CASE NOTES

Public Statute Admissible. —

Where the public printer has published a certain act with other public acts of the General Assembly, it is made, presumptively at least, a part of the public laws of the State, and every person having occasion to do so has the right to read it in evidence in any court of the State as the law. Wrought Iron Range Co. v. Carver, 118 N.C. 328 , 24 S.E. 352, 1896 N.C. LEXIS 54 (1896).

Private Statute Not Admissible. —

The statute incorporating the North Carolina Railroad Company was a private act, and it was error to permit it to be read and commented on to the court or jury until it had been properly introduced as evidence. Town of Durham v. Richmond & D.R.R., 108 N.C. 399 , 108 N.C. 403 , 13 S.E. 1, 1891 N.C. LEXIS 83 (1891).

Whether the statute, or some enactment in it, is public or private, is a question of law, which the court must determine, in the absence of statutory enactment declaring and settling its nature. Town of Durham v. Richmond & D.R.R., 108 N.C. 399 , 108 N.C. 403 , 13 S.E. 1, 1891 N.C. LEXIS 83 (1891).

Journal of Legislature. —

A copy of the journal of the legislature deposited with the Secretary of State is not evidence for any purpose. It is the journal, which is the original, which is to be filed in the office of the Secretary of State, and it is this original or an exemplification made therefrom by him which, when competent, is to be used in evidence. Wilson v. Markley, 133 N.C. 616 , 45 S.E. 1023, 1903 N.C. LEXIS 102 (1903).

Judicial Notice of Certain Regulations. —

Where neither of the promulgating agencies is subject to the North Carolina Administrative Procedure Act (G.S. 150B-1 et seq.), the court is only required to take judicial notice of their regulations if submitted in accordance with certain procedures designed to insure their accuracy. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984).

CASE NOTES

Editor’s Note. —

Some of the cases cited in this section were decided prior to the enactment of G.S. 8-4 .

Prior to the enactment of G.S. 8-4 , when any question arose as to the law of any other state or territory, or of the United States, or of any foreign country, the parties were required to prove such law. Gooch v. Faucett, 122 N.C. 270 , 29 S.E. 362, 1898 N.C. LEXIS 242 (1898); Miller v. Atlantic C.L.R.R., 154 N.C. 441 , 70 S.E. 838, 1911 N.C. LEXIS 289 (1911); Kelly Springfield Tire Co. v. Lester, 192 N.C. 642 , 135 S.E. 778, 1926 N.C. LEXIS 369 (1926).

Presumption as Regards Common Law. —

In the absence of proof to the contrary, the common law will generally be presumed to be in force in a sister state, except in those states whose jurisprudence is not founded on the common law. Miller v. Atlantic C.L.R.R., 154 N.C. 441 , 70 S.E. 838, 1911 N.C. LEXIS 289 (1911).

What Common Law Is as Question for Jury. —

Where the common law of another state is proved, the court must leave the evidence of what that law is to the jury and cannot inform them what the law is. Moore v. Gwynn, 27 N.C. 187 , 1844 N.C. LEXIS 98 (1844).

Certificate of Secretary of State as Evidence. —

The certificate of the Secretary of State, in relation to the statutes of another state, given in pursuance of this section is evidence in criminal and civil cases. State v. Patterson, 24 N.C. 346 , 1842 N.C. LEXIS 41 (1842).

A transcript of a statute duly certified by the Secretary of State is evidence at all times of its being in force according to its terms unless a repeal is shown. State v. Cheek, 35 N.C. 114 , 1851 N.C. LEXIS 127 (1851).

Publication of Foreign Laws Admissible. —

A book purporting to be the publication of the statute laws of another state, and to be published by the authority of such state, is admissible as evidence of such laws. Copeland v. Collins, 122 N.C. 619 , 30 S.E. 315, 1898 N.C. LEXIS 316 (1898).

Admissibility of Printed Copy of Foreign Laws. —

By the terms of this section, a printed copy of the acts of the legislature of another state is admissible in the courts of this State to prove the statute law of such other state. Under the law as it stood prior to the enactment of this section, a printed copy of the acts of the legislature of a foreign state was not admissible in evidence. State v. Behrman, 114 N.C. 797 , 19 S.E. 220, 1894 N.C. LEXIS 146 (1894).

While a copy of a foreign homicide statute was admissible as evidence of the statutory law of the foreign state under G.S. 8-3(a) , the State presented no evidence that the statute was unchanged from the version of the statute under which defendant was convicted; thus, the State failed to show that defendant’s prior conviction was substantially similar to an offense in North Carolina. State v. Morgan, 164 N.C. App. 298, 595 S.E.2d 804, 2004 N.C. App. LEXIS 819 (2004).

United States Agricultural Regulations Judicially Noticed. —

The regulations of the United States Department of Agriculture concerning the transportation of cattle are not foreign laws within the meaning of this section, and the courts are required to take judicial notice of them. State v. Southern Ry., 141 N.C. 846 , 54 S.E. 294, 1906 N.C. LEXIS 173 (1906).

Witnesses. —

Any person who claims to know the provisions of the common or unwritten laws of a foreign country may, under this section, testify to and explain them before courts and juries. State v. Behrman, 114 N.C. 797 , 19 S.E. 220, 1894 N.C. LEXIS 146 (1894).

The law of another state may be proven in transitory actions brought in the courts of this State by witnesses learned in the law of such other state, and by its authorized statutes and reports of decisions of its courts of last resort, and when properly offered in evidence they must be interpreted by our courts as matters of law. Howard v. Howard, 200 N.C. 574 , 158 S.E. 101, 1931 N.C. LEXIS 385 (1931).

Necessity of Instructions to Jury. —

Where the foreign law has been proved it is the duty of the court to instruct the jury as to the meaning of the law, its applicability to the case at hand, and its effect on the case, and it is error to refer the whole case to the jury without instructions. Hooper v. Moore, 50 N.C. 130 , 1857 N.C. LEXIS 41 (1857).

CASE NOTES

Sua Sponte Notice of Law of Foreign Countries. —

When State courts are confronted with cases involving questions of the law of foreign countries, this section requires that they, sua sponte, take notice of such law. La Grenade v. Gordon, 60 N.C. App. 650, 299 S.E.2d 809, 1983 N.C. App. LEXIS 2527 (1983).

The party seeking to have the law of a foreign jurisdiction applied has the burden of bringing such law to the attention of the court. If the foreign jurisdiction has no law, either statutory or decisional, on the question involved, the courts of this State will not speculate on what law such jurisdiction might adopt and will apply the law of North Carolina. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91 , 305 S.E.2d 528, 1983 N.C. LEXIS 1315 (1983).

Traffic Laws of South Carolina. —

Trial court did not err in taking judicial notice of similarity between South Carolina impaired driving statutes and North Carolina statute. Sykes v. Hiatt, 98 N.C. App. 688, 391 S.E.2d 834, 1990 N.C. App. LEXIS 450 (1990).

Absence of Reference by Parties. —

Under this section judicial notice of foreign law is required, even in the absence of reference thereto by the parties, when foreign law governs the action. Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718, 1981 N.C. App. LEXIS 2226 (1981).

Because all of the lease agreements and purchase agreements involved in a case designated Florida law as the governing law for interpretation of the documents, even though the parties did not mention Florida law, the appellate court took judicial notice of Florida law and used Florida law to resolve any substantive issues. Press v. AGC Aviation, LLC, 817 S.E.2d 445, 2018 N.C. App. LEXIS 578 (N.C. Ct. App.), sub. op., 260 N.C. App. 556, 818 S.E.2d 365, 2018 N.C. App. LEXIS 797 (2018).

Allegation of Survivability Under Law of Another State. —

In an action to recover for the alleged tortious conversion of personalty by a nonresident, instituted in this State after the death of the nonresident against his personal representative, the failure of the complaint to allege that the cause of action survived under the laws of the state in which it arose did not render the complaint demurrable. Suskin v. Hodges, 216 N.C. 333 , 4 S.E.2d 891, 1939 N.C. LEXIS 159 (1939).

Negligent Injury Occurring in Another State. —

In an action instituted in this State to recover for negligent injury occurring in another state, liability must be determined according to the substantive law of such other state, of which the North Carolina courts must take notice. Thames v. Nello L. Teer Co., 267 N.C. 565 , 148 S.E.2d 527, 1966 N.C. LEXIS 1082 (1966), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998).

Collision in Virginia. —

In an action brought in this State under the Tort Claims Act for a collision which occurred in Virginia, the substantive law of Virginia and the procedural law of North Carolina applied. Parsons v. Alleghany County Bd. of Educ., 4 N.C. App. 36, 165 S.E.2d 776, 1969 N.C. App. LEXIS 1434 (1969).

CASE NOTES

When Certification Unnecessary. —

The certification of a town ordinance as required by this section, was only prima facie evidence of its existence, and this was unnecessary when the ordinance had been proven by the production of the official records of the town by the proper officer, which showed its passage. State v. Razook, 179 N.C. 708 , 103 S.E. 67, 1920 N.C. LEXIS 334 (1920).

Evidence Insufficient to Rebut Prima Facie Case. —

When the defendant, convicted of the violation of a city ordinance, on appeal introduced in evidence the minutes of the meeting of the governing authorities of the town held on the date when the purported ordinance was alleged to have been adopted, which did not show its passage on that date, it was not conclusive that the ordinance had not been passed at some other time, against the statutory certificate of the mayor that it was in existence at the time of the defendant’s conviction. State v. Gill, 195 N.C. 425 , 142 S.E. 328, 1928 N.C. LEXIS 111 (1928).

No Evidence of Certification or Publication. —

The refusal to permit police officer to testify on cross-examination as to existence and contents of a paper-writing which purported to be an ordinance of the city, was not error where there was no evidence that purported ordinance had been certified, as required by this section, or that it had been printed and published by the city as provided in G.S. 160-272 (now repealed). Toler v. Savage, 226 N.C. 208 , 37 S.E.2d 485, 1946 N.C. LEXIS 415 (1946).

CASE NOTES

Material Discrepancy from Original. —

This section does not make the copies better evidence than the original; and where there is a material discrepancy, it is for the jury to find as a fact which one is correct. Richards v. W.M. Ritter Lumber Co., 158 N.C. 54 , 73 S.E. 485, 1911 N.C. LEXIS 338 (1911), modified, 159 N.C. 455 , 74 S.E. 1016, 1912 N.C. LEXIS 305 (1912).

Certified Abstract Competent to Show Title. —

Abstracts of grants in the usual form, duly certified as correct copies by the Secretary of State and recorded in the office of the register of deeds, are competent to show title out of the state. Marshall v. Corbett, 137 N.C. 555 , 50 S.E. 210, 1905 N.C. LEXIS 207 (1905).

CASE NOTES

Constitutionality. —

This section was held constitutional and valid. Howell v. Hurley, 170 N.C. 401 , 87 S.E. 107, 1915 N.C. LEXIS 414 (1915).

Copy Conclusive as to Regularity of Original. —

An abstract of a grant of the State’s land by the Secretary of State imported the regularity of its issuance, and that the constitutional mandate of affixing the seal of the original had been legally complied with, though the abstract gave no indication thereof, the regularity of the official conduct in granting the original being presumed; furthermore, the abstract could be introduced as competent evidence on the trial of an action involving the title to the lands described in the grant, by one claiming under it. Howell v. Hurley, 170 N.C. 401 , 87 S.E. 107, 1915 N.C. LEXIS 414 (1915).

CASE NOTES

History. —

As to the lack of authority of the clerk of the Secretary of State to certify and affix the great seal of the State to copies of grants and other papers from the Secretary of State’s office prior to the enactment of this section, see Beam v. Jennings, 96 N.C. 82 , 2 S.E. 245, 1887 N.C. LEXIS 18 (1887).

CASE NOTES

This section is not applicable when the original instrument is offered in evidence with the certificate of the register of deeds appearing thereon with respect to the time filed for registration and the book and page where it has been registered and the date of such registration. State v. Dunn, 264 N.C. 391 , 141 S.E.2d 630, 1965 N.C. LEXIS 1199 (1965).

Signature of Clerk Essential. —

The failure of the clerk (now the register of deeds) to sign his name to the certificate for registration, a requirement found in the provisions of G.S. 47-14 , renders the instrument inadmissible as evidence under this section. Woodlief v. Woodlief, 192 N.C. 634 , 135 S.E. 612, 1926 N.C. LEXIS 367 (1926).

The record of a registered deed is competent evidence without producing the original where no rule of court for the production of the original has been issued. Ratliff v. Ratliff, 131 N.C. 425 , 42 S.E. 887, 1902 N.C. LEXIS 308 (1902).

The “registry” or copy of the record of a bond to make title to land made by a deceased person, under which a deed had been made by the administrator of said obligor, was within the spirit and meaning of this section, and was admissible without accounting for the absence of the original. Doe v. Shelton, 46 N.C. 370 , 1854 N.C. LEXIS 107 (1854).

Copy of Record of Clerk’s Bond. —

Inasmuch as the duly certified copy of the record of any instrument required to be registered was admissible as full and sufficient evidence of such instrument, and as the register of deeds was required to register and keep the bond of the superior court clerk, a duly certified copy of the record of such bond was competent evidence of its provisions. State ex rel. Battle v. Baird, 118 N.C. 854 , 24 S.E. 668, 1896 N.C. LEXIS 147 (1896).

Lack of Seal No Effect. —

A copy of a grant from the register’s office, which affirmatively showed that it was issued under the great seal of the State, was admissible in evidence, though the registry did not show the impress of the seal, or scroll to indicate it. And while the seal may have been necessary to authenticate the grant, it would be presumed to have been affixed as required by law. Aycock v. Raleigh & Augusta Air Line R.R., 89 N.C. 321 , 1883 N.C. LEXIS 240 (1883).

Production of Original to Correct Mistakes. —

The original deed may be shown in evidence to correct an omission by the register of deeds of the signature of the justice of the peace before whom the deed was acknowledged. Brown v. Hutchinson, 155 N.C. 205 , 71 S.E. 302, 1911 N.C. LEXIS 373 (1911).

Parol Evidence to Explain Variance. —

Where the original deed was lost, and it was contended that there was a material variance between the certified copy and the original deed, parol evidence to prove the correct description contained in the original instrument was rejected, this section being construed as to have no application to such a case. Hopper v. Justice, 111 N.C. 418 , 16 S.E. 626, 1892 N.C. LEXIS 196 (1892).

Time and Manner of Objecting. —

A party against whom the registry of a deed (or other instrument), or a copy thereof has been introduced in evidence, cannot then raise the objection that there is a variance between such registry, or copy, and the original instrument; if he desired to avail himself of such objection he should have required the production of the original in the way provided by this section. Devereux v. McMahon, 108 N.C. 134 , 12 S.E. 902, 1891 N.C. LEXIS 24 (1891).

CASE NOTES

When Possession of Part Is Equivalent to Whole. —

Under the provisions of this section, by recording and registering a survey of the outer lines of several contiguous tracts, so as to exhibit their outer boundaries as if the whole territory had been covered by one tract, a possession at any one point on either of the separate tracts will become equivalent to a possession of “the whole and every part.” McNamee v. Alexander, 109 N.C. 242 , 13 S.E. 777, 1891 N.C. LEXIS 206 (1891).

Sufficiency of Proof. —

The surveyor’s testimony that the map was correct was sufficient to make it competent. Greenleaf v. Bartlett, 146 N.C. 495 , 60 S.E. 419, 1908 N.C. LEXIS 249 (1908).

CASE NOTES

Presumption of Regularity. —

The registration of a deed is presumed to be correct. Cochran v. Linville Imp. Co., 127 N.C. 386 , 37 S.E. 496, 1900 N.C. LEXIS 89 (1900).

CASE NOTES

Certified Copy as Evidence. —

Under this section a certified copy of a will is competent evidence in any case wherein the contents of the will would be competent evidence. Hampton v. Hardin, 88 N.C. 592 , 1883 N.C. LEXIS 126 (1883).

CASE NOTES

Records of other states, to be used in evidence in this State, must have the attestation of the clerk of the court whose record is offered, and the seal of the court, if it has one. If there be no seal, this must appear in the certificate of the clerk, and the judge, chief justice, or presiding magistrate of such court must certify that the record is properly attested. Hunter v. Kelly, 92 N.C. 285 , 1885 N.C. LEXIS 202 (1885); Kinseley v. Rumbough, 96 N.C. 193 , 2 S.E. 174, 1887 N.C. LEXIS 35 (1887); Riley v. Carter, 158 N.C. 484 , 74 S.E. 463, 1912 N.C. LEXIS 72 (1912).

Properly Authenticated Copy Is Admissible. —

A copy of a will made in another state, with its probate certified by the judge of the court in which it was proved, and accompanied by the testimonial of the governor of that state that the person who gave that certificate was the proper officer to take such probate and to certify the same, was a sufficient authentication of the will to authorize its reception as evidence in the courts of this State. Knight v. Wall, 19 N.C. 125 , 1836 N.C. LEXIS 53 (1836).

Test for Admission Under Section. —

The copy, to be admissible in evidence, must be of such a will as would be admitted to record in North Carolina; hence, where a will was executed in Tennessee and from the certificate of probate on the exemplified copy produced, it appeared that but one witness swore that he subscribed the will as witness in the presence of the testator and other witness to the will did not appear to have been sworn at all, it was held that such a will should not be read in evidence. Blount v. Patton, 9 N.C. 237 , 1822 N.C. LEXIS 54 (1822).

Incomplete Authentication. —

Where a will, proved in another state, bore the certificate of the clerk of the court wherein the probate was had to the oath of the attesting witnesses, but had no other authentication, it was held inadmissible in evidence. Hunter v. Kelly, 92 N.C. 285 , 1885 N.C. LEXIS 202 (1885).

CASE NOTES

“Copy” Defined. —

A copy, within the meaning of this section, is a transcript of the original, i.e., a writing exactly like another writing. State v. Champion, 116 N.C. 987 , 21 S.E. 700, 1895 N.C. LEXIS 312 (1895); Wiggins v. Rogers, 175 N.C. 67 , 94 S.E. 685, 1917 N.C. LEXIS 442 (1917).

Certification of Copy. —

The power of an officer, who is the keeper of certain public records, to certify copies is confined to a certification of their contents as they appear by the records themselves, and the records must, therefore, be so certified, for he has no authority to certify to the substance of them, nor that any particular fact, as a date, appears on them. Wiggins v. Rogers, 175 N.C. 67 , 94 S.E. 685, 1917 N.C. LEXIS 442 (1917).

Original Record Is Admissible. —

This section does not prevent the admission in evidence of the original record itself. State v. Voight, 90 N.C. 741 , 1884 N.C. LEXIS 3 23 (1884); State ex rel. Carolina Iron Co. v. Abernathy, 94 N.C. 545 , 1886 N.C. LEXIS 101 (1886). See State v. Hunter, 94 N.C. 829 , 1886 N.C. LEXIS 147 (1886); Charles S. Riley & Co. v. Carter, 165 N.C. 334 , 81 S.E. 414, 1914 N.C. LEXIS 264 (1914); Blalock v. Whisnant, 216 N.C. 417 , 5 S.E.2d 130, 1939 N.C. LEXIS 3 (1939).

While certified copies of records are admitted in evidence, the originals are not thereby made incompetent. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

And Copy Is Admissible Where Original Is Lost. —

Where a superior court record is lost, a certified copy of the transcript of the same in the appellate court is sufficient evidence of the record. Aiken v. Lyon, 127 N.C. 171 , 37 S.E. 199, 1900 N.C. LEXIS 46 (1900).

A certified copy of a petition in a suit was admissible in evidence upon proof of the loss of the original records. Weeks v. McPhail, 128 N.C. 130 , 38 S.E. 472, 1901 N.C. LEXIS 352 (1901).

But Certified Statement Not Admissible. —

This section makes competent only the “copies” of official records, etc., and a mere certified statement from the register’s office was only evidence of the correctness of the record, and could not be admitted in evidence in place of the original record. State v. Champion, 116 N.C. 987 , 21 S.E. 700, 1895 N.C. LEXIS 312 (1895); Wiggins v. Rogers, 175 N.C. 67 , 94 S.E. 685, 1917 N.C. LEXIS 442 (1917).

Incriminating Evidence Contained in Document. —

Where the document admitted under the provisions of this section contains incriminating evidence, the defense often interposed by the accused is that to admit such paper would be in violation of the constitutional right of the defendant on trial for crime to have opportunity to confront his accusers and the witnesses offered to sustain the charge. It is settled, however, that this section is not violative of this constitutional right, since these provisions constitute a well-recognized exception to the privilege given by the Constitution. State v. Behrman, 114 N.C. 797 , 19 S.E. 220, 1894 N.C. LEXIS 146 (1894); State v. Dowdy, 145 N.C. 432 , 58 S.E. 1002, 1907 N.C. LEXIS 314 (1907).

Admissibility of “Written Hearsay”. —

North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869, 1975 N.C. App. LEXIS 1803 (1975), rev'd, 291 N.C. 640 , 231 S.E.2d 614, 1977 N.C. LEXIS 1228 (1977).

Document Reclassifying Prisoner’s Status. —

An authenticated copy of a department of correction document reclassifying a person’s status as a prisoner and disclosing that he had been removed from the work release program for having returned therefrom in a highly intoxicated condition was a relevant and properly certified copy of an official record and was admissible in action to terminate parental rights. In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800, 1982 N.C. App. LEXIS 2659 (1982).

CASE NOTES

G.S. 14-7.4 is very similar in form and purpose to this section. State v. Aldridge, 67 N.C. App. 655, 314 S.E.2d 139, 1984 N.C. App. LEXIS 3174 (1984).

Admissibility of “Written Hearsay”. —

North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869, 1975 N.C. App. LEXIS 1803 (1975), rev'd, 291 N.C. 640 , 231 S.E.2d 614, 1977 N.C. LEXIS 1228 (1977).

The purpose of authentication and certification of records is to avoid the inconvenience and sometimes the impossibility of producing original public documents in court, and admission of certified records tends to expedite trial of cases. State v. Watts, 289 N.C. 445 , 222 S.E.2d 389, 1976 N.C. LEXIS 1298 (1976).

A valid, properly authenticated judgment is admissible under North Carolina law. State v. Maynard, 311 N.C. 1 , 316 S.E.2d 197, 1984 N.C. LEXIS 1710 , cert. denied, 469 U.S. 963, 105 S. Ct. 363, 83 L. Ed. 2d 299, 1984 U.S. LEXIS 398 (1984).

But Authentication Is Essential. —

Proper authentication is essential to the admission in evidence of the copies of the original records, and papers purporting to be exemplification from the Treasury Department of the United States, not authenticated, will not be admitted. Mott v. Ramsay, 92 N.C. 152 , 1885 N.C. LEXIS 172 (1885).

In order for this section to apply it must affirmatively appear that the evidence was offered as a properly authenticated copy of a public record in accordance with this section. State v. Bovender, 233 N.C. 683 , 65 S.E.2d 323, 1951 N.C. LEXIS 378 (1951).

Parol Evidence Inadmissible. —

The contents of the original record may not be proved by parol evidence under this section, but must be shown by a certified copy. National Sur. Co. v. Brock, 176 N.C. 507 , 97 S.E. 417, 1918 N.C. LEXIS 282 (1918).

Reading of Record by District Attorney. —

There is no error in allowing a properly certified copy of a record to be read into evidence by the district attorney, as opposed to having the document passed among the jurors. State v. Miller, 288 N.C. 582 , 220 S.E.2d 326, 1975 N.C. LEXIS 1032 (1975).

Public documents may be authenticated by mechanical reproduction of signature of authorized officer when he intends to adopt the mechanical reproduction as his signature. State v. Watts, 289 N.C. 445 , 222 S.E.2d 389, 1976 N.C. LEXIS 1298 (1976).

This section does not impose the restriction upon the general rule that for a stamped, printed or typewritten signature to be a good signature, the signature must be made under the hand of the person making it. State v. Watts, 289 N.C. 445 , 222 S.E.2d 389, 1976 N.C. LEXIS 1298 (1976).

Same — Presumption. —

When the authorized officer of the D.M.V. provides records of the Division pursuant to statute, it may be presumed that he intends to authenticate the documents and to adopt the mechanical reproduction of his name as his own signature. State v. Watts, 289 N.C. 445 , 222 S.E.2d 389, 1976 N.C. LEXIS 1298 (1976).

This section has no application to an uncertified copy of a coroner’s report but only to a duly certified copy. Robinson v. Life & Cas. Ins. Co., 255 N.C. 669 , 122 S.E.2d 801, 1961 N.C. LEXIS 698 (1961).

Initialed certificate lacking notary’s authentication meets all the requirements of G.S. 20-48 and provides prima facie evidence of the genuineness of such certificate, the truth of the statements made in such certificate, and the official character of the person who purportedly initialed and executed it. State v. Johnson, 25 N.C. App. 630, 214 S.E.2d 278, 1975 N.C. App. LEXIS 2345 , cert. denied, 288 N.C. 247 , 217 S.E.2d 671, 1975 N.C. LEXIS 943 (1975).

The matters appearing in the transcript of any paper on file or records of any public office of this State or the United States, being relevant to an account which a referee was directed to take, are admissible in evidence by virtue of the provisions of this section. Wallace Bros. v. Douglas, 114 N.C. 450 , 19 S.E. 668, 1894 N.C. LEXIS 89 (1894). See also Hinton v. Lake Drummond Canal Co., 166 N.C. 484 , 82 S.E. 844, 1914 N.C. LEXIS 430 (1914).

A record of the D.M.V., disclosing that defendant’s license was in a state of revocation under official D.M.V. action during the period defendant was charged with driving on a highway of this State, was competent under this section when the record was certified under seal of the D.M.V. State v. Mercer, 249 N.C. 371 , 106 S.E.2d 866, 1959 N.C. LEXIS 373 (1959).

The records of the D.M.V., properly authenticated, were competent for the purpose of establishing the status of a person’s operator’s license and driving privilege. State v. Teasley, 9 N.C. App. 477, 176 S.E.2d 838, 1970 N.C. App. LEXIS 1391 , cert. denied, 277 N.C. 459 , 177 S.E.2d 900, 1970 N.C. LEXIS 635 (1970); State v. Rhodes, 10 N.C. App. 154, 177 S.E.2d 754, 1970 N.C. App. LEXIS 1214 (1970).

Same — Employee’s Certification of Original Renders Copy Admissible. —

Certification by an employee of the D.M.V. that the original of an order of security requirement or suspension of driving privilege was mailed to defendant on a specified date at his address shown on the records of the D.M.V. was sufficient to render admissible a copy of the document in a prosecution of a defendant for driving while his license was suspended. State v. Herald, 10 N.C. App. 263, 178 S.E.2d 120, 1970 N.C. App. LEXIS 1249 (1970).

Same — Certified Copy of Driver’s License Record Admissible to Show Revocation. —

In a prosecution of a defendant for driving while his license was suspended, a properly certified copy of the driver’s license record of defendant on file with the D.M.V. is admissible as evidence that the defendant’s license was in a state of revocation for a period covering the date of the offense for which he was charged. State v. Herald, 10 N.C. App. 263, 178 S.E.2d 120, 1970 N.C. App. LEXIS 1249 (1970).

CASE NOTES

Admissibility of “Written Hearsay”. —

North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869, 1975 N.C. App. LEXIS 1803 (1975), rev'd, 291 N.C. 640 , 231 S.E.2d 614, 1977 N.C. LEXIS 1228 (1977).

CASE NOTES

Section Not Retroactive in Operation. —

There is a general presumption against the retroactive operation of a statute where it would impair vested rights; therefore, this section cannot be held to operate retrospectively so as to allow parol testimony to locate land referred to and ambiguously described in a contract made before the passage of this section. Lowe v. Harris, 112 N.C. 472 , 17 S.E. 539, 1893 N.C. LEXIS 237 (1893).

Deed Must Contain Some Description. —

This section applies only where there is a description which can be aided by parol, but not when there is no description. Lowe v. Harris, 112 N.C. 472 , 17 S.E. 539, 1893 N.C. LEXIS 237 (1893); Hemphill v. Annis, 119 N.C. 514 , 26 S.E. 152, 1896 N.C. LEXIS 326 (1896); Harris v. Woodward, 130 N.C. 580 , 41 S.E. 790, 1902 N.C. LEXIS 109 (1902).

A deed which fails to describe any land is as void now as it was before the passage of this section, but a description by name, where lands have a known name, is sufficient. Moore v. Fowle, 139 N.C. 51 , 51 S.E. 796, 1905 N.C. LEXIS 92 (1905).

And Description Must Identify Land or Refer to Source of Identification. —

The statute applies only when there is a description which can be aided by parol, and cannot be held to validate a deed where the description is too vague and indefinite to identify the land claimed and to fit it to the description. At all events, the description as it may be explained by oral testimony must identify and make certain the land intended to be conveyed. Failing in this, the deed is void. Holloman v. Davis, 238 N.C. 386 , 78 S.E.2d 143, 1953 N.C. LEXIS 455 (1953).

The statutory rule permitting the use of parol testimony to fit the description in the deed to the land intended to be conveyed does not relieve the invalidity due to vagueness, indefiniteness and uncertainty unless there are elements of description which are either certain in themselves or are capable of being reduced to certainty by reference to something extrinsic, to which the deed refers. The liberal rule of construction does not permit the passing of title to land by parol. Such evidence cannot be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. Holloman v. Davis, 238 N.C. 386 , 78 S.E.2d 143, 1953 N.C. LEXIS 455 (1953).

The description must identify the land, or it must refer to something that will identify it with certainty. Cummings v. Dosam, Inc., 273 N.C. 28 , 159 S.E.2d 513, 1968 N.C. LEXIS 553 (1968).

A deed purporting to convey an interest in land is void unless it contains a description of the land sufficient to identify it or refers to something extrinsic by which the land may be identified with certainty. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

Parol Evidence Alone Cannot Establish Boundary. —

While parol evidence is competent to “fit the description to the thing,” it is not competent to establish a line or corner when the instrument by its terms wholly fails to identify such line or corner; in other words, it is competent to find but not to make a corner. Holmes v. Sapphire Valley Co., 121 N.C. 410 , 28 S.E. 545, 1897 N.C. LEXIS 251 (1897).

Description in Deed Must Be Fitted to Earth’s Surface. —

In an action to recover for the wrongful cutting and removal of timber from land claimed by plaintiffs, plaintiffs must locate the land by fitting the description in their deeds to the earth’s surface, regardless of whether they rely upon their deeds as proof of title or color of title, or, in the absence of title or color of title, they are required to establish the known and visible lines and boundaries of the land actually occupied by them for the statutory period. Andrews v. Bruton, 242 N.C. 93 , 86 S.E.2d 786, 1955 N.C. LEXIS 463 (1955).

Those having the burden of proof must locate the land they claim title to by fitting the description contained in the paper-writing offered as evidence of title to the land’s surface. State v. Brooks, 275 N.C. 175 , 166 S.E.2d 70, 1969 N.C. LEXIS 373 (1969).

Allegations as to title having been denied, it was incumbent upon plaintiffs in ejectment action to establish both ownership and trespass. Whether relying upon their deeds as proof of title or of color of title, they were required to locate the land by fitting the description in the deeds to the earth’s surface and showing that such deeds embraced the land in controversy. In the absence of title or color of title, they were required to establish the known and visible lines and boundaries of the land actually occupied for the statutory period. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53, 1969 N.C. App. LEXIS 1284 (1969).

Scope of Descriptive Words in Deed May Not Be Enlarged by Parol Evidence. —

Parol evidence is admissible to fit the description in a deed showing color of title to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. McDaris v. Breit Bar “T” Corp., 265 N.C. 298 , 144 S.E.2d 59, 1965 N.C. LEXIS 969 (1965).

As the purpose of parol evidence is to fit the description to the property, not to create a description. McDaris v. Breit Bar “T” Corp., 265 N.C. 298 , 144 S.E.2d 59, 1965 N.C. LEXIS 969 (1965); Cummings v. Dosam, Inc., 273 N.C. 28 , 159 S.E.2d 513, 1968 N.C. LEXIS 553 (1968); Builders Supplies Co. v. Gainey, 282 N.C. 261 , 192 S.E.2d 449, 1972 N.C. LEXIS 933 (1972).

Evidence dehors the deed is admissible to “fit the description to the thing” only when it tends to explain, locate, or make certain some call or descriptive term used in the deed. It is the deed that must speak. The oral evidence must only interpret what has been said therein. McDaris v. Breit Bar “T” Corp., 265 N.C. 298 , 144 S.E.2d 59, 1965 N.C. LEXIS 969 (1965).

Parol evidence is admissible to fit the description to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. State v. Brooks, 279 N.C. 45 , 181 S.E.2d 553, 1971 N.C. LEXIS 750 (1971); Builders Supplies Co. v. Gainey, 282 N.C. 261 , 192 S.E.2d 449, 1972 N.C. LEXIS 933 (1972).

Parol evidence is not admissible to enlarge the scope of the description in the deed, but when the deed itself, including the references to extrinsic things, describes with certainty the property intended to be conveyed, parol evidence is admissible to fit the description in the deed to the land. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

Ambiguous or Indefinite Terms Generally. —

Where the written terms contained in the contract are sufficient to pass the property, but are ambiguous or indefinite, then parol evidence of the expressions of the parties and attendant facts and circumstances may be heard to aid in ascertaining the correct meaning of the terms used, but not to alter or add to what has been written. Ward v. Gay, 137 N.C. 397 , 49 S.E. 884, 1905 N.C. LEXIS 183 (1905).

Patently Ambiguous Description. —

When it is apparent upon the face of the deed, itself, that there is uncertainty as to the land intended to be conveyed and the deed, itself, refers to nothing extrinsic by which such uncertainty can be resolved, the description is said to be patently ambiguous. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

A patent ambiguity in the description of the land is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

A patent ambiguity in the description of the land cannot be removed by parol evidence. Cummings v. Dosam, Inc., 273 N.C. 28 , 159 S.E.2d 513, 1968 N.C. LEXIS 553 (1968).

Parol evidence may not be introduced to remove a patent ambiguity in the description of the land since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

And Deed Containing Such Description Is Void. —

Where the description of land in a deed under which plaintiffs claimed was patently ambiguous, the deed was void and could not be the basis for a valid claim of title in the plaintiffs to the land claimed by them. Overton v. Boyce, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

The identity or location of the land may be shown by documentary evidence, such as plats, surveys, and field notes. A map made by a surveyor of the premises sued for and of other tracts adjacent thereto, when proved to be correct, is admissible to illustrate other testimony in the case and throw light on the location of the land in controversy; and a draft of a survey, proved to be correct, is admissible in evidence as explanatory of what the surveyor testified he had done in making the survey. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53, 1969 N.C. App. LEXIS 1284 (1969).

When Description Is Sufficient. —

A description of land in a deed as all that tract of land in two certain counties lying on “both sides of old road between” designated points, and bounded by lands of named owners “and others,” being parts of certain State grants, conveyed by the patentee or enterer to certain grantees, etc., was sufficient to admit parol evidence in aid of the identification of the lands as those intended to be conveyed. Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335 , 102 S.E. 630, 1920 N.C. LEXIS 240 (1920).

Superior court erred, inter alia, in denying a loan assignee’s motion for summary judgment in its quiet title action because the deed of trust adequately described the property to create a lien on that property without the need for reformation and also identified the real estate securing the loan by its correct street address and tax parcel number, and the owner could, and did, encumber the property when he obtained the loan from the assignee’s predecessor where several deeds in the owner’s chain of title, including the deed conveying the property to him, all included the same legal description as the deed of trust, with no reference to the book and page number of the subdivision’s map in the county’s Map Book. MTGLQ Inv'rs, L.P. v. Curnin, 263 N.C. App. 193, 823 S.E.2d 409, 2018 N.C. App. LEXIS 1232 (2018).

CASE NOTES

Terms Construed. —

In an early case, the words “to make out on his oath” and “to prove,” used in the former statute, were construed to be synonymous terms. Kitchen v. Tyson, 7 N.C. 314 , 1819 N.C. LEXIS 72 (1819).

Construction with Former G.S. 8-51 . —

Notwithstanding the restrictions contained in former G.S. 8-51 , in relation to a person’s testifying as to any matter between himself and a deceased person, when his executor or administrator is a party, he may, as heretofore, be permitted to testify under this section. Leggett v. Glover, 71 N.C. 211 , 1874 N.C. LEXIS 53 (1874). See Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627, 1915 N.C. LEXIS 294 (1915).

Applicability of Section. —

This section is applicable only to actions brought under the “book-debt law,” hence in an action on a contract for sawing timber, it was not necessary to set out the items in the pleadings. McPhail Bros. v. Johnson, 115 N.C. 298 , 20 S.E. 373, 1894 N.C. LEXIS 231 (1894).

Where Original Account Exceeds Sixty Dollars. —

Under this section, a plaintiff may prove by his own oath a balance of sixty dollars, due to him, although his account produced appears to have been originally for more than sixty dollars ($60.00), but is reduced by credits below that amount. McWilliams v. Cosby, 26 N.C. 110 , 1843 N.C. LEXIS 102 (1843).

Same — Dismissal of Part for Jurisdictional Purposes. —

Where divers dealings were included in an account, the aggregate of which exceeded sixty dollars ($60.00), the plaintiff could omit or give credit for any item he chose, so as to bring the case within the jurisdiction of a single magistrate. But after thus obtaining jurisdiction the plaintiff could not prove the account under this section for he was required to swear that the account rendered contained a true account of all the dealings. Joseph Waldo & Co. v. Jolly, 49 N.C. 173 , 1856 N.C. LEXIS 57 (1856).

Proof of Setoff Allowed. —

The defendant may, under this section, prove a setoff. Webber v. Webber, 79 N.C. 572 , 1878 N.C. LEXIS 121 (1878).

Book and Oath Not Exclusive Evidence. —

The book and the oath under this section are not evidence that the book contains all the credits and a full and true account of all the dealings between the parties, so as to show that nothing is due to the other party. Alexander v. Smoot, 35 N.C. 461 , 1852 N.C. LEXIS 84 (1852).

Swearing as to Price of Goods. —

It is competent for a party under this section to swear to the price, as well as to the delivery of the articles stated in his account. Colbert v. Piercy, 25 N.C. 77 , 1842 N.C. LEXIS 78 (1842).

Cross-Examination. —

It is competent for the opposite party to cross-examine the party taking his oath as required by this section, both as to the article and the prices charged, with a view to contradict or discredit him as he might do in regard to any other witness swearing to the account, the party so swearing being considered as a witness in his own cause. Colbert v. Piercy, 25 N.C. 77 , 1842 N.C. LEXIS 78 (1842).

Books of Decedent Admissible. —

Under this section it is admissible to the amount of sixty dollars ($60.00) to offer the book accounts of a decedent, containing charges against third persons, and made by him. Bland v. Warren, 65 N.C. 372 , 1871 N.C. LEXIS 106 (1871).

Unverified Entries on Own Book. —

A party to an action may not show unverified entries of credit in his behalf on his own books involved in a disputed account, the same not falling within the intent and meaning of this section and G.S. 8-43 and 8-44, especially when it has not been made to appear that the person having made them is dead or cannot be had to give his sworn statement of the transaction. Branch v. Ayscue, 186 N.C. 219 , 119 S.E. 201, 1923 N.C. LEXIS 212 (1923).

CASE NOTES

An administrator may offer in evidence the book accounts of a decedent, containing charges against third persons, and made by him. Bland v. Warren, 65 N.C. 372 , 1871 N.C. LEXIS 106 (1871).

CASE NOTES

Production of Original After Notice. —

In all cases under this section and G.S. 8-42 and 8-43, it is the duty of the party, who wishes to prove his debt by his own oath, to produce the original account when notice to that effect has been given to him by the other party. Coxe v. Skeen, 25 N.C. 443 , 1843 N.C. LEXIS 39 (1843).

A voluntary destruction of the original will not authorize the introduction of a copy. Coxe v. Skeen, 25 N.C. 443 , 1843 N.C. LEXIS 39 (1843).

Editor’s Note.

G.S. 122-8.1, referred to in this section, was repealed by Session Laws 1985, c. 589, s. 1. See now Chapter 122C.

CASE NOTES

Admissibility of Hospital Records. —

A hospital record is a business record, and is admissible into evidence upon the laying of a proper foundation. A proper foundation consists of testimony from a hospital librarian or custodian of the records or other qualified witness as to the identity and authenticity of the record and the mode of its preparation, including testimony that the entries were made at or near the time of the act or event recorded, that the entries were made by persons having personal knowledge of the event or act, and that the entries were made ante litem motam. The court, however, should exclude from jury consideration entries which amount to hearsay on hearsay. Donavant v. Hudspeth, 75 N.C. App. 321, 330 S.E.2d 517, rev’d on other grounds, 318 N.C. 1 , 347 S.E.2d 797 (1986). In accord with the main volume. See In re Parker, 90 N.C. App. 423, 368 S.E.2d 879, 1988 N.C. App. LEXIS 558 (1988).

Authenticating Hospital Records. —

This section merely eliminated the necessity of taking original hospital records to court, where they were often kept for long periods to the dismay of record keepers and the inconvenience of those who needed to use the records for any purpose, including the later treatment of the patient. It did not modify the then-existing process of authenticating hospital records but, to the contrary, it ratified and reinforced the process by continuing to require authenticating testimony. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853, 1983 N.C. App. LEXIS 3221 (1983).

The key to authenticating hospital records is not personal knowledge by anyone of particular entries or occurrences, but evidence of system and practice; evidence that a business-like system of compiling records exists, which requires that entries be made at or near the time involved by those who examine, observe, test and treat patients; and that in practice the system is generally followed. When that is testified to by someone familiar with the system, and the purported record involved is testified to be genuine, the authenticating process is complete. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853, 1983 N.C. App. LEXIS 3221 (1983).

It is a matter of common knowledge among those familiar with hospital records that entries requiring dictation and transcription are done late by many doctors because they give priority to their other medical duties. Nevertheless, such entries, when regularly made, are still parts of the patients’ record and should be so considered, except when there is evidence of duplicity or bad faith. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853, 1983 N.C. App. LEXIS 3221 (1983).

Mental Health Records Previously Admitted Into Evidence. —

Trial court did not err by considering mental health records of a mother contained within the underlying file and previously admitted into evidence in proceedings to terminate her parental rights, because the mental health records challenged by the mother were originally admitted into evidence during a permanency planning review hearing and were not challenged by the mother at that time. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264, 2005 N.C. App. LEXIS 1589 (2005).

It is not required that the authenticating proof be only by personal knowledge. Such a requirement would, for all intents and purposes, abrogate the use of business records in court; because under the conditions that most businesses and hospitals are conducted today, it is a rare person indeed, that has personal knowledge of any work or undertaking done by others. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853, 1983 N.C. App. LEXIS 3221 (1983).

Mental Health Records Admissible. —

Rutherford County Department of Social Services was not precluded from admitting the mother’s mental health records into evidence. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387, 2006 N.C. App. LEXIS 883 (2006).

CASE NOTES

Purpose. —

This section was designed to facilitate the collection of such accounts where there was no bona fide dispute, and to relieve the plaintiff in such instances of the expense and delay of formally taking depositions. Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627, 1915 N.C. LEXIS 294 (1915).

This section was designed to facilitate the collection of accounts about which there is no bona fide dispute. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576, 1976 N.C. App. LEXIS 2094 (1976); Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984).

This section was designed to facilitate the collection of accounts not in dispute. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799, 1986 N.C. App. LEXIS 2102 (1986).

This statute is applicable only where there is no dispute about an account. Durham Life Broadcasting, Inc. v. International Carpet Outlet, Inc., 63 N.C. App. 787, 306 S.E.2d 459, 1983 N.C. App. LEXIS 3210 (1983).

Construction of Section. —

This section must be strictly construed. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576, 1976 N.C. App. LEXIS 2094 (1976).

Since many states have statutes similar to this section it is appropriate to review decisions from those states for guidance in construing this section. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576, 1976 N.C. App. LEXIS 2094 (1976).

Use Not Limited to Absence of Witness. —

Nothing in this section or case law limits the use of a verified statement of the account to only those situations where the witness is unavailable to testify. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565, 1976 N.C. App. LEXIS 2403 (1976).

Verification Essential. —

An itemized account to be prima facie evidence of its correctness must be properly verified and stated so as to show an indebtedness. Knight v. Taylor, 131 N.C. 84 , 42 S.E. 537, 1902 N.C. LEXIS 238 (1902).

Sufficiency of Verification. —

Verification of the itemized account is sufficient if the affiant has personal knowledge of the account or is familiar with the books and records of the business and is in a position to testify as to the correctness of the records. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565, 1976 N.C. App. LEXIS 2403 (1976).

Where the verifier has no personal knowledge of all the matters contained therein will not disqualify the exhibit as a verified statement if such verifier certifies familiarity with the books and records of the business and is competent to testify to their correctness. The law requires no more. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, 1983 N.C. App. LEXIS 3200 (1983).

In an action for accounting and tax services rendered, the different itemized bills for each period showing the services rendered, the time required, expenses incurred, charges made, the previous balance, the amount then due, and the different ledger sheets showing charges, payments, and balances all along, are ingredients enough for a good, verified statement of account. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, 1983 N.C. App. LEXIS 3200 (1983).

Unverified Statements of Account Admissible as Business Records. —

In an action to recover for labor and materials supplied by plaintiff in repairing defendant’s truck, plaintiff’s exhibit which consisted of itemized statements of account for materials supplied and labor performed by plaintiff upon defendant’s truck was not admissible pursuant to this section because it was not verified; however, the exhibit was admissible under the business records exception to the hearsay rule where there was testimony that the exhibit properly reflected the work done by plaintiff’s shop foreman and charges made pursuant to the work he performed. Bond Park Truck Serv. v. Hill, 53 N.C. App. 443, 281 S.E.2d 61, 1981 N.C. App. LEXIS 2630 (1981).

Where it affirmatively appears from the record that the various entries on the papers comprising the exhibit admitted as a verified statement of account were made in the regular course of business, at or near the time of the transactions involved, and were authenticated by a witness familiar with the system under which they were made, the exhibit was admissible under the business records exception to the hearsay rule. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, 1983 N.C. App. LEXIS 3200 (1983).

Statements showing amounts due for services rendered, attached to complaint, and based upon an unverified computer printout were not admissible as verified itemized statements under this section. However, as this evidence was admissible under the business records exception to the hearsay rule, and as the jury was correctly instructed on the law pertaining to an account stated by an implied agreement, this error was rendered harmless. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799, 1986 N.C. App. LEXIS 2102 (1986).

Competency of Witness Required. —

Under the terms of this section, as now drawn, an affiant, verifying an account so as to make the same prima facie evidence, must be a competent witness to the facts, and, when it appears on the face of the account that he has no personal knowledge of these facts, or it is established that he is otherwise an incompetent witness, the ex parte account so verified should not be received in evidence. Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627 (1915). And it must appear that he is not excluded under former G.S. 8-51 . See William M. Lloyd & Co. v. Poythress, 185 N.C. 180 , 116 S.E. 584, 1923 N.C. LEXIS 48 (1923).

An itemized, verified statement of an account is an ex parte statement and this section, governing its admission, must be strictly complied with, and the person who verifies the account, being treated as a witness pro tanto, must be competent to testify as a witness in respect to the account if called upon at the trial; but where an itemized statement of account offered at the trial was verified by the treasurer of the plaintiff corporation who declared in his affidavit that “he is familiar with the books and business” of the plaintiff, it could not be held as a matter of law that the affiant had no personal knowledge of the transaction, and the exclusion of the statement by the trial court was reversible error. Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627, 1915 N.C. LEXIS 294 (1915).

The account must be sworn to by some person who would be a competent witness to testify to the correctness of the account. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565, 1976 N.C. App. LEXIS 2403 (1976).

An affiant who verifies an account of goods sold and delivered, which is to be received into evidence and taken as prima facie evidence of its correctness pursuant to this section, shall be regarded and dealt with as a witness pro tanto, and to such extent must meet the requirements and is subject to the qualifications and restrictions as other witnesses. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576, 1976 N.C. App. LEXIS 2094 (1976).

Where plaintiff’s purported itemized statement was verified by a woman who was identified in the verification as the president of plaintiff corporation, but the verification contained no statement to the effect, and there was no other showing, that affiant had any personal knowledge of the matters set forth in the affidavit or that she was familiar with the books and records of plaintiff corporation, and the burden was on plaintiff to establish a prima facie case, it failed to show that the affiant would have been competent to testify if called as a witness at trial. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576, 1976 N.C. App. LEXIS 2094 (1976).

Prima Facie Case. —

In an action to recover for goods sold and delivered, where a verified statement of the account shows that it is for goods sold by the plaintiff to the defendant and sets out the number and kind of articles, the catalogue numbers, price per dozen and discounts allowed, and there are trade terms and abbreviations well understood in the trade, which show more fully the kind of articles, it is properly itemized to make out a prima facie case under this section. Claus v. Lee, 140 N.C. 552 , 53 S.E. 433, 1906 N.C. LEXIS 44 (1906); Lipinsky v. Revell, 167 N.C. 508 , 83 S.E. 820, 1914 N.C. LEXIS 159 (1914).

To make out a prima facie case under this section, the account not only must be properly verified and itemized, it must also be stated so as to show an indebtedness. Kight v. Harris, 33 N.C. App. 200, 234 S.E.2d 637, 1977 N.C. App. LEXIS 2126 (1977); Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799, 1986 N.C. App. LEXIS 2102 (1986).

Nonsuit. —

Where a verified account or affidavit to a statement for goods sold and delivered is insufficient to establish a prima facie case under the provision of this section, and this is the only evidence offered, a judgment of nonsuit upon the evidence is properly allowed. Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627, 1915 N.C. LEXIS 294 (1915).

Burden of Proof. —

Where a prima facie case had been made out by the plaintiff in his action to recover the purchase price of goods sold and delivered to the defendant, and the latter contended that he, as the agent for the former, was to sell upon commission, and that he had accounted for such sales, except a small balance which he tendered, or offered to submit to judgment for that amount, the burden was upon defendant to show the fact of agency, and of accounting thereon, which was for the determination of the jury upon the question of indebtedness. Carr v. Alexander & Garsed, 169 N.C. 665 , 86 S.E. 613, 1915 N.C. LEXIS 284 (1915).

Husband as Agent of Wife. —

Itemized statement of goods held insufficient to establish agency of husband in purchasing goods for use on wife’s farm. Pitt v. Speight, 222 N.C. 585 , 24 S.E.2d 350, 1943 N.C. LEXIS 377 (1943).

Subordination of Section to Former G.S. 8-51 . —

In William M. Lloyd & Co. v. Poythress, 185 N.C. 180 , 116 S.E. 584 (1923), the court said: “We have held that this section, appearing as a section on the law of evidence, should be construed in subordination to C.S., 1795, [former G.S. 8-51 ] under the principle announced in Cecil v. City of High Point, 165 N.C. 431 , 81 S.E. 616 (1914).” See Nall v. Kelly, 169 N.C. 717 , 86 S.E. 627, 1915 N.C. LEXIS 294 (1915).

CASE NOTES

Admissibility of “Written Hearsay”. —

North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869, 1975 N.C. App. LEXIS 1803 (1975), rev'd, 291 N.C. 640 , 231 S.E.2d 614, 1977 N.C. LEXIS 1228 (1977).

Reproductions Are Primary Evidence. —

Reproductions are made and kept among the records of many banks in due course of business. Their accuracy is not questioned. As proof of payment they constitute not secondary but primary evidence. State v. Shumaker, 251 N.C. 678 , 111 S.E.2d 878, 1960 N.C. LEXIS 532 (1960).

Photostatic copies of deposit slips and checks made by an employee of a bank in the usual course of business and identified by such employee are competent as primary evidence without proof of the loss or destruction of the originals. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6, 1969 N.C. App. LEXIS 1397 (1969).

Photocopies are admissible as originals. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, 1983 N.C. App. LEXIS 2410 (1983).

Business records are admissible as an exception to the hearsay rule when they (1) are made in the regular course of business, at or near the time of the events recorded; (2) are original entries; (3) are based on the personal knowledge of the individual making the entries; and (4) are authenticated by a witness familiar with the system by which they were made. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, 1983 N.C. App. LEXIS 2410 (1983).

Failure to Show That Copy Was Made in Regular Course of Business or by Whom It Was Made. —

A photostatic copy of a purported written designation of plaintiff by deceased as the beneficiary of deceased’s governmental life insurance benefits should not be admitted as evidence where plaintiff failed to show that the copy was made in the regular course of business or activity of any federal agency or by whom it was made. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6, 1969 N.C. App. LEXIS 1397 (1969).

A photostatic copy of a computerized report from the operations center of a bank was admissible in a prosecution for the issuance of checks with knowledge of insufficient funds to pay the checks upon presentation. State v. Passmore, 37 N.C. App. 5, 245 S.E.2d 107, 1978 N.C. App. LEXIS 2641 , cert. denied, 295 N.C. 556 , 248 S.E.2d 734, 1978 N.C. LEXIS 1063 (1978).

CASE NOTES

Tables Need Not Be Specially Put in Evidence. —

This section being a public act, the tables herein contained are competent as evidence without being specially put in evidence. Coley v. City of Statesville, 121 N.C. 301 , 28 S.E. 482, 1897 N.C. LEXIS 230 (1897).

The mortuary table in this section is one of the prevailing mortality tables put into statutory form so as to permit its use without formal proof. Rea v. Simowitz, 225 N.C. 575 , 35 S.E.2d 871, 1945 N.C. LEXIS 372 (1945).

The mortuary table is statutory and need not be introduced in evidence, but may receive judicial notice when facts are in evidence requiring or permitting its application. Chandler v. Moreland Chem. Co., 270 N.C. 395 , 154 S.E.2d 502 (1967). In accord with third paragraph in the main volume. See Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209, 1988 N.C. App. LEXIS 27 (1988).

The table, being statutory, need not be introduced in evidence in order to make use of it upon the question of damages when other facts are in evidence permitting its application. Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

Mortuary table is competent evidence bearing upon life expectancy and future earning capacity of the injured person in actions for personal injuries resulting in permanent disability. Gillikin v. Burbage, 263 N.C. 317 , 139 S.E.2d 753, 1965 N.C. LEXIS 1281 (1965).

But it is not admissible unless there is evidence of permanent injury. Gillikin v. Burbage, 263 N.C. 317 , 139 S.E.2d 753, 1965 N.C. LEXIS 1281 (1965); McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E.2d 81, 1972 N.C. App. LEXIS 1682 (1972).

Where testimony tended to show that plaintiff’s injuries were permanent, etc. in character, it was proper for the presiding judge to permit plaintiff to introduce and the jury to consider the mortuary tables formerly embodied in this section. Hunt v. Wooten, 238 N.C. 42 , 76 S.E.2d 326, 1953 N.C. LEXIS 383 (1953).

The mortuary tables were properly introduced into evidence on the issue of damages over defendant’s objection where plaintiff introduced evidence that he received permanently disfiguring scars from sulphuric acid burns as a result of defendant’s negligence. Chandler v. Moreland Chem. Co., 270 N.C. 395 , 154 S.E.2d 502, 1967 N.C. LEXIS 1363 (1967).

Before evidence of life expectancy under this section can be introduced, there must be evidence to a reasonable certainty of permanent injury. Mitchem v. Sims, 55 N.C. App. 459, 285 S.E.2d 839, 1982 N.C. App. LEXIS 2215 (1982).

Where sufficient evidence existed to establish that slip and fall plaintiff suffered permanent injuries, the introduction of a mortuary table was not error. Matthews v. Food Lion, Inc., 135 N.C. App. 784, 522 S.E.2d 587, 1999 N.C. App. LEXIS 1229 (1999).

Tables Not Conclusive. —

In an action to recover damages for a personal injury, the expectation of life tables contained in this section are not conclusive but are merely evidential on the issue as to damages. Sledge v. Lumber Co., 140 N.C. 459 , 53 S.E. 295, 1906 N.C. LEXIS 26 (1906); Odom v. Canfield Lumber Co., 173 N.C. 134 , 91 S.E. 716, 1917 N.C. LEXIS 259 (1917); Young v. E.A. Wood & Co., 196 N.C. 435 , 146 S.E. 70, 1929 N.C. LEXIS 5 (1929).

And Must Be Considered with Other Evidence. —

The tables must be considered in connection with the “other evidence as to the health, constitution and habits” of the deceased. Russell v. Windsor Steamboat Co., 126 N.C. 961 , 36 S.E. 191, 1900 N.C. LEXIS 343 (1900). See Wachovia Bank & Trust Co. v. Atlantic Greyhound Lines, 210 N.C. 293 , 186 S.E. 320, 1936 N.C. LEXIS 89 (1936); Hancock v. Wilson, 211 N.C. 129 , 189 S.E. 631, 1937 N.C. LEXIS 23 (1937).

The mortuary table is merely evidence of life expectancy to be considered with other evidence as to the health, constitution and habits of the deceased, and an instruction making the expectancy set out in this section definitive and conclusive not only violated the evidence rule, but also G.S. 1-180 (now repealed) prohibiting the expression of an opinion “whether a fact is fully or sufficiently proven.” Starnes v. Tyson, 226 N.C. 395 , 38 S.E.2d 211, 1946 N.C. LEXIS 462 (1946).

Bankruptcy court’s valuation of the debtor’s life estate was consistent with North Carolina law; while the bankruptcy court clearly recognized that G.S. 8-46 allowed such number to be adjusted based on other evidence, the bankruptcy court’s finding that appellant’s evidence was either insufficient or not credible was entitled to deference. Mitchell v. Parker, 2011 U.S. Dist. LEXIS 85157 (W.D.N.C. Aug. 2, 2011), aff'd, 466 Fed. Appx. 176, 2012 U.S. App. LEXIS 3243 (4th Cir. 2012).

This section does not, like § 8-47, give a mathematical result which the court can apply. The table given is merely evidentiary. Waggoner v. Waggoner, 246 N.C. 210 , 97 S.E.2d 887, 1957 N.C. LEXIS 404 (1957).

Value of Life Tenancy. —

When a life tenant and the remainderman sell the lands, the life tenant is entitled to the present cash value of her life estate in the purchase price, computed according to her life expectancy at the date of the execution of the deed, and the remainderman is entitled to the balance of the purchase price. Thompson v. Avery County, 216 N.C. 405 , 5 S.E.2d 146, 1939 N.C. LEXIS 178 (1939).

Value of Dower. —

Because the mortuary table is only evidentiary, the cash value of dower inchoate depended on the ages of husband and wife, and on their health, habits and all other circumstances tending to show the probabilities as to the length of life; there is no reason for differing rules for determining life expectancy as between married women entitled to dower inchoate and widows entitled to dower consummate. Waggoner v. Waggoner, 246 N.C. 210 , 97 S.E.2d 887 (1957). As to abolition of dower, see G.S. 29-4 .

Failure to Instruct Jury as to Life Expectancy of Plaintiff. —

In the absence of a request, the judge did not commit reversible error in failing to instruct the jury in an action for personal injury that the plaintiff had a life expectancy of 15.27 years according to the mortuary table, which he had introduced in evidence, where, although the charge did not contain a direct reference to the plaintiff’s life expectancy, the court did instruct the jury to take into consideration all the evidence bearing on the issue, including the plaintiff’s age. Derby v. Owens, 245 N.C. 591 , 256 N.C. 591 , 96 S.E.2d 851, 1957 N.C. LEXIS 620 (1957).

Erroneous Instruction. —

Where the element of future damages figured largely in consideration of the issue, an instruction to the effect that the jury could take into consideration the mortuary tables as to the life expectancy of plaintiff, without reference to the evidence as to plaintiff’s health prior and subsequent to the accident and without charging that the mortuary tables could be considered only as evidence together with other evidence as to the health, constitution and habits of plaintiff, was incomplete and erroneous. Harris v. Atlantic Greyhound Corp., 243 N.C. 346 , 90 S.E.2d 710, 1956 N.C. LEXIS 351 (1956).

CASE NOTES

This section was intended to apply strictly to annuities, and therefore, in an action to recover damages for injuries causing death, it was error to permit the jury to consider the provisions thereof for the purpose of ascertaining the present value of the intestate’s life. Poe v. Raleigh & A. Air Line R.R., 141 N.C. 525 , 54 S.E. 406, 1906 N.C. LEXIS 136 (1906). See Brown v. Lipe, 210 N.C. 199 , 185 S.E. 681, 1936 N.C. LEXIS 55 (1936).

Interest Rate. —

Annuities, under this section, must be computed at 4.5% and not at 6%. Smith v. Smith, 223 N.C. 433 , 27 S.E.2d 137, 1943 N.C. LEXIS 293 (1943).

As to the value of a widow’s annuity, see Brenkworth v. Lanier, 260 N.C. 279 , 132 S.E.2d 623, 1963 N.C. LEXIS 693 (1963).

Valuation of Life Estate. —

Bankruptcy court’s valuation of the debtor’s life estate was consistent with G.S. 8-47 ; the bankruptcy court calculated the present cash value of the life estate by multiplying the $130,010 sale price for the property by 6%, resulting in the annual value of $7,800.60 for the life estate, which amount was multiplied by $13.765, resulting in a value of the life estate of $107,375.25. Mitchell v. Parker, 2011 U.S. Dist. LEXIS 85157 (W.D.N.C. Aug. 2, 2011), aff'd, 466 Fed. Appx. 176, 2012 U.S. App. LEXIS 3243 (4th Cir. 2012).

CASE NOTES

This section abolishes the common-law rule which prevented a party who was interested in the result of the verdict and judgment from appearing as a witness. A similar enactment will be found in the statutes of practically all the states. The trend of the development of the rules of evidence has been to remove personal disqualification to testify. State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948).

Section Construed with Former Dead Man’s Statute. —

The provisions of this section must be considered in the light of those contained in former G.S. 8-51 (see now G.S. 8C-1 , Rule 601(c)) which place certain restrictions on the general rule embodied in this section. In other words, the provisions of former G.S. 8-51 formed exceptions to this section, and took them from the operation of its principle, leaving the parties falling within these exceptions to stand upon the same footing as they did prior to the enactment of this section. See Charlotte Oil & Fertilizer Co. v. Rippy, 124 N.C. 643 , 32 S.E. 980, 1899 N.C. LEXIS 105 (1899).

And with G.S. 8-50 and G.S. 8-56 . —

The construction of this section should also be in connection with the provisions of G.S. 8-50 and 8-56, since they all relate to the same subject, i.e., the competency of the witnesses. Powell v. Strickland, 163 N.C. 393 , 79 S.E. 872, 1913 N.C. LEXIS 187 (1913).

Burden on Challenger to Show Disqualification. —

The general rule established by this section and G.S. 8-50 is that no person offered as a witness shall be excluded on account of interest or because a party to the action, except as otherwise provided. Hence, it is incumbent upon one who challenges the competency of the witness to show disqualification. Sanderson v. Paul, 235 N.C. 56 , 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952).

Party Testifying in Own Behalf. —

The provisions of this section make it permissible for a party to testify in his own behalf. State v. McIntosh, 64 N.C. 607 , 1870 N.C. LEXIS 196 (1870); Autry v. Floyd, 127 N.C. 186 , 37 S.E. 208, 1900 N.C. LEXIS 50 (1900).

Legatee Under Will as Witness. —

Under this section, removing the disqualification on account of interest, the widow of the testator, who was named as a legatee and devisee in a will, was a competent witness to prove the fact that the script propounded was found among the papers of the deceased. Nor would the last provision of the section prevent the widow from testifying, since this provision applies only to attesting witnesses to the execution of a will. Cornelius v. Brawley, 109 N.C. 542 , 14 S.E. 78, 1891 N.C. LEXIS 263 (1891).

Beneficiary Under Holographic Will. —

Under this section and G.S. 8-50 , one who is a beneficiary under a holographic will may testify to such competent relevant and material facts as tend to establish it as a valid will without rendering void the benefits he is to receive thereunder. It is otherwise as to an attesting witness of a will that the statute requires to be attested by witness thereto. In re Will of Westfeldt, 188 N.C. 702 , 125 S.E. 531, 1924 N.C. LEXIS 154 (1924).

Executor as Witness. —

An executor, named in a will, was a competent witness to testify as to the existence, probate and registration of a will, he being rendered competent by this section, and he was not disqualified by former G.S. 8-51 (see now G.S. 8C-1 , Rule 601(c)), as to transactions occurring after the death of the testator, as they could in no sense be considered as transactions between the witness and the testator. Cox v. Beaufort County Lumber Co., 124 N.C. 78 , 32 S.E. 381, 1899 N.C. LEXIS 20 (1899).

The widow of a deceased vendor, who was present at the sale of a mule by her husband to the plaintiff, was a competent witness under this section, and was not excluded under former G.S. 8-51 (see now G.S. 8C-1 , Rule 601(c)), as she was not a party to the action and had no interest in the same. Little v. Ratliff, 126 N.C. 262 , 35 S.E. 469, 1900 N.C. LEXIS 227 (1900).

Mortgagee. —

Where he is not excluded under the provisions of former G.S. 8-51 (see now G.S. 8C-1 , Rule 601(c)), the mortgagee in a chattel mortgage is competent, as a subscribing witness thereto, to prove its execution for admission to probate, inasmuch as this section removes the disqualification formerly attaching to witnesses having an interest. Clark v. Hodge, 116 N.C. 761 , 21 S.E. 562, 1895 N.C. LEXIS 276 (1895).

Fornication and Adultery. —

In a trial for fornication and adultery a former defendant as to whom a nolle prosequi had been entered was a competent witness against the other defendant. State v. Phipps, 76 N.C. 203 , 1877 N.C. LEXIS 206 (1877).

CASE NOTES

Evidence of Spouse’s Conduct. —

This section, G.S. 8-49 , and former G.S. 8-51 (see now G.S. 8C-1 , Rule 601(c)) should be construed together, and thus construed, they do not prohibit the evidence of the husband as to the conduct of his wife, where she is not a party, in his action against another for damages for criminal conversation with his wife and the alienation of her affections. Powell v. Strickland, 163 N.C. 393 , 79 S.E. 872, 1913 N.C. LEXIS 187 (1913).

Same — Introduction Prohibited by Common Law. —

At common law, neither the husband nor the wife is allowed to prove the fact of access or nonaccess; and as such rule is founded “upon decency, morality and public policy,” it is not changed by this section, allowing parties to testify in their own behalf. Boykin v. Boykin, 70 N.C. 262 , 1874 N.C. LEXIS 203 (1874).

Testifying Against Codefendant. —

A defendant in a criminal case is, under this section, competent and compellable to testify for or against a codefendant, provided his testimony does not incriminate himself. State v. Smith, 86 N.C. 705 , 1882 N.C. LEXIS 279 (1882); State v. Medley, 178 N.C. 710 , 100 S.E. 591, 1919 N.C. LEXIS 542 (1919).

Same — Practice Not Commendable. —

The practice of sending codefendants to the grand jury to testify against each other, while allowable, is not commended. State v. Frizell, 111 N.C. 722 , 16 S.E. 409, 1892 N.C. LEXIS 254 (1892).

Consolidation and Testimony of Codefendant. —

Where the testimony of codefendant would have carried equal force if it had been received without an order of consolidation, there was no abuse of discretion in the trial judge’s order consolidating cases for trial. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).

Defendant’s contention that consolidation of cases resulted in prejudicial error to him because he was deprived of his right to open and close the jury arguments when his codefendant elected to testify was without merit. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).

Testimony of an Accomplice. —

An accomplice could not testify on direct examination to facts tending to incriminate defendant and at the same time refuse to answer questions on cross-examination relating to matters embraced in his examination-in-chief, and where he refused to answer relevant questions on cross-examination on the ground that his answers might tend to incriminate him, it was error for the court to refuse defendant’s motion that his testimony-in-chief be stricken from the record, the refusal to answer the questions on cross-examination rendering the testimony-in-chief incompetent. State v. Perry, 210 N.C. 796 , 188 S.E. 639, 1936 N.C. LEXIS 229 (1936).

It is well established that an accomplice is always a competent witness. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).

Fact that accomplice’s testimony is usually induced by promise of or hope for leniency goes only to his credibility as a witness, and not to his competency as a witness. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).

Instructing Witness Not to Incriminate Himself. —

In an indictment for an affray, it was not error for the presiding judge to caution the witness (a defendant) before the counsel for the other defendant cross-examined him, that he need not tell anything to incriminate himself. State v. Weaver, 93 N.C. 595 , 1885 N.C. LEXIS 128 (1885).

CASE NOTES

Editor’s Note. —

Many of the cases in the following annotations were decided under this section as it stood before the 1975 amendment, which made the results of a blood test, not in conflict with other blood tests, conclusive rather than merely competent evidence that defendant could not be the father of the child, and prior to the 1993 amendment, which provided for the admissibility of a certified report of the results of a paternity blood test or genetic marker test without additional expert testimony, and assigned weight to such evidence according to the probability of parentage.

Scope of Section. —

This section authorizes blood tests only upon motion made by either the State or the defendant, and the court involved in the matter must order the test. The statute does not authorize the indiscriminate taking of blood, nor does it allow the performance of a blood test by anyone than a trained technician or anywhere other than a medical facility. State v. Mauney, 106 N.C. App. 26, 415 S.E.2d 208, 1992 N.C. App. LEXIS 333 (1992).

This section does not confer standing upon an alleged natural parent to compel a presumed father to submit to a blood test to determine the paternity of a child born during the marriage of the presumed father to the natural mother. Johnson v. Johnson, 343 N.C. 114 , 468 S.E.2d 59, 1996 N.C. LEXIS 169 (1996).

Former subdivision (b)(1) of this section (see now subsection (b1)) was applicable to civil actions only; the statute which applies to criminal actions is subdivision (a)(1). State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, 1991 N.C. App. LEXIS 305 (1991).

The provisions of this section were intended to apply alike in civil and criminal actions except in those particulars involving procedural differences. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

But Only in Actions in Which Question of Paternity Arises. —

This section requires blood-grouping tests only in actions in which the question of paternity arises. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. Williams v. Holland, 39 N.C. App. 141, 249 S.E.2d 821, 1978 N.C. App. LEXIS 2349 (1978).

Section Not Applicable in Rape Case. —

This section applies only where “the question of parentage arises.” A question of parentage is not central to a charge of rape. Thus, the commands of this section are inapplicable in a rape case. State v. Jackson, 320 N.C. 452 , 358 S.E.2d 679, 1987 N.C. LEXIS 2295 (1987).

For discussion of calculation of a “probability of paternity” from blood test results, see Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, 1985 N.C. App. LEXIS 3444 , aff'd, 314 N.C. 660 , 335 S.E.2d 897, 1985 N.C. LEXIS 2090 (1985).

Weight Given Tests Is Legislative Question. —

It is for the General Assembly to decide the question of the weight to be given blood-grouping tests. State v. Camp, 286 N.C. 148 , 209 S.E.2d 754, 1974 N.C. LEXIS 1187 (1974).

Weight Given Blood Tests Which Do Not Exclude Putative Father. —

The legislature has not mandated the weight to be given to blood tests which do not exclude the putative father. The jury is entitled to consider this evidence and accord it the weight deemed appropriate. Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Results of Tests Are Competent to Rebut Any Presumption of Paternity. —

In both criminal and civil actions in which the question of paternity arises, the results of blood-grouping tests must be admitted in evidence when offered by a duly licensed practicing physician or other qualified person, regardless of any presumptions with respect to paternity, and such evidence shall be competent to rebut any presumptions of paternity. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

To permit the marital presumption to be rebutted absent a determination that another man is the father of the child would illegitimate the child in violation of the public policy of this state. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720, 1996 N.C. App. LEXIS 73 (1996).

Including Common-Law Presumption of Legitimacy. —

Assuming blood-grouping tests are made and offered in evidence by qualified persons, the results thereof, if they tend to exclude defendant as the father of the child, may be offered in evidence to rebut the common-law presumption of legitimacy. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Tests Cannot Prove Paternity. —

The value of serological blood tests, when made and interpreted by specifically qualified technicians, using approved testing procedures and reagents of standard strength, is now generally recognized. Such tests, however, can never prove the paternity of any individual, and they cannot always exclude the possibility. Nevertheless, in a significant number of cases, they can disprove it. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

Tests Conclusive Only in Excluding Putative Father. —

The blood-grouping test results are conclusive only in excluding the putative father. The results might show him to have a blood type which the father of the child must have had; but this only indicates that of all the people of that blood type or group, he, as well as anyone else with that blood type or group, could have been the father of the child. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

The marital presumption ordinarily may be rebutted by evidence of blood grouping tests excluding a putative father as the biological father. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720, 1996 N.C. App. LEXIS 73 (1996).

Inconsistent Results Allowed. —

This statute simply provides that when test results are consistent and show the defendant not to be the father of the child, the jury is required to return a special verdict of not guilty. Nothing in this statute prohibits the admission into evidence of inconsistent results. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, 1991 N.C. App. LEXIS 305 (1991).

Varying Results of Blood Tests. —

Court did not err by admitting the result of blood tests showing the probability of defendant’s fathering the child to be 99.54%, even though it varied greatly from the result of blood tests performed by another laboratory showing the probability of paternity to be only 93.75%. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, 1991 N.C. App. LEXIS 305 (1991).

Effect Where Principle of Res Judicata Bars Issue of Paternity. —

Where the defendant in an action to recover arrearages for child support was barred by principles of res judicata from putting paternity in issue as the result of a prior adjudication of paternity in a Nevada divorce action in which the Nevada court had in personam jurisdiction over the defendant, the trial court erred in allowing the defendant’s motion for blood-grouping tests. Williams v. Holland, 39 N.C. App. 141, 249 S.E.2d 821, 1978 N.C. App. LEXIS 2349 (1978).

Before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. If a defendant is barred by res judicata or estoppel from raising the issue of paternity, the statutorily imposed obligation of the court to order that the parties submit to blood-grouping tests never arises, and it is error for the court to enter such order. Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22, 1981 N.C. App. LEXIS 2547 (1981).

Default Judgment Barred Right to a Blood Test. —

Because a default judgment conclusively established defendant’s paternity, defendant having failed to appeal the default judgment or make a timely motion under Rule 59(a)(8) of the Rules of Civil Procedure, res judicata barred the granting of defendant’s motion for blood testing. Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 450 S.E.2d 554, 1994 N.C. App. LEXIS 1213 (1994).

The defendant was not barred from contesting paternity pursuant to this section where the issue had not been litigated and where the defendant never formally acknowledged paternity in the manner prescribed by G.S. 110-132 ; furthermore, the defendant was not required to present evidence that another man had acknowledged paternity in order for the court to authorize the test. Ambrose v. Ambrose, 140 N.C. App. 545, 536 S.E.2d 855, 2000 N.C. App. LEXIS 1213 (2000).

Defendant Has Right to Blood Test. —

There can be no doubt that a defendant’s right to a blood test to determine parentage is a substantial right and that, upon defendant’s motion, the court must order the test when it is possible to do so. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

A defendant is entitled in a proceeding under the Uniform Reciprocal Enforcement of Support Act to a blood-grouping test pursuant to this section where the issue of paternity is raised and, upon timely motion, is entitled to have the jury pass on the issue of paternity. Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193, 1976 N.C. App. LEXIS 2139 (1976), aff'd, 292 N.C. 192 , 232 S.E.2d 687, 1977 N.C. LEXIS 1052 (1977).

The 1975 amendment to this section amplified the importance of the right to a blood-grouping test under G.S. 49-7 . State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523, 1976 N.C. App. LEXIS 1921 (1976).

Indigent defendant’s right to a free blood-grouping test may be rendered meaningless without counsel to advise him of his right to demand such a test, to explain the test’s significance, to ensure that the test is properly administered and to ensure that the results are properly admitted into evidence. Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765, 1981 N.C. App. LEXIS 2741 (1981), modified, 306 N.C. 333 , 293 S.E.2d 95, 1982 N.C. LEXIS 1441 (1982).

The only areas in which the results of blood grouping tests should be open to attack are in the method of testing or in the qualifications of the persons performing the tests. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

Personal Performance of Test by Witness Not Required. —

This section allows testimony of paternity test results without requiring personal performance of the test. State v. Green, 55 N.C. App. 255, 284 S.E.2d 688, 1981 N.C. App. LEXIS 2998 (1981).

Tests May Not Be Accurate Until Infant Six Months Old. —

In a few cases it has been found that an infant’s blood group cannot be established immediately after birth. However, by the age of six months, an accurate determination can always be had. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

When the death of the child makes a blood test impossible the situation is analogous to that which occurs when an eyewitness to events constituting the basis for an indictment dies before the accused has interviewed him or taken his deposition. It would hardly be suggested that to try the defendant after the death of that witness would deprive him of due process and that therefore the prosecution must be dismissed. State v. Fowler, 277 N.C. 305 , 177 S.E.2d 385, 1970 N.C. LEXIS 599 (1970).

Tests May Be Ordered in Action for Alimony and Child Support Where Husband Denies Paternity. —

In plaintiff-wife’s action for alimony, alimony pendente lite and child support, defendant-husband was entitled under the section to an order for a blood grouping test where plaintiff alleged and defendant denied that he was the father of a child born to plaintiff during the subsistence of the marriage. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

And Results of Test May Also Be Evidence of Adultery. —

While there is no authority for blood-grouping tests unless an issue of paternity is raised, in a case in which the issue of paternity is raised, the results of the blood-grouping tests, if they exclude defendant as the father of a child admittedly born during the subsistence of the marriage, also would be evidence of adultery. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Finding of Paternity Held Erroneous. —

In suit in which wife sought alimony, temporary alimony, custody of children, child support and attorney’s fees, and husband filed an answer denying that he was the father of the youngest child, in light of the district judge’s findings that scientific evidence demonstrated that husband was sterile at the time the child was conceived, and that if husband was sterile, the blood grouping probability of paternity (set at 95.98%) was reduced to 0%, judge’s conclusion that husband fathered the child was erroneous. Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, 1985 N.C. App. LEXIS 3444 , aff'd, 314 N.C. 660 , 335 S.E.2d 897, 1985 N.C. LEXIS 2090 (1985).

Evidentiary Requirements Not Met. —

Blood test at issue did not qualify for admissibility under the relaxed evidentiary requirements of subdivision (b1) and the trial court did not err by refusing to allow it into evidence. Catawba County ex rel. Child Support Enforcement Agency ex rel. Kenworthy v. Khatod, 125 N.C. App. 131, 479 S.E.2d 270, 1997 N.C. App. LEXIS 15 (1997).

The trial court properly admitted the presumption of paternity relevant to genetic marker testing set forth in this section although the record contained no ruling as to defendant’s written objection to the admission nor any stipulation to admit the evidence, contrary to the court’s assertion that the parties did so stipulate; where expert testimony indicated that paternity by defendant was a factual possibility, it would have been error to assign 0 as the prior probability of paternity. Brown v. Smith, 137 N.C. App. 160, 526 S.E.2d 686, 2000 N.C. App. LEXIS 253 (2000).

Chain of Custody. —

It was prejudicial error for the trial court to admit other man’s blood test results where the chain of custody was not properly established. Rockingham County Dep't of Social Servs. ex rel. Shaffer v. Shaffer, 126 N.C. App. 197, 484 S.E.2d 415, 1997 N.C. App. LEXIS 341 (1997).

If a paternity blood test is not ordered by the trial court upon motion by a party, the standard in G.S. 8-50.1(b1) will not apply and the party seeking to admit the test must present independent evidence of the chain of custody. Where no sworn affidavits or witness testimony established that specimen’s were drawn from a putative father and the minor child, where no testimony was submitted from the person who collected the samples, and where no testimony or an affidavit was presented from the individual who performed the DNA test to confirm that the specimen was transferred within the laboratory without being disturbed, it was error to admit the results of the test and a determination of parentage was reversed. Columbus County v. Davis, 163 N.C. App. 64, 592 S.E.2d 225, 2004 N.C. App. LEXIS 244 (2004).

Verification of Chain of Custody. —

Where there was no evidence that the chain of custody of blood tests relied on were verified as required by subsection (b1) even though the chain of custody was certified there was not sufficient compliance with this section; thus, blood tests were erroneously admitted. Rockingham County Dep't of Social Servs. ex rel. Shaffer v. Shaffer, 126 N.C. App. 197, 484 S.E.2d 415, 1997 N.C. App. LEXIS 341 (1997).

Trial court erred in precluding the alleged father from participating in the termination of parental rights hearing after a paternity test indicated that there was a zero possibility that he was the child’s father because the presumption created by the paternity test was nevertheless rebuttable. In re L.D.B., 168 N.C. App. 206, 617 S.E.2d 288, 2005 N.C. App. LEXIS 165 (2005).

Trial court erred by failing to order a mother, a minor child, and an alleged father to submit to a paternity test upon the motion of the mother pursuant to G.S. 8-50.1(b1) because there was no prior litigation of paternity and the mother contested the paternity of the father in a child custody dispute. Helms v. Landry, 194 N.C. App. 787, 671 S.E.2d 347, 2009 N.C. App. LEXIS 7 , writ denied, 682 S.E.2d 210, 2009 N.C. LEXIS 1064 (N.C. 2009), rev'd, 363 N.C. 738 , 686 S.E.2d 674, 2009 N.C. LEXIS 1290 (2009).

Presumption Rebutted. —

Putative father’s testimony that he did not know child’s mother and did not have sexual relations was clear, cogent, and convincing evidence sufficient to rebut the presumption created by the 99.96% probability of paternity test. Nash County Dep't of Social Servs. ex rel. Child Support Enforcement Agency ex rel. Williams v. Beamon, 126 N.C. App. 536, 485 S.E.2d 851, 1997 N.C. App. LEXIS 560 (1997).

CASE NOTES

Use of Radar as Corroboration Only. —

The General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone, and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation. State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550, 1986 N.C. App. LEXIS 2217 (1986).

Editor’s Note.

Session Laws 2003-280, s. 5, as amended by Session Laws 2005-27, made this section effective July 1, 2003, and expiring September 30, 2007.

CASE NOTES

Editor’s Note. —

The cases below were decided under this section as it read prior to amendment by Session Laws 1983 (Reg. Sess., 1984), c. 1037, s. 11.

U.S. Const., Amend. VI Not Violated by Admission of Declaration. —

Albeit a dying declaration is indubitably hearsay and the declarant is, of course, not available for cross-examination, the admission of such evidence is not a violation of U.S. Const., Amend. VI. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

General Assembly Codified Essentials of Former Law. —

“Dying declarations” by the person whose death is an issue in the case have long been admissible in North Carolina provided (1) at the time they were made the declarant was in actual danger of death; (2) he had full apprehension of the danger; (3) death did in fact ensue; and (4) declarant, if living, would be a competent witness to testify to the matter. In 1973, the General Assembly codified the essentials of those requirements in this section. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

And Case Law Requirements Are Unchanged. —

In State v. Bowden, 290 N.C. 702 , 228 S.E.2d 414 (1976), and in State v. Cousin, 291 N.C. 413 , 230 S.E.2d 518 (1976), it was noted, without deciding, that the words “no hope of recovery” in the statute might make the statutory exception to the hearsay rule more restrictive than existing case law. The Supreme Court concluded that the statutory prerequisites that the deceased must have been “conscious of approaching death and believed that there was no hope of recovery” did not change the case-law requirements that in order to be admissible the declarations of a decedent must have been “in present anticipation of death.” State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

The statutory prerequisites that the deceased must have been “conscious of approaching death and believed that there was no hope of recovery” did not change case-law requirements that in order to be admissible the declaration of a decedent must have been “in present anticipation of death.” It was enough if he “believed he was going to die.” State v. Penn, 36 N.C. App. 482, 244 S.E.2d 702, 1978 N.C. App. LEXIS 2532 (1978).

Rationale Based on Trustworthiness of Declaration. —

The rationale of this section clearly rests upon a belief in the general trustworthiness of dying declarations, rather than upon the necessity for bringing to justice the perpetrators of secret homicides. State v. Lester, 294 N.C. 220 , 240 S.E.2d 391, 1978 N.C. LEXIS 1226 (1978).

The common law and statutory requirement of “no hope of recovery” rests upon the tenet that when an individual believes death to be imminent, the ordinary motives for falsehood are absent and most powerful considerations impel him to speak the truth. The solemnity of approaching death is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

The public necessity of preventing secret homicides from going unpunished requires the preservation of dying declarations as evidence, notwithstanding the inability of the defendant to cross-examine his accuser. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

Section Expands the Admissibility of Statements. —

The overall effect of this section was to liberalize the dying declaration exception to the hearsay rule by expanding the admissibility of such statements to all civil and criminal trials. State v. Lester, 294 N.C. 220 , 240 S.E.2d 391, 1978 N.C. LEXIS 1226 (1978).

Declarant’s Death Need Not Be in Issue. —

Admissibility seems no longer to be confined to situations in which the declarant’s death is in issue, but rather extends to any situation in which the cause or circumstances of the declarant’s death may be relevant to any issue in litigation. State v. Lester, 294 N.C. 220 , 240 S.E.2d 391, 1978 N.C. LEXIS 1226 (1978).

It is not necessary that the declarant should be in the very act of dying; it is enough if he is under the apprehension of impending dissolution. Stated in simpler terms, it is enough if he believed he was going to die. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

And Test Is Not Actual Swiftness with Which Death Ensues. —

The fact that the declarant survived one week longer than the doctor had told him he might live did not affect the admissibility of his dying declarations. The test is the declarant’s belief in the nearness of death when he made the statement, not the actual swiftness with which death ensued. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declarant realized death was near, this requirement of the law is satisfied. State v. Bowden, 290 N.C. 702 , 228 S.E.2d 414, 1976 N.C. LEXIS 1176 (1976); State v. Cousin, 291 N.C. 413 , 230 S.E.2d 518, 1976 N.C. LEXIS 1000 (1976); State v. Lester, 294 N.C. 220 , 240 S.E.2d 391, 1978 N.C. LEXIS 1226 (1978); State v. Richardson, 308 N.C. 470 , 302 S.E.2d 799, 1983 N.C. LEXIS 1220 (1983).

The consciousness of approaching death may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

The party seeking admission of the out-of-court statement need not show that the declarant stated he had given up all hope of living or considered himself to be in the throes of death. All that must be shown is that the declarant believes he is going to die. This belief is best shown by his express communication to this effect. However, it is not necessary that declarant personally express his belief that he has no chance of recovery. This may be shown by the circumstances. State v. Hamlette, 302 N.C. 490 , 276 S.E.2d 338, 1981 N.C. LEXIS 1060 (1981).

The declaration must have been voluntary and made when the declarant was conscious of approaching death and without hope for recovery. State v. Bowden, 290 N.C. 702 , 228 S.E.2d 414, 1976 N.C. LEXIS 1176 (1976); State v. Cousin, 291 N.C. 413 , 230 S.E.2d 518, 1976 N.C. LEXIS 1000 (1976).

The admissibility of a declaration as a dying declaration is a question to be determined by the trial judge, and when the judge admits the declaration, his ruling is reviewable only to determine whether there is evidence tending to show facts essential to support it. State v. Bowden, 290 N.C. 702 , 228 S.E.2d 414, 1976 N.C. LEXIS 1176 (1976); State v. Cousin, 291 N.C. 413 , 230 S.E.2d 518, 1976 N.C. LEXIS 1000 (1976); State v. Penn, 36 N.C. App. 482, 244 S.E.2d 702, 1978 N.C. App. LEXIS 2532 (1978).

The admissibility of dying declarations is a decision for the trial judge, and review by the Supreme Court is limited to the narrow question of whether there is any evidence tending to show the factual prerequisites to admissibility. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978); State v. Richardson, 308 N.C. 470 , 302 S.E.2d 799, 1983 N.C. LEXIS 1220 (1983).

A dying declaration is not conclusive, its weight and credibility being for the jury to determine. It may be impeached in the same manner as any other sworn statement. State v. Harding, 291 N.C. 223 , 230 S.E.2d 397, 1976 N.C. LEXIS 968 (1976).

Once admitted into evidence, a dying declaration is no different from other testimony. The extent of its credibility is a matter for the jury and it is subject to impeachment or corroboration upon the same grounds and in the same manner as the testimony of a sworn witness. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

Declarations Made in Response to Leading Questions. —

The fact that the dying declarations were made in response to leading questions did not require their exclusion from evidence. The qualifying questions were not perfunctory to be used in the event the dying man took a turn for the worse, but were clearly appropriate in light of the declarant’s severe injuries and inability to speak, and the declarations were as nearly spontaneous as declarations by one under the circumstances could be. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

Impeachment of Dying Declaration. —

The impeachment of a dying declaration must proceed under the ordinary rules of evidence. Under these rules, for the purpose of impeachment, a party is entitled to introduce evidence only of the general reputation or character of the witness. Therefore, the courts do not permit the witness to be impeached by independent evidence of particular misconduct. Specifically, this means that a witness may not be impeached by record evidence of his conviction of crime. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

Evidence of the general character or reputation of a decedent is relevant on the issue of his dying declaration and is admissible to impeach or to sustain the declaration. This is an exception to the usual rule that evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide. State v. Stevens, 295 N.C. 21 , 243 S.E.2d 771, 1978 N.C. LEXIS 943 (1978).

CASE NOTES

Analysis

• I. General Consideration
• II. Nature and Scope of Privilege
• III. Waiver
• IV. Compelled Disclosure

CASE NOTES

This section is read in pari materia with the Juvenile Code (G.S. 7A-516, et seq.), in particular, G.S. 7A-551. State v. Efird, 309 N.C. 802 , 309 S.E.2d 228, 1983 N.C. LEXIS 1462 (1983); State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Section applies irrespective of when the medical information was obtained. —

G.S. 7A-551 [see now G.S. 7B-310 ] and this section plainly facilitate the prosecution of child abusers, without regard to whether the medical information was obtained before or after the accused was officially charged with a crime. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Evidence That Defendant Sought Treatment of Sexually Transmitted Disease. —

Any privilege which defendant, who sought treatment of a sexually transmittable disease after he had been charged with sexual crimes against his children and taken into custody, might have been entitled to by G.S. 8-53 was nullified by this section and G.S. 7A-551 [see now G.S. 7B-310 ]. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Evidence That Defendant in Sexual Abuse Case Had Gonorrhea. —

Unequivocal evidence that a seven-year old girl had been sexually abused would invoke this section and G.S. 7A-551 [see now G.S. 7B-310 ]. Therefore, medical records maintained by a county health department, revealing that the defendant had been treated for gonorrhea, were admissible as evidence with regard to the cause or source of the child’s disease. State v. Efird, 309 N.C. 802 , 309 S.E.2d 228, 1983 N.C. LEXIS 1462 (1983).

CASE NOTES

Privilege Is Statutory. —

Apart from this statute, there is no privilege with reference to communications between a clergyman or other spiritual advisor and his communicants or others who seek his advice and comfort. In re Williams, 269 N.C. 68 , 152 S.E.2d 317, 1967 N.C. LEXIS 1027 , cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362, 1967 U.S. LEXIS 1202 (1967) (commented on in 45 N.C.L. Rev. 863, 884, 924 (1967)) .

Two Statutory Requirements. —

For the clergyman’s privilege to apply the defendant must be seeking the counsel and advice of his minister, and the information must be entrusted to the minister as a confidential communication. State v. Andrews, 131 N.C. App. 370, 507 S.E.2d 305, 1998 N.C. App. LEXIS 1356 (1998).

Expectation of Trust and Confidentiality in Covered Communications. —

The legislature’s excision of the term “confidential” from the current version of this statute was clearly not intended to broaden application of the privilege to all genre of general conversation with one’s spiritual mentor, but merely to broaden the range of advisory and counseling practices to which it applies. The expectation of trust and confidentiality inherent in communications covered under the prior statute was not affected by the legislature’s modification in 1967 of that statute’s wording. State v. West, 317 N.C. 219 , 345 S.E.2d 186, 1986 N.C. LEXIS 2777 (1986).

No Discretion in Court to Compel Disclosure When Privilege Exists. —

The 1967 amendment to this section revealed the General Assembly’s intent to remove from the trial courts any discretion to compel disclosure when the clergy-communicant’s privilege exists. State v. Barber, 317 N.C. 502 , 346 S.E.2d 441, 1986 N.C. LEXIS 2406 (1986).

Minister Related to Defendant. —

In a criminal trial, the trial court erred in allowing the mother of the victim, who was also the defendant’s aunt and a minister, to testify with respect to statements made by defendant when she visited defendant while he was in jail, as this witness was acting at least in part in her professional capacity as a minister. State v. Jackson, 77 N.C. App. 832, 336 S.E.2d 437, 1985 N.C. App. LEXIS 4364 (1985).

Limited Waiver Was Proper. —

Trial court did not err by allowing a husband a limited waiver of the clergy-communicant privilege to allow examination of a minister regarding the husband’s marriage counseling sessions with his wife during one month, but refusing to allow him to elicit testimony from the minister regarding other counseling sessions because the clergy-communicant privilege was absolute; further, the trial court reviewed the minister’s notes and properly found that the notes contained no references during the time frames specified by defendant that established an earlier “discovery date” by the husband of the affair that was the basis of the underlying criminal conversation lawsuit. Misenheimer v. Burris, 183 N.C. App. 408, 644 S.E.2d 611, 2007 N.C. App. LEXIS 1170 (2007).

Privilege Held Inapplicable. —

This section was not applicable where the person to whom defendant confided was not an ordained or licensed minister of any church and did not hold any office in any church, although he had preached from the pulpit several times and had taught Sunday school, and where the court found that the defendant did not make statements while seeking spiritual comfort and guidance, but that they were conversational statements in which he confided to a friend. State v. Barber, 317 N.C. 502 , 346 S.E.2d 441, 1986 N.C. LEXIS 2406 (1986).

Where preacher, who had told defendant’s wife the day before that defendant needed help and that he was going to try to help him, sought out defendant for that purpose, and meeting attended by defendant, preacher and the preacher’s wife was not one in which defendant had any reason to expect confidentiality, as the conversation appeared to be one in which the preacher was offering his advice and counsel, but not one in which defendant’s admissions were entrusted to him in pursuit of such counsel and advice, this section did not apply. State v. West, 317 N.C. 219 , 345 S.E.2d 186, 1986 N.C. LEXIS 2777 (1986).

Clergy-communicant privilege was not applicable to statements defendant made in the presence of a church elder who was not an ordained minister or clergyman. State v. Pulley, 180 N.C. App. 54, 636 S.E.2d 231, 2006 N.C. App. LEXIS 2242 (2006).

CASE NOTES

This section does not require an explicit finding of the necessity to compel discovery of privileged information, but rather, such a finding is implicit in the admission of such evidence. State v. Williams, 350 N.C. 1 , 510 S.E.2d 626, 1999 N.C. LEXIS 5 , cert. denied, 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162, 1999 U.S. LEXIS 5936 (1999).

G.S. 8-53 and this section are to be read in pari materia. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, 1979 N.C. App. LEXIS 2825 , cert. denied, 298 N.C. 297 , 259 S.E.2d 298, 1979 N.C. LEXIS 1586 (1979).

Thus, Disclosure May Be Compelled Prior to Trial or Filing of Charges. —

Construing G.S. 8-53 and this section so as to give effect to the obvious intention of the legislature as manifested in the entire act and other acts in pari materia, the language of both of these sections is sufficient to allow the trial court to compel disclosure prior to trial and prior to the filing of criminal charges when such action is necessary to the exercise of its implied or inherent powers to provide for the proper administration of justice. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, 1979 N.C. App. LEXIS 2825 , cert. denied, 298 N.C. 297 , 259 S.E.2d 298, 1979 N.C. LEXIS 1586 (1979).

This section as written favors a policy of nondisclosure. Flora v. Hamilton, 81 F.R.D. 576, 1978 U.S. Dist. LEXIS 14610 (M.D.N.C. 1978).

But judges should not hesitate where it appears to them that disclosure is necessary in order that the truth be known and justice done. Flora v. Hamilton, 81 F.R.D. 576, 1978 U.S. Dist. LEXIS 14610 (M.D.N.C. 1978).

Testimony Proper Where No Privilege Existed. —

Where defendant to a charge of first-degree sexual offense telephoned a clinical psychologist and made an appointment, but doctor recognized a conflict of interest because she was also treating defendant’s wife and stepdaughters, doctor telephoned defendant to refer him to another psychologist, and defendant then stated to her that he had been seduced by his stepdaughter, the trial court, by allowing this testimony and compelling disclosure over defendant’s objection on the basis that it was “necessary to the proper administration of justice” as allowed by this section, acted properly, since under the second paragraph of this section the psychologist-patient privilege did not exist. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, 1989 N.C. App. LEXIS 207 (1989).

Applicability of Privilege to Competency Examination. —

No psychologist-client privilege is created when a defendant is examined at his request by a court-appointed psychologist for purposes of evaluating defendant’s mental status, and even if they were the court could compel disclosure if the records were “necessary to the proper administration of justice.” State v. Williams, 350 N.C. 1 , 510 S.E.2d 626, 1999 N.C. LEXIS 5 , cert. denied, 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162, 1999 U.S. LEXIS 5936 (1999).

Authority to Compel Evidence. —

It was not error for a trial court to admit certain evidence in a child neglect and dependency case that violated the mother’s psychologist-patient privilege; under G.S. 8-53.3 , the court had the authority to compel disclosure of otherwise privileged information if, in his or her opinion, it was necessary to a proper administration of justice, and the mother’s psychological condition was a major issue in the determination that her son was neglected. In re K.D., 178 N.C. App. 322, 631 S.E.2d 150, 2006 N.C. App. LEXIS 1393 (2006).

Order Compelling Disclosure Upheld. —

Trial court’s order that the marriage counselor disclose counseling session records was not erroneous in light of the state’s theory of the case, that defendant conspired with and aided and abetted her lover in the murder of her husband, as the testimony of the marriage counselor was surely relevant. State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655, 2007 N.C. App. LEXIS 151 (2007), cert. denied, 553 U.S. 1055, 128 S. Ct. 2473, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4216 (2008).

CASE NOTES

Standing. —

In a custody dispute, wherein a mother sought to depose the father’s therapist, a licensed clinical social worker, and sought production of certain treatment records, the therapist lacked standing to assert the social worker privilege under G.S. 8-53.7 because there was no indication the husband, as the patient, raised any objection to the therapist’s testimony or the production of documents; the privilege belonged to the husband and his failure to object constituted an implied waiver of the privilege. Mosteller v. Stiltner, 221 N.C. App. 486, 727 S.E.2d 601, 2012 N.C. App. LEXIS 811 (2012).

Editor’s Note.

Session Laws 2019-240, s. 3(k), provides: “The Codifier of Rules shall make any conforming rule changes necessary to reflect the name changes made by this act.”

Effect of Amendments.

Session Laws 2019-240, s. 3(a), effective January 1, 2020, substituted “clinical mental health” for “professional” twice.

Editor’s Note.

This section was enacted as G.S. 8-53.9 and was redesignated as G.S. 8-53.11 pursuant to directions from the Revisor of Statutes.

Legal Periodicals.

For comment, “Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King?,” see 33 Campbell L. Rev. 173 (2010).

CASE NOTES

No Appeal from Interlocutory Denial of Motion to Compel Discovery Based on Privilege. —

Appeal of a trial court’s denial of police officers’ motion to compel discovery was dismissed because the case law did not mandate appellate review of an interlocutory order upholding an G.S. 8-53.11 privilege asserted by the parties sued in a defamation case. James v. Bledsoe, 198 N.C. App. 339, 679 S.E.2d 494, 2009 N.C. App. LEXIS 1168 (2009).

Editor’s Note.

Session Laws 2019-216, s. 17, made the second sentence in the first paragraph and the first three sentences in the second paragraph of subsection (b), as added by Session Laws 2019-216, s. 1.5, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 31, effective December 1, 2015, and applicable to offenses committed on or after that date, substituted “G.S. 14-27.21, 14-27.22, 14-27.24, 14-27.25, 14-27.26, 14-27.27, 14-27.29, 14-27.30, 14-27.31, 14-27.32c for “G.S. 14-27.2, 14-27.3, 14-27.4, 14-27.5, 14-27.7, 14-27.7A” in subdivision (a)(7).

Session Laws 2019-216, s. 1.5, in subsection (b), added the second sentence in the first paragraph, and added the first three sentences in the second paragraph. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Criminalizing Coercive Control Within the Limits of Due Process,” see 70 Duke L.J. 1321 (2021).

Editor’s Note.

Session Laws 2021-22, s. 4, made this section effective May 17, 2021, and applicable to licenses granted or renewed on or after that date.

CASE NOTES

Analysis

• I. General Consideration
• II. Evidence of Defendant’s Character
• III. Cross-Examination of Defendant
  • A. Scope of Questioning
  • B. Particular Areas of Inquiry
• IV. Defendant Not Testifying
  • A. Effect
  • B. Fact Commented On
  • C. Instructions to Jury

CASE NOTES

For case upholding the constitutionality of this section, see In re Briggs, 135 N.C. 118 , 47 S.E. 403, 1904 N.C. LEXIS 16 (1904).

Witness Compellable to Testify. —

In a prosecution for gaming a witness may be compelled to testify, although his answer tends to criminate him, since he is pardoned for the offense. State v. Morgan, 133 N.C. 743 , 45 S.E. 1033, 1903 N.C. LEXIS 124 (1903).

CASE NOTES

Analysis

• I. General Consideration
• II. Confidential Communications

Editor’s Note.

Session Laws 1985 (Reg. Sess., 1986), c. 843, s. 6, initially provided that the act, which amended subsection (b), would become effective October 1, 1986, and expire October 1, 1988, but that the expiration date would not affect the term or authority of a grand jury constituted at that time. Session Laws 1987 (Reg. Sess., 1988), c. 1040, s. 1, as amended by Session Laws 1989 (Reg. Sess., 1990), c. 1039, s. 4, extended the expiration date of Session Laws 1985 (Reg. Sess., 1986), c. 843, s. 6, to October 1, 1993. Subsequently, Session Laws 1991, c. 686, s. 3, amended Session Laws 1985, c. 843, s. 6, as amended by Session Laws 1987, c. 1040, so as to delete the October 1, 1991 expiration provision. However, the 1991 amendment, which was in the coded bill drafting format set out at G.S. 120-20.1 , did not mention or take account of Session Laws 1989 (Reg. Sess., 1990), c. 1039, s. 4.

Effect of Amendments.

Session Laws 2013-198, s. 2, effective June 26, 2013, substituted “child of either spouse who is born out of wedlock or adopted or a foster child” for “illegitimate or adopted or foster child of either spouse” in subdivision (b)(5).

Legal Periodicals.

For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

For article recommending adoption of a broader privilege for spouses who do not want to testify against their husbands or wives in criminal cases, see 13 N.C. Cent. L.J. 1 (1981).

For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For comment on adverse marital testimony in criminal actions after the modification of the common-law rule by State v. Freeman, 302 N.C. 591 , 276 S.E.2d 450 (1981), see 60 N.C.L. Rev. 874 (1982).

For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For article, “An Analysis of the New North Carolina Evidence Code,” see 20 Wake Forest L. Rev. 1 (1984).

For article, “The Danger to Confidential Communications in the Mismatch Between the Fourth Amendment’s ‘Reasonable Expectation of Privacy’ and the Confidentiality of Evidentiary Privileges,” see 32 Campbell L. Rev. 147 (2010).

CASE NOTES

Analysis

• I. General Consideration
• II. To What Extent Spouse Was Competent and Compellable Witness Prior to 1983 Amendment
  • A. In General
  • B. Particular Actions
  • C. Illustrative Cases
• III. Cross-Examination of Spouse
• IV. Failure to Testify

CASE NOTES

Applicability. —

Trial court did not err by applying this section to defendant’s criminal prosecution for child sexual abuse and admitting evidence about consensual sexual activity between defendant and his wife because G.S. 8-57.1 was applicable in any judicial proceeding in which the abuse of a child was in issue. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820, 2016 N.C. App. LEXIS 1172 (2016).

CASE NOTES

Rule rendering wife incompetent to prove nonaccess has now been abrogated entirely in all civil and criminal proceedings in which paternity is at issue. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, 1981 N.C. App. LEXIS 2725 (1981).

Editor’s Note.

Session Laws 1973, c. 1286, repealed, transferred, and amended numerous sections in the General Statutes, largely relating to pretrial procedure, and enacted Chapter 15A, the Criminal Procedure Act.

CASE NOTES

Presumption of Reasonableness Created. —

G.S. 8-58.1 creates a mandatory presumption of reasonableness for a plaintiff’s medical expenses if the medical expenses are an issue and evidence is presented showing the total charges. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Total Charges Must Be Reasonable. —

When plaintiff proffers the evidence required by this section, the fact-finder must find that the total amount of the alleged medical charges is reasonable, unless defendant carries its burden of going forward by rebutting the presumed fact of reasonableness. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368, 1996 N.C. App. LEXIS 999 (1996).

Presumption Does Not Preclude Finding of Unreasonableness. —

The medical expenses presumption does not operate to preclude the jury from finding that plaintiff’s medical expenses were not reasonably necessary for the proper treatment of his injuries. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368, 1996 N.C. App. LEXIS 999 (1996).

Failure to Rebut Presumption. —

Where the injured party testified as to her injuries and treatment and introduced her medical bills, and the tortfeasor failed to introduce any evidence to rebut the presumption that the charges in the medical bills were reasonable, the reasonableness of the charges was conclusively established. McCurry v. Painter, 146 N.C. App. 547, 553 S.E.2d 698, 2001 N.C. App. LEXIS 969 (2001).

Failure to Instruct As to Statutory Presumption of Reasonableness Held Not Error. —

Trial court did not err by failing to instruct the jury that the amount of a passenger’s medical expenses was presumed reasonable under G.S. 8-58.1 , even though G.S. 8C-1 , N.C. R. Evid. 301, required the trial court to instruct the jury of a statutory presumption; all parties stipulated to the amount of the passenger’s medical charges and to the reasonableness of the charges, and any instruction regarding the medical expenses would have been redundant and confusing to the jury. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Where evidence challenged whether an injured person’s medical treatment and expenses from a collision were reasonable and necessary, and showed that the injured person had been receiving care for six years before the accident for back pain resulting from a prior collision, the trial court’s refusal to charge on the G.S. 8-58.1 presumption as to medical expenses was proper. Osetek v. Jeremiah, 174 N.C. App. 438, 621 S.E.2d 202, 2005 N.C. App. LEXIS 2489 (2005), aff'd, 360 N.C. 471 , 628 S.E.2d 760, 2006 N.C. LEXIS 39 (2006).

Editor’s Note.

Session Laws 2005-276, s. 15.7(c), as amended by Session Laws 2011-19, s. 5, provides: “Except as provided otherwise by this subsection, the Department of Justice shall hire only nonsworn personnel to fill vacant positions in the North Carolina State Crime Laboratory. A position may be filled with a sworn agent in any of the following circumstances: (i) the position is a promotion for a sworn agent who was employed at the State Crime Laboratory prior to July 1, 2005, (ii) the position is a forensic drug chemist position that has as a primary duty ‘responding to clandestine methamphetamine laboratories,’ or (iii) the position is a forensic impressions analyst position that has as a primary duty ‘responding to clandestine methamphetamine laboratories.’ ”

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”

Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”

Session Laws 2005-276, s. 46.5 is a severability clause.

Session Laws 2011-19, s. 1, provides: “This act shall be known as ‘The Forensic Sciences Act of 2011.’ ”

Session Laws 2011-19, s. 3, provides: “The State Bureau of Investigation (SBI) shall encourage and seek collaborative opportunities and grant funds for research programs, in association, whenever possible, with the university system or independent nationally recognized forensic institutions, on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analysis are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with the North Carolina Forensic Sciences Advisory Board, the North Carolina State Crime Laboratory should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the extent possible, potential bias and sources of human error in forensic science. These standard operating procedures should apply to all forensic analyses that may be used in litigation.”

Session Laws 2011-19, s. 4, as amended by Session Laws 2011-307, s. 8, and as amended by Session Laws 2012-168, s. 6.1, provides: “Forensic Scientists I, II, and III, forensic science supervisors, and forensic scientist managers at the State Crime Laboratory shall be required to obtain individual certification consistent with international and ISO standards within 18 months of the date the scientist becomes eligible to seek certification according to the standards of the certifying entity or by January 1, 2013, or as soon as practicable after that date unless no certification is available. All such forensic scientists shall have access to the certification process.”

Session Laws 2011-19, s. 11, as amended by Session Laws 2011-307, s. 9, as amended by Session Laws 2012-168, s. 6, and as amended by Session Laws 2013-338, s. 1, provides: “Sections 1 through 5 and Sections 9 through 11 are effective when this act becomes law [March 31, 2011], and Section 6 becomes effective July 1, 2011. Sections 7 and 8 of this act are effective when they become law; however, until July 1, 2016, the provisions of those sections shall apply only to the North Carolina State Crime Laboratory, and on or after July 1, 2016, the provisions of Sections 7 and 8 shall apply to all laboratories conducting forensic or chemical analysis for admission in the courts of this State. Nothing in this act is intended to amend or modify either the statutory or common law applicable to discovery in criminal cases which was applicable prior to the effective date of this act. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-180, s. 16.17(a), provides: “The General Assembly finds all of the following:

“(1) All criminal defendants have the right to court proceedings free from unreasonable delay, a right that is in jeopardy due to a perpetual district court case backlog, one which has been exacerbated by the COVID-19 pandemic.

“(2) All criminal defendants have the right to court proceedings free from unreasonable delay, a right that is jeopardized when a district court case backlog exists.

“(3) The North Carolina court system is bifurcated into the district and superior courts, and due to this bifurcation, the district courts function essentially as a preliminary proceeding that assures that the prosecution of a criminal defendant proceeds without the unreasonable delay that would be unavoidable if the district courts did not exist.

“(4) The bifurcation of the North Carolina court system provides a criminal defendant with the unique opportunity to a "second bite of the apple" in the defendant's case.

“(5) In superior court a defendant may exercise the defendant's right to a trial by jury, along with other rights, the exercise of which is unavailable in district court.

“(6) The legal protections from being placed twice in jeopardy for the same conduct preclude the State from appealing an unfavorable outcome at trial in district court.

“(7) A criminal defendant in a case before the district court may request, prior to trial, to have the case transferred to the superior court and may appeal to the superior court for a trial de novo following a final disposition in district court, retaining all rights that had previously been afforded the criminal defendant in district court.

“(8) Though preliminary in nature, a district court can issue a final and binding disposition in a case before it.

“(9) In a criminal proceeding in district court, the finder of fact is the district court judge presiding over the proceeding, who is legally trained to weigh the credibility, relevance, and veracity of evidence, including witness testimony.

“(10) Simultaneous, two-way audio and video remote testimony in real time using state of the art technology allows a defendant to observe and cross-examine a witness, a district court judge to observe and question a witness to weigh the credibility and veracity of the witness's testimony, and a witness to observe a defendant against whom the witness is testifying.

“(11) A witness in any court proceeding is one who, being duly sworn or affirmed, testifies as to the witness's knowledge of specific facts relevant to the case for which the witness testifies.

“(12) A forensic or chemical analyst, and each person in the chain of custody of evidence produced by the analyst, does not play a role in initiating a criminal charge against a criminal defendant or in deciding whether or not to prosecute a criminal defendant.

“(13) The testimony of a forensic or chemical analyst is based upon objective, scientifically based testing that allows the analyst to reach dispassionate conclusions that may be presumed reliable and trustworthy.

“(14) The testimony of a witness called to establish the chain of custody of evidence is not adversarial in nature and merely conveys the fact of a ministerial function performed by the witness in the course of the witness's work.

“(15) In order to safeguard a criminal defendant's right to proceedings free from unreasonable delay, it is reasonable and prudent to allow forensic and chemical analysts, and each person in the chain of custody of evidence produced by the analysts, to provide real-time, remote, two-way audio and video testimony before the district courts of this State using state of the art technology and equipment that enable the criminal defendant, the judge, and the attorneys in the case to observe the demeanor of the forensic analyst throughout the direct examination and cross-examination of the forensic analyst and that enable the forensic analyst to likewise observe the demeanor of the criminal defendant.”

Session Laws 2021-180, s. 16.17(e ), made the amendments to this section by Session Laws 2021-180, s. 16.17(b), effective January 1, 2022, and applicable to criminal proceedings, administrative hearings, and adjudicatory hearings in juvenile court beginning on or after that date.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021'.”

Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-484, s. 1, effective August 30, 2007, in subsection (b), substituted “accredited” for “certified,” substituted “Directors/Laboratory Accreditation Board (ASCLD/LAB)” for “Directors (ASCLD),” and substituted “ASCLD/LAB-accredited” for “ASCLD-certified”; and substituted “ASCLD/LAB” for “ASCLD” in subsection (c).

Session Laws 2009-473, ss. 1 and 2, effective October 1, 2009, and applicable to offenses committed on or after that date, in subsection (d), inserted “and indicate whether the report and affidavit will be offered as evidence at any proceeding against the defendant” near the middle; and added subsection (g).

Session Laws 2011-19, s. 7, rewrote subsection (b); and substituted “accrediting body’s standards” for “ASCLD/LAB standards” in the third sentence of subsection (c). For effective date and applicability, see editor’s note.

Session Laws 2013-171, s. 2, effective December 1, 2013, substituted “shall be admitted” for “may be admitted” in subsection (f) and subdivision (g)(5). For applicability, see editor’s note.

Session Laws 2013-194, s. 2, effective June 26, 2013, added subsection (h).

Session Laws 2014-100, s. 17.1(u), effective July 1, 2014, substituted “State Crime Laboratory” for “State Bureau of Investigation” in the first sentence of subsection (c).

Session Laws 2015-173, s. 1, effective July 31, 2015, and applicable to notices of intent to introduce a statement or report provided by the State on or after that date, inserted “the objection shall be deemed waived and” in subsection (f) and subdivision (g)(5).

Session Laws 2021-180, s. 16.17(b), in subsection (a), substituted “shall” for “may”; in the undesignated paragraph following subsection (g), substituted “witness, except an analyst regarding the results of forensic testing and the testimony of each person in the associated chain of custody made available via remote testimony in real time in district court pursuant to G.S. 15A-1225.3 . Nothing in this subsection precludes the right of any party” for “witness or”. For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Another ‘Straightforward Application’: The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases,” see 33 Campbell L. Rev. 1 (2010).

For comment, “Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven,” see 36 N.C. Cent. L. Rev. 295 (2014).

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Effect of Amendments.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (1).

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

At the direction of the Revisor of Statutes, “this Article” was substituted for “this Part” throughout the section.

Editor’s Note.

The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1 .

Editor’s Note.

The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1 .

CASE NOTES

Duty to Attend. —

When a subpoena has been served on a witness, he is required by this section to attend from term to term until discharged. State v. Gwynn, 61 N.C. 445 , 1868 N.C. LEXIS 35 (1868).

Attorney Not Exempt. —

A witness who fails to appear when the case is called in which he has been subpoenaed to testify is not justified in his default because he is a practicing attorney at law and has cases to try in another county at the date upon which the case was called wherein he was a witness, and the party who subpoenaed him can recover the penalty, with the costs of the motions. In re Pierce, 163 N.C. 247 , 79 S.E. 507, 1913 N.C. LEXIS 158 (1913).

A witness who is summoned in this State while casually here, but who resides in another state, cannot be required to pay a forfeiture for nonattendance, if he has returned to his own state and is there at his domicile. Kinzey v. King, 28 N.C. 76 , 1845 N.C. LEXIS 22 (1845).

Test of Inability to Attend. —

Where a witness alleges that he was unable to attend court, this inability must be decided by reference to the modes of traveling which are in use in the community. Eller v. Roberts, 25 N.C. 11 , 1842 N.C. LEXIS 59 (1842).

Nonattendance Need Not Be Willful. —

This section does not require that the failure of the witness to attend should be “willful.” In re Pierce, 163 N.C. 247 , 79 S.E. 507, 1913 N.C. LEXIS 158 (1913).

When Witness May Elect. —

Where two subpoenas are served upon a witness, requiring his attendance on the same day at different places distant from each other, he is not bound to obey the writ which may have been first served, but may make his election between them. Icehour v. Martin, 44 N.C. 478 , 1853 N.C. LEXIS 225 (1853).

An issue in bastardy is not a “criminal prosecution” so as to subject a defaulting witness to the fine of eighty dollars ($80.00), prescribed by this section. Ward v. Bell, 52 N.C. 79 , 1859 N.C. LEXIS 30 (1859).

Attendance Was Not Required. —

“”From session to session” means that first there must be a “”session” of court at which a particular case is scheduled to be heard to trigger compulsory attendance for that case; from that point onward, a properly subpoenaed witness is required to appear “from session to session” for that case until discharged. Therefore, defendant was entitled to a new trial because the trial court committed a prejudicial error when it ordered defense counsel’s legal assistant to appear as a witness; the assistant was directed to appear for specific dates, and the trial court did not hold a session of court at which this case was calendared on Friday, November 8, 2013. State v. Johnson, 238 N.C. App. 500, 767 S.E.2d 89 (2014).

CASE NOTES

Common Law Rule NotRepealed. —

This section does not serve to repeal the common law rule of exemption of witnesses from civil arrest. Cooper v. Wyman, 122 N.C. 784 , 29 S.E. 947, 1898 N.C. LEXIS 352 (1898).

Exemption Not Applicable to Criminal Proceeding. —

The exemption of witnesses from civil arrest accorded by this section, and of nonresident parties and witnesses voluntarily attending court here, on grounds of public policy does not apply to parties arrested in criminal proceedings. White v. Underwood, 125 N.C. 25 , 34 S.E. 104, 1899 N.C. LEXIS 161 (1899).

Nonresident Attorney. —

This section does not prevent service of summons on a nonresident attorney in this State to represent his clients in a matter pending in the federal court. Greenleaf v. People's Bank, 133 N.C. 292 , 45 S.E. 638, 1903 N.C. LEXIS 57 (1903).

Procedure for Claiming Exemption. —

Where a party has not been granted the exemption from service of summons (which the courts seem to have placed on the same plane as the exemption from civil arrest), his remedy is not a motion to dismiss the action, but a motion, on special appearance, to set aside the return of service. Dell School v. Pierce, 163 N.C. 424 , 79 S.E. 687 (1913). This is because the service is not void but voidable. Cooper v. Wyman, 122 N.C. 784 , 29 S.E. 947, 1898 N.C. LEXIS 352 (1898).

CASE NOTES

Section Does Not Entitle Defendant to List of State’s Witnesses. —

This section provides for taking the deposition of an incapacitated defense witness, whose name must be given to the court. Patently this section has no application to defendant’s motion for a list of the State’s witnesses. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972).

In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State’s witnesses who are to testify against him. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972).

Where there are several defendants in the same bill of indictment, it is not necessary to notify each of the others of the taking of a deposition by one for use as evidence on his behalf. State v. Finley, 118 N.C. 1161 , 24 S.E. 495, 1896 N.C. LEXIS 188 (1896).

A deposition taken under this section is competent to be read in favor of one prisoner, although it contains testimony charging his codefendant with committing the crime. When so read, it is the duty of the presiding judge to instruct the jury that they are not to consider it as evidence against the codefendant thus charged with the crime, but only as evidence in favor of the prisoner who offers it. State v. Finley, 118 N.C. 1161 , 24 S.E. 495, 1896 N.C. LEXIS 188 (1896).

CASE NOTES

Power Not Exclusively in Commissioner. —

The power to commit to jail a person refusing to testify before a commissioner, as provided for in this section, is not given exclusively, if at all, to the commissioner, but he may invoke the aid of the judge from whom he derives his appointment and whose authority is defied. Bradley Fertilizer Co. v. Taylor, 112 N.C. 141 , 17 S.E. 69, 1893 N.C. LEXIS 181 (1893).

CASE NOTES

Purpose of Section. —

The purpose of this section is to settle the depositions as evidence before the trial or hearing and thus prevent surprise, misapprehension, confusion and delay on the trial. Carroll v. Hodges, 98 N.C. 418 , 4 S.E. 199, 1887 N.C. LEXIS 295 (1887).

The purpose of this section is to give the party in whose behalf a deposition has been taken notice of any objection to the deposition and of the grounds for same before the trial. Pratt v. Bishop, 257 N.C. 486 , 126 S.E.2d 597, 1962 N.C. LEXIS 388 (1962).

Time and Manner of Objection. —

As stated by this section, exceptions to a deposition, especially those which relate to its regularity, should be disposed of, at the latest, before the trial is entered upon. Barnhardt v. Smith, 86 N.C. 473 (1882); Carroll v. Hodges, 98 N.C. 418 , 4 S.E. 199 (1887); Ivey v. Bessemer City Cotton Mills, 143 N.C. 189 , 55 S.E. 613 (1906). Such objection must be made in writing. Brittain v. Hitchcock, 127 N.C. 400 , 37 S.E. 474, 1900 N.C. LEXIS 90 (1900).

Objection to the incompetency of testimony and motion to reject the evidence must be made in writing before trial unless the parties shall consent to a waiver of this provision. Pratt v. Bishop, 257 N.C. 486 , 126 S.E.2d 597, 1962 N.C. LEXIS 388 (1962).

Same — When Allowed at Trial. —

Where it appeared that no notice had been given to the adverse party of the taking of a deposition, and that it had not been passed upon by the clerk, it was held that an objection to its reception might be taken on the trial of the action. Bryan v. Jeffreys, 104 N.C. 242 , 10 S.E. 167, 1889 N.C. LEXIS 187 (1889).

When Trial Begins. —

Once the case is reached on the calendar and the jury called into the box, “the hurry of a trial” has begun and the time for deliberation and scrutiny of a deposition has passed. The purpose of this section would not be served by a holding that the trial did not begin until after the jury was impaneled. Pratt v. Bishop, 257 N.C. 486 , 126 S.E.2d 597, 1962 N.C. LEXIS 388 (1962); State v. Swann, 5 N.C. App. 385, 168 S.E.2d 429, 1969 N.C. App. LEXIS 1349 , rev'd, 275 N.C. 644 , 170 S.E.2d 611, 1969 N.C. LEXIS 480 (1969).

The trial begins when the jurors are called into the box for examination as to their qualifications — when the work of impaneling the jury begins — and the calling of a jury is a part of the trial. State v. Swann, 5 N.C. App. 385, 168 S.E.2d 429, 1969 N.C. App. LEXIS 1349 , rev'd, 275 N.C. 644 , 170 S.E.2d 611, 1969 N.C. LEXIS 480 (1969).

Waiver of Formal Defects. —

Where a party attends upon and takes part in taking depositions, he thereby waives all objections of a formal character, but a void process will not be vitalized unless there is an amendment without prejudice to third parties. McArter v. Rhea, 122 N.C. 614 , 30 S.E. 128, 1898 N.C. LEXIS 315 (1898).

The failure to insert the name of the commissioner in the commission to take the deposition is waived by the objecting party appearing at the taking of the deposition and making no objection thereto until after the trial was begun. Womack v. Gross, 135 N.C. 378 , 47 S.E. 464, 1904 N.C. LEXIS 40 (1904); Tomlinson Chair Mfg. Co. v. Townsend, 153 N.C. 244 , 69 S.E. 145, 1910 N.C. LEXIS 59 (1910).

Where the provisions of this section as to making the objection before trial and in writing are not complied with, the objection to the deposition is waived. Woodley v. Hassell, 94 N.C. 157 , 1886 N.C. LEXIS 30 (1886).

CASE NOTES

Objection Should Be Made Before Trial. —

Where a deposition was open and on file before the trial, and an objection thereto was made for the first time on the trial, it was held that the objection could not be sustained. Morgan v. Royal Fraternal Ass’n, 170 N.C. 75 , 86 S.E. 975 (1915). And this is true whether the motion is to quash the deposition in whole or in part. Carroll v. Hodges, 98 N.C. 418 , 4 S.E. 199, 1887 N.C. LEXIS 295 (1887).

Where deposition of a witness is duly taken with full opportunity of cross-examination by the adverse party, with no objection before trial, and the witness is out of the State at the time of trial, exception to the deposition at the trial is without merit. Fleming v. Atlantic C.L.R.R., 236 N.C. 568 , 73 S.E.2d 544, 1952 N.C. LEXIS 613 (1952).

Filing as Notice. —

Where the deposition had been on file for two or three months before the trial, the appellant’s counsel having notice and being present when it was opened by the clerk and ordered by him to be read in evidence on the trial, and they making no objections thereto, it was held that such deposition could not be quashed on oral objection made at the trial. Carroll v. Hodges, 98 N.C. 418 , 4 S.E. 199, 1887 N.C. LEXIS 295 (1887).

Manner of Objection. —

Since a deposition can be quashed only for irregularities in the taking or the incompetency of witnesses, objection should be taken to the questions and answers of the deponent by way of exception and not by motion to quash the depositions. Jeffords v. Albemarle Waterworks, 157 N.C. 10 , 72 S.E. 624, 1911 N.C. LEXIS 3 (1911).

Preservation of Exception. —

Where a commissioner to take depositions has, over the objection and exceptions of a party litigant, denied him the right of cross-examination of a witness of his opponent, and the litigant has appealed therefrom to the trial court, and preserved his right, the exception gives notice of the grounds upon which it was based, and on his motion on the trial, the deposition relating to that part of the evidence will be stricken. Sugg v. St. Mary's Oil Engine Co., 193 N.C. 814 , 138 S.E. 169, 1927 N.C. LEXIS 466 (1927).

As to when objection is allowed at trial, see Bryan v. Jeffreys, 104 N.C. 242 , 10 S.E. 167, 1889 N.C. LEXIS 187 (1889).

CASE NOTES

To the extent they are in conflict, § 1A-1, Rule 32 takes precedence over this section. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

But insofar as it does not conflict with G.S. 1A-1 , Rule 32, this section remains in effect. Wright v. American Gen. Life Ins. Co., 59 N.C. App. 591, 297 S.E.2d 910, 1982 N.C. App. LEXIS 3203 (1982).

This section is not a “differing procedure” from that of G.S. 1A-1 , Rule 32 within the contemplation of the language of Rule 1. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

Deposition of Party. —

While under subdivisions (2) and (9) of this section the presence of a witness in court is a proper basis for excluding the witness’s deposition, it is no basis for excluding the deposition of a party, which G.S. 1A-1 , Rule 32(a)(3) makes useable without restriction, if otherwise admissible under the rules of evidence. Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329, 1984 N.C. App. LEXIS 3713 (1984).

Selected Parts of Depositions. —

It is not permissible to introduce selected portions of depositions without offering the whole. Sternberg v. Crockon & Roden Co., 172 N.C. 731 , 90 S.E. 935, 1916 N.C. LEXIS 387 (1916); Enloe v. Charlotte Coca-Cola Bottling Co., 210 N.C. 262 , 186 S.E. 242, 1936 N.C. LEXIS 74 (1936).

Meaning of “Duly Summoned”. —

By reasonable construction subdivision (9) of this section means that where the deposition has been regularly taken, and where the witness is more than 75 miles from the place of trial without the consent of the party, and the presence of the witness cannot be procured, the deposition may be read if a subpoena has been duly issued — not necessarily served. Tomlinson Chair Mfg. Co. v. Townsend, 153 N.C. 244 , 69 S.E. 145, 1910 N.C. LEXIS 59 (1910). See Sparrow v. Blount, 90 N.C. 514 , 1884 N.C. LEXIS 264 (1884).

Where Plaintiff Dies But Action Survives. —

Where the deposition de bene esse of the plaintiff in an action had been taken in accordance with law, and the plaintiff had since died, but the cause of action survived, the deposition could properly be read in evidence in behalf of those who survived him in interest, and had properly been made parties to the original action. Barbee v. Cannady, 191 N.C. 529 , 132 S.E. 572, 1926 N.C. LEXIS 116 (1926).

Witness Unable to Talk. —

The deposition of a witness adjudged to be unable to talk or remain in court was admissible in evidence under this section. Willeford v. Bailey, 132 N.C. 402 , 43 S.E. 928, 1903 N.C. LEXIS 302 (1903).

Deposition Taken in Prior Action. —

In the trial of an action a deposition regularly taken in another action between the same parties and involving the same subject matter is admissible as substantive evidence. Hartis v. Charlotte Elec. Ry., 162 N.C. 236 , 78 S.E. 164 (1913). It may be introduced whether the deponent was examined as a witness in the case being tried or not. Mabe v. Mabe, 122 N.C. 552 , 29 S.E. 843, 1898 N.C. LEXIS 300 (1898).

Editor’s Note.

The above section is the seventh paragraph of former G.S. 7-89. It was revised and transferred to its present position by Session Laws 1971, c. 377, s. 1, effective October 1, 1971. Former G.S. 8-85 was repealed by Session Laws 1967, c. 954, s. 4, effective January 1, 1970.

CASE NOTES

Limiting Instruction. —

It would seem to be the better practice for a party wishing to limit the use of evidence offered by his opponent to request a limiting instruction at the time of its admission. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986); State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306, 1988 N.C. App. LEXIS 916 (1988).

Where many if not all of the photographs which were received into evidence could properly have been considered by the jury as substantive evidence, for the trial judge to give a proper instruction limiting the State’s exhibits to illustrative use would have required that the defendant specifically identify those exhibits which he contended were subject only to illustrative use. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Defendant in robbery case argued that the judge erred in allowing the jury to view a videotape without first instructing them that it was admissible solely for the purpose of illustrating the victim’s testimony; however, defendant did not request a limiting instruction, and since the State laid a proper foundation to introduce the videotape for either substantive or illustrative purposes, no limiting instruction was necessary. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604, 1988 N.C. App. LEXIS 1055 (1988), rev'd in part, 326 N.C. 37 , 387 S.E.2d 450, 1990 N.C. LEXIS 3 (1990).

Admissibility of Videotape Recordings. —

The basic principles governing the admissibility of photographs apply also to motion pictures. Videotape recordings may be admitted into evidence where they are relevant and have been properly authenticated. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

Videotapes are admissible under North Carolina law for both illustrative and substantive purposes; the trial court properly admitted a videotape for the sole purpose of illustrating the testimony of an officer, where the trial judge properly instructed the jury that the videotape was being received into evidence for the limited purpose of illustrating the witness’s testimony. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505, 2003 N.C. App. LEXIS 1996 (2003).

Defendant’s conviction of robbery with a firearm was proper; the State set a proper foundation for the admission of a videotape of the robbery under G.S. 8-97 by presenting testimony that the tape came from a store security camera, and had been in police custody and had not been altered, and the probative value of the videotape was not outweighed by any undue prejudice under G.S. 8C-1 , N.C. R. Evid. 403. State v. Ayscue, 169 N.C. App. 548, 610 S.E.2d 389, 2005 N.C. App. LEXIS 677 (2005).

Pursuant to G.S. 8-97 and G.S. 8C-1-901, the trial court properly admitted the videotape evidence of defendant committing sexual acts with the victim, a minor child, and the photographs taken therefrom, because: (1) a state agent established an unbroken chain of custody from the time the tape was found in defendant’s residence; (2) the state agent testified that the room depicted in the videotape shown to the jury was identical to the master bedroom in defendant’s residence and that the man on the videotape was defendant; (3) the victim’s mother, who had previously dated defendant, testified that defendant owned a camcorder and a tripod, which he had used to videotape them having sexual intercourse in the master bedroom of defendant’s residence; (4) the victim’s mother identified the room depicted in the videotape as defendant’s master bedroom and the man on the videotape as defendant; (5) the victim’s mother identified the young girl on the videotape as the victim, her daughter; (6) there was testimony that defendant’s camcorder was in working condition; and (7) there was sufficient evidence from the testimony regarding the chain of custody to establish that the videotape had not been edited or altered, and that the same videotape seized from defendant’s residence was the same videotape reviewed by the jury. State v. Prentice, 170 N.C. App. 593, 613 S.E.2d 498, 2005 N.C. App. LEXIS 1086 (2005).

Videos were properly admitted where there was testimony that the videos accurately depicted the events surrounding the subject incident and that the tape had not been changed or altered, and the portions of the tape that defendant contended were inflammatory were not shown at trial. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366, 2005 N.C. App. LEXIS 998 (2005).

Trial court did not err in admitting an edited videotape of planes flying over the adjoining property owners’ property in a case where they sued the airport operators based on the contention that operation of the airport was a private nuisance; the adjoining property owners laid a proper foundation for admission of that evidence and the airport operators did not argue that the videotaping system was not properly maintained or properly functioning. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758, 2006 N.C. App. LEXIS 524 (2006).

Even assuming that videotapes from a food store were not properly admitted into evidence, reversal was not required because defendant was not prejudiced by their admission given the admittance of defendant’s statement in which defendant confessed to using the victim’s credit card to purchase beer and cigarettes at the food store. State v. Brooks, 178 N.C. App. 211, 631 S.E.2d 54, 2006 N.C. App. LEXIS 1334 (2006).

Trial court did not commit reversible error by admitting, as substantive evidence, a videotape recording of a controlled drug buy involving defendant, pursuant to G.S. 8-97 , because the State offered the testimony of the police officers who maintained and operated the camera and the State adequately established the chain of custody; the State did not need the confidential informant to testify that the tape accurately depicted the events because the videotape was admitted, without volume, for substantive purposes that defendant committed a crime. State v. Collins, 216 N.C. App. 249, 716 S.E.2d 255, 2011 N.C. App. LEXIS 2148 (2011).

Trial court did not abuse its discretion by admitting surveillance video footage, pursuant to G.S. 8-97 , collected from the scene because the State’s witness testified he viewed the video as a technician made a copy of the footage immediately following the incident, and further testified the footage presented in court was the same as that which he viewed when the copy was being made from the surveillance system’s servers a few days after the theft; thus, the surveillance video footage was properly authenticated. State v. Cook, 218 N.C. App. 245, 721 S.E.2d 741, 2012 N.C. App. LEXIS 58 (2012).

State properly authenticated a surveillance video because it presented evidence that the video surveillance system was reliable and that the video presented at trial had not been altered; the testimony of a regional loss prevention manager for the department store was sufficient to authenticate the video because the manager testified that the recording equipment was industry standard and that the videos produced by the surveillance system contained safeguards to prevent tampering. State v. Snead, 368 N.C. 811 , 783 S.E.2d 733, 2016 N.C. LEXIS 313 (2016).

Under this section videotapes now may be introduced as substantive evidence upon laying a proper foundation. However, the particular nature of the video portrayal on the tape may place upon the State the burden to meet other applicable evidentiary requirements. State v. Peoples, 60 N.C. App. 479, 299 S.E.2d 311, 1983 N.C. App. LEXIS 2501 (1983), rev'd, 311 N.C. 515 , 319 S.E.2d 177, 1984 N.C. LEXIS 1768 (1984).

Videotapes generally are admissible into evidence under North Carolina law for both illustrative and substantive purposes. Campbell ex rel. McMillan v. Pitt County Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, 1987 N.C. App. LEXIS 2509 , aff'd, 321 N.C. 260 , 362 S.E.2d 273, 1987 N.C. LEXIS 2565 (1987).

Surveillance Video of Personal Injury Plaintiffs Admissible. —

A surveillance videotape was relevant and admissible in a personal injury trial on damages, where the occupants of a van were shown engaging in various physical activities, and this evidence was relevant to whether and to what extent the occupants were disabled by the injuries they sustained in a rear end collision. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319, 1998 N.C. App. LEXIS 1389 (1998).

Within Discretion of Court. —

A “day in the life” videotape of child allegedly injured by negligence of defendant hospital at the time of her birth was properly admitted. The plaintiffs’ failure to provide notice to the opposing counsel and the trial court prior to taping did not render the tape inadmissible; rather, the admissibility of the videotape under the particular facts and circumstances of the action lay solely within the sound discretion of the trial court. Campbell ex rel. McMillan v. Pitt County Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, 1987 N.C. App. LEXIS 2509 , aff'd, 321 N.C. 260 , 362 S.E.2d 273, 1987 N.C. LEXIS 2565 (1987).

Preview of Videotape. —

Where a videotape depicts conduct of a defendant in a criminal case, the trial judge should grant a request from the defense to preview the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

Insufficient Authentication of Videotape. —

The state failed to sufficiently authenticate the contents of a videotape, or to establish an unbroken chain of custody, or to show that a store security system was properly functioning on the day of the robbery at issue, where (1) two state witnesses expressed the opinion that the security system was in working order but neither one knew anything about the maintenance or operation of the camera system, and (2) trial testimony was insufficient to establish that the tape accurately represented the events it purported to show or an unbroken chain of custody. State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10, 2001 N.C. App. LEXIS 339 (2001).

Admitting a videotape erred because no foundation was laid, as (1) the only foundation witness was not present when recording occurred or in charge of recording equipment, and (2) no chain of custody was proved, since nothing showed who copied the recording onto a compact disc (CD) admitted at trial, how or when the CD was copied, or who took custody after copying. State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344, 2015 N.C. App. LEXIS 83 (2015), rev'd in part, 368 N.C. 811 , 783 S.E.2d 733, 2016 N.C. LEXIS 313 (2016).

Incriminating Statements in Videotape. —

If a videotape contains incriminating statements by the defendant, upon his objection, the judge must conduct a voir dire to determine the admissibility of any in-custody statements or admissions in the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

A tape recording of a hypnosis session was not admissible as corroboration of the testimony of a witness stating his present recall of prior incidents. State v. Peoples, 60 N.C. App. 479, 299 S.E.2d 311, 1983 N.C. App. LEXIS 2501 (1983), rev'd, 311 N.C. 515 , 319 S.E.2d 177, 1984 N.C. LEXIS 1768 (1984).

For discussion of admissibility of maps, surveys and the like, see Presley v. Griggs, 88 N.C. App. 226, 362 S.E.2d 830, 1987 N.C. App. LEXIS 3472 (1987).

Proper Authentication of Photographs. —

Where the witness clearly indicated that the photographs accurately portrayed what he had observed, the photographs were properly authenticated for illustrative purposes. State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306, 1988 N.C. App. LEXIS 916 (1988).

Confidential informant’s testimony was sufficient to authenticate two of three photographs as people from whom the informant had purchased drugs in the past and the third photograph as defendant, such that it was properly admitted. However, the testimony from a police detective was not sufficient to authenticate the two photographs as photographs depicting defendant’s sons. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452, 2013 N.C. App. LEXIS 882 (2013).

Trial court did not err in admitting the photographs of defendant and his tattoos taken at the jail after his arrest as there was no authentication issue with the photographs because the custodial photographs did not purport to show defendant’s arm at the time of the robbery; and defendant did not contest that the photographs fairly and accurately depicted his arm while he was in custody. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478, 2014 N.C. App. LEXIS 238 (2014).

Trial court properly admitted a photograph because it illustrated a detective’s testimony that the victim used the photograph to identify defendant; the detective testified as to how the victim located the photograph and used it to identify defendant and thus, authenticated the photograph. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Foundation Held Sufficient. —

Where victim testified that the videotape was a factual representation of the events on the night of the robbery, the business had installed the camera approximately six weeks before the robbery, and that the camera was working properly before and after the night of the robbery, and on voir dire a police department detective testified that he had exclusive care and custody of the video camera film since the night of the robbery, there was sufficient evidence for the trial judge to find that the State had laid a proper foundation to introduce the videotape into evidence for either substantive or illustrative purposes. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604, 1988 N.C. App. LEXIS 1055 (1988), rev'd in part, 326 N.C. 37 , 387 S.E.2d 450, 1990 N.C. LEXIS 3 (1990).

Where surveillance videos which an employer sought to introduce were a recording of events occurring in the service area at the employer’s business, the employer laid a sufficient foundation, which consisted of evidence concerning the operation of the video camera, the chain of custody of the DVDs, and testimony that the videotape had not been edited and that the picture fairly and accurately recorded the actual appearance of the area photographed, to support admission of the surveillance videos; thus, the Industrial Commission erred by refusing to consider the surveillance videos as evidence. Bowman v. Cox Toyota Scion, 224 N.C. App. 1, 737 S.E.2d 384, 2012 N.C. App. LEXIS 1362 (2012).

Trial court did not err by admitting two screenshots taken from defendant’s social media webpage where the State presented substantial evidence that tended to show that it was defendant’s webpage, as it contained content unique to defendant, including his nickname, pictures of defendant and his dog, and videos of his dog, and the content was directly related to whether defendant had been criminally negligent in allowing his dog to attack and kill the victim. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98, 2016 N.C. App. LEXIS 184 (2016).

Foundation Held Insufficient. —

The State failed to lay a proper foundation for the admissibility and authenticity of certain confiscated videotapes depicting the defendant/ex-felon handling weapons where there was no testimony by anyone present at the time of the filming as to the “checking and operation” of the video equipment; the only testimony purporting to authenticate the tape was evidence that the chain of custody had not been broken; the State did not call any witnesses to testify that the camera was operating properly or that the information depicted on the videotape was an accurate representation of the events at the time of filming. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835, 2000 N.C. App. LEXIS 1243 (2000).

A proper foundation was laid for admission of a videotape of an armed robbery, where the robbery victim and two police officers testified that the taping equipment was operating properly on the day of the robbery, and an officer who viewed the videotape on the day of the robbery and at trial testified that the tape was in the same condition on both occasions. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906, 1998 N.C. App. LEXIS 1392 (1998).

While the State failed to offer a proper foundation for the introduction of the surveillance video and the trial court erred by admitting the video into evidence, the error was not prejudicial, as there was no reasonable possibility that the jury would have failed to convict defendant absent the video. State v. Moore, 800 S.E.2d 734, 2017 N.C. App. LEXIS 398 (N.C. Ct. App. 2017).

Admission of Prejudicial Videotapes Resulted in Reversal. —

The defendant’s conviction for possession with intent to sell and deliver a controlled substance was reversed where the court’s admission of two videotapes—one depicting him handling various weapons and communicating some sort of intimidation or threat and the other showing the defendant holding money, talking on a cell phone and holding a beer—was so prejudicial that their improper admission infected the entire trial proceeding and where the only other evidence presented was that he was arrested in a home containing drugs, as well as seven other people, and that he had $433 in cash, a cell phone and a beeper on his person. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835, 2000 N.C. App. LEXIS 1243 (2000).

Admission of Photographs Held Proper. —

Trial court’s admission of nine photographs of victims’ bodies was not error despite defendant’s argument that photographs were repetitive and their relevancy was outweighed by their potential to inflame passions of the jury, since each autopsy photograph showed a different wound, and the photographs were not gory or gruesome. State v. Rogers, 323 N.C. 658 , 374 S.E.2d 852, 1989 N.C. LEXIS 5 (1989).

Photocopy of the check was properly admitted to illustrate the testimony of a witness. State v. McSwain, 277 N.C. App. 522, 860 S.E.2d 36, 2021- NCCOA-216, 2021 N.C. App. LEXIS 213 (2021).

Erroneous Admission Not Prejudicial. —

Photographs of a hole which caused injury to a moped rider were properly admitted into evidence even though they were taken five months after the accident; there was no evidence in the record suggesting that conditions had changed between the time of the accident and the time the photographs were taken. Sellers v. CSX Transp., Inc., 102 N.C. App. 563, 402 S.E.2d 872, 1991 N.C. App. LEXIS 463 (1991).

There was no abuse of discretion in the admission under G.S. 8-97 of eight autopsy photographs in defendant’s criminal trial that arose from the murder of a victim in a gunfight, as there was an issue as to whether defendant shot the victim in self-defense and the photographs depicted the location of the wounds and illustrated the manner of the killing; the photographs were probative and any prejudicial effect under G.S. 8C-1 , N.C. R. Evid. 403 was outweighed. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594, 2009 N.C. App. LEXIS 49 (2009).

Trial court did not err in relying on photographs that showed work completed by a carpentry company as substantive evidence in the company’s breach of contract action against a builder, as a proper foundation was laid for their admission pursuant to G.S. 8-97 ; although the photographs were initially to be admitted for illustrative purposes only, the trial court had authority to change its evidentiary ruling, and the builder did not show any prejudice as a result thereof. Accelerated Framing, Inc. v. Eagle Ridge Builders, Inc., 207 N.C. App. 722, 701 S.E.2d 280, 2010 N.C. App. LEXIS 2016 (2010).

Trial court properly admitted a photograph because it illustrated a detective’s testimony that the victim used the photograph to identify defendant; the trial court properly instructed the jury that it was only to consider the photograph for its limited purpose of illustrating and explaining detective’s testimony, and the photograph was relevant to the victim’s identification of defendant. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Although the trial court erred in admitting the surveillance video because the State failed to offer a proper foundation for it as either illustrative or substantive evidence, the error was not prejudicial because other evidence pertained to the issue of whether defendant was the driver. State v. Moore, 254 N.C. App. 544, 803 S.E.2d 196, 2017 N.C. App. LEXIS 567 , writ denied, 370 N.C. 77 , 805 S.E.2d 690, 2017 N.C. LEXIS 887 (2017).

Chain of Custody. —

The chain of custody of a videotape was not broken by its being viewed by a district attorney on the morning of an armed robbery trial, where a police officer who had viewed the tape showing the defendant commit the robbery both on the day of the offense and at trial testified that it was in the same condition and had not been edited. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906, 1998 N.C. App. LEXIS 1392 (1998).