Volume 293 — North Carolina Reports

1. Criminal Law 161 — assignment of error not supported by exception — no question presented for review Defendant's assignment of error to the denial of his motion to suppress an in-court identification was not supported by an exception duly taken at trial and therefore presented no question for appellate review. 2. Criminal Law 66.1 — identification of defendant — witness's opportunity for observation Evidence was sufficient to support the trial court's conclusion that a rape victim's in-court identification of defendant was "based upon her independent recollection of the event without suggestion as to identity from any person" where the evidence tended to show that the victim observed defendant for about five seconds when she turned to see who was following her; she observed her assailant in bright sunlight for two to three minutes while he had intercourse with her; and the victim identified defendant from among twenty other black men at the preliminary hearing without having been told where he would be sitting and without having her attention directed to him in any way.<page_number>Page 2</page_number> 3. Criminal Law 117.1 — scrutiny of testimony — instruction not required absent request In the absence of a request, the court is not required to give a cautionary instruction that the jury scrutinize the testimony of a witness on the grounds of interest or bias. 4. Constitutional Law 35; Criminal Law 75.11 — waiver of rights form — defendant's name printed — waiver effective Defendant's contention that a waiver of rights form was ineffectual because defendant printed his name instead of signing it is without merit, since evidence was sufficient to support the trial court's findings that defendant was advised of his rights, said he fully understood those rights, and printed his name on the waiver of rights form. 5. Criminal Law 114.2 — jury instructions — evidence "tended to show" — no expression of opinion Defendant's contention that the trial court erred in instructing the jury on what the evidence presented in the case "tended to show" in that use of the phrase misled the jury into believing that all the evidence restated by the judge was true is without merit, since the court repeatedly reminded the jury that it must determine what the evidence adduced at trial did in fact show, and the trial judge concluded his instructions with the declaration that he did not have any opinion on what the verdict in the case should be. 6. Criminal Law 113.1 — review of evidence after deliberations begun — discretionary matter Generally, in the absence of a statute governing the situation the decision to review evidence after the jury has begun its deliberations rests in the sound discretion of the trial judge. 7. Robbery 4 — common law robbery — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for common law robbery where it tended to show that defendant requested his cousin to accompany him to Duke Gardens; during defendant's assault upon his rape victim, the cousin forcibly removed her purse from her arm, and defendant then called to the cousin to bring him the purse; after the assault, the cousin hid the purse and wallet but kept the money, car keys, driver's license and bank book he found inside; when defendant next saw his cousin, he asked what had been done with the purse and demanded items taken from the purse, which the cousin gave him; defendant also warned the cousin not to tell anyone about the robbery or rape; and police later found the victim's car keys in the possession of a girl friend of defendant. 8. Rape 5 — first degree rape — serious bodily injury — sufficiency of evidence Evidence in a first degree rape prosecution was sufficient to support a finding that the victim suffered a serious bodily injury where it tended to show that the victim suffered, at the hands of defendant, a hard blow to her upper jaw that left her stunned and dazed and knocked five teeth out of alignment, breaking the root of one tooth; the teeth had to be deadened, forced back into line and secured with a metal brace which was uncomfortable but<page_number>Page 3</page_number> which the victim wore for six weeks; and expert medical opinion predicted that the teeth would eventually die, despite the brace, and root canals or extraction would then be necessary. 9. Rape 1 — first degree rape — resistance overcome by serious bodily injury — meaning of statute G.S. <cross_reference>14-21</cross_reference>(a)(2), the rape statute, does not mean that the victim's resistance must completely cease in order to be "overcome" by infliction of serious bodily injury; rather, the statute means that the assailant is guilty of first degree rape if the rape is accomplished by force and against her will after the victim's resistance is rendered ineffectual by the infliction of serious bodily injury. 10. Constitutional Law 63 — exclusion of jurors opposed to death penalty — death penalty invalidated — exclusion not error Defendant's contention in a first degree rape prosecution, made in reliance upon Witherspoon v. Illinois, <cross_reference>391 U.S. 510</cross_reference>, that his constitutional rights were violated by the exclusion of jurors who expressed scruples against the death penalty is groundless, since the death penalty provisions of G.S. <cross_reference>14-21</cross_reference>(a)(2) were, by implication, invalidated by Woodson v. North Carolina, <cross_reference>428 U.S. 280</cross_reference>, and the Witherspoon decision affected only the death sentence and not the conviction. 11. Constitutional Law 80; Rape 7 — first degree rape — life imprisonment substituted for death penalty A sentence of life imprisonment is substituted for the sentence of death imposed upon defendant convicted of first degree rape.

Homicide 21.4 — murder by stabbing — insufficiency of evidence Evidence in a murder prosecution was insufficient to be submitted to the jury, though it established that defendant had an opportunity to commit the crime charged, since it was deficient in the following respects: (1) the desk clerk at the motel where deceased lived could not identify the man he saw leaving deceased's mobile home probably because of the distance and the darkness; (2) black men other than defendant were staying at the motel at the time of the offense in question; (3) no evidence was presented that defendant owned the murder weapon; (4) no fingerprints were found on the knife which was found in deceased's body; (5) no evidence was introduced of any blood found on defendant's pants; (6) about 15% of the population has the type of blood found on defendant's left shoe; (7) the type of blood found on the right shoe is found in 30% of the population; (8) the blood specks on the defendant's tee shirt and the blood found on his carpet were not identified by type or otherwise; (9) no motive was established for the crime; (10) no flight was attempted by defendant.

1. Criminal Law 34.5 — commission of another crime — competency to show identity In this prosecution for murder committed in the perpetration of an armed robbery of a convenience store, evidence of defendant's participation in an armed robbery of a second convenience store some two weeks earlier was relevant to show defendant's identity as the perpetrator of the crime charged where the victim was shot in both instances; in both robberies the perpetrator attempted to mask his appearance during the commission of the crime; defendant was positively identified as the perpetrator of the earlier robbery; a long black gun was used in both robberies; and empty cartridges found at the scene of both robberies were found by a ballistics expert to have been fired from the same gun. 2. Homicide 21.4 — murder during robbery — sufficiency of evidence of defendant's identity The State's evidence was sufficient to permit the inference that defendant was the perpetrator of a murder committed during an armed robbery of a convenience store where it tended to show that defendant committed an armed robbery of another convenience store some<page_number>Page 98</page_number> two weeks earlier; the same gun was used in both crimes and the same modus operandi was used in both instances; defendant was in possession of a black Cadillac prior to the robbery-murder; and a black Cadillac was parked near the convenience store at the time of the robbery-murder.

1. Criminal Law 31 — judicial notice — percentage of women in county The percentage of women in a given county is not properly the subject of judicial notice. 2. Constitutional Law 61 — grand jury — systematic exclusion of women — failure of proof Even if the male defendants have a right to complain of under-representation of women on the grand jury which indicted them defendants failed to make out a prima facie case of discrimination against women where they presented evidence of the percentage of female grand jurors in the county during a four-year period but presented no evidence of the percentage of women in the county.<page_number>Page 106</page_number> 3. Constitutional Law 61 — grand jury — systematic exclusion of 18 to 21 year olds — failure of proof Even if the 18 to 21 year age group is considered a constitutionally identifiable group, defendants failed to make out a prima facie case of systematic exclusion of 18 to 21 year old persons from the grand jury which indicted them where they failed to present evidence of the proportion of 18 to 21 year olds serving on the grand juries in the county or of their percentage in the population of the county. 4. Constitutional Law 60 — grand jury — systematic exclusion of blacks — failure of proof The systematic exclusion of blacks from the grand jury will not be presumed where no evidence of racial discrimination was presented and defense counsel made no effort to produce such proof, notwithstanding defendants contend that failure of the county to keep records of the race of members of the jury list or of persons selected to serve on juries made it impossible for them to meet their burden of proof. 5. Constitutional Law 61 — grand jury — absence of systematic exclusion — findings The court's finding that there was no evidence before it to indicate systematic exclusion of blacks, women and 18 through 21 year olds from the grand or petit juries was supported by the record; furthermore, the court was not required to make findings of fact where the evidence was not contradictory or conflicting. 6. Constitutional Law 61 — grand and petit juries — absence of systematic exclusion The State's evidence showed that there was no systematic exclusion of any cognizable group from the grand or petit juries where it showed that the jury commissions used names from the voter registration records and tax lists in preparing the jury lists, that they used a neutral systematic selection procedure (e.g., every sixth name) in selecting names from the source lists as required by G.S. <cross_reference>9-2</cross_reference>, and that the only criteria used in striking names from the jury list were the permissible disqualifications set out in G.S. <cross_reference>9-3</cross_reference>. 7. Criminal Law 92.1 — consolidation of charges against two defendants — same offense The State's motion for consolidation of charges for the same crimes against two defendants was addressed to the sound discretion of the trial judge, and the judge's exercise of that discretion will not be disturbed absent a showing that a defendant has been denied a fair trial by the order of consolidation. 8. Constitutional Law 72; Criminal Law 48 — statements by codefendant — admission by silence In this joint trial of two defendants for a felony-murder in which neither defendant took the stand and testified, defendants' rights of confrontation, as stated in Bruton v. United States, <cross_reference>391 U.S. 123</cross_reference>, were not denied by the admission of testimony by a cellmate<page_number>Page 107</page_number> of defendants that he heard one defendant ask the second defendant why he shot the man and the second defendant did not reply, and that the second defendant stated in the first defendant's presence that the first defendant told him you had to kill the victim or he would testify, since the statement of each defendant was admissible against the codefendant as an implied admission by silence, and the Bruton rule does not apply where the admissions of a nontestifying codefendant are admissible against the defendant under well-recognized rules of evidence. 9. Criminal Law 117.3 — grant of immunity — instruction to jury — when given The trial court was not required by G.S. <cross_reference>15A-1052</cross_reference> to instruct the jury immediately before a witness's testimony that the witness was testifying under a grant of immunity, and the court's instruction prior to the presentation of any evidence that the witness would testify under a grant of immunity if he testified was sufficient to comply with the requirement of the statute that the instruction be given "prior" to the testimony; furthermore, the court's instruction which failed to give all of the terms of the grant of immunity did not violate the statute where the material terms of the grant of immunity were explained, since the statute does not require the judge to inform the jury of the details of the grant, and the court's instruction substantially complied with the statute. 10. Criminal Law 117.3 — grant of immunity — interested witness — time of instruction to jury The requirement of G.S. <cross_reference>15A-1052</cross_reference>(c) that the trial judge "during the charge to the jury" must instruct that a witness testifying under a grant of immunity is an interested witness whose testimony must be carefully scrutinized means during the final charge and not in advance of the witness's testimony. 11. Criminal Law 117.4 — all evidence shows witness as accomplice — instruction Where all the evidence showed that a State's witness was an accomplice, the court should have instructed the jury that the witness's testimony should be carefully scrutinized without first requiring a finding by the jury that the witness was an accomplice; however, the court's instruction requiring the jury first to find that the witness was an accomplice was invited by defendant's tendered instruction and did not constitute prejudicial error. 12. Bills of Discovery 6 — prior recorded statements — pretrial discovery — statutory authority The court had no authority under G.S. <cross_reference>15A-903</cross_reference>(d) to order pretrial discovery by defendant of a prosecution witness's prior recorded statements, although such statements were material to the preparation of the defense, since the court's authority under G.S. <cross_reference>15A-903</cross_reference>(d) is limited by provisions of G.S. <cross_reference>15A-904</cross_reference>(a) restricting discovery of statements made by prospective witnesses to anyone acting on behalf of the State.<page_number>Page 108</page_number> 13. Constitutional Law 30; Bills of Discovery 6 — pretrial discovery — statutory restriction — inherent authority Where a statute restricts pretrial discovery, the trial court has no inherent authority to order pretrial discovery of items so restricted. 14. Bills of Discovery 6 — pretrial discovery order — effect A judge's pretrial order of discovery of "other papers, documents, photographs, mechanical or electronic recordings, tangible objects in control of the State relative to said case" applied only to those materials defendants are permitted to receive under G.S. <cross_reference>15A-903</cross_reference>(d), as limited by G.S. <cross_reference>15A-904</cross_reference>(a). 15. Criminal Law 82.1 — attorney and client — work product privilege The work product doctrine is a qualified privilege for certain materials prepared by an attorney acting on behalf of his client in anticipation of litigation; it applies in civil as well as criminal cases and has been extended to protect materials prepared for the attorney by his agents as well as those prepared by the attorney himself. 16. Criminal Law 82.1 — waiver of work product privilege The work product privilege is waived when the defendant or the State seeks at trial to make a testimonial use of the work product; therefore, when the State elected to use as a witness a person who had given a tape recorded statement to the police, it waived its right to claim the recorded statement was privileged with respect to matters covered in the witness's testimony. 17. Constitutional Law 30; Bills of Discovery 6 — disclosure of State's evidence The prosecution is constitutionally required to disclose only at trial evidence that is favorable and material to the defense. 18. Constitutional Law 30; Bills of Discovery 6 — motion for discovery at trial — in camera examination When a specific request is made at trial for the disclosure of evidence in the State's possession that is obviously relevant, competent and not privileged, the trial court is required, at a minimum, to order an in camera examination of the evidence and to make appropriate findings of fact; if the court rules against the defendant on his motion for discovery, the judge should order the sealed evidence placed in the record for appellate review. 19. Constitutional Law 30; Bills of Discovery 6 — failure of State to provide recorded statement — pretrial discovery order — motion to strike — motion for mistrial The trial court did not err in failing to strike a witness's testimony or to declare a mistrial because the State failed to provide the witness's tape recorded statement pursuant to a pretrial discovery order where the State was not required to divulge the statement prior to trial, defendants made no request for disclosure of the statement at trial, and defendants failed to ask for a sealed transcript of the statement to be placed in the record for appellate review.<page_number>Page 109</page_number> 20. Homicide 21.6 — felony-murder — sufficiency of evidence The State's evidence was sufficient to be submitted to the jury on the issue of defendant's guilt of felony-murder where it tended to show that defendant borrowed his sister's car in Asheville so that he and his two companions could go to Durham; defendant remained in the car while his two companions entered a service station near Morganton and robbed and shot to death the station attendant; defendant was the only adult and oldest member of the group; defendant was a leader among black students at the college he attended; the car defendant borrowed from his sister had a phony license plate a short time after the robbery, and the lawful license plate was found under the front seat; before leaving Asheville, defendant placed a shotgun in his sister's car; at the service station, defendant ordered a bystander into the car and threatened him with the same fate as the murdered station attendant; in the car, defendant stated that the incident at the service station had occurred because the black man was "sick and tired of being opposed or stepped on"; defendant told one companion that when a police officer approached the car and asked for his driver's license, "he would have to shoot him"; defendant drove away from the police after the car was stopped; a shotgun and several pistols were found in the car after it wrecked while the police chased it; defendant ran from the police after the wreck; and while in jail, defendant told his codefendant that he had to kill the victim or he would talk. 21. Homicide 31.1 — first degree murder — substitution of life sentences for death penalties Sentences of life imprisonment are substituted for penalties of death imposed for first degree murder. 22. Constitutional Law 40 — indigent defendant — appointment of only one attorney Only one competent attorney should have been appointed to represent each indigent defendant in the trial and appeal of this case.

1. Criminal Law 111.1 — instruction to take law from judge — statement about appellate review — no error The trial court's remarks in a first degree murder prosecution that the jury should take the law as given to them by the court and "If the Court is wrong, then the Court of Appeals will let that be known. Somebody will straighten that out, but you take your instructions from the Court" merely informed the jurors that the law, as stated by the trial judge, would be subject to review by an appellate court, and did not suggest to the jury that its verdict was somehow less binding because of later opportunities for review. 2. Constitutional Law 63; Jury 7 — exclusion of jurors for death penalty views — death penalty invalidated Defendant's contention, made in reliance upon Witherspoon v. Illinois, <cross_reference>391 U.S. 510</cross_reference>, that his constitutional rights were violated by the exclusion of jurors who expressed scruples against the death penalty is groundless, since the death penalty provision of G.S. <cross_reference>14-17</cross_reference>, the statute under which defendant was sentenced, was invalidated by Woodson v. North Carolina, <cross_reference>428 U.S. 280</cross_reference>, and the Witherspoon decision affected only the death sentence and not the conviction. 3. Jury 5 — prospective jurors — expression of opinion during selection — no prejudice Defendant was not prejudiced by the denial of his motion for a mistrial made during jury selection and grounded on statements by two prospective jurors that they thought defendant was guilty, since the trial court promptly excused the prospective jurors and immediately instructed the other jurors not to consider the remarks. 4. Criminal Law 66 — illegal and unconstitutional arrest — admissibility of identification testimony There is nothing in the law of North Carolina which requires that identification evidence, obtained subsequent to an illegal arrest, be excluded, nor does an unconstitutional arrest require the exclusion of identification testimony that is otherwise competent. 5. Criminal Law 66.5 — lineup during investigation of crime — no right to counsel Defendant's contention that identification evidence should have been excluded because he was not represented by counsel at a pretrial lineup is without merit, since the lineup was conducted at a time when the proceeding was investigatory and had not become a criminal prosecution, and a person's right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings.<page_number>Page 133</page_number> 6. Criminal Law 89.10 — impeachment — witness's prior conviction — scope of cross-examination Where, for purposes of impeachment, the witness has admitted a prior conviction, the time and place of the conviction and the punishment imposed may be inquired into upon cross-examination, and this is permissible regardless of whether the witness is the accused. 7. Criminal Law 89.10 — witness's prior criminal conduct — inquiry as to punishment improper Defendant had no right to inquire concerning punishment imposed upon a witness in a prior criminal proceeding where defendant failed to show that the witness had been convicted of an offense. 8. Criminal Law 89.10 — witness's prior criminal conduct — inquiry as to punishment proper The trial court erred in refusing to allow defendant to cross-examine a witness concerning punishment imposed upon the witness's earlier conviction of traffic offenses, but exclusion of this testimony was harmless error. 9. Criminal Law 89.10 — witness's prior conduct — cross-examiner bound by witness's testimony Where a State's witness testified on cross-examination that he was no longer a drinking man, defendant was bound by such testimony and was not entitled to introduce testimony of two other witnesses to contradict that of the first witness. 10. Criminal Law 87.1 — leading question — discretionary matter The trial court did not abuse its discretion in refusing to allow defense counsel to ask a witness a leading question on direct examination. 11. Criminal Law 63 — nonexpert opinion of mental capacity — insufficient basis for admissibility The opinion of a lay witness as to the mental capacity of another witness was based on observations too remote in time and was properly excluded by the trial judge where the evidence showed that the witness's opinion was based on observations made from 1969 to 1972, and there was no evidence that the witness observed the second witness at any more recent time. 12. Constitutional Law 80; Homicide 31.1 — first degree murder — life sentence substituted for death penalty A life sentence is substituted for the death penalty imposed in this first degree murder prosecution.

1. Criminal Law 66.12 — pretrial courtroom identification — no impermissible suggestiveness A rape victim's identification of defendant at an unrelated district court proceeding was not the result of impermissibly suggestive procedures, testimony of<page_number>Page 287</page_number> the pretrial identification was properly admitted, and the pretrial identification did not taint the victim's in-court identification of defendant where officers asked the victim to sit in the courtroom and see if she could recognize the man who raped her; the officers made no suggestion that defendant or anyone else in particular would be in the courtroom; there were approximately sixty people in the courtroom and as many as a dozen black males; when defendant walked down the aisle past her to approach the bench, the victim immediately recognized him as her assailant and, without prompting, she mentioned to police that defendant was the man. 2. Criminal Law 66.9 — photographic identification — no impermissible suggestiveness A rape victim's photographic identification of defendant at the police station was not the result of impermissibly suggestive procedures where officers showed her six or eight photographs; the victim identified defendant's photograph without prompting; officers did not point out any particular picture to her; and the victim testified that she recognized defendant from seeing him at the time of the assault. 3. Criminal Law 66.9, 66.12 — pretrial confrontation — no likelihood of mistaken identification There was no likelihood of mistaken identification in a rape victim's photographic and pretrial courtroom identifications of defendant where the victim positively identified defendant as her assailant; she testified that lights were on in her den, bedroom and hall, and that she got a clear look at defendant's face in all three rooms; her description of defendant on the evening of the crime was similar to his actual appearance; at her initial confrontation of defendant in the district courtroom, she recognized defendant as soon as he walked past her to approach the bench; and the lapse of time between the crime and the initial confrontation was fifteen days. 4. Searches and Seizures 2 — consent to search — burden of proof For a consent search to be valid, the State has the burden of proving that consent was freely and voluntarily given, without coercion, duress or fraud. 5. Searches and Seizures 2 — in-custody consent for search — warning of right to refuse consent Officers are not required to advise a suspect of his right to refuse consent for a search in order to validate either pre-custody or in-custody consent for the search; however, the added factor of custody is a circumstance to be taken into account with all other surrounding circumstances in determining whether consent was freely and voluntarily given in the absence of coercion. 6. Criminal Law 61.2 — shoe prints Evidence of shoe prints leading to or from the scene of the crime and corresponding with those of the accused may be admitted into evidence as tending more or less strongly to connect the accused with the crime. 7. Criminal Law 61.2 — shoe prints — time of impression Testimony that a shoe print lifted from the front porch banister of a rape victim's home corresponded with shoes taken from defendant at the time of his arrest was competent as tending to connect defendant with the rape, although officers admitted on cross-examination that the shoe print could have been made<page_number>Page 288</page_number> a month prior to the crime, since the question whether the shoe print could have been impressed only at the time of the crime was a question of fact for the jury, not a question of law to be determined by the court prior to the admission of the evidence.

1. Criminal Law 5 — defense of insanity — burden of proof on defendant In this jurisdiction insanity is an affirmative defense which must be proved to the satisfaction of the jury by every accused who pleads it, and Mullaney v. Wilbur, <cross_reference>421 U.S. 684</cross_reference>, does not require reallocation of the burden of proof with respect to insanity so that the burden must rest upon the State. 2. Burglary and Unlawful Breakings 6.3; Rape 18 — first degree burglary — underlying felony of assault with intent to rape — instruction proper In a prosecution for first degree burglary, the trial court's instruction that "the choking and kissing and the straddling of a female person by a male person without her consent intending at the time to use whatever force might be necessary to have sexual intercourse with her, notwithstanding resistance she might make" was a correct definition of the offense of assault with intent to commit rape, and the court properly instructed the jury that in order to convict defendant of first degree burglary the State must prove beyond a reasonable doubt that defendant intended, at the time he entered the victim's apartment, to commit an assault with intent to rape.<page_number>Page 337</page_number>

1. Descent and Distribution 1.1 — determination of intestate succession In North Carolina the devolution of property by descent and distribution is entirely within the province of the General Assembly. 2. Descent and Distribution 9 — succession by collateral kinsmen — limitation G.S. <cross_reference>29-15</cross_reference> limits succession of an intestate's estate to collateral kinsmen who are descended from a parent or grandparent of the intestate. 3. Descent and Distribution 9 — succession by collateral kinsmen — prevention of escheat — effect of statute The limitation upon collateral succession to heirs within five degrees of kinship to the intestate contained in G.S. <cross_reference>29-7</cross_reference> is a limitation upon succession by heirs descended from parents or grandparents of the intestate as provided in G.S. <cross_reference>29-15</cross_reference>, and the effect of the proviso of G.S. <cross_reference>29-7</cross_reference> is to provide for unlimited succession by collateral kinsmen descended from the intestate's parents or grandparents in the event there are no collateral kinsmen of the fifth degree in such lines of descent. 4. Escheats — collateral kinsmen — no descendant of intestate's parent or grandparent The estate of an intestate escheated where the intestate was survived only by collateral kinsmen who did not descend from the intestate's parents or grandparents.

Assault and Battery 15.5 — evidence of self-defense — failure to give instruction — error In a prosecution for assault with a deadly weapon with intent to kill, inflicting serious injury, the trial court erred in failing to instruct on self-defense where the State's evidence pointed to defendant as the aggressor, but there was competent evidence which would permit, but not require, the jury to find that defendant did not voluntarily and aggressively enter into an armed confrontation with the victim, but used only such force as was necessary, or appeared to him to be necessary in order to save himself from death or great bodily harm.

1. Executors and Administrators 5 — revocation of letters of administration — to superior court Upon appeal to the superior court from the clerk's revocation of letters of administration, the trial judge may review any of the clerk's findings of fact when the finding is properly challenged by specific exception and may thereupon either affirm, modify or reverse the challenged findings. However, absent exceptions to specific findings of fact, a general exception to the judgment only presents the question of whether facts found support the conclusions of law. 2. Executors and Administrators 8 — collection of estate assets It was the duty of an administrator C.T.A. to collect the assets of the estate and to pay therefrom debts, taxes, and the cost of administration until all were paid or the assets of the estate exhausted. If the assets of the estate were not exhausted, it became his duty to distribute the remaining personalty coming into his hands in accordance with the provisions of the decedent's will. 3. Executors and Administrators 5.5 — removal of administrator C.T.A. — misconduct — letter seeking to collect assets The clerk's determination that an administrator C.T.A. should be removed because he acted in bad faith and was guilty of default or misconduct in the execution of his office was not supported by a letter from the attorney for the administrator C.T.A. to the attorney for the decedent's widow seeking to collect assets of the estate, even though the demands and contentions set forth in the letter may have been overblown and excessive. 4. Executors and Administrators 5.5 — removal of administrator C.T.A. — late filing of accounts A finding that an administrator C.T.A. had not filed his accounting on time did not support the clerk's removal of the administrator for misconduct or bad faith in carrying out his duties where there was no finding that the estate was endangered or any interested party injured by the late filing or that the administrator had failed to comply with orders of the court. 5. Executors and Administrators 5.4 — removal of administrator C.T.A. — joint ownership of devised property The fact that an administrator C.T.A. and decedent's widow owned lands which had been devised to them by decedent's will as tenants in common and the land was subject to lien did not support the clerk's removal of the administrator on the ground that he had a private interest which would hinder his proper administration of the estate.

1. Criminal Law 134.4 — Youthful Offender statutes — mandatory death or life imprisonment crimes The Youthful Offender statutes, former Article 3A of G.S. Ch. 148 and its successor, Article 3B, do not apply to persons convicted of crimes for which death or a life sentence is the mandatory punishment.<page_number>Page 661</page_number> 2. Rape 7 — life sentence substituted for death penalty A sentence of death imposed upon a defendant convicted of first degree rape is vacated and a sentence of life imprisonment is substituted therefor pursuant to the provisions of Ch. 1201, 7, of the Session Laws of 1973. 3. Constitutional Law 48 — failure of original counsel to perfect appeal — absence of prejudice Defendant was not prejudiced by failure of his original court-appointed counsel to perfect his appeal to the Supreme Court within the time allowed therefor where the Court allowed defendant's petition for certiorari filed by his present court-appointed counsel and fully reviewed the case in the same manner and to the same extent as if there had been no failure by the original counsel to perfect the appeal. 4. Criminal Law 91.6 — motion for continuance to obtain additional psychiatric examination The trial court in a rape case did not abuse its discretion in the denial of defendant's motion for a continuance, made when the case was called for trial, so that a second psychiatric examination of defendant could be arranged where there was no indication of any basis for a belief that further psychiatric examination would produce results favorable to defendant. 5. Constitutional Law 48 — effective assistance of counsel — failure to demand voir dire on in-court identification Failure of defense counsel in a rape case to demand a voir dire examination of the victim prior to her in-court identification of defendant did not constitute ineffective assistance of counsel so as to warrant the granting of a new trial to defendant where the record indicates no basis for the belief that a voir dire examination would have tainted the in-court identification; all the evidence shows that the victim was seized on a brightly lighted street and was dragged a short distance into a wooded area which was rather well lighted, there was a full moon, she was in a face to face encounter with her assailant for some 45 minutes, and defendant was found alone at the crime scene some 15 minutes later sitting or lying on the victim's clothing; and nothing in the record suggests that defendant ever told his trial counsel or anyone else that he was not the assailant. 6. Constitutional Law 48 — effective assistance of counsel — reasonable possibility of different result A new trial will not be granted because of the alleged ineffectiveness of court-appointed trial counsel where nothing in the record, brief or oral argument indicated a reasonable possibility that any different, and legitimate, tactic or procedure by such trial counsel would have produced in the trial of this case a verdict more favorable to the defendant. 7. Criminal Law 5 — plea of not guilty — evidence of insanity Evidence of defendant's insanity, if otherwise competent, would have been admissible under defendant's plea of not guilty entered after the court rejected defendant's plea of "not guilty by reason of mental irresponsibility and insanity."<page_number>Page 662</page_number>