
161 S.E.2d 560 (1968)
274 N.C. 62
STATE of North Carolina
v.
Donald LeRoy PROPST.
No. 329.
Supreme Court of North Carolina.
June 14, 1968.
*565 Atty. Gen. T. Wade Bruton and Deputy Atty. Gen. Ralph M. Moody for the State.
Simpson & Simpson, Morganton, for defendant appellant.
BOBBITT, Justice.
Ordinarily, it is for the court, in its discretion, to determine whether the circumstances brought to its attention are sufficient to call for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense. State v. Sullivan, 229 N.C. 251, 258, 49 S.E.2d 458, 462; State v. Khoury, 149 N.C. 454, 62 S.E. 638; 21 Am.Jur.2d, Criminal Law § 65. See Annotation, "Investigation of present sanity to determine whether accused should be put, or continue, on trial," 142 A.L.R. 961, at 972-992.
At November 1966 Session, the conflicting diagnoses and recommendations in the hospital reports of May 3, 1966, and of October 10, 1966, were amply sufficient to justify Judge Clarkson's decision to conduct a formal inquiry to determine whether defendant had sufficient mental capacity to plead to the indictment and conduct a rational defense. In State v. Sullivan, supra, where our prior cases are reviewed, it was held that, by virtue of the statutes now codified as G.S. § 122-83 and G.S. § 122-84, such determination may be made by the court with or without the aid of a jury. Judge Clarkson heard the evidence, made his findings of fact and entered his order of November 29, 1966.
Subsequently, the report of February 14, 1967, signed by Dr. Laczko, was made. The "Clinical Notes," diagnosis and recommendations set forth therein, which relate to defendant's condition as of February 14, 1967, are in all material respects the same as those set forth in the report of October 10, 1966, relating to defendant's condition as of October 10, 1966. Although at May 30, 1967 Session defendant's counsel stated "he had nothing that had transpired since February 14, 1967, concerning the defendant's mental condition," we are of opinion, and so decide, that the report of May 3, 1966, made by Dr. Sikes, and the testimony of Dr. Sikes at the hearing before Judge Clarkson at November 1966 Session, and Judge Clarkson's findings of fact on November 29, 1966, made it necessary that a further hearing be conducted at or prior to the May 30, 1967 Session to determine whether defendant then had sufficient mental capacity to plead to the indictment and conduct a rational defense before defendant could be placed on trial for murder as charged in the indictment. So far as the *566 record discloses, no further hearing was conducted and no findings of fact or determinations were made in respect of defendant's mental capacity.
Whether defendant is able to plead to the indictment and conduct a rational defense should be determined prior to the trial of defendant for the crime charged in the indictment. In State v. Haywood, 94 N.C. 847, at 854, Smith, C. J., states: "(T)he defendant's capacity to enter upon a trial, should be determined before he is put upon the trial; for the trial would amount to nothing if the defendant has not the required capacity to defend himself against the charge. The very requirement to answer, prejudges the case adversely to the prisoner, and must have an unfavorable influence upon the jury, in passing upon the issue. Besides, the blending of the inquiries, by allowing evidence pertinent to one, and incompetent to the other, notwithstanding the caution the Judge may give as to its consideration, may tend to confuse the minds of the jury, and to do injustice to the defendant." Although this Court, in State v. Haywood, supra, in State v. Sandlin, 156 N.C. 624, 72 S.E. 203, and in State v. Sullivan, supra, held permissible the submission of an issue as to a defendant's present mental capacity to plead to the indictment and to conduct a rational defense simultaneously with an issue as to whether defendant is guilty or not guilty of the crime charged in the indictment, this procedure is not approved. See 30 N.C.L.R. 4, 20-21, and 27 N.C.L.R. 258.
"In determining a defendant's capacity to stand trial, the test is whether he has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed." 21 Am.Jur.2d, Criminal Law § 63. This is in accord with State v. Harris, 53 N.C. 136, where it was determined that the defendant, a deaf-mute, could not be put on trial for the murder charged in the indictment. The basis of decision, as stated by Battle, J., was that "a deaf and dumb prisoner, whose faculties have not been improved by the arts of education, and who, in consequence thereof, cannot be made to understand the nature and incidents of a trial, ought not to be compelled to go through, what must be to him, the senseless forms of such a trial." At trial, in passing upon a defendant's plea of not guilty because legally insane when the alleged crime was committed, "(t)he test of mental responsibility is the capacity of defendant to distinguish between right and wrong at the time of and in respect to the matter under investigation." 2 Strong, N.C. Index 2d, Criminal Law § 5; State v. Spence, 271 N.C. 23, 38, 155 S.E.2d 802, 813.
Although for the reasons stated, the verdict and judgment must be vacated and the cause remanded for further proceedings, it seems appropriate to consider an assignment of error relating to the trial itself.
The court instructed the jury as to the law applicable to the asserted defense that defendant was legally insane when the alleged crime was committed.
In charging the jury, the court did not state any of the evidence bearing upon whether defendant was intoxicated on February 21, 1966, when the shooting occurred, and did not state any contention of defendant or give any instruction relating to the evidence as to defendant's intoxication. Defendant assigns as error this asserted deficiency in the charge.
In order to convict of murder in the first degree, the State was required to satisfy the jury from the evidence beyond a reasonable doubt that defendant unlawfully killed Taylor with malice, and that he did so in execution of an actual, specific intent to kill, formed after premeditation and deliberation. The plea of not guilty put in issue every essential element of the crime of first degree murder. State v. Jackson, 270 N.C. 773, 155 S.E.2d 236, and cases cited.
If and when the State satisfied the jury from the evidence beyond a reasonable *567 doubt that the defendant intentionally shot Taylor with a .38 pistol and thereby proximately caused Taylor's death, two presumptions arose: (1) that the killing was unlawful, and (2) that it was done with malice. Nothing else appearing, the defendant would be guilty of murder in the second degree. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; State v. Adams, 241 N.C. 559, 85 S.E.2d 918; State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83; State v. Revis, 253 N.C. 50, 116 S.E.2d 171; State v. Phillips, 264 N.C. 508, 515, 142 S.E.2d 337, 340; State v. Price, 271 N.C. 521, 525, 157 S.E.2d 127, 129-130; State v. Cooper, 273 N.C. 51, 57, 159 S.E.2d 305, 309. "The presumptions do not arise if an instrument, which is per se or may be a deadly weapon, is not intentionally used as a weapon, e. g., from an accidental discharge of a shotgun." State v. Gordon, supra. The additional elements of premeditation and deliberation, necessary to constitute murder in the first degree, must be established beyond a reasonable doubt, and found by the jury, before the verdict of guilty of murder in the first degree can be returned; and the burden of so establishing these additional elements of premeditation and deliberation rests and remains on the State. State v. Miller, 197 N.C. 445, 448, 149 S.E. 590, 592; State v. Payne, 213 N.C. 719, 729, 197 S.E. 573, 579; State v. Bowser, 214 N.C. 249, 253, 199 S.E. 31, 33; State v. Hawkins, 214 N.C. 326, 334, 199 S.E. 284, 289; State v. Chavis, 231 N.C. 307, 311, 56 S.E.2d 678, 681; State v. Lamm, 232 N.C. 402, 406, 61 S.E.2d 188, 190; State v. Faust, 254 N.C. 101, 106, 118 S.E.2d 769, 772, 96 A.L.R.2d 1422.
A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder, and the intentional use of a deadly weapon as a weapon is necessary to give rise to said presumptions of unlawfulness and of malice. State v. Gordon, supra.
It is well settled that voluntary drunkenness is not a legal excuse for crime. In State v. Murphy, 157 N.C. 614, 72 S.E. 1075, Hoke, J. (later C. J.), states: "The principle, however, is not allowed to prevail where, in addition to the overt act, it is required that a definite specific intent be established as an essential feature of the crime. In Clark's Criminal Law, p. 72, this limitation on the more general principle is thus succinctly stated: `Where a specific intent is essential to constitute crime, the fact of intoxication may negative its existence.' Accordingly, since the statute (now codified as G.S. § 14-17) dividing the crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the `killing was deliberate and premeditated,' these terms contain as an essential element of the crime of murder `a purpose to kill previously formed after weighing the matter' (State v. Banks, 143 N.C. 652, 658, 57 S.E. 174; State v. Dowden, 118 N.C. 1145, 1148, 24 S.E. 722), a mental process, embodying a specific, definite intent; and, if it be shown that an offender, charged with such crime is so drunk that he is utterly unable to form or entertain this essential purpose, he should not be convicted of the higher offense." Later decisions in accord include the following: State v. English, 164 N.C. 497, 498, 511, 80 S.E. 72, 77; State v. Foster, 172 N.C. 960, 965-966, 90 S.E. 785, 788; State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439; State v. McManus, 217 N.C. 445, 8 S.E.2d 251; State v. Cureton, 218 N.C. 491, 495, 11 S.E.2d 469, 471. Also, see dissenting opinion of Barnhill, J. (later C. J.), in State v. Creech, 229 N.C. 662, 675, 51 S.E.2d 348, 358.
As stated by Walker, J., in State v. Foster, supra: "(W)here a specific intent is essential to the criminality of the act, or there must be premeditation or deliberation, or some mental process of the kind in order to determine the degree of the crime, it is proper to consider the prisoner's mental condition at the time the alleged offense was committed."
Decisions in other jurisdictions relating to intoxication as a defense to a "specific intent crime" are collected and reviewed in Annotation, "Modern Status of the Rules as *568 to Voluntary Intoxication as Defense to Criminal Charge," 8 A.L.R.3d 1236, at 1246-1262.
The evidence most favorable to defendant tended to show he was looking for Polk when he entered the hosiery mill; that he found Polk and slapped him; that Taylor intervened, grabbed defendant and ordered him to leave; that Taylor got a machine hammer and was advancing on defendant; and that the first shot occurred when Taylor was striking defendant with the hammer.
In our view, the evidence as to defendant's intoxication is insufficient to support a finding that he was so drunk that he was utterly unable to form an actual, specific intent to kill, after premeditation and deliberation, and was insufficient to support a finding that defendant was utterly unable to form a specific intent to shoot Taylor. Even so, when considered in connection with the testimony referred to in the preceding paragraph, and in connection with the testimony as to defendant's mental status and nervous condition, we think the testimony relating to his intoxication was competent for consideration as bearing upon whether the State had satisfied the jury from the evidence beyond a reasonable doubt that defendant had unlawfully killed Taylor in the execution of an actual, specific intent to kill, formed after premeditation and deliberation, and for consideration as bearing upon whether the State has satisfied the jury from the evidence beyond a reasonable doubt that defendant intentionally shot Taylor and thereby proximately caused his death. In our view, the court, in charging the jury, should have referred to the evidence relating to defendant's intoxication and should have given instructions as to how it should be considered.
Although other assignments of error present serious questions, it is improbable they will recur at another trial. Discussion thereof in the context of the record now before us is unnecessary and inappropriate.
Error and remanded.
