Volume 291 — North Carolina Reports

1. Contempt of Court 8; Appeal and Error 6 — failure to comply with discovery order — contempt of court — immediate appeal When a civil litigant is adjudged to be in contempt for failing to comply with an earlier discovery order, the contempt proceeding is both civil and criminal in nature, and the order is immediately appealable for the purpose of testing the validity both of the original order and the contempt order itself, notwithstanding the contemnor was not immediately punished, where the contemnor can purge himself of the adjudication of contempt only by, in effect, complying with the discovery order of which he essentially complains. G.S. <cross_reference>5-1</cross_reference> (4); G.S. 5-2; G.S. 5-8; G.S. <cross_reference>1-277</cross_reference>; G.S. <cross_reference>7A-27</cross_reference> (d) (1). 2. Rules of Civil Procedure 34 — production of documents — showing required Rule 34 requires that as a prerequisite of production, documents must be (1) "designated," (2) "within the scope" of Rule 26 (b), and (3) in the "possession, custody, or control" of a party from whom they are sought. 3. Rules of Civil Procedure 33, 34 — interrogatories asking party to "identify" documents — production of such documents Since a proper function of interrogatories is to obtain the information necessary to make a showing that the prerequisites for the production of the documents have been established, plaintiff's interrogatories properly asked defendant to "identify" certain documents; however, it was error for the trial court to order production of any documents before the documents had been (1) further "identified" by defendant, or (2) further "designated" by plaintiff. 4. Rules of Civil Procedure 34 — production of documents — showing of good cause An order for the production of documents under former Rule 34 was erroneous where it was not based upon either a showing or finding of good cause. 5. Rules of Civil Procedure 37 — failure to make discovery — contempt of court — erroneous order An order holding defendant in contempt for (1) failure to comply with an order to produce documents and (2) failure to answer a specified interrogatory was erroneous where the order for the production of documents was unlawful and the record shows a good faith effort on the part of defendant to answer the interrogatory. 6. Rules of Civil Procedure 26 — discovery — information in claim files relating to shocks or burns Information in all of defendant's claims files relating to shocks or burns wherever and whenever they may have occurred would be<page_number>Page 20</page_number> neither relevant to plaintiff's claim against defendant nor likely to lead to relevant information and would fall outside the scope of discovery provided by Rule 26 (b) (1). 7. Rules of Civil Procedure 26 — response to interrogatories — identification of documents In responding to interrogatories requesting defendant to identify certain documents, defendant should have identified those documents which met the relevancy requirements of Rule 26 (b) (1) even if the documents themselves may not be discoverable because they are privileged or fall within the trial preparation immunity of Rule 26 (b) (3) since the question of the discoverability of the documents cannot be properly determined until they have been appropriately identified and designated. 8. Rules of Civil Procedure 26 — discovery — test of relevancy The test of relevancy under Rule 26 is not the stringent test required at trial, the rule being designed to allow discovery of any information "reasonably calculated to lead to the discovery of admissible evidence." 9. Rules of Civil Procedure 26 — discovery — relevant material — protective order While the relevancy requirements of Rule 26 are mandatory, a discretionary protective order may be granted under Rule 26 (c) even as to relevant material. 10. Rules of Civil Procedure 34 — production of documents — new rule — good cause need not be shown — protections to responding party The new procedure for obtaining production and inspection of documents has eliminated the requirement of a court order based upon motion and good cause, since new Rule 34 simply requires serving the request for production upon the other party; however, the party from whom discovery is sought is afforded protections by the designation, scope, and possession requirements of Rule 34, the exemption of privileged matter in the scope provision of Rule 26, the allowance of protective orders, and the extended "work product," or trial preparation, immunity of Rule 26 (b) (3). 11. Rules of Civil Procedure 34 — production of documents — "designation" requirement The "designation" requirement of Rule 34 does not necessarily mean that documents must be separately described, since designation by categories may be sufficient depending upon the categories utilized. 12. Rules of Civil Procedure 37 — failure to make discovery — sanctions — order compelling discovery If a party files answers or objections to interrogatories, or serves a written response to a request for inspection, no sanctions under Rule 37(d) may be obtained and the proper procedure for the party seeking discovery is to obtain an order compelling discovery under Rule 37(a).<page_number>Page 21</page_number> 13. Rules of Civil Procedure 26 — discovery — attorney-client privilege The protection of the attorney-client privilege under Rule 26 is absolute and is identical in scope to the traditional privilege. 14. Rules of Civil Procedure 26 — work product or trial preparation immunity The "work product," or trial preparation, exception of new Rule 26 (b) (3) goes considerably beyond the protection accorded under the old rule and, although not a privilege, the exception is a "qualified immunity" and extends to all materials prepared "in anticipation of litigation or for trial by or for another party or by or for that other party's consultant, surety, indemnitor, insurer, or agent." 15. Rules of Civil Procedure 26 — trial preparation immunity — materials prepared in anticipation of litigation The trial preparation immunity of Rule 26 (b) (3) applies not only to materials prepared after the other party has secured an attorney, but to those prepared under circumstances in which a reasonable person might anticipate a possibility of litigation; however, the protection does not extend to materials prepared in the ordinary course of business or to facts known by any party. 16. Rules of Civil Procedure 26 — trial preparation immunity — materials prepared in other litigation The trial preparation immunity of Rule 26 (b) protects any materials prepared in anticipation for any litigation by the party from whom discovery is sought, including materials prepared for litigation between different parties which was terminated prior to the pending case. 17. Rules of Civil Procedure 26 — materials subject to trial preparation immunity — discovery — showing of substantial need and undue hardship A plaintiff may be allowed discovery of materials subject to the trial preparation immunity upon a showing of "substantial need" and "undue hardship" involved in otherwise obtaining the substantial equivalent thereof, and in the interests of justice the trial judge may require an in camera inspection and may allow discovery of only parts of some documents; however, no discovery whatsoever may be obtained of the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" concerning the case at bar or of the work product of attorneys in the case at bar.

1. Criminal Law 147 — no motion to quash indictment — issue properly raised on appeal Though defendant made no motion to quash the bill of indictment, he could, pursuant to Rule 10 (a) of the Rules of Appellate Procedure, present for review on appeal, by properly raising the issue in his brief, the questions of whether the court had jurisdiction of the subject matter, and whether the criminal charge was sufficient in law. 2. Burglary and Unlawful Breakings 3 — first degree burglary — indictment — sufficiency of description of premises In a prosecution for first degree burglary, the indictment which alleged that defendant "in the county aforesaid [Cabarrus], the dwelling house of one Marvin O. VanPelt there situate, and then and there actually occupied by one Marvin O. VanPelt feloniously and burglariously did break and enter" with the requisite intent sufficiently described the premises which were allegedly entered and alleged all the essential elements of the offense with sufficient certainty to (1) identify the offense; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the accused to prepare for trial; and (4) support judgment upon conviction or plea. 3. Burglary and Unlawful Breakings 1 — burglary defined Burglary is a common law offense which consists of the felonious breaking and entering of the dwelling house or sleeping apartment of another in the nighttime with the intent to commit a felony therein, whether such intent be executed or not. 4. Burglary and Unlawful Breakings 3 — burglary indictment — ownership of house must be alleged There are only two reasons for requiring ownership of the house to be stated in the indictment for burglary: (1) for the purpose of showing on the record that the house alleged to have been broken into was not the dwelling house of the accused, inasmuch as one cannot commit the offense of burglary by breaking into one's own house, and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense. 5. Burglary and Unlawful Breakings 3 — first degree burglary — occupation or possession of house tantamount to possession In burglary cases occupation or possession of a dwelling or sleeping apartment is tantamount to ownership, and there is no requirement that actual ownership of the occupied premises be alleged and proved. 6. Criminal Law 131 — motion for new trial for newly discovered evidence — denial proper The trial court in a first degree burglary case did not err in denying defendant's motion for a new trial made on the ground that<page_number>Page 138</page_number> while the jury deliberated defendant was informed by two police officers that prior to trial they had located a man who had lived with defendant and the burglary victim and who would testify that defendant was living in the house allegedly broken into on the day of the crime, since the proposed testimony of the witness would only have been cumulative and corroborative to that of defendant, defendant had ample opportunity to examine the officers on the stand as to their knowledge concerning the witness's whereabouts, and defendant, if he considered the witness important and material, could have moved for a continuance to enable him to locate the witness. 7. Criminal Law 131 — new trial for newly discovered evidence — prerequisites In order for a new trial to be granted on the ground of newly discovered evidence, it must appear by affidavit that (1) the witness or witnesses will give newly discovered evidence; (2) the newly discovered evidence is probably true; (3) the evidence is material, competent and relevant; (4) due diligence was used and proper means were employed to procure the testimony at trial; (5) the newly discovered evidence is not merely cumulative or corroborative; (6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and (7) the evidence is of such a nature that a different result will probably be reached at a new trial.

1. Burglary and Unlawful Breakings 5; Larceny 5 — larceny by breaking and entering — possession of recently stolen property — inferences When it is established that a larceny was accomplished by a breaking and entering, discovery of the stolen articles in defendant's possession soon after the theft raises the inference that defendant was guilty of both the breaking and entering and the larceny. 2. Larceny 5 — inference from possession of stolen property — prerequisites The inference that the person in possession of stolen goods is the thief arises upon proof beyond a reasonable doubt that (1) the property<page_number>Page 172</page_number> described in the indictment was stolen; (2) the property shown to have been possessed by the accused was the stolen property; and (3) the possession was recently after the larceny. 3. Larceny 8 — possession of item not listed in indictment — doctrine of possession of recently stolen property — instructions Where the only stolen articles found in defendant's possession were cuff links which were not lised [listed] in the indictment, the trial court should have instructed that in order for the doctrine of possession of recently stolen property to apply the jury must find beyond a reasonable doubt that the cuff links were stolen at the same time and place as the property listed in the indictment.

1. Criminal Law 23 — plea bargaining — no agreement reached — evidence of bargaining properly excluded from record In the absence of an agreement between defendants and the prosecutor, defendants were not prejudiced by the trial court's denial of their motion that prior plea bargaining negotiations be made a part of the record. 2. Robbery 5 — jury instructions — incomplete instruction not prejudicial In an armed robbery prosecution where the trial court fully instructed the jury as to the elements of the crime charged, failure of the court in instructing on aiders and abettors to state that the jury must find that the life of the victim was endangered or threatened by use of a firearm did not contradict other portions of the charge, amount to an erroneous definition of the offense, or prejudice defendants. 3. Criminal Law 92 — defendants charged with same armed robbery — joinder proper Joinder of cases against defendants was proper where each defendant was accountable for the same offense of armed robbery, and defendants were not denied a fair determination of their guilt or innocence because of the joinder. 4. Criminal Law 92 — joinder on oral motion — no error The district attorney's motion for joinder of defendants' cases, made at the beginning of trial, came within the purview of G.S. <cross_reference>15A-951</cross_reference> (a) and was not required to be in writing- defendants' contention that G.S. <cross_reference>15A-926</cross_reference> (b) (2) required the motion to be in writing is without merit, since that statute applies only in those instances in which joinder of defendants is requested prior to trial. 5. Criminal Law 114 — defendants referred to as principal and aider and abettor — no expression of opinion The trial court in an armed robbery prosecution did not express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> by referring to one defendant as the principal and the other defendant as the aider and abettor for the purpose of differentiating between them. 6. Criminal Law 9; Robbery 6 — aider and abettor — sentence same as that given principal — no error Contention of one defendant in an armed robbery prosecution that the trial court should have sentenced him as the aider and abettor to a lesser sentence than that imposed upon the principal is without merit, since principals and aiders and abettors are equally guilty.<page_number>Page 276</page_number>

1. Constitutional Law 30, 33 — assault — use of mask by assailant — requiring defendant to don mask at trial — no error In a prosecution for armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury where the victim<page_number>Page 285</page_number> testified that her assailant wore an orange stocking over his head and face, the trial court's requirement that defendant place the stocking mask which had been introduced into evidence over his head and face and stand before the jury did not violate defendant's constitutional right against self-incrimination, nor did it violate the due process clause of the Fourteenth Amendment to the Constitution of the U.S. or the like provision of Article I, 19 of the N.C. Constitution. 2. Criminal Law 34, 96 — evidence of defendant's guilt of other offense — evidence withdrawn from jury's consideration — defendant not prejudiced In a prosecution for armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury, defendant was not prejudiced by the victim's statements on cross-examination that she had read nothing in the newspapers about this case but she had read something concerning a "shooting at Hardee's," a reference to a separate robbery for which defendant had already been tried and convicted, since the witness did not state what she had read about the shooting at Hardee's, and the trial court immediately instructed the jury not to consider the statement of the witness.

1. Electricity 3; Utilities Commission 6 — fossil fuel adjustment clause — validity The Utilities Commission acted within its statutory authority in permitting an electric utility to utilize a fossil fuel adjustment clause as an adjunct, or rider, to its regular rate schedule.<page_number>Page 362</page_number> 2. Electricity 3; Utilities Commission 6 — interim coal adjustment clause — ex parte order The Utilities Commission had statutory authority to issue an ex parte order permitting a coal clause to go into effect on an interim basis without prior notice and hearing. 3. Appeal and Error 16; Utilities Commission 9 — interim order found nonappealable — later modification of order Where it was ultimately determined by an appellate court that an interim order entered by the Utilities Commission was not appealable, the Commission had authority later to modify such order. 4. Utilities Commission 6 — modification of interim order — validity immaterial The validity of the Utilities Commission's modification of an interim coal clause order to require collections under the coal clause to be made subject to the utility's undertaking for refund was immaterial where no refunds were ever found to be due. 5. Electricity 3; Utilities Commission 6 — application for coal adjustment clause — approval of fossil fuel clause The Utilities Commission had authority finally to authorize and approve a fossil fuel adjustment clause when the utility had applied only for a coal adjustment clause since the Commission is not limited by the utility's application in the entry of its final order based on evidence adduced at the hearings.

1. Constitutional Law 32 — refusal to remove counsel without hearing — no error The trial court in a first degree burglary case did not err in refusing, without a hearing, to remove defendant's counsel and appoint two "black lawyers" in their stead, since no irreconcilable conflict or breakdown in communication between defendant and his counsel was demonstrated; defendant merely stated that he felt that his counsel were not going to represent him properly without pointing<page_number>Page 367</page_number> to any act or omission indicating incompetence or lack of diligence on the part of his counsel and the record showed no disagreement between defendant and his counsel as to trial tactics. 2. Criminal Law 6 — pretrial photographic identification — admissibility of in-court identification Evidence in a first degree burglary case was sufficient to support the trial court's finding that there was nothing in a pretrial photographic examination of pictures, including that of defendant, by the prosecuting witness which was likely to give rise to any misidentification where such evidence tended to show that the witness was shown eight photographs two days after the burglary, two of which were of defendant the witness immediately picked out the pictures of defendant as depicting the man who entered her house; and the officer who showed the photographs to the victim made no suggestions to the witness as to which pictures she should pick out. 3. Constitutional Law 32; Criminal Law 66 — lineup — right to counsel — admissibility of in-court identification An accused is entitled to counsel during an in-custody lineup and when counsel is not provided, (1) testimony of witnesses that they identified accused in the lineup is inadmissible and (2) an in-court identification of an accused by a lineup witness is inadmissible unless it is first shown by clear and convincing evidence on voir dire that the in-court identification is not tainted by the illegal lineup. 4. Criminal Law 66 — lineup — no finding as to propriety — in-court identification properly allowed Though the trial court in a first degree burglary case should have made findings as to whether a lineup involving defendant was unnecessarily suggestive and conducive to irreparable misidentification, it was not error for the court to allow an in-court identification of defendant by the prosecuting witness where there was ample clear and convincing evidence that such identification was based on the witness's observation of defendant at the crime scene. 5. Constitutional Law 32 — defendant in custody on separate charge — presence in lineup — no right to counsel Where defendant at the time of a challenged lineup was in custody on a charge of larceny of an automobile which had no connection with the burglary charge under consideration, the lineup was made up of other inmates of the jail and one employee of the law enforcement center, and an officer asked the group if any of them wanted a lawyer but there was no reply, defendant's right to counsel had not attached. 6. Jury 7 — juror with opinion on guilt — challenge for cause — denial proper The trial court did not err in denying defendant's challenge for cause of a juror who stated that he had formed an opinion as to defendant's guilt or innocence from items he had read but that he could render a fair verdict based solely on the evidence presented and the charge of the court.<page_number>Page 368</page_number> 7. Constitutional Law 31; Criminal Law 98 — disruptive behavior of defendant — removal from courtroom — no denial of right to confrontation Defendant was not deprived of his rights to a fair trial and to confront the witnesses against him by his removal from the courtroom during the course of the trial, since defendant's removal came after numerous abusive and profane outbursts by him, warnings by the judge that continued interruptions would require his removal, exercise by the judge of his contempt powers in an effort to control defendant, and instructions by the judge that defendant could return to the courtroom as soon as he decided to conduct himself in a proper manner. 8. Burglary and Unlawful Breakings 5 — first degree burglary — breaking — sufficiency of evidence Evidence in a first degree burglary case was sufficient to show a breaking where the prosecuting witness testified that the door in which she saw the burglar standing had not been locked but had been closed "all the way," the witness having closed the door herself. 9. Burglary and Unlawful Breakings 5 — first degree burglary — entry without permission — sufficiency of evidence Evidence in a first degree burglary case was sufficient to support a reasonable inference by the jury that a man seen by the prosecuting witness entering her house did so without the permission of the occupants where such evidence tended to show that the prosecuting witness was surprised to see someone entering her house at 11:45 p.m., the prosecuting witness began to retreat into her home and scream for her husband when she was confronted with the intruder, and the police were summoned. 10. Burglary and Unlawful Breakings 5 — first degree burglary — intent to commit larceny — sufficiency of evidence Evidence in a first degree burglary case was sufficient to show defendant's intent to commit larceny at the time he broke and entered a home where such evidence tended to show that defendant had partially entered the enclosed porch of the home, he had a ladies' stocking covering his right hand and arm, and, when confronted by an occupant of the house, he motioned her to keep quiet but fled when she began to scream. 11. Constitutional Law 36; Burglary and Unlawful Breakings 8 — first degree burglary — life imprisonment — no cruel and unusual punishment Imposition of a life sentence upon a conviction for first degree burglary does not constitute cruel and unusual punishment.

1. Searches and Seizures 3 — affidavit for search warrant — meaning of probable cause Within the meaning of the Fourth Amendment and G.S. <cross_reference>15-25</cross_reference> (a), now G.S. <cross_reference>15A-243</cross_reference> to 245, probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. 2. Searches and Seizures 3 — affidavit for search warrant — sufficiency An affidavit for a search warrant contained a sufficient recital of facts and underlying circumstances to constitute probable cause for issuance of a warrant to search the home in which defendant lived where the affidavit detailed the presence of tracks made by tennis shoes with a diamond tread leading from a murder victim's residence to a point near defendant's premises, specified reasons for searching those premises for tennis shoes with a diamond tread, for the possible murder weapon, and for loot stolen from the victim's home, and gave reasons why such evidence might be found in the home occupied by defendant. 3. Searches and Seizures 1 — seizure of items in plain view Where a lawfully issued search warrant authorized officers to search premises occupied by defendant's parents and cousin, and while<page_number>Page 400</page_number> searching the cousin's room the officers saw, through an open doorway, a pair of tennis shoes similar to those described in the warrant and later determined to belong to defendant, the officers lawfully seized the tennis shoes since an item is lawfully seized if the officer is at a place where he has a legal right to be and the item seized is in plain view. 4. Searches and Seizures 4 — warrant to search for tennis shoes — seizure of three pairs Where a warrant authorized officers to search a home for tennis shoes with a diamond tread, officers were not required to terminate the search once one pair of tennis shoes was seized, and when the officers discovered three pairs of shoes fitting the description in the warrant, it was lawful to seize all three pairs. G.S. <cross_reference>15-26</cross_reference>. 5. Searches and Seizures 2 — validity of consent to search There is no merit in defendant's contention that his consent to a second search of his residence was invalid because officers advised him they had seized the wrong clothing initially and his "consent" for an additional search was only acquiescence and thus not free and voluntary where the record shows that defendant told the officers they had seized the wrong clothes — not the other way around, and defendant himself suggested that the officers exchange the clothing then in their possession for the clothing he said he was actually wearing on the day of the crime. 6. Criminal Law 76 — admissibility of confession — necessity for voir dire When the admissibility of an in-custody confession is challenged, the trial judge must conduct a voir dire to determine whether the requirements of the Miranda decision have been met and whether the confession was in fact voluntarily made. 7. Criminal Law 76 — admissibility of confession — voir dire — necessity for findings of fact If there is a material conflict in the evidence on voir dire to determine the admissibility of a confession, the trial judge must make findings of fact to resolve the conflict; if there is no conflict in the evidence on voir dire, or if there is a conflict in evidence which is immaterial and has no effect on the admissibility of the confession, it is not error to admit the confession without findings, although it is the better practice to make findings. 8. Criminal Law 75 — officer's expression of opinion — no resumption of interrogation An officer's expression of opinion that defendant knew something about the crime and was not telling the truth did not constitute a resumption of interrogation within the meaning of the Miranda decision. 9. Criminal Law 75 — statements after assertion of right to remain silent — no continued interrogation There was no continued interrogation of defendant in violation of the Miranda rules after defendant stated he would not answer further<page_number>Page 401</page_number> questions and wanted to consult a lawyer, and statements made by defendant after he asserted his right to remain silent were admissible in evidence, where the evidence on voir dire, including testimony by defendant, showed that his right to cut off questioning was promptly honored when asserted, and that defendant simply reflected upon the incredibility of the original story he told officers in light of the evidence against him, decided to change his statement to make it more plausible, and invited the officers to listen while he related his revised version. 10. Criminal Law 34 — position of victim's body and derangement of clothing — admissibility Evidence in a murder case that deceased was found with her dress above her knees and that her undergarments were torn did not show the commission of another criminal offense (rape) where other evidence showed deceased had not been sexually assaulted; furthermore, such evidence was admissible as proof of circumstances so connected in point of time and place with the murder itself that proof of one necessarily involved proof of the other. 11. Criminal Law 99 — questions by trial judge — no expression of opinion The trial court in a homicide case did not express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> in asking questions to clarify and promote a proper understanding of the testimony of the witnesses. 12. Criminal Law 166 — abandonment of assignments of error Assignments of error not discussed in the brief are deemed abandoned under Rule 28 (a) of the Rules of Appellate Procedure. 13. Constitutional Law 36; Homicide 31 — substitution of life imprisonment for death penalty Sentence of life imprisonment is substituted for the death penalty imposed for first degree murder.

1. Criminal Law 76 — understanding of constitutional rights — voluntariness of statement Evidence was sufficient to support findings by the trial court and such findings were sufficient to support the court's conclusion that defendant was advised of his constitutional rights, no threats or promises or coercion of any sort were used, and statements made by defendant were made freely, voluntarily and understandingly. 2. Criminal Law 75 — confession — voluntariness — no jury issue The law in N.C. does not require that the issue of voluntariness of a confession be submitted to the jury. 3. Homicide 20 — photographs — bloody shirt — admissibility for limited purpose The trial court in a homicide prosecution did not err in the admission under limiting instructions of four photographs of deceased's body, nor did it err in the admission of a bloody shirt worn by deceased at the time of the fatal shooting. 4. Criminal Law 79 — statements of co-conspirator — admissibility Testimony of a State's witness concerning statements by a homicide victim's wife was admissible as that of a co-conspirator where the evidence tended to show that the witness was present when defendant was employed to commit the murder in question, and during the planning of the murder; and the witness gave defendant $100 from the victim's wife in partial payment for the murder.

1. Homicide 21 — first degree murder of motel employees — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution of two defendants for the first degree murders of two motel employees where it tended to show that the bodies of a motel security guard and a manager-trainee were found on the floor of the motel office at 2:45 a.m. each had been shot several times, the security guard was dead and the manager-trainee died shortly thereafter; $200 from the cash register and the security guard's .32 caliber pistol were missing; a .25 caliber bullet was recovered from the manager-trainee's body and .32 caliber bullets were recovered from both bodies; the .32 caliber bullet recovered from the manager-trainee's body was fired from the security guard's pistol; sometime after 12:30 a.m. on the night of the crimes defendants and a female companion went to the motel; the female companion remained in the car while defendants entered the motel; while defendants were gone, their companion heard two or more sounds like a "blowout or a car backfiring"; defendants went to New York City the next night; a witness saw the security guard's pistol in the possession of one defendant the next night and later saw the pistol in defendants car on the way to New York; and a New Jersey State Trooper later found the security guard's missing pistol in a car occupied by defendants.<page_number>Page 506</page_number> 2. Criminal Law 104 — nonsuit — contradictions in State's evidence Contradictions and discrepancies in the State's evidence are matters for the jury and do not warrant nonsuit. 3. Criminal Law 87 — refreshing recollection of witness Under the doctrine of "present recollection refreshed," the witness has a sufficiently clear recollection so that if allowed merely to refresh or stimulate it, he will be able to testify accurately to the controverted facts; thus, the witness finally testifies from his own recollection, and he uses writings, memoranda and other aids for the sole purpose of "jogging" his memory. 4. Criminal Law 87 — refreshing recollection of witness — preparation of aid It is not required that an aid for refreshing the recollection of a witness be prepared by the witness himself or be prepared contemporaneously, or nearly so, with the event. 5. Criminal Law 87 — refreshing recollection of witness — use of transcript prior to trial Use of a transcript to refresh the memory of a witness prior to trial was proper. 6. Criminal Law 87 — present recollection refreshed — admissibility — credibility Where the testimony of a witness purports to be from his refreshed memory but is clearly a recitation of the refreshing memorandum, such testimony is not admissible as present recollection refreshed and should be excluded by the trial judge; however, where there is doubt as to whether the witness purporting to have a refreshed recollection is indeed testifying from his own recollection, the use of such testimony is dependent upon the credibility of the witness and is a question for the jury. 7. Criminal Law 87 — refreshing memory — transcript of prior testimony — source of testimony Where a witness who "refreshed" her memory by looking at a transcript of her testimony at a previous trial stated at one point that the origin of her testimony was "of my own memory" and at another point that "some is to my memory and some isn't," the trial court did not abuse its discretion in refusing to strike the testimony of the witness and in submitting it to the jury for consideration. 8. Criminal Law 92 — joint trial for murder Consolidation for trial of charges against defendants for murder of two motel employees during a robbery was not rendered improper because evidence of one defendant's visit to the motel three days prior to the crime would not have been admissible against the second defendant in a separate trial or because the second defendant offered no evidence and yet was denied the last argument to the jury.<page_number>Page 507</page_number> 9. Criminal Law 92 — consolidation of charges for trial Consolidation for trial is generally proper where the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment is competent and admissible on the other. 10. Criminal Law 92 — joint trial — discretion of court Absent a showing that a joint trial has deprived an accused of a fair trial, the exercise of the court's discretion will not be disturbed on appeal. 11. Criminal Law 87 — leading questions The trial court has discretionary authority to permit leading questions in proper instances, and unless prejudice is shown the discretionary action of the trial court will not be disturbed. 12. Criminal Law 89 — exclusion of impeachment question The trial court did not err in sustaining the State's objection to defendants' inquiry on cross-examination of a State's witness as to the date the witness had been convicted of an unrelated larceny where the witness's memory for dates was adequately impeached by his later testimony and the excluded question was merely cumulative. 13. Criminal Law 88, 128 — cross-examination of defendant — good faith question The State's question to defendant on cross-examination as to whether a codefendant told defendant, "You didn't have to shoot him," and whether defendant replied, "If I hadn't shot him, he would have shot one of us. He had a gun," was not posed in bad faith, and the court did not err in failing to declare a mistrial because of the question, where the record shows that, based on an extra-judicial statement of a third person, the State had good reason to believe that defendants made the statements embraced in the question. 14. Criminal Law 162 — ruling upon objection When an objection is made the judge should rule upon it prior to the close of the proponent's case. 15. Criminal Law 99 — failure to rule upon objections — expression of opinion Sustained and systematic failure to rule upon objections may indicate an opinion by the trial judge in violation of G.S. <cross_reference>1-180</cross_reference>. 16. Criminal Law 99, 162 — failure to rule upon objection — absence of prejudice Defendants were not prejudiced by the failure of the trial court on one occasion to rule on an objection during the State's cross-examination of one defendant where the question objected to was proper and nothing suggests an opinion by the court in violation of G.S. <cross_reference>1-180</cross_reference>.<page_number>Page 508</page_number> 17. Criminal Law 102 — jury argument not impeachment of witness and defendants In this prosecution for two murders committed during a robbery, the district attorney's argument that "The State had to put [a named witness] up. He's a friend of the defendants. He's the kind of person they run around with," did not improperly attempt to impeach both the character of a State's witness and the character of defendants themselves where the record shows that it was the defense on cross-examination who elicited evidence of bad character tending to impeach the witness and that the statement of the district attorney was essentially true. 18. Bill of Discovery 6 — criminal cases — names of State's witnesses No right of discovery in criminal cases existed at common law, and neither former G.S. <cross_reference>15-155.4</cross_reference> nor G.S. <cross_reference>15A-903</cross_reference> requires the State to furnish the accused with a list of witnesses who are to testify against him. 19. Bill of Discovery 6; Criminal Law 87 — witnesses not on list furnished defendants The trial court did not err in permitting two witnesses to give corroborating testimony for the State when their names were not on the list of twenty-one witnesses furnished by the district attorney to defense counsel pursuant to pretrial discovery since the State substantially complied with the court's order to furnish the names and addresses of witnesses, bad faith by the omission of the names was not shown, and defendant suffered no prejudice as a result of the admission of the challenged testimony. 20. Criminal Law 40 — use of previously recorded testimony The use of previously recorded testimony is authorized if it be shown that: (1) the witness is unavailable; (2) the proceedings at which the testimony was given was a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and represented by counsel. 21. Criminal Law 40 — use of previously recorded testimony — unavailability of witness A witness was unavailable within the meaning of that requirement or the admission of previously recorded testimony where the witness lived in Florida, was 70 years old, had just had surgery for a breast tumor and an injured foot, and his doctor certified that travel would be detrimental to his health. 22. Criminal Law 57; Homicide 20 — admissibility of pistol — chain of custody not shown The evidence in a homicide case was sufficient to identify a .32 caliber pistol and to establish its competency, and the pistol was properly admitted in evidence without the State having shown a chain of custody, where a New Jersey State Trooper testified he seized a<page_number>Page 509</page_number> pistol when he arrested defendants and recorded the serial and model numbers of the gun in a written report, these recorded numbers corresponded to the serial and model numbers on a gun sold to the victim and on the gun admitted in evidence, and adequate testimony established that ballistics tests performed by State's witnesses were run on the pistol admitted in evidence. 23. Constitutional Law 29; Jury 7 — use of peremptory challenges — alleged exclusion of blacks from jury There is no merit in defendants' contention that they were denied a representative jury by the State's impermissible use of its peremptory challenges to exclude blacks from the jury since the peremptory challenge permits rejection for a real or imagined partiality, and an examination of the prosecutor's reasons for the exercise of his challenges in any given case is not permitted. 24. Constitutional Law 29; Jury 7 — exclusion of jurors for death penalty views — representative jury Defendants in a first degree murder case were not denied a representative jury by the exclusion of certain jurors who stated on voir dire that they could not convict defendants because the conviction would result in a judgment of death, although the death penalty is now unconstitutional. 25. Jury 7 — excusal of jurors for death penalty views — no interrogation by defense The trial court properly excused for cause each venireman who made it clear that he could not, under any circumstances, return a verdict of guilty knowing that the mandatory death penalty would be imposed without first giving defendants a chance to "rehabilitate" the venireman by further interrogation. 26. Jury 5 — additional jurors summoned by officer Defendants have no cause for complaint that two jurors were chosen from additional talismen summoned by an officer when the regularly summoned venire was exhausted where defendants examined and passed the jurors and failed to exhaust their peremptory challenges 27. Criminal Law 127 — motion in arrest of judgment Defendants' motion in arrest of judgment was properly denied because the indictments are proper and no fatal defect appears on the face of the record. 28. Criminal Law 163 — question concerning charge not presented No question concerning the charge to the jury was presented where no portion of the charge was specified as erroneous and no reasons, arguments or citations of authority were contained in the brief is required by Rules 10 and 28, Rules of Appellate Procedure. 29. Constitutional Law 36; Homicide 31 — substitution of life imprisonment for death penalty Sentences of life imprisonment are substituted for death penalties imposed by the trial court in these first degree murder cases.<page_number>Page 510</page_number>

1. Criminal Law 127 — arrest of judgment — when proper A motion in arrest of judgment is proper when it is apparent that no judgment against the defendant could be lawfully entered because of some fatal error appearing in (1) the organization of the court, (2) the charge made against the defendant (the information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment. 2. Rape 3, 7 — indictment sufficient to charge second degree rape — evidence showing first degree — conviction for second degree rape proper An indictment which charged that the defendant "did, unlawfully, wilfully and feloniously ravish and carnally know, by force and against her will," the prosecuting witness, a female, by use of a "dangerous" weapon but which did not charge the use of a "deadly" weapon or allege that defendant was more than 16 years of age, though insufficient to charge first degree rape, did charge all the elements of second degree rape; therefore, where the jury found<page_number>Page 587</page_number> defendant guilty of first degree rape, it necessarily determined that he was guilty of each element of rape in the second degree, and the record proper would therefore support the entry of a judgment imposing a proper sentence for second degree rape. 3. Indictment and Warrant 9 — sufficiency of indictment to charge crime It is well settled that an indictment will not support a conviction for a crime all the elements of which crime are not accurately and clearly alleged in the indictment. 4. Rape 1 — elements of first degree rape The elements of rape in the first degree, the victim being 12 years of age or older, are: (1) carnal knowledge of a female persons (2) by force (or by fear, fright or coercion), (3) against the will of the victim, (4) the defendant being more than 16 years of age, and (5) the victim's resistance having been overcome or her submission having been procured by the use of a deadly weapon, or by the infliction of serious bodily injury upon her. G.S. <cross_reference>14-21</cross_reference>. 5. Rape 3 — indictment sufficient to charge second degree rape — evidence showing first degree rape — conviction for first degree rape improper Where an indictment was sufficient to charge rape in the second degree but not sufficient to charge rape in the first degree, a conviction for first degree rape could not stand, even though the evidence was sufficient to support a conviction for first degree rape.

1. Negligence 12; Rules of Civil Procedure 7 — necessity for pleading last clear chance When G.S. <cross_reference>1A-1</cross_reference>, Rule 7 (a) as amended is read in conjunction with G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (d), it is evident that some pleading alleging last clear chance is necessary if a plaintiff seeks to prove last clear chance at trial because G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (d) only deems affirmative defenses appearing in the answer as denied or avoided if a responsive pleading is neither required nor permitted, and G.S. <cross_reference>1A-1</cross_reference>, Rule 7 (a) permits a party to serve a reply alleging last clear chance. 2. Negligence 12 — pleading last clear chance — reply — complaint While the recommended pleading practice is for the plaintiff to file a reply alleging last clear chance, a plaintiff who files no such reply may receive the benefit of the doctrine of last clear chance if the facts alleged in the complaint are sufficient to give rise to the doctrine. 3. Rules of Civil Procedure 8 — pleading defenses G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (e) (1), which states that no technical forms of pleading are required, and G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (f), which requires<page_number>Page 647</page_number> pleadings to be construed so as to do substantial justice, apply with equal force to statements of claims and statements of defenses. 4. Automobiles 43; Negligence 23 — last clear chance — sufficiency of pleading In an action to recover for injuries received when defendant drove a car forward while plaintiff was leaning against or sitting on the trunk of the car, plaintiff's complaint was sufficient to raise the issue of last clear chance where it alleged that plaintiff was in a position that he could not properly protect himself; that defendant either saw or in the exercise of reasonable care should have seen that it was necessary for him to take action to avoid injuring the plaintiff; that defendant had ample opportunity to act to avoid injury to plaintiff; that defendant was negligent in failing to act, specifically in failing to warn plaintiff before moving the car forward; and that defendant's negligence was the proximate cause of the accident; and where the allegation that plaintiff's own negligence created his perilous position was supplied by defendant's own answer alleging contributory negligence. 5. Negligence 12 — last clear chance — burden of proof The burden of proof on the issue of last clear chance lies with the plaintiff. 6. Negligence 12 — last clear chance — prerequisites For the doctrine of last clear chance to apply it must appear that after the plaintiff, by his own negligence, had gotten into a position of helpless peril or into a position of peril to which he was inadvertent, the defendant discovered or should have discovered the plaintiff's helpless peril or inadvertence, and thereafter the defendant, having the means and time to avoid the injury, negligently failed to do so. 7. Automobiles 86; Negligence 39 — last clear chance — sufficiency of evidence In this action to recover for injuries received by plaintiff when defendant drove a car forward while plaintiff was leaning against or sitting on the trunk of the car, causing defendant to fall and strike his head on the trailer hitch of the car or on the pavement, the evidence was sufficient for submission of an issue of last clear chance to the jury where there was evidence tending to show that plaintiff was unaware that defendant had entered the car or that the car had been started; defendant saw plaintiff sitting on the trunk of the car before he started the car and heard a passenger's warning to be careful because plaintiff was on the trunk; defendant waited 15 to 20 seconds after starting the car before driving forward as a joke; and defendant thus had ample time in which to warn plaintiff so as to avoid the accident. 8. Automobiles 86; Negligence 39; Rules of Civil Procedure 49 — failure to request last clear chance issue — no waiver Plaintiff did not waive submission of an issue of last clear chance to the jury by his failure to make a formal demand for submission<page_number>Page 648</page_number> of the issue before the jury retired as required by G.S. <cross_reference>1A-1</cross_reference>, Rule 49 (c), where the court had denied plaintiff's request for leave to amend his complaint explicitly to allege last clear chance and plaintiff's request for instructions on last clear chance, since (1) it is obvious that a demand for submission of the issue would have been denied, and plaintiff was not required to perform a vain act in order to preserve his right to have the issue tried by a jury, and (2) Rule 49 (c) was designed to prevent otherwise proper trials from being jeopardized through the inadvertent omission of an issue, and omission of the issue of last clear chance does not appear to have been inadvertent.

1. Rules of Civil Procedure 50 — motion for directed verdict — ruling when close question presented Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury since (1) if the jury returns a verdict in favor of the moving party, no decision on the motion is necessary and an appeal may be avoided; and (2) if the<page_number>Page 667</page_number> jury finds for the nonmoving party, the judge may reconsider the motion and enter a judgment notwithstanding the verdict. On appeal, if the motion proves to have been improperly granted, the appellate court then has the option of ordering entry of the judgment on the verdict, thereby eliminating the expense and delay involved in a retrial. 2. Rules of Civil Procedure 50 — motion for directed verdict A motion by a defendant for a directed verdict under G.S. <cross_reference>1A-1</cross_reference>, Rule 50 (a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. 3. Negligence 53 — swimming facility operator — duty to patrons While the operator of a swimming facility used for public amusement is not an insurer of the safety of his patrons, he must exercise ordinary and reasonable care for their safety lest he be held liable for injury to a patron resulting from breach of his duty. 4. Negligence 53 — recreational facility proprietor — vigilance required The vigilance required of the proprietor of a recreational facility in discovering a peril to an invitee and the precautions which he must take to guard against injury therefrom will vary with the nature of the facility, the portion of the facility involved, and the degree of injury reasonably foreseeable. 5. Negligence 53 — swimming pool operator — duty to provide supervision At least as to paying invitees, a swimming pool operator must exercise ordinary care to provide a sufficient number of competent attendants to supervise the swimmers not only for the purpose of warning or rescuing those in imminent danger, but also to guard the swimming facility and surrounding areas for potentially dangerous activities. 6. Negligence 53 — swimming pool — rough or boisterous play — foreseeable consequences While rough or boisterous play in water is not dangerous per se, hazardous consequences to other swimmers and bathers are clearly reasonably foreseeable when such activities are left unattended and unrestricted. 7. Negligence 57 — swimming pool operator — failure to control "horseplay" Plaintiff's evidence was sufficient for submission to the jury of the issue of negligence by defendant swimming facility operator where it tended to show that plaintiff was an invitee at defendant's swimming facility; some young men, located some 20 to 30 feet from plaintiff, began standing on the shoulders of each other and jumping backwards into the water; this "horseplay" continued for at least 20 minutes during which time the young men moved closer to where plaintiff was located in the water; defendant's lifeguards did nothing to stop or control such conduct; one of the young men jumped backwards from the shoulders of another and fell on plaintiff; and such<page_number>Page 668</page_number> activity was not an accepted aquatic practice under Y.M.C.A. and American Red Cross guidelines.