Volume 290 — North Carolina Reports

1. Criminal Law 92 — consolidation — propriety 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.<page_number>Page 204</page_number> 2. Criminal Law 92 — consolidation of cases against three defendants — no error Defendants' contention that their cases should not have been consolidated because some of the testimony of certain witnesses referred to defendants as a group rather than singling out particular defendants is without merit, since the record discloses that when referring to defendants as "they," the witnesses were using the term to include each of the defendants. 3. Criminal Law 48, 92 — statement by one defendant — silence of other two defendants — implied admission — consolidation proper A statement made by one defendant in the presence of the two other defendants who remained silent was admissible against the silent defendants as an implied admission; therefore, the rule of Bruton v. U.S., <cross_reference>391 U.S. 123</cross_reference>, did not apply and did not require exclusion of the statement or separate trials of defendants. 4. Jury 7 — jurors' death penalty views — questioning proper The trial court did not err in allowing prospective jurors to be questioned concerning their beliefs about capital punishment and to be advised that death is the penalty in first degree murder convictions. 5. Jury 7 — juror's death penalty views — exclusion for cause A juror may be successfully challenged for cause when before the trial has begun he is irreparably committed to vote against the penalty of death. 6. Jury 7; Criminal Law 158 — jurors excluded for cause — presumption as to regularity in exclusion Where the record simply disclosed that 57 jurors were excluded for cause as a result of their answers to questions concerning their death penalty views, it is assumed that the trial court excused only those jurors who indicated that they could not vote for conviction which would result in imposition of the death penalty. 7. Homicide 20 — photograph of deceased — admissibility for illustration Defendant was not prejudiced by the admission into evidence of a photograph of deceased showing the fatal wound since such evidence illustrated the testimony of witnesses, and the jury was instructed that the photograph was admitted for illustrative purposes only. 8. Criminal Law 50 — opinion evidence — expertise of witness required The essential question in determining the admissibility of opinion evidence is whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies. 9. Criminal Law 50 — opinion testimony — admissibility The trial court in a first degree murder prosecution did not err in allowing (1) a witness who was in charge of the mobile crime laboratory of the SBI to give an opinion as to whether or not washing<page_number>Page 205</page_number> the hands would destroy any possibility of a valid gun residue test, (2) an employee of the SBI, who admittedly was not a fingerprint expert, to explain the difference between a latent lift and a fingerprint, and (3) various witnesses to make observations and statements of fact which did not amount to expressions of opinion. 10. Searches and Seizures 1 — probable cause to stop and search vehicle Where an officer had been notified by the State Highway Patrol radio dispatcher that a bank robbery and shooting had taken place and that a maroon Cadillac bearing N.J. license plates had been seen outside the bank, and the officer shortly thereafter saw a car answering this description traveling away from the scene of the crime, the officer had sufficient probable cause to stop the vehicle and search it for contraband and weapons as it sat on the side of the road. 11. Homicide 20; Searches and Seizures 2 — consent to search vehicle — admissibility of money found therein The trial court in a first degree murder case did not err in allowing into evidence money seized during a search of defendant's car where the court determined that defendant gave police officers permission to search his vehicle after he had been fully advised of his Miranda rights. 12. Homicide 21 — murder in perpetration of robbery — sufficiency of evidence Evidence was sufficient for the jury in a first degree murder case where it tended to show that all three defendants arrived at Junior Peterson's trailer shortly after 8:00 a.m. on the day of the crime, defendant Phifer asked Mary Peterson for an old stocking, defendant Lawrence was carrying a shaving kit which contained, among other items, a .32 caliber revolver, the three defendants left the trailer about 8:55 a.m. in a maroon Cadillac bearing N.J. license plates, the car was later identified as belonging to defendant Boyce, a bank employee was shot with a .32 caliber pistol and the Southern Bank and Trust Company's Pantego branch was robbed shortly after 9:00 a.m., a dark-colored Cadillac with N.J. plates was parked at the bank at the time, the three defendants returned to the trailer at approximately 9:20 a.m. in the maroon Cadillac carrying a white plastic bag containing a large amount of money, and defendant Phifer, in the presence of the other defendants, told Mary Peterson that they had robbed a bank and "that dumb woman picked the phone up and screamed." 13. Homicide 30 — first degree murder — failure to instruct on lesser offense — no error Where the evidence was sufficient to place all three defendants at the scene of the homicide, and no evidence was adduced showing that one or more of the defendants merely counseled or procured the crimes, the trial court properly denied defendants' request for an instruction on accessory before the fact. 14. Homicide 2, 25 — three defendants — responsibility of all for acts of one In a prosecution of three defendants for first degree murder, the trial court correctly stated the rule that each defendant need not<page_number>Page 206</page_number> do every act necessary to constitute the crime, but that two or more persons may act together with a common purpose to commit a crime and thereby be held responsible for the acts of the others. 15. Criminal Law 114 — jury instructions — no expression of opinion The trial court did not express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> by (1) reminding the jury that they should apply the law he gave them equally to all defendants, (2) relating his instructions concerning the credibility of interested witnesses and accomplices to the evidence in the case, (3) reminding the jurors of the length of the trial and the inconvenience it had caused them and expressing his appreciation to the jurors for their service, and (4) explaining to the jurors the consequences of a hung jury and encouraging them to agree on a verdict without surrendering their convictions. 16. Criminal Law 99 — handcuffing defendants outside jury's presence — no expression of opinion The handcuffing of defendants while the jury was out deliberating on the verdict did not constitute an impermissible expression of opinion on the part of the trial judge or influence the jurors to the prejudice of defendants. 17. Constitutional Law 36; Homicide 31 — first degree murder — death penalty constitutional Imposition of the death penalty upon a conviction for first degree murder was constitutional.

1. Homicide 4 — felony-murder — no necessity that defendant inflict fatal wound It is not necessary to support a conviction of felony-murder that defendant actually inflicted the fatal shot; rather, when several persons aid and abet each other in an attempt to perpetrate a robbery, and while so engaged, one of them fatally wounds the victim, all being present, each is guilty of murder in the first degree. 2. Homicide 21 — felony-murder — attempted robbery — sufficiency of evidence Evidence in this felony-murder prosecution was sufficient to raise reasonable inferences which would support jury conclusions that defendant shared in the criminal intent to rob the victim and that he, by overt acts, took part in the attempted robbery of the victim where such evidence tended to show that defendant gained entrance to the victim's home by making false representations, he attempted to incapacitate the victim's wife by the use of tear gas at the time one Larry Clark was engaged in an attempt to rob her husband, defendant assisted Clark in his attempt to rob the victim by spraying him with tear gas, before fleeing the premises defendant twice asked Clark if he had obtained the victim's pocketbook, and defendant concealed himself in a nearby wooded area until he was discovered and taken into custody by police officers two days after the killing.<page_number>Page 237</page_number> 3. Constitutional Law 36; Homicide 31 — felony-murder — death sentence constitutional The imposition of the death penalty in a felony-murder case is not cruel and unusual punishment prohibited by the U.S. and N.C. Constitutions. 4. Criminal Law 87 — leading question defined A leading question is a question which suggests the answer desired, and frequently a question which may be answered by "yes" or "no" is regarded as leading. 5. Criminal Law 87 — leading questions — no error The trial court in a felony-murder prosecution did not err in allowing the State to ask the victim's wife leading questions concerning her husband's habit of carrying large amounts of cash. 6. Criminal Law 73 — hearsay testimony by victim's wife — no prejudice Even if testimony by the murder victim's wife that she heard she hit defendant when she fired her gun in his direction sixteen times was hearsay, defendant was not prejudiced by its admission, since there was other competent evidence positively identifying defendant as one of the men who was fleeing the scene of the attempted robbery and murder and in whose direction the witness fired her gun, and defendant was later found within a quarter of a mile of the crime scene with three bullet wounds in his body. 7. Criminal Law 90 — impeachment of own witness — showing of prior inconsistent statements A district attorney may not discredit a State's witness by eliciting evidence that the witness had made prior statements inconsistent with or contradictory of his testimony; however, the general rule is that improper conduct of counsel is cured when the trial judge sustains the adversary's objection and instructs the jury not to consider it, but this general rule does not apply when the conduct is so gross and prejudicial that no curative action by the trial judge could remove its prejudicial impact from the minds of the jury. 8. Criminal Law 90 — attempted impeachment of own witness by State — curative instructions — no prejudice Where the district attorney attempted to discredit his own witness by showing prior contradictory statements, but the only evidence elicited through the district attorney's attempts to impeach his own witness was that the witness had previously stated that he was going to tell the truth when he was called to testify, there was little evidence of prejudice to defendant; moreover, any prejudice which did arise was cured by the trial court's prompt rulings and curative instructions. 9. Criminal Law 102, 116 — defendant's failure to testify — permissible jury argument for district attorney G.S. <cross_reference>8-54</cross_reference> does not prohibit the district attorney from making comments upon the evidence and drawing such deductions therefrom<page_number>Page 238</page_number> as were legitimate before the passage of the statute so long as no direct reference is made to the right of the defendant to testify and his failure to do so; in other words, the statute enhanced the rights of defendants but did not abridge the privileges of the prosecution. 10. Criminal Law 102, 116 — all evidence offered by State — district attorney's argument not prejudicial Defendant was not prejudiced by the district attorney's references to the fact that the State offered all the evidence in this case, particularly in light of the fact that defendant did not object to those portions of the district attorney's argument or call them to the trial judge's attention so that he might have given proper cautionary instructions.

1. Judges 7 — misconduct in office — proceeding before Judicial Standards Commission A proceeding before the Judicial Standards Commission is neither criminal nor civil in nature but is an inquiry into the conduct of a judicial officer, the purpose of which is not primarily to punish any individual but to maintain due and proper administration of justice in our State's courts, public confidence in its judicial system, and the honor and integrity of its judges.<page_number>Page 300</page_number> 2. Judges 7 — wilful misconduct in office Wilful misconduct in office is improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly and, generally, in bad faith; it is more than a mere error of judgment or an act of negligence, and while the term would encompass conduct involving moral turpitude, dishonesty, or corruption, these elements need not necessarily be present. 3. Judges 7 — conduct prejudicial to administration of justice that brings judicial office into disrepute Conduct prejudicial to the administration of justice that brings the judicial office into disrepute has been defined as conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office. 4. Judges 7 — misconduct in office — motives — results of conduct Whether the conduct of a judge may be characterized as prejudicial to the administration of justice that brings the judicial office into disrepute depends not so much upon the judge's motives but more on the conduct itself, the results thereof and the impact such conduct might reasonably have upon knowledgeable observers. 5. Judges 7 — conduct prejudicial to administration of justice that brings judicial office into disrepute — constitutionality of phrase The phrase "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" is not unconstitutionally vague or overbroad. 6. Judges 7 — misconduct in office — matters considered In determining whether conduct of a judge constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute, consideration should be given to the traditions, heritage, and generally recognized practices of the courts and the legal profession, the common and statutory law, codes of judicial conduct, and traditional notions of judicial ethics. 7. Judges 7 — misconduct in office — ex parte disposition of criminal case outside courtroom — censure by Supreme Court A district court judge, upon recommendation of the Judicial Standards Commission, is censured by the Supreme Court for wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute because of his disposition of a criminal case outside the courtroom when the court was not in session and without notice to the district attorney who was prosecuting the docket when the matter was not on the printed calendar for disposition, since the judge's action (1) improperly precluded the district attorney from participating in the disposition, (2) improperly removed the proceeding from the public domain, and (3) violated Canon 3 (A) (4) of the North Carolina Code of Judicial Conduct.

1. Criminal Law 66 — in-court identification — view of defendant in prior court proceedings The viewing of a defendant in the courtroom during the various stages of a criminal proceeding by witnesses who are offered to testify as to identification of the defendant is not, of itself, such a confrontation as will taint an in-court identification unless other circumstances are shown which are so "unnecessarily suggestive and conducive to irreparable mistaken identification" as would deprive defendant of his due process rights. 2. Criminal Law 66 — in-court identification — failure to make findings of fact The trial judge did not commit prejudicial error in failing to make findings of fact when he denied defendants' motion to suppress the in-court identification testimony of three State's witnesses after a voir dire hearing where there was no conflicting evidence on the voir dire hearing, defendants merely elicited on cross-examination the fact that the State's witnesses had observed defendants in courtroom proceedings on one or more occasions subsequent to the crime, there is nothing in the record to show any improper pretrial confrontation and the record discloses clear and convincing evidence that the identification testimony was of independent origin based on the witnesses observations of defendants at the time of the crime. 3. Criminal Law 73 — statements by victim — competency as part of res gestae In a prosecution for murder committed in the perpetration of armed robbery, testimony that at the time or just before one defendant stabbed the witness and fatally wounded the victim, the victim stated, "Please don't kill her. She's give you all of her money," was properly admitted as part of the res gestae. 4. Conspiracy a; Criminal Law 79 — conspiracy — declarations of coconspirators When the State shows a prima facie conspiracy, the declarations of the coconspirators in furtherance of the common plan are competent against each of them even where defendants are not formally charged with a criminal conspiracy. 5. Conspiracy 5; Criminal Law 73, 79 — statement by defendant — admissibility against coconspirators — res gestae Where the State's evidence showed that defendants were carrying out a plan or an agreement to commit an armed robbery when the deceased was killed, a statement made by one defendant just before he stabbed deceased, "That white sonofabitch ought to have been<page_number>Page 314</page_number> dead," was admissible against the other defendants as a statement made in furtherance of the conspiracy; furthermore, such statement was also admissible as part of the res gestae. 6. Homicide 25 — felony-murder — instructions on proximate cause of death In a prosecution for murder committed in the perpetration of a robbery, the trial court did not err in failing to instruct the jury that in order to find defendant guilty it must find that the robbery was the proximate cause of the victim's death, the court having correctly instructed the jury that the State must prove beyond a reasonable doubt that defendant stabbed the victim while committing the crime of robbery and that the stabbing of the victim proximately caused his death. 7. Homicide 21 — murder in perpetration of robbery — sufficiency of evidence of defendant's guilt The State's evidence was sufficient for the jury on the issue of defendant's guilt of first degree murder where it tended to show that the victim was killed while defendant and his three codefendants were engaged in the perpetration of an armed robbery and that defendant not only was taking part in the armed robbery but that he also physically participated in the killing of the victim. 8. Criminal Law 102 — jury argument Counsel must be allowed wide latitude in the argument of hotly contested cases and may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case; whether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and an appellate court will not review the exercise of such discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury. 9. Criminal Law 102 — jury argument — expression of own knowledge and beliefs Counsel may not employ his argument as a device to place before the jury incompetent and prejudicial matter by expressing his own knowledge, beliefs and opinions not supported by the evidence. 10. Criminal Law 102 — jury argument — duty of court to censor It is the duty of the trial judge, upon objection, to censor remarks not warranted by the evidence or the law and, in cases of gross impropriety, the court may properly intervene ex mero motu. 11. Criminal Law 102 — jury argument — statement that deceased had been "living, breathing human being" — rights of victims In a first degree murder prosecution the district attorney's argument that deceased had been "a living, breathing human being, just like you and just like me, and he is gone forever now" was within the bounds of the record evidence, and there was no gross impropriety in the district attorney's statement that "everybody is concerned about the rights of the defendants . . . When in God's name are we going to start getting concerned about the rights of the victims?"<page_number>Page 315</page_number> 12. Criminal Law 102 — jury argument — duty of counsel to "sway your mind from justice" — curative instruction While the district attorney's argument that defense counsel "are supposed to do everything they can to sway your mind from justice in this case and get their clients off if they can" was improper, the trial judge's prompt action in instructing the jury to disregard this argument removed any possibility of prejudice. 13. Homicide 15 — health of decedent — testimony by decedent's wife In a prosecution for first degree murder committed in the perpetration of a robbery, testimony by decedent's wife that he was in good health when he left home on the date of the crime was competent to show that defendant died from wounds he received on the day of the robbery, and medical testimony subsequently offered by the State did not render such testimony incompetent. 14. Criminal Law 114 — corroborative evidence — instructions — consistency of statements and testimony — no expression of opinion The trial court did not express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> when he stated in his instructions that statements made by two witnesses to a deputy sheriff were consistent with the testimony given by the witnesses in the courtroom where the court's further instructions made it clear that it was for the jury alone to determine whether the deputy sheriff's testimony was consistent with the courtroom testimony of the two witnesses. 15. Criminal Law 116 — instructions on failure of defendant to testify The trial court's instructions on the failure of defendant to testify complied with the requirements of G.S. <cross_reference>8-54</cross_reference> and exceeded the minimal requirements approved in prior decisions. 16. Criminal Law 46 — search for defendant — defendant's actions when located — evidence of flight In a prosecution for first degree murder, testimony by an SBI agent relating to his unsuccessful search for defendant which continued for three days after the commission of the crime and his description of defendant's furtive acts when he was finally located were properly admitted into evidence. 17. Criminal Law 87 — manner of examination of witness — no abuse of discretion by court No abuse of the court's discretion was shown in the manner in which the district attorney was permitted to examine an SBI agent. 18. Criminal Law 33 — observation of defendant in certain car before crime — relevancy In a prosecution for murder committed in the perpetration of a robbery wherein an automobile observed at the crime scene and in which defendants fled was identified as a blue and white Plymouth Duster, a witness's testimony that he saw two of the defendants a short time before the crime in a blue and white Plymouth Duster which belonged to one defendant's sister was relevant to show that one defendant had access to a blue and white Plymouth Duster and<page_number>Page 316</page_number> to strengthen eyewitness testimony that such defendant was the man who remained with the automobile and furnished the "get away" car. 19. Criminal Law 87 — ownership of vehicle — foundation for testimony Testimony that the witness lived in the small town of Laurinburg and had known defendant for twenty years gave a reasonable foundation for and credence to the witness's testimony that a car in which he saw the defendant riding was owned by defendant's sister. 20. Criminal Law 113 — failure to define "corroboration" The trial court did not err in failing to define "corroboration" and "corroborative evidence" absent a request for such an instruction. 21. Criminal Law 89 — noncorroborative evidence — error cured by instruction In a prosecution for murder committed in the perpetration of a robbery, error in the admission for corroborative purposes of an officer's testimony that a witness told him that a person standing at the raised hood of a car at the crime scene "looked real funny at him when he drove up" when the witness did not so testify was cured by the trial court's instruction that the jury should not consider that portion of the officer's testimony. 22. Criminal Law 96 — withdrawal of evidence Ordinarily, when incompetent evidence is withdrawn from the jury's consideration by appropriate instructions from the trial judge, any error in admission of the evidence is cured. 23. Criminal Law 89 — noncorroborative evidence — error cured when objection sustained Any error in the admission of an officer's testimony that a witness told him a car at the crime scene was a Plymouth or Dodge with a N.C. license plate and that the witness saw four subjects leave the scene, when the witness testified only that the car was blue and white and did not testify as to the number of persons he saw leave the scene, was cured when the trial court sustained defendant's objections to the noncorroborative testimony. 24. Criminal Law 169 — admission of evidence over objection — similar evidence admitted without objection The admission of incompetent testimony is cured when substantially the same evidence is theretofore or thereafter admitted without objection. 25. Homicide 21 — robbery-murder — aider and abettor — sufficiency of evidence In a prosecution for murder committed in the perpetration of an armed robbery, the State's evidence was sufficient for the jury to find that defendant acted as lookout and driver of the "get away" car, and that he was thus guilty of first degree murder as an aider and abettor, where it tended to show: defendant was seen driving his sister's blue and white Plymouth Duster automobile with a codefendant as a passenger shortly before the crime was committed; a blue<page_number>Page 317</page_number> and white Plymouth Duster was parked in front of the store where the crime occurred during the time of the crime and defendant was standing beside the car; the hood of the car was up and defendant stuck his head under the hood when the store owner appeared; a codefendant was seen entering the Duster and none of the defendants were observed at the crime scene after the Duster departed; the store owner fired toward and struck the Duster at least one time; witnesses observed a blue and white Duster traveling toward Laurinburg shortly after the crime; the car was occupied by three or four colored people and one occupant had a bloody rag beside his head; a blue and white Duster with blood on the front passenger headrest and with the right front window broken out was found parked one-quarter mile from defendant's home; defendant's fingerprints were on the hood of the car; and all defendants had lived in Laurinburg for at least fifteen years. 26. Homicide 2 — conspiracy to rob — murder during robbery — responsibility of conspirator Where an accused entered into a conspiracy to commit an armed robbery, he is criminally responsible for a murder committed by another conspirator during the robbery even though he did not actually participate in that attempt. 27. Criminal Law 87; Indictment and Warrant 13 — motion for bill of particulars — testimony of proposed witnesses The trial court did not err in the denial of the portion of defendant's motion for a bill of particulars seeking a detailed statement of the testimony of each witness to be offered by the State, the court having ordered the State to furnish defendant a list of the proposed witnesses for the State and a copy of all statements made by defendant and his codefendants to police officers concerning the alleged crime. 28. Criminal Law 92 — consolidation of charges against four defendants The trial court properly consolidated for trial charges against four defendants for murder committed in the perpetration of an armed robbery. Former G.S. <cross_reference>15-152</cross_reference>. 29. Jury 2 — motion for special venire The trial court in a murder case did not err in the denial of defendant's motion for a special venire on the ground that deceased was well known and highly regarded in his township. 30. Constitutional Law 31; Criminal Law 97 — reading of witness's testimony to jury by court reporter The trial court did not err in allowing the court reporter, at the request of the jury, to read back the testimony of two witnesses. 31. Criminal Law 117 — instructions on corroborative evidence Trial court's instructions on corroborative evidence were in accord with prior Supreme Court decisions. 32. Criminal Law 9, 113 — instructions on aiding and abetting — criminal purpose In a prosecution for murder committed in the perpetration of armed robbery, the trial court's instructions made it clear that in order to<page_number>Page 318</page_number> convict defendant as an aider and abettor, the State had to prove beyond a reasonable doubt that he shared with his codefendants the criminal purpose to commit the crime of armed robbery. 33. Homicide 30 — felony-murder — failure to submit lesser offenses The trial court in a first degree murder case was not required to submit lesser included offenses to the jury where all of the evidence tended to show that the murder was perpetrated during the course of an armed robbery. 34. Criminal Law 114 — instructions on taking of verdicts — no expression of opinion The trial judge did not express an opinion as to defendant's guilt when he instructed in the presence of the jury that the clerk would first take the verdict as to a codefendant and "following that and any motions his attorney might like to make" the clerk would take the verdict as to defendant, although the better practice is for the court to instruct the clerk in the absence of the jury as to the procedure for taking the verdict. 35. Constitutional Law 36; Criminal Law 135; Homicide 31 — death sentences unconstitutional — imposition of sentences of life imprisonment Since the U.S. Supreme Court has invalidated the death penalty provisions of G.S. <cross_reference>14-17</cross_reference> (Cum. Sup. 1975), the statute under which each defendant was indicted, convicted and sentenced to death for first degree murder, the sentences of death are vacated and sentences of life imprisonment are substituted therefor by authority of the provisions of 1973 Sess. Laws, c. 1201, 7 (1974 Session). 36. Constitutional Law 29; Jury 7 — exclusion of jurors because of capital punishment views — death sentences vacated Defendants' constitutional rights were not violated by the exclusion of jurors because of their views concerning capital punishment in a trial of defendants for first degree murder where sentences of death imposed on defendants have been invalidated and sentences of life imprisonment have been substituted therefor, since the decision of Witherspoon v. Illinois, <cross_reference>391 U.S. 510</cross_reference>, invalidated only the sentence of death and not the conviction of a defendant.

1. Indictment and Warrant 10 — use of alias in indictment Defendant was not prejudiced by the court's denial of his motion to quash the indictments on the ground that his name was set out therein as "Tamarcus Swift, Alias Poison Ivy," especially since two witnesses who knew defendant well used the alias when testifying, the court sustained objections to use of the alias by the district attorney, and the court instructed the jury that the alias was not to be considered to defendant's detriment. 2. Constitutional Law 30 — references to defendant by nicknames — fair trial Defendant was not denied a fair trial because State's witnesses were permitted to refer to defendant by his nicknames of "Poison Ivy" and "Poison," especially where defendant offered testimony in which the nickname "Poison Ivy" was used. 3. Homicide 12 — murder indictment under G.S. 115-144 [<cross_reference>15-144</cross_reference>] — proof of felony-murder A felony-murder may be proven by the State although the indictment charges murder in the statutory language of G.S. <cross_reference>15-144</cross_reference>. 4. Homicide 12; Indictment and Warrant 13 — bill of particulars — election by State — felony-murder or premeditated murder The trial court did not err in the denial of defendant's motion for a bill of particulars stating whether the State would proceed under the felony-murder rule or on the basis of premeditation and deliberation since the district attorney advised that the State would proceed under both theories, and since the State was not required to elect upon which theory it would proceed prior to the introduction of evidence. 5. Constitutional Law 29; Jury 7 — capital punishment beliefs — excusal for cause — effect of invalidation of death penalty Defendant was not prejudiced by the excusal for cause of prospective jurors because of their capital punishment beliefs since the death penalty provisions of the statute under which defendant was convicted and sentenced to death, G.S. <cross_reference>14-17</cross_reference> (Cum. Supp. 1975), was invalidated by the U.S. Supreme Court in Woodson v. North Carolina, <cross_reference>428 U.S. 280</cross_reference> (1976). 6. Criminal Law 87 — leading questions The trial court did not abuse its discretion in permitting the district attorney to ask leading questions during the direct examination of State's witnesses.<page_number>Page 384</page_number> 7. Criminal Law 73 — declarations to defendant — competency to show knowledge, state of mind In a homicide prosecution, testimony by State's witnesses that defendant's aunt told him that she had been beaten up by the victim's husband, that defendant's aunt told defendant where to find the residence of the person who had beaten her, and that an unidentified person told defendant that the victim's husband was coming out of a house was competent to show defendant's knowledge of the asserted facts and to indicate his intentions and state of mind toward the victim's husband. 8. Criminal Law 65 — evidence to show state of mind and intentions In a homicide prosecution, testimony that after the shooting defendant's aunt "seemed to be upset because of what happened" and defendant "got her to go in the house and go to bed" was competent to show defendant's state of mind, his intentions and mood at the time. 9. Criminal Law 57 — testimony as to how rifle functioned A police officer's testimony as to how a certain rifle functioned was competent to show that the rifle could not have discharged accidentally in the manner contended by defendant. 10. Criminal Law 43 — proper use of photographs Photographs were not used as substantive evidence but were properly used for illustrative purposes when a witness placed an "X" on a photograph to locate defendant's position, when a witness testified as to the amount of blood shown in a photograph, and when a witness identified blood on the walls and holes in the walls as shown on the photographs. 11. Homicide 20 — teeth found at murder scene — competency Testimony as to the location of several teeth found at the scene of the homicide was competent to corroborate a physician's testimony that deceased was killed with a gunshot wound in the face and to show the direction from which the shot was fired and the range of the shot. 12. Criminal Law 128 — arrest of person with weapon in courtroom — knowledge of juror — motion for mistrial The trial court did not err in the denial of defendant's motion for a mistrial when a juror notified the court that her supervisor had told her that some man, unrelated to this case, was arrested in the courtroom during the trial for carrying a loaded weapon where the court interrogated the jurors and determined that each of them could return a fair and impartial verdict uninfluenced by the incident. 13. Criminal Law 101 — sequestration of jury The sequestration of the jury rests in the discretion of the trial court. G.S. <cross_reference>9-17</cross_reference>. 14. Constitutional Law 30; Criminal Law 102 — possibility of indictment of defense witnesses — procedure out of jury's presence — fair trial Defense witnesses were not threatened by the district attorney and defendant was not denied a fair trial when the court, upon learning<page_number>Page 385</page_number> that two potential defense witnesses might be charged as accessories after the fact to murder, advised the potential witnesses of their rights out of the jury's presence, and the district attorney stated that he had no intention of indicting one of the witnesses and thus intimated that the other witness might be indicted; furthermore, defendant was not prejudiced by such procedure since both witnesses testified favorably for defendant. 15. Criminal Law 76 — waiver of right to remain silent — sufficiency of evidence Although the court found that defendant gave no specific answer when asked whether he desired to answer a certain question, the court's determination that defendant waived his right to remain silent was supported by the evidence and findings when the fact that defendant had affirmatively waived his right to counsel and had affirmatively acknowledged understanding his Miranda rights is considered with the other responses and statements made by defendant. 16. Criminal Law 112 — instructions on reasonable doubt — doubt from evidence or lack of evidence The trial court did not err in instructing that a reasonable doubt is an honest, substantial misgiving generated "by the insufficiency of proof" without instructing further that such misgiving could arise "out of the evidence" since it is clear from the charge as a whole, including the court's instruction that a reasonable doubt "is a sane, rational doubt arising out of the evidence or lack of evidence," that the court used the words "insufficiency of proof" to refer to an insufficiency arising out of the evidence or out of the lack of evidence. 17. Assault and Battery 15 — discharging firearm into occupied dwelling — instructions — intentional use of firearm The trial court did not err in the use of the words "intentionally used a firearm" when instructing on the offense of discharging a firearm into an occupied dwelling where it is clear that the court used the words as synonymous with "intentionally fired or discharged a firearm." 18. Homicide 28 — instructions — accident or misadventure — "actual" firing of weapon The trial court in a homicide prosecution did not err in charging the jury that defendant contended he did not "actually" fire the rifle into the victim's dwelling rather than stating that defendant contended he did not "intentionally" fire the rifle into the dwelling; furthermore, the court in substance gave defendant's requested instruction that he would not be guilty if he "unintentionally" proximately caused the victim's death by use of a rifle. 19. Criminal Law 126 — instructions on unanimity of verdict The court's instruction, "Any verdict you arrive at must be unanimous; in other words, there must be a meeting of the minds," could not have caused the jurors to believe that there had to be a meeting of the minds and thus did not coerce a verdict.<page_number>Page 386</page_number> 20. Homicide 4, 14; Constitutional Law 30 — felony-murder rule — constitutionality The felony-murder rule set forth in G.S. <cross_reference>14-17</cross_reference> does not establish a presumption of premeditation and deliberation in violation of the due process requirement that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged, since under the statute premeditation and deliberation are not elements of the crime of felony-murder and the statute involves no presumption at all. 21. Homicide 14, 30 — felony-murder — proof of premeditation and deliberation — submission of lesser offenses When the law and evidence justify use of the felony-murder rule, the State is not required to prove premeditation and deliberation, and the court is not required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. 22. Homicide 4 — felony-murder — discharging firearm into occupied dwelling The offense of discharging a firearm into an occupied dwelling in violation of G.S. <cross_reference>14-34.1</cross_reference> is an unspecified felony within the purview of G.S. <cross_reference>14-17</cross_reference> and can result in a conviction for first-degree murder under the felony-murder rule. 23. Constitutional Law 36; Criminal Law 135; Homicide 31 — unconstitutionality of death penalty — imposition of life imprisonment Since the U.S. Supreme Court in Woodson v. North Carolina, <cross_reference>428 U.S. 280</cross_reference>, invalidated the death penalty provisions of G.S. <cross_reference>14-17</cross_reference>, the statute under which defendant was convicted and sentenced to death for first degree murder, the sentence of death is vacated and a sentence of life imprisonment substituted therefor by authority of 1973 Sess. Laws, c. 1201, 7 (1974 Session).

1. Municipal Corporations 2 — standing to attack annexation ordinance Private citizens had no standing to seek judicial review of a municipal ordinance annexing a noncontiguous area. 2. Declaratory Judgment Act 1; Municipal Corporations 30 — validity of zoning ordinance — declaratory judgment The validity of a municipal zoning ordinance, when directly and necessarily involved, may be determined in a properly constituted<page_number>Page 609</page_number> action under the Declaratory Judgment Act; however, this may be done only when challenged by a person who has a specific personal and legal interest in the subject matter affected by the zoning ordinance and who is directly and adversely affected thereby. 3. Municipal Corporations 30 — standing to attack rezoning ordinance Plaintiffs' standing to attack a rezoning ordinance must be considered and determined with reference to whether the rezoning ordinance itself directly and adversely affects them. 4. Equity 2 — laches — motion for summary judgment The defense of laches is frequently raised by summary judgment motion; when it so raised the plaintiff is permitted to counter by showing a justification for the delay, and whenever this assertion raises triable issues, defendant's motion will not be granted. 5. Equity 2 — laches — burden of proof Laches is an affirmative defense which must be pleaded, and the burden of proof is on the party who pleads it. 6. Municipal Corporations 30; Declaratory Judgment Act 1 — attack on zoning ordinance — declaratory judgment action A property owner having standing to attack a zoning ordinance or amendment thereof may do so in an action under G.S. <cross_reference>1-254</cross_reference> for a declaratory judgment. 7. Equity 2; Declaratory Judgment Act 1 — laches — declaratory judgment action The equitable doctrine of laches is applicable in an action for a declaratory judgment. 8. Municipal Corporations 30 — petition for rezoning — notice of plans for multi-family units A petition to a city's governing body to reclassify an area zoned for single-family dwellings so as to permit the construction of multi-family dwellings or apartment houses is notice to all interested persons that the applicant, if his petition is allowed, has present plans to construct multi-family units in the rezoned area. 9. Municipal Corporations 30; Equity 2 — delay in attack on rezoning ordinance — laches A delay in seeking a determination of the invalidity of a properly enacted zoning ordinance until after expenditures are incurred in reliance upon the ordinance, or an amendment thereto, may constitute laches or inequitable conduct barring judicial relief. 10. Municipal Corporations 30; Equity 2 — laches — failure to challenge rezoning ordinance — no knowledge of necessity for easements The fact that plaintiffs were unaware at the time a rezoning ordinance was enacted that an easement would be condemned across their properties for the installation of water and sewer lines to serve rezoned property constitutes no reasonable excuse for the plaintiffs' failure to assert their right, if any, to challenge the rezoning ordinance.<page_number>Page 610</page_number> 11. Rules of Civil Procedure 56 — summary judgment based on defendant's own affidavit In an action to invalidate a rezoning ordinance, summary judgment was properly entered for defendants on the basis of the defendant landowner's own affidavit where there were only latent doubts as to the credibility of the affiant and plaintiffs did not challenge the statements in the affidavit as required by G.S. <cross_reference>1A-1</cross_reference>, Rule 56, (e) or (f). 12. Municipal Corporations 30; Equity 2 — attack on rezoning ordinance — laches Plaintiffs were barred by laches from attacking a rezoning ordinance where their action to invalidate the ordinance was not brought until two years and twenty-two days after the ordinance was adopted and defendant landowner had spent in reliance on the ordinance $23,267.56 for architectural fees for design of an apartment development to be placed on the rezoned land, engineering fees for the design of a sewer line to serve the land, and related attorney fees.

1. Criminal Law 91 — motion for continuance — appellate review Ordinarily a motion for a continuance is addressed to the trial judge's sound discretion and his ruling is not subject to review on appeal in the absence of gross abuse; however, when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the order of the court below is reviewable. 2. Constitutional Law 31, 32 — right to counsel — right of confrontation The rights to the assistance of counsel and of confrontation of one's accusers and witnesses guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, sections 19 and 23 of the N.C. Constitution include the right of an accused to have a reasonable time to investigate, prepare and present his defense; however, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of each case. 3. Criminal Law 91; Constitutional Law 31, 32 — denial of continuance — right to effective counsel — right of confrontation Defendant's rights of confrontation of his accusers and to due process and effective assistance of counsel were not violated by the denial of his motion for continuance where: defendant was given a preliminary hearing; counsel was appointed for him seven weeks before trial; defendant was transferred to Central Prison but was returned to the county of his trial a week before the beginning of the trial; defendant's alleged accomplices were confined in the county jail; the State furnished defense counsel with copies of defendant's<page_number>Page 682</page_number> statements to police officers; and defendant failed to show that he had been unable to confer with his counsel or that his counsel had been deterred from interviewing defendant's alleged accomplices. 4. Jury 7 — juror tendered to defendant — reexamination and challenge by State The trial judge did not abuse his discretion in allowing the State to reexamine and challenge for cause a prospective juror who had been accepted by the State and tendered to defendant. 5. Indictment and Warrant 5 — signature of grand jury foreman — presence of majority of grand jury The trial judge did not err in allowing the foreman of the grand jury to sign the bill of indictment for first degree murder without the presence of a majority of the grand jury in open court since G.S. 15-141 requires the return of the indictment in open court in the presence of the grand jury or a majority of them in capital cases, not that the foreman sign the indictment in the presence of the entire grand jury or a majority of them. 6. Criminal Law 162 — necessity for objections, motions to strike When a specific question is asked, objection should be interposed immediately and before the witness has an opportunity to answer; however, when inadmissibility is not indicated before the witness answers, counsel should move to strike the answer or the objectionable part of it. 7. Criminal Law 85 — testimony impugning defendant's character — absence of prejudice Defendant in this first degree murder prosecution was not prejudiced by a witness's testimony that defendant had demanded that she work as a prostitute since (1) the testimony might well have been admissible as evidence of prior acts to corroborate the witness's testimony that defendant had instructed her to make a "date" with deceased in order to rob him, and (2) the testimony was consistent with the sordid relationship between defendant and the witness as related in her other testimony. 8. Searches and Seizures 2; Criminal Law 76 — consent to search — voluntary statement to police The evidence on voir dire supported the trial court's findings that defendant consented to a search of his car and that defendant voluntarily stated to officers that a pistol found in the car belonged to him, and the court properly admitted into evidence the pistol, testimony relating to the finding of the pistol, and defendant's statement that the pistol was his. 9. Criminal Law 76 — inculpatory statement — voluntariness — appellate review The trial judge's finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence.<page_number>Page 683</page_number> 10. Criminal Law 75 — transcript of in-custody statements — contention that portion erroneous Defendant's contention that a transcript of statements he purportedly made to police contained some things that he did not say did not go to the admissibility of the transcript but presented a question to be resolved by the jury. 11. Criminal Law 75 — in-custody statements — failure to give copy to defendant The fact that defendant did not receive a copy of his inculpatory statements until a week before trial did not affect their admissibility where defendant failed to show that this delay hindered him in preparing or presenting his defense. 12. Criminal Law 87 — leading questions The trial judge did not abuse his discretion in permitting the district attorney to ask witnesses two leading questions where the evidence elicited by the questions was merely cumulative, and where there was ample evidence of similar import in the record to render the answers given non-prejudicial. 13. Criminal Law 102 — jury argument — erroneous statement of felony murder law — absence of prejudice Though the district attorney's jury argument that felony-murder is a death resulting from acts committed in the process of committing "a crime" and that defendant would be guilty even if he went to deceased's house to assist another in committing "a larceny" erroneously indicated that one could be convicted of felony-murder for a homicide occurring in the commission of an offense of lesser grade than felony, such argument was not prejudicial to defendant where trial judge gave a full and accurate instruction on felony-murder, the judge directed the jury to apply only the law given to them by the court, and the district attorney told the jury that the judge would tell them what the law was. 14. Criminal Law 62 — polygraph results — absence of objection While testimony as to the results of a polygraph test is not admissible to show the guilt or innocence of an accused, such evidence admitted without objection may be considered by the jury. 15. Criminal Law 62, 102 — jury argument — lie detector results — supporting evidence Although the trial court in this felony-murder prosecution struck testimony that a lie detector test showed that defendant "had knowledge of the robbery," the district attorney's jury argument that a lie detector test showed defendant "had guilty knowledge" was supported by inferences from testimony, admitted without objection, that defendant had "failed" his lie detector test and that the results "showed sensitivity that it [defendant's participation] was possible." 16. Criminal Law 117 — all evidence shows witness was accomplice — instruction on duty to scrutinize testimony When all of the evidence shows a witness to be an accomplice, the trial judge should instruct that the witness's testimony should<page_number>Page 684</page_number> be carefully scrutinized without requiring any finding by the jury that the witness was an accomplice. 17. Criminal Law 117 — instruction on accomplice testimony — harmless error While it would have been appropriate in this murder case for the trial judge to have instructed the jury that testimony of a State's witness should have been carefully scrutinized without having required any finding by the jury, the judge's instruction which required the jury to determine whether the witness was an accomplice did not constitute prejudicial error. 18. Homicide 30 — felony-murder — failure to submit lesser offenses In this prosecution for murder committed in the perpetration of a robbery, evidence that defendant told the police that he and a male companion entered deceased's home to get a female companion who was in the home, that upon their entry deceased ran to defendant and bit his finger, and that defendant thereupon hit him on the head with his fist and left the dwelling was insufficient to require the court to submit to the jury the lesser included offenses of second degree murder and voluntary manslaughter. 19. Constitutional Law 36; Homicide 31 — sentence of death vacated — substitution of life imprisonment Since the U.S. Supreme Court has invalidated the death penalty provisions of G.S. <cross_reference>14-17</cross_reference>, the statute under which defendant was indicted, convicted and sentenced to death for first degree murder, the sentence of death imposed upon defendant is vacated and a sentence of life imprisonment is substituted therefor.

Narcotics 4 — marijuana in apartment — constructive possession — insufficiency of evidence The evidence was insufficient to support a jury finding that defendant was in constructive possession of marijuana found during the search of an apartment where: the State's evidence tended to show that defendant had leased the apartment, that letters and bills in the apartment indicated defendant had not been present there for the previous 44 days, that on the night of the search another person appeared on the scene with a key to the apartment on his person, and that one of the two bedrooms of the apartment did not appear to have been lived in for some time; defendant testified he had sublet the apartment to the person who appeared with the key; and such person testified that all of the marijuana found in the apartment belonged to him and not to defendant.