Volume 306 — North Carolina Reports

1. Criminal Law 58 — comparison of signatures by jury without opinion testimony A jury may compare a known sample of a person's handwriting with handwriting on a contested document and thereby determine whether the handwriting is the same on both without the aid of competent lay or expert testimony when the trial judge first satisfies himself (1) that one of the handwritings is genuine and (2) that there is enough similarity between the genuine handwriting and the disputed handwriting to permit a jury reasonably to infer that the disputed handwriting is also genuine. Therefore, the trial court properly permitted the jury to compare known samples of defendant's handwriting with the signature on a charter agreement without the aid of competent opinion testimony to determine whether defendant signed the charter agreement. 2. Conspiracy 2.1; Narcotics 4 — conspiracy to possess marijuana — inference upon an inference — insufficiency of evidence The State's evidence was insufficient to support a jury verdict finding defendant guilty of conspiracy to possess 22.4 pounds of marijuana where there was direct evidence only that a boat with marijuana aboard was met shortly after its arrival at a point in Dare County by unknown persons, the jury could infer from a comparison of the signature on the charter for the boat with known samples of defendant's handwriting that defendant was the person who arranged for and executed the charter, and the jury could infer from defendant's fingerprints found on board the vessel, the places where these prints were found, and defendant's Coast Guard license application that defendant participated in navigating the boat and<page_number>Page 63</page_number> was on board at the time marijuana was being transported, but it was only by building on these inferences that the jury could further infer that defendant participated in an unlawful agreement to possess the marijuana. 3. Criminal Law 106.2 — sufficiency of circumstantial evidence — inference upon an inference In circumstantial evidence cases inferences may not be built upon inferences in order for the fact-finder to reach the ultimate facts upon which guilt must be premised.

1. Constitutional Law 48 — failure to raise insanity defense — no denial of effective assistance of counsel A defendant charged with arson and the burning of two tobacco barns and one tobacco storage building was not denied the effective assistance of counsel by the failure of his appointed attorney to investigate and raise an insanity defense where a report from a local mental health center finding defendant competent to stand trial noted that defendant did have a history of psychiatric treatment and that defendant's responsibility at the time of the alleged crimes could not be determined because defendant claimed amnesia, but the record in the case did not present such evidence of insanity that it could be concluded that defense counsel's failure to present an insanity defense resulted from neglect or ignorance rather than from informed professional deliberation. 2. Criminal Law 75.11 — in-custody statement — implied waiver of right to counsel Where defendant was advised of his constitutional rights when he was taken into custody and he acknowledged that he heard and understood his rights, and during a general conversation on the way to jail, a deputy sheriff commented that he could not understand why defendant did it, defendant in effect waived his right to counsel when he stated that "these people down here in this community have been wanting to get rid of me for a long time, so I thought I'd give them a reason," and the statement was admissible in evidence at defendant's trial. 3. Criminal Law 75.14 — mental capacity to confess The evidence was sufficient to support the trial court's determination that defendant had the mental capacity to waive his constitutional rights and to make incriminating statements, although the evidence did indicate that defendant had a history of psychiatric treatment, where the evidence showed that he had been living independent of medical supervision for several months prior to the time of his arrest and that he was coherent and able to move about under his own power when the statements were made.<page_number>Page 91</page_number> 4. Arson and Other Burnings 2 — burning of tobacco barn and storage building — indictment under proper statute Defendant could properly be indicted under G.S. <cross_reference>14-62</cross_reference> for the burning of a tobacco barn and the burning of a tobacco storage building rather than under the provisions of G.S. <cross_reference>14-64</cross_reference> relating to the burning of a tobacco house since a tobacco house as used in G.S. <cross_reference>14-64</cross_reference> does not have a generally accepted connotation or definition. 5. Arson and Other Burnings 4.2 — common law arson — temporary absence of occupants of dwelling Common law arson results from the burning of a dwelling even though its occupants are temporarily absent at the time of the burning.

1. Homicide 20.1 — admissibility of photographs A photograph was properly admitted in a homicide prosecution for the purpose of illustrating the testimony of a witness concerning the place where the crime occurred, the place to which the victim ran after he was stabbed by defendant, where the victim was when he died, and the substantial amount of blood on the ground. 2. Homicide 19.1 — reputation of deceased — no knowledge by defendant The trial court did not err in refusing to permit defense counsel to cross-examine a State's witness concerning a murder victim's reputation for being a violent and dangerous person where the record shows that defendant did not know the victim prior to the altercation in question and had no knowledge of the victim's reputation. 3. Homicide 21.7 — second degree murder — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for second degree murder where it tended to show that a car driven by defendant and a car in which the victim was a passenger almost collided; defendant stuck a Buck knife through the window of the car in which the victim was riding and waved it back and forth; the victim jumped out of the car, defendant swung the knife back and forth at the victim, and defendant and the victim had a fight for some 5-10 minutes; during that time the victim attempted to hit defendant and attempted to kick defendant's hand that was holding the knife; when a third person attempted to separate them, defendant attempted to<page_number>Page 118</page_number> shake hands with the victim but held the knife in his hand while talking to the victim and eventually the victim went toward defendant at which time defendant struck the victim in his chest with the knife. 4. Homicide 28.3 — instructions — imperfect right of self-defense The trial court in a second degree murder prosecution sufficiently charged the jury on defendant's imperfect right of self-defense.

1. Searches and Seizures 10, 13 — search of suitcase — absence of warrant, consent or probable cause The trial court's conclusion that a search of defendant's suitcase at an airport was unlawful was supported by the court's findings that defendant and a companion became separated at the airport; the companion had in his possession his own and defendant's suitcases; officers requested the companion to permit a search of both suitcases; the companion told the officers he could not give them permission to search defendant's suitcase; the officers searched both suitcases and found LSD and Quaaludes in defendant's suitcase; and the officers did not have a warrant or permission to conduct said search. 2. Searches and Seizures 15, 43 — search of suitcase — contention of abandonment — failure to raise in trial court The State's contention that defendant abandoned a suitcase by denying its ownership and leaving it with officers without returning to claim it and that he thereby forfeited any reasonable expectation of privacy regarding its contents so that a warrantless search of the suitcase was lawful will not be considered on appeal where the State failed to raise such issue at the suppression hearing in the trial court.

1. Appeal and Error 6.3 — subject matter jurisdiction — denial of motion to dismiss — no immediate appeal The denial of a motion under G.S. <cross_reference>1A-1</cross_reference>, Rule 12 (b)(1) to dismiss for lack of subject matter jurisdiction is an interlocutory order from which no immediate appeal may be taken.<page_number>Page 325</page_number> 2. Rules of Civil Procedure 14 — State as third-party defendant — interpretation of Rule 14(c) The term "third-party plaintiff" in the 1975 enactment of G.S. <cross_reference>1A-1</cross_reference>, Rule 14 (c) should be read "third party" or "third-party defendant," and the 1981 amendment thereto did not alter Rule 14 (c) substantively but merely reiterated the intention of the legislature that the State be subject to tort claims as a third-party defendant in the State courts. 3. Rules of Civil Procedure 14; State 4 — joinder of State as third-party defendant in State courts The State may be joined as a third-party defendant, whether in an action for contribution or for indemnification, in a tort action brought in the courts of North Carolina. G.S. <cross_reference>1A-1</cross_reference>, Rule 14 (c); G.S. <cross_reference>1B-1</cross_reference> (h). 4. State 4 — actions against State as third-party defendant — sufficiency of pleading Actions brought against the State as a third-party defendant in the State courts need not conform to the pleading requirements of the Industrial Commission, but the third-party plaintiff must prove the same elements as required in cases heard before the Industrial Commission. Therefore, the trial court did not err in denying a motion to dismiss a third-party complaint against the State because it did not comply with the requisites for the affidavit required by G.S. <cross_reference>143-297</cross_reference> in cases heard before the Industrial Commission.

1. Rape and Allied Offenses 6.1 — taking indecent liberties with a child under the age of sixteen not lesser offense of first-degree rape of a child of twelve years or less In a prosecution for first-degree rape of a child "of the age of twelve years or less," G.S. <cross_reference>14-27.2</cross_reference> (a)(1), the trial court did not err in failing to instruct on the offense of taking indecent liberties<page_number>Page 630</page_number> with a child under the age of sixteen, G.S. <cross_reference>14-202.1</cross_reference>, as a lesser included offense. Although it might be argued that under certain factual circumstances taking indecent liberties with a child is a lesser included offense of first-degree rape, the facts of a particular case do not determine whether one crime is a lesser included offense of another. Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. To the extent that State v. Shaw, <cross_reference>293 N.C. 616</cross_reference> (1977) is in conflict with the holding of this case, it is expressly overruled. 2. Rape and Allied Offenses 6.1 — assault on child under twelve — not lesser offense of first-degree rape of child under twelve Assaulting a child under the age of twelve, G.S. <cross_reference>14-33</cross_reference> (b)(3), is not a lesser included offense of first-degree rape of a child of the age of twelve or less, G.S. <cross_reference>14-27.2</cross_reference> (a)(1). 3. Rape and Allied Offenses 6.1 — assault on female by male over eighteen not lesser offense of first-degree rape of a child under twelve Assault on a female by a male over eighteen, G.S. <cross_reference>14-33</cross_reference> (b)(2), is not a lesser included offense of first-degree rape of a child under twelve, G.S. <cross_reference>14-27.2</cross_reference> (a)(1). 4. Criminal Law 91.4 — absence of counsel — denial of motion to continue — no abuse of discretion The trial court did not abuse its discretion in denying defendant's motion to continue based upon the absence of one of defendant's two attorneys for the closing arguments. 5. Constitutional Law 48 — standard to be used in determining what constitutes ineffective assistance of counsel The standard to be used in determining what constitutes ineffective assistance of counsel is the standard expressed in McMann v. Richardson, <cross_reference>397 U.S. 759</cross_reference> (1970). That standard determines whether counsel's performance was "within the range of competence demanded of attorneys in criminal cases." Using the McMann standard, defendant failed to demonstrate that he received ineffective assistance of counsel when his main attorney was unable to give the closing argument and the other attorney (1) failed to request that her closing argument be recorded and (2) was just out of law school with no experience in trying a case of this magnitude. 6. Constitutional Law 40 — no deprival of lawyer of defendant's choice An indigent defendant represented by two lawyers does not have the right to require that the lawyer of his choice deliver the closing argument at his trial; therefore, there was no merit to defendant's contention that his constitutional rights were violated when his main attorney was unable to deliver the closing argument and his other attorney had to fill in.

1. Criminal Law 66.4 — charges dismissed — no right to lineup Defendant had no right under G.S. <cross_reference>15A-281</cross_reference> to demand a lineup when the State had taken a voluntary dismissal of the charges against him. 2. Criminal Law 66.12, 66.17 — confrontation in hall near courtroom — no taint of photographic and physical lineups — independent origin of in-court identification A "confrontation" when two State's witnesses saw defendant being led in handcuffs from the lockup beside the courtroom down a hall did<page_number>Page 643</page_number> not taint subsequent photographic and physical lineup identifications by those two witnesses and another witness where all of the State's witnesses testified that no suggestions were made to them by the police at the photographic display which would indicate that any one of the photographs was of defendant, and defendant's counsel was present at the physical lineup and stipulated that he observed no impropriety in the manner and method in which the identification procedure was conducted. Furthermore, even if the pretrial identification procedures had been tainted by the confrontation in the hall, defendant could not have been prejudiced thereby where the trial court made findings of fact, fully supported by the voir dire testimony, that each witness had an adequate opportunity to view defendant in good lighting and in close proximity at the time of the crime, and such findings supported the trial court's conclusion that the in-court identifications were independent in origin. 3. Criminal Law 99.9 — questions by trial judge — ownership of money taken in robbery — no expression of opinion In a prosecution for armed robbery of a furniture sales center, the trial court did not express an opinion in violation of G.S. <cross_reference>15A-1222</cross_reference> in asking questions attempting to clarify the testimony of a salesman at the center concerning the ownership of money taken from his possession during the robbery since proof of ownership was not essential to establish robbery, and the questions in no way intimated the trial judge's opinion regarding the witnesses credibility, defendant's guilt or a factual controversy to be resolved by the Jury. 4. Criminal Law 141.1 — special indictment charging previous conviction — inapplicability of statute Provisions of G.S. <cross_reference>15A-928</cross_reference> (b) and (c) requiring a special indictment charging defendant with a previous conviction to be filed with the principal pleading and requiring that defendant be arraigned on the special indictment prior to the close of the State's case did not apply in this armed robbery case since the statute applies solely to cases in which the fact that the accused "has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter," G.S. <cross_reference>15A-928</cross_reference> (a), and the armed robbery statute in effect at the time of defendant's arrest and conviction, G.S. <cross_reference>14-87</cross_reference> (a), made no distinction between first and second offenders in terms of the punishment they might receive. 5. Robbery 4.1 — ownership of property taken in robbery — no fatal variance There was no merit to defendant's contention that there was a fatal variance in an armed robbery case on the ground that the indictment charged that defendant took property belonging to the Furniture Buyers Center and the evidence showed that he took property belonging only to a salesman of that business since (1) the State was permitted to reopen its case to show that defendant stole property belonging both to the Furniture Buyers Center and to the salesman personally, and (2) it was not necessary for the State to show whose money defendant took as long as the evidence showed that the money was not defendant's own.<page_number>Page 644</page_number> 6. Criminal Law 97.1 — no abuse of discretion in permitting additional evidence The trial court did not abuse its discretion in allowing the State to reopen its case to present further testimony after defendant's argument to the jury. 7. Robbery 4.3 — armed robbery — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution of defendant for the armed robbery of a furniture sales business where three eyewitnesses presented a detailed account of the events which occurred at the time of the robbery and made in-court identifications of defendant; each witness testified that defendant threatened his life if he refused to tell defendant where the money was; one witness specifically stated that defendant robbed him of $1,480 and a $1,000 check; and an accomplice testified that he, along with defendant and another person, robbed the furniture sales business on the date in question by the use of a deadly weapon.

Master and Servant § 55.6, 62 — workers' compensation — journey to and from work — special errand — errand not completed upon return to own property Where plaintiff mortician was injured when his automobile rolled over him once he had returned to his home after completing a special errand for his employer, his injury was covered under the Workers' Compensation Act. After embalming a body, plaintiff was required by his employer to shower and change his clothes in preparation for another call. This requirement was a condition of and incident to his employment and, because shower and change facilities were not available on the premises, this requirement necessitated his returning home from time to time to remove the embalming fluid odor from his person. Under these circumstances, plaintiff's personal appearance was intimately related to his employment and, at least until such time as he had completed his preparations for another call, he remained on duty.