Volume 323 — North Carolina Reports

Homicide 21.4 — murder — evidence sufficient There was substantial evidence that each of the essential elements of murder in the first degree was met and that defendant was the perpetrator of the murder, and the trial judge correctly denied defendant's motion to dismiss, where the evidence adduced at trial strongly indicated that defendant committed the offense with the same .22 caliber weapon delivered by defendant to her father during the investigation of the homicide; the similarity between the two front tires taken from the Monte Carlo automobile driven by defendant and the plaster cast made at the trash dump where the victim's body was found supports the inference that defendant drove her mother's Monte Carlo to the trash dump on the night of the murder; the testimony of the ammunition expert that the bullets removed from the body of the victim could have come from the box of ammunition taken from the apartment of defendant's father or from another box manufactured on the same day in November of 1968 strongly indicates that the victim's death was caused by ammunition in defendant's possession; the testimony of the ballistics expert that the .22 caliber revolver recovered from the apartment of defendant's father could have fired the bullets which caused the victim's death suggests that the revolver in defendant's possession was used to commit the offense; defendant was the last person to see the victim alive; defendant's false statement to investigating officers that she did not know anyone who owned a handgun and her subsequent delivery of the revolver and ammunition to her father indicate that defendant attempted to cover up her connection with the weapon; and the testimony of a deputy that the route from the trailer to the gas station could be driven in 13 minutes, coupled with the testimony that defendant was absent from the trailer for approximately one hour, shows that defendant had ample time to commit the murder.

Trusts 19 — constructive trust — sufficiency of evidence Plaintiff is entitled to a constructive trust requiring defendants to convey a one acre tract to plaintiff to prevent unjust enrichment of defendants where the record shows that defendants had been engaged in litigation with plaintiffs grandmother over entitlement to 136 acres of land; the agreement settling this litigation reserved to the grandmother ultimate control over entitlement to only one acre of the 136 acre tract; the grandmother conveyed to defendants the remainder of the 136 acre tract, as well as rights in the one acre during the lifetime of the grandmother, in exchange for defendants' agreement to convey the one acre tract as the grandmother by will might direct; the grandmother's will devised the one acre tract to plaintiff; and defendants have refused to convey the one acre tract to plaintiff.

Insane Persons 13 — statute defining mental illness as applied to minor — order declaring unconstitutional — entered without jurisdiction The Court of Appeals erred by affirming a trial court order declaring unconstitutional the statute which governs voluntary admission and discharge of minors from facilities for the mentally ill, N.C.G.S. <cross_reference>122C-3</cross_reference> (21)(ii), where the trial court had already concluded the case or controversy by finding the respondent not mentally ill. The announcement of that determination in open court constituted an entry of judgment, even if a formal written order was not filed until later, and the State lost its right to appeal by failing to give timely notice; furthermore, the trial court then had no case or controversy before it and no jurisdiction to enter the order declaring the statute unconstitutional.<page_number>Page 599</page_number>

Homicide 30.2 — murder — failure to instruct on manslaughter — no error The trial court did not err in a first degree murder prosecution by not submitting voluntary manslaughter to the jury where there was no evidence that the stabbing occurred immediately after the provocation, assuming that the provocation was adequate under the law. Moreover, since the jury did not find that defendant was in the grip of sufficient passion to reduce the murder from first to second degree, it would not have found defendant guilty of only voluntary manslaughter.

1. Attorneys at Law 7.3 — condemnation action — attorney fees — discretion of court An award of attorney fees under N.C.G.S. <cross_reference>136-119</cross_reference> in an inverse condemnation action and the amount of such fees are within the discretion of the trial judge, and his decision will not be reversed absent a clear showing of abuse of discretion. 2. Attorneys at Law 7.3 — failed motion — attorney fees not reasonably incurred The trial court did not abuse its discretion in finding that attorney fees incurred in the pursuit of a failed Rule 60 (b) motion to reopen an inverse condemnation judgment for an award of compound interest were not "reasonably incurred" and in denying plaintiffs application for such attorney fees. 3. Attorneys at Law 7.3 — condemnation action — attorney fees — services of paralegals and legal secretaries A trial judge, acting within his discretion, may consider and include in the sum he awards as attorney fees the services expended by paralegals and secretaries acting as paralegals if, in his opinion, it is reasonable to do so.<page_number>Page 692</page_number> 4. Attorneys at Law 7.3 — condemnation — services by paralegals and legal secretaries — recovery separate from attorney fees not mandated N.C.G.S. <cross_reference>136-119</cross_reference> does not mandate that services performed by paralegals and secretaries acting as paralegals be paid as "costs, disbursements and expenses" separate and apart from attorney fees. In this case, the trial judge could reasonably have concluded that services of paralegals and secretaries acting as paralegals were largely clerical in nature or, even if not, were part of the ordinary office overhead and ought to be subsumed in the hourly rate of the attorneys, and that such services were not reasonably incurred separate and apart from the attorney fees. 5. Attorneys at Law 7.3 — expenses for paralegal and legal secretaries — allowance as attorney fees in part of action — subsequent allowance not mandated The trial judge's allowance of expenses for paralegals and legal secretaries to be recovered as a part of the attorney fees in previous orders relating to other stages of the action does not mandate that they be allowed as a part of the attorney fees in subsequent stages.