a special venire from another county on the ground of unfavorable pretrial publicity where two newspaper articles attached to the motion were factual, not inflammatory, in nature, each juror questioned stated unequivocally that he had formed no preconceived notions of defendants' guilt or innocence and could render a verdict uninfluenced by anything he read in the newspaper, and the record does not disclose that defendants exhausted their peremptory challenges or that they accepted any juror objectionable to them. 4. Criminal Law 9, 112 — failure to instruct on "mere presence" In this prosecution of two defendants for murder committed in the perpetration of armed robbery, the evidence did not require the trial court to instruct the jury on the insufficiency of "mere presence" at the scene of the crime to establish complicity in the commission of that crime where all the evidence, including the testimony of each defendant, tended to establish actual participation by each defendant in the robbery, and the gist of each defendant's testimony was that his participation in the robbery was coerced by the other. 5. Criminal Law 7 — duress as defense to crime While it is generally held that duress is a defenses to a killing done by another in the commission of a lesser felony participated in by the defendant under coercion, such duress must consist of threatening conduct which produces in the defendant (1) a reasonable fear of (2) immediate (or imminent) (3) death or serious bodily harm. 6. Criminal Law 7 — duress — insufficiency of evidence to require instruction In this prosecution of two defendants for murder committed in the perpetration of an armed robbery, defendants' evidence did not require the court to instruct the jury on the defense of duress where the first defendant testified that he participated in the robbery only because the second defendant told him to do so and because he was "afraid," although he could not say what he was afraid of; the second defendant testified that he was unaware the first defendant was going to commit the robbery and that when the first defendant announced the holdup, he told the second defendant not to worry about it; and neither defendant offered any evidence that the other forced him to participate in the actual robbery or threatened him in any way. 7. Criminal Law 11 — failure to instruct on accessory after the fact The trial court in a prosecution for murder committed in the perpetration of an armed robbery did not err in failing to charge on accessory after the fact where all the evidence tended to show actual participation by both defendants in the robbery.<page_number>Page 646</page_number> 8. Criminal Law 6; Homicide 8 — murder in perpetration of robbery — effect of drug intoxication In a prosecution for murder committed in the perpetration of robbery, defendant could not be guilty of murder in the first degree under the felony-murder rule if at the time the victim was killed defendant was so under the influence of drugs that he was utterly incapable of forming a specific intent to rob. 9. Criminal Law 6; Homicide 8 — drug intoxication — insufficiency of evidence to require instruction In a prosecution for murder committed in the perpetration of robbery, the trial court did not err in failing to instruct the jury as to defendant's purported inability to formulate a specific felonious intent due to drug intoxication where the only evidence concerning drugs was the testimony of a codefendant that he and defendant "had some drugs" on the day of the crime while driving to Montgomery County where the crime occurred, there was no evidence as to the nature and quantity of drugs ingested or their effect, if any, upon defendant at the time of the crime, and defendant testified unequivocally that neither defendant nor his codefendant had taken any drugs while driving to Montgomery County. 10. Criminal Law 92 — consolidation of cases for trial Consolidation of cases for trial is generally proper when the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment would be competent and admissible on the other. 11. Criminal Law 92 — consolidation of cases for trial — discretion of court Whether defendants who are jointly indicted should be tried jointly or separately is generally in the sound discretion of the trial court, and, in the absence of a showing that appellant has been deprived of a fair trial by consolidation, the exercise of the court's discretion will not be disturbed upon appeal. 12. Criminal Law 92, 95; Constitutional Law 31 — consolidation of cases — codefendant's use of out-of-court statement There is no merit in defendant's contention that the consolidation of his murder trial with that of a codefendant charged with the same crime deprived him of a fair trial by enabling the codefendant to use an out-of-court statement which inculpated defendant and exonerated the codefendant since the State did not offer the contents of the codefendant's statement, and each defendant testified in his own behalf and was subject to cross-examination by the other. 13. Criminal Law 91 — continuance — discretion of court — motion based on constitutional right A motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling thereon is not subject to review absent abuse of discretion; however, if the motion is based on a right guaranteed by the federal and state constitutions, the<page_number>Page 647</page_number> question presented is one of law and not of discretion and the ruling of the trial court is reviewable on appeal. 14. Criminal Law 91 — motion for continuance — absence of witness In this prosecution for murder committed in the perpetration of a robbery, the trial judge did not abuse his discretion or deprive defendant of his constitutional right to confront his accusers with other testimony when he denied defendant's motion for continuance based upon the absence of a witness who would have testified that he and others had been requested by a codefendant to transport the codefendant from Randolph County to the victim's pawnshop in Montgomery County, although the testimony would have tended, weakly at best, to corroborate defendant's testimony of his intent when he left Randolph County, since defendant's intent when he entered the victim's pawnshop, not when he left Randolph County, was the crucial point. 15. Criminal Law 114 — evidence not summarized as established fact The trial court in a murder prosecution did not summarize a portion of a witness's testimony as established fact and thereby express an opinion in violation of G.S. <cross_reference>1-180</cross_reference>. 16. Criminal Law 71 — intent to assist codefendant — shorthand statement of fact In this prosecution for murder committed in the perpetration of armed robbery, testimony that after the shorter of the two robbers forced two persons to lie on the floor, the shorter man went over with the taller man "to assist him" was competent as a shorthand statement of fact since the witness was not expressing an opinion as to the shorter defendant's intent but was simply narrating a sequence of events during the commission of the crime. 17. Criminal Law 77 — exclusion of self-serving declaration In a murder prosecution wherein a witness testified that he did not attempt to question defendant at 3 o'clock "because of his condition," the court properly sustained the State's objection to a question as to whether defendant complained about his condition since the question sought to elicit a self-serving declaration at a time when defendant had not been upon the witness stand. 18. Criminal Law 63 — mental capacity — lay witness Even a lay witness who has observed another, or conversed with him, or had dealings with him, and who has had a reasonable opportunity based thereon to form an opinion satisfactory to himself as to the mental condition of such person, may give his opinion in evidence upon the issue of mental capacity. 19. Criminal Law 63 — defendant's appearance — exclusion of testimony The trial court did not err in the exclusion of testimony as to whether defendant appeared to be normal when the witness saw defendant in Southern Pines since the witness was not asked to state his opinion as to defendant's mental condition and there was no showing that the witness had a reasonable opportunity to observe defendant and be able to form such an opinion.<page_number>Page 648</page_number> 20. Criminal Law 43, 95 — admission of photograph — failure to give limiting instructions — absence of request The trial court did not err in failing to instruct the jury that a photograph was admitted only for illustrative purposes in the absence of a request for limiting instructions. 21. Criminal Law 86, 95 — prior convictions — failure to give limiting instructions — absence of request In absence of a timely request, the trial court did not err in failing to instruct the jury that evidence of defendant's prior convictions was admitted only for purposes of impeachment. 22. Constitutional Law 33; Criminal Law 48 — right to remain silent — failure to contradict codefendant's statement While the record contains several references to the fact that defendant made no in-custody statement, there is no basis for defendant's argument that the State prejudicially compromised his right to remain silent by inferring culpability from his failure to make a statement contradicting his codefendant's statement which tended to incriminate defendant. 23. Criminal Law 73 — testimony by one defendant — identification of gun — hearsay In a prosecution for murder committed in the perpetration of a robbery, testimony by one defendant that prior to the crime the owner of a pistol brought it into a room where defendants were engaged in a conversation and stated that he had bought the pistol from the victim, and that this same pistol was the one used by the second defendant during the robbery was competent to identify the perpetrators of the crime, as well as to show a design or plan, and did not constitute inadmissible hearsay. 24. Criminal Law 86 — familiarity of defendant with robbery — no necessity for limiting instructions The trial court did not err in failing to give the jury limiting instructions regarding evidence of prior criminal convictions when defendant answered negatively a question not objected to as to whether he was familiar with robbery. 25. Criminal Law 66 — lineup — in-court identification The trial court did not err in permitting a murder victim's wife to make an in-court identification of defendant where the court made findings supported by the evidence on voir dire that a pretrial lineup procedure was not impermissibly suggestive and that the witness's in-court identification of defendant was of independent origin and based on her observations of defendant during commission of the crime. 26. Homicide 31 — judgments — erroneous recitation of verdict — remand for correction Where judgment in a first degree murder case erroneously recites that the jury returned for their verdict that defendant "shall suffer the penalty of death by asphyxiation," the case is remanded so that the judgment may be corrected to show the verdict of guilty<page_number>Page 649</page_number> of murder in the first degree rendered by the jury and the death sentence imposed by the court.