Volume 300 — North Carolina Reports

1. Criminal Law 63 — mental capacity of defendant — examination by non-treating psychiatrist — expert testimony based on personal knowledge A psychiatrist could properly give an opinion based on personal knowledge that defendant knew the difference between right and wrong and the nature and quality of his acts at the time of a murder, although the psychiatrist was not treating defendant in an effort to cure him but observed, evaluated and diagnosed defendant to prepare himself to testify at defendant's trial, where the psychiatrist conducted thorough and professional examinations of defendant and took into account the entirety of what defendant said together with his own interpretation and analysis of it and the objective manifestations which accompanied it. Furthermore, since the opinion was admissible, the psychiatrist could properly testify concerning the content of his conversations with defendant in order to show the basis for his diagnosis. 2. Criminal Law 63 — mental capacity of defendant — expert qualified to base opinion on personal knowledge — use of hypothetical question Defendant could ask an expert witness a hypothetical question concerning whether defendant had a mental disease or defect even though the witness had personally examined defendant so that he was qualified to give an opinion based on his personal knowledge. 3. Criminal Law 63 — mental capacity of defendant — prior attitudes and acts — remoteness The trial court did not err in refusing to permit the forty-seven year old defendant to introduce testimony by his mother and sister<page_number>Page 2</page_number> regarding his childhood attitudes, his school attendance, his father's drinking problems, and an episode when defendant was thirty years old when he cut his wrists with a razor blade, since the excluded testimony was too remote to have any relevance to defendant's mental condition at the time of the murder in question. 4. Criminal Law 87.4 — exclusion of repetitious testimony on redirect The trial court did not err in refusing to permit an expert witness to restate on redirect examination his opinion regarding defendant's mental illness where the testimony was merely repetitious and did not clarify testimony which had been cast into doubt on cross-examination, clarify new matter brought out on cross-examination, or refute testimony elicited on cross-examination. 5. Criminal Law 96 — allowing motions to strike — instruction to disregard stricken evidence given at first of trial Defendant was not prejudiced because the jury heard testimony which was stricken by the court upon motions by defendant where the court instructed the jury at the beginning of the trial not to consider the answer of a witness when a motion to strike was allowed and referred to this instruction when the motions to strike were allowed, although the better procedure is to give the instruction to disregard the answer immediately after allowing the motion to strike. 6. Criminal Law 63 — mental capacity of defendant — exclusion of expert testimony — error favorable to defendant A psychiatrist should have been allowed to state an opinion based on his personal knowledge obtained as a result of his examinations of and conversations with defendant as to whether defendant knew the difference between right and wrong or understood the nature and quality of his acts on the date of a murder, but the trial court's refusal on at least twenty-five occasions to permit the psychiatrist to state his opinion constituted error favorable to defendant. 7. Criminal Law 50 — expert testimony — necessity for stating basis of opinion The general rule is that when the facts are within an expert's personal knowledge, he may relate them first and then give his opinion or, in the discretion of the judge, he may give his opinion first and leave the facts to be brought out on cross-examination. 8. Criminal Law 50 — expert's testimony as to relevant facts Relevant facts may be testified to by an expert even if ultimately the expert is not allowed to state his opinion or conclusion concerning those facts. 9. Criminal Law 53 — expert medical testimony — conversations with patient A medical expert should not recount the content of conversations with a patient to show the basis for his opinion unless his opinion is admissible into evidence, since the content of those conversations is not substantive evidence and is admissible only to show the basis for the expert's opinion.<page_number>Page 3</page_number> 10. Criminal Law 53 — expert medical opinion based on conversations with patient — determining admissibility of conversations Where a medical expert's opinion is based in part on conversations with the patient, (1) the expert may testify as to the background facts other than the content of conversations and then give his opinion, if admissible, followed by his testimony as to the content of the conversations on which his opinion was based, or (2) the trial judge may conduct a voir dire hearing and rule on the admissibility of the opinion, and if the opinion is ruled inadmissible and the only justification for admitting the conversations is to show the basis for the opinion, the content of the conversations is inadmissible. 11. Criminal Law 53 — medical expert — opinion excluded — admission of conversations with patient — harmless error While it was error for the court to permit a psychiatrist to testify as to conversations with defendant during his examination of defendant since the court excluded the psychiatrist's opinion on defendant's mental capacity at the time of the crime, such error was not prejudicial to defendant where substantially the same information came into evidence when defendant testified in his own behalf and when his confession was admitted into evidence. 12. Criminal Law 75.9 — volunteered confession — admissibility Defendant's confession was properly admitted in a murder trial where the evidence supported findings by the court that defendant was advised of his Miranda rights on a trip from Maryland to North Carolina, signed a written waiver of rights form, but did not implicate himself in the murder in response to questioning; the questioning then stopped; three to five hours later defendant initiated the conversation in which he admitted that he strangled the victim; and defendant's confession was not the result of interrogation but was volunteered and spontaneous. 13. Criminal Law 5.1 — jury argument concerning defense of insanity — no impropriety The prosecutor's jury argument to the effect that a finding that defendant has a mental illness does not alone make out the defense of insanity but that the defense is not complete unless defendant did not know the difference between right and wrong or did not know the nature and quality of his acts was proper and did not violate a pretrial order prohibiting the prosecutor from referring to the fact that defendant would not be incarcerated if he was found not guilty by reason of insanity at the time of the crime but was found to be sane at the time of the trial. 14. Criminal Law 112.6 — instructions — burden of proof of insanity — failure to define "satisfaction" The trial court was not required to define "satisfaction" as requested by defendant after instructing that defendant had the burden of proving insanity to the satisfaction of the jury. 15. Criminal Law 112.6 — effect of mental disease on criminal intent — failure to give requested instructions The trial court, in instructing on the defense of insanity in a first degree murder case, did not commit prejudicial error in refusing<page_number>Page 4</page_number> to give defendant's requested instruction that "criminal intent . . . is an essential element of murder, and if by reason of mental disease a person is incapable of forming any intent, he cannot be regarded by the law as guilty," since (1) if "criminal intent" in the requested instruction referred to a specific intent to kill, failure to so instruct was not prejudicial to defendant because the theory of diminished mental responsibility has not been adopted in this State and because the jury, by its verdict finding defendant guilty of first degree murder, found that defendant had the mental capacity to know right from wrong and thus that he had the lesser included mental capacity to form a specific intent to kill; and (2) if "criminal intent" referred to a general intent to perform the act constituting murder, the insanity instruction as given fully explained to the jury that defendant was not guilty of any offense if he did not have the intent to commit the act constituting murder.

1. Criminal Law 92.5 — several crimes committed pursuant to single scheme — severance properly denied The trial court did not err in denying defendant's motion to sever charges of breaking and entering, larceny and robbery with firearms, since the theory of the State's case was that defendant broke into and entered a home from which he took a stereo for the purpose of selling such stolen property, and, pursuant to this single plan or scheme, he went to an apartment one week later to sell the stolen property and, while there, committed the crime of robbery with firearms when he obtained $300 from a person who claimed to be the owner of the stereo.<page_number>Page 42</page_number> 2. Robbery 4 — robbery with firearms — sufficiency of evidence Evidence of felonious intent was sufficient to support a conviction of robbery with firearms, and there was no merit to defendant's contention that he did not know or have reasonable grounds to know that he was not entitled to the possession of the stereo in question or that the stereo he took was in fact the property of the person he allegedly robbed where the State's evidence tended to show that defendant broke into a home and stole a stereo which he tried to sell a week later; a person claiming to be the owner of the stereo demanded its return; defendant demanded $300 at gunpoint before he relinquished possession of the stereo; defendant contended that he bought the stereo, which he valued at $900, from a stranger at night for $300; defendant contended that when he first entered the apartment where the alleged robbery occurred, a man claimed ownership of the stereo and offered to show defendant documents proving his ownership; and defendant stated that he did not know for sure if the stereo belonged to the robbery victim, but defendant felt he was entitled to either the stereo or the money he had paid for it. 3. Robbery 5.4 — robbery with firearms — failure to instruct on assault with deadly weapon — error In a prosecution for robbery with firearms where the evidence tended to show that defendant relinquished possession of a stereo to the person claiming ownership only after that person handed over $300 while defendant held a gun on him, the trial court erred in failing to submit to the jury the lesser included offense of assault with a deadly weapon, since defendant asserted a claim of right in the stereo and there was therefore conflicting evidence as to felonious intent. 4. Robbery 5.1 — robbery with firearms — felonious intent — instructions inadequate In a prosecution for robbery with firearms, the trial court in the jury instructions did not clearly bring into focus the conflicting contentions arising from the evidence as to the absence or presence of felonious intent. 5. Robbery 4.7 — robbery with firearms — aiding and abetting — insufficiency of evidence In a prosecution for robbery with firearms where the State rested its case against one defendant upon the theory that he aided and abetted the other defendant in the commission of the crime, the trial court erred in denying the first defendant's motion for nonsuit, though defendant was present at the crime scene and was apparently on friendly terms with the defendant who actually committed the robbery, since there was no evidence that defendant by word or act communicated an intent to aid the actual perpetrator should assistance become necessary.

1. Municipal Corporations 8.1, 11 — ordinance requiring city employees to reside in city — standing to challenge constitutionality Plaintiff had standing to litigate the issue of the constitutionality of a city ordinance requiring all permanent employees to be residents of the city but permitting employees living outside the city when the ordinance was adopted to continue to do so where plaintiff was discharged as a fireman for violation of the ordinance, and he alleges that the ordinance is void on its face and that it was applied with an uneven hand, since plaintiff has suffered a direct injury under the very terms of the ordinance which he seeks to challenge. 2. Municipal Corporations 9 — ordinance requiring city employees to reside in city — exception for those residing outside city on ordinance date — no unconstitutional delegation of power to city manager A city ordinance requiring all permanent city employees to be residents of the city, providing that all employees living inside the city limits on the date of the ordinance must continue to reside within the city limits at all times, permitting employees living outside the city on that date to continue to do so, and directing the city manager to implement the residency rules and prescribe other reasonable standards which are "consistent with the standards and criteria" specifically set out in the ordinance does not unconstitutionally vest unlimited discretion in the city manager to enforce the ordinance. 3. Municipal Corporations ordinance requiring city employees to reside in city — exception for those residing outside city on ordinance date — no unconstitutional application of ordinance A city ordinance requiring all permanent city employees to be residents of the city, requiring all employees living inside the city to continue to live inside the city, and permitting employees living outside the city on the date of the ordinance to continue to do so was not unconstitutionally applied to a city fireman who was discharged for moving his residence outside the city because the city manager permitted employees who had committed themselves to buying or leasing a residence outside the city prior to the date of the ordinance to<page_number>Page 127</page_number> move outside the city after the date of the ordinance, where there was no evidence that plaintiff had entered into any type of commitment to construct or rent a residence outside the city prior to the date of the ordinance, and plaintiff's evidence showed only that he was denied permission two months after the date of the ordinance to change his address form to reflect what he contended was his true address outside the city on the date of the ordinance, since the denial of plaintiff's request to change his address form did not amount to enforcing the ordinance against him in an unequal manner compared with others "similarly situated." 4. Administrative Law 6; Municipal Corporation 11.1 — administrative determination — review by certiorari — effect of independent action The proper procedure to review a determination by an administrative agency where none is provided by statute is to petition for a writ of certiorari in the superior court, and where plaintiff fireman did not seek judicial review of an administrative determination that he moved his residence outside the city of his employment but filed an original action in the superior court, the appellate court is bound by the administrative determination that plaintiff moved his residence outside the city limits. 5. Municipal Corporation 11 — discharge of city fireman — notice and hearing An employment contract is generally not a sufficient proprietary interest to require full-scale constitutional protection in the form of a pretermination hearing. Even if plaintiff city fireman's interest in his employment was sufficient to invoke constitutional requirements of notice and hearing before his discharge for moving his residence outside the city limits, plaintiff received adequate notice and hearing to comport with due process where plaintiff was informed by letter on 27 May 1977 that a hearing would be held on 31 May 1977 concerning his alleged violation of a city ordinance requiring him to remain a resident of the city and that he was entitled to have someone accompany or represent him at the hearing; a departmental hearing was held before a board consisting of members of the fire department, and plaintiff was permitted to put on evidence; plaintiff was subsequently notified of the decision to terminate his employment and the reasons therefor; and plaintiff appealed this decision to the city manager and was given a hearing before the city manager with the opportunity to offer additional facts in support of his case.

Executor's and Administrators 18, 19.1 — executor's notice to creditors — failure to name day after which claims barred — failure to state time runs from the first publication An executor's general notice to creditors published in a newspaper was fatally defective where it failed to name a day after which claims would be barred and failed to give notice that claims must be filed within six months from the day of the first publication of the notice; therefore, the notice to creditors was ineffective to start the running of the six months' statute of limitations of G.S. <cross_reference>28A-19-3</cross_reference> (a) in bar of a claim against decedent's estate to recover for personal injuries received in an automobile accident.

Rules of Civil Procedure 41.1 — voluntary dismissal announced in open court — one year to bring new action — when year begins to run When a case has proceeded to trial and both parties are present in court, the one year period in which a plaintiff is allowed to reinstitute a suit from a Rule 41 (a)(i) voluntary dismissal begins to run from the time of oral notice of voluntary dismissal given in open court, not from the time written notice is filed with the clerk of court.

1. Homicide 30.2 — second degree murder case — instruction on manslaughter not required The trial court in a second degree murder case did not err in failing to charge the jury that it might find defendant, who offered no evidence in his own behalf, guilty of voluntary manslaughter, since evidence presented by the State tended to show that defendant was guilty of murder if he was guilty of anything, and evidence presented by a codefendant tended to show that defendant was not guilty of anything. 2. Criminal Law 113.7 — two defendants — acting in concert — instructions proper In a second degree murder prosecution of two defendants where voluntary manslaughter was submitted as an alternative verdict for only one defendant, there was no merit to defendant's contention that the trial court gave conflicting instructions concerning acting in concert to the jury, since the instructions about which defendant complained were given while the court was instructing on second degree murder, and the court subsequently clearly instructed on what the jury would have to find in order to return a verdict of guilty of second degree murder or voluntary manslaughter against defendant.

Rules of Civil Procedure 50.5 — evidence legally insufficient — new trial properly granted Where a court on appeal reverses a trial court's determination that plaintiff's evidence is legally sufficient, nothing in the Rules of Civil Procedure precludes the Appellate Division from determining in a proper case that plaintiff appellee is nevertheless entitled to a new trial. Therefore, the Court of Appeals, having found that plaintiff's competent evidence at trial was legally insufficient to support his quantum merrit claim against defendant, was correct in failing to overrule the trial court's denial of defendant's motion for involuntary dismissal and in remanding the cause for a new trial where the record shows that incompetent evidence was erroneously considered by the trial judge in his ruling on the sufficiency of plaintiff's evidence, since, had it not been for the erroneous admission of the incompetent evidence in the first place, plaintiff might well have introduced other, competent evidence of the same import which would have properly withstood defendant's motion for voluntary dismissal or directed verdict.

1. Criminal Law 166 — incorporating material from another case in brief — necessity for filing material with present case When incorporating material from another case by reference in a brief, a copy of the incorporated material should be filed with the immediate case under reivew so that the Court and the opposing party will have access to this material without having to retrieve it from the clerk's file on the other case. 2. Indictment and Warrant 15 — motion to quash indictment — timeliness Defendant's motion to quash the indictments on the ground of racial discrimination in the selection of the grand jury was not timely where it was not made at or before arraignment but was made after a mistrial was declared in defendant's first trial. G.S. <cross_reference>15A-952</cross_reference> (e). 3. Grand Jury 3.3 — racial discrimination in grand jury selection — no prima facie showing Evidence that 10.8% to 11.3% of the population of the county was black and that 7.4% of the names on the jury list were of blacks,<page_number>Page 535</page_number> resulting in a disparity of no more than 3.9%, was insufficient to make out a prima facie case of racial discrimination in the selection of the grand jury. 4. Criminal Law 86.5 — impeaching defendant's character — remarks by defendant to prosecutor during trial The district attorney could properly ask defendant on cross-examination if, during the trial as he passed by the district attorney's table, he had called the district attorney a "punk" and had mouthed the word "mother" to him, since any prior act which tended to impeach defendant's character could be asked about as a prior act of misconduct, and the questions were asked in good faith because the district attorney had personal knowledge of the instances of misconduct. 5. Criminal Law 86.3 — cross-examination of defendant — violation of criminal law — prior conviction or specific act of misconduct When misconduct is in violation of the criminal law and has resulted in a conviction, the questioning on cross-examination may be phrased either in terms of a prior conviction or of a prior specific act of misconduct. 6. Criminal Law 86.5 — cross-examination of defendant — prior acts of misconduct — good faith by prosecutor The defendant in a kidnapping and rape prosecution could properly be asked on cross-examination if he had previously broken into a trailer to rape the woman who lived there and if he had broken into the trailer of another woman on another date and raped her where the district attorney asked the questions in good faith in that, in asking the first question, the district attorney relied on a police report stating that officers found defendant lying on the trailer floor "shot with a hood on his head and a gun on his body" and that the woman had lived alone in the trailer next to defendant's house for two months, and, in asking the second question, the district attorney relied on information that the rape victim had identified defendant in a lineup and by photograph. 7. Criminal Law 33.3 — having woman stand for identification — no evidence as to collateral matter The district attorney's action in having a woman stand to determine whether defendant could recognize her after defendant was asked if he had raped the woman on the front row with a black blouse and defendant stated while she was seated that he did not recognize her did not constitute the improper introduction of extrinsic evidence on a collateral matter. Furthermore, defendant was not prejudiced if the woman "gave a nod with her head" when she stood where there was no evidence that the jury observed this alleged occurrence and there was no objection at the point when she was asked to stand. 8. Jury 7.14 — peremptory challenges — use to exclude blacks from jury The district attorney's use of his peremptory challenges to exclude blacks from the jury in his case was not improper.<page_number>Page 536</page_number> 9. Jury 7.6, 7.9 — State's reopening of questioning of juror after passing him — excusal for cause The trial court did not err in permitting the State to reopen its questioning of a juror after the State had passed him, and the court properly excused the juror for cause when he stated that he would be a little biased against the State because the district attorney peremptorily challenged all black jurors. 10. Jury 7.9 — more value on officer's testimony — denial of challenge for cause The trial court did not err in denying defendant's motion to excuse for cause a juror who stated that he would put more value on the testimony of a law officer than on the testimony of other witnesses where the juror then stated that he could be fair to both sides and would base his verdict on the evidence presented and the law as given by the trial judge. 11. Criminal Law 87.1 — leading questions — no abuse of discretion The trial court did not abuse its discretion in permitting the State to ask its chief witness four questions which were somewhat leading where, in each instance, the district attorney was directing the witness's attention to the next subject of inquiry, and the witness elaborated upon his "yes" answer with additional testimony in response to two of the questions. 12. Criminal Law 33 — defendant's possession of gun on other occasions — relevancy Testimony in a kidnapping and rape trial that the State's witness had seen defendant with a gun on days previous to the alleged offenses was relevant to an understanding of the conduct of the witness and defendant since the witness had just testified that when his gun was jammed the defendant said, "Use mine" although defendant did not ultimately produce a gun. 13. Criminal Law 88.1 — cross-examination — no improper restriction Defendant's right to cross-examine the State's chief witness was not improperly restricted when the court sustained the State's objections to repetitious and argumentative questions. 14. Criminal Law 87.4 — mistrials for failure of jury to agree — no rehabilitation of witness Where the State referred to two federal trials of defendant in impeaching him on cross-examination, the trial court's refusal to permit defendant to testify on redirect that mistrials had been declared in those trials because of the jury's inability to agree upon a verdict did not constitute the erroneous refusal to permit defendant to rehabilitate his credibility, since the jury's failure to agree did not amount to an acquittal or invoke the doctrine of double jeopardy, and the testimony thus would not serve to rehabilitate the witness. 15. Criminal Law 102.6 — prosecutor's jury argument — no impropriety In this prosecution for kidnapping and rape, the district attorney properly argued the evidence and the reasonable inferences deductible therefrom in arguing that the State would have no case against an accomplice who testified for the State without his confession, in arguing defendant's prior act of misconduct in raping another woman,<page_number>Page 537</page_number> in arguing that the State learned of a witness from the accomplice when the accomplice had not directly so testified, and in arguing that the testifying accomplice would not want to be in the same prison with defendant. 16. Constitutional Law 28, 50 — delay of trial — no prosecutorial oppression There was no prosecutorial oppression amounting to a denial of due process in this prosecution for kidnapping and rape where defendant was indicted in November 1977 at a time when he was in federal custody; he was tried twice in federal court for kidnapping, and both trials resulted in mistrials because of hung juries; defendant was delivered into the State's custody on 17 February 1978; the State was granted a continuance from the scheduled trial date of 17 April 1978; the State attempted to prosecute defendant on other charges, but those charges were dismissed for violation of defendant's right to a speedy trial; this case was tried in July 1978 but the jury was unable to reach a verdict and a mistrial was declared; defendant was granted a change of venue to another county on 13 September 1978; the State then relinquished custody of defendant to South Carolina; the South Carolina charges were dismissed on 23 March 1979 and defendant was returned to North Carolina; defendant's motions to dismiss the charges against him in this State for lack of a speedy trial and for prosecutorial oppression were entered on 23 April 1979; and defendant was tried and convicted in July 1979. 17. Constitutional Law 50 — no denial of right to speedy trial Defendant was not denied his right to a speedy trial by the delay between his indictment in November 1977 and his trial in July 1979 where he was either in federal custody or in custody in South Carolina except from February to September 1978 and March to July 1979, and the remaining time falls short of denying defendant his constitutional right to a speedy trial because there is no evidence that any of the delay for which the State of North Carolina was responsible prejudiced his case or his ability to present his defense.

1. Criminal Law 66.10 — suggestive pretrial identification at police headquarters — suppression of in-court identification — improper identification questions by prosecutor — harmless error In a prosecution for conspiracy to commit armed robbery and murder committed in the perpetration of an armed robbery wherein the trial court granted defendant's motion to suppress a witness's in-court identification of defendant on the basis of a prior impermissibly suggestive identification at police headquarters, the prosecutor acted improperly in asking the witness on two occasions to look at defendant and to state whether he could identify defendant as the driver of the getaway van; however, defendant was not prejudiced by such impropriety where the trial court in each instance sustained defendant's objection and directed the witness not to answer the question; defense counsel failed to request that the court instruct the jury to disregard the prosecutor's questions; the witness was allowed to give a detailed description of the driver of the van which corresponded to defendant's appearance; and there was strong evidence of defendant's guilt of the crimes charged. 2. Criminal Law 91.2 — denial of continuance because of pretrial publicity The trial court did not err in denying defendant's motion for a continuance based upon publicity surrounding a female accomplice's trial and references to defendant in certain news articles where prospective jurors who indicated they had read or heard about the case stated that they had not formed or expressed an opinion about the case and could render a fair and impartial verdict based on the evidence and the law as presented at trial; and the record fails to show that defendant ever requested the removal for cause of any venireman who eventually sat on the impaneled jury or that defendant exhausted his peremptory challenges before he passed the jury.<page_number>Page 643</page_number> 3. Criminal Law 66.9, 66.16 — pretrial photographic procedure — in-court identification — independent origin — no unnecessary suggestiveness The evidence supported the trial court's finding that a witness's in-court identification of defendant's alleged female accomplice as the person who shot a supermarket manager was of independent origin and not tainted by a pretrial identification procedure in which the witness was shown a photograph of the accomplice in the district attorney's office where the witness, a supermarket employee, testified that she heard the manager call for help, heard the sound of two gunshots, and saw a person leave the manager's office and walk out of the store; this person faced the witness at all times before leaving the store; she described the person as being about five feet six inches in height and as having a husky build, dark brown hair, and a pale, rounded face with no facial hair; although at the time the witness believed the person she saw to be a male, she told people the night of the crime that she would never forget the person's face as long as she lived; and the witness stated that her identification of the accomplice was independent of any photograph she had seen. Furthermore, the pretrial procedure was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny defendant due process of law where the witness, while meeting with the district attorney in his office, saw a photograph of defendant's accomplice lying on the desk and asked to see it; and although she recognized the person in the photograph as the assailant, no one asked her to identify the person depicted in the photograph, and she made no statement about it.

1. Sales 22 — product liability — action barred by contributory negligence Plaintiff's contributory negligence will bar his recovery in a product liability action founded on negligence to the same extent as in any other negligence case. 2. Negligence 13 — contributory negligence — when applicable In order for contributory negligence to apply, it is not necessary that plaintiff be actually aware of the unreasonable danger of injury to which his conduct exposes him; rather, plaintiff may be<page_number>Page 670</page_number> contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety. 3. Sales 22; Negligence 34.1 — negligent design and manufacture of machine — contributory negligence of person unclogging machine In an action to recover for injuries to plaintiff's left hand allegedly caused by defendant's negligence in the design and manufacture of a "fine opener" machine, there was sufficient evidence to carry the case to the jury on the issue of plaintiff's contributory negligence in placing his hand inside the fine opener soon after the power to it had been cut without first determining that no parts were moving inside it where it tended to show that plaintiff was employed as a picker tender; plaintiff noticed that material had clogged or wrapped up around the feeder rollers of a fine opener machine and told the operator of the fine opener to shut down the machine and he would clear the wrap-up; about a minute after power to the fine opener had been cut, plaintiff inserted his left hand into a narrow opening between the feeder rollers and a metal guard covering the beater roller; plaintiff's hand was struck by the beater roller, which was still coasting on its axle; plaintiff knew that the picker he normally operated utilized large, spiked cylinders to process stock and that these cylinders rotated at high speeds and continued to coast after power to the picker had been cut; plaintiff knew that the movement of these cylinders could be verified by observing the movement of a belt-pulley assembly on the outside of the picker; the morning before his accident plaintiff had observed the interior of a fine opener and was thus aware that the fine opener functioned in much the same manner as the picker and that a rapidly rotating spiked cylinder was located behind the feeder rollers; and, as in the picker, part of the belt-pulley assembly which turned the spiked cylinder in the fine opener was visible on the outside of the machine. 4. Negligence 13.1 — contributory negligence not barred by failure to warn of danger The determination of contributory negligence cannot be predicated on the automatic application of per se rules which do not take into account the particular state of facts presented. Accordingly, the defense of contributory negligence is not invariably barred by defendant's failure to warn of a danger when the facts indicate that plaintiff, in the exercise of ordinary care, should have known of the danger of injury independent of any warning by defendant. 5. Sales 22 — product liability case — strict liability inapplicable The doctrine of strict liability will not be applied in product liability cases.

1. Criminal Law 90.2 — impeachment of own witness by prior inconsistent statements In this prosecution for felonious burning of a dwelling house in which defendant's sister testified as a witness for the State that she told her landlord to call the fire department because his tenant house was on fire and that she did not know how the fire started, the trial court committed prejudicial error in permitting the State to impeach its own witness by presenting testimony by the landlord that defendant's sister told him to call the fire department and the sheriff because defendant was setting the house on fire. 2. Criminal Law 90.2 — erroneous declaration of witness as hostile witness The trial court erred in declaring defendant's sister, who had been called as a witness for the State, a hostile witness and in permitting the State to impeach her testimony with prior inconsistent statements she had made to a police officer where the State was not misled, surprised or entrapped by the sister's testimony but was aware that she intended to repudiate statements she allegedly made to the officer. 3. Arson 5 — felonious burning of dwelling — no necessity for instruction on attempted arson The evidence in a prosecution for felonious burning of a dwelling house did not require the court to instruct on the lesser included offense of attempted arson.

1. Divorce and Alimony 24; Parent and Child 7 — support of child — duties of father and mother G.S. <cross_reference>50-13.4</cross_reference> (b) and (c) clearly contemplate a mutuality of obligation on the part of both parents to provide material support for<page_number>Page 709</page_number> their minor children where circumstances preclude placing the duty of support upon the father alone. 2. Divorce and Alimony 24.9 — child support — income and needs of parties — insufficiency of findings to support conclusion The trial court's finding of fact that defendant mother's monthly income was $483.32 plus an indeterminable amount earned from overtime work while her monthly expenses were approximately $510 and that plaintiff father's net monthly income was $825 while the financial needs of the children averaged $432 did not support the trial court's conclusion as to either plaintiff's financial need for child support assistance or defendant's financial ability to provide it; furthermore, while there was evidence in the record from which findings could be made which would support the conclusion that plaintiff was in need of financial assistance from defendant, what the evidence did show was a matter for the trial court to determine in appropriate factual findings. 3. Divorce and Alimony 24.9 — child support — expenses of parties — reasonableness — requirement of finding The trial court in a child support case should be satisfied that personal expenses itemized in the parties' balance sheets are reasonable under all the circumstances before making a determination of need or liability, and though a lack of a specific conclusion as to reasonableness will not necessarily be held for error, the better practice is for the order to contain such a conclusion.

1. Homicide 15.5 — murder of stepchild — cause of death — expert opinion evidence properly admitted In a prosecution of defendant for the murder of his 18 month old stepdaughter, the trial court did not err in admitting the testimony of three doctors who opined that decedent's injury was probably not caused by a fall down a flight of stairs, since all three medical experts were in a better position to have an opinion on the cause of deceased's injuries than the jury because of their medical training and their experience in observing and treating skull fractures; the witnesses stated only their opinions as to the possibilities, not the certainties, of the cause of deceased's injuries; and none of the three experts made any statement as to their opinion of defendant's guilt or innocence. 2. Homicide 30.2 — murder of stepchild — instruction on manslaughter not required In a prosecution of defendant for the murder of his 18 month old stepdaughter, the trial court did not err in failing to charge the jury on voluntary manslaughter since evidence for the State tended to show that defendant had killed the child — whom he termed "the little s.o.b." — with malice, while defendant's only explanation of deceased's fatal injury was that she accidentally and by herself fell down a flight of stairs, and there was therefore no evidence of voluntary manslaughter.