
217 S.E.2d 513 (1975)
288 N.C. 145
STATE of North Carolina
v.
Robert Gary BOCK, Jr.
No. 37.
Supreme Court of North Carolina.
August 27, 1975.
*519 Atty. Gen. James H. Carson, Jr., and Sidney S. Eagles, Jr., Asst. Atty. Gen., Raleigh, for the State.
W. S. Geimer, Fayetteville, for defendant appellant.
SHARP, Chief Justice:
Defendant's first and last assignments of error (Nos. 1 and 19) are based upon the premise that capital punishment is prohibited by U.S.Const. amend. VIII and amend. XIV, § 1. This is a contention which we have previously considered, and repeatedly rejected. Further discussion would be merely repetitious. See State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975).
Assignments of error Nos. 2 and 7 are specifically abandoned in appellant's brief.
Assignment of error No. 3 relates to the manner in which the jury was selected. During the process the State successfully challenged for cause six jurors, each of whom stated that he or she would not, under any circumstances, vote for a verdict *520 which would require the imposition of the death sentence. Defendant contends that he was prejudiced not only by "the exclusion of death-scrupled veniremen" from the panel but by their exclusion before he had an opportunity to cross-examine them with reference to their views on capital punishment. Neither of these contentions can be sustained.
Numerous decisions of this Court have established that a juror may be successfully challenged for cause when, before the trial has begun, he is irreparably committed to vote against the penalty of death. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973); State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
G.S. § 9-21(b) provides in part: ". . The State's challenge, peremptory or for cause, must be made before the juror is tendered to the defendant. . . . " The obvious purpose of this section is to protect defendants in criminal cases by giving them the last opportunity to challenge a venireman. As pointed out by Justice Branch in State v. Harris, 283 N.C. 46, 51, 194 S.E.2d 796, 799 (1973), "G.S. § 9-21(b) provides a procedure for the orderly selection of jurors. Its effect is to give to the defendant the last opportunity to exercise his right of challenge when the State had all pertinent information concerning the fitness and competency of the juror before he was tendered to the defendant." To allow defense counsel to cross-examine a juror who has informed the court and counsel that he is irrevocably committed to vote against any verdict which would result in a death sentence would thwart the protective purposes of G.S. § 9-21(b). Further it would be a purposeless waste of valuable court timea waste which the jury selection plan approved in State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970) was designed to eliminate.
Defendant relies upon State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974) to sustain his position on assignment No. 3. This decision, however, has no application to the facts of this case. In Britt, the trial judge refused to allow both counsel for defendant and the solicitor for the State to inquire into the moral or religious scruples, beliefs, and attitudes of the prospective jurors concerning capital punishment. He also ruled that no mention was to be made in the jury's presence of the fact that they were trying a capital case or that the death penalty might be imposed upon their verdict. For this error we ordered a new trial. The decision in Britt established the right of both the solicitor and defense counsel to examine any prospective juror tendered to him for voir dire with reference to his attitude toward capital punishment. The defendant in this case was not denied that right. On the contrary, as in State v. Perry, supra, "the method of selection offered the defendant full opportunity to exercise all his constitutional rights. The panel selected did not contain any juror to which he had objection. He fails to allege that he had exhausted his peremptory challenges." Id., 277 N.C. at 177-178, 176 S.E.2d at 731. Assignment of error No. 3 is overruled.
Assignment of error No. 4 challenges the admissibility in evidence of five photographs of Miss Stewart's body in different positions as it lay in the sandpit area clad only in a sweater pulled above her breasts. Three of the pictures showed, from different camera angles, the tire tracks on her left thigh; all showed some of the wounds which had been inflicted upon her. These photographs were relevant and material; they illustrated the testimony of Billy Shaw, the deer hunter, who came upon the body on the morning of 23 November 1973, and Officer Cockman who arrived at the scene shortly afterwards. The jury was properly instructed that the photographs were admitted for the sole purpose of illustrating the testimony of the witnesses and not as substantive evidence. "The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a *521 vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony." State v. Atkinson, 275 N.C. 288, 311, 167 S.E.2d 241, 255 (1969). See State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); 2 Strong's N.C. Index 2d, Criminal Law §§ 42, 43 (1967); 1 Stansbury's North Carolina Evidence § 34 (Brandis Rev. 1973). Assignment of error No. 4 is without merit.
Assignments of error Nos. 8 and 12 are directed to the court's "failure to sustain defendant's motion for nonsuit, particularly. . .as to the charge of murder in the first degree." In his brief defendant says that these assignments present the crucial question "whether the evidence supports a finding by the jury that the killing was done with premeditation and deliberation." In his argument under assignment No. 13 defendant concedes that "he probably killed deceased." All the evidence, albeit circumstantial, leads to that conclusion. Indeed, no other legitimate deduction arises.
As an argument that the evidence will not support a finding that the killing was done with premeditation and deliberation defendant says: "The crucial facts and circumstances immediately attendant to the death of the deceased will remain unknown.. . . The conduct of the appellant before and after the homicide is totally inconsistent with first degree murder. . . . " The evidence does not support this conclusion.
In this jurisdiction it is well established that "where one forms a purpose to take the life of another and weighs this purpose in his mind long enough to form a fixed design or determination to kill at a subsequent time, no matter how soon or how late, and pursuant thereto kills, this would be a killing with premeditation and deliberation and would be murder in the first degree." State v. Hart, 226 N.C. 200, 202, 37 S.E.2d 487, 488 (1946), State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975).
As we said in State v. Van Landingham, 283 N.C. 589, 599, 197 S.E.2d 539, 545 (1973): "Ordinarily it is not possible to prove premeditation and deliberation by direct evidence. These facts must be established by proof of circumstances from which they may be inferred. Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of defendant before and after the killing; the use of grossly excessive force, or the dealing of lethal blows after the deceased has been felled."
Defendant's statement to Detective Cockman and his testimony at the trial negate adequate provocation for the killing. After Miss Stewart and defendant had engaged in sexual relations for the second time she began "putting pressure" on him to pay her "for services rendered." He had no moneyalthough he had represented himself to her as a well-to-do landownerand an argument ensued. "She went to slap him and he slapped her instead and knocked her to the ground." He returned to the car and then saw her coming at him with his open knife, which weighed two pounds. He says that he grabbed her arm and remembers nothing thereafter until he was driving from the areaalone in her car, which was also carrying his knife. Defendant, a man over six feet tall, weighing 195 pounds, testified that Miss Stewart did not harm or hurt him in any way; that her height was about to his eye level, and that he did not believe he would have had any difficulty in defending himself against her.
Obviously, by any standards, Miss Stewart's death was an unnecessary and senseless killing, and the 55 stab wounds, "some quite deep," constituted "grossly excessive force." Furthermore, force which would have been lethal had Miss Stewart *522 not already been dead was applied when the automobile was driven over her felled body. We hold that the evidence was sufficient to take the issue of defendant's guilt of first-degree murder to the jury. State v. Van Landingham, supra, and cases cited therein.
In his 13th assignment of error defendant asserts that the trial judge erred in refusing to give the jury the following requested instruction: "Under certain circumstances, the killing of another is legally excusable. Defendant has offered evidence which tends to show that he acted in self-defense. The right to kill in self-defense is based on the necessity, real or apparent, to kill to save one's self from death or great bodily harm. If, from the evidence, you believe that defendant killed the deceased and at the time he did so, he believed that he was in danger of death or great bodily harm, then the defendant had the right to use such force as he believed necessary to protect himself, even to the extent of inflicting death. If excessive force or unnecessary violence is used in self-defense, however, the killing of the adversary is manslaughter at least."
The court correctly refused to give the foregoing instruction. First, it is not a correct statement of the law, for its omits the requirement that before one may kill in self-defense he must have reasonable grounds to believe that it is necessary to kill to protect himself from death or great bodily harm. State v. Jackson, 284 N.C. 383, 200 S.E.2d 596 (1973); State v. Rawley, 237 N.C. 233, 74 S.E.2d 620 (1953). Second, as noted in the preceding discussion of the question of nonsuit, there is no evidence tending to show any necessity, real or apparent, for defendant to kill Miss Stewart. She never hurt him in any way; he took the knife from her by simply grabbing her arm. By his own statement he does not believe he would have had any difficulty in defending himself against her; yet 55 stab wounds were inflicted upon her nude body.
The record is devoid of any evidence which would permit the jury to find that any one of the 55 stab wounds was inflicted in self-defense. Further, the law does not permit one to use a deadly weapon to repel a threatened simple assault by one whom he has disarmed and could subdue without it. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).
After the jury had retired to consider its verdict, and "had been out three minutes," the solicitor requested the judge to instruct the jury with reference to the testimony of Mrs. Bergman and defendant that he was under the influence of alcohol during the night of November 22nd. The court recalled the jury andas defendant concedescorrectly instructed it in accordance with the principles stated in State v. Hamby and State v. Chandler, 276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970); State v. Propst, 274 N.C. 62, 71-72, 161 S.E.2d 560, 567 (1968). Specifically, the Court instructed:
". . . Voluntary intoxication is not a legal excuse for crime. However, if you find the defendant was intoxicated you will consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first degree murder. In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual specific intent to kill, formed after premeditation and deliberation. If, as a result of intoxication, the defendant did not have that specific intent to kill the deceased, formed after premeditation and deliberation, he is not guilty of first degree murder. However, you would consider the other charges."
Defendant's contention, based on his assignment No. 18, is that the timing of this instruction minimized the importance of the evidence tending to show that he was drunk on the night of November 22nd and that this evidence went to "the life or death distinction between first and second degree murder." With equal logic it could be argued that the importance of the instruction *523 was emphasized when the judge called the jury back to receive it. We have noted that when errors occur in additional instructions requested by the jury, appellants invariably argue that the prejudicial effect is compounded because the jury heard them after the charge proper.
When the charge is considered as a whole the instructions bearing upon the evidence tending to show that defendant was intoxicated at the time Miss Stewart was killed were far more favorable than he was entitled to receive. Although defendant does not judicially admit he killed Miss Stewart, he concedes he "probably" did and asserts that, if he did, he was unconscious at the time and has no recollection whatever of having done so. If defendant was actually unconscious, the only explanation in the record for his unconsciousness is that it was produced by his voluntary intoxication.
Ordinarily "[u]nconsciousness is a complete, not a partial, defense to a criminal charge." 21 Am.Jur.2d, Criminal Law § 29, p. 115 (1965). See State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969). However, when unconsciousness results from voluntary drunkenness it cannot lead "to a complete acquittal." Bratty v. A.-G for N. Ireland, 3 All E.R. 523, 532-533 (1961). If a person on trial for murder in the first degree was so drunk at the time he committed the homicide charged in the indictment that he was utterly incapable of forming a deliberate and premeditated intent to kill, essential elements of murder in the first degree are absent and "it is said that `the grade of the offense is reduced to murder in the second degree.'" State v. Bunn, 283 N.C. 444, 458, 196 S.E.2d 777, 786 (1973). Notwithstanding, at defendant's request, in the body of his charge the court instructed the jury as follows:
". . . [I]n all three of the homicides which I have just defined, that is, first degree murder, second degree murder and manslaughter, intentional killing is one of the elements. I instruct you that if you find that the defendant killed the deceased the State must also satisfy you beyond a reasonable doubt that the defendant was conscious of what transpired at that time, before you could return a verdict of guilty of any offense. If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor. The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. The question of absence of consciousness is not to be confused with the defense of insanity. Defendant's conscious state and voluntary or intentional actions are not matters which he must disprove, but are elements of the offense which I have defined, and the burden remains upon the State to satisfy you of their existence beyond a reasonable doubt."
Thus, without reference to its cause, or making any distinction as to the effect of unconsciousness caused by drunkenness upon the degrees of homicide, the jury were told to find defendant innocent of any degree of homicide unless the State satisfied them beyond a reasonable doubt that defendant was conscious at the time the homicide was committed. Unconsciousness caused by drunkenness cannot lead to a complete acquittal.
The jury rejected both defendant's contention that he was unconscious at the time of Miss Stewart's death and that he was too drunk to have formed the specific intent to kill her. This rejection, however, cannot be traced to any error in the charge. Assignment No. 18 is overruled.
Defendant's assignment No. 11, based on his exception No. 37, is to the court's ruling which sustained the State's objection to the hypothetical question quoted on page 7 of the preliminary statement of facts. On the basis of his two-hour examination of defendant two days before the trial, and upon the assumptions (1) that, on the night Miss Stewart was killed, an *524 altercation arose between her and defendant and (2) that sometime thereafter defendant was driving an automobile down a dirt road, Dr. Smith was asked whether, in his opinion, defendant "probably in fact does not have complete recall of the events encompassed within this time span."
If permitted to answer Dr. Smith would have said that, in his opinion, during the early morning hours of November 23rd, defendant was in a state of pathological intoxication and "that he probably, in fact, does not have complete recall for the events encompassed within this time span."
This testimony was properly excluded. In the first place, the facts assumed in the hypothetical question were obviously insufficient to enable Dr. Smith to form a satisfactory opinion. Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448 (1967); 1 Stansbury, N.C. Evidence § 137 (Brandis Rev., 1973). Patently, the doctor's opinion was based upon evidence which was not included in the question, as well as upon facts which were not in evidence at all. The latter was defendant's history of excessive drinking followed by blackout spells or periods of amnesia, which the doctor obtained from defendant, his family and friends. However, neither defendant himself nor anyone else testified that he had such a history. Obviously, therefore, Dr. Smith's opinion was based in major part upon hearsay evidence.
"Where an expert witness testifies as to facts based upon his personal knowledge, he may testify directly as to his opinion. Generally, however, an expert witness cannot base his opinion on hearsay evidence. And when the facts are not within the knowledge of the witness himself, the opinion of an expert must be upon facts supported by evidence, stated in a proper hypothetical question. (Citations omitted)." Cogdill v. Highway Commission and Westfeldt v. Highway Commission, 279 N.C. 313, 326, 182 S.E.2d 373, 381 (1971). The opinion of a physician, however, is not ordinarily rendered inadmissible by the fact that it is based wholly or in part on statements made to him by the patient, if those statements are made in the course of professional treatment and with a view of effecting a cure, or during an examination made for the purpose of treatment and cure. Penland v. Coal Co., 246 N.C. 26, 31, 97 S.E.2d 432, 436 (1957). See 1 Stansbury's North Carolina Evidence § 136 (Brandis Rev., 1973). In such a situation it is reasonable to assume that the information which the patient gives the doctor will be the truth, for self-interest requires it. Here, however, Dr. Smith did not examine defendant for the purpose of treating him as a patient, but for the purpose of testifying as a witness for defendant in this case in which he is charged with first-degree murder. The motive which ordinarily prompts a patient to tell his physician the truth is absent here. The evidence was therefore incompetent and properly excluded.
At this point we note that amnesia itself is no defense to a criminal charge. That a defendant is subsequently unable to remember is in itself no proof of his mental condition at the time the crime was committed. 21 Am.Jur. 2d, Criminal Law § 30 (1965). Assignment of error No. 11 is overruled.
Assignment of error No. 5, directed "to the admission of certain testimony of the witness Billy Shaw, is patently without merit and requires no discussion. See State v. Greene, 285 N.C. 482, 492-493, 206 S.E.2d 229, 235-236 (1974); State v. Colson, 274 N.C. 295, 308, 163 S.E.2d 376, 385 (1968).
Assignment No. 6, to the admission of "a certain statement allegedly made by defendant to Deputy Sheriff Cockman," is also feckless. Upon defendant's motion the judge conducted a voir dire to determine its admissibility. Only Sheriff Cockman testified. Upon his uncontradicted testimony, the judge found that defendant's statement was voluntarily made after he had been fully advised of his constitutional rights and had understandingly waived them. These findings, being supported by competent evidence, *525 are conclusive. State v. Fox, 277 N.C. 1, 24, 175 S.E.2d 561, 575 (1970).
Assignments 9 and 10 relate to two questions directed to defendant, one on direct examination; the other, on cross-examination. The court's rulings upon the objections were clearly correct and these assignments are overruled without discussion. For the same reason assignments of error numbered 14, 15, 16, and 17, which challenge the court's instructions on the elements of first-degree murder, second-degree murder are likewise overruled.
We have considered the entire record in this case, as well as each of defendant's assignments of error, with care commensurate with the sentence from which defendant appeals. In his trial and conviction we unanimously find no error. By a majority vote the court also sustains the sentence of death. For the reasons stated in the dissenting opinions in State v. Williams, 286 N.C. 422, 434-441, 212 S.E.2d 113, 121-125 (1975), Chief Justice SHARP, Justices COPELAND and EXUM dissent from that portion of this opinion affirming the imposition of the death sentence and vote to remand for the imposition of a sentence of life imprisonment.
In the trial we find no error and sustain the death sentence by majority vote.
No error.
LAKE, Justice (concurring in result).
I concur in the result reached in the majority opinion but not in the statements therein concerning the defense of unconsciousness when that condition is due to voluntary drunkenness.
The burden of proving this defense, like that of insanity, is upon the defendant. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975), which overruled, on this point, State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, cited in the majority opinion upon a different point. The defendant has the burden of proving to the satisfaction of the jury that he was unconscious at the time of the alleged criminal act. When, however, this fact is so established, it is a complete defense to the criminal charge, whatever may have caused it. Voluntary drunkenness, per se, is, of course, no defense to a criminal charge. However, the mere reflex action of one who has actually lost consciousness due to the effect of alcohol voluntarily consumed (i. e., one who has "passed out," as distinguished from loss of ability to understand, to intend, to reason) is not the basis for liability for a crime requiring his voluntary act. Such crimes include the lesser degrees of homicide as well as murder in the first degree. There is no evidence whatever of such unconsciousness in the present case.
