Volume 305 — North Carolina Reports

1. Appeal and Error 2 — question presented to Court of Appeals — properly before Supreme Court Where defendant contended in the Court of Appeals that plaintiff's claim was barred by the statute of limitations but that court upheld summary judgment for defendant on other grounds, defendant did not have to cross appeal from the Court of Appeals' disposition of the limitations issue. Under App. R. 16 (a), as the defendant presented the statute of limitations question to the Court or Appeals, upon plaintiff's appeal, it was also entitled to present that question to the Supreme Court. 2. Limitation of Actions 4.3; Executors and Administrators 39 — actions against executors for breach of fiduciary duty — statute of limitations In an action by plaintiff alleging defendant breached certain fiduciary duties executor of her husband's estate and as trustee of two testamentary trusts by failing to exercise reasonable care in marshaling the assets of the estate, her action was essentially grounded in contract and was subject to the three-year limitation of G.S. <cross_reference>1-52</cross_reference> (1). G.S. <cross_reference>1-50</cross_reference>(2), <cross_reference>1-56</cross_reference> and <cross_reference>28A-13-10</cross_reference>(c).

1. Criminal Law 14 — jurisdiction — accessory before the fact — acts in another state — felony committed within this State Former G.S. <cross_reference>14-5</cross_reference>, which asserted jurisdiction over the crime of accessory before the fact whenever the principal felony occurred in this State, did not violate the Sixth Amendment to the U.S. Constitution; therefore, the State could constitutionally assert jurisdiction over a defendant who committed the crime of accessory before the fact to a murder committed within this State when the counseling, procuring or commanding of another to commit the murder took place in Virginia. 2. Criminal Law 14 — jurisdiction — accessory before the fact to murder — murder committed within this State — sufficiency of evidence In a prosecution for accessory before the fact to a murder by hiring others in Virginia to commit the murder, the evidence was sufficient to show that the murder was committed in North Carolina so as to give the courts of this State jurisdiction over defendant where one witness testified that the victim was killed in his home in Harnett County and another witness testified that the victim was killed in his home in Bunnlevel, since the appellate court will take judicial notice of the fact that Bunnlevel is in Harnett County and that Harnett County is located in this State. 3. Criminal Law 14 — theory of jurisdiction challenged — question of law for court In a prosecution for accessory before the fact to murder by hiring others in Virginia to commit a murder in North Carolina, the trial court properly refused to instruct the jury that the State had the burden of proving beyond a reasonable doubt that North Carolina had jurisdiction over the offense where defendant challenged only the theory of jurisdiction relied on by the State and not the facts which the State contended supported jurisdiction, since the question of whether the theory supported jurisdiction was a matter of law for the court. 4. Criminal Law 10; Homicide 2 — accessory before the fact to second degree murder Defendant could properly be convicted of being an accessory before the fact to second degree murder.

1. Criminal Law 102.6 — district attorney's argument to jury — proper Where the sum and substance of a district attorney's argument was that the testimony of the State's chief witness was credible in light of the overall facts and circumstances of a murder as depicted and corroborated by other independent evidence, there was no error or impropriety in it. 2. Criminal Law 53.1 — expert testimony — suicides committed by slashing wrists Where defendant failed to make a specific objection about a doctor's expertise in identifying wounds which were characteristic of a suicide, and where it was clear that the doctor was properly qualified to state an opinion as to whether the slashing marks he observed on deceased were similar to other self-inflicted wounds of this type which he had seen before, the trial court did not err in allowing the doctor to render an opinion about suicides committed by slashing the wrists. 3. Criminal Law 53.1 — medical expert testimony — opinion concerning wounds of victim — relaxation of rules governing medical expert opinion A doctor did not state an opinion upon the "ultimate" issue concerning the commission of a homicide or a suicide when he testified that the body of the deceased did not bear the customary "hesitation marks" which he had personally observed in his examination of other persons who had attempted suicide by slashing their wrists. Further, there is some question about the continuing validity of State v. Carr, <cross_reference>196 N.C. 129</cross_reference> (1928) in light of more recent authoritative decisions of this Court where the rules governing expert medical opinion have been substantially relaxed and expanded. 4. Criminal Law 34.4 — evidence of other offenses — admission proper The trial court did not err in admitting evidence of (1) defendant's intent to rob the deceased just two weeks prior to his death, (2) defendant's assault upon a young girl who refused to assist him in an earlier larcenous plan, and (3) defendant's aiding and abetting his girlfriend in her flight from prosecution after her release from jail upon the bond arranged by defendant the day following the murder since the offenses variously tended to prove defendant's motive, intent and design in committing the murder. Further, admission of evidence about defendant's attempted suicide in jail and his escape and flight therefrom prior to trial was admissible as implied admissions of guilt. 5. Criminal Law 42.4 — identification of weapons connected with crime There was no error in the admission of a pocketknife and a .25 caliber pistol since both items were properly and positively identified by witnesses at trial.<page_number>Page 239</page_number>

Burglary and Unlawful Breakings 5.11 — insufficient evidence of intent to rape as alleged — verdict treated as for misdemeanor The evidence in a first degree burglary case was insufficient to permit the jury to infer that defendant broke into the victim's house with the intent to commit the felony of rape therein as charged in the indictment where the only evidence relevant to intent tended to show that defendant was wearing shorts, a raincoat, a knee-length cast and a gym shoe. However, when the jury found defendant guilty of burglary, it necessarily found facts which would support a conviction of misdemeanor breaking and entering, and the verdict will be treated as a verdict of guilty of misdemeanor breaking and entering.

1. Criminal Law 149 — order suppressing evidence — appeal by State — time for filing prosecutor's certificate In order for the State to appeal a pretrial order allowing a motion to suppress evidence, the prosecutor's certificate required by G.S. <cross_reference>15A-979</cross_reference> (c) stating that the appeal is not taken for the purpose of delay and that the evidence is essential to the case is timely filed if it is filed prior to the certification of the record on appeal to the appellate division 2. Criminal Law 66.1 — identification testimony — finding unsupported by evidence — remand for new determination The evidence did not support a finding by the trial court that a witness "was unable to recognize the face of the individual to the point of making an identification of the face" where the witness testified that, although she did not recognize defendant while she was struggling with him, she recognized him prior to the struggle when he was near her bed, and that although she did not know defendant's name, she knew him as her friend's uncle and her brother provided the name. Therefore, where the trial court's order suppressing the witness's identification testimony was based upon such finding, the order must be vacated and the cause remanded to the trial court for another determination of defendant's motion to suppress the identification testimony. 3. Criminal Law 148.1 — denial of motion to suppress identification testimony — no right of immediate appeal Defendant had no right to an immediate appeal from the trial court's order denying his pretrial motion to suppress identification testimony. G.S. <cross_reference>15A-979</cross_reference> (b). 4. Criminal Law 66.1 — identification testimony — opportunity for observation The evidence showed that a witness had a reasonable possibility of observation of the defendant sufficient to permit his in-court identification testimony where the witness testified on voir dire that, although lighting conditions were poor, he recognized the defendant as the intruder in his house; he knew defendant by sight and name as they lived in the same neighborhood; defendant ran through the living room and jumped out the window, passing two to three feet from where the witness was hiding; and when defendant stepped into the light at the window, the witness knew it was him.<page_number>Page 357</page_number> 5. Criminal Law 66.11 — showup identification — reliability — admissibility Evidence of a witness's pretrial identification of defendant at a one-man showup was sufficiently reliable to be admissible despite any suggestiveness of the procedure, although the witness's observation of defendant was brief and made under poor lighting conditions, where the witness knew defendant from having seen him in the neighborhood; the witness's degree of attention was high; he had just heard his sister scream and had seen a man come running through his house and jump out the window; he identified the defendant by name; and the confrontation between the witness and defendant occurred within fifteen minutes from the time the intruder left the witness's residence.

Constitutional Law 32; Criminal Law 101.4 — right to impartial jury — contact with State's witnesses Where a witness for the State acts as a custodian or officer in charge of the jury in a criminal case, prejudice is conclusively presumed. Therefore, where the State's two principle witnesses, a sheriff and deputy sheriff, transported prospective jurors in two activities buses from one county to another county for defendant's trial; where the witnesses were alone in a bus with the jurors for as much as three and one-half hours; and where the sheriff testified five times in the presence of the jury and the deputy testified three times in the presence of the jury, the sheriff and deputy were deemed to have acted as custodians or officers in charge of the jury and prejudice was conclusively presumed despite the fact that the evidence revealed no hint of malice or misconduct by the officers.

1. Divorce and Alimony 17.3; Rules of Civil Procedure 52.1 — sufficiency of order awarding permanent alimony — findings of fact supporting amount of alimony inadequate In an action concerning the amount of alimony to be awarded, the trial court's findings of fact were inadequate to support its conclusion under G.S. <cross_reference>1A-1</cross_reference>, Rule 52 (a). G.S. <cross_reference>50-16.5</cross_reference> (a) lists a series of circumstances for the trial judge to consider in determining the amount of an alimony award, and the court's conclusions must be based upon factual findings sufficiently specific to indicate that the trial judge properly considered the six statutory factors enumerated and the rules which have evolved from our case law. Rule 52 (a) requires specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached. Therefore, where there was (1) no finding as to the total value of either the plaintiff's or defendant's "estate," (2) inadequate findings concerning the "earnings" of the parties, (3) inadequate findings of fact about the earning capacities and conditions of the parties, (4) no mention of the accustomed standard of living of the parties, and (5) no findings to indicate whether the trial court believed that defendant was deliberately depressing his income or whether he was indulging in excessive spending in disregard of his marital obligation, the order of the trial court must be vacated and a new hearing held so that the trial court can make adequate and appropriate findings of fact and conclusions of law and can set the amount of permanent alimony. To the extent that Eudy v. Eudy, <cross_reference>288 N.C. 71</cross_reference>, <cross_reference>215 S.E.2d 782</cross_reference> (1975) indicates that Rule 52 (a) does not apply to actions involving the amount of alimony, it is overruled. This holding also applies with equal force to actions involving determination of amount of both alimony pendente lite and child support. 2. Proceeds 6 — subpoena duces tecum — appropriateness for obtaining corporate records in divorce action A corporation, even one closely held, is recognized as a separate legal entity and parties engaged in litigation which is personal in nature should not be allowed to obtain corporate records which have no relation to the issues before the court. However, where a substantial portion of a party's total worth is stock in a closely held corporation, certain information from the corporation's business records may well be relevant to the personal litigation involving the party. 3. Divorce and Alimony 20.3 — insufficient findings to support award of attorney's fees Where the trial court concluded that plaintiff was unable to pay her attorney's fees but did not support the conclusion with findings of fact, the portion of the order awarding fees must be vacated and on rehearing, the trial court must make sufficient findings of fact to support a<page_number>Page 447</page_number> conclusion whether plaintiff, as litigant, is able to meet defendant, as litigant, on substantially even terms with respect to representation by counsel. 4. Divorce and Alimony 21 — failure to make alimony payments — stay of contempt proceedings pending appeal The Supreme Court is unable to hold a supporting spouse in contempt for violating a trial court order by failing to make alimony payments ordered therein since the Supreme Court does not hear matters requiring factual findings. The ultimate answer to a dependent spouse's dilemma concerning a supporting spouse's virtual immunity from support obligations while cases work their way through the appellate process must come from the legislature.

1. Constitutional Law 13; Counties 5.1; Municipal Corporations 30.4 — county zoning ordinance — aesthetic consideration only — lawful exercise of police power The trial court erred in quashing a warrant against defendant charging him with failure to erect a fence as required by a county ordinance to enclose his junkyard from an adjacent residential area. The ordinance, which promoted aesthetic values only, did not violate Article I, 19 of the Constitution of North Carolina and the Fourteenth Amendment to the United States Constitution. The Court in finding the ordinance constitutional expressly overruled previous cases to the extent that they prohibited regulation based upon aesthetic considerations alone and adopted a test stating that the diminution in value of an individual's property should be balanced against the corresponding gain to the public from such regulation. The test focuses on the reasonableness of the regulation by determining whether the aesthetic purpose for which the regulation is reasonably related outweighs the burdens imposed on the private property owner by the regulation.<page_number>Page 521</page_number> 2. Counties 5.1; Municipal Corporations 30.3 — zoning ordinance — not unconstitutionally vague A zoning ordinance regulating junkyards was not unconstitutionally vague when read contextually as it apprised persons of ordinary intelligence, who desired to know the law and abide by it, what was required by it.

Divorce and Alimony 25.9 — modification of child custody — showing of changed circumstances The trial court's conclusion that there had been a substantial change in circumstances so as to justify a change of custody of a nine-year-old boy from his mother to his father was supported by the court's findings that the child was only five years old at the time custody was awarded to the mother and expressed no preference for custody; the father had custody of the child's older brother; at the time of the original custody award, the court would have awarded custody of both children to the<page_number>Page 641</page_number> father if the child in question had not been so young then; the motion for change of custody was filed by the father at the request of the child itself because of the child's desire to live with his brother; and the welfare of both children did not favor a split in their custody between the mother and the father.

Robbery 4.3, 5.4 — armed robbery case — necessity for instruction on common law robbery Testimony by robbery victims that they were of the opinion that the weapon used in the robbery was a firearm and that it appeared to be a .22 rifle and by an accomplice who wielded the weapon during the robbery that the weapon was a "Remington pellet rifle" was sufficient to support a jury finding that the lives of the victims were endangered by use of the weapon so as to permit the jury to consider the possible verdict of guilty of robbery with a firearm or other dangerous weapon. However, further testimony by the accomplice that the weapon was "a BB rifle" constituted affirmative evidence that the lives of the victims were not endangered or threatened by use of the weapon and required the submission<page_number>Page 648</page_number> of an issue as to the lesser included offense of common law robbery.