Upload 100 files

nc/11253274.json

@@ -0,0 +1 @@
+"{\"id\": \"11253274\", \"name\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\", \"name_abbreviation\": \"Citizens National Bank of Durham v. Burch\", \"decision_date\": \"1907-10-30\", \"docket_number\": \"\", \"first_page\": \"316\", \"last_page\": \"318\", \"citations\": \"145 N.C. 316\", \"volume\": \"145\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:36:54.377156+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\", \"head_matter\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\\n(Filed 30 October, 1907).\\nNegotiable Instruments \\u2014 Principal and Surety \\u2014 -Endorser without Knowledge.\\nA and B signed a negotiable note apparently as joint principals, when, in fact, the latter was surety for the former. Appellant signed the note by writing his name across the back, with the word \\u201csurety\\u201d underneath: Held, in the absence'of any evidence that appellant knew of the relation between the makers, he was surety for the two, and that surety B could not compel contribution.\\nCivil actioN, tried before Justice, J., and a jury, at March Term, 1901, of the Superior Court of Dueham County, and appealed by the defendant J. W. Smith.\\nOn 16 July, 1906, Joab Burch and L. R. Burch executed a note, of which the following is a copy:\\n$1,000.00. Dueham, N. C., July 16, 1906.\\nQue hundred and twenty days after date we promise to pay to the order of The Citizens National Bank of Durham, at Durham, N. 0., one thousand and 00-100 dollars. Negotiable and payable at The Citizens National Bank of Durham, at Durham, N. 0., for value received, etc.\\n' (Signed) Joab Buech,\\nL. E. Bueoh.\\nAcross the back of this note is written the words \\u201cJ. W. Smith, surety.\\u201d\\nThe Court submitted these issues:\\n1. Are the defendants, Mollie F. Burch, administratrix of Joab Burch, L. E. Burch and J. W. Smith, indebted to the plaintiff in the sum of $1,000 and interest, as alleged in the complaint ? Answer: Yes.\\n2. Is the estate of Joab Burch insolvent? Answer: Yes.\\n3. Is L. E. Burch a surety on the note sued upon_? Answer: Yes.\\n4. Did defendant J. W. Smith know, at the time he endorsed the note, that L. E. Burch was surety? Answer: No.\\nFrom the judgment rendered, declaring him a cosurety with L. E. Burch, the defendant Smith appealed.\\nWinston & Bryant for plaintiff.\\nGiles & Sylces for defendant.\", \"word_count\": \"751\", \"char_count\": \"4174\", \"text\": \"BeowN, J.\\nAccording to the facts as found by the jury at the time the note was presented to appellant for endorsement as surety, it contained the names of Joab Burch and L. E. Burch as principals, and Smith endorsed the same on its back as surety for them as principals, having no knowledge that Joab Burch and L. E. Burch were otherwise than principals, or that the defendant L. E. Burch bore any relation to the note other than as a coprincipal with Joab Burch. The form of the note justified Smith iu supposing that the two Burchs were borrowing the money jointly, and were jointly liable for it as coprincipals, and that he was contracting as surety for the two, and not for the one. One who signs in form and appearance as a principal and maker of a note is bound as such to all persons who subsequently deal with the paper without knowledge of his true relationship to it. It is entirely competent for one person to become surety for other sureties, or to limit the extent of his liability with respect to other sureties. The test of liability is the intent of the parties as indicated by their agreement. There is no finding as to any agreement here which warranted the court in holding Smith other than as he is bound by the face of the instrument he signed, and, according to that, he is bound as surety for the two apparent principals.\\nA person dealing with a negotiable instrument has a right to act upon it as it appears upon the face of it. Daniels Negotiable Instruments, Vol. I, 311. This is also the doctrine laid down in Cragin v. Lovell, 109 U. S., 194. In order to constitute the appellant Smith a cosurety with the defendant L. R. Burch, there must have been a mutual understanding between the parties to that effect. Smith v. Smith, 16 N. C., 173; Cowan v. Baird, 77 N. C., 201; Bulkeley v. House, 62 Conn., 459; Thompson v. Sanders, 20 N. C., 541; Dawson v. Petway, 20 N. C., 531; Sayles v. Sims, 73 N. Y., 552; Sherman v. Black, 49 Vt, 198; 1 Brandt on Suretyship (2d Ed.), sec. 260. According to these authorities, it is plain that his Honor erred in holding the appellant as a co-surety with L. R. Burch.\\nThe cause is remanded, with directions to modify the judgment rendered in accordance with this opinion. \\u2022\\nThe costs of this Court will be taxed against L. R. Burch, the appellee.\\nModified.\"}"

nc/11253310.json

@@ -0,0 +1 @@
+"{\"id\": \"11253310\", \"name\": \"GODWIN et al. v. MURCHISON NATIONAL BANK et al.\", \"name_abbreviation\": \"Godwin v. Murchison National Bank\", \"decision_date\": \"1907-10-30\", \"docket_number\": \"\", \"first_page\": \"320\", \"last_page\": \"331\", \"citations\": \"145 N.C. 320\", \"volume\": \"145\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:36:54.377156+00:00\", \"provenance\": \"CAP\", \"judges\": \"EeowN, <L, did not sit.\", \"parties\": \"GODWIN et al. v. MURCHISON NATIONAL BANK et al.\", \"head_matter\": \"GODWIN et al. v. MURCHISON NATIONAL BANK et al.\\n(Filed 30 October, 1907).\\n1. Bankruptcy \\u2014 Title of Trustee \\u2014 Claim against Bankrupt.\\nA trustee in bankruptcy is, in general, vested with no better title to tbe property than the bankrupt had; so that, in the absence of some express provision of the Bankruptcy Act, a claim against certain of the bankrupt\\u2019s assets, valid as against him, will be upheld against the trustee, unless in contravention of public policy or some established legal principle.\\n2. Same' \\u2014 -Assignments by Bankrupt \\u2014 Validity\\u2014What Law Governs.\\nUnless the Bankruptcy Act otherwise provides, the validity of, an assignment of a bankrupt\\u2019s property must be determined according to the principles of local law.\\n3. Assignment \\u2014 Validity\\u2014Possession of Res.\\nWhere a person having a contract by which he was to receive bonds in payment for real estate contracted to assign the bonds to a bank in consideration for present loan, it was no objection to such contract to assign that at the time it was made he had not possession or control of the bonds.\\n4. Bankruptcy \\u2014 Equitable Assignment \\u2014 Executed Contract.\\nA debtor, having sold certain real estate in exchange for bonds which he was to receive on the purchaser\\u2019s acceptance of the title, more than four months before he became a bankrupt, agreed verbally to transfer the bonds to defendant bank if the bank would then loan him $10,000, which was done. The bonds not haying been delivered promptly, a written contract was made within the four-months period, assigning to the bank all the bankrupt\\u2019s right to the -price of the land, and shortly after this the bonds were actually delivered to and assigned in writing to the bank: Held, that the words \\u201cagreed to transfer,\\u201d in the oral contract, imported an agreement to \\u201cdeliver,\\u201d so that that agreement constituted an equitable assignment of the bonds, to be delivered on their receipt by the bankrupt.\\n5. Words and Phrases \\u2014 \\u201cTransfer.\\u201d\\nUnder the Bankruptcy Act, 1 July, 1898, ch. 541, p. 1, 30 Stat., 544 (U. S. Comp. St. 1901, 3418), providing that the term \\u201ctransfer\\u201d shall include a sale and every other, mode of disposing of or parting with property, or the possession thereof, as a payment, pledge, mortgage, gift or security, an agreement to \\u201ctransfer\\u201d property may be construed as an agreement to \\u201cdeliver.\\u201d\\n6. Same \\u2014 Assignment\\u2014Validity.\\nA bankrupt, more than four months before bankruptcy, contracted to deliver certain bonds to defendant bank, which he was to receive under a land contract in consideration of the bank\\u2019s agreement to make a present loan to him. The bankrupt, within the four-months period, assigned in writing the proceeds of the real estate, and later, on receiving the bonds, assigned and delivered them to the bank: Held, that on such delivery the bank\\u2019s title vested as of the date of the original equitable assignment, and was, therefore, valid under the rule that a contract, to create a positive lien, attaches in equity as soon as the assignor acquires title, both as against him and all persons claiming under him, either voluntary or with notice or in bankruptcy.\\n7. Same \\u2014 Bona Fide Purchaser \\u2014 Notice\\u2014Registration.\\nWhere a bankrupt made a present equitable assignment, for a cash consideration, of certain bonds which he was to receive in payment for land, the bonds to be delivered or transferred to defendant when they came into the bankrupt\\u2019s possession, .and to be then appropriated to the bankrupt\\u2019s indebtedness as far as they would pay the same, the sale of the land having been completed according to the contract', the bank\\u2019s right to the bonds as the proceeds of the sale was not affected by the registration laws concerning sales of realty.\\nCivil actioN, tried before Jones, J., and a jury, at February Term, 1907, of the Superior Court of HaRNett County.\\nTbe action was brought by the trustees in the matter of E. E. Young, bankrupt, to recover the interest of the bankrupt\\u2019s estate in $4,500 of Norfolk city bonds, said interest amounting to $3,150, as shown by the verdict, and under claim and allegation on the part of the trustees that the said bonds were transferred to defendant bank under circumstances which made such transfer a voidable preference under the Bankruptcy Act, by reason of same having been made within four months prior to the filing of petition in bankruptcy, etc. Defendant bank, admitting that a written assignment of the bonds and actual delivery of same had been made within the four months, as alleged, claimed that such action was not a voidable preference, by reason of the fact that same was in pursuance of a valid and binding agreement entered into prior to the four months, and which gave to defendant an unimpeachable title to the property. It was shown that proceedings of involuntary bankruptcy (In re F. F. Young), followed by adjudication, were instituted on 4 June, 1904; that the written assignment was made on 9 February, 1904, delivery of bonds being made shortly thereafter, and within the four months, as stated, and the alleged agreement was entered into on 9 December, 1903, prior to four months. At that tim'e the bonds in question had not been obtained or received by the bankrupt, but were to be turned over to him in payment of some real estate which the bankrupt had theretofore sold to Charles W. Priddy (Incorporated), of Norfolk, Ya.\\nOn the trial, issues were submitted, and responded to by the jury, and judgment had thereon, as follows:\\n\\u201c1. In what'amount, if any, was E. E. Young indebted to defendant bank, 9 February, 1904, by reason of endorsement or otherwise? Answer: $34,000.\\n\\u201c2. Did E. E. Young, within the period of four months immediately preceding 4 June, 1904, transfer, by writing, to the defendant bank tbe $4,500 Norfolk city bonds, and if so, what was the cash value of same ? Answer: Yes; $4,400.\\n\\u201c3. Was the said E. E. Young insolvent on 9 February, 1904, and did he so continue up to and including 4 June, 1904? Answer: Yes.\\n\\u201c4. Did the defendant or its agents, at time of the transfer of the $4,500 Norfolk city bonds, as alleged in the complaint, have reasonable cause to believe that such transfer was intended as a preference to the defendant bank by said E. F. Young? Answer: Yes.\\n\\u201c5. Did the defendant E. F. Young, in December, 1903, agree verbally with the defendant to transfer to said bank the Norfolk city bonds of $4,500 if said defendant bank would loan the said E. E. Young for Merchants and Farmers Bank $10,000 and the South Dunn Manufacturing Company $10,000, and did the defendant bank make said loans as agreed ? Answer: Yes.\\n\\u201c6. Did E. F. Young, in furtherance of the agreement of December, 1903, -execute the paper-writing of 9 February, 1904? Answer: Yes.\\n\\u201c7. Did the transfer of the $4,500 Norfolk city bonds to defendant bank enable the defendant bank to obtain a greater percentage of its debt .against E. E. Young than other creditors in the same class as the bank obtain ? Answer: Yes.\\n\\u201c8. What interest did E. F. Young have in the $4,400 received by the defendant bank from a sale of the Norfolk city bonds? Answer: $3,150, with interest from 1 March, 1904, at 6 per cent.\\n\\u201cIt having been admitted of record that petition in bankruptcy was duly filed against said E. F. Young on the 4th day of June, 1904, and that subsequently he was duly adjudged a bankrupt, and that the plaintiffs are the duly chosen, qualified and now acting trustees of said Young in bankruptcy, and that the defendant is a duly chartered, organized and existing banking institution under the laws of the United States, now, upon motion of tbe counsel for plaintiffs, it is considered, ordered and adjudged tbat tbe plaintiffs in this action, R. L. Godwin, J. D. Barnes and J. M. Hodges, trustees, do recover of tbe defendant in tbis action, Tbe Murchison National Bank, tbe sum of $3,150 and interest on tbat sum from 1 March, 1904, and tbe cost of tbis action, to be taxed by tbe Clerk of tbis Court. E. B. J ONES,\\n\\u201cJudge Presiding\\nThereupon defendant bank excepted and appealed.\\nGodwin & Davis, D. Ii. McLecm and B. L. Godwin for plaintiffs.\\nE. K. Bryan and Shepherd & Shepherd for defendants.\", \"word_count\": \"3867\", \"char_count\": \"22717\", \"text\": \"IioKE, J.,\\nafter stating tbe case: Tbe verdict \\\"of tbe jury on tbe fifth and sixth issues was as follows:\\n\\\"5. Hid tbe defendant E. E. Young, in December, 1903, agree verbally with tbe defendant bank to transfer to said bank tbe Norfolk city bonds of $4,500 if said defendant bank would loan tbe said E. E. Young for Merchants and Farmers Bank $10,000 and tbe South Dunn Manufacturing Company $10,000, and did tbe defendant bank make said loans as agreed ? Answer: Yes.\\n\\\"6. Did E. F. Young, in furtherance of tbe agreement of December, 1903, execute tbe paper-writing of 9 February, 1904? Answer: Yes.\\\"\\nAnd tbe paper-writing referred to and established by tbe sixth issue, and tbe response thereto, contains tbe following recital as to tbe agreement between defendant bank and E.. E. Young, of date December, 1903, and more than four months prior to tbe institution of tbe proceedings in bankruptcy: \\\"Witnesseth, tbat, whereas tbe Merchants and Farmers Bank, of Dunn, N. C., is indebted to tbe Murchison National Bank, of Wilmington, N. C., in a large sum of money which was loaned to tbe Merchants and Farmers Bank and tbe South Dunn Manufacturing Company, at tbe request of tbe party of tbe first part; and, whereas, at tbe time of said loans tbe party of tbe first part agreed with tbe said Murchison National Bank that if it would make said loans that tbe party of tbe first part bad sold three brick stores in tbe town of Dunn, N. C., to one Charles W. 'Priddy (Incorporated), of Norfolk, Va., and that tbe deed of said'stores was to be made when the abstracts of title for said stores bad been approved by said Priddy (Incorporated), and the purchase money was paid, and it was agreed by the said parties hereto that, if tbe said Murchison Bank would make said loans, tbe party of tbe first part would pay over the money derived from said sale, to-wit, tbe sum of $4,500, to tbe party of tbe second part, on account of tbe indebtedness then created to tbe said party of tbe second part; and, whereas, there has been more delay in consummating said sale than was anticipated, and tbe said party of tbe first part is desirous of carrying out said agreement: Now, therefore, in consideration of tbe premises, tbe said party of tbe first part doth hereby transfer and assign, sell and convey to tbe said party of tbe second part all bis right, title, interest .and estate in tbe three stores bargained to Priddy Company (Limited), and tbe purchase price thereof, when same is received on tbe consummation of tbe sale.\\\" There is no allegation of fraud in tbe transaction between these parties in December, nor that tbe same was bad with any intent to evade tbe general policy or express provisions of tbe Bankruptcy Act. This being true, on tbe facts established by these two findings, tbe Court is of opinion that, for a present cash consideration then passing, a claim was created in favor of defendant to these bonds, tbe purchase price of tbe property referred to in tbe agreement, which .attached as soon as they passed in consideration for tbe sale, good against tbe bankrupt himself, and enforcible in equity against tbe plaintiffs bolding tbe estate as trustees under tbe bankruptcy proceedings, and there is nothing in tbe verdict on tbe other issues which destroys or impairs tbe force .and effect of this position \\u2014 tbe word \\\"transfer,\\\" in the fourth, issue, evidently having the same significance as in the fifth.\\nIt is accepted doctrine that, as a general proposition, the trustee in bankruptcy is vested with no better right or title to the property than the bankrupt had when the trustee's title accrued. And, unless in contravention of some established principle of law or public policy, or some express provision of the Bankruptcy Act, a claim valid against the bankrupt will be upheld against his trustee. Manufacturing Co. v. Cassell, 201 U. S., 334-352; Hewitt v. Berlin Machine Works, 194 U. S., 296; Smith v. Godwin, a decision at present term; Loveland on Bankruptcy (2d Ed.), 368. As said in this last citation (Loveland, supra) : \\\"The trustee takes the title of the bankrupt subject to all equities, liens or encumbrances, whether created by operation of law or by the act of the bankrupt, which existed against the property of the bankrupt, except in cases of levies, judgments, attachments or other judicial liens created against the property within four months preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is declared to be fraudulent.and void.\\\" It is also established that, unless the Bankruptcy Act otherwise provides, the validity of an assignment or claim is to' be determined in accordance with the principles of local law. Thompson v. Fairbanks, 196 U. S., 516; Humphrey v. Tatman, 198 U. S., 91.\\nAnd it will be observed that, under our law, no valid objection can be urged against the defendants' claim by reason of the fact that the bonds, the subject-matter of the contract, and which represented the purchase price of the property, were not in the possession or control of the bankrupt when the agreement of December was entered into. On the contrary, unless inhibited by some principle of public policy, our decisions expressly uphold and enforce such contracts, both as to tangible property and choses in action, to vested as well as contingent interests. Brown v. Dail, 117 N. C., 41; Williams v. Chapman, 118 N. C., 943; Chemical Co. v. McNair, 139 N. C., 326; Nelson v. Edwards, 40 Barbour, 283.\\nApplying these principles, we are of tbe opinion that tbe force and effect of tbe verdict is to establish, for a cash consideration, to-wit, tbe loan, an equitable assignment of these bonds, the purchase price of the property in December, 1903, the date when the contract was made, to be consummated by delivery of the bonds whenever and as soon as they came into the control of E. E. Young pursuant to the sale which was then being conducted. \\\"While the language of the issue, \\\"verbally agreed to transfer,\\\" might be construed as constituting an executory agreement, when taken in connection with the pleadings .and evidence, and especially in reference to the more explicit ascertainment of the terms of the December trade, made a part of the verdict on the sixth issue, we think that a present equitable assignment was thereby created, and the words \\\"agree to transfer\\\" clearly referred to an .agreement to \\\"deliver\\\" the bonds whenever the same came to hand. This meaning of the term \\\"transfer\\\" is recognized in the definition of the word given by the Bankruptcy Act, United States Statutes at Large, Vol. XXX, ch. 541, sec. 1, has been applied in various decisions rendered in administration of the law (Words and Phrases Judicially Defined, Vol. VIII, 7066), and is so clearly the significance contemplated by the parties in the transaction, as established by the verdict, that we have no hesitation in holding, as stated, that the contract amounted to a present equitable assignment in December, more than four months prior to the institution of the bankruptcy proceedings, and the right of defendants to the bankrupt's interest in these bonds is supported by well-established principles of equity and by the great weight of authority. Walker v. Brown. 165 U. S., 655; Hauseet v. Harrison, 105 U. S., 401; Union Trust Co. v. Bulkely, 150 Fed., 510; In re J. F. Grandy & Son, 146 Fed., 318; Wilder v. Watts, 138 Fed., 436; Sabin v. Camp, 98 Fed., 914; Smith v. Godwin, trustee, supra; Brem v. Covington, 104 N. C., 589; Lawson v. Pringle, 98 N. C., 450. See, also, a very full and learned note by the editor to case of Moody v. Wright, reported in 46 Amer. Decisions, 106-117 (tbe case being from 13 Met., 17). In this last reference, on page 717, it is said: \\\"Tbe grounds of these decisions are, that the mortgage, though inoperative as a conveyance, is operative as an executory contract, which attaches to the property when acquired, and, in equity, transfers the beneficial interest to the mortgagee, the mortgagor being held as trustee for him, in accordance with the familiar maxim that equity considers that done which ought to be done: per Durfee, G. Jin Williams v. Briggs, 11 R. I., 478. The ease of Mitchell v. Winslow, 2 Story, 630, is a leading American case upon this subject. A mortgage was given in that case by two manufacturers of cutlery upon all the tools and machinery in their manufactory and upon all the tools and machinery which they might purchase within four years, and all stock that they might manufacture during the same time. It was held to create a good, equitable lien, and was protected as such under the Bankruptcy Act. At page 644, Btory, J., said: Tt seems to me a clear result of all the authorities that, wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon personal property, whether then owned by the assignor or contractor or not, or, if personal property, whether it is then esse or not, it attaches in equity as .a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto- against the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy.' \\\" And in Walker v. Brown the general doctrine is stated thus, citing with approval Pomeroy's Equity, Yol. Ill, 1235: \\\"Every express execu-tory agreement in writing, whereby the contracting party sufficiently indicates an intention, to make some particular prop erty, real or personal, or fund, therein described or identified, a security for a debt or othqr obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforcible against the property in the hands, not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers,, or encumbrances with notice.\\\"\\nBy the contract of December, 1903, when these bonds came into his possession and control, E. E. Young had no right to deal with them, except to deliver them to the defendant bank, as required by its terms. On the equitable principle which considers that done which the parties are under a binding-agreement to do, said Young had no right to make any other disposition of this specific property. This is the principal test by which an equitable assignment may be distinguished from an executory agreement to assign, and a case is presented where the claimant has a right t\\u00f3 the specific property against the bankrupt himself, and where, in the absence of some interfering State regulation or of some adverse provision of the Bankruptcy Law itself, the defendants' right is enforcible against the trustee. It is this creation of a present interest in the bonds themselves, amounting to an equitable assignment thereof, which differentiates the present case from many of those cited and relied upon by the plaintiff trustees. Some of these were cases where, from the very general terms of the agreement, no right in .any specific property was acquired at all. In others, from the nature of the interest, or by reason of some interfering principle of positive law or public policy, no right in any specific property was created, except within the period when it'was avoided by express provisions of the Bankruptcy Law itself. Thus, in Sheridan's case, 98 Fed., 406, there was an executory .agreement to pledge property made prior to the four months, and the property was .actually delivered within such period. By the very nature of a pledge, no interest passes until delivery, and tbis was on that ground avoided as a prohibited preference.\\nIn several other decisions an executory agreement to give a chattel mortgage made prior to the four months was not allowed to validate the mortgages executed or registered within the prohibited period. In re Great Western Manufacturing Co., 152 Fed., 123; Loeser v. Bank and Trust Co., 148 Fed., 975; In re Dismal Swamp Co., 135 Fed., 415. These and other like cases, .as we apprehend them, were decided either because of some State law which avoided such mortgages against creditors, except from registration, or by reason of the amendment to the Bankruptcy Act made in February, 1903. Yol. XXXII, Statutes at Large (Part I), ch.' 487, to the effect that, \\\"Where a preference consists in a transfer, such period of four months shall not expire until four months after the recording and registering of the transfer, if by law such recording and registering is required.-\\\" And this requirement of registration distinguishes a decision of our own Court. Lance v. Tainter, 137 N. C., 249.\\nWithout going into .a careful analysis of these decisions, which could serve no good purpose and would unduly lengthen our opinion, we deem it sufficient to say that they do not apply here. This case presents no executory agreement to make a pledge of personal property as security for a past indebtedness, nor is it an executory agreement to give a chattel mortgage or other lien which requires registration, either by State law or the Bankruptcy Act and its amendments. But, as we have endeavored to show, it is a present equitable assignment for a cash consideration of the bonds, to be delivered or \\\"transferred\\\" to the defendant bank whenever they come into possession of the bankrupt,' and to be then appropriated to the indebtedness as far as they would pay the same.\\nSince the opinion was prepared, it has been earnestly contended that, inasmuch as the contract under which the defendants claim the bonds applies also in terms to realty, the case of Lance v. Tainter, supra, is direct authority against tbe defendants' claim. This position might avail the plaintiffs if the sale of the land had not been carried out and the defendants were seeking to establish their claim against the land itself. The sale, however, was completed according to the contract with the Norfolk company, and this litigation is over the proceeds. Our registration laws concerning realty have, therefore, no application to the cause, on the principle established in the decisions of Bourne v. Sherrill, 143 N. C., 381, and the authorities therein cited.\\nWe are of opinion, therefore, and so hold, that there was error in the judgment as rendered, and that, as a conclusion of law on the verdict as it now stands, there should be judgment entered that defendants go without day. Let this be certified and judgment entered accordingly.\\nEeversed.\\nEeowN, <L, did not sit.\"}"

nc/11269671.json

@@ -0,0 +1 @@
+"{\"id\": \"11269671\", \"name\": \"W. R. HOLLOWELL v. E. B. BORDEN et al., Trustees of the Goldsboro Graded Schools\", \"name_abbreviation\": \"Hollowell v. Borden\", \"decision_date\": \"1908-05-29\", \"docket_number\": \"\", \"first_page\": \"255\", \"last_page\": \"258\", \"citations\": \"148 N.C. 255\", \"volume\": \"148\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:54:23.466069+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. R. HOLLOWELL v. E. B. BORDEN et al., Trustees of the Goldsboro Graded Schools.\", \"head_matter\": \"W. R. HOLLOWELL v. E. B. BORDEN et al., Trustees of the Goldsboro Graded Schools.\\n(Filed 29 May, 1908.)\\n1. Municipal Corporations \\u2014 School Districts \\u2014 Constitutional Law.\\nA legally qualified board of trustees of the graded schools of a town is a municipal corporation within the meaning and purport Of Article VII, section 7, of the State Constitution.\\n2. Same \\u2014 Debts Contracted \\u2014 Public Schools \\u2014 Special Purpose \\u2014 Vote of the People.\\nThe expense of a public-school system of a town is not a necessary municipal expense, and a bond issue to pay a debt contracted for that purpose, to be constitutional, must be submitted to a vote of the qualified voters of the township. Laws 1905, ch. 533, sec. 14. (Collie v. Commissioners, 145 N. 0., 170, cited and distinguished. )\\nActioN heard before W. R. Allen, J., at chambers, from WayNe.\\nThis action is brought by the plaintiff on behalf of himself and other taxpayers of Goldsboro Township for the purpose of restraining tbe defendants from issuing bonds. Upon tbe bearing tbe injunction was refused, and plaintiff appealed.\\nTbe facts are stated in tbe opinion of tbe Court.\\nF. A. Daniels for plaintiff.\\nA. G. Davis for defendants.\", \"word_count\": \"1133\", \"char_count\": \"6666\", \"text\": \"BrowN, J.\\nAt tbe special session of tbe General Assembly of 1908 an act was passed (chapter 31, Private Acts) empowering \\\"tbe trustees of tbe Goldsboro -Graded Schools to borrow tbe sum of $30,000 to pay for a site and for building a school building for tbe Wayne County High School, to be run in connection with the Goldsboro Graded Schools, and to issue therefor bonds of tbe denomination of $100 each,\\\" etc.\\nIn pursuance of this act tbe defendants have undertaken to issue $20,000 in bonds of tbe denomination of $1,000 each.\\nTbe objection made to tbe validity of the act and of tbe bonds issued in pursuance thereof is that no election is provided for, and that none has been 'held, submitting this b md issue to tbe qualified voters of Goldsboro Township.\\nWe think tbe objection is well taken and that bis Honor should have granted tbe injunction.\\nIt is properly admitted in tbe brief of tbe learned counsel for defendants, as well as that, of tbe plaintiff, that tbe Board of Trustees of tbe Goldsboro Graded Schools of Goldsboro Township is a municipal corporation within the meaning and purport of Article VII of tbe Constitution of this State.\\nWe have held that, \\\"under a statute authorizing municipal corporations to issue bonds, a school district is properly called a municipal corporation,-according to tbe modern use of tbe term, and as such may obligate itself by bonds issued under such a statute.\\\" Smith v. School Trustees, 141 N. C., 151.\\nThe same ease classifies school districts as being among those municipal corporations that come within tbe scope of section Y, Article VII, prohibiting tbe contracting of debts without submitting tbe question to the qualified voters.\\nIt is contended that no special tax is necessary to pay these bonds or the interest on them. That is immaterial. The contracting of the debt, as well as the levying of the tax, is prohibited unless authorized by the votes of the qualified electors.\\nIt is also contended that the bonds are to be used in building a school building, a necessary municipal expense.\\nIt has never been held anywhere, so far as we know, that the expense of the public-school system of this or any other. State is a necessary municipal expense.\\nOur common-school system is created in the Constitution and subject to its provisions; the cafe and control of it are left to the wisdom of the General Assembly. That body has empowered numerous municipalities to issue bonds and to tax themselves by special taxation so as to enlarge the common-school facilities provided for them by the general law of the State. But .all such measures are required to be submitted to the qualified voters for approval. The policy of the State in reference to the establishment of high schools is set forth in section 14, chapter 533, Laws 1905, which expressly provides that where the public Rinds are sufficient for the establishment of a high school the same may be established without levying a special tax, but that where the funds are insufficient for that purpose an election shall be held, and if a majority of the qualified voters vote in favor of said tax, then the same shall be imposed. This act is general in its nature and relates to the public schools of the State. The policy of the State with reference to the establishment of high schools is further seen from the provisions of chapter 820, Public Laws 1907, in which provision is made for State aid in the establishment of the same. There is nothing in the recent decision of the Court in Collie v. Commissioners, 145 N. C., 170, which sustains the idea that our public-school system is a necessary municipal expense. On the contrary, the opinion -regards the public-school system as a State insti tution, founded in tbe Constitution and governed and con- . trolled by tbe General Assembly. In order to reconcile clauses of tbe Constitution apparently conflicting, we beld in that case that tbe provision for four months school terms was mandatory, and that in order to give effect to'it the General Assembly could compel tbe counties of tbe State, when necessary, to disregard tbe limitation upon taxation contained in Article V, section 1.\\n. Tbe question presented here was decided adversely to tbe contentions of tbe defendant in Smith v. Trustees, supra, where it is beld that tbe establishment of a school district with power to issue bands for school purposes must be sanctioned by a vote of the qualified voters of tbe prescribed territory. 141 N. C., 152. And in tbe recent case of Wharton v. Greensboro, 146 N. C., 356, one of tbe.questions before the Court related to tbe validity of $80,000 in bonds issued for tbe special purpose of \\\"equipping, altering and furnishing a school building or buildings for tbe city.\\\" The bonds issued bad been ratified at tbe polls by a majority of the qualified voters, but it was contended that they were not to be used for necessary municipal expenses, but for a special purpose, and came .within tbe limitation prescribed for such municipal indebtedness by section.2911 of tbe Revisal.\\nThis Court unanimously beld that tbe issuing of the $30,000 of schoolhouse bonds was \\\"admittedly not a necessary expense,\\\" but constituted an indebtedness contracted for a special purpose. In tbe view we take of tbe case, it is unnecessary to consider tbe other objections to the validity of tbe bonds.\\nThe judgment of the court below is reversed and the caxxse is remanded, with directions to issue tbe injunction as prayed for.\\nReversed.\"}"

nc/11270308.json

@@ -0,0 +1 @@
+"{\"id\": \"11270308\", \"name\": \"J. B. BACHELOR v. CHARLES NORRIS\", \"name_abbreviation\": \"Bachelor v. Norris\", \"decision_date\": \"1914-09-16\", \"docket_number\": \"\", \"first_page\": \"506\", \"last_page\": \"509\", \"citations\": \"166 N.C. 506\", \"volume\": \"166\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:00:01.568380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. B. BACHELOR v. CHARLES NORRIS.\", \"head_matter\": \"J. B. BACHELOR v. CHARLES NORRIS.\\n(Filed 16 September, 1914.)\\n1. Deeds and Conveyances \\u2014 Married Women \\u2014 Abandonment\\u2014Join-der of Husband \\u2014 Constitutional Law.\\nRevisal, sec. 2117, authorizing a married woman to execute a valid conveyance of her real property, without the joinder of her husband, when she has been abandoned by him, is constitutional.\\n2. Deeds and Conveyances \\u2014 Married Women \\u2014 Abandonment\\u2014Trials \\u2014Evidence.\\nEvidence of abandonment of the wife by the husband is suffi-' cient for her to execute a valid conveyance of her lands without his joinder, which tends to show that they had separated; he had gone to another State without leaving her anything for her support; that they' had had numerous quarrels, the cause of which he had attributed to others living in the same house with them, where he had refused to remain.\\n3. Deeds and Conveyances \\u2014 Words and Phrases \\u2014 \\u201cBinding Lands\\u201d \\u2014Description\\u2014Vagueness\\u2014Parol Evidence \\u2014 Trials.\\nThe term \\u201cbinding lands\\u201d used in the description of a deed is equivalent to the call of another tract; and \\u2022 the following description in a deed is held sufficient to admit of parol evidence of identification, after reciting the county, etc.: \\u201cadjoining the lands of B. B. J., and others, bounded as follows, viz.:. Beginning at an oak stump at the road gate, thence westwardly, binding the lands of B. B. J., to a holly tree; thence same course across the road; thence eastwardly, binding the swamp to a cypress tree; thence-same course, binding the swamp to the first station, containing 4 acres, more or less.\\u201d And where a witness, after identifying the lands, testifies on cross-examination that the oak stump, the beginning point named, was not upon the line referred to, and would not be reached again by following, the swamp, this is only material upon the question of identification, and does not render the deed void for uncertainty of de\\u2022scription.\\nAppeal by plaintiff from Ferguson, J., at December Special Term, 1913, of CamdeN.\\nThis is an action to recover damages for trespass on land and the title to the land is in isdue.\\nThe defendant claims under a deed executed by the feme plaintiff, Georgiana Bachelor, on 30 October, 1902, in which the land is described as follows: \\u201cA certain tract or parcel of land in Camden County, State of North Carolina, adjoining the lands of B. B. James and others, bounded as follows, viz.: Beginning at an oak stump at the road gate; thence westwardly, binding the lands of B. B. James to a holly tree; thence same course across the road; thence eastwardly binding the swamp to a cypress tree; thence same course, still binding the swamp to the first station, containing 4 acres, more or less.\\u201d\\nThe plaintiff admits the execution of this deed, but contends that it is void:\\n(1) Because Georgiana Bachelor was a married woman at the time of its execution, and her husband was not a party to the deed.\\n(2) Because of the vagueness and uncertainty in the description of' the land.\\nTbe defendant admits that the said Georgiana Bachelor was a married woman at the time of the execution of the deed and that her husband did not join in the execution, but contends that the deed is valid because at the time it was executed the husband of the said Georgiana Bachelor had abandoned her, and further, that the description of the land in the deed is sufficient.\\nThere are several exceptions in the record, but all of them that are material were entered to preserve the contentions of the parties as above stated.\\nThere was a verdict in favor of the defendant,, the first issue submitted to the jury and the finding thereon being as follows: \\u201c1. Was the said Georgiana Bachelor abandoned by her husband, J. B. Bachelor, at the date of the execution of the deed from G. W. Barnham and Georgiana Bachelor to Florence B. Ashley? Answer: Yes.\\u201d\\nThere was a judgment for the defendant, and the plaintiff excepted and appealed.\\nWorth and Pugh for plaintiff.\\nW. I. Halstead and Ward & Thompson for defendant.\", \"word_count\": \"1113\", \"char_count\": \"6309\", \"text\": \"AlleN, J.\\nThe constitutionality of the statute (Rev., sec. 2111) authorizing a married woman to execute a valid conveyance of real property without the joinder of her husband, when she has been abandoned by her husband, has been sustained in several decisions of this Court. (Hall v. Walker, 118 N. C., 377; Brown v. Brown, 121 N. C., 8; Finger v. Hunter, 130 N. C., 531), and as the fact of abandonment has been found by the jury in favor of the defendant, the only question left open to the plaintiff on this branch of the case is whether there is evidence to support the verdict.\\nThere was evidence that the husband was in Yirginia when the deed was executed; that the wife stated that he had nothing to do with the deed, and had left her and gone to Yirginia; that both husband and wife stated they had separated; that the husband made no provision for his wife when he left for Yirginia and she had to buy supplies on her own credit; that the husband said the Ashleys had moved to his house and he would -not stay there with them, as it would cause trouble for all; that the husband was frequently intoxicated, and he said his wife had numerous quarrels, and this has as much probative force as that held sufficient on an issue of abandonment in Vandiford v. Humphrey, 139 N. C., 65.\\nVe are also of opinion the deed is not void for vagueness in the description, which is more definite and certain than many others that have been upheld. Farmer v. Batts, 83 N. C., 387; Perry v. Scott, 109 N. C., 374; Johnson v. Manufacturing Co., 165 N. C., 106.\\nThe term, \\\"binding the lands,\\\" it is true, is equivalent to the call for another tract (Allen v. Sallinger, 108 N. C., 161), and one of the witnesses for the defendant, after identifying the Land on his examination in chief, said on cross-examination that the oak stump was 100 yards from the James land, and that if you continued to follow the swamp you would not get back to the beginning; but this does not render the deed void, and is only material on the location of the land in the deed.\\nAs was said in Coltrain v. Lumber Co., 165 N. C., 44, \\\"The contention that the failure of the 50-acre tract- to bound on the other lands, as described in the deed, is a fatal defect, cannot' be sustained.\\\"\\nWe find no error in the trial, and the judgment is affirmed.\\nNo error.\"}"

nc/11271036.json

@@ -0,0 +1 @@
+"{\"id\": \"11271036\", \"name\": \"L. B. HARRIS v. DUDLEY LUMBER COMPANY\", \"name_abbreviation\": \"Harris v. Dudley Lumber Co.\", \"decision_date\": \"1908-05-20\", \"docket_number\": \"\", \"first_page\": \"631\", \"last_page\": \"633\", \"citations\": \"147 N.C. 631\", \"volume\": \"147\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:30:37.322547+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"L. B. HARRIS v. DUDLEY LUMBER COMPANY.\", \"head_matter\": \"L. B. HARRIS v. DUDLEY LUMBER COMPANY.\\n(Filed 20 May, 1908).\\n1. De\\u00e9ds and Conveyances \\u2014 Devises \\u2014 Innocent Purchasers for Value \\u2014 Suits\\u2014Parties\\u2014Strangers.\\nWhen under a registered deed the grantee conveyed the land to an innocent purchaser for value, the defendant in the present suit, and thereafter suit was brought by an adverse claimant under a will, who was therein decreed to be the owner, the decree, unappealed from, is conclusive as between the parties, but has no effect upon the present defendant, who was not a party thereto and who obtained a prior title.\\n2. Deeds and Conveyances \\u2014 Registration\\u2014Notice\\u2014Wills, Book of.\\nNo notice, however full and explicit, can supply the place of registration, and the statute as to registration (Revisal, sec. 980) does not apply to wills. Therefore it is not necessary to examine the book of wills to see if the grantor of lands has devised them, or a part thereof, to another, and actual notice thereof will not affect the title conveyed by a registered deed. (The question of ademption or revocation and of election discussed by Clark, C. J., and held inapplicable).\\nActioN for trespass, tried before Ward, J., and a jury, at November Term, 1907, of Caldwell.\\nPlaintiff appealed.\\nMarie Squires for plaintiff.\\nJ ones & Whisnant for defendant.\", \"word_count\": \"793\", \"char_count\": \"4449\", \"text\": \"ClabK, C. J.\\nOn 1 February, 1892, R. A. Harris executed to E. R. Harris a deed for eighty-three acres of land, which was registered 29 March, 1892. On the death of R. A. Harris, in December, 1892, E. R. Harris, his son, qualified as executor, being so named in his will, which had been made in 1884. By the terms of the will thirty-nine acres of aforesaid eighty-three acres were' devised to L. B. Harris, his brother. In July, 1903, by deed duly registered, E. R. Harris conveyed the timber on the eighty-three-acre tract and also timber upon other lands to the defendant, who cut it in 1906. In September, 1905, L. B. Harris began his action against E. R. Harris to remove cloud' on his title to that part of the eighty-three acres, i. e., thirty-nine acres, embraced in the devise to him, and at January Term, 1907, obtained a decree declaring plaintiff to be the owner of the lands devised to him. This action was begun 14 February, 1907, against the defendant for cutting the timber on said thirty-nine acres. The defendant pleaded in defense that it was a tona -fide purchaser for value, without notice of plaintiff's claim.\\nThe court held that the plaintiff was not the owner of the timber which had been cut off the thirty-nine acres, and the exception to this ruling is the only point presented.\\nIn this there was no error. The decree of January, 1907, nnappealed from, is conclusive as between L. B. Harris and E. R. Harris, but has no effect upon the defendant, who was not a party thereto and obtained its title prior thereto. E. R. Harris obtained title to the land by deed from his father in February, 1892, and when the defendant took its de\\u00e9d from E. R. Harris there was no subsequent conveyance or encumbrance from E. R. Harris registered. It was not required to examine the book of wills to see whether R. A. Harris had attempted to devise to L. B. Harris a part of the land which he had conveyed to E. R. Harris. Concurring opinion in Allen v. Allen, 121 N. C., 335.\\nEven if the defendant had received notice of such fact, nothing but a prior conveyance or encumbrance duly registered could affect the conveyance to the defendant. No notice, however full and explicit, can supply the place of registration. Blalock v. Strain, 122 N. C., 280, and cases cited. Besides, the statute as to registration (Revisal, sec. 980) does not apply to wills. Bell v. Couch, 132 N. C., 346. The registration of a will is not notice.\\nIt is not necessary to decide the point; but- if it were, it admits of question whether, even as between L. B. Harris and E. R. Harris, the latter, in 1892, was put to his election. The deed to the latter in 1892 was an ademption or revocation of the devise of the same land written in the will in 1884, and it would seem that the will should be construed as revoked as to said tract. However, we do not pass upon the point. It is certain that if L. B. Harris had the equity to enforce election against his brother the decree to that effect obtained in January, 1907, in an action begun in September, 1905, could not affect the title of the defendant, whose deed from E. R. Harris was registered in July, 1903.\\nAffirmed.\"}"

nc/11272191.json

@@ -0,0 +1 @@
+"{\"id\": \"11272191\", \"name\": \"GEORGE E. GAYLORD v. M. E. McCOY et al.\", \"name_abbreviation\": \"Gaylord v. McCoy\", \"decision_date\": \"1913-04-09\", \"docket_number\": \"\", \"first_page\": \"685\", \"last_page\": \"696\", \"citations\": \"161 N.C. 685\", \"volume\": \"161\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:25:02.114082+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE E. GAYLORD v. M. E. McCOY et al.\", \"head_matter\": \"GEORGE E. GAYLORD v. M. E. McCOY et al.\\n(Filed 9 April, 1913.)\\n1. Deeds and Conveyances \\u2014 Contracts to Convey Lands \\u2014 Options\\u2014 Consideration \\u2014 Compliance.\\nAn option for the sale of lands based upon a valuable consideration is an offer to sell which may not be withdrawn by the grantor before the expiration of the time provided in the option; and in order to constitute an acceptance, the optionee must not only indicate that he will accept, but he must also pay or tender the purchase price within the time limited, the option imposing this condition. Winders v. Kenan, ante, 628, cited and applied.\\n2. Same \\u2014 Tender of Payment \\u2014 Waiver.\\nWhere the grantor of an option on lands given for a valuable consideration has refused to make a warranty deed according to the terms thereof, and by refusing to include certain lands embraced by his contract or pay off encumbrances he had agreed to pay, or to give bond for their payment as proposed by the optionee, a tender by the optionee of the purchase price within the period of time specified for the running of the option is unnecessary, and the refusal of the grantor to comply with the terms of the contract, in this'manner, which he was obligated to perform, is a waiver of a legal tender of the purchase price; and the optionee, who has ever continued ready, able, and willing to pay, may enforce the contract according to its terms in his action thereon, and secure a proper deed upon the payment of the xirice agreed.\\n3. Deeds and Conveyances \\u2014 Contracts\\u2014Options\\u2014Tender of Deed\\u2014 Description \\u2014 Requisites.\\nWhere under an option to purchase land given for a valuable consideration the grantor tenders a deed which omits a part of the description of the lands embraced in the option, and important in identifying the lands contracted to be conveyed, the deed tendered is not a compliance with the terms of the option; and where by such omission a part of the lands agreed upon are excluded from the deed, an acceptance of the deed by the op-tionee would prevent him from claiming the lands omitted, and hence he is justified in refusing to accept the deed as not being in accordance with the contract of purchase.\\n4. Deeds and Conveyances \\u2014 Legal Tender \\u2014 Currency\\u2014Waiver.\\n\\u2022 While it is necessary to constitute a legal tender for the purchase price of land upon demanding a deed therefor, that it be made according to the acts of Congress, specifying what is legal tender in such transactions, it is required that when the tender is made in money constituting a part of the common currency of the country and ordinarily passing as such, it should be objected to at the time on the ground that it is not legal tender; and in this case, expressions that the currency was not legal tender, and it appearing that the. grantor refused to deliver the deed for other reasons, were insufficient on the plea that tender had not been properly made.\\nAppeal by defendants from Br&gaw, J., at September Special Term, 1912, of BbuNswick:.\\nThis is an action to compel specific performance of the following option executed by the defendants, which was duly probated and was registered 6 July, 1909:\\n\\u201cKnow all men by these presents, that in consideration of the sum of four hundred dollars ($400) paid by George 0. Gay-lord, of Wilmington, State of North Carolina, to the undersigned parties, the receipt of which is hereby acknowledged, we, Mrs. M. E. McCoy, widow of the late L. C. McCoy, of Brunswick County, State.of North Carolina; C. L. McCoy and wife, Lutie McCoy, of Laurinburg, State of North Carolina; Charles F. McCoy, of Cameron, State of South Carolina, and E. M. McCoy and wife, Eosa ]VI. McCoy, of Wilmington, State of North. Carolina, do hereby contract and agree with the said George 0. Gaylord to sell and convey unto the said George 0. Gaylord and bis beirs and assigns all that certain tract or parcel of land situate, lying, and being in Northwest Township, Brunswick County, State of North Carolina, adjoining the lands of M. W. Murrell, B. T. Trimmer, Z. E. Murrell, the Metts estate, and lying on both sides of the Carolina Central Bailroad, known as the L. C. McCoy place, and the same on which Mrs. M. E. McCoy resides at the present time; the said tract of land containing 1,500 acres, more or less, and lies on -the waters of Mill Creek and near the waters of Hood\\u2019s Creek, and is all of the land owned by Mrs. M. E. McCoy, C. L. McCoy and wife, Charles McCoy and wife, and E. M. McCoy and-wife, in the county of Brunswick, State of North Carolina; and that we will execute and deliver to said George 0. Gaylord and his heirs and assigns, at his or their request, on or before 3 November, 1909, a good and sufficient deed for the said lands, with full covenants and warranty, and free from all encumbrances: Provided, and upon condition, nevertheless, that the said George O. Gaylord, his heirs and assigns, pay to the undersigned parties, or their representatives or assigns, the sum of nine thousand dollars ($9,000), less whatever sum has been paid as an option on said land, and such sum or sums as it might be necessary to withhold for the payment of unpaid taxes and outstanding encumbrances on said land. It is understood and agreed that the said sale is to be made at the option of the said'George 0. Gaylord or his heirs or assigns, to be exercised on or before the said 3 November, 1909.\\n\\u201cAnd it is further understood and agreed that if the \\u25a0 said George 0. Gaylord and his heirs and assigns shall not demand of the undersigned parties the deed herein provided for, and tender payment as herein provided for, on or before 3 November, 1909, then this agreement to be null and void, and the undersigned parties are to be at liberty to dispose of the land to any other person or to use it as the undersigned parties may desire, in the same manner as if this contract had never been made; but, otherwise, this contract to remain in full force and effect.\\n\\u201cAnd it is furthermore understood and agreed that no timber is to be cut or removed from said land during the continuance of the option.\\n\\u201cThe said Mrs. M. E. McCoy, C. L. McCoy and wife, Charles F. McCoy and wife, covenant with the said George 0. Gaylord, his h\\u00e9irs and assigns, that they are seized of the above described premises in fee, and have the right to convey the same in fee simple, and that they will warrant said title to be free from defects and that the said title is hereby warranted to be free from defects.\\n\\u201cIt is understood that should George 0. Gaylord decide to purchase said tract of land, that from the same which is known as the L. C. McCoy graveyard, being near Mill Creek and on the \\u2019Wilmington and Fayetteville Road, containing one-half acre, more or less, and what is inclosed by an iron fence, is excepted; also is'excepted what is known as the Samuel Rowell graveyard, containing one-half acre, more or less, and on the edge of the right of way of the Carolina Central Railroad.\\n\\u201cAnd to the true and faithful performance of this agreement we do hereby bind ourselves and heirs, executors, administrators, and assigns, to the said George 0. Gaylord and his heirs, executors, administrators, and assigns.\\u201d\\nOn 20 October, 1909, the plaintiff notified the defendants that he had decided to purchase the lands described in said option, and that he demanded a deed in accordance- with its terms.\\nOn 29 October, 1909, the defendants, through their attorney, prepared a deed which they tendered to the plaintiff, in which said deed there was omitted the following descriptive words which were in said option: \\u201cand is all of the land owned by Mrs. M. E. McCoy, C. L. McCoy and wife, Charles F. McCoy and wife, and F. M. McCoy and wife, in the county of Bruns- ' wick, State of North Carolina,\\u201d and at the time of tendering said deed the defendants, through their attorney, wrote a letter to the plaintiff in which they said, among other things, that they tendered the deed in compliance with the terms of the option and demanded the balance due on the purchase price; that they would not settle the creditors\\u2019 suit brought against the plaintiff, E. M. McCoy, and others, as they did not have to do so in order to give a good title, and that in tbeir opinion the paper-writing did not cover the 60 acres of land spoken of as the Anders place, and that they would not give a deed for the 60 acres that would cover the interest of E. M. McCoy, nor would they warrant the title to the 60 acres, and that E. M. McCoy would sign no deed covering his interest in the 60 acres.\\nOn 1 November, 1909, the plaintiff replied to said letter of 29. October, stating that the proposition submitted in the letter of 29 October was not in accordance with the terms of said option, and that the deed tendered did not contain the full description of the land, and making the following demands: \\u201cI demand a warranty deed from your clients for the said land above described, free from all encumbrances, as provided in said contract; and the bearer, Mr. Turner, will tender you the purchase price, and you may deliver the deed to him. I.am advised by counsel that I am entitled under this contract to a title free from all encumbrances; also that the suit of J. A. Taylor and others is a judgment creditors\\u2019 bill, which, if the suit is decided adversely to the McCoys, will be a charge or encumbrance upon at least one-third of the land, and is in the nature of a Us pendens j and also that there is another suit which may be decided adversely, which must be provided for. You will understand that I am insisting on all judgments, mortgages, and other liens being canceled; but I am entirely willing, if there are any pending suits which amount to a lis pendens, to pay the money and take a good bond from your client, protecting me in such suit, in the event they are decided adversely to your client.\\u201d\\nSaid letter of 1 November, 1909, written by the plaintiff, was handed to the defendant\\u2019s attorney by the attorney of the plaintiff, and at the, same time the attorney of the plaintiff attempted to make a tender of the purchase money, and an account of what occurred at the time is stated by' the defendant\\u2019s attorney as follows: \\u201cOn 1 November, Mr. Turner brought me certified check for $8,600, and said: T want to tender you, and want to know if you make the point that it is not cash ?\\u2019 I told him that E. M. McCoy was the only one who bad spoken, to me. I presumed I represented all of tbe defendants, but if tbe others should say I was not authorized, I couldn\\u2019t swear that I did represent \\u00b0tbem, and if, under tbe circumstances, you want me to waive it, I will do so. He said, No, I will get tbe cash.\\u2019 I said, \\u2018Very well; comply with tbe law.\\u2019 Turner came back about 1 p. m. with a shot-bag in band, and laid it on my table, with a letter written by George 0. Gay-lord, addressed to me, as attorney, dated 1 November, 1909, and said be waited to tender me $8,600, and wanted me to count tbe money. I read tbe letter and began counting. Tbe first package contained $500 and was of paper currency, some five-, some ten-, and some twenty-dollar bills. I counted tbe first package about four-fifths through, and turned to Turner and said: \\u2018Mr. Turner, I want to call your attention to what you are offering me; here are some National bank notes, silver certificates, some Treasury notes, some gold certificates. I don\\u2019t have to take this.\\u2019 I remember' one National bank note was for $5 and was signed by J. S. Armstrong, president of tbe Atlantic National Bank, and called Mr. Turner\\u2019s attention to this; tbe amount counted $8,600. I then turned to my stenographer and dictated a letter to George O. Gaylord, dated 1 November, 1909.\\n\\u201cI testified before on tbe trial of this case. I testified that I told Turner I could not take tbe money. I said so later in a conversation with\\u00bb you and Judge Whedbee. I stated in that conversation that I did not say to Turner specifically in these terms, \\u2018This is not legal. tender,\\u2019 because I knew if I did be would go to George Rountree, and Rountree would get him -to get it up. I did tell him to go out and get tbe cash. \\\"What be (Turner) brought was what is usually called cash, and circulates as money or cash, but it was all bank notes, silver certificates, some Treasury notes, and some gold notes; some of tbe denomination of five, some ten, some twenty, some fifty, and some one hundred dollars. Most of it was small bills, and it took me about two and one-half hours to count it. Tbe day be brought tbe money was tbe same day be brought tbe check, or said be bad tbe check. I did not go through tbe form of offering Turner tbe original deed on its arrival. Tbe McCoys have never repudiated my acts in any way that I know of.' C. L. McCoy subsequently came to my office, and we talked it over, and he never repudiated what I did. I wrote the letter of 29 October upon F. M. McCoy\\u2019s employing me. I am of the opinion that I represented all of the defendants.\\u201d\\nThe letter dictated and sent to the plaintiff, of date 1 November, 1909, was as follows:\\nDear Sie: \\u2014 I am in receipt of your letter of 1 November, 1909, addressed to me, relative to the purchase of the McCoy land under the option which you hold, executed some time ago, and, as I understand it, your demand is for a deed in strict conformity with your letter, which you state is a compliance with the terms of the option. I understand from your letter that you will accept no deed unless it is in strict accordance with your letter of 1 November, which I do not regard as in accordance with the option. Your demand therein necessarily has to be declined.\\nMr. F. M. McCoy refuses to yield his interest in the 60-acre tract, and refuses to settle the judgments against him personally or the creditors\\u2019 suit brought by J. A. Taylor and others. All other encumbrances will be removed, and the other parties, other than Mr. F. M. McCoy, are ready to warrant and defend their title to all interest they have in the property, but they do not feel that it is incumbent upon them, by law or by contract, to settle the judgment against F. M. McCoy, or the creditors\\u2019 suit, which is really against F. M. McCoy. They feel that the demand in your letter is demanding more than you have a right to, under the option, and you having demanded this, they feel that they are justified in refusing your proposition. Yours truly,\\nThe plaintiff offered in evidence records of the following judgments:\\nHicks Company v. C. Rl and F. M. McCoy, judgment for $28.26; judgment docketed 23 July, 1909.\\nJ. H. Taylor v. F. M. McCoy, judgment for $194.50, with interest and costs; judgment docketed 23 July, 1909.\\nN. Jacobi Hardware Company v. F. M. McCoy, judgment for $44.13, with interest and costs; judgment docketed 1 July, 1909.\\nJ. W. Brooks v. F. M.'McCoy, judgment for $174.40, 'with interest and costs; docketed 16 February, 1909.\\nSol Bear & Co. v. F. M. McCoy,, judgment for $37.30; judgment docketed 24 October, 1907.\\nThe plaintiff also offered in evidence the record of an action instituted in the Superior Court of Brunswick County on 18 October, 1909, by J. A. Taylor, J. W. Brooks, and others against the plaintiffs and the defendants, which is the creditors\\u2019 suit referred to in the letter of the plaintiff of 1 November, and in the letter of defendants of 29 October.\\nThe complaint in said action was filed on 26 October, 1909, and in it the land in the said paper-writing is described, and the purpose of the action was to set aside a deed executed by F. M. McCoy to H. H. Edwards,-and of a deed executed by H. H. Edwards to O. L. McCoy, and to subject the interest of F. M. McCoy in the purchase price of said lands to the payment of the creditors named in said action, including the judgment creditors before referred to.\\nSaid deed to H. H. Edwards purported to convey in fee all the interest of F. M. McCoy in said lands except his interest in the Anders land of 66 acres, and was registered in Brunswick County on 10 October, 1907; and the deed to C. L. McCoy purported to convey in fee the lands conveyed by the deed of F. M. McCoy, and was registered in Brunswick County, 7 April, 1907.\\nOne of the principal facts in dispute between the plaintiff and the defendants upon the trial of this action was whether the Anders tract, sometimes referred to as 66 acres and at others as 60 acres, was embraced and included in the description in the option sued on.\\nThe jury returned the following verdict:\\n1. Did the defendants execute the contract, as alleged in the complaint ? Answer: Yes.\\n2. Did the plaintiff tender the purchase money to the defendants, or their authorized agents, in accordance with terms of the complaint, before the option expired? Answer: Yes.\\n3. Did the defendants refuse to accept the tender as made and to execute a deed, according to the terms of the contract? Answer: Yes.\\n4. Was plaintiff ready, able, and willing at all times to pay the purchase price and perform his part of the contract? Answer: Yes.\\n5. Were the 66 acres, known as the Anders tract, embraced and included in the description contained in the contract ? Answer: Yes.\\n6. Did F. M. McCoy, before or at the time of signing the option contract, inform the plaintiff or his agent that he had no interest in the McCoy lands, other than the 66 acres, or Anders land? Answer: No.\\nThere is no exception to the findings upon the fifth and sixth issues, and as to the other issues, his Honor instructed the jury, if they believed the evidence, to answer the. first, second, third, and fourth issues \\u201cYes,\\u201d and the defendants excepted.\\nJudgment was entered in favor of the plaintiff, and the de- ' fendants excepted and appealed.\\nRountree & Carr and W. P. M. Turner for plaintiff.\\nC. Pd. Taylor and B. K. Bryam, for defendants.\", \"word_count\": \"4465\", \"char_count\": \"24677\", \"text\": \"AlleN, J.\\nThere are numerous exceptions in the record, which it is unnecessary to consider, as the rights of the parties can be determined upon facts not in dispute.\\nWe have held in Winders v. Kenan, ante, 628:\\n1. That a contract like the one before us is an option, or offer to sell.\\n2. That being based on a valuable consideration, the makers did not have the right to withdraw the offer before the expiration of the time provided for, which in this case was 3 November, 1909.\\n3. That in order to constitute an acceptance of the offer in options like this, the optionee must not only indicate that he will accept, but he must also pay or tender the purchase price within the time limited.\\nApplying th\\u00e9se principles, the determination of the appeal depends upon the settlement of two questions:\\n1. \\\"Was there a valid tender of the purchase price according to the terms of the option, prior to 3 November, 1909 ?\\n2. If not, did the defendants waive such tender?\\nWe will reverse the order, and will first consider the second question.\\n\\\"It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is' reasonably certain that the offer will be refused; that payment or performance will not be accepted\\\" (Hills v. Bank, 103 U. S., 319); and, \\\"If a party to an executory contract is in a condition to demand performance by being .ready and able at the time and place, and the other party refuses to perform his part, an offer is not necessary.\\\" Grandy v. Small, 48 N. C., 10; Blalock v. Clark, 133 N. C., 306; Hughes v. Knott, 138 N. C., 112.\\nThe option contract required the defendants, upon payment of the purchase price before 3 November, 1909, to convey all the lands described therein by \\\"a good and sufficient deed with full covenants and warranty, and free from all encumbrances,\\\" and the jury has found that the plaintiff was at all times ready, willing, and able to perform the contract on his part, and that the Anders place of 66 acres is \\\"embraced and included in the description contained in the contract.\\\"\\nThree judgments against E. M. McCoy were on the record, which were docketed prior to the registration of the option contract, and were a lien on his interest in the land.\\nUnder these circumstances, the defendants, on 29 October, 1909, five days before the option expired, tendered the plaintiff a deed, which omitted in the description of the land the words in the option, \\\"and is all of the land owned by Mrs. M. E. McCoy, C. L. McCoy and wife, Charles E. McCoy and wife, and E. M. McCoy and wife, in the county of Brunswick, State of North Carolina,\\\" and at the same time wrote the plaintiff that, in their opinion, the option did not cover the Anders place; that E. M. McCoy would not execute a deed covering his in terest in that place; that they would not pay the judgment against E. M. McCoy, and that they would not execute a deed covering the interest of E. M. McCoy in the Anders place, nor warrant the title to it.\\nThis was a clear breach of the option contract on the part of the defendants, and a refusal to execute it according to its terms, which rendered a tender of the purchase money unnecessary.\\nThe law does not require a vain and useless thing to be done, and what good could have been accomplished by offering to pay money for a deed conforming to the option, when the defendants, after advising with counsel, had declared most positively they would not make it ?\\nIt is true, it was held i\\u00f1 Gaylord v. McCoy, 158 N. C., 325, that the land in the option was that included in. the boundaries and under the designation of \\\"the L. C. McCoy place,\\\" but it was not held that the words omitted from the deed tendered were not material, and, on the contrary, they were said to be words of description, and therefore important in identifying the lands.\\nIt also appears that the words were left out of the deed because of the contention that the option did not cover the An-,ders place, and the deed being tendered as a compliance with the option and the defendants having written the plaintiff at the time of the tender of the deed that the Anders place was not included therein, an acceptance of the deed under these circumstances would have prevented the plaintiff from claiming the Anders place.\\nNor do we think the letter of the plaintiff to the defendants of 1 November, 1909, changed the status of the parties.\\nIn that letter he demanded a warranty deed free from encumbrances, which was according to the option. He also said that he was advised that the Taylor suit would be a charge or encumbrance on a part of the land, and that it must be provided for. He insisted that all liens on the land be canceled, and proposed that he should pay the purchase money and take from the defendants an indemnity bond as against .pending suits.\\nThe plaintiffs and the defendants were parties to the Taylor suit, and one of the purposes of the action was to subject a part of the purchase money to the payment of the creditors. A judgment subjecting the fund would have been binding on all parties, and a payment of the judgment would have discharged the plaintiff from the payment of the purchase price pro tanto, and he had the right to be protected against paying twice. If, however, this was not true, after this letter was written and on the same day, two days before the option expired, the defendants renewed their refusal to execute a deed conveying the interest of E. M. McCoy in the Anders place, and to satisfy the judgments against him.\\nBeing, therefore, of opinion that the defendants have waived the tender of the purchase money, it is not necessary to consider the validity of the attempted tender on 1 November, 1909.\\nThe authorities seem, however, to agree that contracts to pay money, unless otherwise provided therein, are solvable in money made a legal tender by acts of Congress, and that bank notes are not within the provisions of these acts, but that as they constitute a part of the common currency of the country and ordinarily pass as money, a tender in such notes is valid unless they are objected to at the time on the ground that they are not legal tender. Ency. U. S. S. C. B.., vol. 9, pp. 325-7.\\nAccepting the statement of counsel for defendants, as we must do as the case is presented, it appears that while he used expressions that might have put the plaintiff's counsel on notice, he states candidly that he did not object to taking the money upon the specific ground that it was not legal tender, and that he refrained from doing so because he knew, if it was made, the legal tender would be procured, and he, at the time of the tender, wrote a letter to the plaintiff, in which he objected to making a deed on other grounds, and not because legal-tender money was not produced.\\nFor the reasons stated, the judgment is affirmed.\\nNo error.\"}"

nc/11272359.json

@@ -0,0 +1 @@
+"{\"id\": \"11272359\", \"name\": \"D. A. GARRISON v. VERMONT MILLS (Incorporated)\", \"name_abbreviation\": \"Garrison v. Vermont Mills\", \"decision_date\": \"1910-05-25\", \"docket_number\": \"\", \"first_page\": \"643\", \"last_page\": \"648\", \"citations\": \"152 N.C. 643\", \"volume\": \"152\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:09:44.570275+00:00\", \"provenance\": \"CAP\", \"judges\": \"HoKE, J., concurs in the dissenting opinion.\", \"parties\": \"D. A. GARRISON v. VERMONT MILLS (Incorporated).\", \"head_matter\": \"D. A. GARRISON v. VERMONT MILLS (Incorporated).\\n(Filed 25 May, 1910.)\\n1. Contracts of Sale \\u2014 Commission Man \\u2014 Advances\\u2014Executory Liens \\u2014 Title.\\n, A contract between a commission company and a manufacturing plant whereby the former was to have exclusive sale of the product of the latter at an agreed commission, and to advance a certain per cent of the value of the goods on hand stored in' the mill, which were to be billed to it and kept stored in a separate warehouse and insured for its benefit, does not of itself create a lien on the goods for advances made: (a) the contract is' executory, that the goods should be shipped for sale on commission; (5) there is no lien given or recorded; (c) an invoice alone does not transfer title, and marking and invoicing the goods does not create a lien for the advances.\\n2. Contracts \\u2014 Commission Man \\u2014 Advances\\u2014Liens\\u2014Possession,\\nPossession, actual or constructive, is necessary to create a lien on goods in favor of a commission man who, under the terms of his exclusive contract of sale, has advanced money thereon.\\n3. Same \\u2014 Acquiescence\\u2014Silence.\\nA commission man claiming a lien under the terms of his contract of exclusive sale by reason of having advanced money on goods manufactured by a corporation and stored at its mills, does not show the possession necessary to his lien by establishing as a fact that after making the advances he went to the mill, and asked the superintendent of the mill to take charge of the goods for him, the president of the latter standing by, but not assenting.\\n4. Contracts \\u2014 Commission Man \\u2014 Advances\\u2014Superintendent\\u2014 Agency \\u2014 Possession.\\nThe superintendent of a manufacturing company has no authority to transfer possession of the company\\u2019s property to a stranger, unless authorized by the comjmny; and when a commission man has made advances on the goods of the company without taking possession, but by verbal agreement with him the superintendent lias attempted to give Mm possession, with the understanding that it should he held for him, it is insufficient for the purpose of creating a lien for the advances made.\\nManning, J., dissenting; Hoke, J., concurring in dissenting opinion.\\nAppeal by defendant company\\u2019s receiver, from Webb, J., beard on exceptions to referee\\u2019s report, by consent at Charlotte, 7 February, 1910, the proceedings being instituted in Gaston.\\nThe facts are sufficiently stated in the opinion of the Court.\\nBurweU & Gamier and O. F. Mason for plaintiff.\\nKing & Kimball and J. II. Pou for defendant.\", \"word_count\": \"2471\", \"char_count\": \"14275\", \"text\": \"Clark, C. J.\\nOn 25 January, 1907, L. L. Jenkins, the ap-pellee, was appointed receiver of the Vermont Mills in Gaston County, and took possession of all its property and effects. Among the effects so taken possession of by the receiver were a number of bales of cloth. Some of these bales were in the warehouse of the company and some in the basement. The appellant, the Cone Export and Commission Company, on 26 February, 1907, having made claim to said bales of cloth, entered into an agreement with the receiver by which said bales were sold and the proceeds were to be held to abide the decision of the court whether they should be paid to the receiver for distribution according to law among the creditors of said company, or should be paid over to the appellant.\\nThe facts found by the referee, and approved by the court, are, that on 15 March, 1906, the Vermont Mills made a contract with the Cone Export and Commission Company, \\\"whereby the latter was to have exclusive sale of the products of the mill at a stipulated commission and would advance 75 per cent of the net cash value of the goods on hand stored in mill; .that the goods thus advanced upon were to be billed to the Cone Company and stored in a separate warehouse and insured by the mill for the benefit of the claimant. The claimant agreed to guarantee the payment of the amount for which the goods were sold by it. The -mills reserved the right to sell at its own store and to fill any contracts then in force. On 15 January, 1907, one Vaught, agent of the claimant, visited the mills in the company of its president and the superintendent (Coble), and took an inventory of all the cloth on the looms, and also that in the basement and in the warehouse, and thereupon stated that he took possession of all the cloth as the property of the said Cone Export and Commission Company, and appointed said Coble as its agent to take charge of all the cloth. At that time the Vermont Mills were indebted to the Cone Ex port and Commission Company in an amount in excess of tbe value of said clotb, and was also largely indebted to other creditors, and insolvent. The judge finds as a fact that the said president of the Yermont Mills did not give his consent to the taking of the goods by Yaught, though he was present. The cloth remained in its then position till the receiver took charge on 26 January, as above stated..\\nThe claim of the appellant, the Cone Export and Commission Company, is that by virtue of its contract and the action of the said Vaught on 15 January it is entitled to the proceeds of the sale of these goods.\\nThe Cone Export and Commission Company acquired no lien by virtue of its contract of 15 March, 1906, for that was purely an executory contract that goods should be shipped to said company for sale on commission. It acquired none by virtue of its advances, for there was no lien given or recorded. Nor did the fact that the Yermont Mills had marked the goods and invoiced them to the appellant have that effect, for an invoice does not transfer the title. Dows v. Bank, 91 U. S., 630; Sturm v. Baker, 150 U. S., 328, 23 Cyc., 351.\\nA factor has no lien upon the goods of the principal unless he holds possession of the goods. \\\"Possession, actual or constructive, is an essential element in the factor's lien.\\\" 19 Oyc., 160, and numerous cases there cited. The appellant's claim depends, therefore, upon whether the action of Yaught on 15 January, 1907, amounted to a taking possession of said goods. We do not think that it can be so held. He appeared on the premises of the debtor, took an inventory of the cloth, whether in the looms or baled up and lying in the basement and in the warehouse. Possession was not surrendered by the company, nor by any one authorized to act for it. The court finds that the president of the company, who was present, did not assent to Vaught taking possession. He did not obtain possession with the consent of the company nor without it, for he had no process of any court. He contented himself with directing the superintendent to take possession of the goods and hold them as agent of the Cone Company. There was no physical change in the status of the goods. The superintendent had no authority to transfer the possession of the goods, which he held as a servant for the company, to a stranger. The president so testifies without contradiction, and we know it to be so as a matter of law. The superintendent is not an officer of the company, but merely an employee. The servant could not assent to transfer the goods he held for the master to another. Yaught thereafter exercised no dominion over the goods nor took any actual possession. They remained just as they lay, none the worse and none the better for the declaration of Vaught, and unmoved by anything he said or did; they remained untouched until the receiver, by the authority of the court, took possession of them as the property of the company, which had not till then voluntarily or by order of any court lost possession of them.,\\nWhen the receiver took possession of them, he did not take them from Vaught, but as the property of the company and lying in its mill. There being no lien upon them, the judge properly held that, the claimant had no priority over the proceeds in the distribution of the proceeds by the receiver.\\nAffirmed.\"}"

nc/11273067.json

@@ -0,0 +1 @@
+"{\"id\": \"11273067\", \"name\": \"STATE v. T. C. WHEDBEE\", \"name_abbreviation\": \"State v. Whedbee\", \"decision_date\": \"1910-02-25\", \"docket_number\": \"\", \"first_page\": \"770\", \"last_page\": \"785\", \"citations\": \"152 N.C. 770\", \"volume\": \"152\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:09:44.570275+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hoke, J., concurs in dissenting opinion.\", \"parties\": \"STATE v. T. C. WHEDBEE.\", \"head_matter\": \"STATE v. T. C. WHEDBEE.\\n(Filed 25 February, 1910.)\\n1. False Pretense \\u2014 Definition of.\\nA criminal false pretense is a false representation of a subsisting fact, whether by oral words or conduct, which is calculated to deceive, intended to deceive, and which does, in fact, deceive, and by means of which one person obtains value from another without compensation.\\n2. False Pretense \\u2014 Indictment\\u2014Sufficiency.\\nAn indictment for obtaining goods under false pretense must show upon its face that the offense charged has been eom- \\u25a0 mitted and the evidence must correspond with and support the allegations of the bill. '\\n3. Same \\u2014 Deceit\\u2014False Statements \\u2014 Causal Connection.\\nAn indictment for obtaining a note for a subscription to stock in a proposed corporation by false pretenses is fatally defective which fails to state the facts showing a causal connection between the deceit, the obtaining of the note, and the statements alleged to have been false; and the mere charge in the bill, that the representations induced the making of the note, is insufficient, where there appears to be no semblance of , connection between them.\\n4. Same.\\nA bill of indictment charging that defendant obtained a note for subscription to stock in a certain proposed corporation by false pretenses, that the defendant falsely represented the corporation as being formed for the purpose of creating a surplus in a kindred corporation, must set forth such facts as to show the causal connection between the obtaining of the note and the representation alleged to be false; or for what the note was given, or its relation to the negotiations and dealings with respect to the organization or management of the two companies.\\n5. Same \\u2014 Constitutional Law.\\nThe accused has the constitutional right to be informed of the charge against him, and an indictment which fails to state such facts as show the causal connection between the alleged deceit and the false representations, or, in other words, sufficient facts to inform of the particular offense, deprives him of this right and is fatally defective.\\nClark, C. J., dissenting; Hoke, J., concurring in the dissenting opinion.\\nAppeal from W. J. Adams, J., August Term, 1909, of UNION. This is an indictment ag'ainst tbe defendant for cheating and defrauding W. C. Heath by means of a false and fraudulent pretense. As the case is decided upon the validity of the indictment, it will be necessary to set it out. It is as follows :\\nNoeth Caeolina \\u2014 Union County.\\nSuperior Court, March Term, 1909.\\nState v. T. C. Whedbee.\\nThe jurors for the State upon their oath present that T. C. Whedbee, late of the county of Union, in said State, with force and arms, at and in said county of Union and State of North Carolina, with intent to cheat and defraud one W. C. Heath, did on the 29th day of May, in the year of our Lord one thou sand nine hundred and eight (1908), then and there unlawfully, falsely, designedly, knowingly, feloniously and fraudulently,pretend to W. C. Heath, for the purpose of inducing him, the said W. C. Heath, to purchase stock in the Seminole Securities Company, a corporation; that Wylie Jones and W. A. Clark, bankers of Columbia, in the State of South Carolina, were at the head of the Seminole Securities Company, and large stockholders in said company, and directing its management; that no salaries were being paid the officers of said Seminole Securities Company; that it was not costing exceeding 10' per centum to organize the Seminole Securities Company; that said T. C. Whedbee was not receiving anything in excess of 6 per centum for his services in selling stock in said Seminole Securities Company; that the stock of the Seminole Securities Company was then being sold for the sole purpose of capitalizing with the proceeds realized from the sale of stock of the Seminole Securities Company, a corporation being created under the laws of the State of North Carolina as an accident, indemnity and employers\\u2019 liability insurance company, to be known as the Sterling Casualty Company; that the 50 per centum premium at which the said T. C. Whedbee offered for sale and did sell said stock of the Seminole Securities Company was being used for the sole purpose of creating a surplus fund for the operation of the said Sterling Casualty Company; that a charter had been applied for by himself and others to the State of North Carolina for said accident, indemnity and employers\\u2019 liability company to be known as the Sterling Casualty Company; that to secure the holders of stock and policies in said accident, indemnity and employers\\u2019 liability insurance company, to be known as the Sterling Casualty Company, one hundred thousand dollars in securities had been deposited with James R. Young, Insurance Commissioner of North Carolina; by means o'f which said representations and pretenses said T. C. Whedbee unlawfully, willfully, knowingly, designedly, fraudulently and felo-niously did obtain from W. C. Heath his promissory note in the sum of seven hundred and fifty dollars, of the value of seven hundred and fifty dollars, being then and there the property of the said W. C. Heath, with the intent to feloniously cheat and defraud said W. C. Heath of his moneys, goods and chattels; to the great damage of said W. C. Heath.\\nWhereas, in truth and in fact, Wylie Jones and W. A. Clark, bankers of Columbia, in the State of South Carolina, were not at the head of said Seminole Securities Company, and were not large stockholders in said company and were not directing its management; salaries were being paid to the officers of the said Seminole Securities Company; it was costing more than 10 per centum to organize the said Seminole Securities Company; T. 0. Whedbee was receiving in excess of 6 per centum for Ms services in selling the stock in the Seminole -Securities Company; the stock in the Seminole Securities Company was not then being sold for the sole purpose of capitalizing with the proceeds realized from the sale of the stock of the Seminole Securities Company, a corporation being created under the laws of the State of North Carolina as an accident, indemnity and employers\\u2019 liability company; that the 50 per centum premium at which the said T. C. Whedbee offered for sale and did sell the stock of the said Seminole Securities Company was not being used for the sole purpose of creating a surplus fund for the operation of the said Sterling Casualty Company; a charter had not been applied for by said T. C. Whedbee and others to the State of North Carolina for said accident, indemnity and employers\\u2019 liability insurance company; and to secure the holders of, stock and policies in said accident, indemnity and employers\\u2019 liability company, to be known as the Sterling Casualty Company, one hundred thousand dollars in securities had not been deposited with James R. Young, Insurance Commissioner of North Carolina, as he, the said T. C. Whedbee, then and there well knew, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.\\nThe indictment was signed by the solicitor and was duly returned into court as a true bill by the grand jury. The defendant was convicted by the jury and, judgment having been entered upon the Arerdict, he excepted and appealed to this Court.\\nAttorney-General Bickett, Adams, Jerome & Armfield and Redwine & Bikes for plaintiff.\\nOsborne, Lucas & Cocke, A. M. Stack, Burwell & Cansler, W. H. Venable, Charles Whedbee and P. W. McMullan for defendant.\", \"word_count\": \"6729\", \"char_count\": \"38710\", \"text\": \"Walkeb, J.,\\nafter stating the case-: The indictment in this case is palpably defective. A criminal false pretense may be defined to be the false representation of a subsisting fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and which does, in fact, deceive, and by means of which one person obtains value from another without compensation. S. v. Phifer, 65 N. C., 321. That case has been repeatedly approved by this Court in numerous subsequent decisions involving the question as to the true nature and the constituent elements of a false pretense. Among others are S. v. Mangum, 116 N. C., 998; S. v. Matthews, 121 N. C., 604; S. v. Davis, 150 N. C., 851. In S. v. Matthews, supra, tbe present Chief Justice analyzes the offense and states its component parts with great clearness. This Court, in that case, speaking by Justice Clark, holds squarely that, in order to convict one of this crime, the State must satisfy the jury beyond a reasonable doubt, (1) that the representation was made as alleged; (2) that property, or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. The universal rule of civil and criminal pleading requires that the facts, constituting the cause of action, the defense thereto or a crime, must be stated, leaving nothing to inference or to the imagination. The Constitution of our State requires this in the case, for it says that the accused is entitled to be informed of the accusation made against him. It is a fundamental principle of the common law, or at least of Magna Ckarta, and has been explicitly guaranteed to the citizen in every great reform of our jurisprudence. It is nothing but right and just, and any other rule would be clearly oppressive, if not cruel, in its operation. The indictment must be so drawn and the facts so stated therein that this Court can see upon its face that an offense has been committed, if the evidence corresponds with and supports the allegations of the bill.\\nClark, in his great treatise on Criminal Procedure, at pages 153 and 154, states the law with such clearness and precision that we cannot do better than state, at least substantially, what he lays down as the correct rule. \\\"The indictment must show on its face that if the facts alleged are true, and assuming that there is no defense, an offense has been committed. It must therefore state explicitly and directly every fact and circumstance necessary to constitute the offense, whether such fact or circumstance is an external event, or an intention or other state of mind, or a circumstance of aggravation affecting the legal character of the offense.\\n\\\"Unless the indictment complies with this rule, it does not state the offense. The charge must always be sufficient to support itself. It must directly and distinctly aver every fact or circumstance that is essential, and it cannot be helped out by the evidence at the trial or be aided by argument and inference. With rare exceptions, offenses consist of more than one ingredient, and in some cases of many; and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested or be reversed on error. What facts and circumstances are necessary to be stated must be determined by reference to the definitions and the essentials of the specified crimes. Having ascertained them, every essential fact must not only have arisen, but it must be stated in the indictment. To constitute the statutory offense of obtaining property by false pretenses, there must have been a representation by the defendant of a past or existing fact or circumstance; it must have been in fact a false representation; it must have been known by him to be false; it must have been made with intent to defraud; it must have been believed by the other party; and he must have parted with his property to the defendant because of it. If an indictment for this offense fails to state any one or more of these facts or circumstances, it fails to charge the offense, and would not support a conviction, even though every essential fact were shown by the evidence to have existed.\\\" He supports his text by citing the highest and most reliable authorities.\\nThe bill we now have under consideration is fatally defective in not stating the causal connection between the alleged false representation and the execution of the note for $750 by W. C. Heath by means of the representation. It does not show why the alleged false statements should have caused W. C. Heath to make the note, nor does it show to whom the note is payable. If we were permitted to look at the evidence, upon the defendant's motion in arrest of judgment, we would learn that the note was actually payable to his own order and indorsed in blank by him. It is not stated for what the note was given, whether for stock in either of the corporations mentioned or for something else of value to W. 0. Heath. \\\"To make a long story short\\\" and to express the very point more tersely, it does not appear by direct or express allegation, or even by implication, what causal connection the false statements had with the note, or how W. 0. Heath was induced thereby to make and indorse the note. We must see by the very indictment itself, not only that false representations were made, but, as we have already said, that they were calculated to deceive W. C. Heath, and that by the deception he was actually induced to give the note. The indictment, therefore, fails at its vital point. We are not allowed to infer that the representations induced the making of the note merely because it is so alleged in the bill, unless we can see the causal relation of the one to the other. So far as appears in the bill, the two transactions, Whedbee's representation to Heath and the giving of the note, were separate and independent transactions, baying no relation to eacb other, unless we are bound by the allegation that Heath was induced to give the note by reason of the false statements of Whedbee.\\nWe must remember that the false representation must be \\\"calculated to deceive,\\\" and this must be shown by the evidence. What is material to' be proved, must also be alleged. It is a cardinal rule of every system of pleading that there must be \\\"allegata\\\" as well as \\\"probata\\\" and that they should, at least substantially, correspond with each other.\\nWhere we should have had light upon an essential fact, one of the important ingredients if not the capital element of the crime, we are left entirely in darkness. If we should hold this indictment to be good, our ruling would be violative of every constitutional right of the defendant, of every principle of pleading relating to the subject and of every consideration of justice. It will not do to say in this land of freedom, where the rights of every citizen are carefully guarded and preserved, that a man should be convicted. He must be convicted, if at all, according to the law, and in that way only. We sum up on this point as follows: It is obvious, therefore, that the bill fails to show any causal connection between the representations and the giving of the note, \\u00f3r any logical sequence of the latter from the former. It does not appear for what the note was given or what part it played in the negotiations and dealings with respect to the organization and management of the two corporations, the \\\"Seminole Securities Company\\\" and the \\\"Sterling Casualty Company.\\\"\\nThe precedents sustaining our conclusion in this ease are numerous, and we are not risking anything when we say that they are superabundant. We will refer to some of them later on.\\nThe defendant relies upon S. v. Dickson, 88 N. C., 643. We have examined that case with the greatest care. The judge who wrote the opinion for the Court was not only one of the ablest judges who ever sat in this Court, but is entitled to be considered as having as great a knowledge of the criminal law, its principles and procedure, as any of his contemporaries, his predecessors or successors. We would, therefore, pause a long time and take our bearings before overruling anything that he had said. But it is not necessary that we should hold that S. v. Dickson is in conflict with our decision in this case. The Ocurt had already decided against the defendant upon other grounds, before the question we are now discussing was reached in that case, and what was said about the question now raised was merely a dictum, even if it is susceptible of the construction placed upon it. Tbat decision was the correct one upon the facts of tbat case. But we need not resort to any evasion of tbat ruling, even if it was a dictum as to tbe principle involved in this case, for we think \\u00bfthere was a sufficient allegation in tbe indictment against Dickson to show tbat bis false representation bad induced the prosecutor to pay him tbe money for rafting tbe timber. It is almost patent upon tbe face of tbat bill tbat tbe relation' of employer and employee existed between Jobn McRae and tbe defendant, and tbat tbe latter bad agreed to raft tbe timber from Davis' bridge to tbe mouth of Roekfish Creek, and tbat be bad represented to McRae tbat be bad done so, when, in truth and in fact, be bad not. We affirm tbat decision, and add tbat it does not support tbe contention of tbe State in this case. But it is evident that tbe Court, when deciding tbat case, bad overlooked tbe case of S. v. Fitzgerald, 18 N. C., 408, in which Judge Gaston delivered tbe opinion of tbe Court and asserted, as a well-established principle of criminal pleading, tbat it must appear in tbe bill, by tbe statement of facts sufficient for tbe Court to see, tbat there was a causal connection between tbe false, representation and tbe giving of tbe note, and tbat tbe prosecutor was induced by tbat false representation to execute tbe note. No judge can improve upon tbat great jurist's statement of tbe law, so we will rely upon bis own words and not upon our own. He said at page 411: \\\"Tbe indictment in this case-charged tbat tbe defendant having, as a constable, levied certain executions on tbe property of tbe prosecutor, did falsely pretend tbat a certain paper written by him, presented to tbe prosecutor and William Wrathbone, was a bond for tbe delivery of property of tbe prosecutor theretofore levied on; when in truth and in fact tbe same was not a bond for tbe delivery of tbe said property, but a promissory note for tbe sum of $26.37%; by means of which false affirmation tbe defendant did unlawfully procure to be signed and sealed by tbe prosecutor and tbe said William, and to be delivered to him, tbe defendant, a promissory note unsealed for tbe sum of $26.37%, with intent to defraud tbe prosecutor and tbe said William Wrathbone. It is not necessary to inquire whether by means of such false affirmation a cheat or fraud might not be practiced under circumstances which would subject tbe offender to a criminal prosecution; but it seems to us essential, in a case where there is no obvious connection between the result produced and the falsehood practiced, that the facts should be set forth which do connect the consequence with the deceitful practice. It is a general rule in indictments, tbat 'the special manner of tbe whole fact ought to be set forth with such eer- tainty that it may judicially appear to tbe court tbat tbe in-dictors bave gone upon insufficient premises.' Hawkins b. 2, cb. 55, sec. 57. Now, it is impossible for us to see, upon such a vague and defective statement, bow a false representation by tbe defendant of tbe nature of an instrument wbicb be bad and exhibited, or presented, could bave induced any person to give the defendant a bond for tbe payment of money.\\\"\\nThis would seem to be all-sufficient to sustain our ruling, but tbe reports of tbe decisions in other jurisdictions are full of cases to tbe same effect.\\nIn People v. Brown, 38 N. W., 916, tbe Court held \\\"tbat an information charging tbe obtaining of tbe signature of a person to two certain promissory notes on false and fraudulent representations as to a company, of wbicb tbe defendant claimed to be tbe agent, which does not state tbe consideration of tbe notes, to whom they were payable, and whether negotiable or not, or whether they were used in. any dealings between tbe maker and sueb company, or respondent and tbe company, is insufficient,.as not showing any causal connection between the false representations and tbe giving of tbe notes.\\\" And in People v. White, 7 Cal. App., 98, tbe Court said: \\\"This analysis of tbe information shows tbat there does not appear to be any natural connection between tbe representations charged to bave been made by tbe defendants and tbe delivery of tbe money to tbe defendants. Tbe representations were concerning a company witb wbicb it is not alleged tbat defendants bad any connection, nor witb wbicb said Furrar entered into any relations because of said representations. 'The indictment must show tbat tbe property was obtained by means of tbe false pretense alleged. Accordingly, when there appears to be no causal connection between tbe pretense and tbe delivery of tbe property, such additional facts as are necessary to show tbe relation must be alleged. A defect in tbe indictment arising from failure to show tbe connection between tbe false pretense and tbe obtaining is a material one, and it is not cured by verdict.' 19 Cyc., 420, and numerous authorities cited under Note 37.\\\" In S. v. Connor, 110 Ind., 469, tbe principle was thus stated by tbe Court: \\\"An indictment for obtaining goods by false pretenses, wbicb charged tbe accused witb representing tbat bis firm bad commenced business witb a certain capital; tbat, at tbe date of tbe representations, they bad goods on band and debts due to tbem equal to tbat amount; tbat tbe total indebtedness of tbe firm only amounted to a specified sum, and tbat it was doing a certain amount of business eacb year; and tbat a merchant 'relying on said representations and pretenses, and believing tbe same to be true, and being deceived thereby,:' sold a quantity of goods o'n credit, is insufficient if it is not averred that it was by means of such false representations that the merchants were induced to part with their goods.\\\" The Court said, at pages 455 and 456: \\\"Counsel agree that the motion to quash the indictment was sustained upon the ground that both counts failed to show with sufficient certainty that the possession of the property referred to was retained by the firm of Connor & McClellan by means of the false pretenses alleged to have been made by the appellee. To sustain a prosecution for obtaining goods under false pretenses, it must be in legal effect charged in the indictment, as well as proved at the trial, that the goods were obtained by means of the alleged false pretenses. Whart. Crim. Law, sec. 1175; 2 Bish. Cr. Law, sec. 461; Moore's Cr. Law, sec. 739 ; S. v. Orvis, 13 Ind., 569; Todd v. State, 31 Ind., 514; S. v. Williams, 103 Ind., 235, 2 N. E. Rep., 585. The false pretenses charged must have at least entered into the transaction, and have constituted a material inducement to the transfer of the possession of the goods. Both counts of the indictment in this case averred with sufficient' certainty the falsity of the representations alleged to have been made by the appellee, and that Kellogg & Co. were induced to part with the possession of the goods in question. The succeeding allegation, that eighteen days after the false representations were so made and relied on, Kellogg & Co. sold and delivered these goods to Connor & McClellan on credit, at their (the latter's) special instance and request, failed to indicate any natural or logical connection between the false representations and the sale and delivery of the goods. The indictment must show that the property was obtained by means of the false pretense alleged. Accordingly, when there appears to be no natural connection between the pretense and the delivery of the property, such additional facts as are necessary to show the relation must be alleged.\\\" 19 Cyc., 429. \\\"We could cite authorities without number to sustain the conclusion in this case, but we will not prolong the opinion by such a course, as the cases are all collated in the excellent and exhaustive brief of defendant's counsel.\\nThe case of S. v. Fitzgerald, supra, is of itself sufficient as authority in condemnation of this indictment. It was decided by a Court composed of Chief Justice Ruffin, Judge Daniel and Judge Gaston, and we are perfectly safe in relying upon what they have declared is the law. That case is not 'overruled by S. v. Dickson. It was not even cited in the latter case, and we have no idea that the decision in that case was intended to be considered as bad law.\\nThere were many other exceptions taken, during the trial of the case, to the rulings of the court, which, if the indictment had been good, would deserve our most serious consideration.\\nWithout intimating,- in the least, any opinion upon the law, as applied to the evidence in the case, we would suggest to the solicitor that he consider most carefully whether, upon the facts which the evidence tends to prove, he can make out a case against the defendant for criminal false pretense. This is only a suggestion and nothing more, If the defendant, is guilty, he' should be convicted and punished, but it is well to pause sometimes and consider whether a defendant is guilty merely because he has been indicted by the grand jury. The great and central principle in this case is that the law, not law made by us, but the law of the centuries, has required that the indictment must show a state of causation \\u2014 that is, that the false representation induced the prosecutor to incur a liability or to surrender something which otherwise he would not have done. This is the crucial test.\\nThe statute dispensing with the necessity of alleging or proving an intent to defraud any particular person has no bearing whatever upon this case, but is as foreign to the point presented as it could possibly be. It is not the general allegation or proof of an intent to defraud that is missing, but the causal relation between the alleged false pretense and the deceit, and the indictment, therefore, did not inform the defendant of the crime charged against him. It is his constitutional right to be so informed; and what power have we to ignore this plain mandate of the Constitution and deny him this invaluable privilege ? If he asserts it, we must grant it, or we fail in our duty to administer justice according to the law which protects him in his rights as a citizen.\\nThe cases of S. v. Matthews, 91 N. C., 637, and S. v. Mikle, 94 N. C., 843, and the other authorities relied on do not sustain the position of the State in this case. In all of them causal connection appeared most clearly. The case of Thomas v. People, 34 N. Y., 351, which is specially relied on, sustains our ruling, and the text-books, when properly construed, are to the same effect. A cursory reading of them will show this to be the case. As to S. v. Dickson, the Court manifestly overlooked the decision in S. v. Fitzgerald, wherein the law is firmly established as we say it now is, and the opinion was written by one of the greatest jurists this or any other State has produced, Judge William, Gaston. He was careful and painstaking and always fortunate in stating and applying a legal principle. He had no sympathy with the law-breaker, but, great magistrate as he was, dis charged the duties of bis bigb office \\\"with the cold neutrality of the impartial judge\\\" and according to the laws of bis State as be. understood them. Have we ever bad a greater or more masterful intellect in this Court? By bis side sat one of the greatest of our Chief Justices, Thomas Ruffin, a noted criminal lawyer, and Judge Daniel, who was also a thoroughly trained and well-equipped lawyer. His opinions deservedly rank among the very best ever delivered by this Court. S. v. Fitzgerald condemns the indictment in this case as being insufficient to inform the defendant, under the Constitution, of the offense charged against him.\\nBefore taking leave of the case, it may be well to remark that the indictment charges the false pretense to have been made with the intention of inducing W. C. Heath to subscribe to stock in the Seminole Securities Company, whereas it is not anywhere alleged that he actually subscribed to any such stock, but that the defendant obtained a note from the said Heath, for what purpose it does not appear, nor does it appear to whom the note was payable or what connection, if any, it had with the purchase of the stock; and further, it does not appear that the Seminole Securities Company ever received even a penny from ~W. C. Heath for its stock or for any other consideration.\\nAs the indictment is fatally defective, we must remand the case with directions to arrest the judgment.\\nJudgment arrested.\"}"

nc/11273103.json

@@ -0,0 +1 @@
+"{\"id\": \"11273103\", \"name\": \"JOHN DEVEREUX v. THE ROCHESTER GERMAN INSURANCE COMPANY\", \"name_abbreviation\": \"Devereux v. Rochester German Insurance\", \"decision_date\": \"1887-09\", \"docket_number\": \"\", \"first_page\": \"6\", \"last_page\": \"8\", \"citations\": \"98 N.C. 6\", \"volume\": \"98\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:29:24.803088+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN DEVEREUX v. THE ROCHESTER GERMAN INSURANCE COMPANY.\", \"head_matter\": \"JOHN DEVEREUX v. THE ROCHESTER GERMAN INSURANCE COMPANY.\\nAgent \\u2014 Insurance\\u2014Payment\\u2014Contract.\\n1. Money paid voluntarily, with full knowledge of all the facts, in the absence of any agreement, express or implied, to repay it, cannot be recovered back, though such payment was made under protest.\\n2. It seems that an insurance agent or broker, upon a cancellation of a policy procured through his agency, is only entitled to commissions upon the amount of the premium earned by his principal before cancellation.\\n{Mathews v. Smith,, 67 N. C., 874, and Com\\u2019rs v. Com\\u2019rs, 76 N. C., 240, cited). , - ,\\nCivil action, ' tried before' Merrimon, Judge, at August Term, 1887, of Wake Superior Court.\\nThe plaintiff\\u2019s action is to recover from the defendant company the sum of $535.18, alleged to be due him as commissions on a premium paid by the Carolina Central Railroad Company on an insurance of its property by the defendant company, brought about by the plaintiff\\u2019s agency. The facts as ascertained by a reference made in the progress of the cause were:\\nThe Carolina Central Railway Company paid to the defendant, the Rochester German Insurance Company, the sum of five thousand four hundred and seventy-one dollars and seventy-five cents ($5,471.75) premium upon a policy of insurance issued by it; and the defendant insurance company paid plaintiff $547.17 as commissions for procuring said insurance as broker and as agent for the railroad company; that eight days after said policy went into effect it was cancelled by defendant company, and the defendant company returned to the railway company this amount, less the amount of the earned premium and the commission paid plaintiff, and demanded of the plaintiff that, under the de fendant\\u2019s agreement with him, made before the issuance of the policy, he should return the amount of commissions he had received to the railway company, less commissions on earned premium.\\nThe plaintiff, upon such demand, returned to the railway company the said sum of \\u00a7535.18, protesting at the time that he was not hound to do so under his contract with defendant company, and did not waive any of his rights, and brought this action.\\nOn this statement.of fact, the Court having intimated an opinion that the plaintiff could not recover, he, in submission thereto, took a nonsuit and appealed.\\nMessrs. J. B. Batchelor and John Devereux, Jr., for the plaintiff.\\nMessrs. C. M. Busbee and E. G. Smith, for the defendant.\", \"word_count\": \"851\", \"char_count\": \"4986\", \"text\": \"SiiiTi-i, O. J.\\nThe rescission of the policy, it is not controverted, was in the exercise of a right reserved therein, nor is it anywhere intimated that it was not done in good faith and from a due regard to the supposed interests of' the insurance company. The consequences of putting an end to the contract in this way are, that so much of the premium is retained as measures the period during which the contract remained in force, of which the insured has had the benefit, and this without abatement for commissions allowed soliciting agents or other charges incurred. The referee finds it to have been the usage of such agents to refund their ratable charges, though he reports the plaintiff to be a \\\"broker,\\\" to whom the rule did not apply, though \\\"they did return such commissions whenever they saw fit.\\\"\\nNow, it may well admit of question, whether the contingent termination of the contract, an essential element in it, does not enter into and modify the contract which provides compensation for agents, dependent upon the amount of the premium received, so that the agent and the company share only in what is retained by the latter. Such would seem to result from the restoration of the contracting parties to their original status, except while the contract was in operation. But admitting the point to be disputable, and the construction of the agreement between the agent and his principal in this respect doubtful, the plaintiff, with the money in hand,, upon the defendant's demand, pays over to the insured what was admittedly due it, and now asks the aid of the Court to compel the defendant to pay it back to him. It was out of the premium that the plaintiff was to take his compensation. He did so, and while the defendant returned all that came into its hands, the plaintiff did the same as to his share, making the restitution in full to which the insured was entitled.\\nWe know of no principle upon which the present demand can be supported. There was no mistakes as to facts, and though reluctantly done, it was the voluntary act of the plaintiff. Mathews v. Smith, 67 N. C., 374; Commissioners v. Commissioners, 75 N. C., 240. The action would not lie against the defendant for money received to the plaintiff's use, for it was riot received by the defendant at \\u00e1ll, nor for money paid to defendant's use and at its request, since in such case a contract is implied, whereas here it is expressly negatived by the facts. It must be declared that there is no error, and the judgment is affirmed.\\nNo error. Affirmed.\"}"

nc/11274006.json

@@ -0,0 +1 @@
+"{\"id\": \"11274006\", \"name\": \"PHILLIPS v. POSTAL TELEGRAPH CABLE COMPANY\", \"name_abbreviation\": \"Phillips v. Postal Telegraph Cable Co.\", \"decision_date\": \"1902-06-13\", \"docket_number\": \"\", \"first_page\": \"513\", \"last_page\": \"528\", \"citations\": \"130 N.C. 513\", \"volume\": \"130\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:04:12.188146+00:00\", \"provenance\": \"CAP\", \"judges\": \"MONTGOMERY, J., dissents.\", \"parties\": \"PHILLIPS v. POSTAL TELEGRAPH CABLE COMPANY.\", \"head_matter\": \"PHILLIPS v. POSTAL TELEGRAPH CABLE COMPANY.\\n(Filed June 13, 1902.)\\n1. EMINENT DOMAIN.\\nPrivate property may not be taken for public use, directly or indirectly, witliout just compensation.\\n2. EMINENT DOMAIN \\u2014 Damages\\u2014Due Process of Law.\\nDue process of law as applied to judicial proceedings, instituted for the purpose of taking private' property for public use, means suck process as recognizes the right of the owner to just compensation for the property taken.\\n3. EMINENT DOMAIN \\u2014 Due Process of Law \\u2014 Fourteenth Amendment, Constitution U. 8.\\nThe essential element of due process of law is the opportunity to defend.\\n4. TELEGRAPHS \\u2014 Eminent Domain \\u2014 Rev. 8tat. V. 8., 8ee. 5267.\\nAct of Congress, entitled \\u201cAn act to aid in the construction of telegraphs and to secure to the government the use of the same for postal, military and other purposes,\\u201d approved July 24, 1860, does not give authority to enter private property without consent of owner, but provides that where consent is obtained, no State legislation shall prevent the use of such postroads for telegraph purposes by such corporations as avan themselves of its privileges.\\n5. EMINENT DOMAIN \\u2014 Easements\\u2014Railroads.\\nRailroad companies by condemnation proceedings acquire only an easement over the lands condemned with the right to use so much as is necessary for the operation of its road.\\n6. TELEGRAPHS \\u2014 Easements\\u2014Damages\\u2014Right-of-Way\\u25a0\\u2014Railroads.\\nTelegraph line along a railroad and on the right-of-way of the railroad, is an additional burden upon the land for which \\u2019 the land owner is entitled to just compensation.\\n7. EMINENT DOMAIN \\u2014 Parties\\u2014Telegraphs.\\nCondemnation proceedings by telegraph company against railroad company to condemn right-of-way, to which land owner is not a party, gives no rights against the land owner, but gives rights only against the parties before the court.\\n8. TELEGRAPHS \\u2014 Eminent Domain \\u2014 Easements\\u2014The Code, Chap. 49, Yol. 2.\\nUnder Chapter 49 of The Code, Yol. 2, Sec. 2010, telegraph company alone has the right to file petition in condemnation proceedings. The land owner is not given such right.\\n9. EMINENT DOMAIN \\u2014 Trespasser\\u2014Continuing\\u2014Damages\\u2014Permanent \\u2014 Easements.\\nA purchaser of land subsequent to the taking and erection thereon of a telegraph line, may recover permanent damages for the easement taken, and the telegraph company thereby acquires the easement and right to maintain its line thereon.\\n10. VERDICT \\u2014 Damages\\u2014Excessive\\u2014Supreme Court \\u2014 Appeal.\\n'The Supreme Court will not review refusal of court below to set aside verdict for excessive damages.\\n11. DAMAGES \\u2014 Permanent\\u2014Telegraphs\\u2014Acts 1895, Chap. 224-\\nPermanent damages may be awarded a land owner who is injured by the putting of telegraph poles on his land.\\nMontgomery, J., dissenting.\\nActioN by H. T. Phillips against tbe Postal Telegraph Cable Company, heard by Judge George H. Broum and a jury, at March Term, 1901, of the Superior Court of David-,soN County.\\nThis is an action in the nature of trespass to' recover damages caused by the appropriation by the defendant of a part of the plaintiff\\u2019s land, for the purpose of erecting and maintaining a telegraph line. The following are the material parts of the complaint and answer.\\nThe complaint alleges the incorporation of the defendant and the plaintiff\\u2019s ownership of the land. It then proceeds as follows:\\n\\u201c3. That the defendant has caused to be placed in and upon said land, and .extending across the same the length of a mile ox more, a row of posts, and has sunk anchor wires from some of the posts into the ground, and has strung wires over and across the said premises, and unlawfully and wrongfully continues to keep up and maintain the said posts and wires, going upon and over said lands to attend to the same, and have thereby taken and appropriated plaintiff\\u2019s said lands to its own use, the said posts and- wires are an obstruction to the plaintiff in the cultivation and use of his farm, interfering with the use of machinery thereon, and constitute a. continual nuisance to plaintiff, and that plaintiff has been and will be damaged by the maintenance of said posts and wires and the appropriation of his lands therefor in the sum of eight hundred dollars.\\u201d\\nThe answer denies each' and every material allegation in plaintiff\\u2019s complaint.\\nAnd for further answer says:\\n\\u201c1. The said defendant is a telegraph company, chartered and organized under the laws of the State of New York; that it has, prior to the acts complained of by plaintiff in his complaint in said cause, accepted the provisions of an act of Congress, entitled \\u201cAn act to aid in the construction \\u2022of telegraph lines, and to secure to the Government the uses \\u25a0of the same for postal, military and other purposes,\\u201d approved July 24,1866 (sections 5263-5268, Eevised Statutes), and by virtue of said act and section 3964 of the Eevised 'Statutes, and of the laws of the State of North Carolina, and its charter, it had the right to construct, maintain and operate its telegraph line along and -upon the right-of-way of the Southern Eailway through' the State of North Carolina, that the defendant is an interstate telegraph company, and all its lines in the State of North Carolina are engaged in interstate commerce, by their connection with1 other lines of said \\u25a0company, extending to and through all the States of this Union, and the principal towns and cities therein, and cable lines extending across tbe Atlantic Ocean, into tbe principal cities of all tbe nations of tbe eartb, and all of its lines in said county of Davidson axe upon tbe said railway right-of-way.\\n\\u201c2. Defendant says, tbat all tbe boles dug in tbe ground and the posts planted therein, as well as the anchor-wires sunk in tbe ground and connecting with said posts, which are complained of by tbe plaintiff in the third cause of action of bis complaint filed in this cause, were dug and said posts planted, and anchor-wires sunk, etc., upon tbe right-of-way of the Southern Railway Company, for a public use, and said right-of-way, under the statutes of this State, was acquired for the public use. Defendant denies tbat tbe construction and maintenance of any of tbe poles and wires upon tbe lands claimed by tbe plaintiff in bis said complaint at all interferes with bis lawful right to tbe use said lands, and denies tbat the construction and maintenance of said telegraph line was and is unlawful, and a nuisance, and tbat plaintiff has been ox will be damaged thereby in tbe sum of eight hundred dollars, or any sum whatever.\\n\\u201c3. Defendant says the lands claimed by plaintiff in the third cause of action in his complaint, upon which it constructed its telegraph poles and 'strung its wires and planted its anchors, are a part and parcel of the right-of-way of the Southern \\u25a0 Railway Company, which, by virtue of Section 3964 of the Revised Statutes of the United States, is a \\u201cPost Road,!\\u2019 and, by authority of Sections 5263-5268, Revised Statutes, it bad tbe right to construct its lines thereon, and that said telegraph poles, wires and guy-wires were constructed thereon by tbe consent of the Southern Railway Company, and by tbe payment of just compensation to tbe Southern Railway Company.\\n\\u201c4. Eor further plea, tbe defendant says:\\n\\u201cIf tbe posts and guy-wires which plaintiff, in third cause of bis said complaint, says were placed and are extending across bis lands, for tbe length of a mile or more, witb wires strung thereon, are upon tbe lands of tbe plaintiff, as alleged in said third cause of action, plaintiff is entitled to receive in this action tbe.actual cash value of tbe land actually occupied by such poles and guy-wires, and nothing more, as damages for tbe construction and maintenance of said telegraph line thereon.\\u201d\\nBy permission of tbe Court defendant filed the following amendment to its answer:\\n\\u201cAnd before tbe construction of tbe said telegraph line along and upon tbe said right-of-way, defendant company procured such right-of-way by regular condemnation proceedings, instituted in tbe Superior Court of tbe county of Guil-ford, State of North Carolina, which proceedings were removed by tbe defendant, tbe said Southern Railway Company, from said Court into the Circuit Court of the United States for tbe Western District of tbe State of North Carolina, and by virtue and authority of tbe orders, judgments and decrees of said Court, tbe right of said defendant telegraph company to condemn so much of tbe rigbt-of-way of tbe said Southern Railway Company was adjudged, to construct, maintain and operate its telegraph line along and upon tbe right-of-way of the said Southern Railway Company from Charlotte, North Carolina, to tbe State line between tbe States of North Carolina and Virginia, where said right-of-way crosses the same, and from the city of Greensboro, in said county of Guilford, to the city of Raleigh, in said State, and from said city of Greensboro to the city of Winston in said State, which includes the lands along and upon the right-of-way of said Southern Railway Company in the county of Davidson, claimed by plaintiff in his declaration as his property. And on the 20th and 21st days of April, 1900, by authority of said Court, damages were duly assessed by commis sioners appointed by. said Court, to the said Southern Railway Company for such right and privileges, whose award was reported to said Court and filed in the office of the Clerk of said Court on the said 21st day of April, 1900, to which award no- exceptions were filed by the said Southern Railway Company within the time authorized by the statutes of the State of North Carolina, in conduct of said proceedings', for the filing of the same, and at the time of filing the same the said defendant company paid into the office of the Clerk of said Court for the said railway company the amount of said award, together with the costs in said cause.\\u201d\\nThe following judgment was rendered:\\n\\u201cThis cause coming on to be heard upon the facts admitted in the pleadings and upon the facts admitted by counsel upon the trial and hereto annexed, and the jury having found the issue as follows:\\n\\u201cWhat permanent damages does plaintiff\\u2019s land sustain by reason of the existence of defendant\\u2019s telegraph line across said land within the right-of-way of the railroad company?\\n\\u201cAnswer: <$19'0.\\u2019\\n\\u201cIt is adjudged that plaintiff recover of defendant the sum of one hundred and ninety dollars, together with costs of action.\\u201d\\nThe following facts were admitted by the parties to the action: That the land described in the complaint is the land of plaintiff, subject to the rights and titles of the North Carolina Railway Company by virtue of the charter, Laws of North Carolina, 1848-\\u201949, Chapter 82, and its lessee, the Southern Railway Company, and that plaintiff acquired his title by deed in May, 1900, which deed covers the land described in the complaint; that on January, 1900, the defendant company constructed a telegraph line across said land within and upon the right-of-way of the'said North Carolina Railway Company, by placing 31 or 32 poles thereon, with telegraph wires overhead thereon; that so far as the said North Carolina Eailroad Company and its lessee, the Southern Eailway Company, are concerned, defendant company acquired by condemnation proceedings under the statutes of North Carolina, The Code, Chapter 49, the right to construct its telegraph line along and upon the right-of-way of the said North Carolina Eailway Company and its lessee, the Southern Eailway Company, but that neither plaintiff nor those under whom he holds, were parties to the said condemnation proceedings; that the said telegraph line was constructed with and by the consent of the Southern Eailway Company; that the Southern Eailway Company is the lessee of the North Carolina Eailway Company to the entire right-of-way, property and franchise of said railroad in Davidson County, which lease was made and entered into on the . . day of . .. ., 18. ., for a period of 99 years, which lease is properly recorded in the office of the Eegister of Deeds for Davidson County; that the North Carolina Eailway Company was chartered under the laws of North Carolina, Laws 1848-\\u201949, Chapter 82, which act is hereby made a part of this case on appeal; that the defendant company is a corporation duly incorporated under the laws of the State of New York, with authority to construct, its telegraph line through the United States, including the State of North Carolina, and along and upon the way of the Southern Eailway Company; that the defendant company had, prior to the construction of its line \\u2022 upon the right-of-way of the Southern Eailway Company through Davidson County, duly accepted the provisions of an act of Congress entitled, \\u201cAn act entitled an act to aid in the construction of telegraph and secure to the Government the use of the same for postal, military and other purposes,\\u201d approved duly 24, 1860.\\nFrom a judgment, for the plaintiff, the defendant appealed.\\nE. E. Baper, for the plaintiff.\\nJ. R. McIntosh, F. H. Busbee, and Walser & Walser, for the defendant.\", \"word_count\": \"5189\", \"char_count\": \"30371\", \"text\": \"Douglas, J.,\\nafter stating the case. The sole purpose of this action is to recover compensation for the appropriation of the plaintiff's property by the defendant under the color of eminent domain. The plaintiff does not seek to eject the defendant, nor to interfere in the slightest degree with the fullest enjoyment of the easement it claims. He does not threaten or intend to annoy the defendant by a multiplicity of suits, but, on the contrary, he asks, the Court, in the exercise of its equitable jurisdiction, to. award him such permanent damages as will compensate him for the appropriation of the easement. This being done, the defendant ceases to be a trespasser, and will thereafter remain in the lawful enjoyment of the easement thus acquired. There is, therefore, no question as to whether the defendant shall have the easement, but simply whether he shall pay for it. There is no pretense that the plaintiff, or any former owner of the land, has received any compensation whatever, or that any agreement, or attempt to agree, with such owner was ever made by the defendant, as required by Sections 1943 and 2010 of The Code.\\nIt is so well settled that private property can not be taken directly or indirectly, even for a. public purpose, without just compensation, that it seems a work of supererogation even to restate the principle. Railroad v. Davis, 19 N. C., 451; State v. Glen, 52 N. C., 321; Cornelius v. Glen, 52 N. C., 512; Johnston v. Rankin, 70 N. C., 550; Staton v. Railroad, 111 N. C., 278, 17 L. R. A., 838.\\nIn Johnston v. Rankin, supra, this Court says, on page 555 : \\\"Notwithstanding there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation, and although the clause to that effect in the Constitution of the United States applies only to acts' by the United States, and not to tbe government of the State, yet the principle is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina.\\\"\\nThe learned Judge who- wrote that opinion was correct in saying that the Eifth Amendment to the Constitution of the United States, to which he evidently referred, was a restriction only upon the power of the United States, and not that of the States; but he overlooked the Fourteenth Amendment, then of recent adoption, under which it has been expressly held that a State can not appropriate private property to public use without compensation. C., B. and Q. R. R. Co. v. Chicago, 166 U. S., 226. In that case the Court says, on page 236: \\\"But if, as this Court has adjudged, a legislative enactment, assuming arbitrarily to take the property of one individual and give it to another individual, would not be due process of law as enjoined by the Fourteenth Amendment, it must be that the requirement of due process of law in that amendment is applicable to the direct appropriation by the State to public use and without compensation of the private property of the citizen. The Legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law as applied to- judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the- owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, can not convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.\\\"\\nAgain, the Court says, on page 234: \\\"But a State may not, by any of its agencies, disregard the prohibition of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the Courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This Court, recurring to the Fourteenth Amendment, has said: 'Can a State make anything due process of law which, by its own legislation, it chooses to declare such ? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is affected under the forms of State legislation.' \\\" Citing Davidson v. New Orleans, 96 U. S., 97, 102.\\nIt is well settled that the denial of an adequate remedy for enforcing the right is the denial of the right itself, and the adequacy of the remedy must be determined by its practical results.\\nIn Henderson v. Mayor, 92 U. S., 259, the Court says: \\\"In whatever language a statute may be framed, its purpose and its constitutional validity must be determined by its natural and reasonable effect.\\\"\\nIn Simon v. Craft, 182 U. S., 427, 436, the Court says: \\\"The essential elements of due process of law are notice and opportunity to defend. In determining whether such rights were denied, we are governed by the substance of tilings, and not by mere form.\\\"\\nThese Federal citations become the more important in view of the defendant's claim to its right-of-way by virtue of its acceptance of the provisions of an act of Congress entitled, \\\"An act to aid in the construction of telegraphs and secure to the Government the use of the same for postal, military and oilier purposes,\\\" approved July 24, 1860. For ibis contention it relies on the case of Pensacola Telegraph Co. v. W. U. Tel. Co., 96 U. S., 1. Bearing in mind that the question-before ns is, not whether the defendant shall have its right-of-way, but whether it shall pay for it, the case it cites becomes an authority against it. That Court, construing the act, says, on page 11: \\\"It gives no foreign corporation the- right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of postroads for telegraph purposes by such corporations as are willing to> avail themselves of its privileges.\\\" And again, on page 12, the Court says: \\\"No question arises as to the-authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only National privileges are granted.\\\"\\nSo broad a disclaimer should seem to settle the question, and on reason and authority we concur in the effect of the Federal decisions that the act of Congress referred to gives the defendant no right to any part of the land of the plaintiff, or to any use therein. Tel. Co. v. R. Co., 6 Bissell, 158; Tel. Co. v. Tel. Co., 9 Bissell, 72.\\nThe defendant again contends that as its poles are located' on the right-of-way of the railroad company, that is, its potential right-of-way, and as it has acquired its easement from the railroad company by condemnation proceedings under The Code, it owes no further duty to the owner of the land. We can not concur in this view. The land on which the poles. are situated is not in tbe actual possession of tbe railroad \\u2022company, and apparently never bas been. On tbe contrary, it bas been in constant cultivation by tbe plaintiff and those under wbom be bolds. Tbe nature of tbe easement acquired by railroad companies under condemnation proceedings bas been too recently considered by tbis Court to1 require further discussion. Shields v. Railroad, 129 N. C., 1. In that case tbe Court says, on page 4: \\\"It therefore seems to be tbe settled law in tbis State, so far as judicial construction can settle a question, that a railroad company by condemnation proceedings only acquires an easement upon tbe land condemned, with tbe right to1 actual possession of so much only thereof as is necessary for tbe operation of its road, and to protect it \\u2022against contingent damages.\\\" It is not .contended that tbe lines of tbe defendant are in any degree essential to tbe operation of tbe railroad. On tbe contrary, it is stated in the opinion of tbe Court, in tbe proceedings under which tbe defendant claims to have acquired its easement, that \\\"tbe railroad company denies altogether that any benefit or advantage can arise to it in the erection of tbe telegraph lines, and, on tbe contrary, avers that it is detrimental to it in the last degree.\\\" Postal Tel. Co. v. So. Ry. Co., 89 Fed. Rep., 190, 196. Under the- circumstances, it is clear that the additional easement claimed by the defendant is an additional burden upon tbe land, for which tbe owner is entitled to just compensation. Tel. Co. v. Railroad Co., supra; Dailey v. State, 51 Ohio St, 348; Am. Tel. Co. v. Pearce, 71 Md., 535; Keasbey on Electric Wires, Sec. 185.\\nTbe Maryland case is an able and elaborate discussion of tbe entire question.\\nTbe kindred question, involving tbe same principle, of railroads upon streets is fully considered in the well-known cases of Story v. N. Y. Elevated R. Co., 90 N. Y., 122, 43 Am. Rep., 146, and Lahr v. Same, 104 N. Y., 268, in which. it was held that the abutting owners were entitled to compensation for the additional burden imposed upon the streets by the elevated roads. White v. Railroad, 113 N. C., 610, 22 L. R. A., 627, 37 Am. St. Rep., 639, is also a well-considered case in our own Reports.\\nThe plaintiff was not a party to the condemnation proceedings, nor have any proceedings been instituted against him by the defendant to acquire an easement or any other right. The defendant relies upon that part of Section 2010 of The Code which says: \\\"And if the use or right sought be over or upon an easement or right-of-way, it shall be sufficient to give jurisdiction if the person or corporation owning the easement or right-of-way be made a party defendant.\\\" Here the defendant stops, but The Code immediately proceeds to say: \\\"Provided, that only the interest of such parties as are brought before the Court shall be condemned in any such proceedings.\\\" By the very terms of the statute, the plaintiff now stands as if no condemnation proceedings had ever been brought\\nAgain, the defendant contends that the plaintiff should have proceeded to have his damages assessed under Chapter 49 of The Code, but Section 2010 gives the right to file a petition in condemnation proceedings to the telegraph company alone, and, with Section 2011, specifically provides how the proceeding shall be commenced. Section 2012 evidently refers to the proceedings subsequent to the filing of the petition and the service of the required notices. In other words, it refers to the proceedings after the parties are all before the Court. This is so held, and we think correctly held, in Telegraph Co. v. Railway Co., supra, wherein the Court says, on page 192: \\\"Inasmuch as Section 2010 sets forth all the necessary statements for the petition of the telegraph company, and Section 2011 provides for its service, only so much of the railroad law as directs proceedings after the petition is before the Court is made applicable to telegraph companies. \\u2022 For tbe same reason, Section 1944 can not be made to apply to telegraph companies.\\\"\\nAgain, the defendant contends that, as the plaintiff did not own the land when the poles, were planted, he can not recover for the appropriation of the easement. This point was directly decided in Beach v. Railroad, 120 N. C., 498, a decision which has since been uniformly followed by this Court. A subsequent purchaser can not recover for a completed act of injury to the land, as, for instance, the unlawful cutting down of trees; but if the trespasser unlawfully remains upon the land after the sale, or returns and carries away the trees, he becomes liable to the then owner, in the first case as for a continuing trespass, and in the latter for a fresh injury. If, in addition to this, the trespasser seeks to acquire the right to remain, he can do so only by the consent of the owner or under the principle of eminent domain. This is not the perpetration of a wrong, but the lawful acquisition of a right, and the damages incident thereto' must be paid to- the owner from whom the right is acquired. Aside from this action, the defendant has acquired no easement whatever as against the plaintiff, and if it takes that easement now, it must pay the man from whom it takes it. To say that one may acquire an easement in the land simply by an unlawful entry, is an attempted extension of the doctrine of Squatter Sovereignty to an extreme which we feel entirely unable to concede. Livenan v. Railroad, 109 N. C., 52; S. C., 114 N. C., 692.\\nIn the case at bar, the sole issue of permanent damages was submitted, without objection, and it is evident the parties intended that the case should so end if the plaintiff could maintain this action.\\nWe see no material error in the admission of evidence.\\nThis case does not come under the act of 1895, Chap. 224, which applies exclusively to railroads, but we think that per manent damages can be awarded in tbis action, and the easement thereby conveyed under the principle enunciated in Ridley v. Railroad. This Court has said in Wiley J. Lassiter v. Railroad, 126 N. C., 509: \\\"Railroads are quasi public corporations charged with important public duties, which in their very nature necessarily invoke the power of eminent domain; and therefore the Courts, with practical unanimity, have created a species of legal condemnation by the allowance of so-called 'permanent damages.' Our leading case upon this subject is Ridley v. Railroad, 118 N. C., 996, 22 L. R. A., 708, where, apparently for the first time in this State, the rule is distinctly enunciated and defined. It is further developed and affirmed in Parker v. Railroad, 119 N. C., 677; Beach v. Railroad, 120 N. C., 498 ; Nichols v. Railroad, 120 N. C., 495; Hocutt v. Railroad, 124 N. C., 214. The provision in the act of 1895 incidentally providing for a statutory easement, rather by implication than direct terms, seems to us to be in effect but little more than a legislative affirmation of the rule already enunciated in other jurisdictions and adopted in Eidley's case, which was decided a year after the act was passed.\\\"\\nA parity of reasoning would extend this principle to telegraph companies, as it has already been extended to water companies in Geer v. Water Co., 127 N. C., 349. In that case the Court says, on page 354: \\\"Although not a railroad company, we think that the defendant is a quasi public corporation in its fullest sense, and that neither the public interest nor the public safety would permit its abatement as a nuisance. We see no reason why permanent damages can not be assessed under the general principles in equity, and, in fact, we do not understand that this right is questioned by either party. The awarding. such permanent damages is equivalent to the acquisition of an easement by condemnation.\\\"\\nThe refusal of the Court below to set aside the verdict on account of excessive damages can not be reviewed in this Court. Goodson v. Mullen, 92 N. C., 211; Edwards v. Phifer, 120 N. C., 405; Norton v. Railroad, 122 N. C., 910.\\nIn its answer, the defendant alleges \\\"that the defendant is an interstate telegraph company, and all its lines in the State of North Carolina are engaged in interstate commerce, by their connection with other lines of said company, extending to and through all of the States of the Union, and the principal towns and cities therein, and cable lines extending across the Atlantic Ocean into ,the principal cities of all the nations of the earth.\\\" We do not know that we fully comprehend the extent of this allegation, but we can perhaps do no better than to quote the words of Judge Simonton in Telegraph Co. v. Railway Co., supra, on page 192, as follows: \\\"It is true that the purposes of the petitioner are greatly fox the public benefit, that it is an important factor in interstate commerce, one of the agencies \\u2014 and a most valuable agent \\u2014 -in interstate commerce, and that it is of most essential service to- tho citizen in time of peace and to the Government in time of war. But the underlying proposition in our civilization and in Anglo-Saxon liberty is the protection of the citizen in the safety of his person and in the undisturbed enjoyment of his property. And when he is called upon to surrender that property against his will for a public purpose, he is entitled to all the safeguards which the law has thrown around the exercise of the tremendous, though wholesome, right of eminent domain.\\\" In the absence of material error, the judgment is\\nAffirmed.\\nMONTGOMERY, J., dissents.\"}"

nc/11274162.json

@@ -0,0 +1 @@
+"{\"id\": \"11274162\", \"name\": \"EMILY NEVILLE v. J. R. POPE\", \"name_abbreviation\": \"Neville v. Pope\", \"decision_date\": \"1886-10\", \"docket_number\": \"\", \"first_page\": \"346\", \"last_page\": \"352\", \"citations\": \"95 N.C. 346\", \"volume\": \"95\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:22:17.235960+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMILY NEVILLE v. J. R. POPE.\", \"head_matter\": \"EMILY NEVILLE v. J. R. POPE.\\n\\u25a0Coverture \\u2014 Jurisdiction of Justices of the Peace \\u2014 Injunction\\u2014 Pleading \\u2014 Irregular Judgments.\\n1. A feme covert may be sued in the court of a justice of the peace, for a debt due by her, or on a contract made by her before marriage, or for a debt contracted by her as a free-trader.\\n2. In an action to enjoin the collection of a judgment on the ground of\\nwant of jurisdiction in the court which rendered it, a transcript of the record should be set out, so that the court can see from the record itself, whether or not there was a fatal lack of jurisdiction. 8. Where the court has jurisdiction, errors m the judgment cannot be corrected by an injunction, but only by appeal, except where fraud is alleged.\\n4. Where it is sought to enjoin the collection of a judgment on the ground of want of jurisdiction in the court which rendered it, every presumption is in favor of the jurisdiction, and it must be made to appear affirmatively from the record, that the court had no jurisdiction.\\n5. A motion in the cause is the proper remedy for setting aside an irregular judgment.\\n6. Where a feme covert was sued with her husband, whom she instructed to make a proper defence to the action, which he failed to do; It ivas held, no ground for an injunction to restrain the collection of . the judgment, in the absence of fraud.\\n7. The defence of coverture must be made in apt time in order to be available.\\n(Vase v. The Building Association, 91 N. C., 55; Grantham v. Kennedy, Ibid., 148; Spillman v. Williams, Ibid., 483; Williamson v. Hartman, 92 N. C., 236; Burgess v. Kirby, 94 N. C., 575; Nicholson v. Gox, 83 N. C., 48; Vick v. Pope, 81 N. C., 22; cited and approved; Dough-erty v. Sprinkle, 88 N. C., 300, cited, distinguished and approved).\\nMotioN to continue an injunction to the hearing, heard by Philips, Judge, at Chambers in Halifax, on November 18, 1885.\\nThis action is brought to obtain relief by injunction for the causes specified in the verified complaint, the material parts of which are as follows:\\n\\u201c 1. That on the.day of October, 1869, she and her husband, Elijah K. Neville, executed their note to one Rosa Pope, in the sum of fifty-five dollars, and that on the 3rd day of August, 1880, the defendant caused a judgment to be rendered on said note against the plaintiff and the said Elijah K. Neville, before John O\\u2019Brien, Escp, a justice of the peace of Halifax county, and caused the same to be docketed in the office of the Clerk of the Superior Court of said county, in judgment docket, vol. 4, number 1188, on the said 3rd day of August, 1880.\\n\\u201c 2. That at the time of the execution of said note, and the rendition of said judgment, the plaintiff was a feme covert domiciled in Halifax county, and living with her husband, the said Elijah K. Neville, and at the aforesaid times .she was not a free-trader, and never has been one.\\n\\u201c 3. That in the trial of said cause before the said justice, the defendant did not allege in his pleadings that the plaintiff was possessed of a separate estate, and that the contract was such as the statute renders her competent to make, nor did he allege that it was for her advantage to make said note or contract.\\n\\u201c 4. That the plaintiff instructed her husband, the said Elijah K. Neville, to make the proper defences for her, to appeal from said judgment to the Superior Court, but for some cause, unknown to this plaintiff, he failed so to do.\\u201d\\nIt is further alleged, that the defendant has caused an exe'tion to be issued upon the judgment mentioned, and is about to require the sheriff to sell a part of a tract of land in which the plaintiff has a life estate, to her \\u201c irreparable damage,\\u201d &c. She demands judgment: .\\n1. That the defendant, his agents and attorneys, be restrained from selling, disposing of, or in any way interfering with said land.\\n2. That said judgment be set aside and declared void, and of no effect.\\n3. For such other relief as may be just and proper, and for costs.\\nThe defendant filed the following affidavit:\\n\\u201c Jacob R. Pope, being duly sworn, says that at the time,, before the justice of the peace, when the judgment set out in the complaint was rendered against the plaintiff herein, the defence of coverture was not set up, nor was it made to appear to the court that she was a married woman; nor, as he is informed and believes, was she so described in the summons in said action.\\u201d\\nTreating the complaint as an affidavit, the Court, at Chambers, granted a restraining order, and afterwards continued the same as an injunction until the case should be heard upon the merits. From this order the defendant appealed to. this Court.\\nMessrs. E. T. Banch and David Bell, filed a brief for the-Plaintiff.\\nMr. R. 0. Burton, Jr., for the defendant.\", \"word_count\": \"2403\", \"char_count\": \"13290\", \"text\": \"Merrimon, J.\\n(after stating the facts). It is not true, as seems to be supposed, that the court of a justice of the peace-has no jurisdiction in any case of a married woman, and of a cause of action against her, of which that court would ordi- . narily have jurisdiction, if the party sued were a feme sole, or a male person. There is no provision of the constitution, or of any statute of this State, that excepts her from such jurisdiction, nor is the nature of her marital relation such, under existing law, as to exempt her from it in all cases. She may be sued in that court for a debt due from her, or a contract made, or for a wrong done by her before the marriage. The statute, (The Code, \\u00a71822 \\u2014 \\u00a71823), expressly provides that the husband shall not be liable on such account, and that the- liability of tlio wife \\\" shall not be impaired or altered by such marriage.\\\" And so, also, she may be sued as a \\\" free-trader \\\" under the statute, (The Code, \\u00a71828). As such, she is allowed to contract and deal as if she were a feme sole. And perhaps she may be so sued in some other cases.\\nThe precise nature of the cause of action before the justice of the peace, in which the judgment complained of was .given, does not appear, as it should do. A properly certified transcript of the record of that action, including the judgment, ought to have been set forth in the complaint, or attached to it with proper averments, or ought to have accompanied the motion for an injunction, so that the Court could see from the record itself whether or not, in that action, the justice of the peace could, in any view of it and the cause of action, have jurisdiction of the defendant therein; because, if upon the face of the record, the Court had any jurisdiction at all, then any errors of the Court in the course of the action could only be corrected upon appeal, and irregularities corrected, or the judgment set aside for irregularity, by motion in the action. From what appears, it may be that the justice of the -peace had jurisdiction and authority to give a judgment. As it is alleged that the defendant in the action was served with a summons, and he assumed jurisdiction, the presumption is that he properly had it, unless it appears from the record itself that he did not, in which case, the judgment would be void.\\nIf the verified complaint in this action be taken as true, it does not appear from it that the justice of the peace had no jurisdiction of the feme defendant, the present plaintiff, in the action before him. It is not alleged that the judgment is void, nor do the facts alleged render it so necessarily \\u2014 that it is, is left to vague inference. In this, and like cases, the material facts should be alleged positively and with precision, and as we have said above, a duly authenticated copy of the record of the action in which the judgment complained of was given, should be produced.\\nJudgments are serious and important tilings, and are supposed to have been given by Courts upon mature consideration, and they should not be interfered with for light, trivial and possible causes of objection to them. There should be substantial cause, and this should appear with reasonable certainty to warrant interference with them by injunction or otherwise.\\nThe judgment complained of was not, so far as appeal's, absolutely void, and thus to bo treated everywhere. It may have been erroneous. If so, the party against whom it was given ought to have appealed to the Superior Court, where the error might have been corrected. It may have been, and may be, irregular in material respects. If so,- then the remedy would be by motion in the action to set the judgment aside, because of such irregularity. Vass v. Building Association, 91 N. C., 55; Grantham v. Kennedy, Ibid., 148; Spillman v. Williams, Ibid., 483; Williamson, v. Hartman, 92 N. C., 236; Burgess v. Kerby, 94 N. C., 575.\\nThat the plaintiff instructed her husband to make proper-defences for her, and to appeal to the Superior Court, if need be, and he failed to do so, is no ground for relief by injunction, in the absence offraud, and this is not alleged.' She might have applied at any time within twelve months next after the judgment was given, to set it aside because of her mistake, inadvertence, surprise or excusable neglect. That she did not, if she had good cause, was her neglect or her misfortune. Nicholson v. Cox, 83 N. C., 48.\\nA married -woman may sue and be sued, and when sued, must make defence, or her husband, -who must be served with the summons served upon her, (The Code, \\u00a71824,) may, by leave of the Court, with her consent, defend the action in her behalf. If she and he fail to make defence, the Court may give judgment, and it will be effectual and conclusive, although erroneous, until it shall be modified or reversed in the regular course/.of procedure- In every such case, it must be assumed tliat the cause of action sued upon, and the facts appearing, were such as warranted the judgment, in the absence of any defence made at the proper time and in the proper manner. If the feme covert could avail herself of the defence of coverture, she ought to have made it in apt time. As she did not, it must be taken that she could not, or that she did not desire or intend to avail herself of it. This was decided in Vick v. Pope, 81 N. C., 22.\\nIn that case, the plaintiff took judgment by default against the husband and wife, simply filing the note sued upon,, without a complaint, the defendants having been served with process, but failing to appear and make defence. In the opinion of the Court, the Chief Justice said : \\\" The judgment conclusively establishes the obligation, and such facts must be assumed to exist as warranted its rendition, inasmuch as neither coverture nor any other defence was set up in opposition, to defeat it. As then, a married woman may sue, and with her husband be sued on contracts, they and each of them must, at the proper time, resist the recovery as the defendants, and their failure to do so, must be attended with the same consequences.\\\"\\nThis Court did not decide in that case, that the note executed by the wife was or was not void. It only decided that as she failed to make defence, it must be conclusively taken that the cause of action was such a one as warranted the judgment. And so it must be taken in this case, until the judgment shall be set'aside, because of irregularity, or other good cause made to appear in some proper way allowed by law, if this can be done.\\nThe counsel for the plaintiff relied upon and laid great stress upon Dougherty v. Sprinkle, 88 N. C., 300. In that case, the plaintiff sued a married woman bef\\u00f3te a justice of the peace, \\\" upon a promise to pay for work done upon premises owned and held as her separate property\\\"; and this Court held that the court of the justice of the peace did not have- jurisdiction, as the promise sued upon was void because of her coverture ; that in such case, the remedy of the plaintiff was in a court of equity, if he had any, and the justice of the peace did not have such jurisdiction. The action was dismissed. But the defendant, the feme covert, made defence, pleaded her coverture, and from an adverse judgment appealed, first to the Superior Court, and from a like judgment there, to this Court.\\nIt may be, that if the' plaintiff in this case had made defence, pleaded her coverture, and had appealed from the adverse judgment given against her, she would have been successful; but she did not make defence at all, and as there was judgment against her according to the course of the Court, it must be treated as conclusive that the cause of \\u2022action, and the facts, were such as warranted the judgment given. The purpose of this action is plainly to obtain equitable relief against an alleged erroneous judgment at law. It is clear that equity will not grant such relief. A court of equity will never set aside or enjoin the enforcement of a judgment at law, on the ground of error or a mistake in granting it. Error or irregularity must be corrected in the way pointed out above. It would be otherwise if fraud were alleged and made the ground of application for the relief sought. Grantham v. Kennedy, supra, and the authorities there cited.\\nThere is error. The Court ought not to have granted the injunction. To the end the order appealed from may be reversed, and further steps taken in the action according to law, let this opinion be certified to the Superior Court. It is .-so ordered.\\nError. Reversed.\"}"

nc/11275094.json

@@ -0,0 +1 @@
+"{\"id\": \"11275094\", \"name\": \"STATE v. F. H. WATSON\", \"name_abbreviation\": \"State v. Watson\", \"decision_date\": \"1882-02\", \"docket_number\": \"\", \"first_page\": \"626\", \"last_page\": \"628\", \"citations\": \"86 N.C. 626\", \"volume\": \"86\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:39:27.936693+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. F. H. WATSON.\", \"head_matter\": \"STATE v. F. H. WATSON.\\nRemoval of Division Fence, not indictable.\\nThe removal of a fence dividing the fields of the defendant and the prosecutor, is not indictable under the statue (Bat.'Rev., ch. 32, \\u00a7 93,) where the fence is altogether on the land of the defendant.\\n(State v. Mason, 13 Ired., 341; State v. Williams, Busb., 197, cited and approved.)\\nIndictment for a misdemeanor tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.\\nThe defendant was indicted for removing a fence contrary to the statute. Bat. Rev., ch. 32, \\u00a7 93. The jury returned a special verdict as follows: On the 27th of March, 1881, the defendant without the consent of the prosecutor moved a certain fence, dividing the cultivated field of the prosecutor from the field of the defendant and his brother. The said fence was established four years ago by the prosecutor and one Montague (who has since conveyed his land to the defendant and his said brother) as a division fence between them, but was located altogether on the land of said Montague, since conveyed as aforesaid to the defendant and his brother; and that only two months and nine days\\u2019 notice was given to the prosecutor of the defendant\\u2019s purpose to move the fence. If upon the foregoing facts, the court shall be of opinion that the defendant is guilty, then the jury find him guilty; and if otherwise, they find him not guilty. The judge being of opinion in favor of the defend-\\u2019 ant, gave judgment accordingly, and the solicitor for the state appealed.\\nAttorney General, for the State.\\nMessrs. A. M. Lewis & Son, for defendant.\", \"word_count\": \"478\", \"char_count\": \"2705\", \"text\": \"Ruffin, J.\\nIt being ascertained by the verdict that the fence, the removal of which gives rise to this prosecution, was altogether upon the defendant's land, the case falls within the decisions made in State v. Mason, 13 Ired., 341, and State v. Williams, Busb., 197. In both of those cases, the indictment proceeded under this same statute, and the construction given to it by the court, is, that it was not intended to embrace a case of destruction of property by the owner thereof; but that to bring a case within it, the party accused must be shown to have been guilty of an actual trespass upon the property of another. We cannot see that the case is at all varied by the fact, that the fence was intended to be a dividing one between the fields of the defendant and the prosecutor. As found by the jury, it was built upon the land which subsequently became the property of the defendant, and was in his actual possession; and while he may have violated another statute (Bat. Rev., eh. 48, \\u00a7 9, 10,) so as to' render him civilly liable, he cannot be proceeded against under an indictment.\\nNo error. Affirmed.\"}"

nc/11275338.json

@@ -0,0 +1 @@
+"{\"id\": \"11275338\", \"name\": \"JOSIAH B. COX v. PATRICK MURPHEY\", \"name_abbreviation\": \"Cox v. Murphey\", \"decision_date\": \"1837-06\", \"docket_number\": \"\", \"first_page\": \"257\", \"last_page\": \"259\", \"citations\": \"2 Dev. & Bat. 257\", \"volume\": \"19\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:59:46.356009+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSIAH B. COX v. PATRICK MURPHEY.\", \"head_matter\": \"JOSIAH B. COX v. PATRICK MURPHEY.\\nArticles made in contemplation of marriage, whereby the intended: husband- \\u201c sells and assigns\\u201d to a trustee all the right in slaves belonging to the intended wife, \\u201c which he by operation of law may thereafter have,\\u201d do. not pass a title in the slaves to the trustee, but are merely executory, and. binding the husband after marriage, to make the necessary assurances to carry them into effect,\\nDetinue for sundry slaves, in whieh a case agreed, containing the following fauts, was, on the last Circuit, at Sampson, submitted to his Honor Judge Settee. The slaves demanded by the plaintiff, were the property of Susan B. Cox, who, prior to her marriage with Abner Branson, executed articles by which the intended husband- and the plaintiff, as- trustee, joined. The articles, after reciting the intended marriage, and the fact of the intended wife\\u2019s being possessed of the slaves in\\u00a1 dispute* and the intention to settle them upon her, proceeded as follows: \\u201c that, for and in consideration of the premises, and for and in consideration of the sum of, &c., to the said Abner Branson, by the said Josiah B. Cox in hand paid, the receipt whereof is hereby acknowledged, I, the sa^ Abner Branson, do hereby sell, assign, and deliver, alien, and confirm, and have by these presents, sold, assigned, &c., to the said Josiah B. Cox, all the right, title, estate, interest and benefit, which I may by operation of law acquire, derive, or receive, either in law or equity, in and to the said slaves. To have and to hold, &c. And the said Abner Branson doth promise, covenant, and agree, to, and with the said Josiah B. Cox, that he will, upon the solemnization of the said marriage, or at any time thereafter when requested by the said Josiah or Susan, make, execute, and deliver, all and every necessary title, deed, or conveyance, advised or directed by counsel learned in. the law, more completely to secure the intention of this indenturewhich is entirely to divest himself of all right, title, and estate, in and to the above-mentioned land and slaves, so that he nor his creditors shall have no right to sell or control the same. It is further agreed and understood, by and between the said parties, that the said Josiah may receive, hold, and keep in his possession, the aforesaid slaves, hiring out the same, and paying over the proceeds to the said Susan-; or suffer the same to remain in the use and occupancy of the said Abner, he paying therefor by way of hire, one dollar, on the first day; of January in each and every year, if demanded,\\u201d\\n' The marriage took place, and the slaves went into the-possession of the husband,' Abner Branson, and continued in his possession until his death, which took place within a few weeks thereafter ; .when they went into the possession of the plaintiff, the trustee; where they continued until the second marriage of his cestui que trust, Susan, with one Isaac W. Grice; when they passed into his (Griee\\u2019s) possession, until his death, which also took place in a few weeks after the marriage. The defendant administered upon the estate of Isaac ,W. Grice, the second: husband, and under the letters to him, claimed to retain the possession of his intestate.\\nHis Honor, the presiding judge, gave judgment pr\\u00ae forma for the defendant; and the plaintiff appealed.\\nBadger, for the plaintiff.\\nStrange and W. H. Haywood, for the defendant.\", \"word_count\": \"736\", \"char_count\": \"4349\", \"text\": \"Gaston, Judge.\\nThe decision of this case depends entirely on the question, whether the instrument executed by Abner Branson and Susan B. Cox, immediately before their marriage, transferred the property in the slaves therein mentioned, to the plaintiff, the trustee. The Court is of opinion, that in law, the instrument could not have this operation. The parties thereto must be intended, indeed, to have deliberately assented to all therein declared; but the question presents itself, what is thereby declared ? Abner Branson does not profess to sell or transfer the slaves to the trustee, but only to sell and assign the right, which by operation of law he may thereafter acquire in them. This was not the subject of sale or assignment. The instrument can be construed as executory only, and binding Branson, after marriage, to make the assurance or assurances necess\\u00e1ry to carry his covenant into effect.\\nPer Curiam. Judgment affirmed.\"}"

nc/11276057.json

@@ -0,0 +1 @@
+"{\"id\": \"11276057\", \"name\": \"John Hicks v. William H. Gilliam\", \"name_abbreviation\": \"Hicks v. Gilliam\", \"decision_date\": \"1833-12\", \"docket_number\": \"\", \"first_page\": \"217\", \"last_page\": \"220\", \"citations\": \"4 Dev. 217\", \"volume\": \"15\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:39:58.006518+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Hicks v. William H. Gilliam.\", \"head_matter\": \"John Hicks v. William H. Gilliam.\\nIll an action in against two wlio join their pleas and against whom after a joint trial, a joint judgment is rendered, an appeal cannot be allowed at the instance of one defendant only \\u2014 and if allowed by the County Court the Superior Court acquires no jurisdiction to try the cause, but is bound on the motion of the appellee to dismiss the appeal and award a procedendo\\u00ab The case of Sharp v. Jones and Winbourne, (3 MCurph 306,) distinguish^ ed from this case.\\nCosts in the Supreme Court are in the discretion of the court. The appellant is not entitled to recover them as of right, upon a reversal of the judgment below \\u2014 but may be adjudged even to pay them under circumstances.\\nThe plaintiff brought a suit by warrant against Gilliam and one Gays. In the County Court they joined in their pleas, and upon the trial, a verdict was found for the plaintiff against them both and a joint judgment rendered thereupon, from which Gilliam alone prayed and was allowed an appeal to the Superior Court. In that court the plaintiff\\u2019s counsel moved to dismiss the appeal, but the presiding Judge, (Martin,) overruled the motion and proceeded to try the cause, and the plaintiff obtained a verdict and judgment, from which the defendant appealed to this court. Several points arising on the trial in the court below were presented, by the case, butthe question on which the cause was here decided,renders any statement of them unnecessary,\\nNo counsel appeared for either party.\", \"word_count\": \"1189\", \"char_count\": \"6629\", \"text\": \"D anieIi, Judge.\\nThere are several questions or points of law submitted for our determination ; but I do not deem it necessary to decide but one of the\\u00ae, \\u2014 Can one de-, fondant appeal from a judgment which has been jointly rendered against the two ? I am of the opinion he cannot. The case of Sharp v. Jones and Winbourne, (3 Mnrph. 306,) is not a ease in point for the defendant. \\u2014 In that case, the defendants severed in their pleas, and there were several judgments; one in favor of Jones the executor, that he go without day; the other against WinborneEov the debt ascertained by the verdict. It was determined, that Winborne might appeal, because the judgment against him was single and not joint against him and Jones. .It is a well settled rule that when a judgment is jointly rendered against two, they must both join in a writ of error, otherwise the court will quash it. (2 Term 736. 3 Bur. 1789. 1 Wilson 88. Archb. P. K. B. 232.) If after error brought by one of several plaintiffs or defendants, in the names of all, the others refused to come in and join with him in the assignment of errors, they who refuse must be summoned and severed, aftei which lie may proceed in the writ of error alone, (Cro. Eliz. 891, Cro. Jac. 94. 1 Archb. B. K. B. 232,) and the court will give him time to assign errors, until the others can bo summoned and severed; (a Stra. 783,) nor can he that is summoned and severed release the errors. (Archb. 256.) But if in trespass against three there be judgment against two of them by default, and the third justifies, and it is found for him, the two against whom judgment was given, can alone join in a writ of error, for the other cannot say that the judgment was to his prejudice (1 Archb. 233 ;) and the same if two had been found guilty by verdict, and the other acquitted. (Cowp. 425.) We sec that one defendant or plaintiff may bring a writ of error in the name of the whole, but lie cannot assign error without an authority from the whole, or by obtaining an order of summons and severance. The judgment in the mean time stands good aud remains good, until a judgment of reversal on the hearing of the cause, on the writ of error. But in the case of an appeal under our acts of assembly, passed in 1777, c. 2 the granting of the appeal after bond given, vacates the judgment, .and a trial de novo upon the law and the facts, takes- place in the Superior Court. Therefore, if one defendant or plaintififis permitted to appeal without the consent of the others, it would vacate the judgment which might be most prejudicial to the others. The act of 1777 declares that \\\"when any person or persons, either plaintiff or defendant,\\\" are dissatisfied with any judgment, sentence or decree of a County Court, they may appeal to the Superior Court. The construction which I put on these words in the act is, that when there is but one \\\"person,\\\" cither plaintiff or defendant, and he is dissatisfied with the judgment, he shall have the right of appeal: and where there are several persons, who have joined or been joined as plaintiffs or defendants, and they are dissatisfied with the judgment, they may appeal.\\u2014 But I do not collect from the- wording of the act, that the Legislature intended that any one of those several persons composing the plaintiff or defendant in a cause,, might appeal at his solitary discretion. Generally when an appeal is taken, it is presumed to bo an appeal as to all the parties. In- this case, it is expressly stated that Gilliam alone appealed and that Hays did not. We think the judgment of the Superior Court is erroneous, that it should be reversed, and the appeal which was taken from the County Court should be dismissed with costs \\u2014 and' it is directed that a procedendo issue from the Superior Court to the Court of Pleas and Quarter sessions of Granville county, to proceed on the judgment in that court.\\nPer Curiam. \\u2014 This cause came on to be argued upon the transcript of the record from the Superior Court of law of Granville county, upon consideration whereof, this court is of opinion that there is error in the record and proceedings of' the said Superior Court in this, to wit: that the said Superior Court ought not to have taken cognizance of the appeal brought up to that court from the Court of Pleas & Quarter Sessions of the said county, the said appeal having been improvident-]y allowed-: Therefore, it is considered and adjudged by the court here, that the judgment of the said Superior Court be and the same is hereby reversed, j and tliis court proceeding to decide what judgment shall be entered in the said Superior Court, doth order, that the said court dismiss the said appeal with costs, and award a proceiiendo to the said Court of Pleas & Quarter Sessions, and that this judgment, and the opinion of this court as delivered by the Hon. Joseph John Danube, one of the judges thereof, be certified to the said Superior Court accordingly. And it is considered by the court here, that the plaintiff recover of the defendant \\u00e1nd Ira C. Jlrnold and Wyatt Cannady, the costs in this court incurred, to be taxed by the clerk.\"}"

nc/11359822.json

@@ -0,0 +1 @@
+"{\"id\": \"11359822\", \"name\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\", \"name_abbreviation\": \"State v. Miller\", \"decision_date\": \"2001-10-16\", \"docket_number\": \"No. COA00-1003\", \"first_page\": \"494\", \"last_page\": \"505\", \"citations\": \"146 N.C. App. 494\", \"volume\": \"146\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:07:04.391259+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges WYNN and HUNTER concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\\nNo. COA00-1003\\n(Filed 16 October 2001)\\n1. Constitutional Law\\u2014 right to be present at all stages\\u2014 exclusion from courtroom during jury selection\\nThe trial court did not violate defendant\\u2019s constitutional right to be present at all stages of his trial in a second-degree kidnapping, common law robbery, and felonious escape from jail case by excluding defendant from the courtroom during jury selection, because: (1) defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior, including refusing to sit down and refusing to participate when he was given the opportunity to be present during opening statements; (2) although the trial court failed to comply with N.C.G.S. \\u00a7 15A-1032(b)(2) requiring it to instruct the jurors that defendant\\u2019s removal is not to be considered in weighing evidence or determining the issue of guilt, defendant has not shown any reasonable probability that a different result would have been reached had the instruction been given; (3) defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence; (4) defendant was present during the admission of all the evidence and confronted all of the witnesses; and (5) neither defendant nor his attorney ever objected to the trial court\\u2019s removing defendant prior to jury selection and before the presentation of opening statements, and defendant failed to argue plain error. N.C. Const, art. I, \\u00a7 23; N.C.G.S. \\u00a7 15A-1032(a).\\n2. Appeal and Error\\u2014 preservation of issues \\u2014 failure to object \\u2014 failure to assert plain error\\nThe trial court did not err in a second-degree kidnapping, common law robbery, and felonious escape from jail case by failing to inform the jury that defendant\\u2019s absence from the courtroom was not to be considered in weighing the evidence or deciding his guilt, because: (1) defendant never objected to the omission of any such instructions; and (2) defendant failed to preserve the issue for plain error review as required by N.C. R. App. P. 10(c)(4).\\n3. Escape\\u2014 felonious escape from jail \\u2014 motion to dismiss\\u2014 sufficiency of evidence\\nThe trial court erred by denying defendant\\u2019s motion to dismiss the charge of felonious escape from jail, because: (1) the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on the date of defendant\\u2019s escape; and (2) the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape, but merely that he was serving an active sentence which supports a finding of the lesser included offense of misdemeanor escape under N.C.G.S. \\u00a7 14845(a).\\n4. Kidnapping\\u2014 second-degree \\u2014 motion to dismiss \\u2014 sufficiency of evidence\\nThe trial court erred by denying defendant\\u2019s motion to dismiss the charge of second-degree kidnapping under N.C.G.S. \\u00a7 14-39 based on defendant\\u2019s unlawfully confining and restraining a jailer for the purpose of facilitation of the commission of felony escape from jail, because the State failed to present substantial evidence that defendant was serving a sentence for a felony, which means defendant could not be guilty of committing felonious escape.\\nAppeal by defendant from judgment entered 1 March 2000 by Judge Russell G. Walker, Jr. in Montgomery County Superior Court. Heard in the Court of Appeals 15 August 2001.\\nAttorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.\\nRussell J. Hollers III, for defendant-appellant.\", \"word_count\": \"4340\", \"char_count\": \"25811\", \"text\": \"TYSON, Judge.\\nTony Douglas Miller (\\\"defendant\\\") appeals the entry of judgment upon a jury verdict finding him guilty of two counts of common law robbery, one count of second-degree kidnapping, and one count of felonious escape from jail. We hold there was no error as to the entry of judgment on two counts of common law robbery. We vacate as to the entry of judgment on felonious escape and second-degree kidnapping, and remand for sentencing on misdemeanor escape and false imprisonment.\\nI. Facts\\nEvidence presented at trial tended to establish that on 15 September 1998, defendant was an inmate of the Montgomery County Jail. Jailers Carolyn Britt (\\\"Britt\\\") and Donna Williamson (\\\"Williamson\\\") were making their rounds for purposes of \\\"locking down\\\" the jail at approximately 11:00 p.m. Williamson went to cell number three to collect some used bottles. She unlocked the cell and reached in to collect the bottles. Williamson testified that as she did so, an inmate of cell number three grabbed her by the arm and restrained her.\\nBritt testified that she heard Williamson scream, and saw defendant walk out of cell number three and come towards her. Britt also testified that she attempted to close the main door, but that defendant \\\"stepped between [her] and the double door.\\\" She further testified defendant \\\"was right on me, and so he took my left wrist and put it up behind my back. He . . . told me if I would do as he said he would not hurt me.\\\" Defendant then instructed Britt to open some of the cell gates, which she did. Defendant asked Britt for the keys to the \\\"booking room\\\". She responded that she did not have those keys and did not know where the keys were. Defendant then took Britt to the booking room and again asked for the keys. Britt again responded that she did not have the keys.\\nBritt testified that defendant then \\\"took [her] all the way back inside the west walk area\\\" where Williamson was sitting on the floor. Defendant asked Williamson for the keys to the booking room. Williamson responded that the other inmates had taken the keys. Defendant took Britt back in the direction of the \\\"visiting room\\\" and instructed her not to move. Defendant left Britt momentarily and returned with some keys. Britt testified that defendant took her back to the booking room and told her to unlock the door with the keys. Britt told defendant that those were not the keys to the booking room. Defendant transported Britt back to the visiting room where he took her police radio. When defendant left again, Britt locked herself in the Chief Jailer's office and called for help. When help arrived at approximately 11:45 p.m., defendant and three other inmates were gone.\\nDefendant was tried at the 28 February 2000 criminal session of the Montgomery County Superior Court on indictments of kidnapping, common law robbery, felonious escape, and larceny. Defendant moved to dismiss all charges at the close of the State's evidence and again at the close of all evidence. The trial court granted defendant's motion on the charge of larceny, at the close of all evidence. The jury returned guilty verdicts on one count of second-degree kidnapping, two counts of common law robbery, and one count of felonious escape from jail. The trial court sentenced defendant to an active term of imprisonment of a minimum of 77 months and a maximum of 103 months. Defendant appeals.\\nII. Issues\\nThe issues on appeal are: (1) whether the trial court violated defendant's constitutional right to be present at all stages of his trial; (2) whether the trial court erred in denying defendant's motions to dismiss the charges of felonious escape and second-degree kidnap ping; and; (3) whether the trial court's jury instruction on felonious escape amounted to plain error.\\nA. Defendant's absence from iurv selection\\n1. Failure to object to absence and waiver\\nDefendant argues that he is entitled to a new trial based on the trial court's violation of his constitutional right to be present for all stages of the trial. Specifically, defendant contends that the trial court erred in excluding him from the courtroom during jury selection. Defendant was present in the courtroom when the case was called to trial and while the trial judge explained the process of jury selection. With the jury venire present, defendant stood up and engaged the trial judge in the following exchange:\\nMr. Miller: Honorable Judge?\\nThe Court: Have a seat please, Mr. Miller.\\nMr. Miller: I was told you told me not to come in here with my colors on, sir.\\nThe Court: I let you come in here with the hat. Sit down.\\nMr. Miller: But sir\\u2014\\nThe Court: Sit down.\\nMr. Miller: I have a problem with that.\\nThe Court: Sheriff, take him out of here please . He's waived his right to be present.\\nFollowing jury selection, and outside the presence of the jurors, the trial court made the following statement for the record:\\n[P]lease let the record reflect that before we began court this afternoon that [defense counsel] requested of the Court on behalf of [defendant's] mother and grandmother that they be allowed to speak with him in private in an effort to see if they could have some effect on his willingness to sit in the courtroom and be quiet, and that we did afford them that opportunity . I am going to now bring him back in the absence of the jury and see if he is willing to sit and participate in this trial in a civilized and respectful fashion.\\nWith the jury absent, defendant returned to the courtroom, and the trial court stated that defendant would have \\\"the chance to say what ever it is [he] wants to say with the jury out of the room.\\\" Defendant then requested that his attorney be dismissed. After an exchange regarding defendant's legal representation, the trial court asked defendant the following:\\nThe Court: . . . Do you wish to sit here and participate in your trial in defense?\\nMr. Miller: Participate?\\nThe Court: Sit there and be quiet?\\nMr. Miller: I will not disrespect my family.\\nThe Court: So you're choosing not to be here for your trial, is that correct?\\nMr. Miller: I will not disrespect my mother and grandmother for injustice.\\nThe Court: Let the record reflect that Mr. Miller chooses not to be present for his trial, and we will proceed in his absence.\\nDefendant was escorted from the courtroom and the jury was impaneled. The trial court made the following statement to the jury:\\nNow, ladies and gentlemen, first of all let me explain to you that the circumstances of this case are obviously a little different than you might have anticipated anywhere outside of a television portrayal of a trial. While you were out Mr. Miller came back in the courtroom, and we had a discussion as to whether he wished to be in the courtroom for the rest of his trial, and if so, whether he would commit to me that he would sit and participate in his defense in a respectful and quiet manner. He has chosen not to be present for the rest of his trial, and we're going to go ahead and let the State present their evidence to you and then let the defense present evidence, if they choose to do so.\\nThe trial proceeded with opening statements. Prior to the examination of witnesses, defendant expressed that he wished to return to the courtroom and would sit quietly, which was reported to the trial court in open court. The trial court then allowed defendant to re-join the trial. Defendant remained in the courtroom throughout the balance of the trial.\\nThe Confrontation Clause in Article I, Section 23 of the North Carolina Constitution \\\" 'guarantees an accused the right to be present in person at every stage of his trial.' \\\" State v. Daniels, 337 N.C. 243, 256, 446 S.E.2d 298, 307 (1994), cert. denied, Daniels v. North Carolina, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995) (quoting State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987)). \\\"However, in felonies less than capital, it is well established that a defendant may personally waive his right to be present.\\\" State v. Stockton, 13 N.C. App. 287, 291, 185 S.E.2d 459, 462-63 (1971) (citing State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966)); see also Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950) (citing Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500 (1912)). Such a right is \\\"a purely personal right\\\" that can be waived \\\"expressly or by [the] failure to assert it.\\\" State v. Braswell, 312 N.C. 553, 559, 324 S.E.2d 241, 246 (1985).\\n\\\"A trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner.\\\" N.C. Gen. Stat. Sec. 15A-1032(a) (1999). Defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior. Defendant continued to disrupt the trial by refusing to sit down. Defendant was given the opportunity to be present during opening statements and again refused to participate. See State v. Callahan, 93 N.C. App. 579, 378 S.E.2d 812 (1989) (no error when defendant was removed after becoming disruptive upon denial of his motion and again when the jury venire returned for jury selection); State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000) (no error when defendant was removed after making two outbursts during the presentation of evidence regarding the charge of habitual felon); State v. Thomas, 134 N.C. App. 560, 518 S.E.2d 222 (1999) (no error when defendant was removed from the courtroom after disrupting the trial court while attempting to rule and enter an observation on the record).\\nThe State acknowledges that the trial court failed to comply with the requirements of N.C. Gen. Stat. Sec. 15A-1032(b)(2) which provides: \\\"if the judge orders a defendant removed from the courtroom he must... (2) [i]nstruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.\\\" This Court has held that such an omission is error. Smith, 139 N.C. App. at 217, 533 S.E.2d at 522. This Court went on to say that not every error warrants a new trial. Id. (citing State v. Ginyard, 334 N.C. 155, 431 S.E.2d 11 (1993)). \\\"An error is considered harmful when there is a reasonable probability that without the error a different result would have occurred. Id. (citing N.C. Gen. Stat. Sec. 15A-1443(a)).\\nDefendant has not shown any reasonable probability that a different result would have been reached had the instruction been given. Defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence. Defendant was present during the admission of all the evidence and confronted all of the witnesses.\\nDefendant concedes that neither defendant nor his attorney ever objected to the trial court's removing defendant prior to jury selection or following jury selection and before the presentation of opening statements. When defendant was excused prior to jury selection, his attorney continued on with the selection without making any objection to defendant's absence or the trial court's finding that defendant waived his right to be present. The failure to object at trial to the alleged denial of such a right constitutes waiver of the right to argue the denial on appeal. See State v. Watson, 338 N.C. 168, 191, 449 S.E.2d 694, 708 (1994), cert. denied, Watson v. North Carolina, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995) (\\\"In the instant case defendant, having failed to object at trial [based on his constitutional right to be present at all stages of the trial], waived his right and cannot assign as error the trial court's denial of the right.\\\"); State v. Almond, 112 N.C. App. 137, 149, 435 S.E.2d 91, 98 (1993) (defendant abandoned argument that his right to be present at all stages of trial was violated where record reveals that defendant raised objection for the first time on appeal).\\nWhen a party fails to timely object at trial, he has the burden of establishing his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error. State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986); State v. Reaves, 142 N.C. App. 629, 630, 544 S.E.2d 253, 255 (2001). A defendant must \\\"specifically and distinctly\\\" contend on appeal that the omission amounted to plain error. N.C. R. App. P. 10(c)(4).\\nDefendant here has failed to argue that the trial court's finding that defendant waived his right to be present during jury selection amounted to plain error, or is otherwise preserved for our review. In short, defendant \\\"did not object at trial or allege plain error,\\\" State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996), and thus \\\"has failed to properly preserve this issue for appeal.\\\" Id.; see also, e.g., State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001) (assignment of error overruled where defendant \\\"failed to assert plain error on appeal.\\\"); State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998) (defendant waives plain error review where defendant does not assert plain error); State v. McGraw, 137 N.C. App. 726, 728, 529 S.E.2d 493, 496, (\\\"In failing to assert plain error, defendant has waived review by this Court.\\\"), disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).\\nThe right to be present at all critical stages of a trial is subject to a harmless error analysis. Braswell, 312 N.C. at 560, 324 S.E.2d at 247 (citation omitted); State v. Buckner, 342 N.C. 198, 227-28, 464 S.E.2d 414, 431 (1995), cert. denied, Buckner v. North Carolina, 519 U.S. 828, 136 L. Ed. 2d 47 (1996)). \\\" '[T]he burden is on the defendant to show the usefulness of his presence in order to prove a violation of his right to presence.' \\\" State v. Neal, 346 N.C. 608, 616, 487 S.E.2d 734, 739 (1997), cert. denied, Neal v. North Carolina, 522 U.S. 1125, 140 L. Ed. 2d 131 (1998) (quoting State v. Buchanan, 330 N.C. 202, 224, 410 S.E.2d 832, 845 (1991)). Defendant here has failed to show \\\"the usefulness of his presence\\\" during jury selection; especially in light of his subsequent statements evincing an intent not to sit quietly in the courtroom and allow the trial to proceed, and being present during the testimony of witnesses, presentation of all the evidence, return of the verdict, and entry of judgment.\\n2. Failure to object to iurv instructions\\nDefendant further argues that the trial court erred in failing to inform the jury that defendant's absence from the courtroom \\\"was not to be considered in weighing the evidence or deciding his guilt\\\" and that the trial court did not include any such instruction in the jury charge. However, defendant never objected to the omission of any such instruction.\\n\\\"According to our rules of appellate procedure, a defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\\\" State v. Farmer, 138 N.C. App. 127, 132, 530 S.E.2d 584, 588, disc. review denied, 352 N.C. 358, 544 S.E.2d 550 (2000) (citing N.C. R. App. P. 10(b)(2)) (despite request for particular instruction, argument not preserved where defendant did not object at trial to omission of instruction). Again, defendant failed to preserve the issue for plain error review by \\\"specifically and distinctly\\\" contending that the omission amounted to plain error as required by N.C. R. App. P. 10(c)(4). Defendant has abandoned this argument. See State v. Turner, 11 N.C. App. 670, 673-74, 182 S.E.2d 244, 246 (1971) (where defense counsel failed to request that trial court instruct jury on defendant's waiver of right to be present and that his absence should not be considered with regard to guilt or innocence, trial court's failure to so instruct not error). These assignments of error are overruled.\\nB. Motions to dismiss\\n1. Felonious escape\\nDefendant first argues that the trial court should have granted his motion to dismiss the charge of felonious escape. Defendant contends that the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on 15 September 1995, the date of defendant's escape. We agree.\\n\\\"The elements of felonious escape thus are (1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody.\\\" State v. Malone, 73 N.C. App. 323, 324, 326 S.E.2d 302, 302-03 (1985) (citation omitted). \\\"To prove the second of the foregoing elements, the State must offer evidence of the felony conviction or plea for which defendant was in lawful custody when he escaped.\\\" Id. at 324, 326 S.E.2d at 303. Evidence such as a properly certified copy of the commitment is competent to show the lawfulness of the custody and the type of offense for which the defendant was committed. State v. Ledford, 9 N.C. App. 245, 247, 175 S.E.2d 605, 606 (1970).\\n\\\"Before a defendant can be convicted of this offense, the state must prove beyond a reasonable doubt that at the time of his escape defendant was serving a sentence of incarceration imposed for the conviction of a felony.\\\" State v. Hammond, 307 N.C. 662, 665, 300 S.E.2d 361, 363 (1983) (citation omitted); State v. Parrish, 73 N.C. App. 662, 667, 327 S.E.2d 613, 617 (1985) (citing Hammond, 307 N.C. 662, 300 S.E.2d 361) (\\\"When a defendant is charged with felonious escape from the state prison system under G.S. \\u00a7 148-45, the State has the burden of proving that defendant was . . . serving a sentence imposed upon conviction of a felony.\\\").\\nIn the present case, the State failed to present any evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape. The State argues that this fact was stipulated to by defendant. However, the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape. Defense counsel clearly stated that \\\"defendant will stipulate that on the date in ques tion he was serving an active sentence . . . [i]n the Department of Corrections.\\\" Defendant never stipulated that he was serving an active sentence upon conviction of a felony, and the State neither introduced testimony nor exhibits, such as a certified copy of defendant's commitment, to prove that defendant was serving a sentence upon conviction of a felony.\\nViewed in the light most favorable to the State, the evidence fails to establish the necessary element of felonious escape that defendant was serving a sentence for the commission of a felony. The evidence does prove that defendant was serving an active sentence, which supports a finding that defendant is guilty of the lesser included offense of misdemeanor escape under N.C. Gen. Stat. 148-45(a).\\n2. Second-degree kidnanning\\nDefendant further assigns error to the trial court's denial of his motions to dismiss the charge of second-degree kidnapping, arguing that the evidence was insufficient to support each element of the crime. In order to establish the commission of second-degree kidnapping, \\\"the State bears the burden of proving that the defendant 'unlawfully confined, restrained, or removed the [victim] for one of the eight purposes set out in the statute.' \\\" State v. Guice, 141 N.C. App. 177, 181, 541 S.E.2d 474, 477-78 (2000), stay allowed, 353 N.C. 388, 546 S.E.2d 610 (2001) (quoting State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)). \\\" 'The indictment in a kidnaping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment.' \\\" Id. at 181, 451 S.E.2d at 478 (quoting Moore, 315 N.C. at 743, 340 S.E.2d at 404).\\nIn the present case, defendant's indictment for second-degree kidnapping alleged that defendant unlawfully confined and restrained Britt \\\"for the purpose of facilitation of the commission of a felony . . . felony escape from jail.\\\" See N.C. Gen. Stat. \\u00a7 14-39 (unlawful confinement or restraint amounts to second-degree kidnapping where done for the purpose of \\\"[facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.\\\").\\nThe State was required to present substantial evidence that defendant kidnapped Britt for the purpose of committing the crime of felonious escape. We have already held that the State failed to present substantial evidence that defendant was serving a sentence for a felony, and thus could not be guilty of committing felonious escape. However, the jury's verdict of guilty of second-degree kidnapping contains all the elements of the lesser included offense of false imprisonment: (1) intentionally and unlawfully, (2) restrains or detains a person, (3) without the person's consent. State v. Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 127 (1993).\\nC. Jury instruction on felonious escape\\nWe need not address defendant's remaining argument that the trial court erred in instructing the jury on felonious escape in light of our holding that the State failed to present evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape.\\nWe, however, note that the trial court's instruction, which required a guilty verdict upon the findings that defendant (a) was lawfully confined in the Montgomery County Jail, and (b) escaped, erroneously failed to distinguish between felonious escape and misdemeanor escape and to clearly require the finding that defendant was serving a sentence for the commission of a felony. See Ledford at 247-48, 175 S.E.2d at 607.\\nWe hold that the evidence was insufficient to support the verdicts of felonious escape (98CRS004137) and second-degree kidnapping (98CRS004138) and vacate defendant's convictions as to these charges. We hold there was no error in the remainder of the verdict and judgment as to the two counts of common law robbery (98CRS004135 and 98CRS004136). We remand to the trial court for imposition of judgment on the lesser included offenses of misdemeanor escape and false imprisonment and for resentencing.\\nNo error in part, vacated and remanded in part.\\nJudges WYNN and HUNTER concur.\"}"

nc/11436644.json

@@ -0,0 +1 @@
+"{\"id\": \"11436644\", \"name\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\", \"name_abbreviation\": \"In re Appeal of Winston-Salem Joint Venture\", \"decision_date\": \"2001-07-17\", \"docket_number\": \"No. COA00-912\", \"first_page\": \"706\", \"last_page\": \"716\", \"citations\": \"144 N.C. App. 706\", \"volume\": \"144\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:32:04.272340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges MARTIN and HUDSON concur.\", \"parties\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\", \"head_matter\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\\nNo. COA00-912\\n(Filed 17 July 2001)\\n1. Taxation\\u2014 ad valorem \\u2014 shopping mall \\u2014 valuation method \\u2014 income approach\\nThe Property Tax Commission appropriately used the income approach rather than the cost approach in valuing Hanes Mall for ad valorem taxes. Although the taxpayer cites In re Appeal of Belk-Broome Co., 119 N.C. App. 470 and argues that the outcome of the assessment should be limited by the cost method, that case states that the cost approach may not effectively reflect market conditions and leaves room for the fair market value to differ from the cost approach value. To hold otherwise would place improper restrictions on determining the fair market value.\\n2. Taxation\\u2014 ad valorem \\u2014 shopping mall \\u2014 valuation method \\u2014 equal protection\\nThere was no equal protection violation in an ad valorem tax assessor\\u2019s use of the income approach when appraising Hanes Mall even though all other commercial properties were appraised under the cost approach because there was evidence that Hanes Mall was the only super regional mall in the county and that it was unlike any other property in the county. The taxpayer did not show that it was discriminated against by being excluded from the same class as strip malls and the like because it did not show that it was entitled to be considered in that class.\\nAppeal by taxpayer from a final decision entered 20 March 2000 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 30 May 2001.\\nMaupin Taylor & Ellis, P.A., by Charles B. Neely, Jr. and Nancy S. Rendleman; Fisk, Kart & Katz, by James P. Regan, for taxpayer-appellant.\\nBell, Davis & Pitt, P.A., by John A. Cocklereece, Jr., Stephen M. Russell and Kevin G. Williams, for appellee-Forsyth County.\", \"word_count\": \"3656\", \"char_count\": \"22889\", \"text\": \"HUNTER, Judge.\\nTaxpayer-appellant Winston-Salem Joint Venture (herein \\\"Taxpayer\\\") appeals the final decision of the North Carolina Property Tax Commission (\\\"the Commission\\\") modifying the Forsyth County Board of Equalization and Review's (\\\"the Board\\\") decision as to the value of Taxpayer's commercial property (referred to herein as \\\"Hanes Mall\\\"), and finding its appraised value to be $140,000,000. Taxpayer argues the Commission erred: (1) by failing to apply or properly consider the cost approach method in appraising Hanes Mall, and; (2) by adopting the County's expert appraiser's assessment of the property's value. Upon careful review of the record before us, we affirm the Commission's decision.\\nFinding no discrepancy in the parties' recitation of the facts, we take our account of the facts directly from Taxpayer's brief to this Court. Effective 1 January 1997, the Forsyth County Tax Assessor (\\\"the Assessor\\\") \\\"appraised the real property associated with Hanes Mall in Winston-Salem at a total value of $162,725,000.\\\" Taxpayer appealed the assessment to the Board in a timely manner. Subsequently, the Board heard Taxpayer's appeal and \\\"on December 4, 1997 . . . affirmed the decision of the Assessor.\\\" Then on 2 January 1998, Taxpayer appealed the Board's decision to the Commission. After a hearing which lasted several days, the Commission found, in pertinent part:\\n12. . [The] County [Assessor] used the direct capitalization method to arrive at a total value of $162,725,000 for the subject property. This method is used to convert an estimate of one year's income expectancy, or an annual average of several years' income expectancy into an indication of value in one direct step. . In general, the direct capitalization approach requires the use of comparable sales and the income derived therefrom to arrive at an appropriate capitalization rate. When using this approach to value the subject property, [the Assessor] did not apply or rely upon its 1997 schedule of values, rules and standards to arrive at the capitalization rate of 7.75%. Instead, the [Assessor] used data developed for a prior appraisal assignment that did not correlate with the rate information used to develop the 1997 schedule of values, standards and rules. Hence, the [Assessor] arrived at a capitalization rate of 7.75% and when that rate was applied to the applicable schedule of values, rules and standards it resulted in an improper classification of the subject property as an A plus mall.\\n13. . . . In Mr. Nafe's opinion [Taxpayer's expert witness], the value of the subject property is composed of three components: (1) real estate, (2) Hanes Mali's internal profit centers, and (3) the intangible personal property associated with Hanes Mall's business. . . .\\n14. In Mr. Nafe's opinion, in order to determine fair market value, the appraiser must identify and segregate the non-realty elements of the subject property so that his appraisal of the subject property would be limited to the fee simple in the property's real estate value. . In applying the cost approach, Mr. Nafe . . . estimated the value of the subject property to be $84,000,000. Under the income approach, Mr. Nafe arrived at total value $80,000,000 for the subject property when applying both the direct capitalization analysis and the discounted cash flow analysis. Mr. Nafe's going-concern value of the subject property as of January 1, 1997 was $130,000,000, denoted as follows:\\nFee simply [sic] real estate only: $ 80,000,000\\nNon-realty value: $ 50,000,000\\nTotal Going Concern value: $130,000,000\\n16. . In summary, Mr. Nafe concluded that the value of the subject real property . . . was $80,000,000 . . He reached this valuation by applying the income approach, which is typically given greatest weight in the analysis of income-producing property.\\n20. Investors in regional malls do not use the cost approach to determine market value because of the assumptions and wide variety of estimates that are placed upon such items as entrepreneurial profit, subsidies, and influences by anchor department stores. . . .\\n21. To arrive at an opinion of value for the subject property, Mr. . . . Korpacz, the [Assessor]'s expert witness, utilized the direct capitalization and yield capitalization approaches as recognized under the income method of valuation. While Mr. Korpacz utilized the sales comparison approach to value, he rejected the cost approach based upon his experience that investors in regional malls give little value to this approach to at arrive [sic] market value.\\n22. Mr. Korpacz considered business enterprise value in his value analysis of the subject property, but he rejected this concept because, based upon his experience, regional mall investors do not recognize or reflect this concept when investing in this particular market....\\n23. Mr. Korpacz's fee simple opinion of value for the subject property . . . was $140,000,000. He reached this value when applying the income approach; analyzing market rents and determining that the appropriate capitalization rate was 8.55%. Mr. Korpacz's appraisal correlates with the County [Assessor's 1997 schedule of values, rules and standards in that his appraisal analysis yields a proper classification of the subject property as a B plus mall.\\n24. Of the three traditional appraisal methods considered by the Commission, the cost approach, the comparable sales approach, and the income approach, the income approach is the most reliable method in reaching market value for the subject property.\\n25. Even though the Commission considered the comparable sales and cost approaches to value, the Commission determined that those approaches would not yield fair market value of the subject property and should not be relied upon as the primary approaches to determine value.\\n(Emphasis added.) Thus, the Commission concluded as a matter of law:\\n2. In North Carolina, property must be valued for ad valorem tax assessment purposes at its \\\"true value in money,\\\" which is statutorily defined as \\\"market value[,]\\\" [pursuant to N.C. Gen. Stat. \\u00a7 105-283.]\\n3. Ad valorem assessments are presumed to be correct. In order for the Taxpayer to rebut the presumption of correctness, the Taxpayer must prove that the County [Assessor] employed an arbitrary or illegal method of valuation and that the assessment of the subject property substantially exceeded the true value in money of the subject property.\\n6. In reaching a total assessed value for the subject property . of $162,725,000, the County [Assessor] failed to properly apply its schedule of values, rules and standards, as required and directed by G.S. 105-317 of the North Carolina Machinery Act. The income capitalization rate developed by the County [Assessor] does not correlate with an appropriate classification of the subject property under the County [Assessor]'s schedule of values, rules and standards. . . .\\n10. The income approach is the most probative means to establish the fair market value of the subject property and even though it is the preferred method, a combination of the three methods may be used as long as the income approach is given the greatest weight. .\\n11. The value of the subject property, relying primary [sic] on the income approach . . . was $140,000,000.\\n(Emphasis added.) Taxpayer appeals the Commission's decision.\\nTaxpayer first assigns error to the Commission's \\\"failing to apply or properly consider the cost approach in appraising Hanes Mall.\\\" Although Taxpayer admits \\\"this Court [has] held that . . . exclusive reliance on the cost approach [i]s an error of law and that the income approach should be the primary method used,\\\" relying on In re Appeal of Belk-Broome Co., 119 N.C. App. 470, 473, 458 S.E.2d 921, 923-24 (1995), aff'd, 342 N.C. 890, 467 S.E.2d 242 (1996), Taxpayer argues \\\"this Court did not conclude that the cost approach should not be used.\\\" (Emphasis omitted and added.) As such, Taxpayer contends that \\\"a combination of cost and income methods could be used so long as the income approach is given greatest weight\\\" (emphasis added), and thus the cost approach should have been used in the present case because that method's \\\"primary use is to establish a ceiling on valuation . . . .\\\" Belk, 119 N.C. App. at 474, 458 S.E.2d at 924. We are unpersuaded.\\nN.C. Gen. Stat. \\u00a7 105-345.2(b) (1999) governs the standard of appellate review as to property valuations, stating that the appellate Court \\\"shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action.\\\" N.C. Gen. Stat. \\u00a7 105-345.2(b). Further, the statute gives this Court the authority to reverse, remand, modify, or declare void any decision which prejudices a plaintiff, where said decision is:\\n(1) In violation of constitutional provisions; or\\n(2) In excess of statutory authority or jurisdiction of the Commission; or\\n(3) Made upon unlawful proceedings; or\\n(4) Affected by other errors of law; or\\n(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or\\n(6) Arbitrary or capricious.\\nN.C. Gen. Stat. \\u00a7 105-345.2(b). Moreover, our state's case law has plainly set out that \\\"ad valorem tax assessments are presumed to be correct.\\\" In re Appeal of Amp, Inc., 287 N.C. 547, 562, 215 S.E.2d 752, 761 (1975) (emphasis added). However, in dealing with this very matter, this Court clearly held that\\nthe presumption is one of fact and is therefore rebuttable[; but t]o rebut the presumption, [Taxpayer-]Belk must produce \\\" 'competent, material and substantial' evidence that tends to show that: (1) Either the county tax supervisor used an arbitrary method of valuation; or (2) the county tax supervisor used an illegal method of valuation; AND (3) the assessment substantially exceeded the true value in money of the property.\\\" [Amp, Inc., 287 N.C.] at 563, 215 S.E.2d at 762. . . .\\nBelk, 119 N.C. App. at 473, 458 S.E.2d at 923 (emphasis in original) (citation omitted). Additionally, the Court went on to opine:\\nIt is generally accepted that the income approach is the most reliable method in reaching the market value of investment property[. . . and,] the cost approach's primary use is to establish a ceiling on valuation, rather than actual market value. . . . [However, t]he modern appraisal practice is to use cost approach as a secondary approach \\\"because cost may not effectively reflect market conditions.\\\" [Coastal Eagle Point] Oil Co. [v. West Deptfort Township], 13 N.J. Tax 242, 288 [(1993)] .\\nId. at 474, 458 S.E.2d at 924 (emphasis added).\\nWe recognize that the Court's holding of what a taxpayer is required to prove is absolute. However, we deem the Belk Court's statement, that \\\"the cost approach's primary use is to establish a ceiling on valuation,\\\" (upon which the present Taxpayer relies), to be at most dicta. Id. This is because, even in its own assessment of which approach is most proper, the Belk Court plainly settled and stated that the goal of any valuation is to reach fair market value for the subject property \\u2014 fair market value which accurately \\\"... 'reflects] market conditions.' \\\" Id. (quoting Oil Co., 13 N.J. Tax 242, 288). The Court further stated:\\nThe County [Assessor] is required to value all property for ad valorem tax purposes at its true value in money, which is its \\\"market value.\\\" North Carolina General Statutes \\u00a7 105-283 (1992). Market value is defined in the statute as\\n\\\"the price estimated in terms of money at which the property would change hands between a willing and financially able buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of all the uses to which the property is adapted and for which it is capable of being used.\\\"\\nId. An important factor in determining the property's market value is its highest and best use. The Belk property must be valued at its highest and best use, which the parties agree is its present use . Therefore, the County, and the Commission [Assessors], are required to use a valuation methodology that reflects what willing buyers in the market for anchor department stores will pay for the subject property. In doing so, the county must \\\"consider at least [the property's] . . . past income; probable future income; and any other factors that may affect its value.\\\" North Carolina General Statutes \\u00a7 105-317(a)(2) (1992).\\nId. at 473-74, 458 S.E.2d at 923-24 (emphasis added) (citations omitted).\\nWe note that in the Belk case, the cost approach for the subject property yielded a much higher value assessment than what was shown to be the property's \\\"fair market value\\\" \\u2014 that is, what a willing buyer would pay a willing seller under the terms outlined above. As such, the cost approach's \\\"ceiling on valuation\\\" was therefore an irrelevant factor, and the Court refused to accept the cost approach value as fair market value. However, that is not so in the case at bar.\\nIn applying Belk to the present case, we find Taxpayer's argument to be without merit. Taxpayer's business (though more than just an anchor store) is of the exact type as that of Belk. Taxpayer does not argue that the income approach used by the Assessor was incorrect or unlawful, only that the outcome of the Assessor's assessment should have been limited by the Assessor's use of the cost method. However, the very case law upon which Taxpayer relies clearly states that the cost approach \\\". . 'may not effectively reflect market conditions.' \\\" Id. at 474, 458 S.E.2d at 924 (quoting Oil Co., 13 N.J. Tax 242, 288). We recognize that it is Taxpayer's hope that this Court finds\\u2014 since in the present instance the cost approach results in a much lower assessment \\u2014 that the cost approach assessment should yield the maximum value of Hanes Mall.\\nHowever, we refuse to ignore the plain language used by the Belk Court. Instead, we hold that although the cost approach may often times result in the upper limit of fair market value, it does not necessarily need to be so. Therefore, we believe the precedent set forth in Belk leaves room for the fair market value to differ from the cost approach value. To hold otherwise would place improper restrictions on determining the fair market value of realty as required by statute, and render consideration of competent evidence reflecting fair market values above the cost approach assessment to be unacceptable. Further, we agree with the Commission that the cost approach \\\"would not yield fair market value of the [mall] and should not be relied upon as the primary approach[] to determine value.\\\" Therefore, we hold that the Commission's use of the income approach \\u2014 pursuant to Belk \\u2014 was the appropriate valuation method in the case at bar.\\nTaxpayer's second and final assignment of error is that \\\"[t]he Commission's adoption of Mr. Korpacz's appraisal as its assessment of Hanes Mall resulted in a denial of Taxpayer's constitutional and statutory rights to equal protection and uniform taxation.\\\" In its brief to this Court, Taxpayer goes to great lengths in discussing cases which purport that \\\"the use of one assessment methodology to assess the property of one group of taxpayers and another assessment methodology to assess the property of another group of taxpayers in the same class resulted in significant differences in assessed values of comparable properties and a denial of uniformity.\\\" (Emphasis added.) Thus, Taxpayer argues, because the Assessor treated Hanes Mall differently from \\\"any other property in Forsyth County,\\\" Taxpayer has been discriminated against. We disagree.\\nTaxpayer is correct when it states that \\\"[t]he U.S. Supreme Court has held that application of two distinct valuation methodologies to properties in the same class which results in systematic discrimination against one group of property owners is a clear violation of uniformity.\\\" Citing Allegheny Pitts, v. Webster County, 488 U.S. 336, 345, 102 L. Ed. 2d 688, 698 (1989). Additionally, per the parties' stipulations, the Assessor admits that:\\n16. In performing its 1997 revaluation, the assessments made by the Forsyth County Assessor's Office of hotels and motels, investment grade apartment complexes, the Hanes Mall and the five anchor stores adjacent to the Hanes Mall were based upon the income approach to value, although the County may have considered other approaches to value. The assessments of all other commercial and industrial properties in Forsyth County including, but not limited to, strip centers and other shopping centers, retail stores, restaurants, nursing homes, bowling alleys, office buildings, theaters, and industrial enterprises were based upon the cost approach to value, although the County may have considered other approaches to value.\\n(Emphasis added.) However, Taxpayer offers no evidence that the Assessor utilized the cost approach to value another \\\"super regional mall\\\" and yet used the income approach solely to value Hanes Mall. Contrarily, the Assessor presented evidence that Hanes Mall is the only super regional mall in Forsyth County and that it is \\\"unlike any other property in the county, which creates an inherent weakness for using the cost approach to determine a fair [market] value.\\\" Therefore, without a showing that Taxpayer's property was entitled to be considered in the same class as strip malls and the like, Taxpayer has failed to show it was discriminated against by being excluded from that class. In failing to fall within the same class, the assessment cannot violate the equal protection clauses of the United States and North Carolina Constitutions. See Tax Appeal of County of Maui v. EM Hawaii, Inc., 81 Hawaii 248, 256, 915 P.2d 1349, 1357 (1996).\\nAdditionally, we note Taxpayer failed to object or assign error to the Commission's findings that the Assessor's expert witness, Mr. Korpacz:\\n21. . rejected the cost approach based upon his experience that investors in regional malls give little value to this approach to at arrive [sic] market value.\\n24. Of the three traditional appraisal methods considered by the Commission, . . . the income approach is the most reliable method in reaching market value for the subject property.\\nAs such, Taxpayer has lost its right to argue those findings were not supported by substantial evidence of record.\\nThe law has long been that:\\nThe Commission has the authority and responsibility \\\"to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence.\\\" [In re Appeal of Interstate Income Fund 1, 126 N.C. App. 162, 164, 484 S.E.2d 450, 451 (1997)] (quoting In re McElwee, 304 N.C. 68, 87, 283 S.E.2d 115, 126-27 (1981))_\\nIn re Appeal of Phillip Morris, 130 N.C. App. 529, 532, 503 S.E.2d 679, 681, review denied, 349 N.C. 359, 525 S.E.2d 456 (1998). Further, \\\"[t]he weight to be accorded relevant evidence is a matter for the factfinder, which is the Commission.\\\" In re Appeal of Westinghouse Electric Corp., 93 N.C. App. 710, 712, 379 S.E.2d 37, 38 (1989). Additionally:\\nOur Supreme Court has said valuations fixed by the Commission shall be final and conclusive where no error of law or abuse of discretion is alleged. Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897 (1943)_ [T]he Commission \\\"has full authority, notwithstanding irregularities at the county level, to determine the valuation and enter it accordingly. Such valuation so fixed is final and conclusive unless error of law or abuse of discretion is shown.\\\" In re Appeal of Broadcasting Corp., 273 N.C. 571, 579, 160 S.E.2d 728, 733 (1968).\\nIn re Appeal of Boos, 95 N.C. App. 386, 388, 382 S.E.2d 769, 770 (1989). Moreover, \\\"[i]f the Commission's decision, considered in the light of the foregoing rules, is supported by substantial evidence, it cannot be overturned.\\\" Phillip Morris, 130 N.C. App. at 533, 503 S.E.2d at 682.\\nHaving failed to show that the decision of the Commission was either: in violation of constitutional provisions, in excess of statutory authority, made upon unlawful proceedings, affected by other errors of law, unsupported by competent evidence, or arbitrary or capri cious, we hold Taxpayer has failed to prove it was discriminated against. N.C. Gen. Stat. \\u00a7 105-345.2(b). Additionally, without a showing that \\\"the assessment substantially exceeded the true value in money of the property,\\\" Amp, 287 N.C. 547, 563, 215 S.E.2d 752, 762 (emphasis in original), Taxpayer has failed to rebut the presumption that its \\\"ad valorem tax assessments are . . . correct.\\\" Id. at 562, 215 S.E.2d at 761 (emphasis added). Therefore, because we find the findings of fact and conclusions of the Commission are based upon and supported by competent, material and substantial evidence in the record, the Commission's final decision is\\nAffirmed.\\nJudges MARTIN and HUDSON concur.\"}"

nc/11708343.json

@@ -0,0 +1 @@
+"{\"id\": \"11708343\", \"name\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\", \"name_abbreviation\": \"State v. Taurice Marquese Crisp\", \"decision_date\": \"1997-04-15\", \"docket_number\": \"No. COA96-395\", \"first_page\": \"30\", \"last_page\": \"42\", \"citations\": \"126 N.C. App. 30\", \"volume\": \"126\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:08:10.640835+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges JOHN and McGEE concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\\nNo. COA96-395\\n(Filed 15 April 1997)\\n1. Assault and Battery \\u00a7 16 (NCI4th)\\u2014 bill of indictment\\u2014 assault \\u2014 \\u201cserious injury\\u201d \\u2014 no need of exact language\\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, it was not necessary for the bill of indictment to track the exact language of N.C.G.S. \\u00a7 14-32(a) by using the term \\u201cserious injury\\u201d where the indictment alleged that the victim received a gunshot wound to the left arm which required medical treatment and hospitalization.\\nAm Jur 2d, Assault and Battery \\u00a7\\u00a7 90, 91.\\n2. Assault and Battery \\u00a7 116 (NCI4th)\\u2014 assault \\u2014 deadly weapon \\u2014 serious injury \\u2014lesser included offense\\nIn a prosecution for assault with a deadly weapon with the intent to kill inflicting serious injury, the trial court did not err by instructing the jury that the victim\\u2019s injury was serious and by refusing to instruct the jury on the lesser included offense of assault with a deadly weapon because reasonable minds could not differ as to the seriousness of the victim\\u2019s injuries where the evidence showed that defendant shot the victim; the bullet entered the victim\\u2019s leg; the victim\\u2019s leg went numb and then begin burning and throbbing; the victim needed assistance to leave the building; and the victim required treatment at a hospital.\\nAm Jur 2d, Trial \\u00a7\\u00a7 1427 et seq.\\nPropriety of lesser-included-offense charge to jury in federal assault prosecution. 103 ALR Fed. 880.\\n3. Criminal Law \\u00a7 1095 (NCI4th Rev.) \\u2014 Structured Sentencing Act \\u2014 aggravating factor \\u2014 permanent and debilitating injury\\nThe evidence supported the trial court\\u2019s finding as an aggravating factor for assault with a deadly weapon inflicting serious injury that the victim suffered a serious injury that was permanent and debilitating where the evidence at trial indicated that the victim had diminished strength in his arm after he was shot in the arm by defendant, the bullet disintegrated the bone, the arm bone was removed, and reconstructive surgery transferred bone from his hip to his arm.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n4. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 permanent and debilitating injury \\u2014 same evidence not used to prove element of offense\\nThe trial court did not use the same evidence to prove an element of each offense, assault with a deadly weapon with intent to kill inflicting serious injury, and the aggravating factor that each victim suffered a serious injury that was permanent and debilitating where the gunshot wounds suffered by the victims resulted in serious injuries at the time they were inflicted, wholly apart from the long-term or extended effects that arose from each victim\\u2019s injuries. N.C.G.S. \\u00a7 15A-1340.16(d)\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n5. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 aggravating factor \\u2014 weapon hazardous to multiple lives \\u2014 semi-automatic gun\\nThere was sufficient evidence to support the trial court\\u2019s finding of the existence of the aggravating factor that defendant used a weapon which normally would be hazardous to the lives of more than one person where the evidence at trial supported the inference that defendant assaulted his victims with a semiautomatic pistol.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n6. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 aggravated assault \\u2014 aggravating factor \\u2014 weapon hazardous to multiple lives\\nIt was not error for the trial court to find the existence of the aggravating factor that defendant used an automatic weapon normally hazardous to the lives of more than one person after defendant had been convicted of assault with a deadly weapon with intent to kill inflicting serious injury where the employment of a weapon normally hazardous to others was not an essential element of the assault charge.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n7. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 condition reducing culpability \\u2014 failure of court to find\\nThe trial court did not err by failing to find as a mitigating sentencing factor for aggravated assaults that defendant was suffering from a mental condition that reduced his culpability where a psychologist testified that defendant had an IQ of 77, lower than average reading, spelling and math skills, and symptoms of increased suspicion and paranoia; the psychologist further stated that these were characteristics of a person with \\u201cborderline mental disorder\\u201d which is \\u201ca mental illness that describes someone who is immature and unpredictable\\u201d; and the trial court expressed doubts about the credibility and substance of this evidence. N.C.G.S. \\u00a7 15A-1340.16(e)(3).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n8. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 extenuating relationship\\u2014 insufficient evidence .\\nEvidence of a prior altercation between defendant and the victim of an aggravated assault did not compel the trial court to find the mitigating factor that the relationship between defendant and the victim was otherwise extenuating. N.C.G.S. \\u00a7 15A-1340.16(e)(8).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n9. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 acceptance of responsibility for crimes \\u2014 motion to suppress statement\\nDefendant was not entitled to a finding of the mitigating factor that he accepted responsibility for his criminal conduct where defendant repudiated his incriminating statement to the police by moving to suppress it. N.C.G.S. \\u00a7 15A-1340.16(e)(15).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nAppeal by defendant from judgment entered 11 October 1995 by Judge Peter M. McHugh in Rockingham County Superior Court. Heard in the Court of Appeals 16 January 1997.\\nAttorney General Michael F. Easley, by Assistant Attorney General John A. Greenlee, for the State.\\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.\", \"word_count\": \"4206\", \"char_count\": \"25621\", \"text\": \"WALKER, Judge.\\nOn 6 March 1995, defendant was indicted on six counts of assault with a deadly weapon with intent to kill inflicting serious injury. These cases were consolidated for hearing. In case 95 CRS 2015, defendant was found guilty and sentenced to a minimum term of 108 months and a maximum term of 139 months of imprisonment. In the remaining five cases, defendant was found guilty of assault with a deadly weapon inflicting serious injury and was sentenced to: 36 to 53 months of imprisonment each in 95 CRS 2016 and 95 CRS 2019; and 29 to 44 months of imprisonment each in 95 CRS 2017, 95 CRS 2018, and 95 CRS 2020, for a total of a minimum term of 267 months and a maximum term of 377 months of imprisonment with the sentences to run consecutively.\\nThe evidence presented tended to show that around midnight on 18 February 1995, defendant arrived at the Kingsway Pavilion, a nightclub in Rockingham County. Defendant had on his person a nine millimeter semi-automatic pistol which was loaded to its capacity of sixteen rounds. After arriving, defendant attempted to locate Gary Blackstock among the crowd, which was estimated to be between 90 and 135 people. Defendant saw Blackstock, moved toward him and opened fire on him with the pistol. As defendant fired the pistol, he held it sideways and waved it back and forth. Defendant continued firing as he pursued Blackstock, who ran for the front door. Defendant then fled the scene, disposed of the pistol and turned himself in to the magistrate's office 48 hours later.\\nThe bullets struck Blackstock and five other people and the bullet fragments struck walls, light fixtures and the floor. Blackstock was shot three separate times, in the left wrist, which was shattered, in the left thigh, and under the calf of his left leg. After reconstructive surgery he lost fifty percent of the function of his left wrist and thumb. Further, he had five surgeries on his left leg, including arterial replacement and the removal of his calf muscle, and he permanently lost control of his left foot.\\nGreg Nordan was shot in the upper left arm, disintegrating the bone. He underwent reconstructive surgery, with bone taken from his hip to repair his arm, which was held in place with a metal plate and pins. He has retained the use of his arm, but stated that \\\". . . in the winter or in bad weather it will always bother me and my arm will never be right again . . . [and] . I am just not as strong in that arm.\\\"\\nJermaine Jackson was struck in the side just above his thigh. The bullet pierced his large and small intestines, which required three surgeries and the installation of a colostomy bag. He also suffered nerve damage which had not healed.\\nPreston Doug Clark suffered a gunshot wound to his right jaw, which shattered both his right and left jaws. He was hospitalized for two weeks and continued to suffer recurrent pain from the injury at the time of trial.\\nKevin Richardson was hit by a single bullet that entered his spine, leaving him permanently paralyzed from the mid-chest down. The bullet shattered inside his body causing injuries to his lungs and left hand. At the time of trial, Richardson was undergoing therapy twice a week and taking medication.\\nJonathan Woodbury was shot once in the leg where the bullet passed through his calf leaving his leg numb. He experienced a burning and throbbing sensation and was treated at the hospital for his injury.\\nWhen defendant turned himself in to the magistrate's office, he made a voluntary statement admitting the shootings. In his statement, defendant also recounted that he had been stabbed in the abdomen by Gary Blackstock during an altercation in January 1995 at the Kingsway Pavilion. After this stabbing, defendant was hospitalized for three days. The incident was reported to the Eden Police Department by hospital personnel, but defendant refused to identify his attacker and the investigation was closed. Blackstock confirmed that he had \\\"cut\\\" defendant during the dispute at the Kingsway Pavilion in January prior to the shooting.\\nJohn Frank Warner, III, a clinical psychologist, testifying on defendant's behalf, stated that defendant had an IQ of 77, which placed him in a \\\"borderline range of intelligence,\\\" and that he exhib ited reading skills at an eighth grade level, spelling skills at a fifth grade level, and math skills at a fourth grade level. Warner also testified that defendant was suffering from \\\"borderline mental disorder, which is a mental illness that describes someone who is immature and unpredictable.\\\" Further, since defendant was reported to have been intoxicated at the time of the shootings, Warner believed defendant was impaired as a result of the alcohol and of his emotional immaturity. Warner also described defendant as experiencing generally heightened feelings of fear and apprehension resulting from the January stabbing incident.\\nDefendant first asserts that his conviction in the Nordan case must be vacated because the bill of indictment did not allege the essential element of \\\"serious injury.\\\" First, we note the Nordan indictment was entitled \\\"Assault With a Deadly Weapon with Intent to Kill Inflicting Serious Injury . . . Offense in Violation of G.S. \\u00a7 14-32(a).\\\" Further, the indictment alleged that defendant \\\"did assault Gregory Wayne Nordan with a 9mm pistol, a firearm, a deadly weapon by shooting him in the left arm, requiring medical attention. The assault was intended to kill and resulted in the victim to be [sic] hospitalized.\\\"\\n\\\"A charge in a bill of indictment must be complete in itself and contain all of the material allegations which constitute the offense.\\\" State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 16 (1965). However, this rule does not require an indictment to exactly track the statutory language setting forth a particular criminal offense, so long as the indictment states facts which constitute every element of the crime charged. State v. Hicks, 86 N.C. App. 36, 40, 356 S.E.2d 595, 597 (1987). Further, our Supreme Court has stated that the term \\\"serious injury\\\" under N.C. Gen. Stat. \\u00a7 14-32(a) means a physical or bodily injury which results from an assault with a deadly weapon, determined according to the facts of each case. State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586-87 (1988) (citing State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962)).\\nAlthough the indictment did not track the exact language of N.C. Gen. Stat. \\u00a7 14-32(a) by using the term \\\"serious injury,\\\" it did aver that the victim had received a gunshot wound to the left arm which required medical treatment and hospitalization. The indictment, when read as a whole, sufficiently stated facts which support every element of the crime charged and apprised defendant of the specific charge against him.\\nDefendant next assigns as error the trial court's instruction that Woodbury's injury was serious and its refusal to submit the lesser included offense of assault with a deadly weapon.\\nA trial court may peremptorily instruct the jury on the serious injury element if \\\"the evidence 'is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.' \\\" State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 {quoting State v. Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392 (1982)). In Hedgepeth, the victim was shot through the ear, causing a wound requiring six or seven stitches to close. She bled profusely, suffered a bruise and bums, and required emergency medical treatment. At the time of trial, she still suffered a ringing in her ear. This Court determined, based on that evidence, that \\\"reasonable minds could not differ as to the seriousness\\\" of the physical injuries. Id. at 54-55, 409 S.E.2d at 319.\\nIn this case, evidence showed that the bullet entered Woodbury's leg from the side into the top part of his calf and exited out of the bottom of the calf muscle. His leg went numb and then began burning and throbbing. Woodbury needed assistance to leave the building and was taken to the hospital for treatment. Based on this evidence, we decline to disturb the trial court's determination that Woodbury's injury was \\\"serious\\\" within the meaning of N.C. Gen. Stat. \\u00a7 14-32(a) and that reasonable minds could not differ as to the seriousness of his injuries. Thus, the trial court was not required to submit the lesser-included offense of assault with a deadly weapon to the jury.\\nIn his third assignment of error, defendant states that he is entitled to a new sentencing hearing in the Nordan case because the trial court's finding of the aggravating factor that the victim suffered permanent and debilitating serious injury is not supported by the evidence.\\nThe State bears the burden of persuasion on aggravating factors by a preponderance of the evidence. State v. Parker, 315 N.C. 249, 255, 337 S.E.2d 497, 500 (1985). The evidence presented at trial showed that Nordan was shot in the upper left arm, the bullet disintegrated the bone, the arm bone was removed, and reconstructive surgery transferred bone from his hip to his arm, which is held in place by a metal plate and nine screws. Further, Nordan testified that, \\\" . in the winter or bad weather it will always bother me and my arm will never be right again.\\\" Moreover, the following exchange took place between Nordan and the prosecutor:\\nQ: And is there a permanent injury? Can you not use the arm or anything like that?\\nA: No, I am just not as strong in that arm.\\nIt is clear from the exchange, that Nordan was confirming that his injured arm, while not useless, was diminished in strength. Thus, the State met its burden of supporting the aggravating factor of the victim having suffered a serious injury that is permanent and debilitating.\\nDefendant next contends that he is entitled to new sentencing hearings in the Richardson and Nordan cases because the trial court erroneously used evidence necessary to prove an element of the offense to also prove the aggravating factor that each victim suffered a serious injury that was permanent and debilitating.\\nN.C. Gen. Stat. \\u00a7 15A-1340.16(d) provides that \\\"[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation....\\\" Defendant argues that because Richardson and Nordan each suffered only one injury from the assaults (Richardson was paralyzed and Nordan's arm bone was shattered), there was no evidence relating to any permanent and debilitating serious injury with which to prove the aggravating factor other than the evidence which was necessary to prove the serious injury element of the offense. We disagree.\\nIn State v. Evans, 120 N.C. App. 752, 463 S.E.2d 830 (1995), disc. review denied, 343 N.C. 310, 471 S.E.2d 78 (1996), this Court examined a similar issue. In Evans, the defendant argued that the court used the same evidence to support two aggravating factors in violation of N.C. Gen. Stat. \\u00a7 15A-1340.4(a)(l). In overruling the defendant's assignment of error, this Court looked to the North Carolina Supreme Court decision in State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994) stating:\\nIn State v. Brinson, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The State's evidence showed that defendant got into a confrontation with Eason, his cellmate, whereupon defendant struck Eason in the jaw and then slammed his head against the bars. Eason then heard his neck \\\"pop\\\" but the defendant continued to slam Eason's head on the floor. Eason was permanently paralyzed from the chest down as a result of a broken neck. The Court held that \\\"[t]he evidence relating to the victim's broken neck, aside from evidence relating to the resulting paralysis, was sufficient to establish the element of the crime that the defendant inflicted a 'serious injury' upon the victim.\\\" Further, the Court found that the evidence relating to the broken neck was not used in making the finding that the \\\"injuries sustained by the victim were extremely severe and permanent;\\\" instead, that finding rested solely on the victim's paralysis. (Citations omitted.)\\nId. at 757, 463 S.E.2d at 833.\\nThe same rationale that our courts applied in Brinson and Evans applies in the instant case. Here, the language of the statute, that \\\"the serious injury inflicted upon the victim is permanent and debilitating\\\" creates a distinction between the suffering of the victim at the time the serious injury is inflicted and any long-term or extended effects that arise due to that serious injury. The gunshot wounds suffered by Richardson and Nordan resulted in serious injuries at the time they were inflicted, wholly apart from their consequences. Richardson's paralysis and Nordan's weakness and diminished ability to use his arm were the long-term effects of these injuries. Thus, the same evidence was not used to support an element of the offense and the aggravating factor.\\nDefendant also assigns as error the trial court's finding of an aggravating factor that defendant used a weapon or device which normally would be hazardous to the lives of more than one person. Defendant argues that there was insufficient evidence to establish that he used a semi-automatic weapon.\\nIn his statement to the police, the defendant said he used a \\\"9 millimeter pistol.\\\" Five eyewitnesses testified that defendant used \\\"a black 9 millimeter.\\\" The State, without objection, offered for illustrative purposes, a 9 millimeter semi-automatic magazine fed Ruger pistol capable of holding 16 rounds of ammunition. All the witnesses who were asked, stated that this Ruger weapon was \\\"similar to\\\" or \\\"looked like\\\" the weapon used by defendant. Officer Hopper of the Eden Police Department testified that the descriptions of the weapon by the defendant and by the eyewitnesses were substantially the same. A strong inference can also be drawn from the evidence that the weapon used by defendant contained multiple rounds of ammunition which were discharged in rapid fire as would a semi-automatic weapon.\\nThis evidence is sufficient to support a finding that the weapon used by the defendant was in fact a semi-automatic weapon. Further, this Court in State v. Antoine, 117 N.C. App. 549, 551, 451 S.E.2d 368, 370, disc. review denied, 340 N.C. 115, 456 S.E.2d 320 (1995) held that a semi-automatic pistol \\\"in its normal use is hazardous to the lives of more than one person and is the type of weapon contemplated by N.C. Gen. Stat. \\u00a7 15A-1340.4 (a)(1)(g) (1988).\\\" See also, State v. Evans, 120 N.C. App. 752, 463 S.E.2d 830 (1995), disc. review denied, 343 N.C. 310, 491 S.E.2d 78 (1996). This assignment of error is overruled.\\nDefendant's sixth assignment of error contends that the trial court erroneously used evidence, which was necessary to prove an element of the offense, to also prove the aggravating factor that defendant used an automatic weapon normally hazardous to the lives of more than one person.\\nDefendant argues that because the evidence of the use of a particular weapon was used to prove an element of the assaults, the aggravating factor challenged cannot stand because it is the same, weapon. However, this Court has previously addressed this issue and held that it was not error to also find an aggravating factor from the use of a weapon after a defendant has been convicted of assault under N.C. Gen. Stat. \\u00a7 14-32(a). In State v. Platt, 85 N.C. App. 220, 228, 345 S.E.2d 332, 336, disc. review denied, 320 N.C. 516, 358 S.E.2d 529 (1987), this Court stated:\\n[Defendant further contends that the use of this factor to aggravate his sentences for assault with a deadly weapon with intent to kill inflicting serious injury is prohibited by G.S. \\u00a7 15A-1340.4(a)(l) . However, in order to prove its case, the State simply needed to show that defendant used a deadly weapon, and it did not need to show, as an essential part of its proof of the charged offenses, that defendant employed a weapon normally hazardous to the lives of more than one person. Accordingly, we hold the court did not err in finding this factor. (Citations omitted.)\\nThe same reasoning used in Platt applies in this case and we find no error.\\nLastly, defendant assigns as error the trial court's failure to find three statutory mitigating sentencing factors in all six cases. Defendant asserts that the trial court failed to find the following statutory mitigating factors: (1) \\\"the defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced [his] culpability for the offense;\\\" (2) \\\"the relationship between the defendant and the victim was otherwise extenuating;\\\" and (3) \\\"the defendant has accepted responsibility for [his] criminal conduct.\\\" See N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(3), (8), and (15) (1996).\\nA sentencing judge must find a statutory mitigating sentence factor if it is supported by a preponderance of the evidence. State v. Ahearn, 307 N.C. 584, 596-97, 300 S.E.2d 689, 696-97 (1983). However, the defendant bears the burden of persuasion, by a preponderance of the evidence, in establishing his entitlement to statutory factors in mitigation. State v. Bare, 77 N.C. App. 516, 524, 335 S.E.2d 748, 752 (1985), disc. review denied, 315 N.C. 392, 338 S.E.2d 881 (1986).\\nDr. Warner testified that defendant had an IQ of 77, lower than average reading, spelling and math skills, and he also had symptoms of increased suspicion and paranoia. He further stated that these were characteristics of a person with \\\"borderline mental disorder\\\" which is \\\"a mental illness that describes someone who is immature and unpredictable.\\\" Defendant contends the trial court erred in failing to find that these conditions reduced his culpability for the offenses. The trial court, in expressing its doubts about the credibility and substance of this evidence, declined to find this mitigating factor. We find no error in this determination.\\nDefendant next argues that the prior altercation between himself and one of the victims (Gary Blackstock) created a relationship that gave rise to extenuating circumstances in mitigation of his conduct under N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(8). The previous history of a dispute between defendant and Blackstock was not such as would compel the trial court to find this mitigating factor, which would serve to diminish defendant's responsibility for the acts.\\nDefendant finally argues that he accepted responsibility for his criminal conduct so as to entitle him to a finding in mitigation under N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(15). However, when defendant moved to suppress the incriminating statement made to the Eden Police Department, he in effect repudiated the statement and is not entitled to this statutory mitigating factor. See State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).\\nThe trial court properly determined that defendant failed to meet his burden of persuasion on any of the three statutory mitigating factors; therefore, this assignment of error is overruled.\\nNo error.\\nJudges JOHN and McGEE concur.\"}"

nc/11911772.json

@@ -0,0 +1 @@
+"{\"id\": \"11911772\", \"name\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\", \"name_abbreviation\": \"In re Jurga\", \"decision_date\": \"1996-07-02\", \"docket_number\": \"No. COA94-1439\", \"first_page\": \"91\", \"last_page\": \"96\", \"citations\": \"123 N.C. App. 91\", \"volume\": \"123\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:44:39.815405+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges MARTIN, John C. and McGEE concur.\", \"parties\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\", \"head_matter\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\\nNo. COA94-1439\\n(Filed 2 July 1996)\\nParent and Child \\u00a7 96 (NCI4th)\\u2014 termination of parental rights \\u2014 unilateral declaration by parents insufficient\\u2014 petition for appointment of guardian \\u2014 dismissal proper\\nNothing in the statutorily established procedure for the termination of parental rights allows for a unilateral declaration of termination by the natural parents, and nothing in the record of this case indicated the existence of the statutorily prescribed two-stage proceeding at which the trial court, and not the parents, resolves the issues of whether grounds for termination exist and, if so, whether termination would indeed be in the best interests of the child; therefore, since the parental rights of the parents had not been terminated by their filing of a declaration of termination, they were still the natural guardians of the minor child, and a petition for adjudication of incompetence and application for appointment of guardian was properly dismissed for lack of jurisdiction.\\nAm Jur 2d, Parent and Child \\u00a7 7.\\nValidity of state statute providing for termination of parental rights. 22 ALR4th 774.\\nPetitioners appeal from order filed 27 September 1994 by Judge Marcus L. Johnson in Gaston County Superior Court. Heard in the Court of Appeals 4 October 1995.\\nBooth Harrington Johns & Campbell, L.L.P., by A. Frank Johns, for petitioners-appellants.\\nHenry L. Fowler, III for respondent-appellee.\", \"word_count\": \"2053\", \"char_count\": \"13003\", \"text\": \"JOHN, Judge.\\nPetitioners contend the trial court erred by dismissing petitioners' application for appointment of a guardian of the person of the minor respondent (Trey). We disagree.\\nPertinent facts and procedural information are as follows: Born in 1981, Trey has been afflicted since birth with severe mental retar dation, Beckwith-Weiderman Syndrome and chronic Ectopic Atrial Tachycarda. He remained in acute care hospital settings until 1992 when he was transferred to Holy Angels Services, Inc. (Holy Angels), a less restrictive intermediate care facility for mentally retarded patients located in Gaston County, North Carolina. Patient services at Holy Angels are provided through funding entitlements from state and federal agencies, North Carolina entitlements being available to a minor whose parent or legal guardian is domiciled in North Carolina.\\nSubsequent to Trey's placement at Holy Angels, however, his parents, Joseph Peter Jurga, Jr. and Melanie S. Jurga (the Jurgas), were relocated by his father's employer to a new job in South Carolina. The North Carolina entitlements were thus at risk. At the direction of the North Carolina Department of Public Instruction, the Jurgas arranged appointment of a North Carolina resident as Trey's \\\"surrogate parent\\\" for purposes of maintaining the child at Holy Angels with governmental benefits. However, the Jurgas were informed in 1994 that such appointment might be insufficient. The Jurgas were aware that Trey's removal from Holy Angels would severely and detrimentally impact his educational and functional progress, but considered their financial resources insufficient to continue the placement without governmental entitlements.\\nOn 27 May 1994, the Jurgas each executed a \\\"Declaration of Voluntary Termination of Parental Rights\\\" (the Declaration), in which they proclaimed the following:\\n7. Based on the threatened loss of necessary residential services for Trey, and the potential for financial liability which we might be obligated, but unable to pay, we declare that our son is dependant and neglected as those words are defined in N.C. Gen. Stat. Sec. 7A-517(13) and (21) of the North Carolina Juvenile Code, and further that our son is educationally and residentially abandoned, and threatened with immediate potential loss of educational, habilitative and residential services necessary to ameliorate his agglomerate disabilities;\\n8. In order to insure that [our] son not suffer neglect, abandonment, loss of services and dependency, [we] hereby voluntarily declare termination of [our] parental rights as said termination is defined under Article 24B of N.C. Gen. Stat. Chp. 7A.\\n10. Having voluntarily terminated [our] parental rights, [we] request the Clerk to receive, and [we] support the application of Robert' W. Simmons and Lee H. Simmons as co-guardians of the person of [our] son, Trey.\\nThereafter, on 15 June 1994, petitioners Robert W. Simmons and Lee H. Simmons, relatives of Trey's mother and residents of North Carolina, filed a \\\"Petition for Adjudication of Incompetence and Application For Appointment of Guardian\\\" (the Petition) before the Clerk of Gaston County Superior Court (the Clerk), attaching the Declaration. That same day, the Clerk appointed J. Ben Morrow (Morrow) as Guardian Ad Litem for Trey. On Trey's behalf, Morrow answered the Petition 22 June 1994, seeking dismissal of the action on several grounds, including lack of jurisdiction.\\nFollowing a telephonic hearing conducted 24 June 1994, the Clerk entered an order of dismissal 28 June 1994 and taxed petitioners with costs and guardian ad litem fees. Pursuant to N.C.G.S. \\u00a7 35A-1115 and 1-272, petitioners appealed the decision to the Superior Court and both parties filed briefs supporting their respective positions.\\nOn 26 September 1994, the trial court entered an order dismissing the application and containing the following conclusion:\\n5. Neither the Clerk of Superior Court, the Court of original jurisdiction, nor this Court has jurisdiction to adjudicate the incompetence of a 13 year old minor who is alleged to be incompetent in the verified Petition filed in the matter and that the Petition of Robert W. Simmons and Lee H. Simmons should be dismissed.\\nFrom this order, petitioners filed a Notice of Appeal to this Court 12 October 1994.\\nPetitioners contend the Petition constituted an action falling under Subchapter II [Guardian and Ward], N.C. Gen. Stat. \\u00a7 35A-1220 through 1228. Consequently, they continue, the definitions and jurisdictional requirements set out in the subchapter control and allow appointment of a guardian of the person for Trey by the Clerk. However, assuming arguendo the accuracy of these assertions, we nonetheless conclude the petition was properly dismissed on the basis of lack of jurisdiction.\\nThe pertinent statutory provisions are as follows:\\n(12) The term \\\"minor\\\" means a person who is under the age of 18, is not married, and has not been legally emancipated.\\n(a) The General Assembly of North Carolina recognizes that:\\n(6) Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to handle property or benefits to which they are entitled. Parents are the natural guardians of the person of their minor children, but unemancipated minors, when they do not have natural guardians, need some other responsible, accountable adult to be responsible for their personal welfare and for personal decision-making on their behalf.\\n(b) The purposes of this Subchapter are:\\n(1) To establish standards and procedures for the appointment of guardians of the person, . . . and for minors who need guardians.\\n(a) . . . . Clerks of superior court in their respective counties have original jurisdiction for the appointment of. . . general guardians for minors who have no natural guardian .\\nN.C. Gen. Stat. \\u00a7 35A-1202(12), 35A-1201(a)(6), 35A-1201(b)(l), and 35A-1203(a).\\nUnder this subchapter, therefore, the Clerk may appoint a guardian only for a minor who has no parent or natural guardian. G.S. \\u00a7 35A-1201(a)(6), 35A-1201(b)(l), and 35A-1203(a). Although Trey, 13 years old at the time of hearing, appears to meet the definitional requirements of G.S. \\u00a7 35A-1202(12), we reject petitioners' contention that he is without a natural guardian as the result of filing by the Jurgas of the Declaration.\\nWe have previously held \\\"[t]he exclusive judicial procedure to be used in termination of parental rights cases is prescribed by the Legislature in N.C. Gen. Stat. \\u00a7 7A-289.22, et seq. [Art. 24B].\\\" In re Curtis v. Curtis, 104 N.C. App. 625, 626-27, 410 S.E.2d 917, 919 (1991) (emphasis added) (trial court erred by granting summary judgment in TPR action because \\\"Article 24 of Chapter 7A does not provide for a summary proceeding . . . .\\\"); see also In re Pierce, 53 N.C. App. 373, 380, 281 S.E.2d 198, 203 (1981) (\\\"The statutorily established procedure for the termination of parental rights does not include the right to file a counterclaim, and we will not add that right by imputation.\\\")\\nIn G.S. \\u00a7 7A-289.22, our General Assembly declared its purpose in enacting Article 24B was\\nto provide judicial procedures for terminating the legal relationship between a child and his or her biological or legal parents when such parents have demonstrated that they will not provide the degree of care which promotes the healthy and orderly physical and emotional well-being of the child.\\nN.C.G.S. \\u00a7 7A-289.23 provides that the\\ndistrict court shall have exclusive original jurisdiction to hear and determine any petition relating to termination of parental rights to any child who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition.\\nA petition to \\\"terminate the parental rights of either or both parents,\\\" which institutes the action, may be filed by those persons or agencies listed in G.S. \\u00a7 7A-289.24(l)-(7). See In re Manus, 82 N.C. App. 340, 342, 346 S.E.2d 289, 291 (1986) (\\\"[section] limits the persons or agencies who may petition for termination of parental rights.\\\") Following the filing of a petition, G.S. \\u00a7 7A-289.30 and 7A-289.31 proscribe a two-stage proceeding: (1) the adjudicatory stage; and (2) the dispositional stage. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). During the adjudicatory phase, see G.S. \\u00a7 7A-289.30, the trial court must determine whether the petitioner has met its burden to prove by clear, cogent, and convincing evidence the presence of grounds for termination as set forth in G.S. \\u00a7 7A-289.32. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). At the dispositional stage, the court decides whether termination of parental rights is in the best interests of the child; if so, termination must then be ordered. G.S. \\u00a7 7A-289.31; see also In Re McMahon, 98 N.C. App. 92, 94, 389 S.E.2d 632, 633 (1990).\\nContrary to petitioners' proposition herein, however, nothing in the \\\"statutorily established procedure for the termination of parental rights,\\\" see Pierce, 53 N.C. App. at 380, 281 S.E.2d at 203, allows for a unilateral \\\"declaration of termination\\\" by the parents, and we specifically decline to \\\"add [such] right by imputation.\\\" See id. Moreover, we hold the Jurgas' attempt to relinquish their parental rights and responsibilities, see Wells v. Wells, 227 N.C. 614, 616, 44 S.E.2d 31, 33 (1947) (parental duty of support and maintenance), contravenes the statutorily prescribed scheme for termination of parental rights.\\nFirst, while G.S. \\u00a7 7A-289.24 provides that \\\"[e]ither parent\\\" may institute an action seeking termination of the rights of the other, it expressly limits the persons and agencies who may petition for termination, Manus, 82 N.C. App. at 342, 346 S.E.2d at 291, and in no wise includes natural parents jointly seeking termination of their own parental rights. Moreover, strikingly absent in the record sub judice is evidence of the statutorily prescribed two-stage proceeding at which the trial court, and not the parents, resolves the issues of whether grounds for termination exist, and if so, whether termination would indeed be in the best interests of the child. See White, 81 N.C. App. at 85, 344 S.E.2d at 38; and McMahon, 98 N.C. App. at 94, 389 S.E.2d at 633. In sum, we agree with appellee-guardian ad litem's assessment that \\\"[s]ince the parental rights of the Jurga's [sic] had not been terminated, they were still the natural guardians of the minor child, [and] therefore the Petition for Adjudication of Incompetence and Application for Appointment of Guardian was properly dismissed.\\\" See G.S. \\u00a7 35A-1201(a)(6), 35A-1201(b)(1), and 35A-1203(a) (giving the Clerk of Superior Court jurisdiction to appoint a guardian for a minor only when the minor has no natural guardian, i.e. parent.) While not insensitive to Trey's circumstance and the dilemma faced by the Jurgas, we must follow established law. See Roberts v. Young, 120 N.C. App. 720, 731, 464 S.E.2d 78, 86 (1995) (this Court \\\"is bound by the plain meaning of a statute where its language is clear and unambiguous,\\\" and our holdings \\\"must remain consistent with any previous interpretations of a statute.\\\")\\nHaving determined the petition was properly dismissed on jurisdictional grounds, we decline to discuss appellants' remaining arguments.\\nAffirmed.\\nJudges MARTIN, John C. and McGEE concur.\"}"

nc/12133149.json

@@ -0,0 +1 @@
+"{\"id\": \"12133149\", \"name\": \"State versus Boon\", \"name_abbreviation\": \"State v. Boon\", \"decision_date\": \"1801-12\", \"docket_number\": \"\", \"first_page\": \"246\", \"last_page\": \"261\", \"citations\": \"1 Tay. 246\", \"volume\": \"1\", \"reporter\": \"North Carolina Reports\", \"court\": \"North Carolina Superior Court\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:37:08.627867+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State versus Boon.\", \"head_matter\": \"State versus Boon.\\nThe act of 1791, sec. 3, relative to the murder of slaves, is not certain enough to warrant the Court to pass judgment of death upon a prisoner, convicted under it.\\nTHE prisoner was indicted on the third sec. of the act passed in 1791, the words of which are, \\u201c that if any person shall be hereafter guilty of wil- \\\" fully and maliciously killing a slave, such offender \\u201c shall upon the first conviction thereof be adjudg- \\\" ed guilty of murder, and shall suffer the same \\u201c punishment as if he had killed a freeman, any law \\\" usage or custom to the contrary notwithstanding.\\\"\\nThe prisoner was found guilty by a jury in Hillsborough Superior Court and being brought up to receive judgment, several exceptions were taken in arrest, by his counsel ; upon which the presiding judge directed the case to be sent up to obtain the opinion of this Court. The case was ably argued by Haywood and Duffy for the prisoner, and the Attorney General for the state.\\nThe following authorities were cited in behalf of the prisoner. 2 Hale\\u2019s Pl. Cor. 334, Kelyng 104, 4 Bl. Com. 98, 366, 2 Hawk. 446.\", \"word_count\": \"4341\", \"char_count\": \"24509\", \"text\": \"Hall, J.\\nThe prisoner has been found guilty of the offence charged in the indictment : whether any, or what punishment, can be inflicted upon him, in consequence thereof, is now to be decided. I will first consider, whether we have any authority to inflict any punishment upon him, from any Act of Assembly.\\nThe legislature in the year 1774, passed an Act, entitled an Act, to prevent the wilful and mali cious killing of slaves ; by which they annexed punishment of one year's imprisonment to the commission of the first offence ; and have declared that the person upon a second conviction thereof, shall be adjudged guilty of murder, and shall suffer death without benefit of clergy. In the year 1791, another Act was passed, for the purpose of examining this Act. The preamble of which, sec. 3, expresses, \\\" that whereas by another Act of As- \\\" sembly passed in the year 1774, the killing of a \\\" slave, however wanton &c. is only punishable \\\" in the first instance by imprisonment &c. which \\\" distinction of criminality between the murder of \\\" a white person, and one who is equally a human \\\" creature &c. is disgraceful to humanity &c. be it \\\" enacted &c. that if any person shall hereafter be \\\" guilty of wilfully and maliciously killing a slave, \\\" such offender shall upon the first coviction there- \\\" of be adjudged guilty of murder, and shall suf- \\\" fer the same punishment as if he had killed a free \\\" man.\\\" If we consider that the mildness of the punishment, directed to be inflicted upon the first conviction &c. by the former Act, is what the latter Act in its preamble, sec. 3, complains of, and go no further, our impression at once would be, that we had not only power to inflict a punishment upon the prisoner, but also, a greater one, than was annexed to the offence by the Act of 1774. But the preamble of a statute is no part of it ; 6 Mod. 62. Although it is often proper, to put such construction on a statute, as will agree with the preamble, yet it ought not to be done, when there by, the enacting clause would be confined to it ; 8 Mod. 144.\\nWe must then consider the words of the enacting clause, without regard to the preamble, in case they cannot be reconciled. If any person hereafter shall be guilty of killing a slave &c. such offender shall be adjudged guilty of murder &c. and shall suffer the same punishment, as if he had killed a free man. In case the person had killed a free man what punishment would the law have inflicted upon him ? Before this question can be solved, another must be asked ; because upon that, the solution of the first depends. What fort of a killing was it ? or what circumstances of aggravation or mitigation attended it ? did the act bespeak such depravity of heart, as would stamp it with the name of murder ? or were they such as justified it ? If of the former sort, capital punishment should be inflicted upon the author of it ; if of the latter sort, he is guiltless. That to which the legislature referred us for the purpose of ascertaining the punishment, proper to be inflicted is, in itself, so doubtful and uncertain, that I think no punishment whatever can be inflicted : without using a discretion and indulging a latitude, which in criminal cases, ought never to be allowed a Judge.\\nIt may be thought, that the words \\\" shall suffer \\\" the same punishment as if he had killed a free \\\" man,\\\" from the connexion in which they stand with the words preceding them in the same clause, viz. \\\" that if any person shall hereafter be guilty \\\" of wilfully and maliciously killing a slave \\\" should be allowed to have this meaning, and \\\" shall suffer \\\" the same punishment, as if he had wilfully and ma- \\\" liciously killed a free man.\\\" I cannot agree to this construction ; because if is a rule, that penal statutes should be construed strictly ; 1 Bl. Com. 88. Much latitude of construction ought not to be permitted to operate against life : if it operate at all, it should be in favor of it. Punishments ought to be plainly defined and easy to be understood ; they ought not to depend upon construction or arbitrary discretion.\\nPerhaps the legislature did intend, that those words should convey that meaning ; but it is not certain that such was their intention : if it was, it might have been easily expressed ; and indeed, if it were so expressed, it would not be altogether free from uncertainty. But suppose that to have been their intention, and that intention plainly expressed and free from uncertainty ; is the benefit of clergy taken away ? It is laid down in 2 Hale 330, that where a statute makes a new felony, clergy is incident thereto, unless it be especially taken away by Act of Parliament. This doctrine is recognized by Sir William Blackstone in the fourth book of his commentaries, page 98 ; but I think it unnecessary to consider this part of the case now ; because, for the reasons given, I do not feel myself authorized by the Act of Assembly, to say that any punishment should be inflicted on the prisoner. I will only add, that our legislature seem to have also recognized the doctrine laid down by Ld. Hale, because in the Act of 1774, before spoken of, the benefit of clergy is taken away in express words, upon a second conviction &c ; the same thing is evidenced by many other Acts of Assembly.\\nII. But it has been also contended, on behalf of the State, that the offence with which the prisoner is charged, is a felony at common law, and that having been found guilty by the jury, he ought to be punished, independently of any Act of Assembly on the subject. This question arises out of the peculiarity of our situation ; slavery not being known to the laws of England, from them we cannot derive our usual information. Sir William Blackstone says, liberty is so deeply implanted in the English Constitution, that the moment a slave lands there, he falls under the protection of the laws, and so far becomes a free man ; though the master's right to his service may possibly continue ; 1 Bl. Com. 127. From this expression, I understand the author's meaning to be, that the reason why the laws extend their protection to a slave is, because the moment he lands in England he undergoes a change, his condition is ameliorated, and in contemplation of law, at least, he is no longer a slave, but a free man. If this be the reason, why a slave comes within the protection of the laws of England, it would follow, that if a slave were carried there, and his condition of slavery were not altered, the laws would not extend their protection to him ; because a slave in a pure state of slavery, has no rights. President Montesquieu, in his Spirit of Laws, Vol. I. Book 15. cap. I. and Sir William Blackstone in his Commentaries, Vol, I. 423, define pure slavery to be, that whereby an absolute power is given to the master, over the life and fortune of his slave. In some countries where slavery has existed, laws have been made from time to time, ameliorating its condition ; the power of taking away their lives, or cruelly treating them, has sometimes been restrained : these restraints, we find, were the consequence of positive laws : they did not exist before these laws imposed them ; they were unknown in a pure state of slavery. It is said in Co. Litt. 116, b, that he that was taken in battle, remained bond to his taker forever, and he could do with him as with his beast ; he could kill him with impunity, &c. Afterwards we find it ordained, that the life of a villein was not in the power of his lord ; that he that killed his villein, should have the same punishment as if he had killed a free man. The lord could not maim his villein ; if he did, the King would punish him for maiming his subject ; because he disabled him, so that he could not do the King service ; Co. Litt. 127. a. Villeinage however, as it existed in England, reflects but little light on our subject ; it had, attached to it, certain rights, that were unknown to a pure state of slavery. We have seen, that a villein is called the King's subject ; that the King had a right to exact services from him ; the lord's power over him was not absolute : a villein could not sue his lord, but could bring all manner of actions against every other person ; he might have an action of appeal against his lord for the death of his father &c ; Litt. sec. 189 : he might be an executor, and in that capacity sue his lord ; sec. 191.\\nSlaves in this country, possess no such rights ; their condition is more abject ; 2 Sal. 666 : they are not parties to our Constitution ; it was not made for them. What the powers of a master were over his slave, in this country, prior to the year 1774, have not been defined. I have not heard, that any convictions and capital punishments took place before that period, for killing of negroes. By an Act of Assembly, passed in April, in the year 1741, cap. 24, sec. 54, it is declared that if in the dispersing of any unlawful assemblies of rebel slaves &c., apprehending runaways &c., in correction &c., any slave shall happen to be killed or destroyed &c., the court of the county &c., shall put a valuation upon such slave. In the next succeeding section it is declared, that nothing herein contained, shall be construed, deemed, or taken to defeat or bar the action of any persons, whose slave or slaves shall happen to be killed, by any other person whatsoever, contrary to the directions & c., of this Act ; but all and every owner &c., shall and may bring his, her or their action for recovery of damages, for such slave or slaves so killed. From this part of the Act it appears, that before the Act passed, an action could have been suitained, by the owner of a slave, against any person who killed him ; the sole object of the last section is to fix such a construction on the first, and so to explain it, as that such action shall not be defeated or barred. It does not give the action, which before, would not lie, but guards it from such construction as would tend to narrow its operation. If then, this action could have been sustained, it must have been on the ground, that slaves were considered as chattels. Killing a person may amount to felony or not, as the circumstances of the case may be, that attend it. I understand that this action was sustainable in all cases of a killing of slaves, except in the cases provided for in the 54th. sec. If the killing of a slave, should be considered a felony at common law, in case it was done under the same circumstances of aggravation, as in the case of a freeman, would amount to felony ; what would be the result ? the person offending, would be answerable, both civiliter and criminaliter. The trespass, or civil injury, would not be extinguished in the felony ; but it would depend upon accident, whether a recovery could be effected or not. If the indictment should be first tried, and the prisoner found guilty and executed, the action would be at an end ; actio personalis moritur cum persona, and I take that to be such an action as the maxim would bear upon. These are consequences, I cannot be led to believe the legislature intended to give rise to : that they did not, may be further ascertained, from the Act passed in the year 1774, before mentioned ; where it is mentioned, that if any person shall be guilty of wilfully and maliciously killing a slave &c. such offender shall suffer twelve months imprisonment, and upon a second conviction, shall be adjudged guilty of murder, and shall suffer death without benefit of clergy ; in 3 sec. it is further declared, that such offender shall on the first conviction thereof, pay the owner such sum as shall be the value of such slave : it is not expressed what compensation shall be made to the owner, upon a second conviction, when the offender is to suffer death ; nor does the Act of 1791 direct that compensation shall be made to the owner, by the offender. So that, it does not appear that the legislature had an idea, that the offender should suffer death, and also make compensation to the owner of the slave ; which we have seen, would have been the case, if the killing of a slave had been felony at common law.\\nThe Act passed in the year 1774, is entitled an act to prevent the wilful and malicious killing of slaves. If it was a felony at common law to do so, the punishment due to it, was greater than that inflicted by this Act. I admit that nothing decisive of the question, is to be collected from the preamble, which expresses that doubts existed as to the punishment proper to be inflicted ; it is true the legislature might have thought that the punishment of death for the first offence, was too severe, and therefore not proper to be inflicted ; and in lieu of it, have substituted one year's imprisonment.\\nThe legislature declare, in the Act passed in the year 1791, sec. 3, that the punishment inflicted by the Act passed in the year 1774, is too mild ; and no doubt they intended, for the first offence, to inflict the punishment of death upon the first conviction : if so, and it was a felony at common law to kill a slave, under any circumstances which, in the case of a free man, would amount to felony, would not the same end have been answered by repealing the Act of 1774, and leaving the offence to be punished at common law, instead of passing an act, intended to speak the same language and to inflict the same punishment, as was spoken and inflicted by the common law ?\\nI have taken this view of the Acts of Assembly, to ascertain, as well as I could, the opinion entertained by the legislature on the latter question. From the consideration which I have given the whole case, if I even felt disposed to act the most rigid part towards the prisoner, the most I could say, and the greatest length I could go, would be, that it is doubtful whether the offence with which he is charged is a felony at common law or not. If it is doubtful whether he ought to be punished or not, that, certainly, is a sufficient reason for discharging him ; crimes and punishments ought to be ascertained with certainty. Feeling, however, as I do, but little doubt, I cannot hesitate to say, that he ought to be discharged.\\nJohnston, J.\\nThe murder of a slave, appears to me, a crime of the most atrocious and barbarous nature ; much more so, than killing a person who is free, and on an equal footing. It is an evidence of a most depraved, and cruel disposition, to murder one, so much in your power, that he is incapable of making resistance, even in his own defence ; and if at any time, his conduct becomes so obnoxious, that it cannot be longer borne by his master, he has it in his power to dispose of him and remove him to any distance he thinks proper. It is unnecessary to consider, what punishment was annexed to the murder of slaves in other countries either in antient or modern times ; the definition of murder, as laid down in our books, applies as forcibly to the murder of a slave as to the murder of a freeman ; and had there been nothing in our Acts of Assembly, I should not hesitate on this occasion to have pronounced sentence of death on the prisoner.\\nBut the Act of 1791, chap. 4, sect. 3, after enacting \\\" that if any person hereafter be guilty of wilfully and maliciously killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of \\\"Murder ;\\\" had the act of assembly stopped here, there could have been no doubt in the present case ; but, when it goes on further to assign the punishment, it enacts in these words\\u2014 \\\" and shall suffer the same punishment, as if he had \\\" killed a freeman\\\". The killing of a freeman is punished in different ways, and in some cases no pun ishment is annexed to it ; as where a man kills another by accident, or as it is expressed in our books per infortunium ; or where a man kills another in his own defence. From the context, and taking every part of the section under consideration, there remains no doubt in my mind, respecting the intention of the legislature ; but the judges in this country as well as in England, have laid down, and invariably adhered to, very strict rules in the construction of penal statutes, in favor of life ; such as, that the words should be taken in mitiori sensu, where they are doubtful, or will admit of various constructions ; and that nothing shall be taken by construction, implication, or reference, from the context.\\nUnder these considerations ; under the influence of the decisions of the most respectable judges as reported in all the books which treat of the criminal law, though not without a considerable degree of reluctance, I am of opinion, that the judgment in this case should be arrested.\\nTaylor, J.\\nI cannot yield my assent to the position, that a new felony is created by the Act of 1791, or that any offence is created, which did not antecedently exist. For the killing of a slave, if accompanied with those circumstances which constitute murder, amounts to that crime, in my judgment, as much as the killing of a free man.\\nWhat is the definition of murder ? The unlawful killing of a reasonable creature within the peace of the state, with malice aforethought. A slave is a reasonable creature ; may be within the peace ; and is under the protection of the state ; and may become the victim of pre-conceived malice. Upon what foundation, can the claim of a master to an absolute dominion over the life of his slave, be rested ? The authority for it, is not to be found in the law of nature, for that will authorize a man to take away the life of another, only from the unavoidable necessity of saving his own ; and of this code, the cardinal duty is, to abstain from injury, and do all the good we can. It is not the necessary consequence of the state of slavery, for that may exist without it ; and its natural inconveniences ought not to be aggravated by an evil at which reason, religion, humanity and policy equally revolt. Policy may occasionally dictate the propriety of enhancing or mitigating the punishment ; may at one time subject the offender to a year's imprisonment, and at another to death ; yet amidst all these mutations the crime is unchanged in its essence, undiminished in its enormity. The scale of its guilt exists in those relations of things, which are prior to human institutions, and whose sanctions must forever remain unimpaired.\\nIt cannot be distinctly inferred, from the Act of 1774, that the legislature of that period doubted, whether this amounted to murder at common law ; they do indeed state, in the preamble of that Act, that some doubts have arisen, with respect to the punishment proper to be inflicted upon those guilty of the offence ; but such doubts resulting from considerations of a political nature, may very well consist with an entire conviction, that the crime is murder at common law. Doubtless, they may ordain what ever punishment they think fit for every crime ; they may at one time deem imprisonment sufficiently severe to repress the crime of killing a slave : when perhaps a different state of things may at another period suggest the necessity of an increased severity. But their adopting the lighter punishment, does not imply, that before the time of adoption, the act was without guilt. To pursue the argument in its consequences, it will follow, that from the first settlement of this state until the year 1774, no Act of the legislature having passed upon this subject, the crime of killing a slave with malice, was not punishable as homicide. The contrary conclusion appears to me most just ; namely that the crime was comprehended under the common law definition of murder, which the statutes of 23 Hen. 8 and 1 Ed. 6, deprived of clergy ; that it never ceased to be so considered: but, in 1774, the legis lature thought proper to mitigate the punishment of the first offence, from death, to imprisonment ; reserving the common law punishment of death to the second conviction. So it remained until 1791, when the legislature aimed to restore the former punishment, by the Act upon which this prisoner is indicted. The principle relied on is quite correct, that whenever an offence is made felony by statute, it shall have the benefit of clergy, unless it be expresly excluded from it ; and in all felonies clergy is allowable, unless taken away by statute ; but the Act of 1791 repealing that of 1774, necessarily revived the operation of those statutes by which murder is deprived of clergy, and if this Act had been a simple repeal, or sufficiently explicit in other respects, judgment of death must have been pronounced against the prisoner. But when the Court is called upon, under an Act of Assembly, to pronounce the highest punishment known to the law, they must he satisfied that the language used is clear and explicit to the object intended. For if it admits of two constructions, that must be adopted which is favorable to the prisoner. On this ground therefore and the reasons given by the rest of the Court, I think no judgment can be pronounced.\\nMacay, J.\\nThis indictment is grounded on the 3 sec. of the Act of the General Assembly, passed in 1791, entitled an Act to amend an Act, entitled an Act to prevent thefts and robberies by slaves, free negroes and mulattoes, passed in 1787, and to amend an Act, passed in 1774, entitled an Act to prevent the wilful and malicious killing of slaves.\\nThe third section enacts that if any person shall hereafter be guilty of wilfully and maliciouly killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of murder, and shall suffer the same punishment as if he had killed a freeman, any law, or usage to the contrary notwithstanding.\\nHomicide, under the laws of this State, is divided into three classes, I. Murder, which is punishable with death and always attended with malice, express or implied ; II. Manslaughter, which is done on a sudden provocation, un-accompanied with malice, for this offence the offender is entitled to his clergy : III. Simple Homicide which is either justifiable or excusable, and for which the law of this State has inflicted no kind of punishment : the person charged being deemed unfortunate and not criminal. This is an offence first legislated upon by the Act of 1774, and finally by this Act of the General Assembly, of 1791, which has not affixed either the punishment of murder or manslaughter to it, but that of killing a freeman. The killing of a freeman under such circumstances as amounts neither to murder or manslaughter, is no crime ; no punishment can be inflicted ; the person charged is to be acquitted and discharged on his payment of costs. Therefore judgment must be stayed and the prisoner discharged.\\nJudgment arrested.\\nAccording to Judge Blackstone, the principal efficacy of human laws consists in restraining the conduct of men, as to in-indifferent points; but, he adds, \\\" with regard to such points as \\\" are not indifferent, human laws are only declaratory of, and \\\" act in subordination to, the divine and natural law. To in- \\\" stance in the case of murder: this is expressly forbidden by the \\\" divine and demonstrably by the natural law: and from these \\\" prohibitions arises the true unlawfulness of this crime. Those \\\" human laws, that annex a punishment to it, do not at all en- \\\" crease it's moral guilt, or superadd any fresh obligations in fo- \\\" ro conscience to abstain from it's perpetration.\\\" 1 Com. 43.\"}"

nc/12175630.json

@@ -0,0 +1 @@
+"{\"id\": \"12175630\", \"name\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\", \"name_abbreviation\": \"State v. Shaw\", \"decision_date\": \"2014-09-16\", \"docket_number\": \"No. COA14-125\", \"first_page\": \"453\", \"last_page\": \"456\", \"citations\": \"236 N.C. App. 453\", \"volume\": \"236\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:25:09.562500+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges CALABRIA and STEPHENS concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\", \"head_matter\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\\nNo. COA14-125\\nFiled 16 September 2014\\nAppeal and Error\\u2014appeal after guilty plea\\u2014driving while impaired\\u2014no statutory right\\nDefendant\\u2019s appeal from judgment entered after pleading guilty to driving while impaired was dismissed because she had no statutory right to appeal.\\nAppeal by defendant from judgment entered 25 February 2013 by Judge Sharon Tracey Barrett in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 August 2014.\\nAttorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.\\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant.\", \"word_count\": \"1081\", \"char_count\": \"6490\", \"text\": \"ELMORE, Judge.\\nDefendant appeals from judgment entered 25 February 2013 after she pled guilty to driving while impaired (DWI). The trial court sentenced defendant to imprisonment for 12 months minimum, 12 months maximum, which was suspended for 18 months on various conditions including an active sentence of 14 days imprisonment. After careful consideration, we dismiss defendant's appeal.\\nI. Facts\\nOn 25 October 2011, Susan Denise Shaw (defendant) was convicted of misdemeanor DWI in Mecklenburg County District Court. She appealed the conviction to Mecklenburg County Superior Court and pled guilty to the same charge on 25 February 2013. The trial court found one grossly aggravating factor, a prior DWI conviction within seven years before the current conviction's offense date, and imposed a Level Two punishment. Defendant timely appeals to this Court.\\nII. Analysis\\na.) Right to Appeal\\nThe State argues for this Court to dismiss defendant's appeal because defendant has no statutory right to appeal. We agree.\\nN.C. Gen. Stat. \\u00a7 15A-1444(e) (2013), in relevant part, states:\\nExcept as provided in subsections (al) and (a2) of this section... the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.\\nThus, a defendant can appeal as a matter of statutory right pursuant. to a guilty plea, in pertinent part, if she satisfies either N.C. Gen. Stat. \\u00a7 15A-1444 (al) or (a2). Under subsection (al):\\nA defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.\\nN.C. Gen. Stat. \\u00a7 15A-1444(al) (2013).\\nThe provision of (al) does not apply to the case at bar because defendant did not enter a plea of guilty to a felony. See id. Moreover, defendant's argument on appeal solely relates to the State's failure to give timely notice of its intent to seek a grossly aggravating factor at sentencing, not whether her sentence was supported by evidence introduced at the sentencing hearing. We also note that while defendant requests, in the alternative, that we \\\"review the case under [our] cer-tiorari jurisdiction[,]\\\" we do not have the authority to do so under these circumstances. See N.C. R. App. R 21(a)(1) (providing that this Court may issue a writ of certiorari to \\\"permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review . of an order of the trial court denying a motion for appropriate relief'). Even if we had such authority, defendant nevertheless fails to satisfy the filing and content requirements of a petition for writ of certiorari pursuant to Appellate Rule 21(c). See N.C. R. App. P. 21(c).\\nUnder subsection (a2), the specific enumerated statutory avenues of appeal fall under Article 81B (Structured Sentencing), which is expressly inapplicable to a defendant convicted of DWI. See N.C. Gen. Stat. \\u00a7 15A-1444(a2); see also N.C. Gen. Stat. \\u00a7 15A-1340.10 (2013) (\\\"[Article 81B] applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1[.]\\\") (emphasis added).\\nDefendant cites State v. Parisi in support of her assertion that she has a statutory right to appeal her DWI guilty plea. 135 N.C. App. 222, 519 S.E.2d 531 (1999). We are unpersuaded. In Parisi, the defendant pled guilty to DWI in superior court, and the sentencing judge determined that the defendant's prior conviction for \\\"driving while ability impaired\\\" in New York constituted a grossly aggravating factor. Id. at 222, 519 S.E.2d at 532. Defendant appealed, and this Court ruled on the merits of the defendant's argument. Id. at 223, 519 S.E.2d at 532. Unlike the case at bar, there is no indication that the State raised the issue of the defendant's statutory right to appeal through a motion to dismiss, and the Parisi court's opinion indicates that it did not consider or rule on that issue. This Court only addressed whether the prior New York conviction was a grossly aggravating factor. Id. at 223-27, 519 S.E.2d at 532-34.\\nHowever, in State v. Absher, our Supreme Court addressed the very issue presented to us in this appeal. 329 N.C. 264, 265, 404 S.E.2d 848, 849 (1991). In Absher, the defendant pled guilty to DWI in superior court, and he attempted to appeal the sentencing court's judgment to this Court. Id. at 265, 404 S.E.2d at 849. The State filed a motion to dismiss on appeal, arguing that the defendant \\\"had no right to appellate review from the judgment and sentence imposed pursuant to his plea of guilty.\\\" Id. Our Supreme Court ruled that dismissal of the defendant's appeal was necessary because \\\"[n]one of the exceptions mentioned in [N.C. Gen. Stat. \\u00a7 15A-1444(e)] apply in this case, and defendant is therefore not entitled to appeal as a matter of right from the judgment entered on his plea of guilty.\\\" Id. Similarly, no provision in N.C. Gen. Stat. \\u00a7 15A-1444(e) gives defendant in this case a statutory right to appeal. Thus, we dismiss defendant's appeal.\\nIII. Conclusion\\nIn sum, we dismiss the appeal because defendant does not have a statutory right to appeal.\\nDismissed.\\nJudges CALABRIA and STEPHENS concur.\"}"

nc/12209588.json

@@ -0,0 +1 @@
+"{\"id\": \"12209588\", \"name\": \"State v. Donald Jay Young\", \"name_abbreviation\": \"State v. Young\", \"decision_date\": \"2015-12-15\", \"docket_number\": \"468P13-3\", \"first_page\": \"606\", \"last_page\": \"606\", \"citations\": \"368 N.C. 606\", \"volume\": \"368\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:31:27.241694+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Donald Jay Young\", \"head_matter\": \"468P13-3\\nState v. Donald Jay Young\", \"word_count\": \"28\", \"char_count\": \"155\", \"text\": \"1. Def's Pro Se Motion for PDR (COAP15-745)\\n1. Dismissed\\n2. Def's Pro Se Motion to Appoint Counsel\\n2. Dismissed as moot\"}"

nc/12639556.json

@@ -0,0 +1 @@
+"{\"id\": \"12639556\", \"name\": \"STATE of North Carolina v. Ernest Lee Junior PETTIS.\", \"name_abbreviation\": \"State v. Pettis\", \"decision_date\": \"2007-09-18\", \"docket_number\": \"No. COA06-1380.\", \"first_page\": \"231\", \"last_page\": \"235\", \"citations\": \"651 S.E.2d 231\", \"volume\": \"651\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of North Carolina\\nv.\\nErnest Lee Junior PETTIS.\", \"head_matter\": \"STATE of North Carolina\\nv.\\nErnest Lee Junior PETTIS.\\nNo. COA06-1380.\\nCourt of Appeals of North Carolina.\\nSeptember 18, 2007.\\nAppeal by defendant from judgment entered 28 February 2006 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 20 August 2007.\\nAttorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.\\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant.\", \"word_count\": \"2377\", \"char_count\": \"14310\", \"text\": \"McCULLOUGH, Judge.\\nDefendant appeals a judgment entered after a jury verdict of guilty of two counts of statutory rape, one count of second-degree rape and one count of taking indecent liberties with a child. We determine there was no prejudicial error.\\nFACTS\\nErnest Lee Junior Pettis (\\\"defendant\\\") was indicted for two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. The State presented evidence at trial which tended to show the following:\\nA.W. was born on 1 June 1990. In December 2003, she was living at the Above and Beyond group home in Kings Mountain. Above and Beyond is a Level III facility that provides twenty-four-hour supervision.\\nIn December 2003, A.W. ran away from the group home and encountered defendant. Defendant told her to follow him, which she did. They went into the woods. After they had been talking in the woods for awhile, a man named Flinto picked up A.W. and defendant and took them to his house. At Flinto's house, A.W. had sex with Flinto because defendant told her that in order to stay at Flinto's house, A.W. had to have sex with Flinto.\\nFrom Flinto's house, A.W. and defendant went to Nancy Gladden's house, where they stayed for a couple of days. A.W. told defendant she was in the custody of DSS. She also told him she was fifteen or sixteen. A.W. testified that defendant told her he had a child her age. She also testified that defendant told her he was \\\"twenty-something.\\\" A.W. and defendant had sex at Ms. Gladdens' house. A.W. estimated that she and defendant had sex there four to ten times. Defendant did not wear a condom. The police located A.W. at Ms. Gladden's home. Defendant, who hid in the basement, had told A.W. not to mention anything about him.\\nWhen the police returned A.W. to the group home, A.W. said she had been raped. A.W. testified at trial that she had sex with defendant because she wanted to, and defendant did not force her to have sex with him.\\nA.W. was taken to the Kings Mountain Hospital's emergency room for a rape kit exam. Nurse Audrey Baker examined A.W. A.W. told Nurse Baker she had run away from the group home and met a person she did not know. A.W. said she was taken to one place in Bessemer City and raped and then taken to another place in Kings Mountain and raped repeatedly over several days. Nurse Baker observed that A.W. had a brownish-yellowish bruise on her left breast. A.W.'s genital, vaginal, and rectal exam results were normal.\\nHope Dorsey worked at the group home the night A.W. ran away. Ms. Dorsey testified that when she last saw A.W., A.W. was wearing gray jogging pants, a jacket, and shoes. A.W. was wearing a different outfit when the police brought her back to the group home. Kings Mountain police officers went to Nancy Gladden's house. Ms. Gladden consented to a search of the house. Captain Derek Johnson found a pair of gray jogging pants in the washing machine. There was no water in the washing machine, and the pants were not wet. Ms. Dorsey recognized the pants as being the pair A.W. was wearing when Ms. Dorsey last saw her before A.W. ran away. The gray pants were sent to the SBI lab for testing. Special Agent Jed Taub, who was received without objection as an expert in forensic serology, forensic DNA analysis, and forensic biology, testified that he found spermatozoa and semen and epithelial cells on the crotch of the pants. This was consistent with being vaginal drainage of a mixture of vaginal fluid and spermatozoa and semen. The predominant DNA profile obtained from the cutting from the crotch of the pants matched defendant's DNA profile.\\nA.W. identified defendant from a photo array, and subsequently, defendant was arrested. As part of the booking process, defendant told the arresting officer that his date of birth was 1 February 1969 and he was thirty-four years old.\\nWilliam Boyd, who was born on 21 January 1959, testified that he goes by the name Flinto. Mr. Boyd said he had never seen A.W. prior to court, and he denied having sex with her. Mr. Boyd testified that defendant \\\"might have brought a young lady over to the house.\\\" He said defendant and the girl were at his house for a few hours and were hugging. He said he then drove them to Monroe Avenue.\\nThe jury found defendant guilty of two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. Defendant appeals.\\nI.\\nDefendant contends the trial court erred in denying his requested instruction on the offense of sexual battery because sexual battery is a lesser included offense of second-degree rape. We disagree.\\nThe North Carolina Supreme Court has defined what a lesser included offense is as follows:\\n[T]he definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\\nState v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (citation omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).\\nWe determine the offense of sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) (2005), is not a lesser included offense of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) (2005). Second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) provides:\\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\\n.\\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\\nId. The sexual battery statute provides, in pertinent part:\\n(a) A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:\\n.\\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.\\nN.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) (2005). Therefore, the offense of sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) has a purpose element, requiring the act be completed for the purpose of sexual arousal, sexual gratification, or sexual abuse that is not an element of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2). Accordingly, sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) is not a lesser included offense of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) and we disagree with defendant.\\nII.\\nDefendant contends the trial court erred in denying his requested instruction on the offense of assault on a female because assault on a female is a lesser included offense of statutory rape. We disagree.\\nAs explained above, \\\"[i]f the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\\\" Weaver, 306 N.C. at 635, 295 S.E.2d at 379. The crime of assault on a female under N.C. Gen.Stat. \\u00a7 14-33(c)(2) (2005) has essential elements that are not covered by the crime of statutory rape under N.C. Gen.Stat. \\u00a7 14-27.7A(a) (2005). First, the crime of assault on a female requires proof of an assault, N.C. Gen. Stat. \\u00a7 14-33(c)(2), whereas statutory rape does not require proof of an assault. N.C. Gen.Stat. \\u00a7 14-27.7A(a). Second, the crime of assault on a female requires proof that the defendant is a male, N.C. Gen.Stat. \\u00a7 14-33(c)(2), which the crime of statutory rape does not require. N.C. Gen.Stat. \\u00a7 14-27.7A(a). Accordingly, we disagree with defendant.\\nIII.\\nDefendant contends the trial court erred by admitting the testimony of an SBI agent regarding the DNA examination and report of a non-testifying SBI agent in violation of defendant's constitutional right to confrontation and the rules of evidence. We disagree.\\nWith regard to the DNA report, defense counsel was afforded the opportunity to formally object to the jury receiving the report during deliberations. The trial court asked defendant's counsel whether he wished to be heard on the matter. Not only did defense counsel fail to object to the jury receiving this document, he consented. The following exchange occurred:\\n[DEFENSE COUNSEL]: I don't know if they just want the specific DNA report o[r] if they want the other laboratory report. I would continue [sic] to the Court to send them both back.\\nTHE COURT: Do ya'll have any objections to sending all the exhibits back?\\n[PROSECUTOR]: No, Sir.\\n.\\n[DEFENSE COUNSEL]: I don't have any objection. If [the prosecutor] and I could just go through those documents, just very quickly make sure that we think everything is in there that is a document.\\nDefense counsel failed to object and his argument has not been preserved on appeal. N.C. R.App. P. 10(b)(1) (2007). Further, defense counsel did not assign error in his appellate brief to the jury receiving the DNA report during deliberations. N.C. R.App. P. 10(a). This assignment of error is dismissed.\\nAt trial, SBI Agent David Freeman testified about a DNA analysis that was performed by Agent Jenny Elwell on a cutting taken from the gray pants recovered from Ms. Gladden's house. Agent Elwell did not testify at trial because she was in Seattle, Washington, attending a conference. Agent Freeman's opinion was based on Agent Elwell's report and notes. Defendant objected at trial to Agent Freeman's testimony citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant stated that the testimony violated his Sixth Amendment Confrontation Clause rights, as well as N.C. Gen.Stat. \\u00a7 8C-1, Rules 702 and 703. The trial court overruled defendant's objection. On appeal, defendant contends that Agent Freeman's testimony violated his Confrontation Clause rights and was inadmissible hearsay.\\nWe determine defendant's Confrontation Clause rights were not violated. \\\"[I]t is well established [that there is no violation of a defendant's right of confrontation under the rationale of Crawford when] an expert . base[s] an opinion on tests performed by others in the field and [d]efendant was given an opportunity to cross-examine [the testifying expert] on the basis of his opinion[.]\\\"\\nState v. Delaney, 171 N.C.App. 141, 144, 613 S.E.2d 699, 701 (2005). Although the State did not formally tender Agent Freeman as an expert witness, he can still testify as an expert. See State v. White, 340 N.C. 264, 293-94, 457 S.E.2d 841, 858 (\\\"While the better practice may be to make a formal tender of a witness as an expert, such a tender is not required.\\\"), cert. denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995). Accordingly, we disagree with defendant.\\nIV.\\nDefendant contends the trial court erred in overruling his objection to his statement about his age made during a custodial interrogation without the benefit of Miranda warnings, in violation of his constitutional right to be free from self-incrimination. We disagree.\\nAt the time of defendant's arrest, Officer K.L. Putnam of the Kings Mountain Police Department asked defendant questions, including what defendant's date of birth was, as part of the booking process. Defendant objected at trial to allowing Officer Putnam to testify what defendant said his date of birth was, arguing that the statement was obtained in violation of his Miranda rights and should therefore be suppressed. The trial court overruled this objection and denied the motion to suppress. On appeal, defendant challenges this ruling.\\nAfter reviewing the record and transcript, we determine that any error by the trial court was harmless beyond a reasonable doubt. N.C. Gen.Stat. \\u00a7 15A-1443(b) (2005). Defendant's mother testified at trial that she gave birth to defendant on 1 February 1969. Therefore, even if Officer Putnam's testimony was completely disregarded, there was other evidence of defendant's date of birth. Accordingly, we disagree with defendant.\\nV.\\nDefendant contends the trial court's jury instructions failed to ensure that the jury's verdicts were unanimous. We disagree.\\nIn determining whether a defendant has been unanimously convicted by a jury, our courts have looked at many factors including: (1) whether defendant raised an objection at trial regarding unanimity; (2) whether the jury was instructed on all issues, including unanimity; (3) whether separate verdict sheets were submitted to the jury for each charge; (4) the length of time the jury deliberated and reached a decision on all counts submitted to it; (5) whether the record reflected any confusion or questions as to jurors' duty in the trial; and (6) whether, if polled, each juror individually affirmed that he or she had found defendant guilty in each individual case file number. See State v. Lawrence, 360 N.C. 368, 376, 627 S.E.2d 609, 613 (2006).\\nHere, we determine there was no problem with the unanimity of the jury's verdicts. The jury was instructed on all the issues, including unanimity. The trial court states that the jury's verdicts must be unanimous by stating, \\\"You may not return a verdict until all 12 jurors agree unanimously.\\\" Separate verdict sheets were submitted for each charge. In addition, two verdict sheets were used for the two statutory rape charges and were differentiated by the date of the alleged offense. Further, the record does not reflect that the jury was confused. Accordingly, we disagree with defendant.\\nNo prejudicial error.\\nChief Judge MARTIN and Judge TYSON concur.\"}"

nc/12641440.json

@@ -0,0 +1 @@
+"{\"id\": \"12641440\", \"name\": \"In the Matter of A.T.\", \"name_abbreviation\": \"In re A.T.\", \"decision_date\": \"2008-07-15\", \"docket_number\": \"No. COA08-223.\", \"first_page\": \"917\", \"last_page\": \"920\", \"citations\": \"662 S.E.2d 917\", \"volume\": \"662\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:26.210796+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the Matter of A.T.\", \"head_matter\": \"In the Matter of A.T.\\nNo. COA08-223.\\nCourt of Appeals of North Carolina.\\nJuly 15, 2008.\\nAppeal by Petitioner from order entered 4 January 2008 by Judge Lisa V. Menefee in Forsyth County District Court. Heard in the Court of Appeals 11 June 2008.\\nTheresa A. Boucher, Assistant Forsyth County Attorney, for Petitioner-Appellant Forsyth County Department of Social Services.\\nWomble Carlyle Sandridge & Rice, by Andrew L. Fitzgerald, Winston-Salem, for Guardian ad Litem-appellee.\", \"word_count\": \"1554\", \"char_count\": \"9404\", \"text\": \"ARROWOOD, Judge.\\nPetitioner-appellant Forsyth County Department of Social Services (DSS) appeals from an order denying its motion for review of a nonsecure custody order. We dismiss the appeal.\\nThe pertinent history of this case is summarized as follows: In March 2006 DSS substantiated a report of neglect of a female child, A.T. On 3 July 2007, more than a year later, DSS filed a petition alleging that A.T. was neglected. In an attachment to the petition, DSS informed the trial court that since 2 March 2006 A.T. had \\\"been in a Kinship placement\\\" with her mother's ex-husband and the ex-husband's wife, \\\"K.C. and B.F.\\\" The court conducted a nonsecure custody hearing on 9 July 2007, and entered a written order on 18 September 2007. The court ordered, inter alia, that A.T.'s custody \\\"shall remain with [DSS]\\\" and that \\\"foster care board rate shall be paid to [K.C. and B.F.] effective March 2, 2006.\\\" A.T. was adjudicated neglected on 10 August 2007, and a written order was entered 25 September 2007. The trial court ordered that K.C. and B.F. continue to \\\"receive foster care Board Rate\\\" from DSS. Following a review hearing 5 October 2007, the court ordered A.T.'s custody to remain with DSS.\\nThe record shows that DSS did not object to the court's 9 July 2006 order that it pay foster care board to K.C. and B.F., and that it made no attempt to appeal either the nonsecure custody order, the adjudication order, or the review order. However, on 22 October 2007 DSS filed a \\\"Motion for Review\\\" seeking review of \\\"the foster care board rate provisions\\\" of the Court's nonsecure custody order. DSS asserted in its motion that it was \\\"not appropriate\\\" that the trial court had ordered DSS to pay foster care board rate retroactive to 2 March 2006, because A.T. \\\"has only been in the custody and placement responsibility of [DSS] since July 3, 2007.\\\" The trial court conducted a hearing on DSS's motion on 2 November 2007. On 4 January 2008 the trial court entered an order denying DSS's motion, from which DSS has appealed.\\nThe dispositive issue is whether Appellant's appeal is properly before the Court. We conclude that it is not, and that Appellant has no right of direct appeal from either the nonsecure custody order or from the trial court's ruling on DSS's motion for review of the nonsecure custody order.\\nAppeal in juvenile cases is governed by N.C. Gen.Stat. \\u00a7 7B-1001 (2007), which provides in pertinent part that:\\n(a) In a juvenile matter . appeal of a final order of the court . shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed:\\n(1) Any order finding absence of jurisdiction.\\n(2) Any order . which in effect determines the action and prevents a judgment from which appeal might be taken.\\n(3) Any initial order of disposition and the adjudication order upon which it is based.\\n(4) Any order, other than a nonsecure custody order, that changes legal custody of a juvenile.\\n(5) An order entered under [\\u00a7] 7B-507(c) .\\n(6) Any order that terminates parental rights or denies a [termination] petition[.]\\n(emphasis added).\\nIn the instant case, DSS appeals from a motion for review of the board payments ordered in a nonsecure custody order. Nonsecure custody orders are expressly excluded from the statutory list of appealable juvenile orders, and the motion for review is not a \\\"final order\\\" as defined in N.C. Gen. Stat. \\u00a7 7B-1001. Accordingly, Appellant has no right of appeal from the trial court's ruling on its motion. Appellant, however, argues that it has a right to appeal under N.C. Gen.Stat. \\u00a7 7B-1001(a)(1), which permits appeal from \\\"[a]ny order finding absence of jurisdiction.\\\" We disagree.\\nFirst, the term \\\"jurisdiction,\\\" used in reference to the trial court's order for foster care board payments, is a misnomer. \\\"`Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it[,'] .' [and] is conferred upon the courts by either the North Carolina Constitution or by statute.'\\\" In re McKinney, 158 N.C.App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Haker-Volkening v. Haker, 143 N.C.App. 688, 693, 547 S.E.2d 127, 130 (2001) and Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987)). \\\"Jurisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment. Jurisdiction presupposes the existence of a duly constituted court with control over a subject matter which comes within the classification limits designated by the constitutional authority or law under which the court is established and functions.\\\" Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (citations omitted).\\nUnder N.C. Gen.Stat. \\u00a7 7B-200(a) (2007) the trial court \\\"has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.\\\" Nonsecure custody hearings are governed by N.C. Gen.Stat. \\u00a7 7B-506 (2007), which directs the trial court to conduct hearings on the need for continued nonsecure custody in certain circumstances. Under Section 7B-506(d), if the trial court determines that the juvenile meets the criteria for nonsecure custody, \\\"the court shall issue an order to that effect . in writing . signed and entered within 30 days of the completion of the hearing.\\\" Clearly, the trial court had jurisdiction over the nonsecure custody hearing and entry of a nonsecure custody order. Under N.C. Gen.Stat. \\u00a7 7B-1000(b) (2007), if the trial court \\\"finds the juvenile to be abused, neglected, or dependent, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the juvenile[.]\\\" Accordingly, the trial court had jurisdiction to conduct a hearing and to rule on Appellant's motion for review. We conclude that the trial court had jurisdiction over the proceedings and orders at issue in this case.\\nWe further conclude that the issue raised by Appellant is not jurisdictional in nature. Appellant argues that the trial court erred by including in its nonsecure custody order a provision requiring DSS to pay foster care board retroactively to a date before the hearing. Assuming, arguendo, that the trial court erred in the scope of its order for board payments to K.C. and B.F., this does not necessarily deprive the court of jurisdiction. See, e.g., In re A.R.G., 361 N.C. 392, 398, 646 S.E.2d 349, 353 (2007) (\\\"absence of the juvenile's address on the petition did not prevent the trial court from exercising subject matter jurisdiction over this juvenile action\\\"); In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760 (2006) (\\\"time limitations in the Juvenile Code are not jurisdictional\\\"); Parslow v. Parslow, 47 N.C.App. 84, 89-90, 266 S.E.2d 746, 750 (1980) (case tried in district court; Court holds that, although \\\"appropriate procedure\\\" would have been to try case in superior court, \\\"the defect is not jurisdictional\\\") (citations omitted). In the instant case, Appellant fails to articulate why an error in the award of foster care board fees would deprive the trial court of jurisdiction over the case.\\nAppellant also asserts a right to appeal based on the trial court's findings of fact numbers seven (7) and nine (9):\\n7. The Court recognizes now that the Juvenile Court had no jurisdiction regarding the care, custody or provision of services for [A.T.] prior to July 3, 2007.\\n9. Although the Court had no jurisdiction, the Court continues the July 9, 2007 Court Order as previously entered.\\nAppellant contends that the presence of these findings compels a conclusion that this is an order \\\"finding absence of jurisdiction\\\" and therefore subject to appeal. We disagree.\\nThe trial court did not rule that it lacked jurisdiction to decide DSS's motion for review. Instead, the court addressed the merits of DSS's motion for review and issued an order denying the requested relief. Consequently, the order is not one \\\"finding absence of jurisdiction.\\\" Further, it is not transformed into such an order merely because the trial court questioned whether it had the authority (characterized in the order as its \\\"jurisdiction\\\") to order foster care board rates in a nonsecure custody order that the court entered months earlier. We conclude that the court's ruling on Appellant's motion is not subject to immediate review as an order \\\"finding absence of jurisdiction\\\" in the meaning of N.C. Gen.Stat. \\u00a7 7B-1001(1).\\nFor the reasons discussed above, we conclude that the Appellant's appeal must be\\nDismissed.\\nChief Judge MARTIN and Judge ELMORE concur.\\nTo preserve the privacy of the minor child, we refer to her in this opinion by the initials \\\"A.T.\\\"\\nTo preserve the privacy of the individuals involved, we refer to A.T.'s guardians by the initials K.C. and B.F.\"}"

nc/12643411.json

@@ -0,0 +1 @@
+"{\"id\": \"12643411\", \"name\": \"James R. CRIDER, Sr. and wife, Kathy Crider v. John Vincent CATTIE, M.D.\", \"name_abbreviation\": \"Crider v. Cattie\", \"decision_date\": \"2015-08-20\", \"docket_number\": \"No. 197P15.\", \"first_page\": \"854\", \"last_page\": \"855\", \"citations\": \"775 S.E.2d 854\", \"volume\": \"775\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:34.430118+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"James R. CRIDER, Sr. and wife, Kathy Crider\\nv.\\nJohn Vincent CATTIE, M.D.\", \"head_matter\": \"James R. CRIDER, Sr. and wife, Kathy Crider\\nv.\\nJohn Vincent CATTIE, M.D.\\nNo. 197P15.\\nSupreme Court of North Carolina.\\nAug. 20, 2015.\\nSteven C. Lawrence, Fayetteville, for Crider, James R. (Sr.), et al.\\nJeffery Kent Carpenter, for Crider, James R. (Sr.).\\nScott M. Stevenson, Charlotte, for Cattie, John Vincent (M.D.).\\nKaren H. Stiles, Charlotte, for Cattie, John Vincent (M.D.).\\nScott A. Hefner.\\nStacey E. Tally, Fayetteville, for Crider, James R. (Sr.).\\nJacob Stump, Charlotte, for Cattie, John Vincent (M.D.).\\nORDER\", \"word_count\": \"145\", \"char_count\": \"889\", \"text\": \"Upon consideration of the petition filed on the 11th of June 2015 by Plaintiffs in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\\n\\\"Denied by order of the Court in conference, this the 20th of August 2015.\\\"\"}"

nc/12643575.json

@@ -0,0 +1 @@
+"{\"id\": \"12643575\", \"name\": \"STATE v. Napoleon Junior RANKIN.\", \"name_abbreviation\": \"State v. Rankin\", \"decision_date\": \"2015-08-20\", \"docket_number\": \"No. 40P15\\u20133.\", \"first_page\": \"212\", \"last_page\": \"212\", \"citations\": \"776 S.E.2d 212\", \"volume\": \"776\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:35.166695+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE\\nv.\\nNapoleon Junior RANKIN.\", \"head_matter\": \"STATE\\nv.\\nNapoleon Junior RANKIN.\\nNo. 40P15-3.\\nSupreme Court of North Carolina.\\nAug. 20, 2015.\\nCatherine F. Jordan, Assistant Attorney General, for State of North Carolina.\\nNapoleon J. Rankin, for Rankins, Napoleon Junior.\\nJ. Douglas Flenderson, District Attorney, for State of North Carolina.\\nOpinion\", \"word_count\": \"82\", \"char_count\": \"521\", \"text\": \"The following order has been entered on the motion filed on the 13th of July 2015 by Defendant for Ineffective Assistance of Counsel:\\n\\\"Motion Dismissed by order of the Court in conference, this the 20th of August 2015.\\\"\"}"

nc/12643909.json

@@ -0,0 +1 @@
+"{\"id\": \"12643909\", \"name\": \"STATE v. Marvin Wade MILLSAPS.\", \"name_abbreviation\": \"State v. Millsaps\", \"decision_date\": \"2015-11-05\", \"docket_number\": \"No. 374P13\\u20135.\", \"first_page\": \"269\", \"last_page\": \"270\", \"citations\": \"778 S.E.2d 269\", \"volume\": \"778\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:36.574652+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE\\nv.\\nMarvin Wade MILLSAPS.\", \"head_matter\": \"STATE\\nv.\\nMarvin Wade MILLSAPS.\\nNo. 374P13-5.\\nSupreme Court of North Carolina.\\nNov. 5, 2015.\\nBarry H. Bloch, Assistant Attorney General, for State of North Carolina.\\nMarvin W. Millsaps, Norlina, for Millsaps, Marvin Wade.\\nSarah Kirkman, District Attorney, for State of North Carolina.\\nOpinion\", \"word_count\": \"85\", \"char_count\": \"540\", \"text\": \"The following order has been entered on the motion filed on the 27th of August 2015 by Defendant for Exculpatory Evidence Information Record:\\n\\\"Motion Dismissed by order of the Court in conference, this the 5th of November 2015.\\\"\\nErvin, J. recused.\"}"

nc/12644968.json

@@ -0,0 +1 @@
+"{\"id\": \"12644968\", \"name\": \"STATE of North Carolina v. Truman Calvin BOONE.\", \"name_abbreviation\": \"State v. Boone\", \"decision_date\": \"2016-03-17\", \"docket_number\": \"No. 382P93\\u20132.\", \"first_page\": \"165\", \"last_page\": \"165\", \"citations\": \"784 S.E.2d 165\", \"volume\": \"784\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:39.765550+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of North Carolina\\nv.\\nTruman Calvin BOONE.\", \"head_matter\": \"STATE of North Carolina\\nv.\\nTruman Calvin BOONE.\\nNo. 382P93-2.\\nSupreme Court of North Carolina.\\nMarch 17, 2016.\\nTruman Calvin Boone, for Boone, Truman Calvin.\\nJoseph L. Hyde, Assistant Attorney General, for State of North Carolina.\\nJ. Douglas Henderson, District Attorney, for State of North Carolina.\\nORDER\", \"word_count\": \"109\", \"char_count\": \"661\", \"text\": \"Upon consideration of the petition filed by Defendant on the 15th of January 2016 in this matter for a writ of certiorari to review the order of the Superior Court, Guilford County, the following order was entered and is hereby certified to the Superior Court of that County:\\n\\\"Dismissed by order of the Court in conference, this the 17th of March 2016.\\\"\"}"

nc/12646421.json

@@ -0,0 +1 @@
+"{\"id\": \"12646421\", \"name\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\", \"name_abbreviation\": \"In re Estate of Peacock\", \"decision_date\": \"2016-09-22\", \"docket_number\": \"No. 276P16\", \"first_page\": \"227\", \"last_page\": \"227\", \"citations\": \"793 S.E.2d 227\", \"volume\": \"793\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\", \"head_matter\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\\nNo. 276P16\\nSupreme Court of North Carolina.\\nSeptember 22, 2016\\nRegan H. Rozier, Attorney at Law, Wilmington, for Peacock, Bernadine.\\nG. Grady Richardson, Jr., Attorney at Law, for K.A.P. (Minor)\\nORDER\", \"word_count\": \"109\", \"char_count\": \"654\", \"text\": \"Upon consideration of the petition filed on the 26th of July 2016 by Respondent in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\\n\\\"Denied by order of the Court in conference, this the 22nd of September 2016.\\\"\"}"

nc/139615.json

@@ -0,0 +1 @@
+"{\"id\": \"139615\", \"name\": \"STATE v. CHEATHAM\", \"name_abbreviation\": \"State v. Cheatham\", \"decision_date\": \"1997-06-05\", \"docket_number\": \"No. 198P97\", \"first_page\": \"284\", \"last_page\": \"284\", \"citations\": \"346 N.C. 284\", \"volume\": \"346\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:22:44.209244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CHEATHAM\", \"head_matter\": \"STATE v. CHEATHAM\\nNo. 198P97\\nCase below: 125 N.C.App. 744\", \"word_count\": \"24\", \"char_count\": \"148\", \"text\": \"Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 5 June 1997.\"}"

nc/2083003.json

@@ -0,0 +1 @@
+"{\"id\": \"2083003\", \"name\": \"JOHN HARRIS and others, against JOHN ROSS and others\", \"name_abbreviation\": \"Harris v. Ross\", \"decision_date\": \"1859-08\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"418\", \"citations\": \"4 Jones Eq. 413\", \"volume\": \"57\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:11:10.543433+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN HARRIS and others, against JOHN ROSS and others.\", \"head_matter\": \"JOHN HARRIS and others, against JOHN ROSS and others.\\nWhere one legatee can resort to two funds, and another to but one of them, the former shall not be allowed to resort, in the first instance, to that which is the sole reliance of the latter legatee.\\nA charge upon land by will, for the maintenance of one who is deaf,, lame and helpless, to begin immediately, and to continue during- the life of such beneficiary, is to be preferred to legacies of an ordinary character charged on the residue of the estate after the expiration of a life interest therein.\\nThere is no reason, generally, why land devised to several, burlhened with a charge for the maintenance of a person, shall not be sold for a division;\\u2014 but this must be done cum onere. Where, however, the maintenance of snc.ii person can bo had on the land itself, but, probably, cannot be secured' by a sale, a Count of Equity will only order it, experimentally, to ascertain bow the fact is.\\nCause removed from the Court of Equity of McDowell County-\\nLewis Harris made his will in Jnly, 1845, containing the following provisions:\\n\\u201cI give to my wife all my lands with all my stock of every kind, and all my farming tools, and household and kitchen furniture, to be fully possessed by her during her life, or widowhood. My daughter, Sarah, to have her maintenance off the land, during her natural life. I give to my two sons, Giles and John, three hundred dollars each; to be raised out of my estate at the death of my wife. I give to my grand-son, Joab Harris, sixty-five dollars, when he arrives at the age of twenty-one years. The balance of my estate, after the payment of my debts, to be equally divided between all my children.\\u201d He appointed his son John Harris and John Ross, executors; and the testator died shortly afterwards and both of the executors proved the will, and left the effects in the enjoyment of the widow, who lived on the land, and kept her daughter, Sarah, with her. She, Sarah, was almost entirety deaf, had but one hand, and being considerably advanced in years, was, therefore, unable to perform any labor, or earn any thing towards her maintenance. The widow died in March, 1856, and at her death, administration of her estate was granted to her son Giles, who took possession of her effects; and at the same time, Ross, as executor of the testator, took possession of such of the personal things originally belonging to the testator, as were left by the widow. Giles Harris had lived with his mother and sister on the land, and worked it so as to maintain them; and after the widow\\u2019s death, he and Sarah continued in the possession of the place, as before, for the purpose of maintaining Sarah.\\nThe bill is filed by John Harris and Joab Harris, and the other children of the testator, against Giles, Sarah, and John Ross, and seeks an account of the personal estate of the testator and intestate widow, and that the latter may be equally divided among all the children, who are her next of kin, and that the former may be applied to the satisfaction of the several pecuniary legacies to John, Giles, and Joab, if sufficient for that purpose, and praying for a sale of the land, which the bill alleges to be of the value of $2.500, and that out of the proceeds, a sufficient sum shall be set apart, in the first in stance, and invested so as to yield interest annually to an amount adequate to the comfortable maintenance of Sarah, and out of the residue, the legacies to the two sons and grandson, or any balance of them, satisfied, and the surplus divided among all the children, under the residuary clause.\\nThe answers of Eoss and Giles Harris, set out accounts of the personal estates of the testator and Mrs. Harris; and that of the latter and Sarah, state, that she is decrepid, and so infirm, as to be wholly unable to provide for herself, and was the peculiar object of the care of her parents \\u2014 that the purpose of her father, in charging her maintenance on his land, was to provide her with a home, and secure, certainly, the means of her subsistence by an income, issuing out of the land; that the profits of the land which is cultivated for her, by her brother Giles, is barely sufficient to afford her a scanty subsistence, and would not do that, if she were not saved the expense of hiring a house, by living in that on the land; that the whole value of the land does not exceed $1,000, and that it 'would not sell for that sum; and that the interest thereon, would not support her in her present condition, much less, would it be adequate, hereafter, as she is old, and her infirmities increase yearly, so that each succeeding year will probably add to the expense of her maintenance; and, therefore, she insists that the land ought not to be sold, as she is willing to take it as it is, in satisfaction of the charge of her maintenance.\\nTo facilitate the hearing, the parties consented to have certain inquiries made by the master, and he reported the nett balance of the testator\\u2019s personal estate to be $148.47, in the the hands of the executor, Eoss, and of Mrs. Harris\\u2019 estate to be $72.52, in the hands of the defendant, Giles Harris. He further reports, that it will require the sum of $80 a year to maintain Sarah, comfortably, and that the land would not sell for more than $1000, and that the interest thereon would not support her; but, that the use of the land and houses, if unsold, would afford her much more comfort, as a home.\\nNeither party excepted to the report, but the plaintiffs in sist that the master is mistaken in finding the value of the land, and say that they will make it bring much more.\\nGaither, for the plaintiff.\\nAvery, for the defendant.\", \"word_count\": \"2088\", \"char_count\": \"11397\", \"text\": \"Rukrin, J.\\nOf course, the small sum in the hands of Giles Harris, as administrator of his mother, is subject to distribution amongst her next of kin, and there is no reason why it should not be made immediately.\\nThe personal estate of the testator, Harris, in the hands of Ross, cannot, until after the sale of the land. It is, indeed, applicable to the legacies to the two sons, and the grandson, but it may not be in equal proportions. For the latter legacy is payable out of the personal estate only, while the other two are charged upon the whole estate, including the land.\\u2014 Neither is to be defeated, if there are funds for their satisfaction, and, as it is ascertained that the personalty is not sufficient, and that, if divided,pro rata, the grandson will lose the the larger part of what is given to him, the application must be deferred until it shall appear what the land will raise, clear of Sarah's incumbrance, as it may bring enough to allow a payment in full to the grandson out of the personal estate, and then leave a sum, with the residue of the personal estate, sufficient to pay the $300 to each of the sons. In the meanwhile, the parties may require Ross to bring the money into court, and have it invested at interest, until it shall be seen how it ought to be applied. This is upon the common doctrine that testators intend the payment of all their legacies, if there be funds, and that where one legatee can resort to two funds, he shall not resort to the one, in the first instance, to which alone the other can look, so as to exhaust it, and defeat the latter.\\n\\\"With respect to the principal question, arising out of the provision for the daughter, Sarah, it may be observed that it is assumed in the pleadings on both sides, that it is the preferable charge; and the Court considers that to be correct. That charge, attached to the land immediately upon the death of the testator, and came into enjoyment as against the mother, the tenant for life; she held subject to it, and the will continues it, during the daughter's life; consequently, it continues to exist in the same state against those who take after the mother. But it is nothing more than a charge. No estate in the land vested in her, nor any right to the possession against the heirs at law. It is clear, that the testator did not intend any thing of that kind; because he directs the $600 for his sons to be raised out of Ids estate at the death of Ids wife, and, therefore, he must have contemplated that a sale might then be necessary, notwithstanding the daughter might be living. All the perplexity in the case, arises, therefore, out of a doubt, whether a sale will insure a proper maintenance for the daughter and leave any thing for the heirs, or the two sons. If it will not, as the master finds, it is manifest, that a sale can do no good to any one; and, therefore, as the land is all she has to look to, and she is willing to occupy it for her charge, there ought not, in that case, to be a sale, but she ought to be left in the enjoyment, unless the residuary devisees prefer having it sold, and securing to her an annual sum for maintenance.\\u2014 That is not likely to take place, as she, and the defendant, Giles, are two of the devisees, and they are both opposed to the sale, at present. But, the other parties insist that the land will bring a sum sufficient to secure the sister's maintenance, \\u2014-discharge the pecuniary legacies, and leave a surplus; and they further insist, that the only way to determine that, is by a sale. The Court, therefore, though inclined to concur with the master, as to the arrangement, best for the family, is obliged to have regard to the rights of the legatee, John Harris, and of those entitled to the residue, so as to give them the opportunity of, at least, an experimental sale, whereby it can be seen whether it will duly secure the maintenance of Sarah, and at the same time, yield anything for the other parties. It must, therefore, be declared, that Sarah is now entitled to the sum of $80 annually, for her maintenance, and also, that she is entitled to have such further sum allowed her annually, as from time to time, from her increasing age and infirmities may be proper, with liberty to her to apply therefor. The sale will, therefore, be made on these terms: That the purchaser shall give bond and good security to pay into Court, on a certain day, annually, the sum of $80, for the use of Sarah during her life, and that the same shall also be a charge on the land, and that for tbe principal sum, which, at six per centum, will yield interest to the amount of $80, namely, the sum of $1333.33-J, the purchaser shall give bond and good security, payable upon the death of Sarah, and as a further security, that the title of tbe land be retained until the further order of the Court: and that for the residue of the price, over and above the sum of $1333.33i, the purchaser give bond and good security, payable at one and two years with interest from the first day of the next term of this Court, subject, when collected, to the future order of the Court, so that it may be applied, if need be, to enlarging the allowance to Sarah, or to the other purposes of tbe will as may be right. U nless the land should, therefore, bring at least $1650, it would not, in the opinion of the Court, yield an adequate security for the daughter's maintenance, and the sale ought not to be confirmed, but, she left in the occupation according to her offer; and, therefore, the master will not let a purchaser into possession at a less price than that sum, until he shall have reported the sale to the Court, and the further order of tbe Court thereon.\\nPer Curjam, Decree accordingly.\"}"

nc/220004.json

@@ -0,0 +1 @@
+"{\"id\": \"220004\", \"name\": \"CONWAY v. YEOMANS\", \"name_abbreviation\": \"Conway v. Yeomans\", \"decision_date\": \"2002-03-06\", \"docket_number\": \"No. 20P02\", \"first_page\": \"284\", \"last_page\": \"284\", \"citations\": \"355 N.C. 284\", \"volume\": \"355\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:09:12.831807+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CONWAY v. YEOMANS\", \"head_matter\": \"CONWAY v. YEOMANS\\nNo. 20P02\\nCase below: 148 N.C. App. 214\", \"word_count\": \"48\", \"char_count\": \"291\", \"text\": \"Notice of appeal by plaintiff pro se pursuant to G.S. 7A-30 (substantial constitutional question) dismissed ex mero motu 6 March 2002. Petition by plaintiff pro se for discretionary review pursuant to G.S. 7A-31 denied 6 March 2002.\"}"

nc/220160.json

@@ -0,0 +1 @@
+"{\"id\": \"220160\", \"name\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\", \"name_abbreviation\": \"Storch v. Winn-Dixie Charlotte, Inc.\", \"decision_date\": \"2002-06-27\", \"docket_number\": \"No. 205P02\", \"first_page\": \"757\", \"last_page\": \"757\", \"citations\": \"355 N.C. 757\", \"volume\": \"355\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:09:12.831807+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\", \"head_matter\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\\nNo. 205P02\\nCase below: 149 N.C. App. 478\", \"word_count\": \"27\", \"char_count\": \"169\", \"text\": \"Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 27 June 2002.\"}"

nc/2217815.json

@@ -0,0 +1 @@
+"{\"id\": \"2217815\", \"name\": \"BENJAMIN W. BOBBITT v. S. PIERSON\", \"name_abbreviation\": \"Bobbitt v. Pierson\", \"decision_date\": \"1927-03-23\", \"docket_number\": \"\", \"first_page\": \"437\", \"last_page\": \"437\", \"citations\": \"193 N.C. 437\", \"volume\": \"193\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:00:49.279477+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BENJAMIN W. BOBBITT v. S. PIERSON.\", \"head_matter\": \"BENJAMIN W. BOBBITT v. S. PIERSON.\\n(Filed 23 March, 1927.)\\nEstates \\u2014 Remainders\\u2014\\u201cIssue\\u201d\\u2014Children\\u2014Rule in Shelley\\u2019s Case.\\nA devise to B. for his use or benefit as long as he lives, and at the time of his death to go to his issue: Hel\\u00e9, the word \\u201cissue\\u201d is construed as children who take in remainder by purchase, the rule in Shelley\\u2019s case not applying.\\nAppeal by both parties from Calvert, J., at November Term, 1926, \\u25a0 of Halifax.\\nAffirmed.\\nThe court was of opinion, upon the statement of agreed facts submitted by the parties to this controversy without action, O. S., 626, that Benjamin W. Bobbitt is not seized of an estate in fee simple in and to the lot of land, which he has contracted to convey to S. Pierson, but that, he is seized only of an estate for his life in and to said lot, with remainder to his children.\\nProm judgment in accordance with this opinion, both parties appealed to the Supreme Court.\\nDunn & Johnson for plaintiff.\\nNo counsel for defendant.\", \"word_count\": \"382\", \"char_count\": \"2088\", \"text\": \"Per Curiam.\\nBenjamin ~W. Bobbitt claims title to the lot of land which he has contracted to convey to S. Pierson, under the will of his grandfather, Walter Y. Bobbitt. The said lot is therein devised to Benjamin W. Bobbitt, \\\"for his own use and benefit as long as he lives, and at the time of his death, to go to his issue.\\\"\\nWe concur in the opinion of the court below that Benjamin W. Bobbitt is not seized, by virtue of this devise, of an estate in fee simple in the lot of land which he has contracted to convey to defendant. He has an estate therein only for his life, with remainder to his issue. The word \\\"issues,\\\" appearing in this will, must, in accordance with authoritative decisions of this Court, be construed as meaning children. Etheridge v. Realty Co., 179 N. C., 407; Ford v. McBrayer, 171 N. C., 420; Faison v. Odom, 144 N. C., 108.\\nThe rule in Shelley's case does not apply. The children of Benjamin W. Bobbitt, as his issue, take the remainder, after his death, as purchasers. Benjamin W. Bobbitt cannot convey to S. Pierson a fee-simple estate in and to the lot of land. The judgment is\\nAffirmed.\"}"

nc/2488682.json

@@ -0,0 +1 @@
+"{\"id\": \"2488682\", \"name\": \"STATE v. CANNON\", \"name_abbreviation\": \"State v. Cannon\", \"decision_date\": \"1989-05-04\", \"docket_number\": \"No. 113P89\", \"first_page\": \"433\", \"last_page\": \"433\", \"citations\": \"324 N.C. 433\", \"volume\": \"324\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:18:20.593431+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CANNON\", \"head_matter\": \"STATE v. CANNON\\nNo. 113P89.\\nCase below: 92 N.C. App. 383.\", \"word_count\": \"29\", \"char_count\": \"161\", \"text\": \"Petition by defendant for writ of certiorari to the North Carolina Court of Appeals denied 4 May 1989.\"}"

nc/3736422.json

@@ -0,0 +1 @@
+"{\"id\": \"3736422\", \"name\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\", \"name_abbreviation\": \"State v. Webb\", \"decision_date\": \"2006-12-19\", \"docket_number\": \"No. 450P05\", \"first_page\": \"162\", \"last_page\": \"162\", \"citations\": \"361 N.C. 162\", \"volume\": \"361\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:03:17.308683+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\\nNo. 450P05\", \"word_count\": \"112\", \"char_count\": \"699\", \"text\": \"ORDER\\nThe Attorney General's Petition for Discretionary Review is allowed, pursuant to our general supervisory authority under Article IV, Section 12 of the Constitution of North Carolina, for the limited purpose of (1) vacating that portion of the Court of Appeals opinion ordering remand to the trial court for resentencing and (2) remanding to the Court of Appeals for reconsideration in light of State v. Timothy Earl Blackwell, 361 N.C. 41, - S.E.2d- (2006). The Court of Appeals opinion remains undisturbed in all other respects.\\nBy Order of the Court in Conference, this 19th day of December, 2006.\\ns/Timmons-Goodson. J. For the Court\"}"

nc/3737678.json

@@ -0,0 +1 @@
+"{\"id\": \"3737678\", \"name\": \"State v. Alexander\", \"name_abbreviation\": \"State v. Alexander\", \"decision_date\": \"2007-05-03\", \"docket_number\": \"No. 278P06\", \"first_page\": \"358\", \"last_page\": \"358\", \"citations\": \"361 N.C. 358\", \"volume\": \"361\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:03:17.308683+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hudson, J., Recused\", \"parties\": \"State v. Alexander\", \"head_matter\": \"State v. Alexander\\nCase below: 177 N.C. App. 281\\nNo. 278P06\", \"word_count\": \"43\", \"char_count\": \"255\", \"text\": \"1. Def's NOA Based Upon a Constitutional Question (COA05-971)\\n2. AG's Motion to Dismiss Appeal\\n3. Def's PDR Under N.C.G.S. \\u00a7 7A-31\\n1. _\\n2. Allowed 03/08/07\\n3. Denied 03/08/07\\nHudson, J., Recused\"}"

nc/3794250.json

@@ -0,0 +1 @@
+"{\"id\": \"3794250\", \"name\": \"Cherney v. N.C. Zoological Park\", \"name_abbreviation\": \"Cherney v. N.C. Zoological Park\", \"decision_date\": \"2006-06-29\", \"docket_number\": \"No. 606A04-2\", \"first_page\": \"532\", \"last_page\": \"532\", \"citations\": \"360 N.C. 532\", \"volume\": \"360\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:10:35.550172+00:00\", \"provenance\": \"CAP\", \"judges\": \"Newby, J., and Timmons-Goodson, J., Recused\", \"parties\": \"Cherney v. N.C. Zoological Park\", \"head_matter\": \"Cherney v. N.C. Zoological Park\\nCase below: 166 N.C. App. 684\\nNo. 606A04-2\\nAllowed (06/29/06)\\nNewby, J., and Timmons-Goodson, J., Recused\", \"word_count\": \"28\", \"char_count\": \"187\", \"text\": \"Pit's Petition for Writ of Mandamus (COA03-1615)\"}"

nc/3805786.json

@@ -0,0 +1 @@
+"{\"id\": \"3805786\", \"name\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\", \"name_abbreviation\": \"Bogovich v. Embassy Club of Sedgefield, Inc.\", \"decision_date\": \"2011-04-19\", \"docket_number\": \"No. COA10-61\", \"first_page\": \"1\", \"last_page\": \"23\", \"citations\": \"211 N.C. App. 1\", \"volume\": \"211\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:33:31.654568+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges McGEE and STROUD concur.\", \"parties\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\", \"head_matter\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\\nNo. COA10-61\\n(Filed 19 April 2011)\\n1. Fraud\\u2014 constructive fraud \\u2014 breach of fiduciary duty\\nThe trial court did not err by granting summary judgment in favor of plaintiff with respect to the constructive fraud claim based on a breach of fiduciary duty by defendant individuals. The execution and recordation of the notes and deeds of trust without prior approval, in amounts that greatly exceeded the value of their claimed loans, constituted a breach of fiduciary duty by defendants. Further, the evidence supported a reasonable inference that defendants\\u2019 actions caused the corporation\\u2019s property to remain unsold during the years that plaintiff paid the ad valorem taxes.\\n2. Unfair Trade Practices\\u2014 summary judgment \\u2014 constructive fraud\\nThe trial court did not err by granting summary judgment in favor of plaintiff with respect to the unfair and deceptive trade practices claim given the upholding of summary judgment in favor of plaintiff for the constructive fraud claim.\\n.3. Damages and Remedies\\u2014 compensatory damages \\u2014 causal connection-\\nThe trial court did not err by submitting the issue of compensatory damages to the jury. The record did not establish that any claims adjudication procedure existed at the time the issue of damages was submitted to the jury. Further, plaintiff established a causal connection between defendants\\u2019 conduct and the unpaid ad valorem tax amounts.\\n4. Damages and Remedies\\u2014 punitive damages \\u2014 constructive fraud\\nThe trial court did not err by submitting to the jury the issue of whether plaintiff was entitled to recover punitive damages from defendant individuals. Punitive damages are justified in cases of constructive fraud.\\n5. Statutes of Limitation and Repose\\u2014 reimbursement for business expenses \\u2014 no tolling of statute\\nThe trial court did not err by concluding that defendant individuals\\u2019 reimbursement claims for alleged monies advanced and other obligations related to the corporation that allegedly arose in the 1970s and 1980s were barred by the statute of limitations under N.C.G.S. \\u00a7 1-52(1). Even if the applicable statute of limitations had been tolled until 1998, defendants never asserted a reimbursement claim.\\nAppeal by defendants from judgments entered 13 January 2009 and 30 March 2009 by Judge Catherine C. Eagles, from an order entered by Judge Eagles on 30 March 2009, and from an order entered 22 June 2009 by Judge Steve A. Balog, in Guilford County Superior Court. Heard in the Court of Appeals 18 August 2010.\\nSmith Moore Leatherwood LLP, by Elizabeth Brooks Scherer and Matthew Nis Leerberg, for Plaintiff-Appellee.\\nSmith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for Defendant-Appellant.\", \"word_count\": \"8850\", \"char_count\": \"54530\", \"text\": \"ERVIN, Judge.\\nDefendants Ross E. Strange and Anne Strange appeal from an order granting summary judgment in favor of Plaintiff Anne Bogovich with respect to her claims of constructive fraud and unfair and deceptive trade practices, from a judgment entered in favor of Plaintiff based on a jury verdict awarding compensatory and punitive damages against the Stranges, an order denying the Stranges' request for the entry of judgment notwithstanding the verdict, and from an order denying the Stranges' claims for reimbursement of money allegedly owed to Defendants Ross and Ann Strange. After careful consideration of the Stranges' challenges to the judgments and orders at issue in this case in light of the record and the applicable law, we conclude that the challenged judgments and orders should be affirmed.\\nI. Factual Background\\nA. Substantive Facts\\nMr. Strange was born in 1928. At the time of trial, he had been a practicing attorney for forty-eight years. Plaintiff Anne Bogovich is Mr. Strange's older sister.\\nThe litigation from which this appeal arises stems from the parties' ownership of Embassy Club, which was originally incorporated in 1971 by Mr. Strange, Art Lafata and Steven Kutos, all of whom owned an equal interest in the corporation. Embassy Club, which owned several acres of real property adjacent to the Sedgefield golf course, operated a private dinner club. The corporation purchased the shares owned by Mr. Lafata and Mr. Kutos in 1972 and 1973, respectively.\\nIn 1973, Ms. Bogovich purchased fifty percent (50%) of the shares in the corporation. Ms. Bogovich and Mr. Strange are equal shareholders in and directors of Defendant Embassy Club; Mr. Strange is the corporation's president and treasurer; Ms. Bogovich is the corporation's vice president; and Ms. Strange is the corporation's secretary.\\nThe corporation operated the dinner club from 1971 to 1976. Mr. Strange managed the club and its employees, performed physical work on the building, and had responsibility for the corporation's financial transactions and the maintenance of the corporation's records. Ms. Bogovich, who has lived in Florida since purchasing shares in Embassy Club, has not had any involvement in the daily operations of the corporation. In fact, Mr. Strange testified that Ms. Bogovich \\\"had no idea what was going on as far as the records were concerned, as far as the corporation was concerned.\\\" Although Mr. Strange testified that he and Ms. Bogovich periodically discussed the corporation by telephone, he admitted that he never provided his sister with tax returns, balance sheets, or other corporate reports and records.\\nThe dinner club operated by the corporation was never profitable. In December 1976, the dinner club and nearly all of Embassy Club's corporate records were destroyed in a fire. Since the fire, the corporation's property has not been used for any purpose.\\nIn December 1998, Ms. Bogovich's attorney wrote Mr. Strange for the purpose of seeking information about \\\"the status of the Embassy Club\\\" and informing Mr. Strange that Ms. Bogovich \\\"would like to accomplish the following objectives, hopefully without the necessity of legal action: (1) [conveyance by the corporation of a half interest in all property owned by [the corporation] to [Ms. Bogovich], or (2) [dissolution of the corporation with the conveyance of [one half] interest in all property owned by [the corporation] to her.\\\" After no action was taken in response to this request, Ms. Bogovich's attorney sent another letter to Mr. Strange in February 2000 requesting to be provided with an accounting and additional information about Mr. Strange's efforts to sell Embassy Club's property. Mr. Strange did not provide the requested information.\\nOn 27 July 2000, Ms. Bogovich's attorney wrote another letter to Mr. Strange's attorney. In this letter, Ms. Bogovich's attorney stated that Ms. Bogovich was prepared to initiate a civil action against Mr. Strange for breach of fiduciary duty and gave him 30 days to \\\"make concrete efforts to sell the property.\\\"\\nOn 10 August 2000, Defendants Ross Strange and Anne Strange executed and recorded notes and deeds of trust on behalf of the corporation securing an alleged obligation from Embassy Club to the Stranges, as individuals, in an amount in excess of $1,300,000.00. Mr. Strange admitted that he did not discuss these instruments with Ms. Bogovich before executing and recording them. In his deposition, Mr. Strange testified that he executed and recorded these notes and deeds of trust for the purpose of ensuring that, when Embassy Club's property was sold, he would be repaid for monies that he claimed that the corporation owed him.\\nIn his testimony, Mr. Strange attempted to substantiate his claim that Embassy Club owed him large amounts of money. For example, Mr. Strange testified that, beginning in the 1970s, he paid expenses associated with Embassy Club's operations using personal funds and that, between 1971 and 1976, he had worked at least five days a week at the club, that he handled \\\"all the book work,\\\" and that he had performed legal services for the corporation. Mr. Strange did not, however, state that Ms. Bogovich had recognized the alleged advances as loans and admitted that he had \\\"never discussed\\\" payment for his alleged legal work with Ms. Bogovich, that he had not kept records documenting the nature and extent of his legal services, and that the two of them had never discussed an interest rate that would be applicable to the alleged loans. Even so, at the time when Embassy Club's insurer settled the claim stemming from the dinner club fire, Mr. Strange retained several thousand dollars as payment for his alleged prior legal services.\\nIn addition, Mr. Strange testified that he expected to be reimbursed for the hours that he and Ms. Strange had worked at the dinner club from 1971 until the date upon which it closed and admitted that he had executed and recorded the notes and deeds of trust for the purpose, at least in part, of collecting monies that he and his wife were entitled to receive for working at the dinner club. However, Mr. Strange conceded that he and Ms. Bogovich had never discussed a specific amount of unpaid wages to which the Stranges were entitled and that Ms. Bogovich never executed a written agreement providing that he would receive a salary for his services.\\nMr. Strange did not dispute that he had a fiduciary relationship with his sister. According to Mr. Strange, Ms. Bogovich \\\"trusted that I would do what would be right.\\\" Mr. Strange testified that he took out loans in the name of the corporation without authorization given his \\\"friendly relationship with [his] sister.\\\" Mr. Strange did not discuss the sale of Embassy Club's property with Ms. Bogovich because his sister \\\"always left everything up to\\\" him. In response to questions addressing the extent of his communications with Ms. Bogovich about his right to receive a salary, Mr. Strange testified that Ms. Bogovich \\\"just trusted\\\" him and that they had \\\"probably not\\\" discussed a specific amount.\\nMr. Strange testified that, ever since the dinner club building burned in 1976, he had been \\\"attempting to sell the property\\\" by placing signs on the land and communicating with potential buyers. Mr. Strange admitted, however, that he had declined a 2008 offer to purchase the property for $1,500,000.00 without discussing it with Ms. Bogovich. Mr. Strange had not had the property professionally appraised or listed with a realtor because such actions \\\"w[ere]n't necessary\\\" in view of the fact that he previously held a real estate license and was \\\"familiar\\\" with real estate valuation.\\nAccording to Mr. Strange, the notes and deeds of trust \\\"were taken out solely because the Embassy Club owed that amount of money to me.\\\" However, Mr. Strange conceded that there were errors in his claims for reimbursement. For example, Mr. Strange admitted that he had erroneously compounded interest in the course of determining how much he was owed and acknowledged that the amounts specified in the notes and deeds of trust were \\\"more than likely\\\" based upon compounded interest, were incorrect, and \\\"would have to be redone completely.\\\" However, as of the date of his deposition, Mr. Strange had not taken any steps to correct these errors and admitted that, after he discovered these errors, \\\"[he] didn't change the Deeds of Trust, but they're wrong.\\\"\\nB. Procedural History\\nOn 4 March 2004, Ms. Bogovich filed a complaint alleging that the notes and deeds of trust executed and recorded by the Stranges were invalid on the grounds that the Stranges' conduct had defrauded Ms. Bogovich and reduced the value of her Embassy Club stock. As a result, Ms. Bogovich requested the court to invalidate the notes and deeds of trust, judicially dissolve Embassy Club, and award compensatoiy and punitive damages against the Stranges for breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices. In their answer, Defendants admitted that the Stranges had encumbered Embassy Club's real property by executing and recording the challenged notes and deeds of trust. However, Defendants denied that any of the Stranges' activities had been unlawful.\\nOn 11 November 2004, the parties reached a mediated settlement agreement that provided, in pertinent part, that Embassy Club's property would be sold \\\"to [a] bona fide purchaser for market value.\\\" On 7 September 2005, this case was administratively closed.\\nOn 13 March 2008, however, Ms. Bogovich filed a motion seeking to have the settlement agreement enforced. In her motion, Ms. Bogovich alleged that Mr. Strange had obstructed the sale of the Embassy Club property, had failed to list the property with a realtor, and had rejected an offer to purchase the property for $1,500,000.00. In addition, Ms. Bogovich asserted that she had been paying the property taxes because the Stranges refused to do so.\\nOn 10 April 2008, Judge Yvonne Mims Evans entered an order granting Ms. Bogovich's motion to enforce the settlement. In her order, Judge Evans ruled that Mr. Strange had obstructed the sale of the Embassy Club property, that Mr. Strange had \\\"refuse[d] to accept or negotiate]] bona fide offers\\\" to purchase the property, and that Ms. Bogovich had \\\"been paying [] all of the taxes on the [Embassy Club], because [Mr. Strange] [had] fail[ed] and refuse[d] to do so.\\\" As a result, Judge Evans reopened this case for the purpose of enforcing the settlement agreement. On 15 May 2008, Ms. Bogovich filed a motion to set aside the order transferring this case to the inactive calendar. Judge Eagles granted this motion on 12 June 2008.\\nOn 24 December 2008, Ms. Bogovich moved for partial summary-judgment. On 13 January 2009, Judge Eagles entered an order granting summary judgment in favor of Ms. Bogovich with respect to the constructive fraud and unfair and deceptive trade practices claims, invalidating the notes and deeds of trust, and ordering that the corporation be judicially dissolved and liquidated. According to Judge Eagles' order, \\\"[t]he only issue remaining . is the amount of actual and punitive damages to which [Ms. Bogovich] is entitled to recover on her claims,\\\" with the issue \\\"of attorneys' fees and treble damages\\\" left \\\"open\\\" for later resolution.\\nOn 14 January 2009, the parties stipulated that, in August 2000, the Stranges \\\"executed . . . promissory notes and deeds of trust... in favor of themselves personally, encumbering the [r]eal [property\\\" owned by Embassy Club and that the Stranges \\\"are Officers of the Corporation,\\\" and \\\"executed the Notes and Deeds of Trust in their official capacities as President and Secretary of the Corporation.\\\" The parties also stipulated that face value of the notes and deeds of trust totaled $1,327,831.00.\\nThe damage issue was heard before Judge Eagles and a jury beginning on 20 January 2009. On 23 January 2009, the jury returned a verdict finding the Stranges liable to Ms. Bogovich for $12,165.00 in compensatory damages for breach of fiduciary duty, finding Mr. Strange liable to Ms. Bogovich for $510,000.00 in punitive damages, and finding Ms. Strange liable to Ms. Bogovich for $1.00 in punitive damages. Subsequently, the Stranges filed motions for judgment notwithstanding the verdict and for a new trial, which Judge Eagles denied on 30 March 2009. On the same date, Judge Eagles entered judgment in favor of Ms. Bogovich based upon the jury's verdict. Prior to entering judgment, Judge Eagles reduced the jury's punitive damage award against Mr. Strange from $510,000.00 to $250,000.00 as required by N.C. Gen. Stat. \\u00a7 lD-25(b).\\nAfter the return of the jury's verdicts, the parties agreed that the Stranges' reimbursement claims would be heard by the court sitting without a jury. As a result, Judge Balog began conducting a nonjury proceeding for the purpose of addressing the claims reimbursement issue on 2 April 2009. On 22 June 2009, Judge Balog entered an order denying all of the Stranges' claims. Defendants noted an appeal to this Court from the 13 January 2009 order granting partial summary judgment in favor of Ms. Bogovich, the 30 March 2009 judgment, the 30 March 2009 order denying the Stranges' post-trial motions, and the 22 June 2009 order denying the Stranges' reimbursement request.\\nII. Legal Analysis\\nA. Constructive Fraud\\nFirst, the Stranges argue that Judge Eagles erred by granting summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim. In support of this contention, the Stranges assert that their \\\"conduct had no aggravating factors and did not cause any disadvantage or harm to\\\" Ms. Bogovich. The Stranges' argument lacks merit.\\nSummary judgment is proper when, viewed in the light most favorable to the non-movant, \\\"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\\\" N.C.R. Civ. P. 56(c). The moving party initially bears the burden of demonstrating that no genuine issue of material fact exists. If the moving party makes the required showing, \\\"the burden shifts to the nonmovant to adduce specific facts establishing a triable issue.' \\\" Lunsford v. Renn, - N.C. App. - , - , 700 S.E.2d 94, 97 (2010) (citing S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C. App. 155, 163-64, 665 S.E.2d 147, 152 (2008), and quoting Self v. Yelton, - N.C. App. -, -, 688 S.E.2d 34, 38 (2010)). On appeal, the Stranges essentially concede that there are no disputed issues of material fact, acknowledging in their brief that \\\"the issues raised in this appeal are questions of law, as to which the court must conduct de novo review.\\\" Given our agreement that the pertinent facts are largely undisputed, we must next consider whether Ms. Bogovich was entitled to judgment in her favor with respect to the relevant claims as a matter of law.\\nThe elements of a constructive fraud claim are proof of circumstances \\\"(1) which created the relation of trust and confidence [the 'fiduciary' relationship], and (2) [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.\\\" Put simply, a plaintiff must show (1) the existence of a fiduciary duty, and (2) a breach of that duty.\\nKeener Lumber Co. v. Perry, 149 N.C. App. 19, 28, 560 S.E.2d 817, 823, disc. review denied, 356 N.C. 164, 568 S.E.2d 196 (2002) (quoting Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677 (1981)). The Supreme Court has stated that:\\n\\\"A claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud.\\\" . . . Thus, \\\"[constructive fraud differs from actual fraud in that it is based on a confidential relationship rather than a specific misrepresentation.\\\" Another difference is that intent to deceive is not an element of constructive fraud. When, as here, the superior party obtains a possible benefit through the alleged abuse of the confidential or fiduciary relationship, the aggrieved party is entitled to a presumption that constructive fraud occurred.\\nForbis v. Neal, 361 N.C. 519, 528-29, 649 S.E.2d 382, 388 (2007) (quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)), and citing Link v. Link, 278 N.C. 181, 192, 179 S.E.2d 697, 704 (1971)) (other citation omitted).\\nAfter carefully reviewing the record, we conclude that the undisputed evidence demonstrated that Ms. Bogovich established a valid constructive fraud claim based on a breach of fiduciary duty by the Stranges. The Stranges do not appear to deny that a fiduciary relationship existed between them and Ms. Bogovich. They acknowledge in their brief that, because Ms. Bogovich and Mr. Strange were directors of Embassy Club, \\\"they stood in a mutual fiduciary relationship.\\\" Since the Stranges also admit that Ms. Strange is an officer of Embassy Club, she also stands in a fiduciary relationship with Ms. Bogovich. In addition, the Stranges also admit that:\\nMr. Strange prepared a series of promissory notes payable to himself and his wife secured by deeds of trust on the corporation's real estate. The documents were signed by Mr. Strange as president of the corporation and [Ms.] Strange as secretary of the corporation. The notes and deeds of trust total approximately $1.3 million. . . . Mr. Strange had no discussions with Ms. Bogovich about the notes and deeds of trust either before or after the date of their execution. There was no agreement of the parties on an interest rate. There was no formal approval of the loans____The amounts claimed on the notes and deeds of trust were greatly in excess of money actually advanced by Mr. Strange to the corporation.\\nThe execution and recordation of the notes and deeds of trust without proper approval, in amounts that greatly exceeded the value of their claimed loans, clearly constituted a breach of fiduciary duty on the part of the Stranges.\\nHowever, according to Defendants, the improper execution and recordation of these notes and deeds of trust did not constitute a valid basis for Judge Eagles' decision to grant summary judgment in Ms. Bogovich's favor with respect to her constructive fraud claim because \\\"[t]he only wrongful conduct that [Ms. Bogovich] was able to attribute to [the Stranges] were the execution of corporate notes and deeds of trust and recordation of deeds of trust on the corporation in their favor in the amount of approximately $1.3 million.\\\" Although the Stranges effectively concede that they engaged in \\\"wrongful conduct,\\\" they argue that their conduct was not sufficiently egregious to support a claim for constructive fraud. In essence, the Stranges contend that the \\\"only breach of fiduciary duty that rises to the level of constructive fraud is that which has some significant aggravating factor, ordinarily the tendency to deceive, to violate a confidence, or to injure public interests.\\\" In support of this argument, the Stranges cite Miller v. Bank, 234 N.C. 309, 316, 67 S.E.2d 362, 367-68 (1951), in which the Supreme Court stated that:\\nConstructive fraud differs from active fraud in that the intent to deceive is not an essential element, but it is nevertheless fraud though it rests upon presumption arising from breach of fiduciary obligation rather than deception intentionally practiced. Constructive fraud has been frequently defined as \\\"a breach of duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive, to violate confidence or to injure public interests. Neither actual dishonesty nor intent to deceive is an essential element of constructive fraud.\\\"\\n(citing Rhodes, id.) (other citations omitted). The language upon which the Stranges rely specifically reiterates that an intent to deceive is not an element of constructive fraud and does not state that a \\\"significant aggravating factor\\\" must be proven in order to establish a valid constructive fraud claim. As a result, we conclude that this aspect of Defendants' challenge to Judge Eagles' partial summary judgment order rests upon a misapprehension of applicable law.\\nIn addition, we reject the Stranges' argument that Ms. Bogovich was not entitled to summary judgment on her constructive fraud claim because (1) the Stranges had a valid reason for executing and recording the challenged notes and deeds of trust and (2) under appropriate circumstances, they would have been willing to cancel the challenged notes and deeds of trusts. In support of this contention, the Stranges assert that:\\n[T]he notes and deeds of trust were solely for the purpose of trying to insure that payments made to the corporation by [Mr.] Strange would be repaid, when the real estate of considerable value, the only remaining asset of the corporation, would be sold. The uncontradicted testimony of Mr. Strange is that he would have canceled the deeds of trust in order to facilitate the transaction, in the event a contract to sell the real estate was made.\\nThe Stranges have not cited any authority demonstrating that a defendant's belief that he is entitled to reimbursement for alleged loans constitutes a valid defense to a constructive fraud claim, and we have located no such authority during our own research. The basis for Judge Eagles' determination that the Stranges violated their fiduciary duty to Ms. Bogovich stemmed from the fact that they executed and recorded the challenged notes and deeds of trust without proper authorization rather than because the Stranges chose to act in this manner for any particular reason. As a result, we conclude that the fact that the Stranges claimed that to be entitled to reimbursement for their claims and their contention that they would, under certain circumstances, have agreed to the cancellation of the challenged instruments does not preclude a finding that they breached their fiduciary duty to Ms. Bogovich.\\nThirdly, the Stranges argue that Judge Eagles improperly granted summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim on the grounds that the execution and recordation of the notes and deeds of trust \\\"did not cause any disadvantage or harm to\\\" Ms. Bogovich. The Stranges do not dispute the fact that the challenged notes and deeds of trust constituted a lien on Embassy Club's property and admit that they executed and recorded these instruments \\\"to insure that payments made . by [Mr.] Strange would be repaid, when the real estate . . . w[as] sold.\\\" In addition, the Stranges concede that \\\"[t]he amounts claimed on the notes and deeds of trust were greatly in excess of money actually advanced by Mr. Strange to the corporation.\\\" As a result, the execution and recordation of the notes and deeds of trust significantly reduced the value of Ms. Bogovich's interest in the Embassy Club's assets, thus substantially \\\"disadvantag[ing] or harm[ing]\\\" her.\\nFourth, the Stranges argue that Judge Eagles improperly entered summary judgment in favor of Ms. Bogovich with respect to the constructive fraud issue because Ms. Bogovich failed to establish the amount of compensatory damages to which she was entitled. However, Judge Eagles granted partial summary judgment in favor of Ms. Bogovich based on her unrebutted forecast of evidence tending to show a breach of fiduciary duty. Judge Eagles' summary judgment order specifically reserved the issue of the amount of actual damages which Ms. Bogovich was entitled to recover from the Stranges for determination by a jury. At bottom, the undisputed evidence established the existence of all of the elements required for a finding of liability for constructive fraud. According to well-established law, \\\"[o]nce a cause of action is established, plaintiff is entitled to recover, as a matter of law, nominal damages . . . .\\\" Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 474 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992) (citations omitted).\\nIn addition, the Stranges acknowledge that Ms. Bogovich claimed to be entitled to recover the monies that she spent paying ad valorem taxes relating to the Embassy Club's real property from 2005 through 2008 as compensatory damages. However, the Stranges argue that these tax payments \\\"could not properly be regarded as damages\\\" because these amounts were more properly treated as loans to the corporation recoverable through the claims reimbursement process.\\nAt the time that Judge Eagles entered partial summary judgment in favor of Ms. Bogovich on 13 January 2009, no receiver had been appointed and the parties had not agreed to a \\\"claims adjudication process.\\\" In fact, as late as the end of the damages proceeding before the jury, no \\\"claims adjustment process\\\" had been created. When the parties prepared to present their closing arguments to the jury on the damages issue, the Stranges requested Judge' Eagles to preclude Ms. Bogovich's counsel from arguing that Ms. Bogovich was entitled to recover the ad valorem tax payments that she had made on behalf of the corporation as damages on the grounds that, after the appointment of a receiver, a claims adjudication proceeding would be conducted. In response, Judge Eagles stated that:\\n[DEFENSE COUNSEL]:... [W]e'd ask you to instruct the jury . that the Court has already determined there'll be an equal division of the net assets of [Embassy Club.]\\n[TRIAL] COURT: You know, I'm not going to get into that. . . . I have not appointed a receiver. I have not signed anything[.]\\n[DEFENSE COUNSEL]: . I think [Ms. Bogovich's counsel] will say to the jury, you know who paid these taxes of $13,500, and that's our monetary damage[.]\\n[PLAINTIFF'S COUNSEL]: . . . [T]hat's my damage issue.\\n[TRIAL] COURT: I think that is what she's going to say.\\n[DEFENSE COUNSEL]: I don't think she should say that[,] . . . [b]ecause those are claims, and they will be submitted in the claims adjudication process, just as our claims are.\\n[TRIAL] COURT: You know, I have not made any decision. Because, when I looked at this case, there's nothing in the pleadings about these darned claims of Mr. Strange. And, you know, how that's going to be dealt with is just not here today.\\n[DEFENSE COUNSEL]: I'm not talking about his claims. I'm saying, she should not be allowed to bootstrap up on taxes, to say they're damages, when they truly are claims that will be presented to the receiver.\\n[TRIAL] COURT: I don't know that.\\nAs a result, the record simply does not support the Stranges' contention that, at the time summary judgment was granted, a \\\"claims adjudication process\\\" under which Ms. Bogovich might have recovered her tax payments was in place. Furthermore, the Stranges have cited no authority establishing that, had a \\\"claims adjustment process\\\" existed, Plaintiff would have been required to seek relief through that process instead of seeking to recover those payments as damages, and we have not found any such authority during our own research.\\nFinally, the Stranges argue that their actions in encumbering the Embassy Club property did not proximately case Ms. Bogovich to make the unpaid ad valorem tax payments. However, the undisputed evidence in the record shows that: (I) beginning in the mid to late 1990s, Ms. Bogovich repeatedly asked that the Embassy Club property be sold and that she be provided with various corporate records; (2) that the Stranges subjected Embassy Club's property to liens totaling in excess of $1,000,000.00; (3) that Mr. Strange did not consult an appraiser or list the property for sale with a real estate agent; and (4) that Mr. Strange rejected offers to buy the property, including a $1,500,000.00 offer made in the year prior to trial, without consulting Ms. Bogovich. This uncontradicted evidence is sufficient to support a reasonable inference that the Stranges' actions caused the corporation's property to remain unsold during the years that Ms. Bogovich paid the ad valorem taxes, thereby establishing a valid basis for a compensatory damages award. As a result, for all of these reasons, we conclude that Judge Eagles did not err by entering summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim.\\nB. Unfair and Deceptive Trade Practices\\nIn addition to challenging Judge Eagles' decision to grant summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim, the Stranges argue that Judge Eagles erroneously granted summary judgment in Ms. Bogovich's favor with respect to her unfair and deceptive trade practices claim. In challenging this aspect of Judge Eagles' partial summary judgment order, the Stranges claim that \\\"an intracorporate dispute cannot amount to an unfair trade practice.\\\" Having upheld Judge Eagles' decision to grant summary judgment in favor of Ms. Bogovich with respect to the constructive fraud issue, we need not address the merits of the Stranges' challenge to Judge Eagles' ruling concerning the unfair and deceptive trade practices claim. \\\"Plaintiffs may in proper cases elect to recover either punitive damages under a common law claim or treble damages under [N.C. Gen. Stat.] \\u00a7 75-16, but they may not recover both.\\\" Ellis v. Northern Star Co., 326 N.C. 219, 227, 388 S.E.2d 127, 132 (1990) (citing Bicycle Transit Authority v. Bell, 314 N.C. 219, 230, 333 S.E.2d 299, 306 (1985), and Mapp v. Toyota World, Inc., 81 N.C. App. 421, 426-27, 344 S.E.2d 297, 301, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986)) (other citation omitted). In this case, as Judge Eagles' judgment plainly indicates, Ms. Bogovich elected to receive punitive damages rather than treble damages. \\\"[T]o obtain relief on appeal, an appellant must not only show error, but... must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action.\\\" Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996) (citing Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168 (1986), disc. review denied, 318 N.C. 692, 351 S.E.2d 741 (1987)). The Stranges have not explained how any error that Judge Eagles may have committed with respect to the unfair and deceptive trade practices issue prejudiced them given our decision to affirm her ruling with respect to the constructive fraud issue. As a result, the Stranges are not entitled to relief on the basis of their claim that Judge Eagles erred by granting summary judgment in Ms. Bogovich's favor with respect to the unfair and deceptive trade practices issue.\\nC. Compensatory Damages\\nNext, the Stranges argue that Judge Eagles erred by submitting the issue of compensatory damages to the jury. According to the Stranges, there \\\"was no basis for [the] recovery of compensatory damages in this case\\\" because the ad valorem taxes that underlie Ms. Bogovich's compensatory damage claim \\\"constitute recoverable claims in the dissolution and liquidation [process], not compensatory damages\\\" and should be \\\"recoverable by means of a claims adjudication procedure rather than as an element of damages.\\\" As we have noted above, however, the record does not indicate that any \\\"claims adjudication procedure\\\" existed at the time the issue of damages was submitted to the jury. In addition, Defendants have cited no authority to the effect that ad valorem taxes may not be an element of damages. We note, for example, that in SNML Corp. v. Bank, 41 N.C. App. 28, 38, 254 S.E.2d 274, 280, cert. denied, 298 N.C. 204, 254 S.E.2d 274 (1979), the \\\"trial court ordered that the plaintiff recover of appellant the sum of $27,057.15, the precise amount of ad valorem taxes . . . which plaintiff was required to pay after all other parties failed to pay. The trial court was undoubtedly following the general rule that plaintiff was entitled to damages . . . which naturally and proximately are caused by the breach of defendant's duty to plaintiff.\\\" See also, e.g., Dawson v. Dep't of Env't & Nat. Resources, \\u2014 N.C. App. \\u2014, \\u2014, 694 S.E.2d 427, 429 (2010) (stating that the Commission \\\"found DENR negligent and ordered DENR to pay the Dawsons damages for the purchase price, closing costs, lost earnings, appraisal fees, expert fees, and ad valorem taxes\\\"). Finally, Ms. Bogovich established an adequate causal connection between the Stranges' conduct and the unpaid ad valorem tax amounts. As a result, the Stranges are not entitled to relief based upon this argument.\\nD. Punitive Damages\\nFourth, the Stranges contend that Judge Eagles erred by submitting the issue of whether Ms. Bogovich was entitled to recover punitive damages from the Stranges to the jury. We disagree.\\nN.C. Gen. Stat. \\u00a7 ID-15 provides, in pertinent part, that:\\n(a) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud[,] (2) Malice[, or] (3) Willful or wanton conduct.\\n(b) The claimant must prove the existence of an aggravating factor by clear and convincing evidence.\\nAs an initial proposition, the Stranges argue that, \\\"[b]ecause there were no recoverable compensatory damages,\\\" Ms. Bogovich was not entitled to recover punitive damages. For the reasons we have already discussed, however, Judge Eagles did not err by concluding that Ms. Bogovich was entitled to the submission of a compensatory damages issue to the jury.\\nIn addition, the Stranges assert that Ms. Bogovich sought to recover punitive damages \\\"solely on the basis of fraud\\\" and note the provision of N.C. Gen. Stat. \\u00a7 lD-5(4) stating that, punitive damages \\\"shall not be awarded... solely for breach of contract.\\\" On this basis, Defendants assert that \\\"[f]raud does not include constructive fraud unless an element of intent is present\\\" and that \\\"an aggravating factor of fraud must be proven 'by clear and convincing evidence.' \\\" However, contrary to the implication of the Stranges' argument, there is no per se prohibition against the recovery of punitive damages based upon constructive fraud in the relevant statutory language.\\nA trial court is entitled to submit the issue of punitive damages to the jury upon a showing of constructive fraud. . As discussed above, the trial court properly determined that a fiduciary relationship existed and then the jury found that defendant failed to overcome the presumption of fraud by not proving his actions were open, fair and honest. Thus, the issue of punitive damages was properly submitted to the jury.\\nMelvin v. Home Federal Savings & Loan Ass'n, 125 N.C. App. 660, 665, 482 S.E.2d 6, 8-9 (citing Bumgarner v. Tomblin, 92 N.C. App. 571, 576, 375 S.E.2d 520, 523, disc. review denied, 324 N.C. 333, 378 S.E.2d 789 (1989), and Booher v. Frue, 98 N.C. App. 570, 579, 394 S.E.2d 816, 821, disc. review denied, 327 N.C. 426, 395 S.E.2d 674 (1990)), disc. rev. denied, 346 N.C. 281, 487 S.E.2d 551 (1997). \\\"Moreover, in Compton [v Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003),] our Court recognized that '[p]unitive damages are justified in cases of constructive fraud, N.C. Gen. Stat. \\u00a7 1D-I5(a)(l) (2001), as long as 'some compensatory damages have been shown with reasonable certainty.' \\\" Babb v. Graham, 190 N.C. App. 463, 478, 660 S.E.2d 626, 636 (2008) (quoting Compton, 157 N.C. App. at 21, 577 S.E.2d at 917 (quoting Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 549, 356 S.E.2d 578, 587 (1987)), disc. rev. denied, 360 N.C. 174, 625 S.E.2d 781 (2009).\\nDuring her consideration of the Stranges' objection to the submission of a punitive damages issue to the jury, Judge Eagles stated that:\\n[TRIAL] COURT: . . . I'm going to deny the motion. I think there's plenty of evidence to go to the jury on punitive damages[.] . [I]f the jury believes the evidence this way, somebody who refused for years to disclose any information about the financial condition of this corporation at all, and then, in the face of some lawyer letters, filed liens against this property . . . when he knew he didn't have any evidence to support these loans, which is what he testified to. . . . [I]f they believe that, they could find that. . . appalling, and impose some punitive damages on that. And that's believing his testimony.\\nWe agree with Judge Eagles that the record evidence concerning the Stranges' conduct, if credited by the jury, would support an award of punitive damages based on clear and convincing evidence that the Stranges intentionally committed a fraudulent act. As a result, we conclude that Judge Eagles did not err by allowing the jury to consider a punitive damages issue.\\nE. Reimbursement Claims\\nAs we have already noted, Ms. Bogovich's complaint against the Stranges was predicated, in large measure, on the fact that the' Stranges improperly executed and recorded notes and deeds of trust on behalf of Embassy Club securing an alleged liability to themselves in an amount in excess of $1,300,000.00. In response to the interrogatories inquiring about the \\\"consideration for the indebtedness of [the] Embassy Club\\\" evidenced by the notes and deeds of trust, the Stranges stated that the consideration consisted of \\\"personal loans\\\" made by the Stranges and Anne Strange to Embassy Club, salaries owed to the Stranges, and Mr. Strange's payment of certain corporate debts. In his deposition and at trial, Mr. Strange reiterated the validity of this assertion.\\nOn 2 April 2009, Judge Balog conducted a nonjury proceeding for the purpose of addressing the Stranges' reimbursement claims. At that proceeding, Mr. Strange testified that he had made payments on loans owed by Embassy Club, that he had advanced personal funds to Embassy Club, and that he had continued to pay Embassy Club's expenses after the 1976 fire. Mr. Strange stated that he did not receive a salary for his work on behalf of Defendant Embassy Club and that he had never asked Plaintiff Anne Bogovich for authorization to receive a salary or to obtain repayment of the money he claimed to have advanced to the corporation. On cross-examination, Mr. Strange admitted that there were errors in his claims for reimbursement and that he had kept part of the insurance settlement relating to the 1976 fire.\\nOn 22 June 2009, Judge Balog entered an order denying the Strange's reimbursement claims, finding, in pertinent part, that:\\n(4) Over the course of several years until the latter part of the 1980s [Mr.] Strange advanced substantial sums of money used by the corporation in the operation of the supper club. By a preponderance of the evidence, the amount of money Mr. Strange advanced to the corporation was $120,220.70.\\n(5) This money was advanced by Mr. Strange to the corporation without any approval by the corporation.\\n(6) There were no instruments evidencing any debts to Mr. Strange for any of these alleged loans.\\n(7) There was no fixed interest rate or payment schedule for any of these alleged loans.\\n(8) These monies advanced by Mr. Strange to the corporation were used for its business purposes.\\n(9) There was a total disregard of corporate formalities with regard to corporate meetings and minutes.\\n(10) Mr. Strange did not receive any formal authorization . . . for these alleged loans. [Ms.] Bogovich was not informed of these advances of money or any details of operation of the supper club.\\n(11) These advances of monies by Mr. Strange were not shareholder loans and lawful debts of the corporation and this money is not owed to Mr. Strange by the corporation.\\n(12) Claims that these monies were shareholder loans are also absolutely barred by the applicable statute of limitations.\\n(13) [The] Strange[s] have asserted claims that the corporation owes them salaries for their time devoted to operation of the supper club.\\n(14) There was no agreement by the corporation to pay a salary to [the] Strange [s].\\n(15) There is no valid claim for salary[.]\\n(16) Any claims for salary . . . are also barred absolutely by the statute of limitations.\\nBased on these findings of fact, Judge Balog concluded as a matter of law that:\\n(2) Monies advanced by Mr. Strange to the corporation are not shareholder loans and lawful debts of the corporation and this money is not owed to Mr. Strange.\\n(3) Claims for monies advanced to the corporation by Mr. Strange are barred by the statute of limitations.\\n(4) Claims by [the] Strange [s] for salaries and claims under quantum meruit to recover for time spent on behalf of the corporation are not valid.\\n(5) Claims by [the] Strange [s] for salaries and claims under quantum meruit to recover for time spent on behalf of the corporation are barred by the statute of limitations.\\nOn appeal, the Stranges challenge Judge Balog's decision to reject their claim for reimbursement on several grounds.\\n1. Statute of Limitations\\nFirst, the Stranges argue that Judge Balog erred by concluding that their reimbursement claims were barred by the applicable statute of limitations. This argument lacks merit.\\nN.C. Gen. Stat. \\u00a7 l-15(a) provides that \\\"[c]ivil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.\\\" The Stranges do not posit any statutory or common law basis for their reimbursement claims or contend that their reimbursement claims sound in contract. As a result, we will assume for purposes of discussion that the Stranges are relying on an implied contract or oral agreement theory in support of their reimbursement claims.\\nAccording to N.C. Gen. Stat. \\u00a7 1-52(1), an action \\\"[u]pon a contract, obligation or liability arising out of a contract, expressed or implied,\\\" must be filed within three years of an alleged breach of that contract. However, \\\"where money is lent pursuant to an oral agreement which fails to specify a time for repayment, the repayment is due within a reasonable time. A party must bring an action to recover the repayment within three years after the reasonable time period has passed. In essence, a party has a reasonable time period plus three years in which to bring the action before it is barred by the statute of limitations.\\\" Phillips & Jordan Investment Corp. v. Ashblue Co., 86 N.C. App. 186, 188, 357 S.E.2d 1, 2, disc. rev. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).\\nThe Stranges' reimbursement claims are based on advances made and other obligations that allegedly arose in the 1970s and 1980s. The Stranges have never filed a civil action seeking payment of their claims, even after Ms. Bogovich filed suit against them in 2004. The Stranges do not contend that the more than ten year interval between the last date upon which they provided monies or services to Embassy Club and the date upon which they first mentioned their claim against the corporation constituted a \\\"reasonable time.\\\" Instead, they assert that their reimbursement claims were not time-barred because \\\"the statute of limitations does not run between co-fiduciaries absent demand.\\\" We do not, however, believe that the principle upon which the Stranges rely permits the maintenance of their reimbursement claims.\\nAdmittedly, \\\" 'where a fiduciary relation exists between the parties, with respect to money due by one to the other, the statute of limitations does not begin to run until there has been a demand and refusal.' \\\" Glover v. First Union National Bank, 109 N.C. App. 451, 455, 428 S.E.2d 206, 208 (1993) (quoting Efird v. Sikes, 206 N.C. 560, 562, 174 S.E. 513, 513-14 (1934)). Thus, if Ms. Bogovich had agreed that the Stranges would be repaid for monies allegedly advanced to the corporation and paid wages for work performed on behalf of the corporation, the statute of limitations might have been tolled until the Stranges requested reimbursement and Ms. Bogovich rejected that request. For example, in Fulp v. Fulp, 264 N.C. 20, 26, 140 S.E.2d 708, 714 (1965), the Supreme Court held that:\\nUnquestionably, therefore, the statute of limitations began to run against plaintiff's claim against defendant when . . . she called upon him to perform his agreement. . . and he replied \\\"You don't think I'm a damn fool, do you?\\\" This was a flat repudiation of his agreement and was notice to plaintiff that he intended to misappropriate the funds which he had received from her through their confidential relationship.\\nIn this case, however, the Stranges do not claim that an express agreement existed or that Ms. Bogovich refused to honor it. Instead, the Stranges contend that the statute of limitations was tolled until 1998, when Ms. Bogovich sent Mr. Strange what the Stranges characterized as \\\"demand letters.\\\" Although the Stranges do not specifically identify the letters upon which they rely in support of this argument, the record indicates that Ms. Bogovich sent several letters to Mr. Strange seeking information about Embassy Club's financial status and Mr. Strange's efforts to sell the corporation's real property. Ms. Bogovich did not \\\"demand\\\" anything in these letters except to be provided with corporate information to which she was indisputably entitled. In addition, the Stranges never \\\"refused\\\" to provide the requested information; instead, after Ms. Bogovich sent another letter in 2000, Mr. Strange replied that he was \\\"in the process of collecting the [requested] information\\\" and would \\\"contact [Ms. Bogovich's attorney] when [the collection process had been] completed\\\" on 10 March 2000. The Stranges have failed to explain how this exchange of letters could be construed as a \\\"demand and refusal\\\" that would belatedly trigger the running of the applicable statute of limitations.\\nMoreover, even if the applicable statute of limitations had been tolled until 1998, the Stranges never asserted a reimbursement claim. In September 2004, the Stranges filed answers to Ms. Bogovich's interrogatories in which they stated that the challenged instruments were supported by \\\"consideration\\\" in the form of debts allegedly owed to the Stranges. Assuming, without in any way deciding, that these interrogatory responses were the equivalent of asserting a reimbursement claim, the Stranges have made no attempt to establish that the six year interval between 1998 and 2004 constituted a \\\"reasonable\\\" time to wait before seeking reimbursement for monies advanced and services provided in the 1970s and 1980s. Instead, the Stranges argue that the filing of a lawsuit by Ms. Bogovich tolled the limitations period applicable to their reimbursement claims \\\"because no statute of limitations runs against a litigant while his case is pending in court.\\\"\\nThe initial problem with this aspect of the Stranges' argument is that the claim pending in the judicial system was brought by Ms. Bogovich rather than the Stranges. Moreover, although the Stranges cite several cases in support of their argument:\\nNone of them, however, is applicable to the case at bar. Each involves a plaintiff's claim against a single defendant before the Industrial Commission and holds that while the plaintiffs claim for compensation is pending before the Commission, no statute of limitations runs against the litigant on that claim.\\nBernard v. Ohio Casualty Ins. Co., 79 N.C. App. 306, 308-09, 339 S.E.2d 20, 22 (1986) (citing Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E. 2d 107 (1975), and Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971) (other citations omitted). The Stranges have cited no support for the proposition that litigation initiated by a plaintiff tolls the statute of limitations with respect to a defendant's counterclaim, and any such assertion would be contrary to the relevant decisions. See e.g., State Farm Mut. Auto. Ins. Co. v. Gaylor, 190 N.C. App. 448, 451, 660 S.E.2d 104, 106 (2008), disc. rev. denied, 363 N.C. 130, 676 S.E.2d 310 (2009) (stating that, where the defendants \\\"failed to file their counterclaims within the three-year statute of limitations period,\\\" the trial court \\\"did not err when it granted [plaintiffs] motion to dismiss the . . . counterclaims\\\"). Thus, the filing of Ms. Bogovich's complaint does not in any way serve to toll the statute of limitations applicable to any claims asserted by the Stranges.\\nFinally, the Stranges assert that their \\\"execution of the notes and deeds of trust, instruments under seal, had the effect of preserving these claims for a ten-year period from and after August 10, 2000, the date of their execution.\\\" In support of this contention, the Stranges cite N.C. Gen. Stat. \\u00a7 1-47(2), which prescribes a ten year statute of limitations for actions \\\"[u]pon a sealed instrument.\\\" The Stranges have not, however, filed any claims or counterclaims, so that they have not filed a claim or counterclaim \\\"upon a sealed instrument,\\\" effectively rendering N.C. Gen. Stat. \\u00a7 1-47(2) inapplicable to their reimbursement claims.\\nAt bottom, the Stranges' reimbursement claims are based on monies allegedly advanced to Embassy Club and services provided to the corporation in the 1970s and 1980s. The Stranges concede that there is no written contract or express agreement providing for payment of these claims. Moreover, the Stranges do not contend that their reimbursement claims were asserted within a \\\"reasonable time.\\\" Instead, the Stranges assert that the applicable statute of limitations was tolled until 1998, when Ms. Bogovich sought corporate information from Mr. Strange. Even if one were to accept this portion of their argument, the record clearly shows that the Stranges have never filed a claim or counterclaim seeking reimbursement for these alleged advances and other obligations. Even if we were to treat the discovery responses provided by the Stranges as a \\\"claim,\\\" these responses were not provided until 2004, a six year period which even the Stranges do not claim to have been \\\"reasonable.\\\" The filing of Ms. Bogovich's civil action against the Stranges did not toll the statute of limitations relating to these reimbursement claims, and N.C. Gen. Stat. \\u00a7 1-47(2) does not apply in this instance. As a result, we conclude that Judge Balog did not err by concluding that the Stranges' reimbursement claims were barred by the applicable statute of limitations.\\n2. Other Reimbursement Claim Issues\\nIn addition, the Stranges argue that their failure to obtain approval for the reimbursement of the alleged advances and for the payments of the value of their services to the corporation does not preclude recovery of their claims on the grounds that \\\"they were fair to the corporation.\\\" As a result, the Stranges contend that Judge Balog erred by ruling that Mr. Strange's advances to the corporation \\\"were not shareholder loans, were not lawful debts of the corporation, and were not owed back to\\\" Mr. Strange. We do not, however, need to address this facet of the Stranges' argument in light of our conclusion that their reimbursement claims were barred by the statute of limitations.\\nIII. Conclusion\\nThus, for the reasons set forth above, we conclude that none of the Stranges' challenges to Judge Eagles' and Judge Balog's decisions have merit and that the Stranges are not entitled to relief on appeal. As a result, the challenged judgments and orders should be, and hereby are, affirmed.\\nAFFIRMED.\\nJudges McGEE and STROUD concur.\\n. The trial court instructed the jury, without objection by the Stranges, that Ms. Bogovich was entitled to recover at least nominal damages.\\n. Giles and Watkins are the two cases cited by the Stranges in support of their argument.\"}"

nc/4115440.json

@@ -0,0 +1 @@
+"{\"id\": \"4115440\", \"name\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\", \"name_abbreviation\": \"Dallaire v. Bank of America, N.A.\", \"decision_date\": \"2012-12-18\", \"docket_number\": \"No. COA12-626\", \"first_page\": \"248\", \"last_page\": \"256\", \"citations\": \"224 N.C. App. 248\", \"volume\": \"224\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:54:13.249835+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges STROUD and HUNTER, JR. concur.\", \"parties\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\", \"head_matter\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\\nNo. COA12-626\\nFiled 18 December 2012\\n1. Appeal and Error \\u2014 preservation of issues \\u2014 argument abandoned\\nAppeal from a summary judgment for defendant Homefocus Services, LLC (later Landsafe Services, LLC) was abandoned where the entirety of plaintiffs\\u2019 brief was dedicated to allegations against defendant Bank of America.\\n2. Mortgages and Deeds of Trust \\u2014 refinanced home mortgage\\u2014 first priority loan \\u2014 duty of borrower and lender\\nThe trial court did not err by granting summary judgment for Bank of America (defendant) where there was no genuine issue of fact as to whether defendant owed plaintiffs a contractual duty to provide a first mortgage loan. The terms of the contract designated to plaintiffs the affirmative duty to assure that the lien had and maintained first priority and plaintiffs could establish no affirmative duty on the part of defendant to inform plaintiffs that the lien held second priority status.\\n3. Fiduciary Relationship \\u2014 lender and borrower \\u2014 interaction prior to loan \\u2014 summary judgment not proper\\nSummary judgment should not have been granted for defendant Bank of America in an action arising from a refinanced home mortgage where plaintiffs alleged breach of fiduciary duty. While uncommon, North Carolina law does leave room for the recognition of a fiduciary relationship between lender and borrower. In this case, plaintiffs did not receive outside advice and, when the facts are viewed in the light most favorable to plaintiffs, there is a question of fact as to whether the circumstances of the parties\\u2019 interaction prior to signing the loan gave rise to a fiduciary relationship.\\n4. Fraud \\u2014 negligent misrepresentation \\u2014 home refinancing\\u2014 summary judgment\\nSummary judgment should not have been granted for defendant Bank of America on the issue of whether defendant negligently misrepresented the priority a home refinancing loan would receive.\\n5. Mortgages and Deeds of Trust \\u2014 home refinancing \\u2014 statute not retroactive\\nThe trial court properly granted summary judgment for Bank of America (defendant) on a claim that defendant violated the Secure and Fair Enforcement Mortgage Licensing Act, N.C.G.S. \\u00a7 53-244.110 (2011), where plaintiffs\\u2019 claims arose from negotiations and a contract executed prior to the enactment of the statute. The legislature expressed a clear intent that the statute be applied prospectively.\\n6. Appeal and Error \\u2014 preservation of issues \\u2014 argument not sufficient\\nPlaintiffs abandoned an argument concerning the Mortgage Lending Act (MLA), N.C.G.S. \\u00a7 53-243.01 to -543.18 (2001) (repealed 2009), the predecessor to the current statute, by not arguing what the statutory standard was or how it was violated.\\nAppeal by Plaintiffs from judgment entered 14 February 2012 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 29 November 2012.\\nFerguson, Scarbrough, Hayes, Hawkin & DeMay, P.A., by James E. Scarbrough, for the Plaintiff-Appellants.\\nMcGuire Woods, LLP, by Lia A. Lesner and Robert A. Muckenfuss, for Defendant-Appellees.\\nJerome N. Frank Legal Services Organisation, by J.L. Pottenger, Jr., Amicus Curiae.\", \"word_count\": \"3238\", \"char_count\": \"20188\", \"text\": \"BEASLEY, Judge.\\nJacques and Femande Dallaire (Plaintiffs) appeal from the trial court's entry of summary judgment in favor of Defendants. For the following reasons, we affirm in part and reverse and remand in part.\\nIn 2005, Plaintiffs filed Chapter 7 bankruptcy to relieve their personal liability on their debts. Through the bankruptcy proceedings, Plaintiffs were relieved of their personal liability on three mortgage liens held by two lenders against Plaintiffs' home. Defendant Bank of America held two of these liens: one, a deed of trust on a mortgage note in first priority status, in the original amount of $138,900 and a second, an equity line deed of trust in second priority status, in the original amount of $25,000. The third lien secured a business loan and was held by Branch Banking & Trust (BB&T) in the original amount of $241,449.37 in third priority status. All liens remained valid as against the property.\\nIn July 2007, Plaintiffs responded to Defendant's mailing solicitations for refinancing home mortgages and went to Defendant Bank of America's local branch to discuss a refinance mortgage for their home. Plaintiffs allege that they informed Defendant's agent fully with respect to their bankruptcy and remaining liens. Plaintiffs also allege that Defendant Bank of America's agent repeatedly assured them that a new refinancing loan would receive first priority status and advised them to increase the amount of the loan to pay off two car notes. Relying on this assurance and advice, and without seeking outside counsel, Plaintiffs applied for a refinancing loan in the amount of $166,000. They were approved and received roughly $24,000 in cash from the loan to repay their car notes. Overall, their monthly expenses were reduced.\\nThe Plaintiffs' loan application was for a first-mortgage lien. On the application, Plaintiffs disclosed that they had \\\"been obligated on [a] loan which resulted in foreclosure, transfer of title in lieu of foreclosure, or judgment[.]\\\" However, Plaintiffs checked \\\"No\\\" next to the disclosure asking whether they had \\\"been declared bankrupt within the past 10 years[.]\\\"\\nFollowing the application and in accordance with general procedure, Defendant Bank of America ordered a \\\"title search\\\" from its subsidiary, Defendant HomeFocus (now Landsafe Services). This \\\"title search\\\" showed the three liens held against Plaintiffs home. Defendant Bank of America employed LSI Title Agency (LSI), upon which Defendant employed to do \\\"curative title work[,]\\\" to assess the validity of the BB&T lien. LSI gathered information from Plaintiffs and noted that Plaintiffs advised LSI that the BB&T lien was discharged. LSI advised Defendant Bank of America that it was secure in moving forward with the loan. Defendant Bank of America did not have an attorney review the information and handled the full refinance process itself.\\nIn 2010, Plaintiffs attempted to sell their home and conducted a title search. The search revealed the priority status of the liens on the home: the BB&T lien now held first priority and the new Bank of America lien held second priority.\\nOn 15 December 2010, Plaintiffs filed the instant action. Plaintiffs alleged negligent misrepresentation, negligent title search, breach of contract, breach of fiduciary duty, and statutory violations. On 18 January 2011, Defendants filed a motion to dismiss for failure to state a claim. The trial court denied this motion on 21 February 2011. On 19 December 2011, Plaintiffs moved to join LSI Title Agency as an additional defendant. On 29 December 2011, Defendants filed a motion for summary judgment. On 14 February 2012, the trial court heard both motions and granted Defendants' motion for summary judgment but dismissed the action without prejudice as to the non-party LSI Title Agency. Plaintiffs appeal the dismissal.\\n\\\"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that 'there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' \\\" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).\\nWe first note that Plaintiffs attribute no breach of duty, negligent act, or legal wrong to Defendant Landsafe Services (formerly HomeFocus Services). The entirety of Plaintiffs' brief is dedicated to allegations against Defendant Bank of America. Consequently, we affirm summary judgment with respect to Landsafe Services (formerly HomeFocus Services). We also note that Plaintiffs did not argue that the trial court erred in granting summary, judgment on the claim of negligent title search. \\\"Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.\\\" N.C. R. App. P. 28(b)(6). This argument is thus abandoned.\\nI. Breach of Contract Claim\\nPlaintiffs first argue that the trial court erred in granting Defendants' motion for summary judgment because a genuine issue of material fact exists as to whether Defendant Bank of America owed Plaintiffs a contractual duty to provide a first mortgage loan. We disagree.\\n\\\"The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.\\\" Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000)(citation omitted).\\nHere, Plaintiffs make no clear allegations in their brief that a contract existed outside of the signed note and deed of trust to secure the loan. Thus, to establish a breach of contract, Plaintiffs must show that Defendant breached the duty undertaken in the express terms of the written loan contract between the parties. The terms of deed of trust include the following duties:\\nBorrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4.\\n(emphasis added). Thus, the terms of the contract designate the affirmative duty to assure that this lien has and maintains first priority to Plaintiffs as the borrowers. The only duty assumed by Defendant is a discretionary one in which Defendant may choose to notify Plaintiffs if it learns that this lien does not have first priority, but Defendant does not have to perform this action. Therefore, Plaintiffs can estab lish no affirmative duty on the part of Defendant to inform Plaintiffs that the lien held second priority status.\\nII. Tort Claims\\nPlaintiffs next argue that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether a duty existed with respect to Plaintiffs' tort claims. We agree.\\nA. Breach of Fiduciary Duty\\nA fiduciary relationship \\\"may exist under a variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.\\\" Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). Beyond the usual occurrence, such as that found between a lawyer and client, the relationship \\\"extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.\\\" Id. (citation omitted)(internal quotation marks omitted). \\\"Whether such a relationship exists is generally a question of fact for the jury.\\\" Carcano v. JBSS, LLC, 200 N.C. App. 162, 178, 684 S.E.2d 41, 53 (2009)(citation omitted).\\nWhile uncommon, North Carolina law does leave room for the recognition of a fiduciary relationship between lender and borrower.\\n[A]n ordinary debtor-creditor relationship generally does not give rise to such a special confidence: [t]he mere existence of a debtor-creditor relationship between [the parties does] not create a fiduciary relationship. This is not to say, however, that a bank-customer relationship will never give rise to a fiduciary relationship given the proper circumstances. Rather, parties to a contract do not thereby become each others' fiduciaries; they generally owe no special duty to one another beyond the terms of the contract and the duties set forth in the U.C.C.\\nBranch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 60-61, 418 S.E.2d 694, 699 (1992)(second and third alteration in original)(cita tions omitted)(internal quotation marks omitted). In Branch Banking & Trust Co., this Court found that no fiduciary duty existed where the borrowers relied on outside counsel and advice in addition to the representations of the lender. Id.\\nHere, Plaintiffs argue that special circumstances were present to give rise to a fiduciary relationship where the facts suggest that Defendant advised Plaintiffs that a first priority lien was possible and being provided. Plaintiffs allege that they openly discussed their circumstances with Defendant and that Defendant assured them they could obtain a first priority lien mortgage loan. We find this case distinguishable from Branch Banking & Trust Co. because Plaintiffs did not receive outside advice. Id. When the facts are viewed in the light most favorable to Plaintiffs, we find that there is a question of fact as to whether or not the circumstances of the parties' interaction prior to signing the loan give rise to a fiduciary relationship and consequently created a fiduciary duty for Defendant.\\nB. Negligent Misrepresentation\\nPlaintiffs argue that Defendant negligently misrepresented that the new loan would receive first priority status. \\\"The tort of negligent misrepresentation occurs when a party justifiably relies to his detriment on information prepared without reasonable care by one who owed the relying party a duty of care.\\\" Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 206, 367 S.E.2d 609, 612 (1988)(citations omitted). In addition, \\\"parties to a contract impose upon themselves the obligation to perform it; [however,] the law [also] imposes upon each of them the obligation to perform it with ordinary care . . . .\\\" See Toone v. Adams, 262 N.C. 403, 407, 137 S.E.2d 132, 135 (1964).\\nGiven our decision to remand on the issue of whether a fiduciary duty existed, we remand on this issue as well to determine, if a duty existed, whether Defendant negligently misrepresented the priority the loan would receive.\\nIII. The Secure and Fair Enforcement Mortgage Licensing Act\\nPlaintiffs argue that the trial court erred in dismissing the statutory claims under \\u00a7 53-244.110 of the Secure and Fair Enforcement Mortgage Licensing Act (the S.A.F.E. Act), N.C. Gen. Stat. \\u00a7 53-244.110 (2011), and its predecessor the Mortgage Lending Act (MLA), N.C. Gen. Stat. \\u00a7 53-243.01 to -543.18 (2001)(repealed 2009). We disagree.\\n\\\"It is a well-established rule of construction in North Carolina that a statute is presumed to have prospective effect only and should not be construed to have a retroactive application unless such an intent is clearly expressed or arises by necessary implication from the terms of the legislation.\\\" State v. Green, 350 N.C. 400, 404, 514 S.E.2d 724, 727 (1999)(citation omitted). \\\"The application of a statute is deemed 'retroactive' or 'retrospective' when its operative effect is to alter the legal consequences of conduct or transactions completed prior to its enactment.\\\" Gardner v. Gardner, 300 N.C. 715, 718, 268 S.E.2d 468, 471 (1980). For example, in Estridge v. Ford Motor Co., 101 N.C. App. 716, 718-19, 401 S.E.2d 85, 87 (1991), this Court refused to apply the North Carolina \\\"Lemon Law\\\" under the New Motor Vehicles Warranties Act, N.C. Gen. Stat. \\u00a7 20-351 to -351.10 (1990), to a plaintiff's vehicle lease where \\\"the rights and obligations involved in the plaintiffs claim [arose] out of the lease contract which was executed . . . prior to the time when the statute came into effect in North Carolina\\\" and there was no indication that the legislature intended such retroactive application. Estridge, 101 N.C. App. at 718, 401 S.E.2d at 86.\\nHere, it is not proper to retroactively apply the S.A.F.E. Act to the circumstances of Plaintiffs' loan with Defendant. The S.A.F.E. Act was enacted in July of 2009. Secure and Fair Enforcement Mortgage Licensing Act, ch. 374, 2009 N.C. Sess. Laws 681 (codified at N.C. Gen. Stat. \\u00a7 53-244.010 to 53-244.121 (2011)). The legislature expressed clear intent that it be applied prospectively:\\nExcept as otherwise provided by Section 5 of this act [(pertaining to individuals licensed under the old requirements and the effect of the Act on their licensure status)], this act becomes effective July 31, 2009, and applies to all applications for licensure as a mortgage loan originator, mortgage lender, mortgage broker, or mortgage servicer filed on or after that date.\\nch. 374, \\u00a7 6, 2009 N.C. Sess. Laws at 709. As in Estridge, Plaintiffs' claims arise out of the negotiations and contract executed prior to the enactment of this statute. In fact, Plaintiffs signed the contract in 2007, two years before the S.A.F.E. Act came into existence. Thus, it is inapplicable to the facts of this case and the trial court properly dismissed the claim that Defendant violated this Act.\\nWith respect to Plaintiffs' reliance on the MLA, we find Plaintiffs' claim abandoned. \\\"Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.\\\" N.C. R. App. P. 28(b)(6). Plaintiffs fail to provide any provision of the MLA that creates a statutory duty applicable to the case sub judice. Plaintiffs' brief merely alleges that the MLA had a similar purpose to the S.A.F.E. Act in protecting consumers in mortgage loan transactions. In order to vaguely establish that the MLA created duties of disclosure, Plaintiffs brief then cites Guyton v. FM Lending Servs., Inc., 199 N.C. App. 30, 681 S.E.2d 465 (2009), where this Court found the MLA created a duty for a lender's to notify the borrower that the property was in a flood plain. Id. at 39-44, 681 S.E.2d at 473-76. However, Plaintiffs fail to provide any argument as to how that case or the MLA itself directly apply to the case sub judice. Plaintiffs' mere statement that \\\"issues of material fact exist as to whether [Defendant] violated its statutory standards of conduct\\\" is insufficient where there is no argument as to what that statutory standard is or how it was violated. This Court will not make the argument for Plaintiffs.\\nAffirmed in part, Reversed and Remanded in part.\\nJudges STROUD and HUNTER, JR. concur.\\n. In their briefs, both parties refer to the research performed by Defendant HomeFocus (now LandSafe Services) as a \\\"title search.\\\" We have placed this language in quotations because a title search in North Carolina is an act which constitutes the practice of law as defined by N.C. Gen. Stat. \\u00a7 84-2.1 (2011). We also note that corporations are prohibited from practicing law. See N.C. Gen. Stat. \\u00a7 84-5 (2011).\\n. Because this leaves only Defendant Bank of America as a defendant in this action, this opinion will use the term \\\"Defendant\\\" moving forward to reference Defendant Bank of America.\\n. Plaintiffs allude to the possibility that Defendant's refinancing solicitations or subsequent negotiations constituted an offer but provide nothing specific allowing this Court to determine that a clear and definite offer was made or accepted prior to the written contract signed by the parties.\\n. Although Plaintiffs' complaint alleges in the alternative that they were intended third-party beneficiaries of the contract between LandSafe and Bank of America, Plaintiffs do not advance this argument on appeal. Accordingly, we need not address it.\\n. Specifically, a question of fact exists as to whether or not Defendant sought to give legal advice to Plaintiffs. In either event, when a financial institution undertakes to provide a customer with a service beyond that inherent in the creditor-debtor relationship, it must do so reasonably and with due care.\"}"

nc/4168566.json

@@ -0,0 +1 @@
+"{\"id\": \"4168566\", \"name\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\", \"name_abbreviation\": \"Moore v. Sullbark Builders, Inc.\", \"decision_date\": \"2009-08-04\", \"docket_number\": \"No. COA08-1348\", \"first_page\": \"621\", \"last_page\": \"631\", \"citations\": \"198 N.C. App. 621\", \"volume\": \"198\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:28:00.561923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges ELMORE and STEELMAN concur.\", \"parties\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\", \"head_matter\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\\nNo. COA08-1348\\n(Filed 4 August 2009)\\n1. Workers\\u2019 Compensation\\u2014 affirmative defense \\u2014 intoxication \\u2014 test results did not indicate level \\u2014 marijuana metabolites\\nThe Industrial Commission did not err in a workers\\u2019 compensation case by concluding plaintiff\\u2019s injuries were compensable and that N.C.G.S. \\u00a7 97-12 did not bar plaintiff\\u2019s claim even though the evidence showed defendant tested positive on the date of the injury for cannabinoids, a metabolite of marijuana, because; (1) the competent evidence before the Commission supported its conclusion that plaintiff\\u2019s injury was not a result of intoxication by marijuana; (2) the Commission is the sole judge of the weight and credibility of conflicting evidence, and it was within the Commission\\u2019s discretion to determine that a doctor\\u2019s opinion that plaintiff\\u2019s toxicology results obtained during testing at the hospital were insufficient to establish plaintiff was under the influence of marijuana was more credible than another doctor\\u2019s conflicting opinion; (3) although a rebuttable presumption of intoxication may be established as a result of a positive medical test pursuant to N.C.G.S. \\u00a7 97-12, such tests must \\u201cbe in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, and both doctors testified that the test performed' by the hospital was not completed for forensic purposes and should only be used for medical purposes; (4) a doctor testified that the test results did not indicate the level of marijuana metabolites, thus only allowing the conclusion that marijuana was in plaintiff\\u2019s system at the time of the injury; and (5) defendant\\u2019s argument that the award of compensation to a plaintiff injured while under the influence of a controlled substance is against public policy need not be addressed based on competent evidence that defendant was not intoxicated at the time of his injury.\\n2. Workers\\u2019 Compensation\\u2014 disability \\u2014 incapable of work or earning same wages\\nThe Industrial Commission did not err in a workers\\u2019 compensation case by determining that plaintiff was entitled to temporary total disability benefits because: (1) the medical evidence shows that plaintiff was physically incapable of work in any employment after his injury; (2) there was competent evidence to show that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment; (3) plaintiff\\u2019s attempt to return to work with defendant and his unsuccessful attempt to work with his former employer show that he made a reasonable effort to obtain employment but was incapable of earning the same wages in any other employment; and (4) plaintiff\\u2019s limited education, his past work in carpentry and construction, and his physical condition which caused him continuing pain and restricted his motion, his doctor\\u2019s restrictions of no lifting over forty pounds and no repetitive bending made it futile for him to seek other employment.\\nAppeal by defendant from Opinion and Award entered 14 July 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 March 2009.\\nLaw Offices of Brian Peterson, by Brian Peterson, for plaintiff-appellee.\\nLewis & Roberts, PLLC, by Jeffrey A. Misc.heimer, for defendant-appellants.\", \"word_count\": \"3634\", \"char_count\": \"22810\", \"text\": \"BRYANT, Judge.\\nSullbark Builders, Inc. (defendant) appeals from an Opinion and Award determining that defendant failed to meet its burden of proof to successfully assert an affirmative defense pursuant to N.C. Gen. Stat. \\u00a7 97-12. We affirm.\\nFacts\\nJamie Moore (plaintiff) began working for defendant in September of 2005 as a trim carpenter. Plaintiff's primary duties included installing interior trim, installing crown and window molding, installing hardwood floors, and preparing stair railings. To perform his duties, plaintiff had to transport job-related materials around the building site. On 7 December 2005, plaintiff was assisting another employee when plaintiff fell approximately 12 feet to. the bottom of a retaining wall. Plaintiff lost his balance when his ankle twisted while carrying two-by-twelve boards on his shoulders.\\nAfter his fall, plaintiff was transported to Mission Hospitals where he was diagnosed with a thoracic spine fracture, pulmonary contusion, and dehydration. Plaintiff was admitted to the hospital and submitted to a urine toxicology screening and other tests. The urine screening, testing for Ethanol and six drugs, indicated Plaintiffs urine contained cannabinoids and opiates. The toxicology report did not indicate the levels or concentrations of the detected substances.\\nOn 14 December 2005, defendant filed a Form 61 Denial of Workers' Compensation Claim on the basis that plaintiff's claim was barred by N.C. Gen. Stat. \\u00a7 97-12 because plaintiff was intoxicated at the time of the accident. Plaintiff filed a request for hearing and the matter was heard on 9 October 2006.\\nAt the hearing, the deposition testimony of Drs. Shayne Cox Gad (Dr. Gad) and Andrew Mason (Dr. Mason) were presented. An Opinion and Award was filed 18 December 2007 concluding that defendant failed to meet its burden of proof to assert the defense of intoxication. Defendant appealed to the Full Commission (the Commission). On 14 July 2008, the Commission filed an Opinion and Award adopting the Deputy Commissioner's Award with modifications. Defendant appeals.\\nOn appeal, defendant argues: (I) the Full Commission committed reversible error by finding and concluding plaintiff's claim for compensation was not barred by N.C. Gen. Stat. \\u00a7 97-12; (II) it is against public policy to award compensation to plaintiff who was injured at work while intoxicated; and (III) the Full Commission erred by finding and concluding plaintiff was entitled to benefits under the Workers' Compensation Act.\\nStandard, of Review\\n\\\"Our review of the Commission's opinion and award is limited to determining whether competent evidence of record supports the find ings of fact and whether the findings of fact, in turn, support the conclusions of law.\\\" Rose v. City of Rocky Mount, 180 N.C. App. 392, 395, 637 S.E.2d 251, 254 (2006), review denied, 361 N.C. 356, 644 S.E.2d 232 (2007). \\\"Under our Workers' Compensation Act, the Commission is the fact finding body. The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\\\" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citations and quotations omitted). The Commission's findings \\\"are conclusive on appeal when supported by competent evidence, even though there is evidence that would have supported findings to the contrary.\\\" Hollman v. City of Raleigh, 273 N.C. 240, 245, 159 S.E.2d 874, 877 (1968).\\nI\\nDefendant argues the Commission erred by concluding plaintiff's injuries were compensable and that N.C. Gen. Stat. \\u00a7 97-12 did not bar plaintiff's claim. We disagree.\\nUnder N.C.G.S. \\u00a7 97-12,\\n[n]o compensation shall be payable [to an employee] if the injury or death to the employee was proximately caused by:\\n(2) His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et seq., where such controlled substance was not by prescription by a practitionerf.]\\nN.C.G.S. \\u00a7 97-12(2) (2007).\\nThe statute further provides:\\n\\\"Intoxication\\\" and \\\"under the influence\\\" shall mean that the employee shall have consumed a sufficient, quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.\\nA result consistent with \\\"intoxication\\\" or being \\\"under the influence\\\" from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebut-table presumption of impairment from the use of alcohol or a controlled substance.\\nId. \\\"[B]eing under the influence of a controlled substance [is an] affirmative defense which place [s] the burden of proof on the employer in a claim for Workers' Compensation. [This defense] will be a proximate cause of the employee's death or injury if it is a cause in fact.\\\" Harvey v. Raleigh Police Dep't., 85 N.C. App. 540, 545, 355 S.E.2d 147, 151 (1987).\\nThe evidence presented in this case showed defendant tested positive on the date of the injury for cannabinoids, a metabolite of marijuana. The Commission made the following findings regarding plaintiff's positive test results:\\n13. Plaintiff had a urine toxicology screen a few hours after arriving at Mission Hospitals. The urine toxicology screen results indicated a positive result for cannabinoids and opiates. The results did not provide any numeric levels of concentrations. No confirmatory tests were performed.\\n17. Dr. Mason testified, \\\"it's well recognized in the scientific community, urine tests cannot be used to establish impairment.\\\" Dr. Mason provided a list of ten quotes taken from scientific articles of forensic toxicology that support his statement that \\\"even competently performed forensic urine tests, by themselves, do not establish impairment.\\\"\\n18. Dr. Gad testified that to determine impairment, the drug test had to provide the levels of concentrations in order to be able to give an opinion about impairment. Dr. Gad stated: \\\"If the substance is metabolite for cocaine or marijuana, if you\\u2014 those metabolites have minimal or very limited activity. And if you just know that you have some of it in the urine, you can't\\u2014 you can't speak .to impairment.\\\" Dr. Gad's testimony shows that the test results in this case, because it only reported a positive result for marijuana, merely showed that \\\"at some point, he used marijuana.\\\"\\n19. Following the urine toxicology results, the medical record in question states \\\"positive results have not been verified by a second confirmatory procedure. Unconfirmed results should not be used for nonmedical purposes.\\\" Both toxicologists agree that the urine toxicology test in question was a test completed for medical purposes only, not valid for forensic purposes. Both toxicologists agree that a urine toxicology test that does not provide an actual level for cannabinoid concentration does not address impairment and therefore cannot be used to show impairment.\\n20. Both Dr. Mason and Dr. Gad testified that the psychoactive effects of marijuana remain active for a limited period of time. Dr. Mason testified that it was usually up to four hours, while Dr. Gad testified that it was between four and six hours, depending on the dose. Even if the Plaintiff had smoked marijuana just before going to work, any psychoactive effects would have faded before the work accident.\\n23. The testimony of those who were with the Plaintiff on the day of the accident confirm that he did not consume marijuana at any time during the work period on the day he was injured. There is no credible evidence that on the day of plaintiffs work injury, Plaintiff was under the influence of marijuana or other controlled substances. This conclusion is consistent with the medical records. The greater weight of the evidence shows no indication that Plaintiff was impaired or intoxicated at the time of his work related accident.\\n24. Plaintiff's fall at work was caused by an accidental misstep of the Plaintiff and the circumstances of the work environment, where the railing he attempted to use to steady himself gave way. The greater weight of the credible and competent evidence fails to establish that the accident which caused plaintiff's injuries was proximately caused by plaintiff being under the influence of any controlled substance.\\n28. Based on Plaintiff's work experience and vocational and educational limitations, it would have been futile for Plaintiff to seek to obtain physically suitable employment during the time that he was under restrictions of part-time work with no lifting over twenty-five pounds.\\n29. Defendant did not terminate the Plaintiff as an employee. In May 2006, the owners of Defendant discussed with the Plaintiff the possibility of his returning to limited part-time work activities with Defendant. Defendant would not make accommodations for the Plaintiff to return to work with them once the Plaintiff was released to limited part-time work. Plaintiff has not performed any work for Defendant since the date of his injury, December 7, 2005.\\nThe Commission then concluded:\\n2. The positive toxicology result from Mission Hospitals is not a result that would establish intoxication or being under the influence, such as to create a presumption of impairment. However, even if such a presumption of impairment were created, Plaintiff has presented sufficient competent testimony through toxicologist, Dr. Andrew P. Mason, which rebuts any such presumption. Defendants' assertion of such defenses are therefore rejected. N.C. Gen. Stat. \\u00a7 97-12.\\nIn the present case, the competent evidence before the Commission supported its conclusion that plaintiff's injury was not a result of intoxication by marijuana. As the Commission is the sole judge of the weight and credibility of conflicting evidence, it was within the Commission's discretion to determine that Dr. Mason's opinion that plaintiff's toxicology results obtained during testing at the hospital were insufficient to establish plaintiff was under the influence of marijuana was more credible than Dr. Gad's conflicting opinion. Although a rebuttable presumption of intoxication may be established as a result of a positive medical test pursuant to N.C.G.S. \\u00a7 97-12, such tests must \\\"be in a manner generally acceptable to the scientific community and consistent with applicable State and federal law.\\\" Id. Both Dr. Mason and Dr. Gad testified that the test performed by the hospital was not completed for forensic purposes, and should only be used for medical purposes. Also, Dr. Gad testified that the test results did not indicate the level of marijuana metabolites, only allowing the conclusion that marijuana was in plaintiff's system at the time of the injury. The test results were insufficient to establish that plaintiff was \\\"impaired\\\" and did not have \\\"the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.\\\" Id.\\nThe Commission's conclusion that defendant failed to meet its burden of proof that plaintiff was under the influence of a controlled substance at the time of his injury was supported by competent evidence in the record. Therefore, this assignment of error is overruled.\\nII\\nDefendant argues that awarding compensation to a plaintiff injured while under the influence of a controlled substance is against the public policy of the State, however, we decline to address this argument because we have determined the Commission's conclusion that plaintiff was not intoxicated at the time of his injury was supported by competent evidence in the record. Therefore, this assignment of error is overruled.\\nIll\\nDefendant argues the Commission erred by finding and concluding plaintiff was entitled to benefits under the Worker's Compensation Act because plaintiff did not produce any competent evidence to establish the existence of his disability. We disagree.\\nIn order to support a conclusion of disability, the Commission must find:\\n1. that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment,\\n2. that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment,\\n3. that this individual's capacity to earn was caused by plaintiff's injury.\\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). The burden is on the plaintiff to prove both the existence, of his disability and its degree. Id.\\nThe Full Commission's Conclusion of Law number 6 states:\\nAs a consequence of his injuries sustained in the accident of December 7, 2005, Plaintiff was unable to earn wages in the same or any other employment and was totally disabled beginning December 7, 2005 and continuing at least through the hearing date of October 9, 2006. Plaintiff is entitled to have Defendants pay him temporary total disability compensation at the rate of $357.98 per week during this period. N.C. Gen. Stat. \\u00a7 97-29.\\nPlaintiff did not work from the date of his injury on 7 December 2005 through the date of the Full Commission hearing on 9 October 2006 with the exception of two days he unsuccessfully tried to work painting. Plaintiff has also shown that he is entitled to temporary total disability compensation during this time by satisfying the test for disability set out in Hilliard.\\nFirst, the burden is on the employee to show that he is unable to earn the same wages he had earned before the injury in the same employment. Hilliard at 595, 290 S.E.2d at 683. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment, (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment, (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment, or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).\\nThe medical evidence shows that plaintiff was physically incapable of work in any employment after his injury. When plaintiff was released from the hospital on 16 December 2005, the Discharge Instructions regarding \\\"Returning to Work/School/Day Care\\\" stated \\\"when your doctor says it is okay,\\\" and plaintiff was discharged to home rest, with only light activity until follow-up. Over the next several months, plaintiff continued visiting his treating physician, Dr. Lytle, and on 17 March 2006, Dr. Lytle wrote that plaintiff was \\\"written out of work until next appointment on 5/16/06.\\\" Although Dr. Lytle noted on 22 May 2006 that plaintiff could resume work on a limited basis up to four hours per day with no lifting greater than forty pounds and no repetitive bending, on 18 July 2006, Dr. Lytle wrote that plaintiff \\\"has been unable to return to his work, as they do not have anything for him to do on a short-term basis and also feel like he's too high risk to continue to work.\\\" Because plaintiff was not able to afford a follow-up visit, the appointment on 18 July 2006 was the last time he was treated by Dr. Lytle. At that time, Dr. Lytle's medical record established that plaintiff was incapable of work \\\"at the current time\\\" and that he would write plaintiff a work release to return to work \\\"depending on how he improves.\\\" Thus, there is competent evidence to support the Full Commission's conclusion that plaintiff was physically incapable of work in any employment.\\nThere is also competent evidence to show that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment. Plaintiff attempted to return to work with defendant, but because he refused to sign a release form stating that he would not file any legal action against defendant if he was injured again on the job, he did not accept the part-time position offered. He also attempted to obtain employment with a former employer who made special accomodations for him. After working only two days, plaintiffs former employer released plaintiff because he was physically unable to do the work. Plaintiff's attempt to return to work with defendant and his unsuccessful attempt to work with his former employer show that he made a reasonable effort to obtain employment but was incapable of earning the same wages in any other employment.\\nAdditionally, plaintiff was limited to lifting no more than forty pounds and no repetitive bending because of his .injury. These restrictions hindered him from any work in carpentry, construction, or painting. This is supported by the evidence that neither defendant nor plaintiff's former employer had work to .accommodate plaintiff's restrictions. Thus, plaintiff's incapacity to earn the same wages was caused by his work injury.\\nPlaintiff has met his burden of proving his disability because he satisfies each prong of the test for disability set out in Hilliard. Therefore, this conclusion of law is supported by competent evidence.\\nThe Full Commission's conclusion of law number 7 states:\\nPlaintiff is entitled to have Defendants pay him temporary total disability compensation or temporary partial disability compensation until such time as Plaintiff is able to return to work at the same or greater wages than his weekly compensation rate. Therefore, unless the parties reach a private resolution of this matter, and until further agreement of the parties or order of the Commission, Defendants shall continue to pay Plaintiff total disability compensation. N.C. Gen. Stat. 97-29.\\nTo earn his pre-injury earnings, plaintiff needed to find employment that paid him at or near $26.80 per hour and allowed him to work only four hours per day \\u2014 the amount of time to which he was restricted by his doctor. Because of plaintiff's limited education, his past work in carpentry and construction, and his physical condition which caused him continuing pain and restricted his motion, his doctor's. restrictions of no lifting over forty pounds and no repetitive bending made it futile for him to seek other employment. This determination of futility takes into account plaintiff's work experience, educational and vocational limitations, and his average weekly wage to conclude that plaintiff could not obtain suitable employment dur ing the time he was under his doctor's restrictions. Therefore, this conclusion of law is supported by competent evidence.\\nBecause there is substantial and competent evidence to support the Full Commission's findings of fact and conclusions of law that plaintiff was entitled to benefits under the Worker's Compensation Act, this assignment of error is overruled. For the foregoing reasons, the Order and Award of the Full Commission is affirmed.\\nAffirmed.\\nJudges ELMORE and STEELMAN concur.\"}"

nc/4175275.json

@@ -0,0 +1 @@
+"{\"id\": \"4175275\", \"name\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\", \"name_abbreviation\": \"State v. Fraley\", \"decision_date\": \"2010-02-16\", \"docket_number\": \"No. COA09-785\", \"first_page\": \"457\", \"last_page\": \"468\", \"citations\": \"202 N.C. App. 457\", \"volume\": \"202\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:09:50.395926+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges WYNN and BEASLEY concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\\nNo. COA09-785\\n(Filed 16 February 2010)\\n1. Sexual Offenses\\u2014 solicitation of child by means of computer for purpose of committing unlawful sex act \\u2014 motion to dismiss \\u2014 sufficiency of evidence\\nA de novo review revealed the trial court did not err by denying defendant\\u2019s motion to dismiss the charge of solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act under N.C.G.S. \\u00a7 14-202.3(a) based on alleged insufficient evidence that defendant \\u201centiced or advised\\u201d the undercover detective to meet with him. Defendant\\u2019s words, including his entire online and telephone conversations, fell within these definitions and accurately described his course of conduct.\\n2. Evidence\\u2014 cross-examination \\u2014 opinion testimony \\u2014 invited error\\nThe trial court did not commit plain error in a case involving the solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act by allowing a detective to give opinion testimony that defendant was going to have sex with a fourteen-year-old. Even assuming the elicited statements were error, defendant cannot be prejudiced .by them as a matter of law when he invited them during cross-examination.\\n3. Constitutional Law\\u2014 effective assistance of counsel \\u2014 failing to renew motion to dismiss \\u2014 eliciting and failing to move to strike testimony\\nDefendant did not receive ineffective assistance of counsel based on his trial counsel\\u2019s failing to renew his motion to dismiss at the close of all evidence and by eliciting and failing to move to strike a detective\\u2019s lay opinion testimony. There was no reasonable probability that a different outcome would have resulted absent the alleged errors.\\n4. Appeal and Error\\u2014 preservation of issues \\u2014 failure to argue\\nAssignments of error defendant failed to argue in his brief were deemed abandoned under N.C. R. App. P. 28(b)(6).\\nAppeal by defendant from judgment entered 17 February 2009 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 8 December 2009.\\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\\nMark Montgomery, for defendant-appellant.\", \"word_count\": \"4529\", \"char_count\": \"26671\", \"text\": \"CALABRIA, Judge.\\nCharles Daniel Fraley (\\\"defendant\\\") appeals a judgment entered upon a jury verdict finding him guilty of soliciting a person the defendant believed to be a child by means of a computer for the purpose of committing an unlawful sex act. We find no error.\\nI. BACKGROUND\\nOn 7 December 2007, defendant, a married father of a nine-year-old daughter, logged on to the Yahoo Internet chat room titled NC Romance (\\\"NC Romance\\\"). Defendant did not log on using his real name, but instead used the pseudonym \\\"moonrakerlrain.\\\" Detective Kelly Marshburn (\\\"Detective Marshburn\\\"), a cyber crimes detective with the Raleigh Police Department (\\\"RPD\\\"), also logged on to NC Romance that day. As part of her duties with the RPD, Detective Marshburn signed on to NC Romance as \\\"cassia dutra\\\" (\\\"Cassia\\\"). Detective Marshburn adopted the persona of Cassia, a 14 year-old-girl who lived with her mother in Raleigh near Crabtree Valley Mall (\\\"the mall\\\"), in order to see if someone would solicit a child for sex using a computer.\\nAt 2:50 p.m. on 7 December 2007, defendant made his initial contact with Cassia in the NC Romance chat room. By 3:00 p.m., defendant asked Cassia if she was \\\"looking for a hook up.\\\" At 3:08 p.m., defendant asked Cassia if she would \\\"like [to] meet and have good sex,\\\" and then asked Cassia to send him a picture of herself over the Internet. Cassia sent defendant three pictures. The pictures were actually photographs of a female coworker at the RPD taken when the coworker was 14 years old. The coworker had given Detective Marshburn permission to use the photos. When defendant received the pictures, he replied to Cassia, \\\"you look pretty.\\\" Defendant then sent two pictures of himself to Cassia. In one photo, defendant was pictured wearing only a small bathing suit and sunglasses, and in the other, defendant was wearing military fatigues. Defendant then told Cassia, \\\"you look hot to [sic] . do you want to get together?\\\" When Cassia asked how old he was, he replied that he was 32 and asked how old Cassia was. When she answered that she was 14, defendant stated that he thought she was older. However, defendant continued to chat with Cassia online for nearly 30 minutes. During this time, defendant asked Cassia where she lived, joked that he could \\\"hook up\\\" with her and her mother, and suggested meeting Cassia in person so they could \\\"go somewhere and park.\\\"\\nOn 12 December 2007, defendant logged on to NC Romance under the pseudonym \\\"dan claussen.\\\" Defendant chatted with Cassia for nearly 50 minutes. During the chat, Cassia again identified herself as being 14 years old. Defendant expressed interest in meeting Cassia and asked her, \\\"what do you want to do when we meet?\\\" When Cassia asked what defendant wanted to do, he answered, \\\"that is up to you sweetie[.]\\\" Defendant suggested that he and Cassia meet at 1:00 p.m. on 13 December, and Cassia agreed. He stated, \\\"I get the feeling that you are wanting to talk about sex[.]\\\" Cassia said \\\"sure,\\\" and defendant then stated that sex was something he would talk about in person. Defendant then asked Cassia if she was a virgin and also asked for her telephone number. Cassia gave him a number that, unbeknownst to defendant, was a specific undercover number the RPD would use for Detective Marshbum's cases. Defendant said he would call Cassia later that evening, and he and Cassia also agreed to meet at the food court at the mall the next day. On 13 December 2007, defendant sent Cassia an offline instant message stating, \\\"hey sweetie . sorry I didn't call, I will still be there at 1 today and I hope to see you there, bye for now sweetie.\\\" However, defendant and Cassia did not meet that day.\\nAfter the online chat of 12 December 2007, Detective Marshburn was able to identify the IP address of \\\"moonrakerlrain\\\" and \\\"dan claussen,\\\" and tracked it to a military base. Detective Marshburn then obtained a subpoena for the Internet carrier service, which identified defendant as the subscriber who had been chatting under those pseudonyms. On 16 December 2007, defendant sent three offline instant messages to Cassia. In one, he asked if they could meet the next night. Cassia did not respond and did not meet with defendant on 17 December. On 20 December 2007, defendant sent a chat message to Cassia stating that he was going to be away for Christmas and would \\\"catch back up\\\" with Cassia after that. Cassia did not respond.\\nOn 9 January 2008, defendant called Cassia on the telephone. During the course of the conversation, defendant told Cassia that she had a nice voice, and stated that he would come see her on Tuesday. He also stated that he could get in trouble for talking to Cassia because she was so young. When Cassia stated that she was nervous because she \\\"never did this before,\\\" defendant replied that he had done so once, \\\"but not with someone this young,\\\" adding that he and his previous paramour \\\"just kissed.\\\" When Cassia asked if defendant liked younger girls, he replied in the affirmative because \\\"[t]hey just look better, feel better.\\\" Defendant and Cassia agreed to meet in person at the food court at the mall, and agreed to chat more online so that Cassia could tell defendant \\\"everything that [she] want[ed] to do.\\\"\\nDefendant and Cassia engaged in an online chat that day that lasted an hour. Defendant stated that he was still interested in meeting Cassia in person and asked again for her phone number, which she gave him. Defendant told Cassia that she \\\"sound[ed] very sexy\\\" and asked her \\\"what all [she] want[ed] to get into\\\" when he saw her. When Cassia asked if they were going to kiss, defendant replied, \\\"if you want,\\\" and stated, \\\"we can do more if you want.\\\" Defendant then asked if Cassia was \\\"turned on,\\\" and told her, \\\"I want you on top of me[.]\\\" When Cassia asked, \\\"like sex,\\\" defendant replied, \\\"yeah.\\\" Defendant agreed to meet Cassia that afternoon. Cassia stated that she would be wearing her pink New York Yankees baseball cap. However, they did not meet. Defendant sent a chat message to Cassia stating that the reason he could not meet was because he locked his keys in his vehicle.\\nQn 15 January 2008, defendant sent an offline instant message to Cassia stating that he would meet her at 9:30 that morning. Later that morning, defendant and Cassia agreed that they would meet at 11:30 a.m. at the food court at the mall. At 10:00 that morning, Detective Marshburn was sitting at a table in the food court of the mall. Detective Regina Corcoran (\\\"Detective Corcoran\\\") of the RPD portrayed Cassia. Detective Corcoran was sitting at another table in the food court approximately 25 feet from Detective Marshburn. Detective Corcoran was wearing jeans, a sweatshirt, and a pink New York Yankees baseball cap and was pretending to listen to an Ipod. As defendant entered the food court and sat down across from Detective Corcoran, Detective Marshburn and Sergeant Gary Hinnant (\\\"Sergeant Hinnant\\\") of the RPD approached defendant and asked to speak with him. At that point, defendant stated, \\\"I knew it.\\\"\\nDefendant was arrested and indicted on a charge of solicitation of a child by computer to commit an unlawful sex act. The trial commenced on 17 February 2009. At the close of the State's evidence, defendant moved to dismiss the charge, and the trial court denied the motion. Defendant then presented evidence. There is nothing in the record or transcript showing defendant renewed his motion at the' close of all the evidence. On 19 February 2009, the jury returned a verdict of guilty. The trial court then sentenced defendant to a minimum term of four months to a maximum term of five months in the custody of the North Carolina Department of Correction and ordered defendant to register as a sex offender upon his release. Defendant appeals.\\nII. MOTION TO DISMISS\\nDefendant argues that the trial court erred in denying his motion to dismiss. We disagree.\\nAs an initial matter, we note that defendant made a motion to dismiss at the conclusion of the State's case, but there is nothing in the record showing that he renewed his motion at the conclusion of all the evidence. N.C. R. App. P. 10(b)(3) (2009) states:\\nA defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\\nGenerally, if a defendant failed to renew his motion to dismiss after he presented evidence, he is precluded from challenging the denial of his motion to dismiss on appeal. State v. Brunson, 187 N.C. App. 472, 476, 653 S.E.2d 552, 555 (2007). \\\"However, pursuant to N.C. R. App. P. 2, we will hear the merits of defendant's claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel's failure to make the proper motion to dismiss.\\\" State v. Gayton-Barbosa,-N.C. App.-,-, 676 S.E.2d 586, 593 (2009).\\nWe review a trial court's denial of a motion to dismiss criminal charges de novo, to determine \\\"whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.\\\" State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \\\"Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion.\\\" State v. Hargrave,-N.C. App.-, \\u2014\\u2022, 680 S.E.2d 254, 261 (2009) (citation omitted). \\\"The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. .\\\" Powell, 299 N.C. at 99, 261 S.E.2d at 117. \\\"[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]\\\" State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). \\\" 'The test of the sufficiency of the evidence on a motion to dismiss is the same whether the evidence is direct, circumstantial, or both. All evidence actually admitted, both competent and incompetent, which is favorable to the State must be considered.' \\\" State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000) (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). \\\"In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.\\\" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).\\nThe crime of solicitation of a child by computer to commit an unlawful sex act is defined as follows:\\nA person is guilty of solicitation of a child by a computer if the person is 16 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands, by means of a computer, a child who is less than 16 years of age and at least 3 years younger than the defendant, or a person the defendant believes to be a child who is less than 16 years of age and who the defendant believes to be at least 3 years younger than the defendant, to meet with the defendant or any other person for the purpose of committing an unlawful sex act. Consent is not a defense to a charge under this section.\\nN.C. Gen. Stat. \\u00a7 14-202.3(a) (2007).\\nIn the instant case, defendant was 32 years old and Cassia stated she was 14 years of age. On 7 December 2007, defendant and Cassia engaged in a chat on NC Romance. During the chat, defendant asked Cassia if she was \\\"looking for a hook up.\\\" When Cassia responded that she liked to \\\"hang out and have fun,\\\" defendant asked if she was into \\\"anything sexual\\\" and asked her if she wanted to \\\"have good sex with [defendant].\\\" Defendant and Cassia then exchanged photos and defendant asked Cassia her age. When Cassia replied that she was fourteen, defendant stated, \\\"oh, i [sic] am sorry, I thought you were older,\\\" but later asked, \\\"so, if we were to meet, how would we do it?\\\" During the same chat, defendant subsequently asked Cassia if she wanted to \\\"go somewhere and park\\\" and \\\"see how it goes.\\\"\\nOn 12 December 2007, defendant, now using the pseudonym \\\"dan claussen,\\\" and Cassia engaged in another chat on NC Romance. Defendant again asked Cassia her age. When Cassia responded that she was fourteen, defendant stated, \\\"you are underage, and i [sic] am not . I am apprehensive about meeting you in person . . . .\\\" Defendant then stated that he and Cassia could meet in person \\\"and see where it goes from there\\\" and do things like \\\"catch a movie at the mall, or just hang out, or find other things to get into.\\\" When Cassia asked what defendant meant by that statement, defendant responded, \\\"I get the feeling that you are wanting to talk about sex .,\\\" and that \\\"[t]hat is something we could talk about in person if you like.\\\" Defendant then agreed to meet Cassia the next day at the mall. Before signing off, defendant asked Cassia, \\\"are you a virgin?\\\" Defendant signed off by telling Cassia, \\\"ok, bye sweetie.\\\"\\nOn 9 January 2008, defendant spoke by telephone with Detective Marshburn. Defendant identified himself by his middle name, Dan, and Detective Marshburn identified herself as Cassia. During that conversation, defendant told Cassia she had a \\\"nice voice.\\\" He then stated, \\\"I can just get in trouble for talking to you . . . [c]ause [sic] you're young.\\\" When Cassia stated that she was nervous because she \\\"never did this before,\\\" defendant said \\\"[w]ell, I have once, but not with someone this young[.]\\\" When Cassia asked defendant what he did on that prior occasion, defendant said, \\\"we just kissed and stuff.\\\" Defendant asked Cassia if she liked \\\"older guys.\\\" She replied in the affirmative, then asked defendant if he liked \\\"younger girls.\\\" He replied, \\\"[y]eah, I do . . [because] [t]hey just look better, feel better....\\\" Defendant and Cassia engaged in another chat on NC Romance that day. Defendant told Cassia, \\\"you sound very sexy\\\" and stated he wanted \\\"to do whatever you are curious about or want to try.\\\" When Cassia asked defendant if they were going to kiss, defendant replied, \\\"if you want . we can do more if you want[.]\\\" Defendant then asked Cassia, \\\"are you turned on at all right now?\\\" Defendant stated that he was also turned on and told Cassia, \\\"I want you on top of me Cassia replied, \\\"like sex,\\\" and defendant answered \\\"yeah.\\\" On 15 January 2008, defendant and Detective Marshbum engaged in another chat on NC Romance. Defendant agreed to meet Cassia at the mall at 11:30 a.m. that day. Substantial evidence sustained the jury verdict of guilty of solicitation of a person the defendant believed to be a child, by means of a computer, for the purpose of committing an unlawful sex act.\\nDefendant argues that there was no evidence that he \\\"enticed or advised\\\" Detective Marshburn to meet with him within the meaning of N.C. Gen. Stat. \\u00a7 14-202.3(a). We disagree.\\nDefendant does not suggest definitions for these words. They are not defined in N.C. Gen. Stat. \\u00a7 14-202.3(a), nor can we find any case law in our state providing us with a definition. When a word used in a statute is not explicitly defined by that statute, the General Assembly is presumed to have used the word to convey its natural and ordinary meaning. State v. Worley,- N.C. App.-,-, 679 S.E.2d 857, 861 (2009). \\\" 'The best indicia of [the legislature's] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.' \\\" State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444, 450 (2009) (quoting Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)). The purpose of statutes such as N.C. Gen. Stat. \\u00a7 14-202.3 is to protect children against exploitation. Outmezguine v. State, 97 Md. App. 151, 166, 627 A.2d 541, 548 (1993); Bone v. State, 771 N.E.2d 710, 717 (Ind. App. 2002); Ward v. State, 994 So.2d 293, 300 (Ala. Crim. App. 2007); PROTECT Act, Pub. L. No. 108-21, \\u00a7 1(a), 117 Stat. 650, 650 (2003).\\n\\\"Webster's Ninth New Collegiate Dictionary... defines 'advise' as 'recommendf.]' \\\" People v. Hatcher, 392 Ill. App. 3d 163, 167, 910 N.E.2d 757, 761 (2009) (citing Webster's Ninth New Collegiate Dictionary 59 (1988)).\\nEntice has been defined as: \\\"to lure; to lead on by exciting hope of reward or pleasure; to tempt,\\\" Webster's New 20th Century Dictionary (2d ed. 1960), and \\\"[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce.... To lure, induce, tempt, incite, or persuade a person to do a thing.\\\" Black's Law Dictionary 531 (6th ed. 1990).\\nState v. Scieszka, 897 P.2d 1224, 1226 (Utah Ct. App. 1995); State v. Hansen, 750 N.W.2d 111, 114 (Iowa 2008); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 n. 6 (1979), superseded on other grounds by statute, 14 V.I.C. \\u00a7 1052(b) (2009); Bayouth v. State, 294 P.2d 856, 863 (Okla. Crim. App. 1956). We believe that defendant's words to Cassia fall within these rather broad definitions, particularly when the entire online and telephone conversations are considered. Hatcher, 392 Ill. App. 3d at 167, 910 N.E.2d at 761. \\\"We do not find [the above] definitions at all inconsistent with defendant's conduct. On the contrary, they accurately describe his course of conduct.\\\" Scieszka, 897 P.2d at 1226. Defendant's assignment of error is overruled.\\nIII. PLAIN ERROR\\nDefendant argues that the trial court committed plain error in allowing Detective Marshburn to give opinion testimony. We disagree.\\nUnder the plain error standard of review, defendant has the burden of showing: \\\" '(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.' \\\" State v. McNeil, 165 N.C. App. 777, 784, 600 S.E.2d 31, 36 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). \\\"Indeed, even when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.' \\\" State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)).\\n\\\"Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\\\" State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007) (citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)); N.C. Gen. Stat. \\u00a7 15A-1443(c) (2007) (\\\"A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.\\\"); see also State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant could not assign error to testimony elicited by his counsel during a cross-examination of the State's witness).\\nIn the instant case, the following exchange occurred when defendant's counsel cross-examined Detective Marshburn:\\nQ: And one last question. In your last chat [defendant] said he was coming to Raleigh, which is State's Exhibit Number 17.\\nA: Um-hum.\\nQ: Just to be sure, there is no specific references [sic] to any sex act; is that correct?\\nA: That's correct.\\nQ: So you don't know why he was coming to Raleigh on that day.\\nA: It is my opinion he was coming to Raleigh to have sex with a 14 year old.\\nQ: But you don't know that.\\nA: That's my opinion.\\nEven assuming arguendo the elicited statements above are error, defendant cannot be prejudiced by them as a matter of law because he invited them. Gobal, 186 N.C. App. at 319, 651 S.E.2d at 287. Defendant's assignment of error is overruled.\\nIV. INEFFECTIVE ASSISTANCE OF COUNSEL (\\\"IAC\\\")\\nIn the alternative, defendant urges this Court to hold that he was denied the effective assistance of counsel because his trial counsel: (1) failed to renew his motion to dismiss at the close of all the evidence, and (2) elicited and failed to move to strike Detective Marshburn's lay opinion testimony. We disagree.\\n\\\"Claims of ineffective assistance of counsel are . . . most properly raised in a motion for appropriate relief.\\\" State v. Jones, 176 N.C. App. 678, 688, 627 S.E.2d 265, 271 (2006). \\\"Our Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only 'when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.' \\\" Id. (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)).\\n\\\"To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.\\\" State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). \\\"Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness.\\\" Id. (internal quotations and citations omitted). \\\"Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. (internal quotations and citations omitted).\\nAs for defendant's first IAC argument, if the evidence is sufficient to support a conviction, the defendant is not prejudiced by his counsel's failure to make a motion to dismiss at the close of all the evidence. Gayton-Barbosa,-N.C. App. at-, 676 S.E.2d at 594. Since we have found that the evidence in the instant case was sufficient to support the jury's verdict, \\\"defendant has not shown counsel's assistance to be constitutionally inadequate, [and thus his] assignment of error is without merit.\\\" Id. at-, 676 S.E.2d at 594.\\nAs for defendant's second IAC argument, \\\"[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.\\\" State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698). The online chats and the telephone call between defendant and Detective Marshbum provide overwhelming evidence that defendant thought Detective Marshbum was a 14-year-old girl and that defendant was meeting her at the mall for a sexual encounter. Even if defendant's counsel had not elicited or had moved to strike Detective Marshbum's lay opinion testimony, there was no reasonable probability that a different outcome would have resulted.\\nV. CONCLUSION\\nDefendant's remaining assignments of error not argued in his brief are abandoned. N.C. R. App. P 28(b)(6) (2009). Defendant received a fair trial free from error.\\nNo error.\\nJudges WYNN and BEASLEY concur.\\n. \\\"Chat rooms\\\" and \\\"instant messenger\\\" are types of Internet services that allow users to engage in real time dialogue \\\"by typing messages to one another that appear almost immediately on the others' computer screens.\\\" Reno v. American Civil Liberties Union, 521 U.S. 844, 851-52, 117 S. Ct. 2329, 2335, 138 L. Ed. 2d 874, 885 (1997).\\n. After defendant's offense date, our General Assembly adopted a series of amendments to this statute, including, inter alia, enticing \\\"by means of a computer or any other device capable of electronic data storage or transmission,\\\" and stating that the age difference between the defendant and the victim or perceived victim is to be five years. See N.C. Gen. Stat. \\u00a7 14-202.3(a) (2009).\"}"

nc/4177188.json

@@ -0,0 +1 @@
+"{\"id\": \"4177188\", \"name\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\", \"name_abbreviation\": \"Lee v. Winget Road, LLC\", \"decision_date\": \"2010-05-18\", \"docket_number\": \"No. COA09-828\", \"first_page\": \"96\", \"last_page\": \"105\", \"citations\": \"204 N.C. App. 96\", \"volume\": \"204\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:14:28.509524+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges HUNTER, JR. and ERVIN concur.\", \"parties\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\", \"head_matter\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\\nNo. COA09-828\\n(Filed 18 May 2010)\\nAppeal and Error\\u2014 notice of appeal \\u2014 failure to serve on all parties \\u2014 jurisdictional\\u2014significant violation\\nAn appeal was dismissed where plaintiff-appellants failed to comply with N.C. R. App. P. Rule 3(a) by not serving a notice of appeal on the non-appealing plaintiffs and previously dismissed defendants. Compliance with Rule 3 is jurisdictional and may be raised by the court. Furthermore, noncompliance is a significant and fundamental violation that frustrates the adversarial process and that no sanction less than dismissal will remedy.\\nAppeal by plaintiffs Rodney A. Lee and wife, Stephanie F. Lee, Harlee Davis and wife, Alma R Davis, and Mary B. Griffin from order entered 4 February 2009 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19 November 2009.\\nParker Poe Adams & Bernstein LLP, by Michael G. Adams and Morgan H. Rogers, for defendants-appellees.\", \"word_count\": \"3723\", \"char_count\": \"22311\", \"text\": \"STROUD, Judge.\\nPlaintiff-appellants filed a notice of appeal of a summary judgment order dismissing their claims. After the parties briefed the issues, defendant-appellees filed a motion to dismiss the appeal for failure to comply with the requirements of North Carolina Rule of Appellate Procedure 3(a) as to service of the notice of appeal. We agree with defendant-appellees and dismiss the appeal.\\nI. Background\\nOn 7 March 2008, Rodney and Stephanie Lee (\\\"Lees\\\"), Leo Gibson (\\\"Mr. Gibson\\\"), Kamamu and Jenifer Abubakari (\\\"Abubakaris\\\"), Harlee and Alma Davis (\\\"Davises\\\"), and Mary Griffin (\\\"Ms. Griffin\\\") filed a complaint against Winget Road, LLC (\\\"Winget\\\"), NVR, Inc. T/A Ryan Homes (\\\"NVR One\\\"), NVR Settlement Services, Inc. (\\\"NVR Two\\\"), Brian Iagnemma (\\\"Mr. Iagnemma\\\"), Todd Williams (\\\"Mr. Williams\\\"), Kuester Real Estate Services, Inc. (\\\"Kuester\\\"), and Erin Bottenberg (\\\"Ms. Bottenberg\\\") regarding modifications to the Declaration for Winget Pond Subdivision. On 13 November 2008, all plaintiffs voluntarily dismissed defendants Kuester and Ms. Bottenberg from the action with prejudice. All remaining defendants, Winget, NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams, filed motions for summary judgment.\\nOn 4 February 2009, the trial court granted defendants' motions for summary judgment. On 5 March 2009, Roger Bruny, as counsel for plaintiff-appellants the Lees, the Davises, and Ms. Gibson, filed a notice of appeal. On or about 11 June 2009, plaintiff-appellants withdrew their appeal as to Winget. On or about 16 September 2009, defendant-appellees NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams, filed a motion to dismiss plaintiff-appellants' appeal. The motion to dismiss was based on two grounds; the first ground is that \\\"Appellants failed to serve the Notice of Appeal on all parties because Appellants failed to serve the Notice of Appeal on the non-appealing Plaintiffs and the Kuester Defendants.\\\"\\nII. Motion to Dismiss\\nDefendant-appellees argue that plaintiff-appellants appeal should be dismissed because plaintiff-appellants failed to serve a notice of appeal on non-appealing plaintiffs, the Abubakaris and Mr. Gibson, and on previously dismissed defendants, Kuester and Ms. Bottenberg, in violation of North Carolina Rule of Appellate Procedure 3(a). We first consider plaintiff-appellants' failure to serve the non-appealing plaintiffs.\\nA. Failure to Serve Notice of Appeal on Other Plaintiffs\\nThe notice of appeal in the record provides that only the Lees, the Davises, and Ms. Griffin are appealing. The certificate of service for the notice of appeal certifies that it was served on Richard Fennell, Winget's attorney, and Michael Adams and Morgan Rogers, attorneys for NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams. Neither the notice of appeal nor certificate of service mentions the Abubakaris or Mr. Gibson. The record shows that Kenneth Davies of Davies & Grist, LLP represented the non-appealing parties, the Abubakaris and Mr. Gibson, before the trial court. The notice of appeal and certificate of service also make no mention of Mr. Davies or his law firm.\\n1. Standing and Waiver\\nPlaintiff-appellants contend that defendant-appellees do not have standing to bring their motion to dismiss and that because defendant-appellants had over six months notice of this appeal, during which time substantial time and money have been spent, the issues in the motion to dismiss have been waived. However,\\n[i]n order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure. The provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\\nStephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (citations and quotation marks omitted), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006). Furthermore, \\\"an appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.\\\" Xiong v. Marks, 193 N.C. App. 644, 652, 668 S.E.2d 594, 599 (2008). Thus, even assuming arguendo that defendantappellees do not have standing or that they have waived any arguments for which they properly had standing, this Court still may and will consider whether plaintiff-appellants complied with Rule 3(a). See id. -, see also Guthrie v. Conroy, 152 N.C. App. 15, 17, 567 S.E.2d 403, 406 (2002) (\\\"[D]efendant's motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review.\\\" (citation omitted)).\\nIn addition, plaintiff-appellants' argument as to standing is based on a lack of prejudice to defendant-appellees. However, clearly the parties most likely to be prejudiced by this appeal are the unserved parties who, as best we can tell from the record, are unaware of the appeal and therefore cannot possibly file a motion to dismiss. Likewise, the parties who would need to waive the lack of service of the notice of appeal were not served with a notice and thus have not had the opportunity to waive service. Thus, we must consider whether dismissal of the appeal is necessary as this is the only way that we can address this issue of compliance with the Rules of Appellate Procedure and protection of the rights of all of the parties.\\n2. North Carolina Rule of Appellate Procedure 3(a)\\nPlaintiff-appellants argue that Rule 3(a) does not provide \\\"that the Notice of Appeal must be served on all parties to the action at the trial level, nor does it provide that the Notice of Appeal should be served on parties who have chosen not [to] appeal.\\\" We disagree with these contentions. Rule 3(a) provides that\\n[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.\\nN.C.R. App. P. 3(a) (emphasis added).\\nNeither defendant-appellees nor plaintiff-appellants direct this Court to any case law regarding an appellant's failure to serve a notice of appeal on parties on the same side of a suit. However, the plain language of Rule 3(a) provides that \\\"all other parties\\\" must be served with a copy of the notice of appeal. N.C.R. App. P. 3(a). \\\" 'All' is defined as 'the whole quantity of,' 'everyone,' or 'entirely.' \\\" Farrior v. State Farm Mut. Auto. Ins. Co., 164 N.C. App. 384, 388, 595 S.E.2d 790, 793 (citation omitted), disc. review denied, 358 N.C. 731, 601 S.E.2d 530 (2004). Furthermore, this Court has dismissed a plaintiff's appeal \\\"because there is no proof of service of the notice of appeal on the other parties to the appeal, as is required by our Rules of Appellate Procedure.\\\" Spivey and Self v. Highview Farms, 110 N.C. App. 719, 729, 431 S.E.2d 535, 541, disc. review denied, 334 N.C. 623, 435 S.E.2d 342 (1993).\\nIn Hale v. Afro-American Arts Int'l, 335 N.C. 231, 436 S.E.2d 588 (1993), the appellant filed a notice of appeal, but failed to include in the record a certificate of service of the notice of appeal upon the appellee. Id. at 232, 436 S.E.2d at 589. The Court of Appeals dismissed the appeal, finding that the lack of a certificate of service of the notice of appeal was a jurisdictional defect. Id. Judge Wynn dissented and concluded that failure to serve the notice of appeal could be waived \\\"by not raising the issue by motion or otherwise and by participating without objection in the appeal.\\\" Id. The Supreme Court adopted Judge Wynn's dissent and reversed the majority opinion. Id. Thus, pursuant to Hale, filing of the notice of appeal is jurisdictional, but where a notice of appeal is filed, service of the notice of appeal upon all parties may be waived. Id.\\nIn Ribble v. Ribble, the appellant filed a notice of appeal but failed to include in the record a certificate of service upon the appellee, who did not appear or file a brief in the appeal. 180 N.C. App. 341, 343, 637 S.E.2d 239, 240 (2006). This Court discussed Hale and concluded that the appellant in Ribble did not fall within the Hale exception because the \\\"[appellee]... has not filed a brief or any other document with this Court or otherwise participated in this appeal. This record does not indicate plaintiff had notice of this appeal and plaintiff has not waived defendant's failure to include proof of service in the record before this Court.\\\" Ribble at 343, 637 S.E.2d at 240; see In re C.T., 182 N.C. App. 166, 168, 641 S.E.2d 414, 415 (dismissing appeal pursuant to Ribble), aff'd per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007); see also Blyth v. McCrary, 184 N.C. App. 654, 660, 646 S.E.2d 813, 817 (2007) (noting that the fact that a party allegedly told the appellant that he did not wish to be served with court documents still does not excuse another party from failing to serve all required documents on all required parties), disc. review denied, 362 N.C. 175, 658 S.E.2d 482 (2008).\\nHere, the record does not reflect that the non-appealing plaintiffs were ever notified of this appeal, and they have not filed any briefs or participated in the appeal in any way. In response to the motion to dismiss the appeal the appellants could have obtained written waivers from the unserved plaintiffs to present to this Court, but they failed to do so. The plaintiff-appellants' failure to comply with Rule 3 has not been waived by the non-appealing plaintiffs.\\n3. North Carolina Rule of Appellate Procedure 26(e)\\nPlaintiffs argue that because North Carolina Rule of Appellate Procedure 3(e) refers to Rule 26, Rule 26 controls. Rule 3(e) provides that \\\"[s]ervice of copies of the notice of appeal may be made as provided in Rule 26 of these rules.\\\" N.C.R. App. P. 3(e). Plaintiffs then argue that North Carolina Rule of Appellate Procedure 26(e) states that \\\"[a]ny paper required by these rules to be served on a party is properly served upon all parties joined in the appeal by service upon any one of them.\\\" N.C.R. App. P. 26(e) (emphasis added). However, the provision of Rule 26(e), entitled \\\"Joint appellants and appellees,\\\" allows service on one party only as to parties who are joined in the appeal. See id. There is no indication in the record that plaintiffs-appellants and the Abubakaris and Mr. Gibson are \\\"joint appellants.\\\" See N.C.R. App. P. 5(a).\\nNorth Carolina Rule of Appellate Procedure 5 sets forth the requirements for joinder of appellants in an appeal. See id. In order for appellants to be considered joined they\\nmay give a joint oral notice of appeal or file and serve a joint notice of appeal in accordance with Rule 3 and 4; or they may join in appeal after timely taking of separate appeals by filing notice of joinder in the office of the clerk of superior court and serving copies thereof upon all other parties.\\nId. Rule 5(c) goes on to provide that \\\"[a]fter joinder, the parties proceed as a single appellant or appellee. Filing and service of papers by and upon joint appellants or appellees is provided by Rule 26(e).\\\" N.C.R. App. P 5(c) (emphasis added).\\nRule 3(a) directs that all parties must be served with the notice of appeal. See N.C.R. App. P. 3(a). Rule 26 is entitled, \\\"Filing and service.\\\" N.C.R. App. P. 26. Rule 26 describes methods of serving various appellate documents. See id. Furthermore, Rule 26(e) specifically addresses \\\"[j]oint appellants and appellees[.]\\\" N.C.R. App. P. 26(e). However, plaintiff-appellants' argument ignores Rule 5, which sets forth the procedure for joinder. See N.C.R. App. P. 5. The purpose of a notice of appeal is obviously to provide parties with notice that an appeal is being made. If the parties wish to join in the appeal under Rule 5, they may do so. See N.C.R. App. P. 5. However, unless there is joinder, all parties have to be served with the notice of appeal. See N.C.R. App. P. (3)(a), 5, 26(e). The Abubakaris and Mr. Gibson were not \\\"joined in the appeal\\\" with plaintiff-appellants and thus Rule 26(e) is inapplicable. N.C.R. App. P. 26(e), see N.C.R. App. P. 5(a), (c).\\n4. Dismissal\\nAs plaintiff-appellants have failed to comply with Rule 3, we must now consider whether the appeal must be dismissed pursuant to Dogwood Dev. & Mgmt. Co. LLC, v. White Oak Transp. Co., 362 N.C. 191, 193, 657 S.E.2d 361, 362 (2008). If the failure to comply with Rule 3 created \\\"[a] jurisdictional default\\\" we would be required \\\"to dismiss the appeal.\\\" Id. at 197, 657 S.E.2d at 365 (citations omitted). In fact, Dogwood noted lack of notice of appeal in the record or failure to give timely notice of appeal as examples of jurisdictional defects. Id. at 197-98, 657 S.E.2d at 365. However, Dogwood did not address the situation we have here, where a notice of appeal is properly and timely filed, but not served upon all parties. Pursuant to Hale, as noted above, we find that this violation of Rule 3 is a nonjurisdictional defect. Hale, 335 N.C. 231, 436 S.E.2d 588.\\nDogwood states that a nonjurisdictional failure to comply with appellate rules \\\"normally should not lead to dismissal of the appeal.\\\" Id. at 198, 657 S.E.2d at 365 (citations omitted). Neither dismissal nor other sanctions under North Carolina Rules of Appellate Procedure 25 or 34 should be considered unless the noncompliance is a \\\"substantial failure\\\" to comply with the Rules or a \\\"gross violation\\\" of the Rules. Id. at 199, 657 S.E.2d at 366 (quotation marks omitted). This Court is required to make a \\\"fact-specific inquiry into the particular circumstances of each case\\\" mindful of the need to enforce the rules as uniformly as possible. Id. at 199-200, 657 S.E.2d at 366 (citations omitted). Dismissal is appropriate only for the \\\"most egregious instances of nonjurisdictional default[.]\\\" Id. at 200, 657 S.E.2d at 366 (citations omitted). To determine the severity of the rule violation, this Court is to consider: \\\"[(1)] whether and to what extent the noncompliance impairs the court's task of review[,] [(2)] . whether and to what extent review on the merits would frustrate the adversarial process . . . [, and (3)] [t]he court may also consider the number of rules violated[.]\\\" Id. at 200, 657 S.E.2d at 366-67 (citations omitted).\\nIn this instance, we find that the noncompliance has impaired this Court's task of review and that review on the merits would frustrate the adversarial process. Failure to serve notice of appeal on all parties is a significant and fundamental violation. A notice of appeal is intended to let all parties to a case know that an appeal has been filed by at least one party. Because two of the parties to this case were never informed of the fact that there was an appeal which affects their interests, this Court has no way of knowing the positions these parties would have taken in this appeal. The fact that these parties have not objected to our consideration of the appeal is irrelevant, because as far as we can tell from the record, these parties are unaware of the appeal. Simply put, all parties to a case are entitled to notice that a party has appealed. The unserved plaintiffs have been denied the opportunity to be heard, as they received no notice of the appeal and there is no written waiver filed in the record or in response to the motion to dismiss.\\nNotice to all parties is not a mere formality but a fundamental requirement of Rule 3(a). The United States Supreme Court has long recognized the importance of notice. \\\"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.\\\" Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873 (1950) (citations omitted). The North Carolina Supreme Court has also noted that \\\"[t]he fundamental premise of procedural due process protection is notice and the opportunity to be heard.\\\" Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (citation omitted). Although we are not directly addressing a due process issue in this case, these basic principles of law inform our analysis of the importance of the requirement of Rule 3(a) of service of a notice of appeal upon all parties. See N.C.R. App. P. 3(a), see generally Mullane at 314, 94 L. Ed. at 873, Peace at 322, 507 S.E.2d at 278.\\nThe principles of due process also support our finding that failure to serve the notice of appeal upon all parties is a \\\"gross violation\\\" of the rules \\\"which frustrates the adversarial process[.]\\\" Dogwood at 200, 657 S.E.2d at 366-67. Once notice is served upon all parties, any party may chose not to participate, but our rules require that all parties have notice and an opportunity to participate to protect their own interests. See N.C.R. App. P. 3(a), see generally Mullane at 314, 94 L. Ed. at 873; Peace at 322, 507 S.E.2d at 278. The noncompliance impairs this Court's task of review as well, see Dogwood at 200, 657 S.E.2d at 366, as parties have been omitted from the case and we cannot review any contentions or arguments those parties might have raised.\\nIn addition, requiring service of the notice of appeal on all parties promotes uniformity in enforcement of the rules. See Dogwood at 199-200, 657 S.E.2d at 366. Rule 3 states plainly that \\\"all. . . parties\\\" must be served with the notice of appeal, N.C.R. App. P. 3(a), and as noted above, this is a fundamental requirement for the rest of the appeal. Hale has previously recognized that where the unserved parties have actual notice of the appeal and have participated in the appeal without objection, dismissal is not appropriate. Hale, 335 N.C. 231, 436 S.E.2d 588. In the situation presented in Hale, neither the adversarial process nor this Court's task of review was compromised; the violation in Hale was merely technical. Compare id.\\nNo lesser sanction, such as monetary sanctions, can remedy this particular rule violation, as a sanction less than dismissal cannot make up for the failure to notify all parties of the existence of this appeal. We therefore conclude that dismissal is the only appropriate sanction under N.C.R. App. P. 34(b) and this sanction is also supported by Hale. Hale, 335 N.C. 231, 436 S.E.2d 588. Where we find that dismissal is the appropriate sanction, the Supreme Court in Dogwood has directed that we may consider invoking North Carolina Rule of Appellate Procedure 2, but we should do this only on \\\"rare occasions and under exceptional circumstances . to prevent manifest injustice to a party, or to expedite decision in the public interest[.]\\\" Dogwood at 201, 657 S.E.2d at 367 (citations, quotation marks, and brackets omitted). We do not find that this case presents exceptional circumstances where use of Rule 2 is required to prevent \\\"manifest injustice\\\" or that it is necessary to \\\"expedite decision in the public interest.\\\" Id. Our decision to this effect is reinforced by the fact that we have reviewed plaintiff-appellant's substantive challenges to the trial court's summary judgment order and conclude that they have no merit.\\nB. Other Issues\\nAs we are dismissing plaintiff-appellants' appeal we need not address defendant-appellees' other arguments in their motion to dismiss or plaintiffs' argument on appeal.\\nIII. Conclusion\\nAs plaintiff-appellants failed to comply with the plain language of a rule of appellate procedure, we dismiss.\\nDISMISSED.\\nJudges HUNTER, JR. and ERVIN concur.\\n. Though plaintiff-appellants' counsel Roger H. Bruny did submit a brief to this Court, he failed to sign either the brief or the certificate of service. Pursuant to N.C.R. App. P. R. 28(b)(8), his name is therefore not listed as counsel for plaintiffs.\\n. We note that this Court must consider this appeal because it presented a jurisdictional question. Though we have concluded that the actual issue presented, specifically regarding service upon the non-appealing plaintiffs, was not jurisdictional, it was necessary for us to consider this appeal in order to determine if the issue was jurisdictional.\\n. We are not addressing plaintiff-appellants' failure to serve the notice of appeal upon defendants Kuester and Ms. Bottenberg, as these defendants were voluntarily dismissed with prejudice by all plaintiffs prior to both the order granting summary judgment and the filing of the notice of appeal. These defendants were not \\\"parties\\\" at the time of the notice of appeal, although we recognize that previously dismissed parties before the trial court might be \\\"parties\\\" on appeal where a plaintiff is challenging their dismissal. However, this dismissal was a voluntary dismissal which was agreed upon by all plaintiffs, not a dismissal by the trial court, and the dismissal is not a subject of the appeal.\"}"

nc/4327556.json

@@ -0,0 +1 @@
+"{\"id\": \"4327556\", \"name\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"name_abbreviation\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission\", \"decision_date\": \"2014-01-23\", \"docket_number\": \"401A13\", \"first_page\": \"290\", \"last_page\": \"290\", \"citations\": \"367 N.C. 290\", \"volume\": \"367\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:47:31.440977+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"head_matter\": \"401A13\\nRiggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"word_count\": \"68\", \"char_count\": \"455\", \"text\": \"1. Respondent's NOA Based Upon a Dissent (COA12-1299)\\n2. Respondent's Motion for Temporary Stay\\n3. Respondent's Petition for Writ of Supersedeas\\n4. Respondent's PDR as to Additional Issues\\n5. Petitioner's Motion to Dismiss Appeal\\n6. Petitioner's Conditional PDR Under N.C.G.S. \\u00a7 7A-31\\n1. -\\n2. Allowed 09/11/2013\\n3. Allowed 09/11/2013\\n4. Allowed\\n5.\\n6. Allowed\"}"

nc/4358421.json

@@ -0,0 +1 @@
+"{\"id\": \"4358421\", \"name\": \"In the Matter of: R.H. & M.H.\", \"name_abbreviation\": \"In re R.H.\", \"decision_date\": \"2012-06-13\", \"docket_number\": \"331P11\", \"first_page\": \"227\", \"last_page\": \"227\", \"citations\": \"366 N.C. 227\", \"volume\": \"366\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:12:03.186655+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of: R.H. & M.H.\", \"head_matter\": \"331P11\\nIn the Matter of: R.H. & M.H.\", \"word_count\": \"15\", \"char_count\": \"95\", \"text\": \"Respondent's PDR Under N.C.G.S. \\u00a7 7A-31 (COA11-13)\\nDenied\"}"

nc/4687184.json

@@ -0,0 +1 @@
+"{\"id\": \"4687184\", \"name\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\", \"name_abbreviation\": \"Cyclone Roofing Co. v. LaFave Co.\", \"decision_date\": \"1984\", \"docket_number\": \"No. 181A84\", \"first_page\": \"399\", \"last_page\": \"399\", \"citations\": \"311 N.C. 399\", \"volume\": \"311\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:58:23.716071+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\", \"head_matter\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\\nNo. 181A84.\\nCase below: 67 N.C. App. 278.\", \"word_count\": \"31\", \"char_count\": \"185\", \"text\": \"Petition by defendant for discretionary review under G.S. 7A-31 allowed as to additional issues 6 July 1984.\"}"

nc/4717740.json

@@ -0,0 +1 @@
+"{\"id\": \"4717740\", \"name\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\", \"name_abbreviation\": \"State v. Hunter\", \"decision_date\": \"1986-01-07\", \"docket_number\": \"No. 10A85\", \"first_page\": \"371\", \"last_page\": \"378\", \"citations\": \"315 N.C. 371\", \"volume\": \"315\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:55:55.689940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\", \"head_matter\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\\nNo. 10A85\\n(Filed 7 January 1986)\\n1. Assault and Battery \\u00a7 15.2\\u2014 assault with a deadly weapon \\u2014 instruction on self-defense not required\\nThe trial court did not err in a prosecution for assault with a deadly weapon by refusing to instruct on self-defense where defendant\\u2019s evidence showed at most that the victim committed nonfelonious assaults and employed only nondeadly force against defendant; immediately prior to the stabbing defendant, who was safely away from the victim and perfectly free to remain in a safe place, borrowed a knife and returned to the victim\\u2019s presence displaying the knife; and there was no evidence that at the time defendant attacked the victim she was in actual or apparent danger of death or great bodily harm.\\n2. Criminal Law \\u00a7 146.2\\u2014 lack of findings to support probation condition \\u2014 not raised on appeal by defendant \\u2014 presented on the face of the record\\nThe issue of whether the trial court erred when sentencing defendant for assault with a deadly weapon by failing to make findings of fact when imposing a condition for probation was properly presented for appellate review because defendant\\u2019s appeal standing alone presented the face of the record for review, the judgment is a part of the record, and the judgment disclosed the lack of findings. N.C. Rule of App. Procedure 9(a)(3)(vii).\\n3. Criminal Law 8 142.2\\u2014 restitution as condition of probation \\u2014 no findings \\u2014 no error\\nThe trial court did not err when sentencing defendant for assault with a deadly weapon by including without findings a condition of probation that defendant pay the victim\\u2019s medical bills not covered by insurance. The court knew the defendant\\u2019s age, her relationship to the victim, that she resided with her mother, that she was indigent for legal purposes, and that the victim\\u2019s family had insurance of uncertain scope. N.C.G.S. 15A-1343 does not require the trial judge to find and enter facts when imposing a judgment of probation; rather, it requires the court to take into consideration the resources of the defendant, her ability to earn, her obligation to support dependents, and other such matters pertaining to her ability to make restitution or reparation. N.C.G.S. 15A-1341(c), N.C.G.S. 15A-1345(e).\\nAppeal by defendant pursuant to N.C.G.S. \\u00a7 7A-30(2) from the decision of the Court of Appeals (Judge Eagles with Judge Braswell concurring and Judge Webb dissenting) reported in 71 N.C. App. 602, 323 S.E. 2d 43 (1984), reversing judgment of Allsbrook, J., entered at the 28 July 1983 Criminal Session of PITT County Superior Court. We allowed the Attorney General\\u2019s petition for writ of certiorari on 7 May 1985.\\nDefendant was charged in a bill of indictment with assault upon Sam Ward with a deadly weapon with intent to kill resulting in serious injury. The trial judge submitted possible verdicts of guilty of assault with a deadly weapon or not guilty. The jury returned a verdict of guilty of assault with a deadly weapon. Judge Allsbrook imposed a sentence of six months imprisonment, suspended the sentence, and placed defendant under supervised probation for a period of three years. One of the conditions of probation was that defendant pay the medical expenses incurred by Sam Ward which were not paid by medical insurance, not to exceed $806.25 to Pitt Memorial Hospital and $113.00 to Dr. John Winstead. All costs were to be paid by defendant under the supervision and direction of defendant\\u2019s probation officer. Defendant appealed and the Court of Appeals reversed and remanded for rehearing as to the award of restitution for medical expenses. The State brought forward the sole question of whether the Court of Appeals erred by reversing the trial judge\\u2019s restitution order.\\nLacy H. Thornburg, Attorney General, by Michael Smith, Associate Attorney, for the State.\\nArthur M. McGlauflin, Attorney for defendant-appellee.\", \"word_count\": \"2791\", \"char_count\": \"16345\", \"text\": \"BRANCH, Chief Justice.\\nDefendant's appeal presents the question of whether the Court of Appeals erred in failing to find error in the trial judge's refusal to instruct on self-defense. The State offered evidence tending to show that on the night of 11 March 1983 Sam Ward was sitting at a table with Loretta Cameron in a disco club called \\\"The Cave.\\\" Defendant, a sixteen year old girl, was Ward's former girlfriend and he was the father of her sixteen month old child. Ward testified that he \\\"felt somebody hitting in his side\\\" and when he looked around he observed defendant swinging her arm. He pushed her to the floor and noticed that defendant had a three inch lock blade knife in her hand. The victim then saw a wound in his thigh and at that point he slapped defendant.\\nDefendant testified that Ward had assaulted her several times on that day. She further testified:\\n[Ward] saw me talking to Nicky and called me over there to him. I wouldn't go because I knew what he was going to do. And he came up there to me and hit me beside of the head with his fist. . . . Then I told him I was going to get him because I was tired of him hitting on me. . . . Aaron asked me to dance. And when I came back and sat down I started talking and chatting with Nicky. I came to [Ward] \\u2014 because he hollered clear over there \\u2014and I went over there to him, and then he started punching me in my stomach. And I said, . I am going to get you because I am tired of this. . . . I was tired of [Ward] beating on me. I went to see some dude I had met that night. I asked him did he have a pocketknife. I said I had to cut something off my shirt. I went to [Ward], and [he] was looking at me when I went to him. And then as soon as I got to him [Ward] saw the knife and then that is when he punched me in my face. I fell.\\nWhen asked why she cut Ward she replied, \\\"I was tired of him beating on me.\\\"\\nUnder the law of this State, there is a distinction between a person's right of self-defense in repelling a felonious assault and a misdemeanor assault. State v. Anderson, 230 N.C. 54, 51 S.E. 2d 895 (1949). More specifically, this difference lies in the amount of force which may be used to fend off an attack. Except for certain assaults against \\\"handicapped persons\\\" which are deemed felonious under N.C.G.S. \\u00a7 14-32.1(e), a felonious assault involves the use of a deadly weapon and the intent to kill or the infliction of serious injury. N.C.G.S. \\u00a7 14-32 (1981). Other assaults are nonfelonious. N.C.G.S. \\u00a7 14-33 (1981 & Cum. Supp. 1985).\\nTo repel a felonious assault, a defendant may employ deadly force in his defense but only if it reasonably appears necessary to protect himself against death or great bodily harm. State v. Clay, 297 N.C. 555, 256 S.E. 2d 176 (1979), overruled on other grounds, State v. Davis, 305 N.C. 400, 290 S.E. 2d 574 (1982). Deadly force has been defined as \\\"force likely to cause death or great bodily harm.\\\" Id. at 563, 256 S.E. 2d at 182. Although a defendant need not submit in meekness to indignities or violence to his person because the affront does not threaten death or great bodily harm, he may not resort to the use of deadly force to protect himself from mere bodily harm or offensive physical contact. Id. See also, State v. Anderson, 230 N.C. at 56, 51 S.E. 2d at 897. The use of deadly force to prevent harm other than death or great bodily harm is therefore excessive as a matter of law. Clay, 297 N.C. at 563, 256 S.E. 2d at 182.\\nApplying the above principles to the facts of this case, we find that the evidence when taken in the light most favorable to defendant does not require an instruction on self-defense. The knife with a three-inch blade used by defendant against Ward amounted to deadly force since it was likely to cause death or great bodily harm. Even if defendant's evidence regarding Ward's despicable conduct on the day and the night of the stabbing is believed, defendant's evidence shows that he at most committed nonfelonious assaults and employed only nondeadly force against defendant. Immediately prior to the stabbing, defendant, who was safely away from the victim and perfectly free to remain in a safe place, borrowed a knife and returned to the victim's presence displaying the knife. There is no evidence at the time defendant attacked Ward that she was in actual or apparent danger of death or great bodily harm justifying her use of a deadly weapon. Defendant testified that she told Ward that she was going \\\"to get him because I was tired of him hitting on me.\\\" When asked by her counsel on direct examination why she cut Ward, she replied, \\\"I was tired of him beating on me and he knocked me up beside my head.\\\" Thus, defendant's own evidence reveals that the amount of force she used against Ward was excessive and that in any event she was not acting in self-defense when she attacked Ward.\\nFurthermore, a person is entitled under the law of self-defense to harm another only if he is \\\"without fault in provoking, or engaging in, or continuing a difficulty with another.\\\" State v. Anderson, 230 N.C. at 56, 51 S.E. 2d at 897 (emphasis added). The uncontradicted evidence produced at trial reveals that after Ward's assault had ended defendant armed herself and marched back over to him to continue the difficulty between them. It was only after Ward had seen defendant come at him with a knife that he was provoked into assaulting her further.\\nBecause there was no evidence presented which tended to show that defendant was entitled under the law of self-defense to attack Ward with the force and at the time chosen by her, we hold that the trial court properly refused to instruct the jury on the law of self-defense. This assignment of error is overruled.\\nThe State argues that the Court of Appeals erred by reversing and remanding for hearing the question of restitution. The first prong of the State's argument is that defendant did not properly preserve or present the issue of restitution for appellate review. We disagree.\\nDefendant's appeal, standing alone, presents the face of the record for review. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). The judgment is, of course, a part of the record. N.C. R. App. P. 9(a)(3)(vii). Examination of the judgment in the instant case unquestionably discloses that the trial judge did not make and enter findings of fact in adjudging that defendant make restitution as a part of the probationary judgment. Whether the court erred by failing to make findings as to defendant's ability to pay is a question of law and is determinative of this assignment of error. We turn to that question.\\nSection 15A-1343(d) of the General Statutes in pertinent part provides:\\n(d) Restitution as a Condition of Probation. \\u2014 As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant. When restitution or reparation is a condition imposed, the court shall take into consideration the resources of the defendant, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution or reparation. The amount must be limited to that supported by the record, and the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay.\\nThe Court of Appeals, finding error in the restitution order, stated:\\nThe trial court ordered defendant to pay a total of $919.25 for the medical expenses of the victim Ward. The trial court made no findings of fact or conclusions of law as to defendant's ability to earn, her resources, her obligation to support dependents or any other matters that might affect her ability to make restitution. By the clear terms of G.S. 15A-1343(d) this was error.\\n71 N.C. App. at 605, 323 S.E. 2d at 45.\\nAs previously noted, the trial court ordered defendant to pay medical expenses not paid by medical insurance in an amount not to exceed $806.25 to Pitt Memorial Hospital and $113.00 to Dr. John Winstead. These payments were to be made under the supervision and direction of defendant's probation officer during the three year probationary period.\\nProbation or suspension of sentence is not a right guaranteed by either the federal or state constitutions but is a matter of grace conferred by statute. State v. Hewitt, 270 N.C. 348, 154 S.E. 2d 476 (1967); N.C. Gen. Stat. \\u00a7 15A-1341 (1983) et seq.\\nWe do not interpret N.C.G.S. \\u00a7 15A-1343 to require the trial judge to find and enter facts when imposing a judgment of probation. Rather it requires the court to take into consideration the resources of the defendant, her ability to earn, her obligation to support dependents, and such other matters as shall pertain to her ability to make restitution or reparation.\\nThis record clearly shows that these matters were considered by Judge Allsbrook in his judgment ordering restitution. He knew defendant's age, her relationship to the victim, that she resided with her mother, that she was indigent for legal purposes, and that the victim's family had insurance of an uncertain amount in scope at the time of the sentencing hearing. The court's action in remitting the original fine and delegating the determination and scheduling of payments in restitution to the probation officer evidenced the trial judge's full recognition of the matters to be considered pursuant to N.C.G.S. \\u00a7 15A-1343(d).\\nOur interpretation of N.C.G.S. \\u00a7 15A-1343(d) is buttressed by other provisions of Article 82 of the General Statutes. In this regard we note that N.C.G.S. \\u00a7 15A-1341(c) provides:\\n(c) Election to Serve Sentence or Be Tried on Charges.\\u2014\\nAny person placed on probation may at any time during the probationary period elect to serve his suspended sentence of imprisonment in lieu of the remainder of his probation. Any person placed on probation upon deferral of prosecution may at any time during the probationary period elect to be tried upon the charges deferred in lieu of remaining on probation.\\nEven more persuasive are the provisions of N.C.G.S. \\u00a7 15A-1345(e) to wit:\\n(e) Revocation Hearing. \\u2014 Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least 24 hours before the hearing. At the hearing, evidence against the probationer must be disclosed to him, and the probationer may appear and speak in his own behalf, may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation. The probationer is entitled to be represented by counsel at the hearing and, if indigent, to have counsel appointed. Formal rules of evidence do not apply at the hearing, but the record or recollection of evidence or testimony introduced at the preliminary hearing on probation violation are inadmissible as evidence at the revocation hearing. When the violation alleged is the nonpayment of fine or costs, the issues and procedures at the hearing include those specified in G.S. 15A-1364 for response to nonpayment of fine.\\nSection 15A-1345 of the North Carolina General Statutes guarantees notice, bail, a preliminary hearing and a revocation hearing with counsel present. At the revocation hearing, the trial judge must make findings to support his decision on whether to revoke or extend probation. He must also make a summary record of the proceedings. Thus, it appears that a defendant is given the election between imprisonment and probation in the first instance; and once he chooses probation, the statute guarantees full due process before there can be a revocation of probation and a resulting prison sentence.\\nFor the reasons stated, the decision of the Court of Appeals is affirmed in part and reversed in part. The judgment entered in Pitt County Superior Court on 28 July 1983 remains in full force and effect.\\nAffirmed in part; reversed in part.\"}"

nc/5306524.json

@@ -0,0 +1 @@
+"{\"id\": \"5306524\", \"name\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\", \"name_abbreviation\": \"State v. Freund\", \"decision_date\": \"1990-06-13\", \"docket_number\": \"No. 406A89\", \"first_page\": \"795\", \"last_page\": \"797\", \"citations\": \"326 N.C. 795\", \"volume\": \"326\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:56:59.854444+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\", \"head_matter\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\\nNo. 406A89\\n(Filed 13 June 1990)\\nAutomobiles and Other Vehicles \\u00a7 126.2 (NCI3d)\\u2014 breathalyzer results \\u2014 difference in first and second reading \\u2014 admissible\\nBreathalyzer test results were admissible in a DWI prosecution even though the first and second tests were within .02 of each other only when the first test was rounded down to the nearest hundredth.\\nAm Jur 2d, Automobiles and Highway Traffic \\u00a7\\u00a7 307, 375, 377, 380.\\nJustice Webb dissenting.\\nAPPEAL by the State of North Carolina pursuant to N.C.G.S. \\u00a7 7A-30(2) from the unpublished decision of a divided panel of the Court of Appeals, 95 N.C. App. 661, 384 S.E.2d 309 (1989), affirming the judgment of Strickland, J., at the 3 October 1988 session of Superior Court, ONSLOW County. Heard in the Supreme Court 12 March 1990.\\nLacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, for the State-appellant.\\nNo counsel contra.\", \"word_count\": \"566\", \"char_count\": \"3406\", \"text\": \"MEYER, Justice.\\nOn 4 June 1988, defendant was charged with driving while impaired (DWI) in violation of N.C.G.S. \\u00a7 20-139.1. Prior to trial in district court, defendant moved to suppress the results of the chemical analysis performed at the time of his arrest, introducing into evidence the test record cards from which the chemical analyst observed and recorded the test results. Defendant contended that because the marking on the card for the first test indicated a \\\"reading\\\" between 0.14 and 0.15 and the markings on the card for the second test indicated a \\\"reading\\\" of 0.12, the test results were rendered invalid under N.C.G.S. \\u00a7 20-139.1(b3). That subsection provides that \\\"the test results may only be used to prove a person's particular alcohol concentration if . . . [t]he readings do not differ from each other by an alcohol concentration greater than 0.02.\\\" N.C.G.S. \\u00a7 20-139.1(b3)(2) (1983) (emphases added).\\nOn 22 July 1988, District Court Judge Wayne G. Kimble granted defendant's motion. The State petitioned the Superior Court, Onslow County, for writ of certiorari to the district court, seeking to reverse the suppression order. Judge George M. Fountain granted the State's petition on 22 September 1988. On 17 October 1988, Judge James M. Strickland adopted the findings and conclusions of the district court judge and upheld the suppression order.\\nThe State appealed to the Court of Appeals, upon certificate of the prosecutor that such appeal was not taken for the purpose of delay and that the evidence of the breathalyzer results was essential to the prosecution of the case. Relying upon its analysis in State v. Tew, 95 N.C. App. 634, 383 S.E.2d 400 (1989), the Court of Appeals upheld the suppression of the chemical analysis, Judge Cozort dissenting.\\nThe State appealed to this Court as of right, and its requests for writ of supersedeas and stay were allowed by this Court on 25 September 1989. The issue presented in this case is identical to that presented in State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990), decided this date. Relying on the reasoning set out in our decision in Tew, we now reverse the Court of Appeals. This case is remanded to the Court of Appeals for further remand to the trial division for proceedings not inconsistent with this opinion.\\nReversed.\"}"

nc/571515.json

@@ -0,0 +1 @@
+"{\"id\": \"571515\", \"name\": \"ONSLOW COUNTY v. MOORE\", \"name_abbreviation\": \"Onslow County v. Moore\", \"decision_date\": \"1998\", \"docket_number\": \"No. 223P98\", \"first_page\": \"361\", \"last_page\": \"361\", \"citations\": \"349 N.C. 361\", \"volume\": \"349\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:44:57.883782+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ONSLOW COUNTY v. MOORE\", \"head_matter\": \"ONSLOW COUNTY v. MOORE\\nNo. 223P98\\nCase below: 127 N.C.App. 546\", \"word_count\": \"76\", \"char_count\": \"508\", \"text\": \"Petition by defendant (Gene Moore) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by defendant (Onslow County) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by plaintiff (Onslow County) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by plaintiffs (McKillop and Treants) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998.\"}"

nc/6789033.json

@@ -0,0 +1 @@
+"{\"id\": \"6789033\", \"name\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\", \"name_abbreviation\": \"State v. Sherman\", \"decision_date\": \"2014-01-07\", \"docket_number\": \"No. COA13-811\", \"first_page\": \"670\", \"last_page\": \"676\", \"citations\": \"231 N.C. App. 670\", \"volume\": \"231\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:11:47.258672+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges ERVIN and McCULLOUGH concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\\nNo. COA13-811\\nFiled 7 January 2014\\nJury \\u2014 challenges for cause \\u2014 denied\\u2014no error\\nThe trial court did not err in a first-degree murder case by failing to allow defendant\\u2019s for-cause challenges to two prospective jurors. The court\\u2019s denial of the for-cause challenge to Mr. Antonelli was logically supported by his response that he was willing to follow the judge\\u2019s instructions. Further, based on Mr. Brunstetter\\u2019s testimony, the trial court properly denied the challenge because Mr. Brunstetter could render a fair verdict despite his concerns about the length of the trial.\\nAppeal by defendant from judgment entered 16 August 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 9 December 2013.\\nRoy Cooper, Attorney General, by Jonathan P. Babb, Special Deputy Attorney General, for the State.\\nGlover & Petersen, PA., by James R. Glover and Ann B. Petersen, for defendant-appellant.\", \"word_count\": \"1981\", \"char_count\": \"11763\", \"text\": \"MARTIN, Chief Judge.\\nDefendant Travis Melton Sherman was charged with the murder of Kenneth Edward Ring in violation of N.C.G.S. \\u00a7 14-17. A jury found defendant guilty of first-degree murder, and judgment was entered on the verdict sentencing him to life imprisonment without parole. He appeals.\\nThe facts relevant to the sole issue presented on appeal involve two of defendant's for-cause challenges to prospective jurors. First, defendant moved to excuse prospective juror Mark Antonelli for cause because Mr. Antonelli said he would form opinions during the trial. The trial judge, after questioning Mr. Antonelli, denied defendant's motion, and as a result, defendant used a peremptory challenge to excuse Mr. Antonelli.\\nNext, defendant moved to excuse prospective juror Timothy Brunstetter for cause because he had orders from the United States Marine Corps to report to Quantico, Virginia, before the projected end of the trial. The trial judge denied this motion, and defendant used his sixth and final peremptory challenge to excuse Mr. Brunstetter.\\nAfter defendant used all six of his peremptory challenges, he renewed his motion to remove Mr. Antonelli and Mr. Brunstetter for cause. The trial judge again denied both motions, and defendant asked for additional peremptory challenges. The court refused to give defendant additional peremptory challenges. Later, defendant renewed his request for additional peremptory challenges so he could use one to excuse a prospective juror. The judge again denied the request for additional peremptory challenges. Defendant appeals.\\nOn appeal defendant argues only one issue. He maintains that the trial court's failure to allow his for-cause challenges to prospective jurors Mr. Antonelli and Mr. Brunstetter was prejudicial error that requires a new trial. We disagree.\\nFor a defendant to seek reversal of a judgment based on a trial court's refusal to allow his for-cause challenges, the defendant must comply with N.C.G.S. \\u00a7 15A-1214(h). Compliance with N.C.G.S. \\u00a7 15A-1214(h) is mandatory and is the only way to preserve for appellate review the denial of a for-cause challenge. State v. Sanders, 317 N.C. 602, 608, 346 S.E.2d 451, 456 (1986). Section 15A-1214 requires that\\n(h) In order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:\\n(1) Exhausted the peremptory challenges available to him;\\n(2) Renewed his challenge as provided in subsection (i) of this section; and\\n(3) Had his renewal motion denied as to the juror in question.\\n(i) A party who has exhausted his peremptory challenges may move orally or in writing to renew a challenge for cause previously denied if the party either:\\n(1) Had peremptorily challenged the juror; or\\n(2) States in the motion that he would have challenged that juror peremptorily had his challenges not been exhausted.\\nN.C. Gen. Stat. \\u00a7 15A-1214(h)-(i) (2011).\\nA review of the transcript reveals that defendant complied with N.C.G.S. \\u00a7 15A-1214(h). He moved to excuse Mr. Antonelli for cause, and the court denied that motion. Defendant then used a peremptory challenge to excuse Mr. Antonelli. Defendant also moved to excuse Mr. Brunstetter for cause, and the court denied that motion. As a result, defendant used his final peremptory challenge to excuse Mr. Brunstetter. After defendant used his final peremptory challenge, he renewed his motions to excuse Mr. Antonelli and Mr. Brunstetter for cause, and the court denied both motions. Therefore, defendant has complied with the provisions of N.C.G.S. \\u00a7 15A-1214(h).\\nN.C.G.S. \\u00a7 15A-1212 lists the grounds for challenges for cause to a prospective juror. \\\"We review a trial court's ruling on a challenge for cause for abuse of discretion.\\\" State v. Lasiter, 361 N.C. 299, 301, 643 S.E.2d 909, 911 (2007). A trial court abuses its discretion when its ruling is \\\"manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\\\" State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1998). When we review a trial judge's ruling we consider only whether it is supported by the record, not whether we agree with the ruling. Lasiter, 361 N.C. at 302, 643 S.E.2d at 911. This is a deferential standard of review because a trial judge has the advantage of interacting with a juror. Id.\\nDefendant argues that Mr. Antonelli should have been excused for cause because he responded that he would form opinions during the trial, which would substantially impair his ability to follow and apply the law. Defendant fails to state the statutory ground upon which he is relying for his for-cause challenge, but, for two reasons, it is implied that he is relying on N.C.G.S. \\u00a7 15A-1212(8), which allows a for-cause challenge when, \\\"[a]s a matter of conscience, . . [a juror] would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.\\\" N.C. Gen. Stat. \\u00a7 15A-1212(8) (2011). First, defendant argues that forming opinions during trial would impair Mr. Antonelli's ability to apply the law of North Carolina. Second, defendant cites Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968), in support of his argument, which the General Assembly codified at N.C.G.S. \\u00a7 15A-1212(8). N.C. Gen. Stat. \\u00a7 15A-1212 official commentary (2011). Therefore, while defendant fails to state that he is relying on N.C.G.S. \\u00a7 15A-1212(8), we infer he is relying on N.C.G.S. \\u00a7 15A-1212(8) based on his argument.\\nA review of the transcript reveals the following relevant exchanges:\\nMR. DOLAN: Let me ask you this:... Can you be sure that you would wait until all of the evidence was presented before you came and started to make any decision in this case?\\n[MR. ANTONELLI]: I don't think I could guarantee that, but I think I would be able to, but I couldn't guarantee it.\\nMR. DOLAN: What do you mean you don't think you [can] guarantee it?\\n[MR. ANTONELLI]: Well, because you form opinions as it goes on and it changes.\\nMR. DOLAN: And are you saying that you think you would form opinions as the case went on?\\n[MR. ANTONELLI]: Probably.\\nMR. DOLAN: . . . Are you saying you don't think that you can wait, that you're probably going to form opinions along the way?\\n[MR. ANTONELLI]: Most likely.\\nMR. DOLAN: I would move for cause, your Honor.\\nTHE COURT: Yes.\\nMr. Antonelli, let me follow-up with just a question for you. You've already heard me instruct several times to that one of the rules you have to follow is to [sic] not form or express any opinions about the outcome of this case, and there are a number of important steps that a case must go through. There is the evidence, there is the arguments of counsel, there is my instructions on the law, and then there's deliberation. What we require of jurors is the ability to keep an open mind and not form or express opinions until they get into the jury deliberation room, engage in deliberation with their fellow jurors, consider all of the things I've just described. Do you believe that you could fulfill that duty as a juror?\\n[MR. ANTONELLI]: Yes, but I believe I would still form an opinion but can still be open-minded.\\nTHE COURT: In the event that you were instructed on the law or persuaded by an argument or persuaded by evidence later in the trial that your opinion was perhaps in error, would you be able to set aside any opinion that you had formed and listen to either of the evidence or the instructions or the argument or the deliberation in views of your fellow jurors? Would you be able to set aside any opinion that you had formed and render a verdict according to the instructions, the law, and the argument and the evidence?\\n[MR. ANTONELLI]: I believe so. I can't guarantee that, but I believe so.\\nTHE COURT: And when you say you can't guarantee that, what do you mean by that?\\n[MR. ANTONELLI]: I've never been through this so I don't know how my opinion is going to form...\\nTHE COURT: Are you willing to follow my instructions to keep an open mind throughout this case?\\n[MR. ANTONELLI]: Yes.\\nTHE COURT: I'm going to deny the motion for cause at this time.\\nMR. DOLAN: I just want to be clear, Mr. Antonelli, and I'm not trying to pick on you. Is it your position that you will form an opinion as the case progresses?\\n[MR. ANTONELLI]: I would probably say most likely, yeah, I would form an opinion as it was going on, but I can't guarantee that I definitely will.\\nThe above-quoted portion of voir dire demonstrates that the trial court did not abuse its discretion when disallowing the for-cause challenge. The trial judge was in the best position to observe Mr. Antonelli and to weigh and decide the credibility of his responses. The judge's denial of the for-cause challenge to Mr. Antonelli is logically supported by his response that he was willing to follow the judge's instructions. Therefore, the trial court did not err when disallowing defendant's for-cause challenge to Mr. Antonelli.\\nNext, defendant argues, without citing any statutory authority or case law, that the trial court erred when it denied his for-cause challenge to Mr. Brunstetter because he was a Marine with orders to report to Quantico, Virginia, before the projected end of the trial. We assume that defendant is relying on the catch-all provision of N.C.G.S. \\u00a7 15A-1212 for his challenge, which allows a for-cause challenge when a juror \\\"[f]or any other cause is unable to render a fair and impartial verdict.\\\" N.C. Gen. Stat. \\u00a7 1212(9).\\nOur Supreme Court considered whether a prospective juror could render a fair verdict because he was concerned about the estimated time of the trial in State v. Reed, 355 N.C. 150, 160, 558 S.E.2d 167, 174 (2002), appeal after remand, 162 N.C. App. 360, 590 S.E.2d 477 (2004). The Court concluded that the trial court did not abuse its discretion when it denied the for-cause challenge. Id. In reaching this conclusion, the Court noted that trial judges routinely decide whether to excuse a prospective juror because of concerns about the length of a trial. Id. Also, in Reed, despite the estimated length of the trial, the prospective juror stated that he could be fair to both sides. Id. .\\nIn this case, the trial court did not abuse its discretion in refusing to allow the for-cause challenge. Mr. Brunstetter twice asserted that despite his orders to report to Quantico, Virginia, he could focus on the trial if he was selected to be a juror. Also, the trial court was able to observe Mr. Brunstetter when he made these statements. Therefore, based on Mr. Brunstetter's testimony, the trial court properly denied the challenge because Mr. Brunstetter could render a fair verdict despite his concerns about the length of the trial.\\nNo Error.\\nJudges ERVIN and McCULLOUGH concur.\"}"

nc/6797833.json

@@ -0,0 +1 @@
+"{\"id\": \"6797833\", \"name\": \"THE STATE vs. JOHN HARWOOD\", \"name_abbreviation\": \"State v. Harwood\", \"decision_date\": \"1864-06\", \"docket_number\": \"\", \"first_page\": \"228\", \"last_page\": \"233\", \"citations\": \"1 Win. 228\", \"volume\": \"60\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:50:01.921104+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE vs. JOHN HARWOOD\", \"head_matter\": \"THE STATE vs. JOHN HARWOOD\\nit a -i'1 viviid obj(0i)O\\\" in t, \\u2022 . '\\u25a0 5rd\\u2019. <!>\\u25a0' si.rl \\u25a0 jcot. hi a capital caw-, 1 .at. i In' roin.' \\u00fa'\\u00ab\\u2018S jjot :.n! \\u00a1Win 5 \\u25a0>-> \\u00ed ,. tO -! vi i y \\u00a1nuii'S Uic inflii'\\u00ed'\\u00fc.'-/,. . \\u25a0 \\u25a0*' \\u2019v hill.\\u201d \\u2019.nr ;\\u00a1:\\u00ab.\\u00a1 f,!V of a, yOn wiv'S'-\\u00a1(\\u25a0\\u00a1-I\\u00f1iioif} \\u2018h 1 ' i. > . \\u25a0 i futi'i.'. vvdc nn>.).. - i j a k, t<> :!i.- li/.i:.' .\\n'J.oe.- I/I tli.s SW-- on !< ; S:.t. ,:>\\u25a0 , \\u00a1' . .\\u00fc-i l;. 54u; sui: as. v,..-, r .\\u2022 - \\u25a0-.\\u25a0.v\\nTbe prisoner was \\u00edndice; in rim Suporh ; Court o! Tv. for Wake County ami tno cane was re, loved to Cm >Snpm-ior Court for Johnston County, vnereir, was tried at toe bn, ,-ug Term, 186-1. before Death Judge,\\nThe transcript, of the r< cord from the Cnperuu Courl. oi Wake sc-n out tbe holding of the Superior Court on the first Monday aflor the fourth Monday of Seplembo!, A. D.f 1862, the return oi the venire by the Sheriff ami lito names of the jurors and proceeds in those words, \\u201c'and {hereupon, by the oath of Thomas Whitaker, \\u2018\\u25a0broman. John Adams, &re., croud ami iaw.'ul men of tbe county aforesaid, then and ti.mv drawn from the said run.;1', ami then and \\u00edbero em-joao-'I'.-ii, sw, rn and ohm ge l to in pure for the (State of ami coi-c ail crime., and olienee oommiue ! within the body of the said cm,;1 i! n/preseii\\u00edH inunaam : and i<mn following \\u2014 tiiat is i say, the j' rors for the \\u00a1Suite, open their oath, presen! tiiat. John Harwood, bi.'ojjoi Hake Co&o., \\u00a1.In.rg\\u2019uy idm in dm, u-su f i .nnwii. the murder oi Joint C. Kennedy, and hue \\u00edransm-ip! sois out o\\u00eds arraignment and pica of not guilty.\\nOn his trial one Patrick, a witness for the State, nvoie that on tho day of the homicide, Dec. 12th, 1861, Kennedy, the deceased, and Harwood, the prisoner, were at Ins house in the county of Wake. The deceased ami the prisoner drank together several times and seemed perfectly friendly ; both started out of the house, prisoner going first and the deceased following him in-about a minute and a half. The prisoner went down the steps and passed to the corner of the piazza and stopped. The deceased went down tha steps and about the time he might have got to the lower portion of the steps the prisoner, who had his gun in hi* band, raised his gun, put his eye to it and fired quickly, and the deceased fell from the steps. The prisoner said nothing before he fired. The witness could distinctly sea the prisoner all the time, hut could not see deceased after he fell. The witness went out of the house and found deceased on the ground shot in the hreast; he lived hut a few moments. \\u2022 The witness asked the prisoner why he killed Kennedy (the deceased).. The prisoner made n<y answer and left m four cr five minutes'after the killing.\\n\\u2022 Miss Patrick, a witness for the State, swore she was present at her father\\u2019s house on the day of the homicide. She saw .the prisoner standing at the corner of the piazza with his gun and heard him say to the deceased, if you put yonr foot in this yard I will put this load in you. He then fired. The deceased made no answer to the prisoner\\u2019s threat and she saw no more of the prisoner that day ; she saw no arms in possession of the deceased. On cross examination this witness swore that prisoner came out of. the house in a hurry with his gun on his arm.\\u2019 Deceased came out slowly. Prisoner (who is a Texas man) had been at her father\\u2019s for some time previous to the homicide, hut witness neither saw nor heard any disturbance nor anything unfriendly between theta. In passing out of the house and towards the eastern end of the piazza the prisOner was going towards home. ,\\nMrs, Patrick, also a witness for the State, swore.that she was the wife of the first witness and was at the house on the day of the homicide, and saw the transaction through a glass window in t\\u2019.ie kitchen ; deceased went out of tho house first and prisoner passed him with his gun on. his arm; as prisoner passed out' he said to deceased, if you come out I will shoot you ; he then shot deceased who felL and drew only one breath and died, in a minute prisoner was gone, ' On cross examination she swore that prisoner passed out of the house and down the steps rapidly, that as lie passed deceased he looked at deceased, but deceased did not look at him, and that, as prisoner spoke to deceased, deceased turned towards prisoner and prisoner discharged his gun at him.\\n. One Stancell, a witness riso for the State, swore that within an hour after the homicide prisoner came to him and 'asked him to lend him his repeater he said h\\u00e9 wanted it for he had killed a man and was compelled to go away. \\u2014 = Witness asked, whom have you killed ? Prisoner answered, 1 have killed Kennedy. Witness asked, why did you kill him? Prisoner answered, Kennedy said if l want out he would kill me, g \\u2014 d damn me, and he came out and I slammed eight buck shot into,him.\\nOne Hinton stated that he examined the deceas\\u00e9d immediately after his death, and that the load passed marly through his body, ,\\nThe before named are the witnesses examined 'for tho \\u00a3ta* . \\u25a0 No point was mode either in the examination of the wit owe- onrc the prisoner\\u2019s counsel's address to the jury as to ik< com. ,- immediate cause of the death of the deceased, or as r,o tune or place.\\n, ilie defendant\\u2019s counsel in his statement of the grounds o'defence, said he should contend fust, that, the prisoner was guilty of no offence, because the act of killing was committed under a temporary or permanent insanity ; or if otherwise, was excusable in necessary self-defence.\\nSecondly that the prisoner was guilty of manslaughter only, as there was no malice.\\n\\u25a0 He introduced many witnesses't\\u00f3l\\u00edo swore to tiic prisoner\\u2019s previous good character ; some of whom swore to tho insanity of the prisoner's ancestry, and othees swore that they knew him when a boy, and that his mind-was not good; he could not learn anything, and therefore they thought his mind was unsound.\\nThe Judge instructed the jury that if a killing takes placa, nothing more appearing,.the law implies malice, and the killing would he murder, and that in this cas\\u00e9 there Was evidence of malice to go to the jury, to be weighed and p issed upon by them, and if < hey believed there was malice, it was a case of murder. That evidence of the prisoner\\u2019s character was permitted to be introduced, not to screen a guilty man bee mse of his previous good character; but'to satisfy the jury that notwithstanding the evidence in the cause, the prisoner is not. guilty ; and that in this case if the evidence of goo I character overcomes the other evidence agiinst the prisoner, an l satisfied them it was not-true, then they ought to fin l him not guilty.\\nThat it was not every degree of iu.-anity that would ex-cuso homicide : that if a man knows what he is doing, and at th\\u00ab same time knows that he is doing wrong, he is responsible for his aefs. i\\u2019nt if he does not, know what he is doing, or knowing what he is doing, '>e Poor uoi know that -he is doing wrong, then he would not be respons'lde. And further, that the law .\\u00a1oes n-.t recognize irresistible impulses as excuses for criminal acts which the mind of the actor recognized as wrong ; that in this case, if the prisoner w is insane to t he extent above stated, then he would not bo guilty ; an l this was equally true win\\\"her the insanity was temporary \\u2014 existing at the .time of thi-act done \\u2014 or permanent. \\u25a0 -\\nTao judge further charged the jury that there was no evidence tending to show that; the killing was in necessary self-defence.\\nThat if the prisoner bad cause to believe, and did be--lieve that the deceased intended to kill him, and the prisoner killed deceased simply because of such belief, the kill-ingwould he murder ; in order to excuse or mitigate the killing, the deceased must have been in a condition actual or apparent to kill the prisoner.\\nThat if the prisoner had good cause to believe, and did' believe, that the deceased intended to kill him, and the deceased was in apparent condition to execute such intention, andtheprisoner killed the deceased when the-prisoner might have retreated without danger of death or other great, bodily harm, then the prisoner would he guilty of manslaughter at least.\\nThe juiy found the prisoner guilty of murder.\\nThere vas a motion in arrest of judgment.. 1st. because the record does not show that the indictment was found a true bill' by the grand jury. 2d. The record does not show that the witnesses on whose testimony the indictment was .found, were sworn before they were sent to the grand jury.\\nThe motion was overruled and judgment was rendered according to the verdict.\\n--for the State.\\nWinston, Cr., for the prisoner.\", \"word_count\": \"1911\", \"char_count\": \"10515\", \"text\": \"Mavi.y J.\\nThe ease in the Court below seems to be set forth in the record with particularity. The evidence, as well as the charge of Cue presiding judge, seem to he full and completo.\\nWi have examined these hi connexion with each other, and are of opinion that the .chavge is applicable and ie-sponsion to evi-ry view which can properly he lal-cn <>1 the evidence, and that tl e pen,oner hVs no cai.se o\\u00ed' cc n j hunt.\\nW\\u00f3 have had no particular part of the charge called to our attention by way of exception, and' suppose there is none in the view of prisoner's counsel that affords ground for such criticism. - .\\nThe principles propounded to the jury in the Court below, whether they relate to the . grades of homicide or the question of insanity, have been so frequently discussed in this-Cpurt, down to a recent period, that we deem it unnec-' 'essary to repeat them now. They consist with what we regard as the settled and established law of the land.\\nThe grounds talren in arrest of judgment are not \\u00a1enable. These are also settled against the prisoner by recent adjudications in this Court. '*\\nState vs. Guilford, 4 Jones, 83; State vs. Roberts, 2 Dev. and Bat., 540; State vs. Barnes, 7 Jones, 20.\\nThe record upon which the judgment* below was pronounced, as stated by the Court, follows the precedent in the appendix to 4 Blacks. Com. This has been adopted by Mr. Eaton in bis book of forms, ami approved in this Court, as will be seen in the case of the State vs. Guilford.\\nThe prisoner was tried for a homicide which, for aught that appears, was unprovoked and wanton. He has had fhe benefit; of every proper. safe-guard afforded by the C urts under the rules of law, and the record sent to this Court seems to be free from defects. \\u2022 * .\\nThis opinion 'must be cortiiied to the Superior Court of law for Johnston County that it may proceed1 to pronounce judgment according to law.\"}"