Volume 295 — North Carolina Reports

1. Garnishment 1 — military disability pay Payments a retired military officer received from the U.S. on account of disability are not "remuneration for employment" and the U.S. is therefore not subject to state garnishment proceedings on account of such payments under <cross_reference>42 U.S.C. § 659</cross_reference>. 2. Garnishment 1 — military retirement pay Retirement pay of the defendant, a retired military officer, is "remuneration for employment," currently earned, and the defendant has no vested right therein until it is so earned; therefore, it is subject to garnishment proceedings instituted in the courts of N.C. to the extent, and only to the extent, that compensation for services currently rendered to a private employer are so subject. 3. Garnishment 1 — anticipated military retirement pay Nothing else appearing, the anticipated retirement pay, for a future period, of a regular officer, retired from a branch of the military service, is not subject to garnishment but accumulated, unpaid retirement pay for past periods of service is subject to garnishment except as limited by statutes relating to such proceedings.<page_number>Page 169</page_number> 4. Garnishment 1 — military retirement pay — no garnishment for alimony — limited garnishment for child support Defendant's military retirement pay for the 60 day period next preceding the order of garnishment for alimony was exempt therefrom, it plainly appearing from defendant's affidavit that his retirement pay was necessary for the use of "a family supported wholly or partly by his labor, " G.S. <cross_reference>1-362</cross_reference>, nor was defendant's retirement pay earned after the garnishment order subject to garnishment for alimony; however, pursuant to G.S. <cross_reference>110-136</cross_reference>, up to twenty percent of defendant's retirement pay from and after the period beginning 60 days prior to the service of the garnishment order was subject to garnishment for child support.

1. Indictment and Warrant 5 — true bill — foreman's attestation of concurrence by twelve grand jurors — directory provision A bill of indictment was not invalid because it contained no attestation by the foreman of the grand jury that twelve or more grand jurors concurred in the finding of a true bill in compliance with G.S. <cross_reference>15A-644</cross_reference>(5) since the foreman's signature on the indictment attesting that the grand jury found the indictment to be a true bill necessarily attested the concurrence of at least twelve of its members in this finding. 2. Constitutional Law 45; Criminal Law 87; Jury 6 — defendant represented by counsel — no right to question jurors and witnesses personally The trial court did not err in denying defendant's request that he, personally, be permitted to question prospective jurors on voir dire and witnesses at the trial in addition to questions propounded by his counsel, since no one has the right to appear both by himself and by counsel.<page_number>Page 190</page_number> 3. Criminal Law 102 — opening statement in propria persona — defendant represented by counsel The defendant, while retaining the services of his court-appointed counsel, was not entitled to make an opening statement to the jury in propria persona. 4. Constitutional Law 68 — court's refusal to subpoena witnesses The trial court did not err in refusing, after the State had rested, to direct the issuance of subpoenas for persons whom the defendant said he wished to call as witnesses where the court ascertained that the testimony which defendant hoped to elicit from the proposed witnesses would not have been material in the trial of defendant, and no reason was suggested for defendant's failure to subpoena the proposed witnesses prior to the trial. 5. Constitutional Law 68 — refusal to permit defendant to present subpoenaed witnesses — denial of right of confrontation — harmless error The trial court in a prosecution for first degree murder erred in refusing to permit defendant, who waived his right to counsel and appeared in propria persona, to put certain subpoenaed witnesses on the stand after the court determined in the absence of the jury that the testimony of the witnesses would be detrimental to defendant, since the defendant was entitled to use his own judgment as to the wisdom of introducing otherwise competent evidence, and the denial of that right violated defendant's right of confrontation afforded by the Sixth Amendment of the U.S. Constitution and Article I, 23 of the N.C. Constitution. However, such error was harmless beyond a reasonable doubt where the record shows that none of these witnesses would have testified to any matter conceivably beneficial to the defendant. 6. Constitutional Law 45, 49 — defendant's representation of self — written waiver of counsel not required The trial court did not err in permitting defendant to represent himself in his murder trial without executing a written waiver of his right to counsel when, during the trial, defendant informed the court that he wished to discharge his court-appointed counsel and to represent himself, and the court, upon proper inquiry, determined that defendant did desire to represent himself notwithstanding the court's advising him that he would be subject to the same rules of evidence applicable to defendants represented by counsel. 7. Constitutional Law 48 — failure to appoint trial counsel for appeal — motion by defendant The trial court did not err in failing to appoint defendant's court-appointed trial counsel to represent him on appeal where defendant, himself, made a motion at the end of his trial that another lawyer be appointed to represent him on appeal.

1. Homicide 21.7; Rape 5 — defendant's confession — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for murder and rape where it tended to show that the victim's body was found in woods near the motel where she was staying; there were multiple stab wounds in the body and decedent's clothing was in general disarray; medical examination revealed the presence of spermatozoa in the vagina; defendant was employed in the area where the victim worked; on the morning after the crime was committed, defendant told two people that he had engaged in sexual intercourse on the preceding night; and defendant confessed to the rape and murder of the victim. 2. Criminal Law 106.4 — sufficiency of evidence — evidence required in addition to confession A confession will be sufficient to carry the case to the jury when the State offers such extrinsic corroborative evidence as will, when taken in connection with the confession, establish that the crime was committed and that the accused was the perpetrator of the crime. 3. Criminal Law 106.4 — confession — reliability — sufficiency of evidence Defendant's contention that his motion for nonsuit should have been granted because his mental condition and proclivity for telling untruths in order to gain attention and favor made his confessions so unworthy of belief as to be without probative value, and these unreliable confessions were the only evidence indicating that he was the perpetrator of the crimes charged is without merit, since defendant's expert psychiatric evidence did not establish to a certainty that his confessions were false and therefore without probative value; rather, the evidence merely tended to cast some doubt upon the credibility of defendant's confessions.<page_number>Page 245</page_number>

1. Criminal Law 73.1, 75 — hearsay testimony — basis for finding confession voluntary The trial court erred in allowing an FBI agent to testify over defendant's objection concerning a conversation the agent had with one of defendant's attending physicians shortly after the crime occurred, since such testimony was unmistakably hearsay and was the basis for the court's finding that defendant was not under medication or sedation, could be talked to concerning the matters that occurred earlier at the crime scene, and answered the FBI agent's questions knowingly, understandingly and voluntarily. 2. Criminal Law 75.12; Constitutional Law 49 — right to counsel not waived — statements improperly admitted The trial court erred in concluding that defendant waived his right to counsel where defendant specifically refused to sign a waiver, there was no showing of an oral waiver, and a waiver could not be presumed from defendant's silence; therefore, defendant is entitled to a new trial, since his statements were admitted in violation of his constitutional right to have counsel present at his in-custody interrogation, and it cannot be said that there was no reasonable possibility that the evidence obtained at the interrogation contributed to defendant's conviction. 3. Criminal Law 5 — insanity — burden of proof on defendant — test The rule that a defendant pleading insanity has the burden of proving that at the time of the crime he lacked capacity to know the nature and quality of his act or to distinguish between right and wrong in relation to it, the M'Naghten rule, remains the test of criminal responsibility in this State.<page_number>Page 328</page_number> 4. Criminal Law 69 — radio communications — admissibility analogous to telephone conversations Radio communications, by analogy to telephone conversations, are governed by the rules of evidence regulating the admission of oral statements made during a face-to-face transaction, once the identity of the speakers is ascertained. 5. Criminal Law 73.4 — radio transmissions — hearsay testimony — res gestae — transmissions in regular course of business In a prosecution for first degree murder where defendant abducted a Virginia State Trooper at gunpoint and forced the Trooper to carry him in the Trooper's car to Georgia, radio transmissions by the Trooper concerning his predicament and defendant's threats, though hearsay, were properly admitted into evidence, since they were part of the res gestae, and since they were made in the regular course of business and in the midst of the transaction the Trooper was reporting. 6. Criminal Law 73 — double hearsay — admissibility In a prosecution for first degree murder of a Virginia State Trooper whom defendant abducted and forced to drive to Georgia, radio transmissions by the Trooper which reported defendant's threat to kill him if anyone attempted to impede their progress to Georgia, though double hearsay, were admissible in evidence since the Trooper, had he survived, could have testified to defendant's statements because they were competent against defendant as admissions, a statement of his mental condition, or a declaration of intent.

1. Property 1; Fixtures 1 — chattel affixed to another's realty — agreement that it remain the personal property of owner — subsequent purchasers An understanding between the owner of a chattel who affixes it to the land of another and the owner of the land to which it is affixed that the chattel shall remain the personal property of its original owner is binding on subsequent purchasers of the land who take with notice, actual or constructive, of the understanding. 2. Property 1; Fixtures 1 — chattel affixed to another's realty — oral agreements as to ownership An agreement between the owner of a chattel and the owner of the realty upon which the chattel is affixed that the chattel shall remain the personal property of the original owner need not be in writing and may be either express or implied. 3. Property 1; Fixtures 1 — gasoline dispensing equipment — personalty of original owner In an action to recover damages for conversion of gasoline dispensing equipment placed by plaintiff on realty which was owned by another and subsequently purchased by defendants, plaintiff's evidence was sufficient to permit the jury to find that the equipment was personal property belonging to the plaintiff where it tended to show (1) an agreement between plaintiff and<page_number>Page 418</page_number> the owner of the realty at the time of installation that the equipment, even if affixed to the realty, was to remain the personal property of plaintiff, and (2) defendants had knowledge of such agreement at the time they purchased the realty.

1. Criminal Law 21.1 — preliminary hearing — purpose Discovery is not the purpose of a probable cause hearing, though such hearing may provide defendant an opportunity to discover the strengths and weaknesses of the State's case; rather, the function of a probable cause hearing is to determine whether there is probable cause to believe that a crime has been committed and that defendant committed it. G.S. <cross_reference>15A-611</cross_reference>(b). 2. Criminal Law 21.1 — no preliminary hearing — no grounds for dismissal The trial judge correctly denied defendant's motion to dismiss made on the ground that he was denied a preliminary hearing, since probable cause that a crime was committed and that defendant committed it was twice established, once by the magistrate issuing the arrest warrants, and again by the grand jury which returned indictments against defendant; and defendant failed to carry the burden of showing a reasonable possibility that a different result would have been reached in this trial had he been given a preliminary hearing. G.S. <cross_reference>15A-1443</cross_reference>. 3. Constitutional Law 50 — speedy trial — relevant factors Factors to be considered in deciding whether a defendant has been denied his right to a speedy trial are the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to defendant resulting from the delay. 4. Constitutional Law 51 — five months between arrest and trial — no denial of speedy trial Defendant was not prejudiced by a five month delay between his arrest and trial, since such delay was not so inordinately long as to give rise to a presumption that the State was guilty of bad faith and deliberate efforts to hamper defendant's defense; defendant failed to file a petition for speedy trial until eleven weeks after he could have done so; defendant presented no evidence that the delay of his trial caused him to lose possible witnesses or resulted in the loss of material information; and there was no evidence to show that the delay was due to the neglect or wilfulness of the prosecution or resulted from arbitrary or oppressive action on the part of the prosecution.<page_number>Page 428</page_number> 5. Criminal Law 66 — in-court identification excluded — testimony as to skin color admissible Where the trial court conducted a voir dire hearing and excluded in-court identification testimony offered through a particular witness, it was not error for the court subsequently to permit the witness to testify as to the color of the skin of the man the witness saw fleeing from the crime scene. 6. Criminal Law 99.6 — trial court's questioning of witnesses — no expression of opinion The trial court did not express an opinion in violation of G.S. <cross_reference>1-180</cross_reference> by asking the State's witness a number of questions since the questions either requested the witness to repeat a portion of his testimony or sought affirmation by the witness of the court's understanding of the witness's answer, and the trial judge could not hear the witness's answers and asked the questions in order that the court and jury might better understand the witness's testimony. 7. Criminal Law 102.6 — district attorney's jury argument — no impropriety Comments by the district attorney in his jury argument with respect to the character of defendant's witnesses and defendant and with respect to ownership of a gun not introduced into evidence were based upon the evidence presented and were within the recognized bounds of propriety.

1. Criminal Law 53 — expert medical testimony — test for admissibility In determining whether expert medical opinion is to be admitted into evidence, the inquiry should not be whether it invades the province of the jury, but whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact. 2. Criminal Law 53.1 — expert medical testimony — battered child syndrome In this prosecution for the second degree murder of a two-year-old child, the trial court properly allowed a pediatrician to state his opinion that bruises on the child's chest did not form the typical bruising pattern normally sustained by children in day to day activities based on the pediatrician's observation of lesions and bruises about children which had occurred in the normal course of events. Furthermore, the court properly permitted a pathologist to give his opinion that the child was a "battered child," to explain that term, and to give his opinion that the "battered child syndrome" usually results from the use of excessive force in a disciplinary situation by a parent, guardian or other custodian of the child where the pathologist's testimony was based on his experience and his knowledge of the subject as contained in medical literature. 3. Criminal Law 85.2 — character witness — cross-examination — specific acts of misconduct by defendant The trial court in a homicide case erred in permitting the prosecuting attorney to cross-examine defendant's mother, who testified as a character witness for defendant, as to whether defendant had previously participated in two gang shootings, since a character witness may not be cross-examined as to<page_number>Page 560</page_number> specific acts of misconduct on the part of the defendant. However, defendant was not prejudiced by such error where the witness, while admitting some knowledge of the incidents, denied defendant's involvement therein and offered a plausible exculpatory explanation of the misconduct suggested by the prosecutor's questions, and where there was plenary evidence in the case strongly suggesting defendant's guilt. 4. Criminal Law 99.2 — manner of submitting verdicts — no expression of opinion The trial judge did not improperly convey his opinion to the jury that defendant had to be guilty of something by the manner in which he submitted to the jury the alternative verdicts of murder in the second degree, voluntary manslaughter, involuntary manslaughter, and not guilty. 5. Homicide 5 — second degree murder — intent to kill — malice While an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death. 6. Homicide 5 — second degree murder — malice Statements in prior cases that "an intent to inflict a wound which produces a homicide is an essential element of murder in the second degree" and that "second-degree murder imports a specific intent to do an unlawful act" are not universally applicable. It is more fundamentally sound to say that any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there be no intention to injure a particular person, is sufficient to supply the malice necessary for second degree murder. 7. Homicide 26 — second degree murder — no intentional act — erroneous instruction — harmless error In a prosecution for the second degree murder of defendant's two-year-old child, the jury could not have been misled to defendant's prejudice by the trial court's erroneous instruction that second degree murder could exist "where there is no intentional act" where, considered in context, it appears that the court used this phrase in the sense of a specific intent to kill; the court correctly charged the jury on the necessity to find that the acts committed by defendant against the child were intentional; and the court further correctly charged the jury that in order to return a verdict of guilty of second degree murder, it had to find "an act of culpable negligence which causes danger to another and the act is so recklessly or wantonly done as to indicate a total disregard for human life." 8. Homicide 5, 21.7 — second degree murder — malice — disregard for human life An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder. 9. Homicide 5, 6.1 — culpable negligence — second degree murder — involuntary manslaughter An act of culpable negligence, standing alone, will support at most a conviction of involuntary manslaughter, but when an act of culpable negligence also imports danger to another and is done so<page_number>Page 561</page_number> recklessly or wantonly as to manifest depravity of mind and disregard for human life, it will support a conviction of second degree murder. 10. Homicide 6.1 — involuntary manslaughter — intentional act While involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is accomplished by means of some intentional act. 11. Homicide 6.1, 27.2 — involuntary manslaughter — violation of child abuse statute An intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. Therefore, the trial court properly instructed the jury that defendant could be found guilty of involuntary manslaughter of his two-year-old child if the child's death resulted from defendant's intentional infliction of injuries on the child in violation of provisions of the child abuse statute, G.S. <cross_reference>14-318.2</cross_reference>. 12. Homicide 27.1 — voluntary manslaughter — intentional assault — erroneous instruction The trial court erred in instructing the jury that defendant would be guilty of voluntary manslaughter if he intentionally assaulted the two-year-old victim "with his hands, fists or feet, but you do not find beyond a reasonable doubt that the force he used was . . . likely to cause death . . . but that death did occur as the direct result of the use of that force," since such a state of facts would render defendant guilty at most of involuntary manslaughter. 13. Homicide 32.1 — submission of voluntary manslaughter — error cured by verdict In this prosecution for the second degree murder of defendant's two-year-old child, the trial court erred in instructing the jury on voluntary manslaughter where there was no evidence that defendant killed under the heat of passion raised by sudden provocation and no evidence of self-defense. However, defendant was not prejudiced by the erroneous submission of voluntary manslaughter since he was convicted of second degree murder.

1. Criminal Law 75.13 — conversation between defendant and his uncles at sheriff's office — no custodial interrogation — admission of statements not prejudicial error A conversation between defendant and his uncles at the sheriff's office which resulted in defendant's assistance in finding the murder weapon did not constitute a "custodial interrogation" so as to require the Miranda warnings, and the weapon and evidence of its location were properly admitted in defendant's murder trial even though defendant had not been given the Miranda warnings, where the conversation occurred with the permission of the police but there was no questioning initiated by the police, and there was no evidence that defendant's uncles were acting as agents of the police when they talked to defendant about the murder weapon. Furthermore, the admission of evidence of defendant's assistance in finding the weapon did not negate defendant's defense of insanity where the record shows that defendant had great difficulty directing officers to the area where he left the weapon, and the admission of such evidence was not prejudicial to defendant in light of the overwhelming evidence of defendant's guilt of the crime charged. 2. Homicide 30.2 — first degree murder trial — failure to submit manslaughter In this prosecution for the first degree murder of defendant's father, the trial court did not err in failing to submit voluntary manslaughter as a possible verdict where the State's evidence tended to show that defendant saw his father sitting in a chair in the living room of his home, that defendant obtained a gun from his car, loaded it and returned to the carport door which led to the living room and shot his father, and that there had been no trouble between defendant and his father on the day of the shooting, and where defendant offered no evidence to rebut the State's evidence as to the nature of the crime but offered evidence tending to support only his plea of not guilty by reason of insanity. 3. Criminal Law 122.2 — urging verdict before evening is over — no coercion of verdict The trial judge did not improperly coerce a verdict in this first degree murder case when he stated to the jury that the following day was Thanksgiving and that "If at all possible I would like to, in consideration of all concerned, have you reach a verdict before the evening is over, if you can," where the judge was careful to point out that he was not "attempting to rush you in any way or to try to dictate to you what you should or should not do." 4. Criminal Law 122.2 — urging jury to resolve differences — no coercion of verdict The trial judge did not improperly coerce a verdict by his instruction, "If at all possible, you should resolve any differences and come to a common<page_number>Page 609</page_number> conclusion so that this case may be completed," where the judge also emphasized that he was not endeavoring to inject his ideas into the minds of the jurors and stated that no jurors "should surrender their honest convictions."