
228 S.E.2d 424 (1976)
290 N.C. 718
STATE of North Carolina
v.
Joe Louis HARRIS.
No. 10.
Supreme Court of North Carolina.
October 5, 1976.
*428 Atty. Gen. Rufus L. Edmisten and Associate Atty. Elizabeth C. Bunting, Raleigh, for the State.
W. Brian Howell, Raleigh, for defendant-appellant.
MOORE, Justice.
Defendant first attacks the North Carolina rule that places upon defendant the burden of proof on the defense of insanity. Defendant concedes in his brief that North Carolina has long adhered to the view that the defense of insanity is an affirmative defense which must be shown by the defendant to the satisfaction of the jury. See State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975), and cases cited therein. He contends, however, that this is error because of the decision of the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
We have reexamined these cases in the light of Mullaney and have decided that Mullaney does not require, upon due process considerations, the reallocation of the burden of proof on the issue of insanity. State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975). Other jurisdictions have reached the same conclusion. See Rivera v. State, 351 A.2d 561 (Del.1976); Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975); State v. Melvin, 341 A.2d 376 (Maine 1975); accord, Hill v. Lockhart, 516 F.2d 910 (8th Cir. 1975). Defendant, in his brief, cites only one case holding to the contrary: Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975). An examination of these decisions convinces us that we should adhere to our holdings in State v. Shepherd, supra, and State v. Hammonds, supra.
Defendant contends, however, that the decision in State v. Hammonds, supra, on the defense of insanity is unsound in that it erroneously relied, in part, upon an excerpt from a concurring opinion to Mullaney. In this excerpt, Justice Rehnquist states:
"I agree with the Court that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant." 421 U.S. at 705, 95 S.Ct. at 1893, 44 L.Ed.2d at 523.
The question apparently raised by defendant in the cases at bar is whether Leland v. Oregon, supra, cited within the above concurrence, is supportive of the decision in Hammonds. In Leland, the petitioner raised the issue of whether an Oregon statute placing the burden upon a defendant to prove an insanity defense beyond a reasonable doubt was a deprivation of due process. The Court held that due process was not violated by the state's casting upon defendant the burden of proving insanity "beyond a reasonable doubt." The Court also stated that there was no due process violation caused by Oregon's adoption of the "right and wrong" (M'Naghten) test, rather than the "irresistible impulse" test of insanity.
It is true, as the defendant in the present cases points out, that the jury instructions given in Leland did allow the jurors to consider the issue of insanity on the elements of intent, premeditation and deliberation. The Court noted, however, that *429 these instructions merely served to emphasize that the State had the burden of proof on these elements.
In the cases at bar, the instructions given by the trial judge made it totally clear that the State had the burden in proving these elements. Furthermore, like the trial judge in Leland, the trial judge here set the insanity defense apart as a separate issue for the jury's decision. The jury in the present cases, therefore, could not have been confused as to the State's burden on intent, premeditation and deliberation. Thus, Leland v. Oregon, supra, does not command that we reach a different conclusion in this case, nor in State v. Hammonds, supra.
Defendant urges the Court to adopt the viewpoint that evidence of abnormal mental condition should be considered on the issue of specific intent. He contends that evidence relating to mental disease and incapacity should be considered in determining whether the State proves beyond a reasonable doubt the elements of specific intent to kill after premeditation and deliberation. Suffice it to say, we have rejected this argument in State v. Cooper, supra, and in State v. Hammonds, supra, and again we do so in this case.
Defendant next argues that G.S. 15A-959 conflicts with this Court's decision in State v. Hammonds, supra. This section reads as follows:

"Notice of defense of insanity.  (a) If a defendant intends to raise the defense of insanity, he must within the time provided for the filing of pretrial motions under G.S. 15A-952 file a notice of his intention to rely on the defense of insanity. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make other appropriate orders.
"(b) If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he must within the time provided for the filing of pretrial motions under G.S. 15A-952(b) file a notice of that intention. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make other appropriate orders."
Following this section, the commentary contains the following passage:
". . . A defendant intending to raise the defense of insanity would almost always wish to come forward with his own expert; however, there may be a number of situations where the defense of insanity is not technically raised but expert testimony as to mental state will be introduced to negative the defendant's culpability with respect to some element of the offense. This section would require notice in either situation."
It is contended by defendant that G.S. 15A-959(b) and the accompanying commentary establishes the theory of "diminished responsibility" as law in North Carolina and, as such, conflicts with Hammonds. We deem it implausible that the Criminal Code Commission, which drafted the statute and wrote the commentary, would implant a new and far-reaching theory on North Carolina law by implication or through the text of explanatory material. If the statute was intended to establish the principle of diminished responsibility, this would have been done in the body of a statutory section, not by implications in the commentary. Further G.S. 15A-959 is a notice statute dealing with pretrial procedure and not with substantive law. We hold, therefore, that the statute does not conflict with State v. Hammonds, supra, and no reconsideration of that case is required.
It is next contended that the trial court erred in denying defendant's various motions for nonsuit, directed verdicts and new trial. Defendant urges quite strenuously that the motion for directed verdicts on the specific charges of first degree murder should have been granted. The ground for this contention is that the State failed to adduce sufficient evidence bearing upon the *430 defendant's sanity at the time of the murders.
A motion for a directed verdict of not guilty has the same effect as a motion for judgment as of nonsuit. State v. Cooper, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). It is well settled that on such motion the court is to consider the evidence in the light most favorable to the State. Any conflicts and discrepancies in the evidence are to be resolved in the State's favor and the State is entitled to every reasonable inference which may be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Further, in all cases there is a presumption of sanity, and when there is other evidence to support this presumption, this is sufficient to rebut defendant's evidence of insanity on a motion for nonsuit or for a directed verdict. State v. Hammonds, supra.
In the cases at bar, there was evidence from several State's witnesses which indicated a sane mind. Robert L. Jackson, Jr. testified that just prior to the crimes defendant acted in a friendly manner. On cross-examination, this witness testified that defendant had stated when he came to the Jackson's door, "Good Evening. How are you doing?" Shortly thereafter, according to Mr. Jackson, defendant stated that he did not want to hurt Mr. Jackson, his wife or his child. When the police arrested defendant, they questioned a group of people as to who was Joe Louis Harris. Defendant immediately said, "I am Joe Harris." The arresting officer testified that defendant gave the police no difficulty when apprehended. There was no evidence that defendant acted abnormally immediately after the crimes were committed. Although defense witnesses did indicate that defendant had not been acting normally prior to the crimes, such evidence need not be considered on a nonsuit motion under the holding of State v. Hammonds, supra.
The defendant also offered two expert psychiatric witnesses. Both witnesses stated flatly that they did not know whether defendant was able to distinguish between right and wrong at the time of the murders. Both of the witnesses stated that at the time of the murders defendant's ability to understand the nature and quality of his acts was affected.
It is well established in this State that the test of insanity as a defense to a criminal charge is whether defendant is laboring under such a defect of reason from a disease of the mind as to be incapable of knowing the nature and quality of his acts or, if he does know this, he is incapable of distinguishing between right and wrong in relation to such acts. State v. Cooper, supra; State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973), cert. den., 414 U.S. 1042, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1968).
In the instant cases, the testimony of the two expert witnesses was not sufficient to support a motion for nonsuit. This is particularly true in the light of State v. Shepherd, supra, wherein two expert witnesses testified that defendant did not know the difference between right and wrong. In that case, there was also evidence tending to show that defendant was sane. The Court in Shepherd held that since some evidence of sanity was presented, the trial court's denial of the nonsuit motion was proper. In the cases at bar, based upon the above testimony and the presumption of sanity, there was even stronger reason for denying the proffered motions. Any conflicts in the evidence of sanity were properly an issue for the jury.
Finally, defendant assigns as error the refusal of the trial court to submit to the jury the question of defendant's guilt of second degree murder. He contends that inasmuch as the felony-murder rule was not applicable to the individual homicides charged herein, the trial court was required to submit to the jury the question of defendant's guilt of second degree murder as to each of the charges. He insists that considering the State's evidence, in the light most favorable to the State, the jurors could have concluded that the defendant *431 committed each of the homicides. However, as to whether each homicide was committed with premeditation and deliberation, defendant contends that the evidence was wholly circumstantial and the jurors could have found that the State had failed to prove beyond a reasonable doubt that the defendant did premeditate and deliberate on each homicide. Defendant cites State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936), in support of this position.
In Perry, the defendant was tried upon an indictment charging first degree murder. The State introduced sufficient evidence to support a conviction of first degree murder based upon premeditation and deliberation. No evidence was introduced tending to show that the murder was committed by any of the statutory means stated in C.S. 4200 (now G.S. 14-17) or in the perpetration or attempted perpetration of a felony. The trial court instructed the jury to return a verdict of murder in the first degree or not guilty. This Court held that the failure to submit an issue of murder in the second degree was error. In reaching this conclusion, the Court stated:
"It is only in cases where all of the evidence tends to show that the homicide was committed by means of poison, lying in wait, imprisonment, starving, torture, or in the perpetration or attempt to perpetrate a felony, that the trial judge can instruct the jury that they must return a verdict of murder in the first degree or not guilty. In those cases where the evidence establishes that the killing was with a deadly weapon the presumption goes no further than that the homicide was murder in the second degree, and if the state seeks a conviction of murder in the first degree it has the burden of proving beyond a reasonable doubt that the homicide was committed with deliberation and premeditation. Under such circumstances it is error for the trial judge to fail to submit to the jury the theory of murder in the second degree, since it is the province of the jury to determine if the homicide be murder in the first or in the second degree, that is, whether they, the jury, are satisfied beyond a reasonable doubt, from the evidence, that the homicide was committed with deliberation and premeditation.. . ." 209 N.C. at 605-06, 184 S.E. at 546.
The holding in Perry was based upon the cases of State v. Spivey, 151 N.C. 1676, 65 S.E. 995 (1909), and State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928). In Spivey, the defendant was charged with first degree murder. The State introduced evidence that defendant killed the victim either by "lying in wait" or in the attempted perpetration of a felony (arson). The defendant introduced evidence of alibi. The trial court instructed the jury to return a verdict of guilty of murder in the first degree or not guilty. This Court held that there was no error in the trial judge's refusal to submit an issue of murder in the second degree. The Court stated:
"After a careful review of the decisions of this Court, and a critical examination of the statute (Revisal, sections 3631 and 3271) [now G.S. 14-17], we deduce the following doctrine: Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed in perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, and where there is no evidence and where no inference can fairly be deduced from the evidence of or tending to prove, a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of `guilty of murder in the first degree,' if they are satisfied beyond a reasonable doubt, or of `not guilty.' . . ." 151 N.C. at 685-86, 65 S.E. at 999.
The second case relied upon in Perry was State v. Newsome, supra. In Newsome, there was evidence tending to show that the defendant murdered the victim either during an attempted rape or with premeditation and deliberation. The trial judge instructed the jury that it could return a verdict of murder in the first degree or not *432 guilty. The judge refused to submit an issue of second degree murder. This Court held that this refusal was error. The Court reaffirmed the rule enunciated in State v. Spivey, supra. The Court, however, enunciated a different rule for those cases in which the State bases its first degree murder charge upon premeditation and deliberation:
". . . When, however, the State relies upon evidence tending to show . . . deliberation and premeditation, the jury should be instructed that if they fail to find from the evidence, beyond a reasonable doubt, that the murder . . . was committed after deliberation and premeditation, they should return a verdict of guilty of murder in the second degree, provided, of course, they shall find from the evidence, beyond a reasonable doubt, that the defendant committed the murder." 195 N.C. at 563-64, 143 S.E. at 193.
The Court then stated the reason for this rule:
". . . Deliberation and premeditation, if relied upon by the state, as constituting the homicide murder in the first degree, under the statute, must always be proved by the evidence, beyond a reasonable doubt. In such case, under the statute as construed by this Court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt. Premeditation and deliberation are always matters of fact to be determined by the jury, and not matters of law to be determined by the judge." 195 N.C. at 564, 143 S.E. at 193.
This same reasoning was used by Justice Bobbitt (later Chief Justice) in State v. Propst, 274 N.C. 62, 71, 161 S.E.2d 560, 567 (1968):
". . . 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. [Citations omitted.]"
We hold, therefore, that in all cases in which the State relies upon premeditation and deliberation to support a conviction of murder in the first degree, the trial court must submit to the jury an issue of murder in the second degree. Again, we reaffirm the rule originally stated in State v. Spivey, supra, that in those cases in which the State proves a murder committed by one of the means stated in G.S. 14-17, or in the perpetration or attempted perpetration of a felony, an instruction to the jury to return a verdict of murder in the first degree or not guilty is proper; provided, that there is no evidence, or any inference deducible therefrom, tending to show a lesser offense. See State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969); State v. Spivey, supra.
In the present cases, the issue of premeditation and deliberation was for the jury. The refusal of the able trial judge to submit an issue of second degree murder, therefore, was error. This error entitles defendant to a new trial.
Other assignments of error present questions which probably will not recur at another trial. Discussion thereof is unnecessary and inappropriate at this time.
For the reasons stated above, defendant is entitled to a new trial and it is so ordered.
New Trial.
