Volume 294 — North Carolina Reports

1. Criminal Law 73.4 — spontaneous utterance — admissibility In a prosecution for first degree murder, the trial court did not err in admitting into evidence deceased's spontaneous statement to a witness who questioned him that he had been shot by "Greg," since only thirty-five seconds elapsed between the witness's hearing of the shots and deceased's statement; deceased's wounds were severe and he rapidly lost consciousness; and the witness's questioning of deceased as to who shot him did not negate the spontaneity of deceased's statement. 2. Homicide 15 — hearsay statement attributed to three-year-old child — admission harmless error Error in admitting a hearsay statement attributed to a three-year-old child identifying defendant as deceased's assailant was not prejudicial in light of other evidence which tended to show that defendant and deceased had fought on two or three occasions, including<page_number>Page 289</page_number> the night before the shooting; the deceased, in his last conscious moment, identified "Greg" as his assailant; shortly after the incident, defendant telephoned deceased's girl friend and asked if he had hurt the three-year-old child in question; during this phone conversation, defendant said that he did not care if deceased died because he had plenty of alibis; and defendant left town three or four days after the shooting and had to be extradited from New York over three years later. 3. Homicide 21.5 — first degree murder — intentional use of deadly weapon — sufficiency of evidence In a prosecution for first degree murder where the evidence tended to show that only three shots were fired, three wounds were found in deceased's body, and the third shot was fired after the deceased had backed away from the car carrying defendant, put down the child he was holding, and turned to walk away, there was ample evidence from which the jury could conclude that the use of the deadly weapon was intentional. 4. Homicide 21.5 — first degree murder — premeditation and deliberation — sufficiency of evidence Evidence was sufficient to permit the jury to infer that defendant, after premeditation and deliberation, formed a fixed purpose to kill the deceased and subsequently carried out that purpose where the evidence tended to show that, while defendant and deceased had fought the night before, at the time of the shooting deceased was standing in a place where he had a right to be and offered no provocation for defendant's acts; defendant later said that he did not care if deceased died because he had plenty of alibis; although the deceased had not been felled, he was shot once by defendant after he had retreated from the side of defendant's car and apparently was trying to walk away; and deceased was shot twice while he was defenseless, holding a small child in his arms. 5. Criminal Law 112.4 — circumstantial evidence — charge on degree of proof A general and correct charge as to the intensity or quantum of proof when the State relies wholly or partly on circumstantial evidence is adequate unless the defendant tenders request for a charge on the intensity of proof required for such evidence.

1. Criminal Law 102.12 — right to inform jury of punishment for offense G.S. <cross_reference>84-14</cross_reference> secures to counsel the right to inform the jury of the punishment prescribed for the offense for which defendant is being tried, and counsel may exercise this right by reading the punishment provisions of the statute to the jury. 2. Criminal Law 102.12 — denial of right to inform jury of punishment for offenses — prejudicial error The trial court in a second degree murder case erred in denying defense counsel the right to inform the jury of the punishment prescribed by law for second degree murder, voluntary manslaughter and involuntary manslaughter, and the denial of the right to inform the jury of the punishment provisions of G.S. <cross_reference>14-18</cross_reference> for voluntary and involuntary manslaughter was prejudicial to defendant where the jury convicted defendant of voluntary manslaughter, the evidence of defendant's guilt was not overwhelming and there was significant evidence to the contrary, and counsel could not document the seriousness of voluntary manslaughter as compared to involuntary manslaughter and was thus hampered in shaping his argument to persuade the jury, if he could, that defendant should be acquitted on the ground of self-defense or, at most, convicted only of involuntary manslaughter.

1. Criminal Law 73.4 — victim's statement — spontaneous declaration — res gestae In this prosecution for felonious assault, the victim's testimony that he had told his wife and his neighbor, "That's Bill Chapman. He's going to kill us," was competent both as a spontaneous declaration and as a part of the res gestae. 2. Criminal Law 169.3 — admission of testimony — error cured by similar testimony admitted without objection In this prosecution for felonious assault, any error in the admission of the victim's testimony that defendant's wife told him defendant was "on the way up here to kill you" was cured when another witness thereafter, without objection, repeated the testimony ipsissimis verbis. 3. Criminal Law 73.1 — exclusion of hearsay — no effect on other rulings permitting hearsay The trial court's proper exclusion of incompetent hearsay upon the State's objection did not render prejudicial the harmless error of other rulings permitting the victim to repeat hearsay statements made by his wife.<page_number>Page 408</page_number> 4. Criminal Law 99.4, 162.7 — failure to rule on objections — harmless error The trial judge's failure to rule on six of the objections made by defendant during the trial was not only error but was also an abdication of the judicial function. However, such error was harmless where the judge's conduct of the trial and his various rulings did not amount singly or in combination to an expression of opinion as to defendant's guilt, and there is no possibility that the judge's failure to rule on the objections influenced the verdict. 5. Criminal Law 169.6 — refusal to permit excluded testimony to be placed in record — harmless error Ordinarily, a counsel should be allowed to insert in the record the answer to a question to which objection has been sustained. However, where the witness has already answered the question sufficiently to demonstrate the immateriality of the inquiry, the judge's refusal to allow the preservation of the answer will not be held prejudicial error. 6. Criminal Law 169.6 — refusal to permit excluded testimony to be placed in record A judge should be loath to deny an attorney his right to have the record show the answer a witness would have made when an objection to the question is sustained since, in refusing such a request, the judge incurs the risk (1) that the Appellate Division may not concur in his judgment that the answer would have been immaterial or was already sufficiently disclosed by the record, and (2) that he may leave with the bench and bar the impression that he acted arbitrarily. 7. Criminal Law 86.5 — cross-examination of defendant — prior acts of misconduct It was not error for the private prosecutor to ask defendant on cross-examination (1) whether he had stolen some angle irons which he admitted had come from his employer's premises but contended it was immaterial that he didn't pay for them and (2) whether, after having had trouble with some blacks at a beer joint, he had gone home, procured his gun, and come back for them. 8. Criminal Law 85.2 — cross-examination of character witnesses — specific acts of misconduct In this prosecution for felonious assault, the trial court erred in permitting the prosecutor to ask defendant's character witnesses if they were aware that defendant on another occasion "got his gun and went after some black people in Charlotte," since a character witness may not be cross-examined as to specific acts of misconduct by defendant. However, such error was harmless where defendant stands guilty of felonious assault by his own testimony at the trial. 9. Criminal Law 128.1 — when mistrial is appropriate A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law.<page_number>Page 409</page_number> 10. Criminal Law 100 — private prosecutor — duty of prosecutor to remain in charge of case It is a permissible practice for private prosecution, with the consent of the district attorney and the court, to assist the State in a prosecution, but in the absence of special circumstances, the law contemplates and public policy requires that the district attorney shall remain in charge of the prosecution.

1. Criminal Law 43.1 — photograph of defendant — admissibility for illustrative purposes The trial court did not err in allowing into evidence a photograph of defendant taken by the police during the process of booking the defendant following his arrest since the victims of the crimes charged and a police officer used the photograph to illustrate their testimony, and the judge instructed the jury to consider the photograph for the purpose of illustrating testimony. 2. Criminal Law 43.1 — police photographs of defendant — admissibility In a prosecution for kidnapping and crime against nature, the trial court did not err in allowing into evidence photographs of defendant and four other people to show the exact set of photographs from which the two victims made their pre-arrest identification of their assailant; moreover, defendant was not prejudiced by introduction of the photographs of himself, taken from a front and a side view, though there was little likelihood that the jury would fail to conclude that the photographs had been taken from police files and thus that defendant had a prior criminal record, since defendant himself, by his previous cross-examination of the State's witnesses, brought into question, before the jury, the propriety of the pre-arrest identification procedures, and it was therefore proper to permit the State to show the jury the photographs used in that process. 3. Criminal Law 99 — impartiality of judge required G.S. <cross_reference>1-180</cross_reference> imposes upon the trial judge the duty of absolute impartiality and prohibits the expression by him of any opinion, express or implied, as to the credibility of any of the evidence or as to the weight to be given it. 4. Criminal Law 122.1 — jury's request for instructions — no expression of opinion by trial court The trial court did not improperly express an opinion with respect to defendant's alibi evidence where the jury requested that the testimony of two of defendant's alibi witnesses be read back to it, but the judge denied the request, saying, "I am not going to be able to allow the testimony of these various witnesses to be read back to you, for if you emphasize certain portions of it out of context it might tend to exaggerate it." 5. Kidnapping 1.1; Criminal Law 80 — motel registration card — admission harmless error In a prosecution for kidnapping and crime against nature which occurred at a motel where the victims were staying, the trial court erred in allowing into evidence a motel registration card purporting to show that a man named David L. Fulcher had registered at the motel and occupied a certain room on the day of the offense with which defendant was charged, since the motel manager, who testified concerning the completion, signing and keeping of registration cards,<page_number>Page 504</page_number> did not purport to identify defendant as the man who signed the card in question; however, in view of the positive, in-court identification of the defendant by the two victims and the other evidence strongly corroborating their identification of him, the error in admission of the registration card must be deemed harmless beyond a reasonable doubt. 6. Criminal Law 83; Kidnapping 1.1 — tape restraining kidnap victims — admissibility of roll of tape In a prosecution for kidnapping and crime against nature where defendant bound his victims with gray, metallic colored tape, the trial court did not err in allowing defendant's brother-in-law to testify that on the day after the crimes in question were committed he observed a roll of gray, metallic colored tape fall out of defendant's car while defendant's wife was removing her possessions from the car, since the relevance of the tape to the issue of the identification of the defendant as the assailant of the two women was obvious, and since the admission into evidence of the tape did not violate G.S. <cross_reference>8-57</cross_reference> because that statute is applicable only to the spouse of a defendant and the defendant's wife's involvement in discovery of the tape did not amount to a declaration by the wife. 7. Statutes 5 — construction — statutory question avoided If a statute is reasonably susceptible of two constructions, one of which will raise a serious question as to its constitutionality and the other will avoid such questions, the courts should construe the statute so as to avoid the constitutional question. 8. Statutes 5.1 — construction — legislative intent controlling The cardinal principle of statutory construction is that the intent of the Legislature is controlling. 9. Kidnapping 1 — asportation not required — substantiality of time and distance not required The offense of kidnapping does not require any asportation whatever where there is the requisite confinement or restraint; moreover, where the State relies upon asportation of the victim to establish a kidnapping, it is not required that the asportation be for a substantial distance, and where the State relies upon confinement or restraint, it is not required that such continue for some appreciable period of time. Hence, the Court of Appeals erred in its holding that "substantiality" in terms of distance or time is an essential of kidnapping and its pronouncements as to proper jury instructions thereon. G.S. <cross_reference>14-39</cross_reference>. 10. Kidnapping 1 — confine and restrain defined As used in G.S. <cross_reference>14-39</cross_reference>, the term "confine" connotes some form of imprisonment within a given area, while the term "restrain," though broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without a confinement.<page_number>Page 505</page_number> 11. Kidnapping 1 — restraint to facilitate commission of other felony — when kidnapping conviction is proper G.S. <cross_reference>14-39</cross_reference> was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of another felony such as forcible rape or armed robbery, also kidnapping so as to permit the conviction and punishment of defendant for both crimes; however, there is no constitutional barrier to the conviction of a defendant for kidnapping, by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the other felony. 12. Criminal Law 26.5; Kidnapping 1 — kidnapping and crime against nature — binding up of victims — kidnapping separate offense — no double jeopardy There was no violation of the constitutional provision against double jeopardy in the conviction and punishment of defendant for two crimes against nature and two crimes of kidnapping where the evidence tended to show that defendant bound the hands of each of two women, procuring their submission thereto by his threat to use a deadly weapon to inflict serious injury upon them, thus restraining each woman within the meaning of G.S. <cross_reference>14-39</cross_reference>, that his purpose in so doing was to facilitate the commission of the felony of crimes against nature, and that defendant did in fact commit the crime against nature upon each of the women.

1. Physicians, Surgeons, and Allied Professions 6.1 — hearing to revoke medical license — procedural due process Respondent was not denied procedural due process in a hearing to revoke his license to practice medicine where he was notified in writing of the charges against him, was given ample time in which to prepare his defense, was present in person and represented by able counsel of his choice at the hearing, was confronted by his accusers, was given ample opportunity to cross-examine them and testified in his own behalf. 2. Physicians, Surgeons, and Allied Professions 6 — drug prescriptions not for legitimate medical purpose — vague-overbroad challenge to statute and order Since charges brought against a physician for prescribing controlled substances outside the course of the legitimate practice of medicine and not for any legitimate medical purpose have no relation to any of the freedoms protected by the First Amendment of the Constitution, the physician's "vague-overbroad" challenge to the statute under which the Board of Medical Examiners acted and a prior order of the Board suspending the revocation of his license is not to be weighed in the delicate scales used in cases where First Amendment freedoms are at stake. 3. Physicians, Surgeons, and Allied Professions 6 — revocation of medical license — statute and suspension of revocation — test for vagueness and overbreadth In the application of a statute authorizing the revocation of a license to practice medicine or any order suspending the revocation of such license to subsequent medical practice by a licensee, not involving his First Amendment freedoms, the facts of the case must determine the decision of the courts as to vagueness and over-breadth, and the test is whether a reasonably intelligent member of the profession would understand that the conduct in question is forbidden. 4. Physicians, Surgeons, and Allied Professions 6 — revocation of medical license — constitutionality of statute and order suspending revocation A statute authorizing the revocation of a physician's license to practice medicine for "unprofessional or dishonorable conduct unworthy of, and affecting, the practice of his profession," former G.S. <cross_reference>90-14</cross_reference>, and an order of the Board of Medical Examiners suspending the revocation of a medical license upon the condition that the physician "conduct his practice of medicine in accordance with proper professional and ethical standards" are not unconstitutionally vague and overbroad when applied to the actions of a physician in prescribing highly dangerous controlled substances for complete strangers without making any examination of such patients or any inquiry as to their medical history or current symptoms and complaints, since it is obvious that any reasonably intelligent<page_number>Page 529</page_number> physician would know that such actions would constitute a violation of the statute and order. 5. Physicians, Surgeons, and Allied Professions 6 — authority to suspend revocation of medical license The Board of Medical Examiners had authority to suspend its order of revocation of a physician's license upon the condition that the physician "not violate a State or Federal law." 6. Physicians, Surgeons, and Allied Professions 6.2 — proceeding to revoke medical license — breach of N.C. law — quantum of proof Since a proceeding before the Board of Medical Examiners for the revocation of a physician's license on the ground that he has breached a condition of a prior, suspended order of revocation that he not violate a State or Federal law is a civil proceeding, such breach of the condition of suspension does not have to be shown beyond a reasonable doubt, but only by a preponderance of the evidence. Therefore, the Board of Medical Examiners could properly find that a physician violated the laws of N.C. by writing prescriptions for controlled substances outside the course of professional practice and not for a legitimate medical purpose, although criminal charges against the physician based on such prescriptions were dropped when his trial ended in a mistrial. 7. Physicians, Surgeons, and Allied Professions 6.2 — revocation of medical license — prescriptions for drugs not for legitimate medical purpose — sufficiency of evidence, findings, conclusions Evidence before the Board of Medical Examiners supported the Board's findings that respondent physician in six instances prescribed the controlled substances Didrex, Desoxyn or Butacaps for complete strangers "without determining whether or not such drugs were necessary for the treatment of any ailment or disease and not for any legitimate medical purpose and not in the course of the legitimate practice of medicine," such findings supported the Board's conclusions that such conduct constituted a violation of the laws of North Carolina, constituted dishonorable and unprofessional conduct affecting the practice of medicine, and constituted a violation of a condition of the suspension of a prior revocation of respondent's license, because of a felony conviction, that he violate no State or Federal law, and such conclusions supported the order of the Board revoking respondent's license to practice medicine in North Carolina. <block_quote> 8. Physicians, Surgeons, and Allied Professions 7 — revocation of medical license — absence of racial discrimination — denial of motion for remand The superior court did not err in the denial of respondent physician's motion to remand a license revocation proceeding to the Board of Medical Examiners for further proceedings on the ground that the Board's revocation of respondent's license to practice medicine was racially motivated where respondent made no preliminary showing of any basis for his accusation of racial discrimination, and the record clearly shows that the revocation of respondent's license was not due to prejudice against members of his race.</block_quote><page_number>Page 530</page_number>

1. Laborers' and Materialmen's Liens 1 — lien effective from date of surveying work A contractor's lien for the construction of a motel, arising under Article 2, Part 1, N.C. G.S. <cross_reference>44A-7</cross_reference> through -13, prior to its 1975 Amendment, related back and took effect from the date of the furnishing of services for the partial clearing and the on-site surveying and staking of the boundary lines of the building to be constructed by the contractor. 2. Laborers' and Materialmen's Liens 1 — surveying and staking lines of building — "labor" subject to lien The partial clearing, surveying and staking of the lines of a building prior to its construction was "labor" under G.S. <cross_reference>44A-8</cross_reference> and thus was subject to a laborers' and materialmen's lien, and defendants' contention that "labor" in the statute must be construed to read "manual, unskilled work of an inferior and toilsome nature" is unacceptable, since the Supreme Court has previously defined a mechanic or laborer as "a person skilled in the practical use of tools; a workman who shapes and applies material in the building of houses or other structures mentioned in the law . . ."; the definition urged by defendants would eliminate from the scope of the statute much skilled construction work clearly intended by the 1969 enactment of G.S. <cross_reference>44A-8</cross_reference> to be within its range; and if defendants' definition of labor were accepted, an impermissible burden would be placed on the contractor to keep separate records regarding that work which is "labor" and that work which is not. 3. Laborers' and Materialmen's Liens 1 — lien for surveying work — improvement of realty G.S. <cross_reference>44A-10</cross_reference>, the accrual statute for laborers' and materialmen's liens, implies that there be a visible commencement of the improvement in question, and the partial clearing of the site and the staking of the outlines of the building constitute a visible commencement of an improvement sufficient to put a prudent man on notice that a possible improvement is underway and that the property might be subject<page_number>Page 662</page_number> to a lien under G.S. <cross_reference>44A-8</cross_reference>; therefore, plaintiff had a lien under G.S. <cross_reference>44A-8</cross_reference> for the balance due under its contract with defendant Spanish Inns for the construction of a motel, and the clearing and staking of building lines constituted the "first furnishing of labor . . . at the site," so that plaintiff's lien related back to and took effect from the date this labor was first performed. 4. Arbitration and Award 7 — persons not parties in arbitration proceedings — award binding Defendants were bound by an arbitration award fixing the amount of plaintiff contractor's laborers' and materialmen's lien on defendant owner's motel, though defendants were not parties to the arbitration proceedings and the earlier civil action by plaintiff for the confirmation of the arbitration award, since defendants did have an opportunity to be heard in the present civil action to enforce the lien. 5. Rules of Civil Procedure 56.2 — summary judgment — burden of proof The moving party has the burden of establishing that no genuine issue as to any material fact exists, and summary judgment may be granted for a party with the burden of proof on the basis of his own affidavits and other documents submitted (1) when there are only latent doubts as to an affiant's credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize Rule 56(f); and (3) when summary judgment is otherwise appropriate. 6. Rules of Civil Procedure 56.3 — damages claim — when summary judgment is appropriate Summary judgment on a claim of damages is appropriate where the moving party sufficiently establishes by competent documents that a liquidated amount is owing him, and the opposing party fails to show facts which dispute that evidence. 7. Laborers' and Materialmen's Liens 8.1 — motel builder — lien on property prior to construction lender's deed of trust — amount of lien — summary judgment proper Plaintiff was entitled to summary judgment in an action to have an arbitration award declared to be a specific lien on real property formerly belonging to defendant Spanish Inns superior to the deed of trust held by the construction lender where plaintiff, in support of its summary judgment motion, submitted affidavits and certified documents showing that it had duly perfected a lien on the property in question; this lien should relate back to the date of the first furnishing of labor, which occurred seven days before the construction loan deed of trust was recorded; the amount owing under the terms of the parties' contract was $195,936; defendants failed to controvert the above evidence or to show facts indicating that the alleged sum was not owing under the contract; and defendants did not indicate to the trial judge in any manner, pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 56(f), that they could not make a sufficient response to plaintiff's motion and supporting evidence of the amount of its claim.<page_number>Page 663</page_number>

1. Arson 2; Criminal Law 10.1 — accessory before the fact to arson — sufficiency of indictment In a prosecution for accessory before the fact to arson, the trial court did not err in denying defendant's motion in arrest of judgment made on the ground that the bill of indictment failed to charge an essential element of the common law crime of arson, to wit, that the burning was done maliciously, since maliciousness is not an element of the crime of accessory before the fact and it was therefore not necessary to allege it in the indictment. 2. Criminal Law 113.1 — jury instructions — "the evidence shows" — no error In a prosecution for accessory before the fact to arson, the trial court did not err in instructing the jury that "the evidence shows that Jackie Lee Parker was an accomplice," since the trial judge was careful to leave conclusions regarding the credibility of the evidence to the jury, and the judge did not lessen the State's burden of establishing beyond a reasonable doubt every element of the crime. 3. Criminal Law 117.4 — principal called accomplice by court — instruction to scrutinize testimony — no error Though a person named by the trial judge as an accomplice was in fact the principal perpetrator of the offense of arson to which defendant was allegedly an accessory, the court's error, if any, was harmless, for the instructions showed that the intent of the judge's charge was to inform the jury that the person named had an interest in the outcome of the case and to urge them to examine and scrutinize the content of his testimony.

1. Criminal Law 113.1 — inaccuracy in recapitulating evidence — necessity for objection at trial An inaccuracy in the court's recapitulation of the testimony of a witness will not be considered on appeal where it was not called to the attention of the court before the jury retired so as to afford the court an opportunity to make a correction. 2. Criminal Law 75, 75.11 — in-custody statements — waiver of counsel — statement not incriminating per se The evidence on voir dire supported the court's finding that defendant voluntarily and knowingly waived his right to counsel before making an in-custody statement to an officer, and the fact that defendant changed his mind during the interrogation and requested counsel, at which time the interrogation ceased and counsel was appointed, does not show that the waiver was not freely and voluntarily given. Furthermore, the admission of the statement was not erroneous in any event since it was not incriminating per se but could only have prejudiced defendant through its inherent implausibility. 3. Criminal Law 5 — insanity — constitutionality of M'Naghten Rule The established test of insanity as a defense to a criminal charge under the law of this State, known as the M'Naghten Rule, does not violate the due process clause of the Fourteenth Amendment to the U.S. Constitution. 4. Criminal Law 5, 112.6 — defense of insanity — burden of proof — instructions The trial judge properly placed upon the defendant the burden of proof on the question of his insanity.