Volume 35 — North Carolina Court of Appeals Reports

1. Criminal Law 76.4, 98.2 — violation of sequestration order — refusal to allow testimony — no error <block_quote> The trial court did not abuse his discretion in refusing to allow defendant's father to testify at a voir dire hearing to determine admissibility of defendant's pre-trial confession, since the father had violated the court's sequestration order, and the court could properly exclude him from testifying; furthermore, the father's testimony was merely cumulative, and defendant failed to show that he was prejudiced by its exclusion.</block_quote> 2. Criminal Law 76.6 — in-custody statement — finding of voluntariness on voir dire — sufficiency of evidence <block_quote> The trial court did not err in denying defendant's motion to suppress his in-custody statement where the court made findings based upon competent evidence that police officers told defendant that members of his family had helped them recover stolen property from defendant's residence but no threats were made to bring charges against the family members; defendant was informed of his constitutional rights mandated by Miranda for at least the third time immediately prior to giving his statement to police; defendant signed a waiver of rights form and made incriminating statements which were reduced to writing by a police officer; defendant was in good physical and mental condition at the time he gave the statement; the statement was sensible; defendant understood his constitutional rights and indicated that he did not wish to have a lawyer present; the statement was not the result of any alleged illegal search or seizure of defendant's premises; and defendant was not under the influence of any intoxicating liquor at the time he made the statement.</block_quote><page_number>Page 2</page_number> 3. Criminal Law 75.3 — illegally seized evidence — confronting defendant with — statement not rendered involuntary <block_quote> Even if a warrantless search conducted by police without defendant's knowledge and while he was in custody was illegal, the fact that defendant was shown items recovered during the search just prior to making incriminating statements did not, ipso facto, render the statements involuntary, since the use of illegally seized property is only one circumstance surrounding an in-custody statement to be considered in determining whether the statement is voluntary and admissible.</block_quote> 4. Criminal Law 21 — taking defendant before magistrate — seven hour delay — no unreasonableness <block_quote> Where seven hours elapsed between the time defendant was arrested and the time he was taken before a magistrate for the purpose of setting bail, the delay was not unreasonable in violation of G.S. <cross_reference>15A-501</cross_reference> and <cross_reference>15A-511</cross_reference>, since the delay was necessary in order for officers to recover stolen goods and to attempt to locate a person who was arrested with defendant but who escaped during recovery of the stolen goods.</block_quote>

1. Master and Servant 49.1 — workmen's compensation — contractor and subcontractor — employee of which employer The Industrial Commission did not err in finding that decedent was an employee of defendant utility company rather than of defendant construction company when he was killed while working on the relocation of water lines for a highway construction project, and that a contractor -subcontractor relationship existed between the construction company and the utility company, where the evidence showed that the construction company was the general contractor for the highway project; the utility company was hired by the construction company to relocate water lines for the project; decedent was a member of the crew hired by the utility company; in order to circumvent a requirement that subcontractors on a highway project must be approved by the State, members of the crew supplied by the utility company were listed as "employees" of the construction company, paid by the construction company by its checks, and<page_number>Page 24</page_number> shown on construction company W-2 and W-4 forms; the construction company deducted from sums otherwise due to the utility company the amounts it paid as wages to the utility company crew, payroll taxes on those wages, and workmen's compensation premiums and other insurance for the crew; only the utility company had the right to hire and fire the work crew; the utility company decided where members of the crew would work each day and its employee directed the crew in the performance of its work; the utility company used the crew on other unrelated projects during the time covered by its contract with the construction company and maintained separate payrolls for the crew members; the classification and pay rates of the crew members were determined by the utility company; and crew members were transported to and from the work site in a utility company vehicle. 2. Master and Servant 71.1 — workmen's compensation — average weekly wage — wages from two sources The Industrial Commission properly determined that a deceased employee's average weekly wage was the aggregate of wages he received from both a contractor and a subcontractor where the Commission found that decedent in fact was an employee only of the subcontractor and that the subcontractor ultimately paid the contractor for wages it paid to the decedent. 3. Master and Servant 81 — workmen's compensation — death benefits — estoppel of carrier to deny liability Where a contractor and subcontractor agreed that members of the sub-contractor's work crew would be considered as "employees" of the contractor while working on a highway construction project, the contractor was reimbursed by the subcontractor for wages it paid to the crew and for workmen's compensation insurance premiums it paid on those wages, a member of the subcontractor's work crew was killed while working on the highway project, and the Industrial Commission found the decedent was in fact an employee of the subcontractor, the contractor's workmen's compensation insurance carrier was estopped to deny that it was liable for a portion of the workmen's compensation benefits due because of the employee's death if it accepted premiums for workmen's compensation insurance on the deceased employee.

1. Automobiles 89.1 — automobile parked on road — last clear chance — sufficiency of evidence In an action to recover for personal injuries and property damage sustained by plaintiffs when defendant collided with the rear of their automobile, the trial court did not err in submitting an issue of last clear chance, since the evidence that defendant was traveling 30 to 35 mph when plaintiffs' parked car first came into view about a block away was sufficient to permit the jury to find that defendant should have discovered plaintiffs' perilous position in time to avoid the accident. 2. Trial 52 — damages — setting aside verdict — discretionary matter The trial court's decision to set aside the jury's verdict as to the damage issues was a discretionary matter, and in the absence of evidence of abuse of that discretion, the decision is not subject to appellate review. 3. Appeal and Error 62.2 — damage issues — partial new trial improper In an action to recover for personal injuries and property damage sustained in an automobile accident, the trial judge should have granted defendant's motion to set aside the entire verdict rather than just that portion related to damages and to order a new trial on all issues, since the issues of negligence, contributory negligence, last clear chance, and damages were so inextricably interwoven that a new trial on all issues was necessary.<page_number>Page 60</page_number>

1. Uniform Commercial Code 42 — bank's payment of check after stop payment order — burden of showing loss When a bank pleads non-loss by a bank customer in an action by the customer to recover damages caused by the bank's payment of a check contrary to a valid stop payment order, the customer must show some loss other than the mere debiting of his bank account in the amount of the check. G.S. <cross_reference>25-4-403</cross_reference> (3). 2. Uniform Commercial Code 42 — bank's payment of check after stop payment order — burden of showing loss A prima facie case of loss is established by a bank customer when he shows that the bank paid a check contrary to a valid stop payment order, and the bank, exercising its subrogation rights created by G.S. <cross_reference>25-4-407</cross_reference>, then has the burden of coming forward and presenting evidence of actual loss sustained by the customer. When the bank meets this burden of coming forward, the customer must sustain the ultimate burden of proving loss.<page_number>Page 102</page_number> 3. Uniform Commercial Code 42 — bank's payment of check after stop payment order — summary judgment — issue as to loss The trial court erred in granting summary judgment for plaintiff customer in an action to recover damages allegedly caused by defendant bank's payment of a check contrary to plaintiff's stop payment order where the bank denied plaintiff's allegation that he had been damaged by the face amount of the check, and plaintiff offered only his verified complaint to establish his loss and thus did not carry the burden of showing that no genuine issue of material fact existed as to the loss.

1. Searches and Seizures 1 — search by private individual Defendants' fourth amendment rights were not violated when the owner of stolen tobacco discovered the tobacco by looking into one defendant's locked barn through a hole in the wall, since the security against unreasonable searches and seizures is not invaded by acts of individuals in which the government has no part. 2. Searches and Seizures 2 — consent by tenant A warrantless search of defendant's barn for stolen tobacco was lawful where a tenant in possession of the barn consented to a search of the barn by officers, since the owner's temporary use of the barn to store the stolen tobacco did not extinguish the tenant's interest which the landlord recognized by seeking the tenant's permission to use the barn and by giving the tenant a key to the barn after the tobacco had been placed in it. 3. Conspiracy 6; Burglary and Unlawful Breakings 5.7 — conspiracy — breaking and entering — larceny — absence of conspirator from crime scene The testimony of a coconspirator was sufficient to require submission to the jury of issues of guilt by two defendants of conspiracy to break and enter a tobacco packhouse with intent to steal tobacco therefrom, breaking and entering the tobacco packhouse, and larceny of tobacco therefrom. The fact that one defendant was not present when the breaking and entering and larceny were committed did not require nonsuit of those charges against such defendant where there was no evidence that he ever withdrew from the conspiracy, since each conspirator is responsible until he withdraws from the conspiracy for all acts committed by others in the execution of the common purpose. 4. Burglary and Unlawful Breakings 6.4 — charge of breaking and entering — proof of breaking or entering In prosecutions under G.S. <cross_reference>14-54</cross_reference> in which the indictment charges defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient, and instructions allowing juries to convict on the alternative propositions are proper.

1. Insurance 147 — aircraft policy — noncompliance with notice requirements In an action to recover damages to an airplane where the policy under which plaintiffs claimed required that notice of any accident be given to the insurer by the insured as soon as was practicable, the trial court properly held that plaintiffs had not complied with a condition precedent to any suit against defendant since plaintiffs first gave defendant notice of loss eight months and twenty-one days after the accident occurred; there was no evidence that either plaintiff was under any disability; and there was no evidence showing that plaintiffs could not contact defendant due to any fault of defendant. 2. Insurance 147 — aircraft policy — noncompliance with notice requirements — liability denied on other grounds — defense of noncompliance not abandoned Plaintiffs' contention that defendant waived the notice requirement of the insurance policy when it denied liability on other grounds, the contract exclusion clause, is without merit, since defendant at<page_number>Page 151</page_number> no time abandoned the defense of failure to provide notice in favor of reliance on the exclusion clause but instead presented its two grounds for denial together in a letter to plaintiffs denying coverage and continued to present them as alternatives throughout the action. 3. Insurance 147 — aircraft policy — investigation of loss — noncompliance with notice requirements — no waiver Investigation of plaintiffs' loss by an adjuster employed by defendant did not operate as a waiver of plaintiffs' noncompliance with the notice provisions of the insurance policy, since there was no evidence that defendant at any time promised coverage or caused plaintiffs to believe that they were in compliance with the policy.

1. Abduction 1 — taking of child by parent — no crime of abduction In the absence of an order giving custody of a child to his mother, the father of the child taken cannot be guilty of the crime of child abduction; moreover, the father's consent to the taking of a child is a defense, the burden of which is upon the defendant. 2. Abduction 1 — grandfather's abduction of grandson — father's consent — non-suit required In a prosecution of defendant for abduction of his grandson, the trial court erred in failing to grant his motion for nonsuit where all of the evidence tended to show that defendant and the child's father acted in concert in taking the child from his school bus, placing him in defendant's automobile, and leaving the school, and the only inference reasonably deducible is that the defendant was acting with the consent of the child's father. 3. Abduction 1 — abduction of child — mistaken belief concerning child's identity — failure to instruct — error In a prosecution of defendant for abduction of his grandson and a female child, the trial court erred in failing to instruct the jury on the defense of mistake of fact, since the evidence tended to show that defendant and his son were operating under the mistaken belief that the female child whom they allegedly abducted was defendant's granddaughter.

1. Criminal Law 73.2 — information heard by witness on radio — no hearsay testimony In a prosecution for armed robbery and assault with a deadly weapon, the trial court did not err in allowing a witness to testify that she heard on her police scanner radio that the grocery store in question had been robbed, since the testimony was not offered to prove that the store was robbed but was offered instead to explain why the witness remembered having seen a man at the grocery store; moreover, there was ample, uncontradicted evidence to show that the grocery store was robbed, and defendant never contended to the contrary. 2. Criminal Law 66.18 — in-court identification of defendant — failure to hold voir dire — no error Failure of the trial court to conduct a hearing in the absence of the jury, find facts, and thereupon determine the admissibility of the victim's in-court identification testimony was harmless since there was no suggestion that the witness's in-court identification might have been tainted by any pre-trial identification procedures made under constitutionally impermissible circumstances, and there was clear and convincing evidence that the witness's in-court identification of defendant originated with and was based on his observations of defendant at the crime scene. 3. Criminal Law 88.4 — attempt to obtain false testimony — cross-examination of defendant proper The questions asked defendant by the district attorney by which the district attorney attempted to show an attempt by defendant to induce a witness to testify falsely in his favor were properly allowed by the trial court.

1. Criminal Law 35 — evidence showing possibility of another's guilt The trial court in a homicide prosecution properly excluded defendant's evidence that a neighbor of deceased was a member of a motorcycle gang involved in a shooting, a member of the rival gang was in the vicinity on the night of the shooting inquiring about the neighbor's residence, and the neighbor thought the man who shot deceased intended to kill him instead, since the evidence did not point directly to the guilt of another and was thus not relevant on the question of guilt.<page_number>Page 203</page_number> 2. Criminal Law 89.4 — prior statement not inconsistent In this homicide prosecution, a detective's prior statements in a newspaper article which speculated that the murder may have resulted from motorcycle gang warfare were not admissible as prior inconsistent statements since the detective's testimony at trial based on personal observations was not inconsistent with the possibility that after the shooting and before defendant's confession he had other possible theories. 3. Homicide 30.2 — murder trial — failure to charge on manslaughter Evidence in a murder case that defendant was upset when deceased unexpectedly returned to his home and interrupted defendant's tryst with deceased's wife, causing defendant to jump out of a window nine feet above the ground, did not require the court to charge on the lesser offense of manslaughter in view of defendant's confession that he went to his car and got a shotgun, went to a neighbor's yard, and shot deceased when he walked out on a porch. 4. Homicide 8 — drunkenness as defense Voluntary drunkenness is a defense to a charge of first degree murder to the extent that it precludes the mental process of premeditation and deliberation, but it is no defense to second degree murder.

1. Appeal and Error 6.7 — denial of motion to amend — compulsory counterclaim — immediate appeal The denial of a motion to amend the answer to allege a compulsory counterclaim affects a substantial right and is immediately appealable. G.S. <cross_reference>7A-27</cross_reference> (d). 2. Pleadings 33.3; Rules of Civil Procedure 15 — denial of amendment to allege defense and counterclaim In an action for breach of a construction contract, the trial court did not abuse its discretion in denying defendants' motion to amend their answer to allege a defense that plaintiff's license as a general contractor limited his recovery for the construction of a dwelling to $75,000 and a counterclaim for the sum which defendants had paid to plaintiff over that amount, where the court considered all attendant circumstances and concluded that justice did not require the amendment, and where the case had been calendared for trial on previous occasions and defendants waited 16 months after plaintiff's reply to file the motion to amend. G.S. <cross_reference>1A-1</cross_reference>, Rule 51 (a).

Husband and Wife 9 — action for loss of consortium A married man cannot maintain an action for loss of consortium when his wife is negligently injured by another; nor does he have a right of action for loss of consortium when injuries to the wife are intentionally inflicted unless the wrongful conduct directly and intentionally deprived the husband of the consortium of the wife.

Attorneys at Law 7.5 — denial of attorney's fees The trial court did not abuse its discretion in refusing to award attorney's fees pursuant to G.S. <cross_reference>6-21.1</cross_reference> to the successful plaintiff in an action to recover for damages to plaintiff's automobile where the jury awarded plaintiff $250 and defendant's insurance carrier had offered to settle plaintiff's claim for $200.

Contracts 16 — promissory note — condition precedent to payment — failure to show condition existed — no recovery on note A promissory note executed by defendant and another to the order of plaintiff upon which defendant wrote, "Upon condition of no maturity date at all," before he signed it amounted to an agreement between the parties that defendant was not required to pay until he had the money to afford it, at which time he would if he could; therefore, because of defendant's agreement to pay only conditionally, the condition being that he should have the money to afford it, plaintiff was required to offer proof of defendant's ability to pay before plaintiff could recover in an action on the note.

1. Taxation 25 — ad valorem taxes — timberland — payments in lieu of taxes — listing of property by county — discovered property — exempt property Timberland upon which a foundation made payments in lieu of taxes for the years 1969-1973 pursuant to former G.S. <cross_reference>105-279</cross_reference>(b) was properly "listed" by the county in the name of the foundation for the years 1970-1974 either as discovered taxable property pursuant to G.S. <cross_reference>105-312</cross_reference> or as exempt property pursuant to G.S. <cross_reference>105-282</cross_reference>. 2. Taxation 25 — ad valorem taxes — discovered property — necessity for notice and hearing Discovered property is "listed in the name of the taxpayer who listed it for the preceding year" within the meaning of G.S. <cross_reference>105-312</cross_reference> (c), and notice to the taxpayer and an opportunity for a hearing are not required by the statute, when the property was listed personally by the taxpayer or was listed in the taxpayer's name by "any other person," according to law, for the preceding year. Therefore, the listing of a foundation's timberland for the previous year by the tax supervisor removed any requirement of notice of discovery or the granting of a hearing to the foundation concerning its taxes for the present year. 3. Taxation 19 — ad valorem taxes — application for exemption — failure of county to respond — no presumption of acceptance A county's failure to respond to an application for exemption of property from ad valorem taxation did not establish a presumption, rebuttable or otherwise, that the application for exemption had been granted. 4. Taxation 19 — ad valorem taxes — application for exemption — absence of hearing at county level A foundation was not denied any substantial right by the lack of a hearing at the county level on its application for exemption of property from ad valorem taxation where the lack of a hearing was due partly to its own inattentiveness, and where the foundation received a full hearing before the Tax Commission and a review of the Tax Commission's decision in the superior court. 5. Taxation 25 — ad valorem taxes — waiver of defenses by county A county waived any affirmative defenses it may have had in a proceeding to review an assessment for ad valorem taxes by its failure to raise such defenses before the Property Tax Commission. Furthermore, equity did not require either the superior court or the Court of Appeals to take cognizance of the county's belated attempts to assert such defenses where the appeal to the Property Tax Commission, superior court,<page_number>Page 415</page_number> and the Court of Appeals has been limited to a review of assignments of errors of law arising from uncontested facts. 6. Taxation 22 — ad valorem taxes — nonprofit corporation — educational, scientific, charitable purposes — exclusive use — lease of timberland to business Forest land owned by a nonprofit corporation was not "used exclusively" for educational and scientific purposes within the meaning of G.S. <cross_reference>105-275</cross_reference> (12), for educational purposes within the meaning of G.S. <cross_reference>105-278.4</cross_reference>, or for charitable purposes within the meaning of G.S. <cross_reference>105-278.6</cross_reference> (7), and thus was not exempted from ad valorem taxation by those statutes, where the nonprofit corporation generated income by leasing the property to a commercial packaging company which used the forest as a source of timber and pulpwood for its business, notwithstanding the nonprofit corporation may have used the income for educational and scientific purposes and may have used the forest incidentally for education and scientific research, since it is the actual use of the property by the lessee that determines whether the property is "used exclusively" for an exempted purpose. 7. Taxation 22 — ad valorem taxes — nonprofit corporation — protected natural area Forest land owned by a nonprofit corporation which was leased to a commercial packaging company for use as a source of timber and pulpwood was not exempted from taxation under G.S. <cross_reference>105-275</cross_reference> (12) as realty held for educational and scientific purposes "as a protected natural area," although the corporation has improved the forest as a habitat for deer and quail by extensive road building, draining and cutting, since the term "protected natural area" means property which, insofar as possible, is kept in a pristine state free from those interferences which any given generation may feel to be "improvements" on nature. 8. Taxation 21 — ad valorem taxes — forest land — ownership not in State The "Hofmann Forest" is not owned by North Carolina State University and exempt from taxation as State property under G.S. <cross_reference>116-16</cross_reference>, but is owned by the North Carolina Forestry Foundation, Inc., a nonprofit corporation, since the evidence shows that although the University is to receive the Foundation's assets upon dissolution, it has neither legal nor beneficial ownership of the Forest; the University is merely represented on the Foundation's board of directors; and the Foundation's board of directors is not controlled by the University but has the power to act without regard to the wishes of the University.

Insurance 60 — accident insurance — exclusion for pre-existing disease — arteriosclerosis as disease — jury question In an action by plaintiff to recover as beneficiary under an accident insurance policy which specifically excluded "any loss caused or contributed to directly or indirectly by any pre-existing disease, infirmity . . .," a question of fact as to whether the arteriosclerotic condition of the insured was so severe that it constituted a disease or infirmity within the meaning of the policy was raised and summary judgment was therefore improper where the evidence tended to show that the insured was involved in a serious automobile accident and sustained extensive injuries; insured was in good health before the accident; he developed a myocardial infarction only after the increased stress was placed on his heart following the accident; and insured was suffering from some degree of arteriosclerosis prior to the accident.

1. Indictment and Warrant 12.2; False Pretense 2 — amendment of indictment — date of offense The trial court did not err in ordering that an indictment for obtaining property by false pretense be amended to allege that the offense occurred on 18 November 1976 instead of 18 November 1977, a date subsequent to the trial, since (1) time was not of the essence of the<page_number>Page 532</page_number> crime charged, and by virtue of G.S. <cross_reference>15-155</cross_reference> it was not necessary to correct the obvious clerical error in stating the time of the offense in the indictment, (2) the change effected no substantial alteration in the charge set forth in the indictment and therefore was not an amendment prohibited by G.S. <cross_reference>15A-923</cross_reference> (e), and (3) neither the mistake in the date originally alleged nor its correction by the court hampered defendant in presenting his defense that he made no false representation. 2. False Pretense 3.1 — variance as to date of offense There was no fatal variance between an indictment alleging an offense of obtaining property by false pretense occurred on 18 November and evidence that defendant opened an account by misrepresenting his identity on 14 October since (1) time was not of the essence of the offense charged, and (2) the evidence showed defendant received goods as a result of his false pretense on 14 October, 2 November and 18 November, one being the exact day alleged in the indictment. 3. False Pretense 3.1 — obtaining goods on credit by misrepresenting identity The crime of obtaining property by means of a false pretense may be committed when one obtains goods on credit by a wilful misrepresentation of his identity, quite apart from any intention of the defendant ultimately to pay or not to pay.

Criminal Law 23; Intoxicating Liquor 2.3 — plea bargain agreement not binding on State ABC Board The State Board of Alcoholic Control was not estopped to suspend petitioner's ABC permits for knowingly selling beer to a minor by a plea bargain agreement in a criminal action against petitioner's employee based on his sale of beer to the minor in which the State agreed "that it will not take any further action by way of hearing before any court, board, or agency for any action arising out of this transaction against" petitioner or its employee, since (1) the assistant district attorney who entered the agreement was without authority to bind the State's boards and agencies in the exercise of their administrative discretion without their consent, and (2) petitioner's employee, not petitioner, agreed to forego his constitutional rights in reliance on the assistant district attorney's promises and only he can properly complain of any breach of that agreement.

1. Appeal and Error 28.1 — findings of fact — failure to make exception — findings not reviewed on appeal Questions as to sufficiency of service of process and whether or not plaintiff was required to comply with G.S. 55-154 (a) were not properly before the Court of Appeals where the trial court made findings of fact with respect to those questions and defendant made no exceptions to those findings. 2. Bills and Notes 19 — defense of failure of consideration — summary judgment improper In an action to recover on a promissory note and a "creative business agreement," the trial court erred in granting summary judgment for plaintiff since defendant raised a genuine issue of material fact, supported by its affidavit and deposition, as to whether there was a failure of consideration for the note sued upon.

Larceny 9 — inability of jury to reach verdict on breaking or entering charge — absence of charge on value of stolen property — verdict treated as guilty of misdemeanor larceny Where, in a prosecution for felonious breaking or entering and felonious larceny, the trial court charged only on felonious larceny after a breaking or entering and failed to charge that the jury could find defendant guilty of felonious larceny if it found the value of the property taken exceeded $200.00, and the jury was unable to reach a verdict on the breaking or entering charge, the trial court could not properly accept a verdict of guilty of felonious larceny, and the jury's verdict must be treated as a verdict of guilty of misdemeanor larceny.

Searches and Seizures 39 — warrant to search dwelling — search of room rented to defendant — no exclusive control by defendant — no knowledge by officers The search of a bedroom and closet in the bedroom rented by defendant in his uncle's home pursuant to a warrant to search the uncle's home was lawful, and stolen clothing seized from the closet was properly admitted in evidence against defendant, where the evidence on voir dire showed: (1) defendant did not exercise sole or exclusive control over the bedroom and closet but shared them with the uncle's children, and (2) even if defendant had sole or exclusive control over the bedroom and closet, the officers did not know and had no reason to know that defendant exercised such control since the uncle was in the bedroom exercising apparent control during the search, and the officers had no reason to know that defendant paid rent on the room or had any interest in it to the exclusion of the owner.

1. Mines and Minerals 2 — failure to fence mine openings — intentional entry — no recovery for injury Plaintiffs' complaint failed to state a cause of action based on G.S. 74-4 and G.S. 74-13 making it a criminal offense to fail to fence the opening of mines to prevent inadvertent entrance into them, since plaintiffs' complaint demonstrated that the minor plaintiff's entry into defendants' mine was intentional rather than inadvertent; there was no statutory duty placed upon defendants to fence the mines so securely that<page_number>Page 715</page_number> even an intentional entry would be impossible; and, even if violation of the safety statute was negligence, plaintiffs could not recover because they could not show that failure to fence so as to prevent inadvertent entry was the proximate cause of an injury resulting from an intentional entry. 2. Mines and Minerals 2; Negligence 59.2 — licensee in mine — duty to refrain from wilful and wanton negligence — complaint insufficient to state claim Where plaintiffs' complaint alleged that people frequently visited mines on defendants' property and that defendants were aware of such use, but there was no evidence that defendants derived any benefits from such visits, the minor plaintiff who entered one of defendants' mines was a licensee to whom defendants owed only the duty to refrain from wilful and wanton negligence and from the commission of any act which would increase the hazard. Plaintiffs' complaint was insufficient to state a claim for negligence where there was no allegation of wilful and wanton negligence.

1. Criminal Law 29.1 — plea of insanity — time for raising — method of raising affirmative defense The trial court did not err in denying defendant's motion, made when the case was called for trial, to plead temporary insanity, since defendant failed to comply with G.S. <cross_reference>15A-959</cross_reference> which requires that, if a defendant intends to raise the defense of insanity but does not plan to put on expert evidence, he must file notice of such intention within the<page_number>Page 730</page_number> time provided for the filing of pretrial motions under G.S. <cross_reference>15A-952</cross_reference>; moreover, the court's denial of defendant's motion did not deprive him of his right to present his affirmative defense to the jury, since, under the general plea of not guilty, such as defendant made in this case, a defendant may prove affirmative defenses such as insanity. 2. Criminal Law 75.11 — incriminating statement — waiver of right to remain silent inferred The trial court did not err in admitting into evidence an incriminating statement made by defendant to a public safety officer who arrested him without first making specific findings as to its voluntariness, since there was no conflicting evidence with respect to the statement and since the court, under the circumstances surrounding the interrogation of defendant, could infer a knowing and intelligent waiver by defendant of his right to remain silent.