#### STATE OF NORTH CAROLINA v. HENRY FRANK HAMMOND

No. 7720SC470

(Filed 2 November 1977)

1. Criminal Law § 5.1— insanity — burden of proof on defendant

The trial court in a first degree murder prosecution did not err in placing the burden of proof on defendant as to the issue of insanity.

2. Homicide § 30— first degree murder charged — instruction on second degree murder proper

In all cases in which the State relies upon premeditation and deliberation to support a first degree murder conviction, the court must submit the issue of second degree murder.

*391Appeal by defendant from Wood, Judge. Judgment entered 14 January 1977, in Superior Court, Anson County. Heard in the Court of Appeals 20 October 1977.

Defendant was tried upon a proper bill of indictment for the first degree murder of Herman Capel. At the first trial defendant was found guilty of first degree murder but in State v. Ham-monds [sic], 290 N.C. 1, 224 S.E. 2d 595 (1976), a new trial was awarded. At this new trial defendant was found guilty of second degree murder and was sentenced to a prison term of forty years. He appeals to this Court.

Attorney General Edmisten, by Associate Attorney Patricia B. Hodulik, for the State.

Chambers, Stein, Ferguson & Becton, P.A., by James E. Ferguson II and Louis L. Lesesne, Jr., for defendant appellant.

ARNOLD, Judge.

[1] Defendant first contends that the trial court’s allocation of the burden of proof on the issue of insanity denied defendant due process of law. He argues that the State must carry the burden of proof as to sanity. As defendant notes, this question was considered on his appeal to the Supreme Court. State v. Hammonds, supra, and our Supreme Court rejected his argument. We must also find no error in the trial court’s placing the burden of proof on defendant as to the issue of insanity.

[2] Defendant’s argument that the court erred in instructing the jury that it might return a verdict of guilty of second degree murder is also rejected. In all cases in which the State relies upon premeditation and deliberation to support a first degree murder conviction, the court must submit the issue of second degree murder. State v. Harris, 290 N.C. 718, 228 S.E. 2d 424 (1976).

No error.

Chief Judge BROCK and Judge PARKER concur.