Volume 310 — North Carolina Reports

1. Criminal Law 75.2 — voluntariness of confession — statement by officer that "things would be a lot easier" if defendant told the truth In a prosecution for first degree murder, the trial court correctly denied defendant's motion to suppress his inculpatory statements where the totality of the circumstances clearly compelled the trial court's determination that the defendant's statements were not induced by any hope or fear arising from the conduct of the officers and, therefore, were voluntary. The evidence tended to show that defendant walked into the sheriff's department on the afternoon of August 4, 1982 and told Officer Lockman that he wanted to report a stolen car; Officer Lockman gave him paper and pen and left the room, returned later with another officer, and advised the defendant of his constitutional rights; defendant gave his statement indicating that a friend of his needed a place to put a new Corvette for a couple of days and defendant kept it at a house near his; after questioning defendant's sister briefly later on in the afternoon, another officer went in and again advised defendant of his constitutional rights, and defendant gave this officer a similar statement; a Detective Lambert obtained a written statement from defendant several hours later and testified that at some point in the questioning he told the defendant something similar to "things would be a lot easier on him if he went ahead and told the truth"; defendant gave Lambert a statement in which he indicated that a friend had asked him to help get a car, and defendant and his friend had gone to a Corvette car lot and left with one of the salesmen, and that upon driving to a point, defendant walked away and another man and defendant's friend hit the salesman and defendant found blood in the car; that defendant later said that the car salesman had been shot in the head; that defendant then proceeded to take the officer to where the car salesman's body could be found; that when the officers realized the body would be found in another county they took the defendant to the jail in that county and when defendant indicated he was<page_number>Page 41</page_number> tired they left and came back the next morning, advised him of his rights, and defendant then gave a statement which indicated that he had taken the Corvette for a test drive and subsequently shot and killed the car salesman. 2. Criminal Law 112.6 — failure to instruct on insanity — no error The trial court properly failed to instruct on the defense of insanity in a first degree murder prosecution where defendant presented expert testimony tending to show that he had a low stress tolerance as well as an antisocial personality type and that he tended to misconstrue situations and respond inappropriately; that such factors, when considered together with the defendant's alleged drug use on the day of the killing, rendered the defendant unable to form the specific intent to kill necessary for a finding of murder in the first degree. This evidence justified the instructions the trial court gave the jury concerning the effect of voluntary intoxication on the issue of specific intent, but it did not require an instruction on the defense of insanity. 3. Kidnapping 1.3 — error in instructions concerning kidnapping in first degree — jury verdict considered as verdict of guilty of kidnapping in the second degree Where defendant was charged in the bill of indictment alleging all the essential elements of kidnapping in the first degree set forth in G.S. <cross_reference>14-39</cross_reference> but where the trial court erred in its charge to the jury by failing to include as an element of the offense of kidnapping in the first degree that the victim "either was not released in a safe place or had been seriously injured or sexually assaulted," and where the jury returned a verdict of guilty of kidnapping in the first degree, the jury necessarily found facts establishing the offense of kidnapping in the second degree, and the jury verdict will be considered as a verdict of kidnapping in the second degree. 4. Criminal Law 138 — sentencing for larceny — aggravating factor that offense was committed for "pecuniary gain" improperly considered Since there was no evidence tending to show that defendant was hired or paid to commit any of the crimes charged, the trial court erred in finding as an aggravating factor that the larceny was committed for "pecuniary gain" within the meaning of G.S. 15A-1340.4(a)(1)(c), and the larceny case must be remanded to the trial court for resentencing.

1. Burglary and Unlawful Breakings 5.2 — first degree burglary — offense during nighttime — insufficient evidence The State's evidence was insufficient to show that the breaking and entering of the victim's home occurred during the nighttime so as to support conviction of defendant for first degree burglary where it tended to show only that the victim's body was seen by two school children who reported what they had seen to the school principal sometime after 7:30 in the morning; the victim was wearing pajamas and was barefooted; and nonexpert witnesses who examined the body from mid to late morning thought the victim had been dead for several hours. 2. Criminal Law 75.7 — question not "interrogation" — incriminating response admissible Where the sheriff and defendant passed by a cell in which two persons were being held as the sheriff accompanied defendant out of the jail on the day of defendant's preliminary hearing, the sheriff's question to defendant as to whether he knew "these two fellows" did not constitute "interrogation" of defendant, and defendant's incriminating response, "Yes, they're the two that was with me when we broke into Miss Newsome's house," was admissible in evidence. 3. Criminal Law 102.6 — improper argument of facts not in evidence In a prosecution for burglary, murder and rape, the district attorney's argument of facts not in the record was so grossly improper as to have called for corrective action by the trial court ex mero motu where the State offered virtually no evidence as to what happened on the day that the victim met her<page_number>Page 127</page_number> death, but the district attorney told the jury that defendant and three others, acting in concert, decided to break into the victim's home in order to steal; that all four men entered the home in the still of the night and found the victim asleep in her bed; that they dragged her out of bed and out of the house; that the victim attempted to beat off her attackers with a rake; that she was raped; and that she prayed for death because of the brutal attack on her. 4. Homicide 21.6 — felony murder insufficient evidence of underlying felony Where defendant was tried for first degree murder under the felony murder rule, and the evidence was insufficient to sustain a conviction of the underlying felony of burglary, the judgment of conviction of first degree murder must also be reversed. 5. Rape and Allied Offenses 5 — sufficient evidence of defendant's participation in rape While the evidence established that defendant was present and had knowledge of a sexual assault by others, the evidence was insufficient to establish that defendant participated in any sexual assault or that he aided or abetted or was acting in concert with the others in committing the assault so as to support defendant's conviction of rape where it tended to show only that defendant made the statement that the others threw him on top of the victim but "he didn't do nothin'."

1. Burglary and Unlawful Breakings 4; Criminal Law 26.5 — acquittal of larceny — evidence of larceny in breaking and entering case Where the jury found defendant not guilty of larceny but was unable to reach a verdict as to breaking or entering with the intent to commit larceny, the State was not precluded by collateral estoppel double jeopardy from reprosecuting defendant for breaking or entering with intent to commit larceny or from presenting evidence at defendant's retrial of his participation in the larceny, since the issue of defendant's intent to commit larceny was not passed upon by the first jury when it acquitted defendant of the larceny charge. 2. Criminal Law 138 — pecuniary gain — taking property of great monetary value — improper aggravating factors In imposing a sentence for breaking or entering, the trial court erred in finding as an aggravating factor that the offense was committed for pecuniary gain where there was no evidence that defendant was paid or hired to commit the offense. 3. Criminal Law 138 — failure to give perjured testimony — improper mitigating circumstance The trial court erred in finding as a mitigating circumstance in sentencing that defendant did not testify and relate to the court any perjured testimony.<page_number>Page 143</page_number>

1. Negligence 9 — negligence of defendant car company a proximate cause of death — element of foreseeability A jury could find that a reasonably prudent person should have foreseen that a car company's negligence in failing to tighten the lug on the wheel of a new automobile could cause the car to be disabled on the highway and struck by another vehicle, causing harm to the driver.<page_number>Page 228</page_number> 2. Automobiles and Other Vehicles 87.4; Negligence 10 — error to find negligence of truck driver completely insulated negligence of car company in failing to tighten wheel lugs In an action to recover for the wrongful death of plaintiffs intestate who was killed while standing behind his new car after the left rear wheel came off, the negligence of defendant car dealer in failing to tighten the lug bolts on the left rear wheel and in failing to check the car before delivery to the intestate was not completely insulated by the negligence of defendant truck driver in failing to keep a proper lookout and in failing to keep his vehicle under proper control. "In order for the conduct of the intervening agent to break the sequence of events and stay the operative force of the negligence of the original wrongdoer, the intervening conduct must be of such nature and kind that the original wrongdoer had no reasonable ground to anticipate it," and on the facts of this case, a jury might readily find that defendant car dealership could have reasonably foreseen the subsequent acts of defendant truck driver and the resultant harm to decedent that occurred barely six minutes and 3.5 miles away from the dealership. The truck driver's negligence was not so highly an improbable or extraordinary occurrence as to bear no reasonable connection to the harm threatened by the car dealership's original negligence. 3. Automobiles and Other Vehicles 21.1 — failure to instruct on doctrine of sudden emergency — proper Defendant was not entitled to invoke the doctrine of sudden emergency, and therefore the trial court did not err in failing to so instruct, where the evidence showed that defendant's negligence created the emergency he contended confronted him. 4. Evidence 49.1 — hypothetical question — present monetary value of decedent — opinion properly allowed A hypothetical question put to an economics expert concerning the present monetary value of decedent to his wife and his daughter for the loss of the reasonably expected net income and services of decedent was entirely proper where the question included only those facts in evidence or logically inferred from the evidence and were sufficient to enable the witness to form a satisfactory opinion. Further, the expert's opinion was based on a proper foundation.

1. Rules of Civil Procedure 50.2 — directed verdict for party with burden of proof A directed verdict may be granted in favor of the party with the burden of proof when the credibility of the movant's evidence is manifest as a matter of law. 2. Automobiles and Other Vehicles 56.2 — negligence in stopping on highway or driving too slowly — error in directing verdict against defendant In an action to recover for personal injuries and property damages received when plaintiffs' truck and a mobile home being towed by the truck were struck by an automobile operated by defendant's intestate after it had been struck in the rear by a Mack truck, plaintiffs' evidence did not establish as a matter of law that defendant's intestate was negligent in violating G.S. <cross_reference>20-141</cross_reference>(h),<page_number>Page 653</page_number> which prohibits the operation of a motor vehicle on the highway at such a slow speed as to impede normal movement of traffic "except when reduced speed is necessary for safe operation or in compliance with law," where it tended to show that the intestate either stopped or slowed down in the highway before being struck from the rear; each lane of the highway was 12 feet wide, and the towed mobile home was 14 feet wide; and various safety and warning devices had been placed on the truck and mobile home, including flashing lights, extension side-view mirrors, a "Wide Load" sign, and red flags. 3. Rules of Civil Procedure 50.2 — directed verdict for party with burden of proof — evidence not manifestly credible In an action to recover for personal injuries and property damages received when plaintiffs' truck and a mobile home being towed by the truck were struck by an automobile operated by defendant's intestate after it had been struck in the rear by a Mack truck, plaintiffs' evidence was not manifestly credible so as to permit the entry of directed verdicts against defendant where there were significant contradictions in the evidence at trial, and where the evidence supported possible inferences (1) that the negligence of defendant's intestate was the sole proximate cause of the accident, (2) that the negligence of the driver of the Mack truck was the sole proximate cause of the accident, and (3) that the negligence of both defendant's intestate and the driver of the Mack truck were proximate causes of the accident. 4. Evidence 23.1; Pleadings 37.1 — defendant's introduction of plaintiff's pleadings — defendant not bound by allegations of negligence Defendant was not bound by allegations in plaintiff's complaint which defendant introduced into evidence that the negligence of defendant's intestate was a proximate cause of the accident in question where the complaint was admitted only for impeachment purposes to show that plaintiff had alleged that negligence by a second defendant was a proximate cause of the accident, and where the allegations in the complaint were contradicted by other evidence at trial. 5. Automobiles and Other Vehicles 56.1 — negligence in striking slowing or stopping vehicle from rear In an action to recover for the wrongful death of plaintiff's intestate when the car he was driving was struck from the rear by defendants' truck after the intestate had stopped or slowed down while meeting a truck towing a mobile home, plaintiff's evidence was sufficient for the jury to find that defendant truck driver was negligent in driving at an excessive speed and in failing to keep a proper lookout and maintain proper control over his vehicle where it tended to show that defendant driver was traveling at a speed of approximately 55 miles per hour when he rounded a moderate curve located approximately 1,500 feet from the scene of the accident; his view was totally unobstructed and he saw the truck towing the mobile home as he rounded the curve; defendant driver also saw the warning signs on the truck pulling the mobile home; defendant driver did not reduce his speed from 55 miles per hour until he was close enough to the intestate's car to observe that it was not moving and until he applied his brakes immediately preceding the accident; defendants' truck left 199 feet of skid marks on the pavement prior to impact with the intestate's<page_number>Page 654</page_number> vehicle; defendants' truck struck the intestate's car with such force that the front end was lifted off the pavement and the car was propelled into the path of the oncoming truck; and after impact, defendants' truck still had enough speed and momentum to travel an additional 66 feet before coming to a complete stop.