Volume 297 — North Carolina Reports

Seals 1 — intent to adopt seal — unambiguous instrument — parol evidence not allowed A signatory to an instrument may not introduce parol testimony that he did not intend to adopt a seal printed on the instrument as his own where there is no ambiguity on the face of the instrument as to the adoption of the seal.<page_number>Page 37</page_number>

1. Criminal Law 92.5 — outbursts by one defendant — severance properly denied The trial court did not err in denying the motion for severance made by two defendants on the ground that outbursts by a third defendant deprived them of a fair and impartial trial, since the trial judge, when possible, immediately removed the jury from the courtroom when an outburst occurred and admonished the jury not to deliberate on the incident; when it became apparent that defendant would continue to disrupt the proceedings despite the court's warnings, he was removed from the courtroom; at that time the court told the jury to disregard the whole matter, and they unanimously indicated that they could do so; and in his final charge to the jury the judge instructed them not to allow defendant's behavior to influence their decision in any way. 2. Criminal Law 92.5 — reference to unrelated crime by defendant — severance properly denied Contention by one defendant that his motion to sever should have been allowed because evidence of an unrelated crime committed by him was brought out was without merit, since the evidence in question was one brief reference to defendant's arrest for an undisclosed crime, and the trial court sustained defendant's objection, struck the evidence, and immediately instructed the jury to disregard it; furthermore, the jury could well have assumed that the arrest referred to was for the crime for which defendant was being tried. 3. Criminal Law 101 — defendant's statement in jury's hearing — individual polling not required Where one defendant stated to another defendant, "Pete, I believe we have got it won" as court was opening one morning, the trial court did all that was required by asking the jury if anyone had heard a statement made by defendant that morning; after three jurors stated that they had, the court told them all to disregard totally any remark in their consideration of the case; all the jurors then affirmatively indicated by raising their hands that they could follow the court's instructions; and the court correctly refrained from having defendant's statement repeated in front of the whole jury, the majority of whom did not hear it, asking each juror individually what he heard, and polling the jurors separately as to any prejudicial effect the statement may have had. 4. Constitutional Law 52 — five years between offenses and trial — no prejudice shown — no denial of speedy trial Defendant was not denied his right to a speedy trial by the more than five year delay between the commission of the crimes charged and the date the indictments were returned, since defendant failed to show any actual prejudice resulting from the delay.<page_number>Page 70</page_number> 5. Constitutional Law 45 — right to appear pro se — right not asserted unequivocally Where the indigent defendant who had counsel appointed for him repeatedly stated that he wanted different counsel, on one occasion stated that he wanted to represent himself, later apparently acquiesced in appointed counsel, and subsequently behaved at trial in a manner which would have required termination of his self-representation, defendant did not clearly and unequivocally assert his desire to conduct a pro se defense, and the court therefore did not err in denying his request to represent himself at trial without questioning defendant at the time he made his vague request. 6. Criminal Law 29 — mental capacity questioned during trial — no right to psychiatric examination The trial court did not err in failing to have defendant examined by a psychiatrist when his capacity to proceed was raised by him at trial since examination by a medical expert is a discretionary matter, and the court did not abuse its discretion in this case.

1. Criminal Law 15.1 — pretrial publicity — change of venue properly denied The trial court did not err in denying defendant's motion for change of venue made on the ground that prejudicial publicity prevented his getting a fair trial, since minor bits of information contained in issues of the newspaper appearing over a period of four months that did not properly get to the jury as evidence at trial were not sufficiently prejudicial to entitle defendant to removal to another county for trial. 2. Kidnapping 1; Indictment and Warrant 17.1 — purpose of kidnapping — variance between indictment and proof Where the indictment charged that defendant kidnapped the victim for the purpose of facilitating flight following<page_number>Page 101</page_number> commission of the felony of rape but the evidence tended to show that defendant kidnapped the victim for the purpose of facilitating the commission of the felony of rape, there was a fatal variance between the indictment and the proof, and the trial court erred in denying defendant's motions to dismiss the kidnapping charge. 3. Rape 5 — first degree rape — use of knife — sufficiency of evidence Evidence in a first degree rape prosecution was sufficient to show that the rape of the victim was procured by the use of a deadly weapon where it tended to show that, when defendant approached the victim's car, he brandished a knife and threatened "to cut her guts out"; as they rode in the car and then parked, the knife was on the dash close to defendant's hand; at the time of the rape the knife was stuck in the ground two or three feet from defendant; and the victim submitted to defendant because of the fear that he would cut her with the knife. 4. Rape 6 — deadly weapon — jury instructions adequate Though the Supreme Court has defined a deadly weapon as "any instrument likely to produce death or great bodily harm, under the circumstances of its use," the trial judge did not err in defining a deadly weapon as one "which is likely to cause death or serious body injury." 5. Robbery 4.3 — robbery with knife — sufficiency of evidence of armed robbery The trial court properly submitted to the jury a charge of armed robbery where the evidence tended to show that at the time the victim surrendered her $80 to defendant, defendant had a knife in his possession; though the knife was on the dash of the victim's car, it was within inches of his hand and readily accessible to him; defendant's entrance to the car was gained by brandishing the knife and threatening to cut the victim; and soon after entering the car and placing the knife on the dash, defendant told the victim that all he was after was money. 6. Criminal Law 112.3 — reasonable doubt — jury instruction proper The trial court's brief definition of reasonable doubt as "a sane, rational doubt that arises out of the evidence or the lack of evidence . . ." and "an honest, substantial misgiving generated by some insufficiency of the proof . . ." was sufficient for the jury to understand the meaning of the term. 7. Criminal Law 169 — failure to show what evidence would have been — no prejudice shown by exclusion When objections to evidence are sustained and the record fails to show what the evidence would have been, prejudice is not shown and the exclusion of such evidence cannot be held prejudicial. 8. Criminal Law 140 — three offenses — cumulative sentences — no error In a prosecution for kidnapping, first degree rape and armed robbery, the trial court did not err in failing to provide for all sentences to run concurrently, since the three crimes, though arising from the same incident, were separate offenses.

1. Public Officers 8.1; Taxation 41.2 — presumption of regularity of official acts — applicability to mailing of tax sale notice The presumption of the regularity of official acts applies to the mailing of notice to a taxpayer of a foreclosure sale of his property as required by G.S. 105-392(c) (now G.S. <cross_reference>105-375</cross_reference>(i)), and the party attacking the foreclosure sale has the burden of proving that such notice was not mailed to the taxpayer. 2. Taxation 41.2 — tax foreclosure sale — finding that notice not mailed to taxpayer The trial court's finding that the sheriff's office failed to mail notice of a 1970 tax foreclosure sale to the taxpayer was supported by the evidence where the parties stipulated that no record of mailings by the sheriff's office in 1970 can now be found, and movant offered evidence that the taxpayer died prior to the sale, no notice of the tax foreclosure sale was found among deceased taxpayer's personal papers during a diligent search following his death, and no letter addressed to the taxpayer had been returned to the sheriff's office, although evidence that a regular procedure for mailing notices of tax foreclosures was followed by the sheriff's office would have supported a contrary finding.

Criminal Law 75.14 — mental capacity to confess — admission of confession erroneous The trial court erred in denying defendant's motion to suppress his confession made approximately twenty-four hours after commission of the crime charged where defendant offered evidence that he was mentally incompetent at the time he confessed, such evidence including a history<page_number>Page 138</page_number> of mental illness and hospitalization therefor, accounts of strange behavior such as running through the woods without his shirt on when he and his brother attended a baseball game, testimony by defendant's brother that it was necessary to keep a person with defendant because he could not care for himself, and testimony by a psychiatrist that defendant was suffering from schizophrenia and had memory problems and delusions; the State's only evidence with respect to defendant's competence at the time of his confession was the testimony of a deputy sheriff that defendant appeared to be comfortable and that defendant's statements made sense to him; portions of defendant's statements revealed that defendant's story to the deputy sheriff was not logical and sensible; and defendant's confession could not be admitted on the chance that it was made during a lucid interval.

1. Bills of Discovery 6; Constitutional Law 30 — no statutory right to discover criminal record of witness North Carolina law does not grant a criminal defendant the right to discover the criminal record of a State's witness. 2. Constitutional Law 30 — failure to disclose criminal record of witness — no denial of due process Defendant was not denied due process by the prosecutor's failure to disclose information about prior convictions and misconduct of a State's witness where defendant failed to show (1) that the witness in fact had a significant record of degrading or criminal conduct; (2) that the State knew of such conduct by its witness and withheld such information; and (3) that its disclosure considered in the light of all the evidence would have created a reasonable doubt of his guilt which would not otherwise exist. 3. Homicide 21.7 — second degree murder — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for second degree murder where it tended to show that a witness intervened at a party to prevent a fight between defendant and the victim; a few minutes later, two other witnesses saw defendant strike the drunken victim, who immediately slumped over an automobile; when the first witness went to investigate, he found the victim slumped against the car and defendant standing over him with an open knife in his hand;<page_number>Page 145</page_number> defendant told the witness on the way to the hospital that he had cut the victim twice; and after it became apparent that the victim's condition was serious, defendant told the witness, "Look, man, don't say nothing." 4. Criminal Law 175.2 — denial of recess to locate witness The trial judge did not abuse his discretion in the denial of defendant's motion for a recess to locate an allegedly newly discovered witness. 5. Homicide 30.2 — second degree murder case — failure to submit voluntary manslaughter The trial court in a second degree murder case did not err in failing to instruct the jury on the lesser included offense of voluntary manslaughter where all the evidence tended to show that the person who stabbed the victim intentionally assaulted him with a deadly weapon, the use of which proximately caused his death; there was no evidence tending to show a killing in the heat of passion or the use of excessive force in self-defense; and defendant's evidence was to the effect that someone else assaulted and killed the victim.

1. Criminal Law 76.6 — inducement to make statement — court's finding of fact sufficient In a prosecution for second degree murder where defendant testified that a deputy sheriff had told him that it would be to his benefit to talk, the trial court's finding that "no hope of reward or inducement was made by the law enforcement officers for the defendant to make these statements" sufficiently resolved the evidentiary conflict against defendant, and the trial court did not err in failing to suppress defendant's statement.<page_number>Page 169</page_number> 2. Criminal Law 71 — burns on child's body — shorthand statements of fact In a prosecution for second degree murder of defendant's two year old child, the trial court did not err in allowing two lay witnesses to testify that they had observed burns on the body of the child, since such statements were admissible as shorthand statements of fact. 3. Homicide 15.5 — cause of death — expert's opinion testimony An expert forensic pathologist who conducted an autopsy on the body of a homicide victim could properly testify that the cause of deceased's death could have been human blows, since the witness's opinion was clearly based on the autopsy, and an expert may give an opinion based on facts within his personal knowledge. 4. Homicide 20.1 — photographs of deceased — admissibility The trial court in a second degree murder prosecution did not err in admitting into evidence four color photographs of deceased's body since the photographs were properly authenticated, were used to illustrate the testimony of an expert witness, and were accompanied by proper limiting instructions. 5. Homicide 21.7 — second degree murder — malice — sufficiency of evidence Where the jury could properly have found that defendant inflicted a number of injuries on the body of his two year old son over a period of time and then finally inflicted blows sufficient to cause death, the jury could have inferred the necessary malice to support a conviction of second degree murder.

1. Constitutional Law 30 — names of State's witnesses — no discovery — no error The trial court did not err in denying defendant's motion for the names of prison inmates who would testify to incriminating statements defendant had allegedly made to them, since G.S. <cross_reference>15A-903</cross_reference> does not afford an accused the right to discover the names and addresses of the State's witnesses and since, by virtue of an earlier trial of the case which resulted in a mistrial, defendant had the names of inmates who were to testify against him in his second trial as well as a copy of the witnesses' prior recorded testimony. 2. Constitutional Law 30 — slides of homicide victims — no discovery — no error The trial court in a murder prosecution did not err in failing to require the prosecution to furnish to defendant, prior to trial, photographic slides of the bodies of the victims, since defendant viewed the slides at his first trial and his counsel cross-examined the doctor who illustrated his testimony by the use of those slides. 3. Homicide 20.1 — use of photographs — murder — no prejudice Though the State in a murder prosecution likely could have illustrated medical testimony fully as well with fewer pictures of the exhumed bodies of the victims, the use of nine photographs of the two victims which were not repetitious was not prejudicial to defendant. 4. Homicide 15, 15.5 — autopsy — pepper can — competency of evidence in a homicide prosecution a 64-day delay in performing autopsies on the bodies of the victims went to the weight of such evidence rather than its competency; likewise, a seventeen month delay in ascertaining the relevancy of a black pepper can found at the scene of the murder went to the weight of the evidence rather than its competency. 5. Criminal Law 119 — request for instructions — instructions given in substance The trial court's instruction on circumstantial evidence was correct and substantially in accord with defendant's request, and the court was not required to give defendant's requested instruction verbatim. 6. Homicide 20.1 — photographs and sketches — use for illustration only The trial court in a homicide prosecution did not err in permitting the district attorney to use various photographs and sketches for illustrative purposes where the judge gave an appropriate limiting instruction when each exhibit was tendered for illustrative purposes; the judge instructed the jury during his charge that the photographs and sketches were admitted solely to illustrate the testimony of the witnesses and for no other purpose; and in each instance the witness did in fact use the exhibits to illustrate his testimony.<page_number>Page 228</page_number>

Robbery 5.4 — threatened use of firearm — firearm real or toy — when common law robbery instruction required When the State offers evidence in an armed robbery case that the robbery was attempted or accomplished by the use or threatened use of what appeared to the victim to be a firearm or other dangerous weapon, evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon is not of sufficient probative value to warrant submission of the lesser included offense of common law robbery. A contrary holding in State v. Bailey, <cross_reference>278 N.C. 80</cross_reference>, is overruled.

1. Trusts 19 — wife's action to establish resulting or constructive trust — sufficiency of evidence Evidence was sufficient to establish either a constructive or a resulting trust in plaintiff's favor in the land described in the complaint where it tended to show that defendant breached the confidential relationship of husband and wife when he took from his mother title to a farm in his name alone after representing to his wife that the land would be theirs jointly after the mortgage thereon was paid; plaintiff moved onto the farm with defendant and their children and there cared for defendant's mother; and plaintiff by her contributions and labor paid at least one-half of the mortgage. 2. Trusts 13.1 — resulting trust — promise made before deed delivered — subsequent payment A resulting trust arises where the person claiming it proves a payment on the purchase price made to the grantee or grantor after the delivery of the deed but pursuant to a promise made to the grantee before the deed was delivered, since there is no difference in principle between paying money toward a purchase price at the time of the delivery of a deed and contracting at that time to pay the same sum later and then paying it as promised. 3. Trusts 20 — constructive trust — jury instructions adequate Though the trial court's instruction with respect to the establishment of a constructive trust was not a model of clarity and organization, it did sufficiently inform the jury that for plaintiff to prevail on her claim of a constructive trust she must satisfy the jury by clear, strong and convincing evidence that: (1) there was an agreement, either express or implied, between the parties that title to the land in question was to have been placed in their names jointly and that they were to pay off the mortgage thereon jointly; (2) thereafter, defendant breached the confidential or fiduciary relation the law presumes to exist between a husband and wife by having the deed made to himself alone without plaintiff's knowledge; and, (3) in ignorance of defendant's breach of trust, plaintiff contributed at least one-half of the funds used to pay off the mortgage which encumbered the land at the time of the purchase. 4. Trusts 15 — equitable owner in possession of land — action to establish trust — statute of limitations Where the evidence disclosed that defendant's mother deeded the land in question to him on 15 January 1951, that plaintiff wife remained in possession of the land continuously, and that plaintiff did not learn that defendant had taken title in his name alone until the latter part of July 1975 when the parties separated, there was no merit to defendant's contention that plaintiff's action was barred by the statute of limitations, since, so long as an equitable owner retains possession, nothing else appearing, the statute of limitations does not<page_number>Page 337</page_number> run against him but begins to run only from the time the trustee disavows the trust and knowledge of his disavowal is brought home to the cestui que trust.

1. Eminent Domain 6.3, 13.5 — determining value — damages to remainder — real estate appraiser's opinion — jury instruction on before and after value G.S. <cross_reference>136-112</cross_reference> speaks only to the exclusive measure of damages to be employed by the commissioners, jury or judge in a condemnation proceeding and in no way attempts to restrict expert real estate appraisers to any particular method of determining the fair market value of property either before or after condemnation; therefore, it was not error for the trial court to permit defendant's witness to testify that he derived defendant's damages by application of the "value of the part taken plus damages to the remainder" formula, since the court instructed the jury only on the before and after value method to compute defendant's damages and did not repeat in its charge any of the individual damages that were testified to. 2. Eminent Domain 6.8, 13.5 — general benefits — failure to instruct — no error In a condemnation proceeding to secure property for the building of a highway, the trial court did not err in failing to instruct the jury on general benefits even though it did charge on special benefits. 3. Eminent Domain 13.5 — general and special benefits — failure to request further jury instructions Plaintiff in a condemnation proceeding could not complain that the trial court failed adequately to define general and special benefits where plaintiff failed to request further instruction.

1. Master and Servant 47.1 — workmen's compensation — when claim originates A case or claim originates, in the ordinary understanding of the term, when the cause of action arises. 2. Master and Servant 91 — workmen's compensation — dependents' claim separate from employee's claim Since plaintiff dependents' claim for compensation did not arise until the employee's death, his failure to file a claim for disability compensation within the statutory period did not bar his dependents' claim for death benefits. 3. Master and Servant 47.1 — workmen's compensation — statutes in effect at time of death governing It is generally held that the right of a deceased employee's dependents to compensation is governed by the law in force at the time of death. 4. Statutes 8 — retroactive effect — test A statute is not rendered unconstitutionally retroactive merely because it operates on facts which were in existence prior to its enactment; rather, the proper question for consideration is whether the act as applied will interfere with rights which had vested or liabilities which had accrued at the time it took effect. 5. Master and Servant 68 — workmen's compensation — occupational disease — conditions For an occupational disease to be compensable under the amended version of G.S. <cross_reference>97-53</cross_reference>(13), which applies only to cases originating on and after 1 July 1971, two conditions must be met: (1) it must be proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment; and (2) it cannot be an ordinary disease of life to which the general public is equally exposed outside of employment. 6. Master and Servant 68 — workmen's compensation — occupational disease — "gradualness" not required If an employee contracts an infectious disease as a result of his employment and it falls within either the schedule of diseases set out in the statute or the general definition of "occupational disease" in G.S. <cross_reference>97-53</cross_reference>(13), it should be treated as a compensable event regardless of the fact that it might also qualify as an "injury by accident" under G.S. <cross_reference>97-2</cross_reference>(6), and G.S. <cross_reference>97-53</cross_reference>(13) is to be interpreted independently of any prior definitions of "occupational disease" which required an element of "gradualness."<page_number>Page 459</page_number> 7. Master and Servant 68 — occupational disease — disease characteristic of profession A disease is "characteristic" of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question, and it is not required that a particular illness be unique to the injured employee's profession before it can qualify as an "occupational disease." 8. Master and Servant 68 — serum hepatitis — disease peculiar to occupation of lab technician In an action by deceased employee's dependents to recover death benefits, evidence was sufficient to support the Industrial Commission's determination that the employee's job as lab technician exposed him to a greater risk of contracting serum hepatitis than members of the public or employees in general, and this finding of fact supported the Commission's legal conclusion that serum hepatitis was a disease "characteristic of and peculiar to his occupation of lab technician." 9. Master and Servant 68 — workmen's compensation — serum hepatitis as occupational disease In an action by deceased employee's dependents to recover death benefits, there was no merit to defendants' contention that serum hepatitis, which caused the employee's death, was an "ordinary disease of life" and was therefore noncompensable, since G.S. <cross_reference>97-53</cross_reference>(13) does not preclude coverage for all ordinary diseases of life but instead only those to which the general public is equally exposed outside of the employment, and medical testimony was sufficient to support the Industrial Commission's conclusion that the public is exposed to the risk of contracting serum hepatitis to a far lesser extent than was deceased employee. 10. Master and Servant 68 — workmen's compensation — occupational disease — causal connection between employment and disease In the case of occupational diseases proof of a causal connection between the disease and the employee's occupation must of necessity be based on circumstantial evidence, and among the circumstances which may be considered are the extent of exposure to the disease or disease-causing agents during employment, the extent of exposure outside employment, and the absence of the disease prior to the work related exposure as shown by the employee's medical history. 11. Master and Servant 56 — workmen's compensation — causal relation between employment and serum hepatitis In an action by dependents of an employee who died of serum hepatitis to recover death benefits, evidence was sufficient to support the Industrial Commission's conclusion that the employee's disease was caused by his employment when it tended to show that a person cannot contract serum hepatitis unless he comes into contact with the virus which must enter his bloodstream through an injection, blood transfusions, by nicks and scratches on the skin, or by handling fecal materials; only one contact is necessary to produce the disease, which has a maximum incubation period of six months; the employee tested<page_number>Page 460</page_number> blood samples in his work and routinely spilled blood on his fingers; each day one or more of the blood samples showed a positive diagnosis of serum hepatitis; the employee's hobby was gardening and he often worked in the lab with unhealed nicks or scratches on his hands; for more than six months prior to diagnosis of his disease the employee had no injections of any type and no illnesses; and so far as the employee, his wife and his physicians could ascertain, the employee never came into contact with any person, blood or blood product infected with serum hepatitis outside the lab where the employee worked. 12. Evidence 22.1 — transcript of earlier proceeding — admissibility In an action by the dependents of a deceased employee to recover death benefits, a transcript of the employee's testimony at an earlier hearing on the employee's claim for benefits was not inadmissible as hearsay, since the employee died prior to the hearing on the present claim; his testimony at the hearing on his own claim involved the same issue and subject matter as the hearing on the claim by his dependents; and the party against whom the transcript was offered at the second hearing was the same party against whom the employee offered his testimony at the prior hearing. 13. Master and Servant 93.3 — workmen's compensation — medical experts — hypothetical questions proper In an action by the dependents of a deceased employee to recover death benefits, hypothetical questions which asked two medical witnesses to assume that the employee had no habits involving the use of alcohol or drugs administered by a syringe and to assume that the employee handled at least 100 blood samples a day in his work were either supported by the evidence or not prejudicial, and a hypothetical question which asked a doctor to base his opinion on the medical history he obtained from both the employee himself and from other doctors who had treated him was proper. 14. Master and Servant 90 — workmen's compensation — occupational disease — notice to employer — employer's waiver In an action by the dependents of a deceased employee to recover death benefits, the employer waived its right to notice of the employee's disease where it failed to raise that issue at the hearing before the Industrial Commission; moreover, under the circumstances of this case it would be unrealistic to assume that the employer did not immediately receive notice of the diagnosis of the employee's disease. 15. Master and Servant 91 — workmen's compensation — occupational disease — time for filing claim The claim of a deceased employee's dependents for death benefits was not barred by G.S. <cross_reference>97-38</cross_reference> providing compensation if death results from an accident within two years or, while total disability continues, within six years after the accident, since the date of the "accident" in cases involving occupational disease is treated as the date on which disablement occurs, and the employee in this case died fifteen months after he became totally disabled by serum hepatitis.<page_number>Page 461</page_number> 16. Master and Servant 69 — workmen's compensation — amount of recovery — amended statute properly applied Since the claim of a deceased employee's dependents did not arise until his death on 3 January 1974, the Industrial Commission properly considered the 1973 amendments to G.S. <cross_reference>97-38</cross_reference> which took effect on 1 July 1973 in determining the amount of the award.

1. Uniform Commercial Code 46, 47 — sale of collateral — notice — commercial reasonableness — burden of proof A secured party seeking a deficiency judgment under G.S. <cross_reference>25-9-502</cross_reference> has the burden of establishing compliance with the twin duties of reasonable notification and commercially reasonable disposition.<page_number>Page 525</page_number> 2. Uniform Commercial Code 46 — sale of collateral — notice given — commercial reasonableness presumed If the secured party who seeks a deficiency judgment can establish that he gave notice of a public sale of collateral in a manner which substantially complies with the procedures of Part 6 of Article 9 of the Uniform Commercial Code, he is not required to establish further that the sale was commercially reasonable. 3. Uniform Commercial Code 47 — sale of collateral — notice requirements — substantial compliance Substantial compliance is the prescribed standard in determining whether the notice procedures outlined in G.S. <cross_reference>25-9-603</cross_reference> have been followed, and the secured party is not required to insure that the notice of sale is actually received by the debtor. 4. Uniform Commercial Code 47 — sale of collateral — notice — actual address of debtor An "actual address" of a debtor, as used in G.S. <cross_reference>25-9-603</cross_reference>(2), is an address where a notice of sale could reasonably be expected to be received by the addressee in the ordinary course of the mails. 5. Uniform Commercial Code 47 — sale of collateral — sufficiency of notice In an action to collect a deficiency after sale of collateral, plaintiff's evidence established as a matter of law that a notice of sale mailed by plaintiff was sent to an "actual address" of debtor in substantial compliance with G.S. <cross_reference>25-9-603</cross_reference> and that plaintiff was therefore entitled to the conclusive presumption of commercial reasonableness where the evidence tended to show that plaintiff had successfully sent certified mail to defendants at Route 1, Little Switzerland, less than three months earlier in connection with other demand letters; those letters had been promptly received and acknowledged by defendants; and having successfully used that address to communicate with defendants in the recent past, plaintiff could reasonably expect that a certified letter mailed to the same address would reach defendants in the ordinary course of the mails. 6. Uniform Commercial Code 46; Constitutional Law 23 — presumption of commercial reasonableness of sale — no denial of due process — enactment of statute not State action There was no merit to defendants' contention that the presumption of commercial reasonableness created by G.S. <cross_reference>25-9-601</cross_reference> denied them the opportunity to contest the reasonableness of a public sale of collateral by a secured party and thereby deprived them of their property without procedural due process, since the constitutional mandate of due process applies only to actions by the government which deprive individuals of their fundamental rights, and the enactment of G.S. <cross_reference>25-9-601</cross_reference> did not constitute "State action." 7. Rules of Civil Procedure 50.2 — directed verdict for party with burden of proof — evidence manifestly credible There are neither constitutional nor procedural impediments to directing a verdict for the party with the burden of proof where the<page_number>Page 526</page_number> credibility of movant's evidence is manifest as a matter of law, and three situations where credibility is manifest are: (1) where non-movant establishes proponent's case by admitting the truth of the basic facts upon which the claim of proponent rests; (2) where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents; and (3) where there are only latent doubts as to the credibility of oral testimony and the opposing party has failed to point to specific areas of impeachment and contradictions. 8. Uniform Commercial Code 46 — sale of collateral — commercial reasonableness — evidence manifestly credible In an action to recover a deficiency after sale of collateral, plaintiff's evidence was manifestly credible and established as a matter of law that plaintiff mailed notice of sale to an "actual address" of the debtors in substantial compliance with G.S. <cross_reference>25-9-603</cross_reference>, and judgment n.o.v. was therefore properly granted for plaintiff on the question of commercial reasonableness.

1. Criminal Law 66.6, 67.1 — lineup — voice identification — no suggestive procedures Identification procedures involving defendant were not rendered impermissibly suggestive because (1) all participants in a lineup were taller than the height given by the homicide victim's wife in her original description of the intruder to police, since defendant himself was not the shortest man in the lineup; (2) defendant was both the fifth man in a lineup and the fifth man to speak in a voice identification procedure, since the victim's widow did not see<page_number>Page 567</page_number> the participants as they spoke and did not know in what order they were speaking; and (3) the identifying witness was told that there was a suspect in the lineup, since the record was not clear as to whether the witness was actually told this or merely assumed it, and a confirmation of the witness's assumption would not indicate to the witness which of the participants the suspect was. 2. Criminal Law 66.1 — identification of defendant — opportunity for observation — testimony not inherently incredible Identification testimony by a witness who had an opportunity to see defendant within a few feet of her in broad daylight for approximately five seconds was not inherently incredible. 3. Homicide 20.1 — photographs of victim — admissibility The trial court in a homicide prosecution did not err in admitting into evidence two photographs of the victim's body which accurately depicted the scene of the crime, since the photographs were properly authenticated, were used by witnesses to explain and illustrate their testimony, were not excessive in number, and were not so used as to unduly arouse the passions of the jury. 4. Criminal Law 55.1; Homicide 20 — cigarette butts in victim's home — admissibility The trial court in a homicide prosecution did not err in admitting into evidence several partially burned Winston cigarette butts found in the victim's home after the murder since the evidence tended to show that the victim and his wife did not smoke cigarettes; there had been no cigarette butt on the laundry room floor of the victim's home before defendant and his companion entered the home; the victim's wife saw defendant smoking during the day while she was held captive; saliva tests showed that the cigarettes were smoked by a Group O secretor; and blood tests on defendant showed that he was a Group O secretor. 5. Criminal Law 113.1 — jury instructions — inconsistencies of State's evidence — instruction required Defendant could not complain of the trial court's failure in its statement of the contentions of the parties to detail fully the inconsistencies in the State's evidence brought out on cross-examination, since defendant failed to request that a more detailed statement of the contentions be made.

1. Robbery 4.3 — armed robbery — sufficiency of evidence The State's evidence was sufficient to support a charge of armed robbery of the prosecutrix and the verdict of the lesser included offense of common law robbery where the prosecutrix testified that defendants smashed through her bedroom door with an ax, demanded money, and ransacked the room hunting for it; at that time she had a black pocketbook containing about two dollars behind her bed; when she tried to escape from the house one defendant grabbed her and carried her out of the house, threw her down on the ground, and brutally assaulted her; the next morning she found the pocketbook in the middle of the road in front of her house; and defendants took about two dollars of her money.<page_number>Page 575</page_number> 2. Criminal Law 34.7 — armed robbery — evidence defendants had earlier robbed victim — relevancy Evidence that defendants had robbed the male victim of his social security check on 3 January was relevant to show that when defendants entered the victims' residence on 3 February their purpose was to rob the male victim of his monthly check where (1) both robberies occurred at the victims' residence; (2) the male victim was the sole victim in the first robbery and the principal victim in the second; (3) defendants acting together were the sole perpetrators of the two robberies; and (4) both offenses, occurring within a month of each other, were committed on the 3rd of the month, the day on which the male victim received his monthly social security check. 3. Criminal Law 99.8 — questions by trial court — no expression of opinion The trial court's questions to the disabled, arthritic 61-year-old robbery victim were solely for the purpose of clarifying his confused and sometimes conflicting testimony and did not constitute an expression of opinion on the evidence. 4. Criminal Law 89.5 — minor variation in corroborating testimony Variation between a robbery victim's testimony that money was taken from her pocketbook which she had behind her bed and a deputy sheriff's testimony that the victim told him money was taken from a dresser top was minor and merely raised an issue of credibility for the jury where the victim was consistent in her testimony that defendants took two dollars and a few cents from her. 5. Criminal Law 73.2, 102.5 — questions to unavailable witness not hearsay — improper questions by prosecutor — harmless error In this armed robbery prosecution, testimony by officers that they asked an eyewitness who was not present at trial certain questions about the occurrence and identity of the robbers, that the eyewitness answered their questions, and that they had later unsuccessfully tried to locate the eyewitness to insure his presence at trial was not inadmissible as hearsay since the officers never repeated any response to their questions and the questions themselves are not evidence. However, the district attorney's questions to the officers were improper since he was trying to imply that had the eyewitness been present his answers would have paralleled and corroborated testimony by the victims, but such conduct by the district attorney did not constitute prejudicial error where it could not have affected the verdict.

1. Indictment and Warrant 14, 15; Perjury 1 — inaccurate testimony before grand jury — no perjury — motion to dismiss indictment — timeliness The trial court in a prosecution for arson did not err in denying defendants' motion to dismiss on the ground that the indictment<page_number>Page 601</page_number> against them was based solely on the perjured testimony of the witness whose motel and residence were burned, since: (1) there was no evidence that perjury was actually committed, as assumptions made by the witness in his grand jury testimony did not amount to perjury but only to an unintentional misstatement of the facts and the accuracy of those assumptions was fully verified by another witness at trial; and (2) defendants' motion to dismiss the indictment, which was made at the conclusion of the evidence, was not timely. G.S. <cross_reference>15A-952</cross_reference>(c). 2. Grand Jury 2 — proceedings secret — cross-examination of witness improper Evidence elicited on cross-examination concerning an arson victim's grand jury appearance was not a proper subject for consideration on a motion to dismiss the indictment, since it is the policy of the State that grand jury proceedings should be secret. G.S. <cross_reference>15A-623</cross_reference>(e). 3. Criminal Law 117.3 — jury instructions — witness testifying under immunity Defendants had no standing to challenge either the propriety or the effectiveness of a grant of immunity to a witness testifying against them, since the privilege against self-incrimination is a personal one; furthermore, even if the grant of immunity in question were ineffective, defendants were not prejudiced by the court's instruction that the witness had been granted immunity and cautioning the jury to scrutinize his testimony with care before accepting it.

1. Larceny 6 — booster box in defendant's possession — admissibility of evidence In a prosecution of defendant for felonious larceny, the trial court did not err in admitting into evidence a "booster box," a device used by professional shoplifters, found in defendant's car along with stolen sweaters within minutes after the sweaters were discovered missing from a store, since such evidence was relevant because it had a logical tendency to show a design or plan on the part of defendant and one or more of his companions to steal merchandise from the store. 2. Burglary and Unlawful Breakings 1.2 — entry into store during business hours — no breaking An entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis of a conviction for felonious entry under G.S. <cross_reference>14-54</cross_reference>(a); therefore, defendant's entry into a store at the time it was open to the public could not serve as the basis for a conviction for felonious entry, since the entry was with the consent, implied if not express, of the owner. 3. Criminal Law 138.4 — counts consolidated for judgment — conviction of one crime vacated — resentencing unnecessary Where defendant was convicted of felonious larceny and felonious entry and the counts were consolidated for judgment, but defendant's motion to dismiss the felonious entry charge should have been granted, defendant was not entitled to be resentenced, since the sentence of imprisonment for not less than eight nor more than ten years was within the limits of punishment that can be imposed for larceny alone and since defendant's conduct in the larceny merited the sentence he received. G.S. <cross_reference>15A-1447</cross_reference>(e).

Insurance 115, 126 — fire insurance — property insured by co-tenant — insurable interest G.S. 58-176 providing that insurance coverage shall in no event be for more than the "interest of the insured" encompasses more than legal title and is broad enough to cover the entire property which is insured by one co-tenant, acting as agent, for the benefit of all the owners.