Volume 49 — North Carolina Court of Appeals Reports

1. Constitutional Law 45 — defendant appearing pro se — refusal to appoint standby counsel The trial court did not err in allowing the indigent defendant to represent himself and in refusing to appoint standby counsel for him, since defendant knowingly and intelligently waived his right to appointed counsel; his motion to represent himself was granted only after defendant had been informed of the nature of the charges against him and of his right to appointed counsel; and defendant had no right to standby counsel, and the court did not abuse its discretion in denying such counsel where defendant requested it, the motion was granted, defendant changed his mind and elected not to use standby counsel, defendant later requested such counsel again, and the court refused. Furthermore, defendant could not complain that his imperfect understanding of the rules of evidence resulted in his failure to get certain evidence in the record, since the evidence he wished to get in was either irrelevant and immaterial or repetitive, and, having chosen to represent himself, he could not complain of the quality of his own defense. 2. Criminal Law 161 — defendant representing self- necessity for exceptions Failure of defendant, who represented himself, to note exceptions to rulings of the trial court constituted waiver of the right to assert the alleged errors on appeal. G.S. <cross_reference>15A-1446</cross_reference>(b). 3. Criminal Law 128 — motion for appropriate relief — failure to rule on as denial There was no merit to defendant's contention that the trial judge erred in failing to rule upon his motion for appropriate relief, since defendant did receive a ruling on his motion under G.S. <cross_reference>15A-1448</cross_reference>(a) (4) which provides that, if no ruling has been made by the trial judge on a motion for appropriate relief within 10 days, the motion is deemed denied.<page_number>Page 15</page_number> 4. Criminal Law 169 — failure of record to show excluded testimony Defendant failed to show prejudice in the exclusion of certain testimony where the record did not show what the witness would have testified. 5. Criminal Law 106.5 — uncorroborated testimony of accomplice — sufficiency of evidence The uncorroborated testimony of an accomplice is sufficient to sustain a conviction. 6. Criminal Law 87.3 — reading from police records — no prejudice There was no merit to defendant's assignment of error to the trial court's allowing a police dispatcher to read from the official police records concerning the sounding of a burglar alarm in a grocery store, since defendant did not dispute the fact that the store was broken into on the night in question; the testimony was not inconsistent with defendant's defense; and defendant failed even to cross-examine the witness regarding this testimony. 7. Criminal Law 67 — voice identification of defendant — independent origin The trial court in an armed robbery case did not err in determining that the victim's voice identification of defendant was of independent origin and was admissible; moreover, any lack of certainty in the victim's testimony that defendant's voice was "very familiar to" that of the robber went to the credibility of the testimony and not to its admissibility. 8. Constitutional Law 50 — Speedy Trial Act inapplicable — delay in retrial for defendant's benefit There was no merit to defendant's contention that the six month delay between issuance of the mandate from the Court of Appeals to retry defendant and the actual retrial was in excess of the 120 day limit imposed on the courts by the Speedy Trial Act, since that Act did not take effect until 1 October 1978 and therefore was not applicable to defendant's case; moreover, his Sixth Amendment right to a speedy trial was not violated, since the delay was for the purpose of allowing defendant to locate his alibi witness, and since defendant made no showing of prejudice by the delay in his retrial.

Insane Persons 1.2 — involuntary commitment — dangerous to self — dangerous to others Neither the facts recorded by the trial court nor the record in an involuntary commitment proceeding supported the court's conclusion that respondent was "dangerous to himself" where the findings and record showed that respondent was irregular in his sleeping habits and was up from three to six times per night; respondent disregarded his nutritional needs by fasting for some periods and then eating a whole chicken or a whole loaf of bread; respondent ate about five pounds of sugar every two days, sometimes consuming five or six glasses of sweet water per day; and respondent often stood outside his home and made comments to persons passing by the home. However, the court's conclusion that respondent was "dangerous to others" was supported by findings that respondent had become uncontrollable at all times and frequently made threats to his aged and nervous mother that he would "get you all yet;" respondent was suspicious of his family and believed that his family had sexually seduced him; respondent believed all his relatives were against him; and respondent was "ready to fight" if someone pointed out that he had done something out of order.<page_number>Page 24</page_number>

Insurance 4.1, 127, 135 — other insurance clause in fire insurance policy — inclusion in binder — no subrogation of insurer who paid in full A clause in defendant's standard fire insurance policy which prohibited other insurance coverage on any item covered by its policy could be given effect in a binder when no policy was ever issued and even though the binder was deemed to include all of the provisions of G.S. 58-176; therefore, the insured, who repudiated defendant's policy and obtained a policy through plaintiff, thereby violated the other insurance clause of defendant's policy and had no coverage through defendant so that plaintiff could not recover on a right of subrogation based on its full payment to the insured.

1. Rules of Civil Procedure 15.1 — answer amended after case calendared — no error The trial court did not err in allowing defendant's motion to amend his answer after the case was calendared for trial, since plaintiff failed to show prejudice because the motion was granted;<page_number>Page 59</page_number> defendant's original counsel had been removed from the case upon plaintiffs motion; and the motion for amendment was the first appearance by defendant's new counsel. 2. Divorce and Alimony 28.1; Judgments 39; Estoppel 4.3 — foreign divorce decree — validity — reliance on decree by plaintiff- summary judgment for defendant proper In plaintiff's action to have a Florida divorce judgment declared invalid, the trial court properly entered summary judgment for defendant where defendant submitted a certified copy of the official court record of the Florida divorce action; the judgment was valid on its face, and defendant's pleadings asserted the validity of the decree and the legitimacy of defendant's domicile at the time of the original action; plaintiff offered no proof of the matter other than her own allegations contained in her pleadings, brief and affidavit; included in the record was a notarized document signed by plaintiff stating that "undersigned acknowledges receipt of the complaint in this cause [the Florida divorce action], accepts the service thereof and enters a general appearance in this cause"; and plaintiff admitted in a "Compromise Settlement Agreement," copies of which both plaintiff and defendant entered into the record, that she had been divorced from defendant at an earlier time. Moreover, even if the Florida divorce were invalid and if plaintiff otherwise had standing to contest the decree, she would be estopped from doing so, since she relied upon the divorce judgment, without raising the question of its validity, in entering a settlement agreement under which she received valuable consideration.

Divorce and Alimony 29; Estoppel 3.1 — alimony action — invalidity of marriage alleged — date of entry of judgment not controlling — estoppel to assert invalidity of marriage Defendant and his first wife were divorced as of 18 December 1978, the date of hearing on the matter, rather than as of 8 February 1979, the date the divorce judgment was actually signed, so that the marriage of plaintiff and defendant on 23 December 1978 was a lawful marriage; moreover, defendant in this alimony action should be equitably estopped from asserting the defense of invalidity of the marriage, since he himself instituted the prior divorce action; he was at least culpably negligent in not obtaining a signed divorce judgment on the date of the initial hearing; and he was negligent subsequent to learning of the alleged problem with his prior divorce in not advising plaintiff of the same and taking necessary steps to have the judgment amended so as to relate back to 18 December 1978.

1. Automobiles 106 — driver who is not owner — prima facie evidence of agency — instruction required Plaintiff in a wrongful death action was entitled to an instruction on G.S. <cross_reference>20-71.1</cross_reference>, which essentially provides that proof of ownership of the automobile by one not the driver makes out a prima facie case of agency of the driver for the owner at the time of the driver's negligent act, since it was stipulated that one defendant who was not the driver was the registered owner of the vehicle at the time of the accident, and an instruction on the statute was required even though plaintiff presented no positive evidence that defendant driver was defendant owner's agent. 2. Automobiles 106 — driver as agent of owner — peremptory instruction in favor of owner erroneous The trial court in a wrongful death action erred in giving a peremptory instruction in favor of defendant automobile owner who was not the driver at the time of the allegedly negligent acts complained of, though plaintiff relied solely on G.S. <cross_reference>20-71.1</cross_reference> and did not offer independent proof of agency, since defense counsel did not present any evidence to rebut plaintiff's prima facie case of agency under the statute, and a stipulation that the female defendant "had the vehicle in her custody and control and the right to exercise all incidents of ownership of the automobile as to its operation" did not exclude the possibility that defendant driver was acting as defendant owner's agent at the time of the collision.

1. Attachment 1 — prejudgment attachment — constitutionality of statutes G.S. <cross_reference>1-440.1</cross_reference> et seq., which permits prejudgment attachment without prior notice and opportunity to be heard, does not violate federal and state constitutions. 2. Attachment 2 — unrelated fraudulent act alleged in affidavit — insufficiency of affidavit to support attachment Plaintiffs' mere suspicion alleged in their affidavit that defendants had committed the possibly unrelated fraudulent act of burning their house one week after obtaining a $5000 increase in insurance coverage would not support prejudgment attachment to prevent another anticipated fraudulent act, and the trial court erred in failing to make findings of fact when it upheld the attachment.

Trial 13 — taking exhibit into jury room — defendants' lack of consent The trial court erred in allowing the jury to take plaintiff's exhibit into the jury room during deliberations where defendants did not consent to this procedure, and defendants' clear indication of lack of consent sufficiently stated their objection to the trial court.

Accounts 2; Contracts 26.2; Principal and Agent 5 — action on account stated — more extensive contract with agent alleged — authority of agent — evidence improperly excluded In an action to recover the balance due for recreational vehicle seats manufactured by plaintiff and sold to defendant where plaintiff characterized the balance due as an account stated, the trial court erred in excluding defendant's evidence of a more extensive warehousing and distribution contract entered into by defendant with plaintiffs sales manager who represented that he owned plaintiff corporation, and the case is therefore remanded for a determination of whether the sales manager had authority to bind plaintiff in a warehousing and distribution contract, whether such a contract did exist between the parties and, if so, what its terms were, whether the contract was breached, defendant's damages, if any, and whether any set-off for the allegedly defective condition of some of the seats should be allowed.

1. Searches and Seizures 34 — vehicle fleeing from robbery scene — plastic bag in plain view — no expectation of privacy Where an officer stopped defendant's vehicle while defendant was fleeing from the scene of an armed robbery, defendant had no reasonable expectation of privacy in a white plastic bag in plain view in the vehicle which contained money obtained in the robbery, and the officer was justified in searching the white plastic bag. 2. Arrest and Bail 3.6; Searches and Seizures 37 — probable cause for arrest search of vehicle incident to arrest An officer had probable cause to believe defendant had committed a felony, G.S. <cross_reference>15A-401</cross_reference>(b)(2), and the officer lawfully searched defendant's vehicle where the officer was in a shopping center parking lot when he saw a man chasing another man and yelling that he had just robbed a theater; the officer saw the person being chased enter the passenger side of an automobile which was then driven away; and the officer stopped the automobile and found that a female was on the driver's side and defendant was on the passenger side. 3. Criminal Law 76.2 — admission of incriminating statement — failure to hold voir dire — harmless error The trial court in an armed robbery case erred in admitting over objection a statement made by defendant when he was arrested that his female companion who was driving the getaway car "knew nothing of this" without conducting a voir dire hearing to determine the voluntariness of the statement; however, such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt of the robbery in question. 4. Criminal Law 75.9 — spontaneous in-custody statements — absence of Miranda warnings Defendant's in-custody statements to an officer that he didn't "know why [he] did it" and that he hated that he "ever came to Raleigh" were properly admitted into evidence where the court found upon supporting evidence on voir dire that the statements were spontaneously and voluntarily made by defendant during the course of<page_number>Page 283</page_number> a general conversation with the officer and were not made in response to questioning. 5. Robbery 4.3 — armed robbery — identity of perpetrator — sufficiency of evidence The State's evidence was sufficient to identify defendant as the perpetrator of an armed robbery of a theater box office where it tended to show that a theater employee followed the robber when he left the theater; the employee called to a policeman in a car to stop the robber; the fleeing robber entered the passenger side of a white car; the policeman followed the white car, stopped it, and found a female on the driver's side and defendant on the passenger side; and the stolen money and a handgun were found in the car.

1. Insurance 112.1; Conspiracy 6 — filing false insurance claim — conspiracy to do so — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for filing a false insurance claim and conspiracy to do so where it tended to show that defendants appeared individually and together to file repeated claims for identical damage to the same automobile; there were inexplicable frequent transfers of title to the car; and the in-court identification of the two defendants and testimony by several witnesses was adequate to link defendants to the illicit acts. 2. Criminal Law 99.6 — clarification of witness's testimony — no expression of opinion The trial judge did not make statements in the presence of the jury tending to add to the probative force of a witness's testimony, thereby expressing an opinion as to the credibility of the witness, where the trial judge merely clarified what a witness had already stated, that he did not recognize either defendant, but knew one defendant by name. 3. Criminal Law 68 — filing false insurance claim — release and cash settlement request — admissibility to show identity of defendant In a prosecution for filing a false insurance claim on an automobile and conspiracy to do so, the trial court did not err in admitting into evidence a release and a cash settlement request showing there was no lien on the car and that coverage would remain in force, since the exhibit was circumstantially relevant in establishing the identity of one defendant as one of the conspirators.

1. Assault and Battery 14.3; Indictment and Warrant 17.2 — felonious assault — variance in dates between indictment and evidence not fatal There was no fatal variance between an indictment charging that the date of a felonious assault was 17 April 1979 and evidence that the assault occurred on 17 February 1979 where the variance was caused by a clerical mistake in the indictment; the statute of limitations was not involved; all of the evidence at trial concerned an incident on 17 February; defense counsel's questioning of the witnesses clearly indicated that he was aware of the clerical error before trial; and defendant was not prejudiced in his preparation of an adequate defense by the variance. 2. Criminal Law 33.2, 34.7 — felonious assault — prior misconduct toward victim — intent to kill — codefendant's confrontations with victim — motive In a prosecution for assault with a deadly weapon with intent to kill on 17 February 1979, testimony that defendant participated in a beating of the victim in December and went to the victim's home in January with a shotgun was relevant to prove his intent to kill the victim on 17 February. Furthermore, evidence of separate confrontations with the victim by a codefendant, the son of defendant, was competent to show the general ill will existing between defendant's family and the victim and defendant's motive for the assault. 3. Criminal Law 102.5 — improper question by prosecutor — objection sustained — failure to instruct jury to disregard Defendant was not prejudiced when the prosecutor asked defendant on cross-examination, "You figure you can buy your way out of anything, don't you?" and the court sustained an objection to the question without instructing the jury on its own motion to disregard it, since the question did not have the degree of inflammatory impact sufficient to have seriously affected the outcome of the trial and the impropriety of the prosecutor's action in asking it was not gross. 4. Criminal Law 102.9 — jury argument — characterization of defendants as "lawless people" In this prosecution for assault with a deadly weapon inflicting serious injury, the prosecutor's remarks in his jury argument that the defendants were "lawless people" who have "no regard for the law books or the laws that have been established" amounted to little more than an uncomplimentary characterization which was supported by the State's evidence, and the court's action in overruling defendant's objection to such argument did not constitute prejudicial error.<page_number>Page 378</page_number>

Injunctions 3 — improper preliminary mandatory injunction The trial court erred in entering a preliminary mandatory injunction requiring defendant sanitary district to pay arrearages for past sewage and water services furnished by plaintiff city and to continue paying for such services in the future since plaintiff has an adequate remedy at law for money damages, injuries to plaintiff are not so pressing, immediate, irreparable and clearly established as to justify a preliminary mandatory injunction, and plaintiff had a right under its contract with defendant, which it waived, to discontinue supplying water to defendant upon nonpayment of water or sewage charges.

1. Appeal and Error 6.2 — denial of discovery motion — no appeal In plaintiffs' action to recover hospital and medical expenses which defendant refused to pay where plaintiffs sought to compel production of a file maintained by defendant in connection with plaintiffs' insurance claim plaintiffs' appeal from the trial court's order denying their motion must be dismissed, since plaintiffs did not show that the information sought was so crucial to the outcome of the case that denial of the motion would deprive them of a substantial right. 2. Appeal and Error 6.6 — denial of motion to dismiss — no appeal Defendant's motion to dismiss plaintiffs' claim for treble damages was a Rule 12(b)(6) motion, and no appeal lay from a denial thereof.

Appeal and Error 14 — service of notice of appeal Notice of appeal must be served on the opposing party either before the notice is filed or on the same day the notice is filed. Rules of Appellate Procedure 3(a)(2), 3(e), 26(b) and 26(d).

Embezzlement 6 — money deducted from pay checks for insurance — insufficiency of evidence of embezzlement by corporation president In a prosecution of defendant president of a corporation for embezzlement from employees of the corporation, evidence was insufficient to be submitted to the jury where it tended to show that the corporation had a group life and medical and accidental death insurance policy for the benefit of its employees; the premiums for the group policy were to be paid by deductions from the wages of the employees; the money was not paid to the insurance company and the group policy was terminated; deductions from employees' pay checks were made by computer and all information which went into the computer was the responsibility of the comptroller; and there was not substantial evidence that defendant, as president of the corporation, personally and actually received the money deducted for the group insurance and converted or misapplied it with fraudulent intent. G.S. <cross_reference>14-90</cross_reference>.

1. Criminal Law 66.18 — limp in assailant's walk — no identification — voir dire not necessary The trial court did not err in failing to conduct a voir dire hearing before permitting a robbery and assault victim to testify over defendant's objection that she noticed that there was a limp in her assailant's walk since the witness was not identifying defendant but was merely describing in general the man who robbed and assaulted her; moreover, any error in failing to hold a voir dire hearing at that time was rendered harmless when such a hearing was later conducted and defendant had a full opportunity to challenge and discredit the victim's identification of him. 2. Criminal Law 66.11, 66.17 — pretrial confrontation at victim's home — in-court identification — independent origin — no unnecessary suggestiveness A robbery and assault victim's in-court identification was of independent origin and not tainted by a pretrial identification, and the pretrial identification procedure was not impermissibly suggestive, where the victim had a sufficient opportunity to view her assailant in her house while he walked toward her, attempted to shoot her at close range, and then beat her about the head; when the victim returned home from the hospital a few hours after the crime, her yard was full of many people and the police; officers brought defendant into the victim's yard; the victim identified defendant as her assailant after observing him in the yard for ten minutes while he stood in a group of officers, neighbors and friends; and the victim's identification of defendant as he stood in her yard was based on the fact that defendant had similar physical characteristics, including the distinguishing feature of a limp, as her assailant. 3. Constitutional Law 43; Criminal Law 66.5 — pretrial confrontation — defendant not under arrest — no right to counsel Defendant did not have a right to counsel when a robbery and assault victim identified him while he was standing in her yard a few hours after the crimes since defendant had not been arrested at the time of the confrontation and adversary judicial proceedings thus had not been instituted against him. 4. Criminal Law 86.3 — cross-examination of defendant — details about prior convictions In a prosecution in which defendant testified on direct examination that he had been convicted of breaking and entering, larceny and two simple assaults, the trial court did not abuse its discretion in permitting the prosecutor to ask defendant questions an cross-examination attempting to elicit further details about defendant's prior convictions where the record fails to show that the questions were not asked in good faith, and defendant testified about<page_number>Page 548</page_number> an additional conviction for assault with a firearm which he had failed to mention on direct examination. 5. Criminal Law 138.7 — sentencing hearing — Department of Justice criminal record The trial court did not err in the admission of a copy of defendant's U.S. Department of Justice criminal record during the sentencing hearing. 6. Criminal Law 51 — qualifications to give expert testimony — effect of general objection Defendant waived objection to the qualifications of a deputy sheriff to testify that he checked the brakes on defendant's car and they worked properly and had sufficient brake fluid where defendant interposed only a general objection and did not object on the ground that the witness had not been qualified as an expert. 7. Criminal Law 26.5 — convictions of armed robbery and felonious assault — no double jeopardy Defendant was not placed in double jeopardy by his convictions of armed robbery and assault with a deadly weapon inflicting serious injury not resulting in death arising out of the same conduct since a conviction of armed robbery does not establish defendant's guilt of the felonious assault. 8. Robbery 4.3 — property taken from victim's presence by use of firearm — sufficiency of evidence The State's evidence in an armed robbery case was sufficient to show that property was taken by force from the victim's presence with the use of a firearm where it tended to show that the victim entered her house at 11:30 a.m. and immediately noticed that cabinet drawers and doors were open: as she was talking on the telephone, a masked man carrying a pistol came out of a bedroom down the hall toward her and said he was going to kill her; the victim knocked the gun up as it fired, and the man began to beat her with it; she managed to escape from the house; and when she returned home from the hospital a few hours later, she went into the bedroom with police officers and discovered that a window had been broken and several items of personal property were missing, since it can be inferred from the evidence that the assailant had attempted to frighten the victim and that as soon as she left the house, he went back into the bedroom and took property which did not belong to him. 9. Criminal Law 9.3; Robbery 4.5 — guilt as aider and abettor — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of felonious breaking or entering, armed robbery and felonious assault as an aider and abettor where it tended to show that defendant was parked on a road near woods leading to the victim's house at the time of the crimes; defendant admitted to an officer that he knew about the "hit" at the victim's house and that he had lied when he told the officer he was parked on the road because he was having brake trouble: and a hatchet found in a bedroom of the victim's house, a ladder found outside the bedroom window and a hatchet holster and belt belonged to defendant, since the evidence supports the conclusion that defendant communicated to<page_number>Page 549</page_number> the actual perpetrator his intent to aid him by driving the car and waiting for his return, by supplying the tools used to gain entry into the house, and by remaining close enough to the scene to render assistance if necessary.

Assignments 4.2; Contracts 24 — assignment of contract — assignee proper defendant in breach of contract action In an action for breach of a contract whereby defendants agreed to defend plaintiff on murder and assault charges, plaintiff agreed to convey all his interest in certain property, and defendants agreed to collect rents and profits for two years, then sell the property and give plaintiff the proceeds above $20,000, there, was no merit to plaintiff's contentions that defendants breached the contract by (1) failing to collect the rents and apply them to the indebtedness on the property and failing to account for collections and expenditures, and (2) disposing of the property without adequate consideration, since the parties' contract did not impose a duty of accounting upon defendants; there was no evidence that defendants did not properly apply the rents received on the property; the parties' contract was assignable, as it contained no prohibition against assignment and did not involve an element of personal skill, once criminal charges against plaintiff were dropped, which would have made it unassignable; under the assignment contract the assignee agreed to assume all liabilities and responsibilities under the original contract; and plaintiffs cause of action, if one existed at all, was against the assignee and not defendants.

1. Negligence 57.10 — customer burned on stove in store — negligence and contributory negligence as question for jury In an action to recover for burns sustained by plaintiffs decedent when she brushed her hand across the surface of a stove displayed in a store owned and operated by defendant, the evidence presented a question for the jury as to whether defendant failed to exercise ordinary care in that it failed to maintain its premises in a reasonably safe condition, whether defendant's failure to warn its patrons of a potential hidden peril or unsafe condition on its premises constituted a failure to exercise ordinary care for their safety, and whether plaintiff's decedent was contributorily negligent as a matter of law where the evidence tended to show that the stove was the newest product in defendant's line of ranges and was the "top of the line"; the stove was placed on display in the<page_number>Page 643</page_number> store at a place and in a manner designed to draw attention to it; the top of the stove looked like a counter top rather than having clearly demarcated "eyes" as stoves customarily have; defendant's employees had prepared a sign with the word "HOT" on it which was placed in the middle of the cooking surface of the stove when the stove had been demonstrated; at the time plaintiff's decedent was injured, the sign was located on the back guard of the stove where it was customarily placed after the stove cooled down; there were no locking devices on the stove's knobs to prevent them from being turned on, nor was there any tape or other protective device across the knobs when the stove was not being demonstrated; there were no notices or signs indicating that the stove should not be touched; and there were no ropes or cords surrounding the stove, nor were there any employees in the immediate area of the stove at the time of plaintiffs decedent's injury. 2. Negligence 58.1 — customer burned on stove in store — instructions — failure to apply law to facts In an action to recover damages for burns sustained by plaintiff's decedent when she brushed her hand across the surface of a stove displayed in a store owned and operated by defendant, the trial court failed to declare and explain the law arising on the evidence where the instructions to the jury on the issue of defendant's negligence consisted of a brief summary of the evidence, a statement of the issue, a statement of the burden of proof, and general definitions of negligence and proximate cause, but the trial judge failed to relate the principles of law set forth in his instructions to the evidence in this case in that he failed to specify the duties owed by defendant to plaintiffs decedent and the acts or omissions by defendant established by the evidence from which the jury could find a breach of those duties, and he failed to relate the contentions of negligence supported by the evidence.

1. Estates 2 — deed of trust conveying dominant estate and easement — servient owner's acquisition of equitable interest in dominant estate and easement — no merger An outstanding deed of trust, conveying a dominant estate and that estate's appurtenant easement over the servient estate, creates such an intermediate estate as will defeat application of the doctrine of merger when the legal owner of the servient estate acquires the equitable interest in the dominant estate and its appurtenant easement. 2. Easements 5.3 — intent of parties to recognize easement — easement by implication — jury issues — summary judgment improper In plaintiffs action to establish its right to a 60 foot roadway easement across defendant's adjoining tract of land, issues were raised by the evidence as to whether the true intent of the parties was to reserve the disputed easement to the original grantor at the time of conveyance of the second tract to defendants and as to whether an easement by implication was reserved to the original grantor when it conveyed the second tract to defendants, and the trial court erred in entering summary judgment for defendants where the evidence tended to show that, prior to execution of the deed from original grantor to defendants, the parties' agreement to sell and purchase certain properties included provisions that the tract would be conveyed clear of all liens and encumbrances except visible easements and that title to the property would be subject to certain matters referred to in a previously conducted title search; two of the matters in the title search referred to a 60 foot right of way for ingress and egress; plaintiff produced a number of affidavits of persons to the effect that Lake View Lane (apparently a road or street running over the disputed easement) was in use as a means of ingress and egress to apartment units located on the first tract at the time the second tract was conveyed to defendants; at the time of the conveyance of the second tract by the original owner to defendants, the disputed easement had been so long continued and so obvious and manifest as to show it was meant to be permanent; and the easement was necessary to the beneficial enjoyment of the land retained by the original owner at the time of the conveyance to defendants.

1. Criminal Law 91 — Speedy Trial Act — no probable cause — new charge — time of commencement of limitation period Where there was a finding of no probable cause on a charge of feloniously receiving stolen property, the period of time within which trial on a new charge of felonious possession of the same stolen property must commence under G.S. <cross_reference>15A-701</cross_reference>(a1)(3) began to run from the date of defendant's indictment on the new charge rather than from the date of his arrest on the original charge. 2. Receiving Stolen Goods 5.1 — felonious possession of stolen goods — purpose of resale — sufficient evidence The State's evidence in a prosecution for felonious possession of stolen property was sufficient for the jury to find that defendant possessed the stolen items "for a dishonest purpose of resale" where it tended to show that the stolen property was located by its rightful owners at a pawn shop operated by defendant; defendant was extensively involved with a theft ring and often directed the actual perpetrators of the thefts as to which houses they should break and enter; the perpetrators then brought the stolen goods to defendant's home where defendant purchased them for resale; and defendant, rather than the corporation which employed him at the pawn shop, possessed the stolen items. 3. Receiving Stolen Goods 7 — possession of stolen goods — theft by breaking and entering — felony without regard to value Defendant's possession of stolen goods knowing them to have been stolen by a breaking and entering constituted a felony without regard to the value of the stolen property. G.S. <cross_reference>14-72</cross_reference>(c). 4. Criminal Law 102.6 — jury argument — importance and implications of case Defendant was not prejudiced by the prosecutor's argument"that the case was important and had wide-ranging implications" since the comment was not abusive or inflammatory and did not suggest impermissible conclusions to the jury, and the court on its own motion sustained its objection to the comment and instructed the jury to disregard it. 5. Criminal Law 102.6 — jury argument — jury's use of "sixth sense" Defendant was not prejudiced by the prosecutor's jury argument that the jury should "use their sixth sense" to find the facts where the trial court instructed the jury to follow the court's instructions and not be guided by what the attorneys argued to them.

Contracts 34 — malicious interference with employment contract — no forecast of legal malice — summary judgment proper In an action against the individual defendant for malicious interference with plaintiff's contract with his employer, summary judgment was properly entered for defendant where the evidence at the hearing on the motion tended to show that plaintiff wrote a letter to his employer stating that some unnamed person in the Greensboro facility was committing flagrant violations of company policy; as a result of plaintiff's letter, the employer investigated activities of defendant, who was plaintiff's supervisor; most of the allegations were unsubstantiated and defendant was retained by the company; defendant was directed to stop letting plaintiff and other truck drivers leave early on their trips; defendant reported to his supervisors when plaintiff left early on a trip; plaintiff was discharged from his employment when he returned from the trip; the<page_number>Page 671</page_number> decision to discharge was made jointly by several of defendant's superiors; and plaintiff did not forecast evidence of legal malice which would rebut defendant's forecast of justification.

1. Constitutional Law 49 — waiver of counsel — no prejudice shown Defendant did not show prejudicial error where the record showed he voluntarily waived his right to counsel without being advised of his right to counsel if he was indigent and without any showing that he was in fact indigent. 2. Contempt of Court 6.3 — contacting witness in civil case — sufficiency of evidence of contempt Evidence that defendant had contacted a witness in a civil case and had encouraged her to disobey a subpoena and not to testify was sufficient to support the trial courts findings of fact, and the findings supported the courts conclusion that defendant was in contempt of court. G.S. <cross_reference>5A-11</cross_reference>(a)(3).