#### STATE v. ED ALSTON.

(Filed 22 June, 1938.)

1. Homicide § 4c—

Premeditation and deliberation is an essential element of the crime of murder in the first degree, and a defendant may show as an affirmative defense to a charge of this degree of the crime, mental incapacity to premeditate and deliberate, including such incapacity brought about by drunkenness.

2. Homicide §§ 16, 27b — Defendant does not have burden of proving beyond reasonable doubt his defense of intoxication to first degree murder charge.

Defendant’s defense to the charge of murder in the first degree that at the time he was mentally incapable, because of intoxication, of premeditation and deliberation, must be supported by his own evidence or that of the State, but he is not required to establish the defense beyond a reasonable doubt, and an instruction susceptible of the construction that the burden was on him to prove the defense beyond a reasonable doubt is reversible error.

Appeal by defendant from Burgwyn, Special Judge, at Special February Term, 1938, of Dueham.

New trial.

Tbe defendant was tried at a special term of tbe Superior Court of Durham County, beginning on 14 February, 1938, upon an indictment charging him with murder.

Upon tbe trial, evidence was introduced in behalf of tbe defendant tending to show that be was intoxicated at tbe time of tbe commission of tbe crime, from which evidence tbe jury might have drawn tbe inference that be was incapable of forming tbe deliberate purpose of killing tbe deceased.

Relating to this evidence and to this defense, tbe trial judge instructed tbe jury as follows: “(a) Now tbe defendant has pleaded not guilty in this ease. He says and contends that be is not guilty, that first, be did not strike tbe old lady any blow at all, and secondly, be says that if you are satisfied from tbe evidence and beyond a reasonable doubt that be did do so, which be contends you should not be from tbe testimony, then be contends that you should not find him guilty of murder in tbe first degree because be contends that at tbe time of tbe alleged killing of tbe old colored lady by himself, tbe defendant, that be, tbe defendant, was so much under tbe influence of intoxicating liquor or whiskey that be, tbe defendant, could not then form or premeditate and deliberate a fixed design or purpose to bill or to perpetrate or to attempt to perpetrate a robbery upon tbe person of tbe deceased. And I charge you in that *94connection that it is very generally understood that voluntary drunkenness is no legal excúse for crime. This principle, however, will not be 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; and I charge you that a person who commits a crime, in this case • the crime of murder, if you are satisfied beyond a reasonable doubt from the testimony that the defendant killed the deceased while so drunk as to be incapable of forming a deliberate and premeditated design to kill or to perpetrate or to attempt to perpetrate a robbery upon her person, he is not guilty of murder in the first degree; and if you find from the evidence beyond a reasonable doubt that the defendant did kill the deceased and that at the time the defendant was' so drunk or intoxicated as to render it impossible for him to form a willful, deliberate, and premeditated intent to take the life of the deceased or to perpetrate or attempt to perpetrate a robbery from her person, the law reduces the grade of the homicide from murder in the first degree to murder in the second degree, (b).”

The jury found the defendant guilty of murder in the first degree and, from the sentence of death, the defendant appealed to this Court.

Attorney-General McMullan and Assistant Attorneys-Qeneral Bruton and Willis for the State.

Sigmund Meyer and G. W. Hall for defendant, appellant.

Seawell, J.

Upon the question of premeditation and deliberation, an essential element of the crime of first degree murder, the defendant may make the affirmative defense that, because of want of mental capacity, he was incapable of forming the deliberate purpose to kill; and may show that such mental incapacity was brought about by drunkenness. S. v. Edwards, 211 N. C., 555; S. v. Murphy, 157 N. C., 614; S. v. Shelton, 164 N. C., 513.

It is incumbent upon a defendant who relies upon such a defense to find support for it in his own evidence or that of the State; but it is not required that it be proven beyond a reasonable doubt. Since the instruction to the jury is not clear on that point, but is susceptible to the interpretation that the burden was upon the defendant to prove his matter of defense beyond a reasonable doubt, it must be held for error.

New trial.