Volume 292 — North Carolina Reports

1. Evidence 11 — dead man's statute — applicability to caveator and propounder A caveator or a propounder in a will contest is a "party" to whom the prohibitions and exceptions of the dead man's statute, G.S. <cross_reference>8-51</cross_reference>, apply. 2. Evidence 11; Wills 22 — dead man's statute — communications with deceased — competency to show mental capacity A party or an interested witness may, notwithstanding G.S. <cross_reference>8-51</cross_reference>, in an action to set aside a will, deed or other writing, testify to communications or conversations with a deceased to show the basis upon which the party or witness has formed an opinion regarding the mental capacity of the deceased, when he testifies to such an opinion, and when the lack of such capacity is a ground for setting aside the instrument. 3. Evidence 11; Wills 22 dead man's statute — mental capacity and other issues presented — admissibility of transactions with deceased In actions to set aside written instruments executed by deceased persons on the ground of mental incapacity where other issues such as undue influence are raised by the evidence, and where testimony of an interested witness is offered relating to transactions or communications with the deceased, the following rules apply: (1) If the probative value of such testimony rests mostly on demonstrating the basis for the witness's opinion as to the deceased's mental state, it is admissible under appropriate limiting instructions notwithstanding the provisions of G.S. <cross_reference>8-51</cross_reference>. (2) If the probative value of such testimony rests mostly on demonstrating the basis for such an opinion, it is admissible under appropriate limiting instructions even when the mental state of the deceased is relevant to both the mental capacity and undue influence issues. (3) If the probative value of such testimony rests mostly on its tendency to prove certain facts in issue relevant to issues other than the deceased's mental state, G.S. <cross_reference>8-51</cross_reference> and the hearsay rule render it inadmissible and limiting instructions will not cure the prejudice resulting from its admission. 4. Evidence 11; Wills 22 — dead man's statute — transactions with deceased — competency to show mental capacity The trial court in a caveat proceeding properly permitted the propounder to testify to certain personal transactions and communications between the witness and the deceased relating to the execution of the script sought to be propounded, under appropriate instructions that the testimony should be considered only as bearing upon the mental capacity of deceased, where the testimony was offered mostly for the purpose of showing the basis for the propounder's opinion<page_number>Page 29</page_number> that deceased at the crucial time in question had the mental capacity to execute a will, the case was tried primarily on the issue of deceased's mental capacity, and evidence of undue influence was sparse. 5. Evidence 11; Wills 22 — statements by deceased — reasons for leading home to son — admissibility to show mental capacity In a caveat proceeding, testimony by propounder's wife that some four days prior to the execution of the script in question the deceased stated to the witness that she wanted to leave her home to the propounder because the propounder's father had built it for him while he was in service was not inadmissible as hearsay but was admissible to show the basis upon which the witness expressed her opinion that deceased possessed the requisite testamentary capacity at the crucial time in question, since the thrust of the evidence was not so much to show why in fact the home was built but was to show the deceased's state of mind regarding her property and that she had a fixed purpose to dispose of it according to the instrument in question.

1. Criminal Law 75 — admissibility of confession — waiver of counsel Defendant's confession was properly admitted in evidence where the court made findings consistent with the State's evidence on voir<page_number>Page 180</page_number> dire that defendant was given the Miranda warnings before interrogation, defendant stated he did not want an attorney and thereafter made an oral statement, and defendant signed a written waiver of his rights before signing a typewritten confession, and where the court found that defendant's testimony that he stated that he wanted a lawyer and signed the written waiver of his rights without reading it because he thought he was getting a lawyer was not believable. 2. Criminal Law 76 — voluntariness of confession — determination by judge The trial court did not err in failing to instruct the jury as to the law relating to the voluntariness of defendant's confession since voluntariness is for determination by the judge unassisted by the jury. 3. Criminal Law 33, 75 — credibility of confession — manner of securing defendant during transportation to this State The manner in which defendant was secured while being transported from Florida to North Carolina was a fact so remote in time and place from defendant's confession that its admission would have carried little weight as a circumstance affecting the credibility of the confession, and the exclusion of such evidence was not prejudicial, where defendant went to bed shortly after arriving at a jail in North Carolina at 4:45 a.m. and slept until 12:00 noon, defendant was then taken to the sheriff's office for interrogation, and defendant's written confession was not signed until 4:00 p.m. 4. Criminal Law 23, 89 — prior inconsistent statements — plea negotiations The district attorney's cross-examination of defendant about prior inconsistent statements made in the presence of the district attorney, the sheriff and defendant's former counsel did not violate G.S. <cross_reference>15A-1025</cross_reference> where the record does not reveal that any evidence of plea negotiations as such was offered into evidence. 5. Criminal Law 35 — motive of others to commit the crime In this prosecution for armed robbery, the trial court did not err in refusing to permit defendant to cross-examine the victim about a prior incident at the victim's restaurant involving his refusal to sell beer to two intoxicated individuals for the purpose of showing that other persons might have had a motive to rob the victim, since evidence tending to show that someone else committed the crime is not admissible unless it points directly to the guilt of the third party. 6. Criminal Law 33, 66 — credibility of identification — others meeting description of defendant The trial court did not err in refusing to permit defendant to testify for the purpose of discrediting a robbery victim's identification of him that he knew of other black males living in the town where the crime occurred who were about his size and had goatees, since the probative value of the testimony was so weak that it should not have been allowed to distract the jury's attention from material matters.<page_number>Page 181</page_number> 7. Criminal Law 6, 132 — intoxication and unconsciousness — jury's disregard of instructions — motion for new trial The trial court in an armed robbery case did not abuse its discretion in refusing to set aside the verdict of guilty on the ground that in view of the abundant evidence as to defendant's intoxication and unconsciousness, it is manifest that the jury totally disregarded the court's instructions on those defenses, since defendant's evidence of intoxication and unconsciousness was refuted by testimony of the victim and his wife concerning defendant's actions at the time of the crime and by defendant's confession which disclosed that he, with other persons, planned beforehand and carried out the robbery. 8. Constitutional Law 36; Robbery 6 — life imprisonment for armed robbery — constitutionality Judgment imposing on defendant a sentence of life imprisonment for armed robbery does not constitute cruel and unusual punishment. 9. Constitutional Law 20; Robbery 6 — sentence for armed robbery — discretion of court — equal protection A defendant sentenced to life imprisonment for armed robbery was not denied equal protection of the laws because of the wide range of discretion allowed the trial judge under G.S. <cross_reference>14-87</cross_reference>(a).

1. Criminal Law 29.2 — mental capacity to plead or stand trial — confinement of defendant to hospital When the capacity of one charged with a criminal offense to proceed is questioned, the court may direct the commitment of the defendant to a State mental health facility for observation or may appoint one or more impartial medical experts to conduct such examination and may make appropriate temporary orders for the confinement or security of the defendant pending the ruling of the court upon the question of his capacity to proceed; therefore, the trial court did not err in transferring defendant, who was under examination to determine his mental competency to plead and stand trial, from Dorothea Dix Hospital to the hospital at Central Prison upon learning that defendant's brother planned to break into Dorothea Dix and release defendant. G.S. <cross_reference>15A-1002</cross_reference>. 2. Criminal Law 29.1 — mental capacity to plead or stand trial — procedure Where defendant moved for a psychiatric examination to determine his mental competency to plead and stand trial, the court committed him to Dorothea Dix Hospital, and the hospital staff reported to the court that defendant did have mental capacity to proceed, the trial court erred in proceeding with the trial without conducting any further hearing for the determination of that question; however, defendant waived his right to such a hearing by failing before trial to request a hearing or otherwise indicate any adherence to his contention of lack of mental capacity. G.S. <cross_reference>15A-1002</cross_reference>(b)(8). 3. Criminal Law 15.1 — pretrial publicity — change of venue properly denied The trial court in a first degree murder prosecution did not err in denying defendant's motion for change of venue on account of local pretrial publicity where jurors apparently were found who were not aware of, or were not affected by, the publicity of which defendant complained, and nothing in the record indicated that, prior to verdict, defendant was not content with the twelve jurors who found him guilty. 4. Bill of Discovery 6 — State's witnesses — pretrial disclosure not required The State is not presently required to disclose to the defendant in advance of trial the names of its prospective witnesses. 5. Bill of Discovery 6 — proof of gun ownership — pretrial disclosure not required G.S. <cross_reference>15A-903</cross_reference> does not support defendant's contention in this first degree murder prosecution that he was entitled to pretrial disclosure<page_number>Page 345</page_number> of how the State intended to prove the victim's ownership of the gun — sold by defendant and his companion. 6. Criminal Law 75.7 — noncustodial interrogation — necessity for Miranda warnings The trial court in a first degree murder prosecution did not err in allowing into evidence testimony concerning statements made by defendant without benefit of the Miranda warnings to investigating officers concerning an earlier conversation between defendant and others present in a store during which defendant remarked that he knew who killed the victims, since, at the time defendant was interrogated by the officers, he was not in custody nor was he then a suspect. 7. Constitutional Law 49; Criminal Law 75.8 — request for counsel-subsequent waiver — admissibility of confession Defendant's earlier request for counsel did not make inadmissible a confession made at a subsequent conversation with the investigating officers, initiated by the defendant himself, at which he was again fully informed of his constitutional rights and at which he expressly waived the right to have counsel present. 8. Robbery 6; Criminal Law 102.12, 138 — counsel's statement of punishment to jury — State's objection — sustaining not prejudicial error The trial court in an armed robbery and murder prosecution erred in sustaining the State's objection to defense counsel's reading to the jury of the armed robbery statute, including the provision prescribing punishment, but such error was harmless beyond a reasonable doubt since the desired information was brought to the attention of the jury which was not instructed to disregard it, and judgment was arrested upon the charge of armed robbery anyway. 9. Criminal Law 130 — expression of opinion by juror — no mistrial The trial court in a felony murder prosecution did not err in denying defendant's motion for mistrial on the ground that jurors already selected and others of the panel awaiting interrogation were influenced by the statement of one prospective juror that he had formed an opinion that defendant was guilty because defendant's alleged companion in the crimes charged had committed suicide and the defendant had tried to do so. 10. Bill of Discovery 6 — photographs not supplied to defendant — admissibility The exclusion of evidence for the reason that the party offering it has failed to comply with the statutes granting the right of discovery, or with an order of the court issued pursuant thereto rests in the discretion of the trial court. The court did not abuse its discretion in allowing into evidence illustrative photographs which had not been supplied to defendant pursuant to the order for discovery where the district attorney did not know of the existence of the photographs until the morning on which the witness was called to testify. G.S. <cross_reference>15A-910</cross_reference>.<page_number>Page 346</page_number> 11. Homicide 20 — photographs for illustration — number not excessive The trial court in a felony murder prosecution did not abuse its discretion in allowing into evidence an allegedly excessive number of photographs depicting the victims' bodies and surrounding area, since each photograph illustrated a portion of the testimony of the witness not illustrated by other photographs. 12. Homicide 21 — felony murder — doctor performing autopsy — testimony insufficient basis for nonsuit Defendant in a felony murder prosecution was not entitled to nonsuit on the basis of an opinion expressed by the doctor who performed the autopsy on the victims that they could not have been killed prior to the day after the dates alleged in the bills of indictment, since the evidence of the State, taken to be true, revealed two ruthless, brutal murders in the perpetration of a planned robbery by the defendant and his companion. 13. Homicide 30; Robbery 5 — felony murder — armed robbery or common law robbery immaterial In a prosecution for murder committed during the perpetration of an armed robbery where all the evidence was that each victim was struck on the head with a weapon of such nature and used with such force as to make it a deadly weapon, the trial court was not required to submit to the jury as a possible verdict defendant's guilt of common law robbery; furthermore, defendant was not prejudiced since he received no sentence for the robbery, judgment being arrested as to that charge, and a murder committed in the perpetration of any robbery, whether armed robbery or common law robbery, is murder in the first degree. G.S. <cross_reference>14-17</cross_reference>. 14. Criminal Law 9.1; Homicide 25 — defendant at scene of crime — defendant as active participant — jury instructions There is no merit in defendant's contention that the trial court failed to instruct the jury that if it found the defendant was merely present at the scene of the crime that circumstance alone would not justify a verdict of guilty, since the court did so instruct the jury, but, in any event, defendant's own statement, properly admitted in evidence, showed that he actively participated in the planning of the robbery and its execution. 15. Constitutional Law 80; Homicide 31 — felony murder — life sentence substituted for death penalty Sentence of life imprisonment is substituted for the death penalty in this felony murder prosecution.

1. Master and Servant 56 — workmen's compensation — whether accident arises out of employment — appellate review The determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and the appellate court may review the record to determine if the findings and conclusions are supported by sufficient evidence. G.S. <cross_reference>97-86</cross_reference>. 2. Master and Servant 55 — workmen's compensation — assault as accident An assault upon a shoe store employee when she went to her car in a mall parking lot after leaving work was an accident within the purview of the Workmen's Compensation Act. 3. Master and Servant 56 — workmen's compensation — in course of arising out of As used in the Workmen's Compensation Act, the term "in the course of" refers to the time, place and circumstances under which an accident occurs, while the term "arising out of" refers to the origin or causal connection of the accidental injury to the employment. 4. Master and Servant 56 — workmen's compensation — accident arising out of employment The controlling test of whether an accident arises out of the employment is whether the injury is a natural and probable consequence of the nature of the employment. 5. Master and Servant 56 — workmen's compensation — accident arising out of employment In order for an injury to arise out of the employment, a contributing proximate cause of the injury must be a risk to which the employee is exposed because of the nature of the employment, and this risk must be such that it might have been contemplated by a reasonable<page_number>Page 400</page_number> person familiar with the whole situation as incidental to the service when he entered the employment. 6. Master and Servant 56 — workmen's compensation — shoe store employee — abduction in parking lot — subsequent robbery and shooting — accident not arising out of employment The death of a shoe store employee when she was abducted in a mall parking lot after leaving work and was thereafter robbed and shot to death did not arise out of her employment where there was evidence that her assailant had been informed that she often carried large sums of money but not that he had any information that she ever carried money belonging to her employer, the employee was not carrying any money belonging to her employer or any article indicating such at the time of her abduction, and there was no evidence that the employee ever made bank deposits for her employer unless accompanied by the manager or assistant manager, since (1) there was no evidence that the employee's risk of being robbed or abducted was affected by her employment, and (2) the risk of assault on the employee was essentially one common to the neighborhood and was not peculiar to the employment.

1. Automobiles 108 — family purpose doctrine — requirements for applicability The family purpose doctrine imposes liability upon the owner or person with ultimate control of a motor vehicle for its negligent operation by another when it is shown (1) that the operator was a member of his family or household and was living in his home, (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of his family, and (3) that the vehicle was being so used by a member of his family at the time of the accident with his express or implied consent. 2. Automobiles 108.1 — family purpose doctrine — motorcycle as motor vehicle A motorcycle is a motor vehicle for purposes of the family purpose doctrine, since it is a self-propelled vehicle designed and intended for operation upon the public highways. 3. Automobiles 108.1 — motorcycle on private property — applicability of family purpose doctrine The family purpose doctrine is applicable to accidents involving the operation of a motorcycle upon private property. 4. Automobiles 41.1, 41.2 — children on highway or private property-duty of motorist The presence of small children on or near a street is a danger signal to a motorist who must bear in mind that children have less capacity to avoid danger than adults, and the motorists is, therefore, required to use the care a reasonable man would exercise under such circumstances. This duty of increased vigilance is also required when a vehicle is being operated on private property. 5. Automobiles 63.3 — motorcycle striking child on private property-sufficiency of evidence of negligence In an action to recover for injuries sustained by minor plaintiff when he was struck by a motorcycle operated by a fourteen year old on private property, evidence was sufficient to support a reasonable inference by the jury that the boy was operating the motorcycle at a greater rate of speed than was reasonable or prudent under the circumstances and that he failed to keep a proper lookout where such<page_number>Page 417</page_number> evidence tended to show that the fourteen year old was operating the motorcycle belonging to his father and furnished to him for his use and pleasure across the front yard of a home in which he knew little children lived and played; he had been told not to operate the vehicle on these premises; he was operating his motorcycle at a speed of about 15 mph along a path which had been created by his motorcycle and the motorcycle of one of his friends; although his vision was momentarily obstructed by a bush, he failed to decrease his speed before he saw the child and was forced to apply his brakes suddenly; and by own admission his brakes were of little value under these conditions.

1. Criminal Law 141 — indictment as habitual felon The Habitual Felons Act clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may also be indicted in a separate bill as being an habitual felon. G.S. <cross_reference>14-7.1</cross_reference> et seq. 2. Criminal Law 141 — habitual felon — ancillary proceeding The Habitual Felons Act does not authorize a proceeding independent from the prosecution of some substantive felony for the sole purpose of establishing a defendant's status as an habitual felon but requires that the proceeding be ancillary to a pending prosecution for the principal, or substantive, felony. 3. Criminal Law 141 — habitual felon — increased punishment Being an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. 4. Criminal Law 141 — habitual felon — independent proceeding — dismissal of indictment Where it is clear from the indictment charging defendant with being an habitual felon that prior to its return all the substantive felony proceedings upon which it is based had been prosecuted to completion and there was no pending felony prosecution to which the habitual felon proceeding could attach as an ancillary proceeding, the indictment on motion of the defendant should have been dismissed for failure to charge a cognizable offense.

1. Criminal Law 66.10 — in-court identification — pretrial confrontation at Sheriff's office — no taint The in-court identification of each of the defendants by each of two armed robbery victims had its origin in their observations of the defendants at the scene of the robbery immediately before and during<page_number>Page 528</page_number> its perpetration and was not tainted by the unintentional, unplanned confrontation of the defendants by one of the victims in the office of the sheriff, or by the viewing by either victim of photographs at the sheriff's office. 2. Robbery 4 — armed robbery — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for armed robbery where it tended to show that the robbery was committed; five minutes earlier defendants were in a black Volkswagen immediately outside the office where the robbery occurred; the robbers wore shirts similar in appearance to those then worn by defendants; one of the robbers wore conspicuous gloves, similar in appearance to gloves worn by one of the defendants five minutes before the robbery- defendant Thomas was identified by two of the victims as one of the robbers; the robbers left the crime scene in the same Volkswagen earlier observed by two of the victims, the keys of which one of the defendants had in his pocket one hour after the robbery; and the robbers left at the crime scene a pistol owned by one defendant's brother with whom he lived. 3. Criminal Law 168.5 — jury instructions — evidence misstated — failure to object Trial judge's misstatement of the State's evidence with respect to the robbers' shirts was of no substantial consequence, moreover, defendants' failure to call this error to the attention of the court before the jury retired to consider its verdict rendered their assignment of error of no avail. 4. Criminal Law 122.2 — failure to reach verdict — additional instructions — no coercion Where the jury returned to the courtroom after four hours of deliberation and reported that it had not reached a verdict as to one of the defendants, that defendant was not prejudiced by the trial court's instruction to the jury to "try again" but not "to reach a verdict that your consciences forbid you to reach," since the instruction did not coerce the jury but left them free to disagree and thus return no verdict. 5. Criminal Law 101.4 — reading of direct examination testimony by reporter — failure to read cross-examination testimony — no error Defendant was not prejudiced where the jury, after having begun its deliberations, returned to the courtroom and requested the court to have the court reporter read a specified portion of the testimony on direct examination of a named witness, and the court allowed such request, but denied defendant's request that the witness's testimony on cross-examination be read to the jury, since there was no testimony of the witness on cross-examination which was in conflict with or in contradiction of the testimony on direct examination so read back to the jury in response to its request.

1. Criminal Law 75.10 — waiver of right to counsel — affirmative showing required When the State seeks to offer in evidence a defendant's in-custody statements, made in response to police interrogation and in the absence of counsel, the State must affirmatively show not only that the defendant was fully informed of his rights but also that he knowingly and intelligently waived his right to counsel. 2. Criminal Law 76.5 — confession — voir dire — necessity for findings When no material conflict in the evidence on voir dire exists, it is not error to admit a confession without making specific findings of fact, although the better practice is always to find all facts upon which the admissibility of the evidence depends. In such case, the necessary findings are implied from the admission of the confession into evidence. 3. Criminal Law 75.11 — failure to request counsel — no waiver of right A defendant's failure to request an attorney is not an effective waiver of the right to counsel. 4. Criminal Law 75.11 — confession — right to counsel — waiver by silence Although failure to request an attorney after the Miranda warnings have been given does not ordinarily constitute a waiver, a waiver by silence can be inferred where subsequent comments of the defendant indicate that he intended his silence as a waiver of his right to an attorney during interrogation. 5. Criminal Law 75.4 — confession — failure to show counsel waived — admission improper The trial court erred in admitting an incriminating statement made by defendant where uncontradicted evidence was insufficient to show a waiver of the right to counsel and where there was conflicting evidence, which the trial court did not resolve, as to whether defendant asked for an attorney immediately after being informed of his rights. 6. Criminal Law 75.9 — volunteered statements — admissibility The trial court properly allowed into evidence incriminating statements made spontaneously by defendant immediately following an officer's reading to defendant of an arrest warrant for rape, and the fact that defendant had requested an attorney but no attorney had been appointed did not render the volunteered statements inadmissible. 7. Criminal Law 76 — involuntary confession — subsequent confession — presumption of involuntariness Where a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior<page_number>Page 544</page_number> influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence, the burden being upon the State to overcome this presumption by clear and convincing evidence. 8. Criminal Law 76 — involuntary confession — admissibility of subsequent confession Defendant's second confession was properly admitted into evidence notwithstanding the inadmissibility of his first confession, since no threats or promises were used to extract the first confession. 9. Criminal Law 75.12 — inadmissible first statement — subsequent similar statement — admission of first statement harmless Because defendant's inadmissible first statement was in all material respects identical to his admissible second statement, error in admitting the first statement was harmless beyond a reasonable doubt. 10. Criminal Law 75.12 — statements made during custodial interrogation — admissibility — waiver of right to counsel required An effective waiver of the right to counsel is a prerequisite to the admissibility of any statement made by a defendant during custodial interrogation. 11. Criminal Law 75.12, 96 — improper custodial interrogation — evidence erroneously admitted — no prejudice Though it was error to allow an officer to testify that during an improper custodial interrogation defendant told him that he "had been in trouble ever since he was 15 or 16 years old" and that he "started off stealing hubcaps in Philadelphia," defendant was not prejudiced, since the court immediately instructed the jury that the evidence was incompetent and they should not consider it. 12. Criminal Law 21.1 — probable cause hearing — continuances — no denial of statutory right Defendant failed to show that his statutory rights pursuant to G.S. <cross_reference>15A-606</cross_reference> were violated where he did not show that the trial court failed to make necessary findings before granting continuances of his probable cause hearing, nor did defendant show that his case was prejudiced in any way by either the delay in holding the probable cause hearing or the lack of "timely" notice of continuances. 13. Robbery 4; Rape 5 — armed robbery — first degree rape — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for first degree rape and armed robbery where it tended to show that on the morning of the crimes the victim noticed a white Plymouth Fury automobile parked outside behind the hospital where she worked; other hospital employees observed the same car parked in the same spot as they came to work; the victim placed her pocketbook containing $10 on her desk when she arrived at work; a strange black man appeared shortly thereafter in the kitchen and grabbed the victim; he showed her a gun and told her he'd kill her if she did not keep quiet; the man forced her to a dark supply room and there had<page_number>Page 545</page_number> intercourse with her after striking her and breaking her jawbone in two places; while he still held the gun, the victim told him her purse was on the desk; he tied her up with pantyhose; two other employees observed a strange man standing behind a column at the back of the kitchen next to the supply room door; the victim's wallet was discovered lying on the floor where the man had been seen but no money was in it; the white Plymouth was found in a ditch later the same morning three to four miles from the hospital with a gun holster on the front seat; defendant had possession of the car and the holster that morning; defendant fled from the police; and defendant admitted robbing and tying up a lady at the hospital to police officers.

1. Criminal Law 102.8 — defendant's failure to testify — district attorney's jury argument — no prejudice Defendant was not prejudiced by the district attorney's allegedly improper argument to the jury concerning defendant's failure to present witnesses to contradict the State's evidence since (1) defense counsel did not object to the challenged remarks at the time nor was the attention of the court called to them; (2) the impropriety in the argument, if any, was not gross and the court was not required to censure the argument and give curative instructions ex mero motu; (3) defendant, having offered no evidence, had the closing argument to the jury, and counsel was thus afforded an opportunity to answer effectively any and all remarks of the prosecuting attorney; and (4) the trial court's charge to the jury contained an admonition with respect to defendant's failure to testify which was sufficient to remove any prejudice that might have resulted from the challenged remarks of the prosecuting attorney. 2. Criminal Law 113.1 — plea bargaining by witness — jury instruction — summary of evidence The trial court's jury instruction concerning the plea bargaining of a witness amounted to a summary of the witness's own testimony and did not permit the jury to conclude that the trial judge was endorsing the testimony of the witness. 3. Criminal Law 113 — jury instructions — law arising on evidence — no hypothetical facts Defendant's contention that "the court in attempting to explain common law robbery stated affirmatively, where it should have stated hypothetically the matter" is without merit, since G.S. <cross_reference>1-180</cross_reference> requires the court to declare and explain the law arising on the evidence in the particular case and not upon a set of hypothetical facts.<page_number>Page 581</page_number> 4. Jury 6 — examination of prospective jurors — limitation not prejudicial Defendant's right to examine prospective jurors was not unreasonably restricted where one question to which the State objected was clearly improper and another to which the State objected was answered by the prospective juror anyway- both prospective jurors involved were excused; and defendant exhausted only eleven of his fourteen peremptory challenges. 5. Criminal Law 95, 162.2 — objectionable evidence — time for objecting — limiting instruction Defendant was not prejudiced by the admission of testimony from a sheriff in Georgia concerning a message received by him about defendant from a sheriff in N.C., since defendant lodged no objection until the entire message from the N.C. sheriff had been read to the jury; moreover, even if admission of the message was error, the limiting instruction given by the court was sufficient to erase any possible prejudice. 6. Criminal Law 89.3 — witness's prior statements — admissibility for corroboration The trial court did not err in allowing into evidence pretrial statements made by a State's witness where the court restricted the admissibility of the statements to corroborative purposes only. 7. Homicide 21.5 — first degree murder — sufficiency of evidence Where there was evidence of premeditation and deliberation as well as evidence of murder committed in the perpetration or attempt to perpetrate robbery in violation of G.S. <cross_reference>14-17</cross_reference>, the trial judge was well within the law when he submitted first degree murder as a permissible verdict. 8. Criminal Law 15 — change of venue — special venire — discretionary matters Motions for change of venue or special venire are addressed to the sound discretion of the trial judge and, absent abuse of discretion, his rulings thereon will not be disturbed on appeal. 9. Constitutional Law 80; Homicide 31.1 — first degree murder — life sentence in lieu of death penalty A sentence of life imprisonment is substituted for the death penalty imposed in this first degree murder prosecution.

1. Automobiles 113.1 — involuntary manslaughter — failure to stop at intersection — exceeding safe speed — sufficiency of evidence In a prosecution for involuntary manslaughter evidence was sufficient to support a finding that defendant drove into an intersection without stopping, a violation of G.S. <cross_reference>20-158</cross_reference>; that at the time he approached and entered it he was driving at a greater speed than was reasonable and prudent under the conditions then existing; and that defendant's violation of these two statutes constituted culpable negligence which proximately caused the death of a passenger in the vehicle with which defendant collided. 2. Automobiles 114.1 — involuntary manslaughter — criminal negligence and proximate cause — instructions proper The trial court's instructions in an involuntary manslaughter prosecution were sufficient where they informed the jury that the State must prove beyond a reasonable doubt (1) that defendant had violated a safety statute (either G.S. <cross_reference>20-141</cross_reference>(a) or G.S. <cross_reference>20-158</cross_reference>) in a criminally negligent manner and (2) that such violation was the proximate cause of a passenger's death; and the court explained the term "proximate cause," explained what was required for a violation to be criminally negligent, and defined a reckless violation.