Volume 299 — North Carolina Reports

1. Municipal Corporations 2.2 — parcels separated by previously annexed satellite — no annexation as one area Two parcels of land which are completely separated from each other by a previously annexed satellite area may not be annexed as one area since the use and subdivision tests prescribed by G.S. <cross_reference>160A-36</cross_reference>(c) for determining whether an "area to be annexed" is "developed for urban purposes" cannot be applied to such area but must be applied to each parcel as a separate "area to be annexed." 2. Municipal Corporations 2.3 — annexation — area contiguous only to boundaries of satellite Territory which is contiguous solely to the boundaries of a satellite area does not satisfy the statutory requirement that the area to be annexed in an involuntary annexation proceeding under G.S. <cross_reference>160A-33</cross_reference> et seq. be adjacent or "contiguous" to the "municipal boundaries" of the city seeking annexation, since the terms "municipal boundary" and "contiguous area" in G.S. <cross_reference>160A-36</cross_reference> and G.S. <cross_reference>160A-41</cross_reference>(1) remain unaltered by the enactment of statutes permitting the annexation of noncontiguous satellite areas and refer exclusively to the primary corporate limits and areas which abut the primary corporate limits. 3. Municipal Corporations 2.3 — external boundaries of area to be annexed — inclusion of distance around satellite boundaries Where an area to be annexed was almost severed by a satellite which had previously been annexed, and the two portions of such area were connected only by a 30 foot wide strip of land which lies adjacent to<page_number>Page 2</page_number> the northern boundary of the satellite, the satellite itself could not be included as part of the area to be annexed in calculating the external boundaries of the area, and the distance around the western, northern and eastern boundaries of the satellite must be included in the measurement to determine whether the area to be annexed satisfies the statutory requirement that at least one-eighth of the aggregate external boundaries of the area must coincide with the municipal boundary.

Fraud 12; Mortgages and Deeds of Trust 2 — fraud in securing subordination of purchase money deed of trust In an action by plaintiffs to have their purchase money deed of trust declared a first lien with priority over defendant mortgage corporation's deed of trust, the trial court erred in granting summary judgment for defendant mortgage corporation on the issue of fraud in procuring the subordination of plaintiff's deed of trust to defendant's deed of trust where plaintiff's materials tended to show that plaintiffs agreed with the purchasers of their land to subordinate their purchase money deed of trust to any deed of trust placed on the land for improvements; defendant, through its attorney and by use of mislabeled documents, intentionally misrepresented that it was making a construction loan to the purchasers for improvements when the loan in fact was for acquisition of the land; and plaintiffs, in reliance on defendant's misrepresentation, subordinated their purchase money deed of trust to defendant's deed of trust, causing them to lose the priority of their purchase money deed of trust and thereby suffer monetary damages.

1. Divorce and Alimony 16 — dependent spouse — meaning of "actually substantially dependent" To qualify as a dependent spouse under G.S. <cross_reference>50-16.1</cross_reference>(3) as one "actually substantially dependent" upon the other spouse, the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which such spouse became accustomed during the several years prior to separation, i.e., the party seeking alimony must actually be unable to maintain the accustomed standard of living from his or her own means. 2. Divorce and Alimony 16 — meaning of "maintenance and support" — construction of statutes in pari materia In determining the meaning of "maintenance and support" in G.S. <cross_reference>50-16.1</cross_reference>(3), that statute must be construed in pari materia with the provisions of G.S. <cross_reference>50-16.5</cross_reference> pertaining to the amount of alimony. 3. Divorce and Alimony 16 — dependent spouse — substantially in need of maintenance and support To qualify as a dependent spouse under G.S. <cross_reference>50-16.1</cross_reference>(3) as one who is "substantially in need of maintenance and support from the other spouse," the spouse seeking alimony must establish that he or she would be unable to maintain his or her accustomed standard of living (established prior to separation) without financial contribution from the other. 4. Divorce and Alimony 16 — dependent spouse — consideration of "estates" — estate depletion not required In listing "estates" of the parties as one of the factors in G.S. <cross_reference>50-16.5</cross_reference> for determining the amount of alimony, the legislature did not intend that one seeking alimony be disqualified as a dependent spouse because, through estate depletion, such spouse would be able to maintain his or her accustomed standard of living. 5. Divorce and Alimony 16 — dependent spouse — "other facts of particular case" — length of marriage — contribution to financial status When determining dependency pursuant to G.S. <cross_reference>50-16.1</cross_reference>(3) and G.S. <cross_reference>50-16.5</cross_reference>, the court's consideration of "other facts of the particular case" should include a consideration of the length of the marriage and the contribution each party has made to the financial status of the family over the years. 6. Divorce and Alimony 16 — dependent spouse — large estates by both parties The trial court properly concluded that plaintiff wife was the dependent spouse and defendant husband was the supporting spouse where the court found upon competent evidence that the accustomed standard of living of the parties would require expenditures by plaintiff of $3,500<page_number>Page 175</page_number> per month; plaintiff had a net worth of $761,975 and defendant had a net worth of $870,165; plaintiff had a gross income from her estate of $1,833 per month; and defendant had a gross income of $116,660 and a net income of $61,702 for the past year, since plaintiff had a shortfall of $1,667 per month which she could meet only by depleting her estate. 7. Divorce and Alimony 16 — award of alimony — consideration of fault Considering G.S. <cross_reference>50-16.2</cross_reference> and G.S. <cross_reference>50-16.5</cross_reference>(b) in pari materia, it was the intent of the legislature that fault be a consideration in awarding alimony. 8. Divorce and Alimony 16 — alimony award — improper award of counsel fees The trial court improperly awarded counsel fees to plaintiff wife in an action for alimony where an award of counsel fees was not necessary to enable plaintiff, as litigant, to meet defendant, as litigant, on substantially even terms by making it possible for her to employ counsel. Furthermore, the trial court erred in awarding plaintiff $2,500 as "reasonable expenses" of prosecuting the suit. 9. Appeal and Error 2 — appeal of right from Court of Appeals after dissent — matters which may be considered In an appeal as a matter of right from a decision of the Court of Appeals to which there was a dissent, the Supreme Court is not limited to consideration only of matters mentioned by the dissenting judge's opinion. 10. Appeal and Error 2 — appeal from Court of Appeals — questions not brought forward In an appeal from a decision of the Court of Appeals, questions not brought forward from those properly presented in the Court of Appeals are deemed abandoned. Rule 28(a), N.C. Rules of Appellate Procedure.

1. Appeal and Error 6.2 — right of appeal — final judgment — interlocutory order affecting substantial right A right of appeal lies from the final judgment of superior court or from an interlocutory order of the superior court which affects some substantial right. G.S. <cross_reference>1-277</cross_reference>; G.S. <cross_reference>7A-27</cross_reference>(b). 2. Appeal and Error 6.2 — finality of judgment — appeal from summary judgment order Where plaintiff's first cause of action was settled by consent, summary judgment granting plaintiff a permanent injunction was entered on plaintiff's second cause of action, plaintiff's third cause of action sought a declaratory judgment that its redesigned plans for development of its property complied with an agreement of the parties, and the court found that the development plans did not comply with the agreement and entered summary judgment for defendants, plaintiff received a final judgment as to all its causes of action and could appeal from the court's order entering summary judgment for defendants on its third cause of action.<page_number>Page 271</page_number> 3. Appeal and Error 6.2 — breach of contract — summary judgment establishing liability — rejection of specific performance — appealability of order Where the trial court granted summary judgment establishing plaintiff's liability for breach of an agreement to redesign its plan for development of its property to comply with the "Currituck Plan" for development of outer banks property, but the court rejected defendants' claim for specific performance of the contract and ordered the issue of damages to be determined at a subsequent trial, the denial of defendants' claim for specific performance prior to hearing evidence on the question of damages affected a substantial right of defendants and was appealable, since the court's preemptory denial of specific performance will preclude defendants from seeking such relief at the trial on the issue of damages, and by the time final judgment is rendered on defendants' claim plaintiff may have been able to develop its property in a manner not in compliance with its agreement. 4. Contracts 20.1 — breach of contract — no impossibility of performance Plaintiff was not excused on the ground of impossibility of performance from compliance with its contract with defendant to redesign its plans for development of its property to comply with the "Currituck Plan" for development of outer banks property, which required a central water and sewer system, and the trial court properly entered summary judgment for defendants establishing plaintiff's liability for breach of the agreement, where (1) the evidence on motion for summary judgment tended to show that, although Currituck County had adopted a new "Land Use Plan" for development of the outer banks which replaced the "Currituck Plan," developments in compliance with the "Currituck Plan" were still permitted in the county, and (2) plaintiff's evidence tended to show that county approval of participation in a central water and sewer system would not be automatic but failed to show that plaintiff ever presented a definite proposal to the county commissioners or that approval of such a plan would never be forthcoming. 5. Specific Performance 1 — breach of contract — summary judgment — denial of specific performance before evidence of damages The trial court erred in preemptorily denying the equitable relief of specific performance when it granted summary judgment establishing plaintiff's liability for breach of contract and ordered that the issue of damages be decided at a subsequent trial, since the court was without the necessary facts to determine whether damages would provide defendants an adequate remedy at law.

1. Burglary and Unlawful Breakings 5; Rape 5 — first degree burglary — rape — sufficiency of evidence Evidence in a prosecution for rape and burglary was sufficient to be submitted to the jury where it tended to show that the victim observed her assailant face to face under lighted conditions and identified defendant at trial as the man who broke into her home and raped her; the town chief of police observed defendant running down the street on which the victim lived around the time the crimes were committed; defendant's body hairs "matched favorably" those found at the crime scene; defendant confessed to police that he committed the crimes; some of the items stolen from the victim's home were found in defendant's possession when he was arrested; and before defendant was arrested he attempted to flee from the police. 2. Constitutional Law 45 — defendant's dismissal of counsel — attorney appointed stand-by counsel — right to counsel not abridged The trial judge did not err in permitting defendant's counsel to withdraw upon defendant's motion, and defendant was not denied his Sixth Amendment right to effective assistance of counsel where defendant stated that he wished to dismiss his counsel because he was dissatisfied with his services; the trial judge advised defendant that he had a right to dismiss his attorney and to conduct his own trial without counsel but that the trial would nevertheless proceed; defendant intelligently, voluntarily and knowingly dismissed his counsel and elected, despite admonitions from the trial judge not to do so, to proceed to trial without counsel; the trial judge then appointed defendant's lawyer as stand-by defense counsel; and defendant thereafter conferred with the lawyer a number of times in his capacity as stand-by counsel. 3. Constitutional Law 30 — hearing to determine probable cause for arrest or search — confidential informant — no right to learn identity Neither the Sixth Amendment right to counsel nor the Fourteenth Amendment right to due process entitles the defendant to learn the identity of a confidential informant at a preliminary stage held to determine if there is probable cause for an arrest or search. 4. Criminal Law 102.11 — jury argument — defendant's innocence — no prejudice Defendant was not prejudiced by the private prosecutor's statement during closing argument, "Can the defendant, based on this evidence, show you a valid conclusion of his innocence?" since no objection was made when the statement was made to the jury, and since any error was cured by the judge when he instructed the jury during his charge at the close of the final arguments that the jury was to understand and apply the law as the judge gave it to them, and he then immediately, completely and accurately instructed regarding the presumption of defendant's innocence.<page_number>Page 446</page_number> 5. Criminal Law 102.6 — jury argument — reasonable doubt — no prejudice Defendant was not prejudiced by the remark of State's counsel during her closing argument concerning "`beyond' [being] an unnecessary appendage to the words `reasonable doubt'," since State's counsel was not thereby expressing an opinion about defendant's guilt, and the trial judge, during his charge at the close of final arguments, correctly instructed on the State's burden of proof. 6. Criminal Law 75 — admissibility of confession Defendant's confession was voluntary and the trial court properly denied defendant's motion to suppress where the evidence tended to show that defendant was given the Miranda warnings; defendant executed a written waiver of his right to remain silent; and the police did not improperly induce defendant's confession by threats or other means, nor was defendant under the influence of any drugs at the time of the confession. 7. Searches and Seizures 8 — warrantless arrest — search incident to arrest proper Defendant's warrantless arrest was proper where a police officer had probable cause to make the arrest, and a warrantless search of defendant's person made incident to the arrest was proper. 8. Arrest and Bail 3.1 — probable cause — no effect of dismissal of another charge There was no merit to defendant's contention that the State was collaterally estopped from establishing that there was probable cause to arrest him for burglary and rape because his motion to dismiss a charge of assault on an officer that arose when he was arrested on the burglary and rape charges was granted at the close of the State's evidence on the assault charge in district court. 9. Burglary and Unlawful Breakings 7 — first degree burglary — no instruction on lesser included offense — no error The trial court in a first degree burglary case did not err in refusing to instruct on the lesser included offense of misdemeanor breaking and entering. 10. Criminal Law 116 — defendant's failure to testify — instruction absent request — no prejudice Since defendant did not request an instruction on his failure to testify, it would have been better for the court to make no reference to his silence, but the court's instruction in this case that defendant's failure to testify created no presumption against him and that defendant's silence was not to influence the jury's decision either way was not prejudicial to defendant.

1. Divorce and Alimony 27 — consent order as to child custody — action for support only An action did not remain an action for child custody and support, but became an action for child support only, where the court entered a consent order on the question of custody prior to trial and the issue of custody was not raised again.<page_number>Page 466</page_number> 2. Divorce and Alimony 27 — action for child custody or child custody and support — award of attorney fees — requirements of good faith and insufficient means In a suit for child custody or child custody and support, the trial judge, pursuant to the first sentence of G.S. <cross_reference>50-13.6</cross_reference>, has the discretion to award attorney fees to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. Whether these statutory requirements have been met is a question of law reviewable on appeal, but when the statutory requirements have been met, the amount of attorney fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. 3. Divorce and Alimony 27 — child support action — award of attorney fees — requirements of good faith, insufficient means and refusal to provide support An award of attorney fees in an action solely for child support requires findings of "good faith" and "insufficient means" pursuant to the first sentence of G.S. <cross_reference>50-13.6</cross_reference>, and a finding "that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding" pursuant to the second sentence of that statute, and whether these requirements have been met is a question of law reviewable on appeal. 4. Divorce and Alimony 20.3 — action for alimony — award of attorney fees — requirements of entitlement to relief, dependency and insufficient means In order to award attorney fees in an alimony case, G.S. <cross_reference>50-16.3</cross_reference> and G.S. <cross_reference>50-16.4</cross_reference> require the court to find that (1) the spouse seeking the fees is entitled to the relief demanded; (2) such spouse is a dependent spouse; and (3) the dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof. Whether these requirements have been met is a question of law reviewable on appeal, and if attorney fees may properly be awarded, the amount of the award rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. 5. Divorce and Alimony 20.3, 27 — action for alimony, child custody, support, or custody and support — award of attorney fees — requirement of insufficient means Before attorney fees may be awarded in an alimony case to the dependent spouse under G.S. <cross_reference>50-16.3</cross_reference> and G.S. <cross_reference>50-16.4</cross_reference>, and before attorney fees may be awarded to the interested party in a child custody, support, or custody and support suit under G.S. <cross_reference>50-13.6</cross_reference>, such person must have insufficient means to defray the expense of the suit; that is, he or she must be unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit. 6. Divorce and Alimony 20.3, 27 — action for alimony and child support — award of attorney fees — sufficient means to defray expenses Plaintiff wife had sufficient means to defray the expense of this alimony and child support suit, and the trial court erred in ordering defendant husband to pay $22,000 in attorney fees incurred by plaintiff,<page_number>Page 467</page_number> where the evidence showed that plaintiff owned marketable securities, real estate, stock in a closely held corporation and other investments worth $930,484; plaintiff had debts of $264,831, leaving a net estate of $665,652; plaintiff had a net income the previous year of $9,192; plaintiff had rental income from apartments of $48,000, most of which was used to amortize indebtedness against the apartments and to pay taxes and insurance thereon; when the parties separated, a corporation paid a note it owed plaintiff in the amount of $105,000; during the pendency of this suit, plaintiff invested $79,000 in a restaurant, loaned her son $3,000 to buy a car which he repaid, paid $3,000 for a horse, and spent $1,500 on a trip to a resort; and defendant husband owned marketable securities, stock in closely held corporations, real estate and other investments worth $747,553 and had an indebtedness of $254,612.

1. Criminal Law 61 — comparison of shoe tracks — non-expert testimony — harmless error The trial court erred in permitting a police officer who was not qualified as an expert witness to state his opinion that the tread design shown in a photograph of shoe tracks found near the crime scene was the same as the tread design on defendant's tennis shoes since the jury was as well qualified as the witness to draw inferences and conclusions from the facts the witness stated in his opinion; however, such error was harmless beyond a reasonable doubt where the State offered testimony by an S.B.I. agent who was an expert in shoe track comparison that shoe tracks near the crime scene and the track design on defendant's tennis shoes were similar. 2. Criminal Law 71 — shorthand statement of fact Where an officer testified that he entered defendant's vehicle when he first discovered it, started the motor and moved the vehicle backward and forward, and that the vehicle was parked on an incline, the officer's subsequent testimony that defendant's vehicle could have drifted downhill to the new location where the officer found it "even without power steering and brakes" constituted a permissible shorthand statement of facts within the officer's own knowledge rather than opinion testimony. 3. Criminal Law 55.1 — type of blood on defendant's shoes — blood type of victim — percentage of persons having that type — weak probative value In a prosecution for armed robbery and felonious assault, testimony by an expert in forensic serology that human blood found on defendant's tennis shoes was consistent with the victim's blood grouping or blood type and that this particular blood type was present in only 11% of the population of the United States was only weakly probative in character but was harmless because its probative value was so minute and exclusion of the testimony could not have changed the result of the trial. 4. Criminal Law 42.6 — chain of custody of shoes sent to S.B.I. laboratory The chain of custody of defendant's tennis shoes after they were received in the mail by an S.B.I. agent was not broken so as to require the exclusion of tests of bloodstains on the shoes because the S.B.I. agent may have left the shoes unattended for an hour in his unlocked private office or because the shoes were carried to a mail pickup point by some employee of the S.B.I. laboratory other than the S.B.I. agent after they had been examined where the S.B.I. agent testified that upon receiving the shoes he immediately marked them with his initials, the date of receipt, and S.B.I. file number; within an hour after receiving the shoes he examined them and then placed them in a locked file cabinet until he got ready to dictate the case; the shoes were repackaged and mailed to the officer who had sent them to the S.B.I. the next<page_number>Page 492</page_number> day; and the markings on the shoes introduced into evidence were those made by the S.B.I. agent and the shoes were the same shoes the agent had received and sent out.

Gas 1; Utilities Commission 24 — curtailment tracking rate — undercollection for one year as offset to overcollection for next year — no retroactive rate making An annual "true up" of the curtailment tracking rate of a natural gas company was not a change in a general fixed rate, and an order permitting an undercollection produced in one year by a curtailment tracking rate based on an incorrect base period margin to be rolled forward to offset an overcollection in the next year did not constitute prohibited retroactive rate making.

Criminal Law 143.1 — probation — revocation hearing — timeliness — defendant not chargeable with delay Where defendant was convicted of bastardy and placed on probation for five years commencing 1 November 1973, the trial judge was without authority to conduct a probation revocation hearing and activate the suspended sentence on 7 December 1978 after the period of probation and suspension had expired, since failure of the court to enter a revocation judgment within the five year period prescribed by the original judgment was not chargeable to the conduct of defendant who never absconded, never concealed himself to delay or avoid a revocation hearing, and was never charged with the commission of another crime during the probationary period which might toll the running of the probationary period. G.S. <cross_reference>15A-1344</cross_reference>(f).

1. Criminal Law 90 — defense witness not declared hostile — no error The trial court did not err in failing to grant defendant's motion to declare his witness a hostile witness where defendant was not misled, surprised or entrapped to his prejudice by the witness's testimony, and he knew before he was given the opportunity to present evidence what the witness would testify to. 2. Criminal Law 160 — correction of record There was no merit to defendant's contention that the trial court, in instructing on the elements of first degree burglary, erroneously stated that defendant entered the victim's home "without" the intent to commit a felony therein, since the record had been corrected, upon proper affidavit, to read "with" instead of "without" and thus properly reflected what the trial judge actually said.

1. Homicide 20.1 — photographs of deceased — admissibility for illustrative purposes Two black and white photographs showing the wounds and face of the deceased were properly admitted for the purpose of illustrating the testimony of a medical expert who described the wounds and stated his opinion as to the cause of death. 2. Criminal Law 42; Homicide 20 — clothes worn by murder victim — admissibility Clothes worn by the decedent at the time he was shot to death were properly admitted into evidence. 3. Criminal Law 76.6 — voluntariness of confession — adequacy of findings The trial court made adequate findings of fact that defendant's confession was made freely and voluntarily.<page_number>Page 691</page_number> 4. Criminal Law 89, 95.2 — instructions limiting use of confession to impeachment or corroboration The trial court properly gave the jury an instruction limiting the use of defendant's in-custody statements to purposes of impeachment or corroboration, and the court did not err in failing to define the words impeachment and corroboration. 5. Criminal Law 63, 75.14 — low mentality of defendant — insufficient basis for expert testimony — irrelevancy on admissibility of confession The trial court in a homicide case properly excluded the testimony of an expert in clinical psychology concerning defendant's low mental capacity where the expert testified on voir dire that he had not personally examined defendant and had performed no psychiatric tests on defendant; the tests which formed the basis of his opinion testimony were administered four years earlier by a third party; at the time the tests were administered the defendant was not receiving treatment from the medical center where the expert practiced; and the expert stated that he did not personally know the defendant and was talking in terms of the general category of mildly retarded people. Furthermore, the testimony was not relevant to the admissibility of defendant's confession since the trial judge during a previous voir dire had ruled that the confession was voluntary and admissible. 6. Criminal Law 71 — testimony that defendant "was going to shoot him again" — shorthand statement of fact In this homicide prosecution, a witness's testimony that defendant, after shooting deceased, reloaded his gun and "was going to shoot him again" was competent as a shorthand statement of the facts describing for the jury what he had seen. 7. Homicide 21.5 — first degree murder — sufficiency of evidence The evidence was sufficient to support defendant's conviction of first degree murder where it tended to show that deceased and defendant engaged in an argument; defendant walked to the trunk of his car and removed a .12 gauge shotgun; defendant leveled the gun at deceased who was some 10 feet away; deceased began backing up with his hands empty and in the air; and defendant then cocked the hammer on the shotgun and shot deceased in the stomach, causing his death.

Master and Servant 69 — workers' compensation death benefits — maximum weekly benefit The amendment to G.S. <cross_reference>97-29</cross_reference> by Ch. 1103 of the 1973 Session Laws governing the maximum weekly workers' compensation benefit, applies to G.S. <cross_reference>97-38</cross_reference> so that G.S. <cross_reference>97-38</cross_reference> no longer limits recovery for death claims to $80.00 per week, and the Industrial Commission properly determined that by computing benefits pursuant to G.S. <cross_reference>97-29</cross_reference>, plaintiffs are entitled to weekly benefits of $158.00 per week for 400 weeks.