Volume 301 — North Carolina Reports

1. Searches and Seizures 8 — warrantless arrest upon probable cause — evidence from seizure of person admissible <block_quote> There was no merit to defendant's contention that an officer, who arrested defendant without a warrant, had no probable cause to take him into custody and any evidence emanating from that illegal seizure of his person should be suppressed, since the evidence tended to show that the officer observed defendant some 3 1/2 blocks from a rape victim's apartment some seven to ten minutes following the commission of the offenses of burglary, rape and larceny; the officer had earlier been alerted by police radio concerning the commission of the offenses and had been given a description of the offender as a black male with facial hair, wearing a toboggan and a green or blue jogging suit with white stripes down the sides of the trousers; when the officer observed defendant, he reconfirmed by radio this description; and the officer noted that defendant matched the description and placed him under arrest.</block_quote> 2. Criminal Law 42.2, 50 — weapon used during rape — testimony that witness "assumed" it was a knife <block_quote> In a prosecution for first degree rape, larceny, and first degree burglary, testimony by the victim that she "assumed" an object which defendant had in his hand during the commission of the crimes was a knife was not an inadmissible opinion or conclusion, since the witness was either giving her then instantaneous conclusion derived from a variety of facts presented to her senses or stating, in effect, that her impression, although indistinct, was that the object was a knife, and under either theory such testimony was admissible; moreover, the victim's statement that the object she had observed "could have been" State's Exhibit No. 1, which she described as a "black handled screwdriver with a bent end on it" and which, other evidence showed, was in defendant's possession at the time of his arrest, was likewise properly admitted into evidence, since any object having a relevant connection with the case is admissible in evidence, it not being necessary that the witness positively identify the object, and the witness could properly testify that what she saw and felt was consistent with its being either a knife or a screwdriver.</block_quote> 3. Criminal Law 89.10 — rape victim — cross-examination as to prior misconduct limitation not prejudicial <block_quote> In a prosecution for first degree rape, larceny, and first degree burglary, defendant failed to show that he was prejudiced by the trial court's limiting of his cross-examination of the victim concerning prior acts of misconduct, since the victim answered the question before the jury notwithstanding the trial court's ruling; defendant had the benefit of his question from the trial court's ruling; defendant did not show<page_number>Page 19</page_number> any reasonable possibility that a different result would have been reached at trial had the questioning been permitted; and the question was designed at most to impeach the victim's credibility as a witness, but her credibility was not a significant issue at this trial.</block_quote> 4. Rape 5 — first degree rape — sufficiency of evidence <block_quote> In a prosecution for first degree rape evidence was sufficient to be submitted to the jury where it tended to show that the victim had been forced against her will to have sexual intercourse with a black male wearing a toboggan and jogging outfit while he held a long, cold, metallic object against her head which she thought was a knife but which could have been a screwdriver; several items were missing from the victim's apartment following the incident, including a cigarette lighter and some paperback books; within minutes of the alleged incident defendant was discovered 3 1/2 blocks away dressed substantially as the victim had described her assailant; and found in his possession were several objects matching the description of objects missing from the victim's apartment, including two objects which she specifically identified as belonging to her.</block_quote> 5. Rape 6; Larceny 8.4; Burglary and Unlawful Breakings 6.5 — possession of recently stolen property — relevancy in determining guilt of rape, larceny, burglary — offenses committed at same time <block_quote> In a prosecution for first degree rape, larceny, and first degree burglary, the trial court properly instructed the jury that it could consider defendant's possession of recently stolen property as a relevant circumstance in determining whether defendant was guilty of all the crimes charged against him where all of the crimes, including the larceny, occurred as a part of the same criminal enterprise.</block_quote> 6. Burglary and Unlawful Breakings 6.3 — first degree burglary — felony committed — instructions not in conformity with indictment — harmless error <block_quote> In a prosecution for first degree rape, larceny, and first degree burglary, the trial court erred in instructing the jury that to convict defendant of burglary it must find that, at the time of the breaking and entering, defendant intended to commit rape or larceny, since the indictment alleged only that the breaking and entering occurred with the intent to commit larceny. However, defendant failed to meet his burden of showing that, had the error not been committed, a different result would have been reached at trial, since whether defendant intended to commit either larceny or rape or both at the time he entered the dwelling was a fact which must be inferred, if at all, from defendant's actions after he entered the victim's apartment; the evidence tended to show that defendant, once inside, committed both rape and larceny; the evidence that he intended to commit one of those crimes when he entered was therefore no weaker or stronger than the evidence that he intended to commit the other; and the jury found beyond a reasonable doubt that, once inside, defendant committed both.</block_quote>

1. Deeds 21; Vendor and Purchaser 1 — restraint on alienation — preemptive rights <block_quote> Certain restrictions on a landowner's right to alienate his property, if defined as preemptive rights and if carefully limited in duration and price, are not void per se and will be enforced if reasonable.</block_quote> 2. Deeds 21; Vendor and Purchaser 1 — preemptive right defined <block_quote> A preemptive right requires that property must first be offered to the conveyor or his heirs or to some specially designated person before it may be sold to another party.</block_quote> 3. Deeds 21; Vendor and Purchaser 1 — reasonableness of preemptive right duration and price <block_quote> Two primary considerations dictate the reasonableness of a preemptive right: the duration of the right and the provisions it makes for determining the price of exercising the right.</block_quote> 4. Deeds 21; Vendor and Purchaser 1 — preemptive right — rule against perpetuities — determination of price <block_quote> A preemptive right is reasonable if the duration does not violate the rule against perpetuities and if it links the price to the fair market value of the land or to the price the seller is willing to accept from third parties.</block_quote><page_number>Page 59</page_number> 5. Deeds 21; Vendor and Purchaser 1 — validity of preemptive right <block_quote> A restrictive covenant which required any grantee of certain land who desired to sell such land to offer the grantors the option to repurchase at a price no higher than the grantee was willing to accept from any other purchaser and which provided that the right should last the lifetime of the male grantor plus twenty years was reasonable as to price and time and created a valid preemptive right.</block_quote>

1. Uniform Commercial Code 30 — negotiable instrument — holder <block_quote> Where a negotiable instrument is made payable to order, one becomes a holder of the instrument when it is properly indorsed and delivered to him, and mere possession of a note payable to order does not suffice to prove ownership or holder status. G.S. <cross_reference>25-1-201</cross_reference> (20); G.S. <cross_reference>25-3-202</cross_reference>.</block_quote> 2. Uniform Commercial Code 30 — action on note — showing that plaintiff not holder — summary judgment <block_quote> Summary judgment was properly entered for defendant movants in an action to recover a deficiency judgment on a negotiable promissory note where defendants offered evidence that plaintiff corporation was not the holder of the note by showing that the note was not made payable to plaintiff or to bearer and was not indorsed to plaintiff and that the last indorsee and plaintiff were two separate and distinct corporate entities, and where plaintiff merely rested on its pleadings that it became the owner and holder of the note by corporate merger with the last indorsee but failed to introduce evidence to support its allegation of the existence of a merger.</block_quote>

Appeal and Error 6.2 — order setting aside default judgment — order interlocutory — no substantial right affected — order not appealable <block_quote> An order of the trial court allowing a motion pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (b) to set aside a default judgment was interlocutory and not appealable, and the Court of Appeals should have dismissed the appeal, even though the question of appealability was not raised by the parties. Furthermore, the order setting aside default judgment did not affect a substantial right of plaintiffs, the avoidance of a full trial on the merits not being a substantial right in this case.</block_quote>

1. Robbery 5.4 — armed robbery charged — instruction on common law robbery not required <block_quote> In a prosecution for armed robbery where the evidence tended to show that a gun was pointed at the victim and its persuasive influence was still present when defendant removed the victim's watch and wallet, defendant's denial of his participation in the robbery and his denial that he saw a gun during the robbery did not constitute evidence sufficient to require the trial court to submit an issue of common law robbery to the jury.</block_quote> 2. Criminal Law 126 — polling of jury — comment by juror — unanimous verdict <block_quote> The verdict of the jury was unanimous and the trial court properly accepted it, though a juror, when asked if the guilty verdict was her verdict, responded, "We understood it acting in concert," since the juror's comment referred to the instructions which had been given by the trial judge, and the juror responded affirmatively when the question was put to her again.</block_quote>

1. Criminal Law 84; Searches and Seizures 25 — insufficient affidavit for search warrant — admission of seized evidence — harmless error <block_quote> The affidavit upon which a search warrant for defendant's motel room was issued was fatally defective where the affidavit contained facts from which the magistrate could form a reasonable belief that the crimes of kidnapping and rape had been committed by a slender white man about six feet tall who had red curly hair and that the victim was assaulted in an automobile registered in defendant's name and parked in front of the motel, but the affidavit contained only a conclusory statement that defendant was registered in the motel, contained no information or circumstances indicating that defendant was the person described in the affidavit, and was therefore insufficient to support an inference that defendant was the person who committed the crimes and that the articles sought would be in his motel room or would aid in the apprehension or conviction of the offender. However, evidence admitted as the result of the search of defendant's motel room was not sufficiently prejudicial to require a new trial where the only article taken pursuant to the search under the warrant which revealed any probative evidentiary matter was a blanket containing two stains of type A blood, the same type as that of the victim, but such evidence was cumulative and of little probative value since type A stains were found in the automobile in which the assault occurred, and an expert testified that he could not determine the age of the stains on the blanket or even whether the stains were placed on the blanket at the same time.</block_quote> 2. Searches and Seizures 23 — warrant to search automobile — sufficiency of affidavit <block_quote> An affidavit upon which a warrant to search defendant's automobile was issued contained sufficient facts and circumstances to support a finding by the magistrate that there was reasonable cause to believe that the search would reveal the presence of the articles sought and that such objects would aid in the apprehension or conviction of the offender.</block_quote> 3. Criminal Law 99.9 — voir dire — court's leading questions to child witness <block_quote> In this prosecution for rape and kidnapping, the trial court did not err in asking leading questions of the seven year old victim during the voir dire hearing on defendant's motion to suppress identification testimony since G.S. <cross_reference>15A-1222</cross_reference> does not apply when the jury is not present during questioning, a child may be asked leading questions concerning delicate matters of a sexual nature, and the trial court may question a witness to clarify his testimony.</block_quote> 4. Criminal Law 66.9 — photographic identification — no impermissible suggestiveness <block_quote> The trial court properly determined that a pretrial photographic identification procedure was not impermissibly suggestive where the court<page_number>Page 244</page_number> found upon supporting voir dire evidence that a kidnapping victim was in the presence of her abductor for approximately two hours, that shortly after being released she gave the police a description of her abductor which was consistent with her trial testimony, and that the photographic display consisted of eight black and white photographs of the same quality showing persons with glasses, curly hair and basically the same facial features.</block_quote> 5. Criminal Law 53 — expert medical testimony — cause of bruises <block_quote> A medical expert was properly permitted to state his opinion that bruises on a kidnapping and rape victim's face "looked as though that pattern could have been made by fingers."</block_quote> 6. Arrest and Bail 3.7 — probable cause for arrest <block_quote> Officers had probable cause to arrest defendant for kidnapping and rape, and evidence seized pursuant to the arrest was thus not tainted by an illegal arrest, where the seven year old victim had been abducted from a bowling alley; the victim described her assailant as a white, slim male with reddish brown hair, described the automobile which had transported her as big, blue, old, "with two humps on the back," and stated that there were beer bottles in the back; an officer learned that defendant met the description given by the victim and that he had been seen at the bowling alley prior to her disappearance; the officer learned that defendant lived at a motel and drove a 1967 Chevrolet which matched generally the description the victim had given; officers saw the Chevrolet at the motel and determined that it was registered to defendant; before making the arrest, officers observed defendant and noted that he matched the description given by the victim of her assailant; and officers noted that the Chevrolet was humped and looked inside and saw that it contained beer bottles.</block_quote> 7. Kidnapping 1.2; Rape 18.2 — kidnapping — facilitating commission of rape — assault with intent to rape — sufficiency of evidence <block_quote> The State's evidence was sufficient to support defendant's conviction for assault with intent to commit rape and kidnapping by removing and restraining the victim "for the purpose of facilitating the commission of the felony of rape" where it tended to show that a white male removed the seven year old victim from a bowling alley, took her by car to a dirt road and "hurt" her; defendant had been to the bowling alley a short time before the victim disappeared; both defendant and his car matched descriptions given by the victim to the police; defendant had type O blood and the victim had type A blood; type A blood was found on the seat of defendant's automobile, and tests on trousers taken from defendant at the time of his arrest revealed the presence of semen and a group A substance; expert medical witnesses testified that there was a laceration between the victim's rectum and vagina; and a medical expert stated his opinion that "something had been inserted into the vagina beyond the hymenal ring."</block_quote> 8. Criminal Law 128.2 — improper question — motion for mistrial — objection sustained — jury instructed <block_quote> It was not error for the court to deny defendant's motion for mistrial on the ground of improper questioning by the prosecutor where the court sustained defendant's objection and instructed the jury to disregard the prosecutor's question and its implication.</block_quote><page_number>Page 245</page_number> 9. Kidnapping 2 — sentence of life imprisonment — absence of findings on mitigating circumstances — jury verdict finding defendant guilty of assault with intent to rape <block_quote> The trial court properly sentenced defendant to life imprisonment for kidnapping without making findings of fact concerning the mitigating circumstances as to whether the victim "was released by the defendant in a safe place and had not been sexually assaulted or seriously injured," G.S. <cross_reference>14-39</cross_reference> (b), where charges of kidnapping and assault with intent to commit rape were submitted to the jury, the jury found defendant guilty of both charges, and the nonexistence of the mitigating factors of G.S. <cross_reference>14-39</cross_reference> (b) was thus already established beyond a reasonable doubt.</block_quote> 10. Criminal Law 138.7 — severity of sentences — no showing defendant punished for pleading not guilty <block_quote> Presentence remarks made by the trial judge concerning defendant's plea of not guilty, while not approved, were made in the context of evaluating the worth of our jury system and did not show that defendant was more severely punished for kidnapping and assault with intent to commit rape because he exercised his constitutional right to a trial by jury.</block_quote>

1. Judgments 30; Rules of Civil Procedure 4, 60 — attack on foreclosure — independent suit or motion in cause proper — return of service insufficient on face <block_quote> Plaintiffs could properly attack a foreclosure proceeding either by motion in the cause or by independent action, since the stipulation of the parties at pre-trial conference that a companion action raising the identical issues had been instituted by plaintiffs by filing a motion in the cause in the foreclosure proceedings and that a final judgment in the present action would determine the companion litigation was sufficient to transfer the motion in the cause pending before the clerk to the superior court for its determination, and original jurisdiction of the superior court over the motion was established by G.S. 1-276; furthermore, plaintiffs were entitled to attack the foreclosure proceeding either by a motion in the cause or by an independent action because the officer's return was insufficient on its face to show service upon plaintiff husband in that the return did not show the place where the papers were left.</block_quote> 2. Process 5 — return of service insufficient on face — remand to determine propriety of amendment <block_quote> Although an officer's return was insufficient to show service upon plaintiff husband in mortgage foreclosure proceedings because it did not show the place where the papers were left, such defect was not necessarily fatal to the foreclosure proceedings, and the matter is remanded for the trial judge to determine within his discretion whether the sheriff's return ought to be amended so as to comport with facts regarding the place and manner of service.</block_quote>

1. Wills 61 — dissent to will — agreement as to valuation of estate and testate and intestate shares <block_quote> Where plaintiff filed a dissent to her late husband's will, and the administrator with the will annexed and the other devisees under the will have implicitly assented to the wife's valuation of the estate and her testate and intestate shares thereof by conceding her right to dissent from the will, the parties have complied with the provisions of G.S. <cross_reference>30-1</cross_reference> (c) with respect to an agreement as to valuation except for procuring the approval of the clerk of their valuation.</block_quote> 2. Wills 61.5 — dissent to will — waiver of right to seek construction of will <block_quote> Plaintiff's dissent to her husband's will, which is subject only to an essentially ministerial act by the clerk of court in approving a valuation agreement, precluded her from maintaining an action for construction of the will or claiming property passing under the residuary clause of the will.</block_quote>

Constitutional Law 76; Criminal Law 48.1 — in-custody silence about alibi — cross-examination at trial — prejudicial error <block_quote> In a prosecution of defendant for possession and sale of heroin where defendant was arrested and taken to a police station, indictments were read to him, and defendant interrupted the reading to state that he had not sold heroin to the person named in the indictments, defendant's failure to disclose his alibi defense to the police officers then or to some other person prior to trial did not amount to an inconsistent statement in light of his in-court testimony relative to an alibi, and the district attorney's cross-examination of defendant concerning failure to disclose his alibi was sufficiently prejudicial to warrant a new trial, since the cross-examination attacked defendant's exercise of his right against self-incrimination in such a manner as to leave a strong inference with the jury that defendant's alibi defense was an after-the-fact creation, and the cross-examination concerning defendant's failure to relate his defense of alibi prior to trial probably substantially contributed to his conviction.</block_quote>

Bigamy 2; Marriage 2 — ceremony not performed before proper minister — no valid marriage — no bigamy <block_quote> A ceremony solemnized by a Roman Catholic layman in the mail order business who bought for $10 a mail order certificate giving him "credentials of minister" in the Universal Life Church, Inc. was not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in the State of N.C. G.S. <cross_reference>51-1</cross_reference>, G.S. <cross_reference>14-183</cross_reference>.</block_quote>

Homicide 21.7 — second degree murder — sufficiency of evidence <block_quote> The State's evidence was sufficient to support defendant's conviction of second degree murder where it tended to show that the victim entered a car occupied by defendant and defendant's companion in order to sell defendant a stolen M-16 rifle; the victim was seated in the front seat and defendant was seated in the back seat; defendant told the victim he had to pick up the money for the rifle at a friend's house; as the car was being driven by defendant's companion, defendant shot the victim in the head with a pistol which belonged to the girlfriend of defendant's companion; defendant threatened to shoot his companion unless he followed defendant's orders, whereupon the companion assisted defendant in burying the body; and a search of the residence of defendant and his companion uncovered the M-16 rifle.</block_quote>