{ "id": 8559380, "name": "STATE v. DONALD LEROY PROPST", "name_abbreviation": "State v. Propst", "decision_date": "1968-06-14", "docket_number": "", "first_page": "62", "last_page": "73", "citations": [ { "type": "official", "cite": "274 N.C. 62" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "8 A.L.R. 3d 1236", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "1246-1262" } ], "opinion_index": 0 }, { "cite": "51 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "229 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167610 ], "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0662-01" ] }, { "cite": "11 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "218 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621442 ], "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0491-01" ] }, { "cite": "8 S.E. 2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610186 ], "opinion_index": 0, "case_paths": [ "/nc/217/0445-01" ] }, { "cite": "3 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595136 ], "opinion_index": 0, "case_paths": [ "/nc/216/0067-01" ] }, { "cite": "90 S.E. 785", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "172 N.C. 960", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256438 ], "pin_cites": [ { "page": "965-966" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0960-01" ] }, { "cite": "80 S.E. 72", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "77" } ], "opinion_index": 0 }, { "cite": "164 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658898 ], "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/164/0497-01" ] }, { "cite": "118 N.C. 1148", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "143 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "72 S.E. 1075", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "157 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659415 ], "opinion_index": 0, "case_paths": [ "/nc/157/0614-01" ] }, { "cite": "118 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] }, { "cite": "61 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "232 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603572 ], "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0402-01" ] }, { "cite": "56 S.E. 2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "231 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629443 ], "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0307-01" ] }, { "cite": "199 S.E. 284", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "214 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630458 ], "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0326-01" ] }, { "cite": "199 S.E. 31", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "214 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629865 ], "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0249-01" ] }, { "cite": "197 S.E. 573", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "213 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630362 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0719-01" ] }, { "cite": "149 S.E. 590", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "197 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629574 ], "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/197/0445-01" ] }, { "cite": "159 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "273 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574394 ], "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0051-01" ] }, { "cite": "157 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "129-130" } ], "opinion_index": 0 }, { "cite": "271 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565233 ], "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0521-01" ] }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "116 S.E. 2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622143 ], "opinion_index": 0, "case_paths": [ "/nc/253/0050-01" ] }, { "cite": "107 S.E. 2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620349 ], "opinion_index": 0, "case_paths": [ "/nc/249/0637-01" ] }, { "cite": "85 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614001 ], "opinion_index": 0, "case_paths": [ "/nc/241/0559-01" ] }, { "cite": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "155 S.E. 2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571098 ], "opinion_index": 0, "case_paths": [ "/nc/270/0773-01" ] }, { "cite": "155 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "271 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562331 ], "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0023-01" ] }, { "cite": "53 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1961014 ], "opinion_index": 0, "case_paths": [ "/nc/53/0136-01" ] }, { "cite": "72 S.E. 203", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "156 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272437 ], "opinion_index": 0, "case_paths": [ "/nc/156/0624-01" ] }, { "cite": "94 N.C. 847", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652235 ], "weight": 2, "pin_cites": [ { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/nc/94/0847-01" ] }, { "cite": "142 A.L.R. 961", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "972-992" } ], "opinion_index": 0 }, { "cite": "62 S.E. 638", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "149 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271054 ], "opinion_index": 0, "case_paths": [ "/nc/149/0454-01" ] }, { "cite": "49 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "229 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165471 ], "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0251-01" ] } ], "analysis": { "cardinality": 1154, "char_count": 30648, "ocr_confidence": 0.554, "pagerank": { "raw": 9.835271596911464e-07, "percentile": 0.9821701960230114 }, "sha256": "eb3315fa5a57969b5870b0b0b7dea3d31e39665c127241a62315877736367334", "simhash": "1:a36dc1271f45945b", "word_count": 5229 }, "last_updated": "2023-07-14T17:57:51.245619+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. DONALD LEROY PROPST." ], "opinions": [ { "text": "Bobbitt, J.\nOrdinarily, 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 \u00a7 65. See Annotation, \u201cInvestigation of present sanity to determine whether accused should be put, or continue, on trial,\u201d 142 A.L.R. 961, at 972-992.\nAt 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\u2019s 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\u2019 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.\nSubsequently, the report of February 14, 1967, signed by Dr. Laczko, was made. The \u201cClinical Notes,\u201d diagnosis and recommendations set forth therein, which relate to defendant\u2019s .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\u2019s condition as of October 10, 1966. Although at May 30, 1967 Session defendant\u2019s counsel stated \u201che had nothing that had transpired since February 14, 1967, concerning the defendant\u2019s mental condition,\u201d 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\u2019s 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 record discloses, no further hearing was conducted and no findings of fact or determinations were made in respect of defendant\u2019s mental capacity.\nWhether 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: \u201c(T)he defendant\u2019s 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.\u201d 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\u2019s 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.\n\u201cIn determining a defendant\u2019s 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 co-operate with his counsel to the end that any available defense may be interposed.\u201d 21 Am. Jur. 2d, Criminal Law \u00a7 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 \u201ca 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.\u201d At trial, in passing upon a defendant\u2019s plea of not guilty because legally insane when the alleged crime was committed, \u201c(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.\u201d 2 Strong, N. C. Index 2d, Criminal Law \u00a7 5; State v. Spence, 271 N.C. 23, 38, 155 S.E. 2d 802, 813.\nAlthough 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.\nThe court instructed the jury as to the law applicable to the asserted defense that defendant was legally insane when the alleged crime was committed.\nIn 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\u2019s intoxication. Defendant assigns' as error this asserted deficiency in the charge.\nIn 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.\nIf and when the State satisfied the jury from the evidence beyond a reasonable doubt that the defendant intentionally shot Taylor with a .38 pistol and thereby proximately caused Taylor\u2019s 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. \u201cThe 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.\u201d 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.\nA 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.\nIt 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: \u201cThe 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\u2019s 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.\u2019 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,\u2019 these terms contain, as an essential element of the crime of murder, \u2018a purpose to kill previously formed after weighing the matter\u2019 (S. v. Banks, 143 N.C. 658; S. v. Bowden, 118 N.C. 1148), 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.\u201d Later decisions in accord include the following: State v. English, 164 N.C. 497, 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.\nAs stated by Walker, J., in State v. Foster, supra: \u201c(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\u2019s mental condition at the time the alleged offense was committed.\u201d\nDecisions in other jurisdictions relating to intoxication as a defense to a \u201cspecific intent crime\u201d are collected and reviewed in Annotation, \u201cModern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge,\u201d 8 A.L.R. 3d 1236, at 1246-1262.\nThe 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.\nIn our view, the evidence as to defendant\u2019s 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\u2019s 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\u2019s intoxication and should have given instructions as to how it should be considered.\nAlthough 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.\nError and remanded.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Deputy Attorney General Moody for the State.", "Sim/pson & Simpson for defendant appellant." ], "corrections": "", "head_matter": "STATE v. DONALD LEROY PROPST.\n(Filed 14 June 1968.)\n1. Criminal Law \u00a7 29\u2014\nOrdinarily, it is for the court in its discretion to determine if the circumstances brought to its attention are sufficient to caE for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense.\n2. Same\u2014\nWhether 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, and the practice of submitting to the jury an issue as to the present mental capacity of defendant simultaneously with the issue of his guilt or innocence of the offense charged is expressly disapproved by the Supreme Court.\n3. Criminal Law \u00a7 5\u2014\nAt the trial, in passing upon a defendant\u2019s plea of not guilty because legally insane when the alleged crime was committed, the 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.\n4. Criminal Law \u00a7 29\u2014\nUpon defendant\u2019s arraignment to plead to the offense of murder in the first degree as charged in the indictment, the trial court had the duty to conduct a hearing into defendant\u2019s capacity to stand trial upon defense counsel\u2019s suggestion that defendant was incompetent to plead to the indictment or to assist counsel in his defense, when there had been previous findings upon medical expert testimony within the past year that defendant was without sufficient mental capacity to stand trial, and even though counsel stated that he had no evidence concerning defendant\u2019s mental condition since the last hearing thereon.\n5. Homicide \u00a7 14\u2014\nDefendant\u2019s plea of .not guilty puts in issue every essential element of the crime of first degree murder, and the State must satisfy the jury from the evidence beyond a reasonable doubt that defendant unlawfully killed the deceased with malice and in execution of an actual, specific intent to kill formed after premeditation and deliberation.\n6. Same\u2014\nWhen the State satisfies the jury from the evidence beyond a reasonable doubt that the defendant intentionaEy shot the deceased with a pistol and thereby proximately caused his death, there arise the presumptions that the killing was (1) unlawful and (2) with malice, constituting the offense of murder in the second degree.\n7. Same\u2014\nThe presumptions arising from a killing proximately caused by the intentional use of a deadly weapon does not relieve the State of the burden to establish beyond a reasonable doubt the additional elements of premeditation and deliberation which are necessary to constitute murder in the first degree.\n8. Same; Homicide \u00a7 4\u2014\nA 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 presumptions of unlawfulness and of malice.\n9. Criminal Haw \u00a7 6\u2014\nIt is well settled that voluntary drunkenness is not a legal excuse for crime; but where a specific intent, or premeditation and deliberation, is essential to constitute a crime or a degree of a crime, the fact of intoxication may negative its existence.\n10. Homicide \u00a7 25\u2014\nAlthough evidence of defendant\u2019s intoxication in this prosecution for first degree murder was insufficient to support a jury finding that defendant was utterly unable to form a specific intent to kill after premeditation and deliberation or to form a specific intent to shoot the deceased with a deadly weapon, there was sufficient evidence of defendant\u2019s intoxication to warrant its submission to the jury for their consideration, and the trial court\u2019s failure to refer to such evidence and apply the law thereto is prejudicial.\nAppeal by defendant from Campbell, J., May 30, 1967 Session of BURKE.\nAt March Session 1966, defendant was indicted for the first degree murder of Ralph Henderson Taylor on February 21, 1966.\nOn March 10, 1966, on motion of Simpson and Simpson, defendant\u2019s court-appointed counsel, Judge Froneberger entered an order transferring defendant to the Dorothea Dix Hospital in Raleigh, N. C., \u201cfor observation, study and examination in order that reports as to his mental condition might be obtained.\u201d\nOn May 3, 1966, a report from said hospital, signed by Dr. Walter A. Sikes, Superintendent, after \u201cClinical Notes,\u201d concluded: \u201cThe Medical Staff made the following diagnosis and recommendations: Diagnosis: Paranoid state. Recommendations: (1) Donald Propst is unable to plead to the bill of indictment and he is unable to understand the charges against him. (2) Donald Propst should be committed to the Dorothea Dix Hospital under the provisions of G.S. 122-91 and G.S. 122-83.\u201d (Note: The report identified defendant as a \u201c29 year old white divorced male\u201d who \u201ccustomarily weighed around 400 or over pounds,\u201d and was unable to \u201cmaintain any type of regular employment due to his size,\u201d and who had been \u201cfinancially sustained by his brother, Frank, over the last 8 or 10 years.\u201d)\nOn October 10, 1966, a second report from said hospital, signed by Dr. A. L. Laczko, Director of Criminal Unit, after \u201cClinical Notes,\u201d concluded: \u201cThe Medical Staff made the following diagnosis and recommendations. Diagnosis: Without Psychosis (Not Insane). Recommendations: (1) Donald Propst is able to plead to the Bill of Indictment and he is able to understand the charges against him. (2) Donald Propst does know the difference between right and wrong. (3) Return to Court.\u201d\nThe case was calendared for trial at the November 1966 Session. On Monday, November 21, 1966, the first day of said two-week session, defendant\u2019s counsel moved that the case be removed to another county for trial, or that a special venire of jurors from another county be ordered. The record is silent as to rulings, if any, with reference to these motions.\nOn November 28, 1966, according to the agreed case on appeal, \u201cafter six jurors were selected,\u201d defendant\u2019s counsel made a motion under G.S, 122-84 \u201cthat a determination be made by the Court concerning the capacity of the defendant to stand trial,\u201d and that \u201ca hearing was held for this purpose\u201d by Judge Clarkson, the presiding judge. Dr. Walter A. Sikes, Dr. James T. Nunnally, III, Dr. Andrew Laczko, and Dr. Archie M. Rayburn, testified at said hearing.\nAfter hearing said testimony, Judge Clarkson entered an order which, after recitals, concluded as follows:\n\u201cAfter hearing the testimony, as appears in the record, the Court was of the opinion that Defendant was not, because of his mental condition, able to stand trial at this time; and therefore, the Court in accordance with the provisions of General Statutes 122-34 (sic) found that the Defendant was without sufficient mental capacity to undertake his defense or to receive sentence after conviction.\n\u201cAt This Time It Is, Therefore, Obdered, Adjudged and Decreed that the case be continued and further that the Defendant be sent back to Dorothea Dix Hospital, taken by the Sheriff of Burke County, fpr further observation and treatment; a copy of this Order to accompany this Defendant to Dorothea Dix Hospital in Raleigh; and that authorities of said hospital shall report to the Superior Court of Burke County at what time in the future it is the opinion of the Superintendent and the medical staff that the Defendant does have sufficient mental capacity to undertake his defense.\n\u201cIt Is Further Ordered, Adjudged and Decreed that the testimony taken before the Court in this inquiry be transcribed by the Court Reporter and the transcript filed with the court papers in this case; the transcript to be at the expense of Burke County.\u201d\nOn February 14, 1967, a third report from said hospital, signed by Dr. A. L. Laczko, Director of Criminal Unit, after \u201cClinical Notes,\u201d concluded: \u201cThe Medical Staff made the following diagnosis and recommendations. Diagnosis: Without Psychosis (Not Insane). Recommendations: (1) Mr. Donald LeRoy Propst is able to plead to the Bill of Indictment and he is able to understand the charges against him. (2) Mr. Donald LeRoy Propst does know the difference between right and wrong. (3) Return to Court.\u201d\nAccording to the case on appeal, \u201cdefendant was returned for trial at the June 1967 Term of Burke County Superior Court\u201d; that, \u201cwhen asked how he pleaded,\u201d defendant\u2019s counsel informed the court \u201che did not feel the defendant is competent at the present time to plead to a bill of indictment, nor to assist counsel in preparing the defense of this case.\u201d Defendant\u2019s counsel tendered to the court a transcript (now on file in this Court) of the testimony of said doctors taken before Judge Clarkson on November 21, 1966. The case on appeal states: \u201cThe defendant then, through his counsel, entered a plea of not guilty; attorneys for the defendant then objected to an arraignment on the basis of incompetency of the defendant to stand trial, and to plead to the bill and to assist counsel in the defense of his case. Upon inquiry by the Court, counsel for defendant informed the Court that defendant\u2019s plea of the offense charged was not guilty, by reason of incompetency at the present time, and not guilty on grounds of insanity at the time of charging the defendant with the murder of Ralph Henderson Taylor.\u201d\nAfter reciting the facts substantially as stated above, Judge Campbell, the presiding judge, \u201cthen called upon counsel for the defendant to submit any evidence that the defendant had as to anything that transpired since February 14, 1967, pertaining to the defendant\u2019s mental condition.\u201d Defendant\u2019s counsel announced \u201cthat he had nothing that had transpired since February 14, 1967, concerning the defendant\u2019s mental condition.\u201d Thereupon, according to the record, the court proceeded with the selection of jurors.\nAfter the jury was selected, sworn and impaneled, the court proceeded with the trial of defendant for murder as charged in the indictment.\nEvidence was offered by the State and in behalf of defendant.\nUncontroverted evidence tends to show: On February 21, 1966, and prior thereto, defendant (Donald), twenty-nine, and his brother, Frank, forty-two, lived in a trailer, by themselves, \u201cseveral miles\u201d from the Taylor Hosiery Mill, owned by Ralph Henderson Taylor, where Frank was employed. Taylor died from wounds inflicted by bullets from a .38-caliber pistol fired by defendant.\nThe State offered three witnesses. Dr. John C. Reece testified Taylor\u2019s death was caused by described bullet wounds. Charlie Polk and J. D. Hoyle, employees of said hosiery mill, testified in substance, except where quoted, as set out below.\nCharlie Polic: On February 21, 1966, about 3:00 p.m., the door of the plant \u201cwas slammed open\u201d and defendant came in, hollering, \u201cHey, Ralph; where is Ralph?\u201d and \u201cWhere is Ralph Taylor, the s.o.b. ... I come to kill him.\u201d Defendant \u201chauled loose\u201d and hit Polk, saying, \u201cDon\u2019t you go for a knife,\u201d and \u201c(i)f you do, you s.o.b., I\u2019ll kill you.\u201d Polk, saying he had no knife, struck defendant and \u201cstaggered him back.\u201d At that time, Taylor came through the office door into the plant and said, \u201cDonald, we can\u2019t have that going on here; you will have to get out of my place of business.\u201d Defendant shoved Taylor into the tool room. Two shots were fired. J. D. Hoyle was in the tool room. Taylor was \u201clying there\u201d in the tool room with a machine hammer near his head. Frank (who had entered the mill with Donald) came and looked into the tool room. Defendant and Frank Propst were \u201claughing as they went out of the door.\u201d\nJ. D. Hoyle: Hoyle was in the tool room. He first saw defendant when defendant was passing the tool room door. When he next saw defendant, defendant had a gun in his hand. Taylor, in the tool room, was facing the door. He was two or three feet from defendant. Two shots were fired. He saw Taylor\u2019s right arm or hand, apparently with an object in it, \u201ccome down on the gun\u201d about the time the first shot was fired. After the shots were fired, a hammer was near Taylor\u2019s body. After the second shot, Frank stuck his head into the door and said, \u201cOh, no, Ralph,\u201d or something to that effect. He \u201cdid not hear (Frank) laugh.\u201d His hearing is impaired \u201cabout 50 per cent.\u201d\nDefendant did not testify. Frank Propst, Wade McGalliard, Dr. Walter A. Sikes and Dr. James T. Nunnally, III, were offered as witnesses for defendant.\nWith reference to what occurred immediately prior to the shooting, Frank Propst testified as follows:\n\u201cInstead of going to the laundry Donald stopped at Ralph\u2019s hosiery mill. I said to him don\u2019t go in there; he said I\u2019m going in to see Charlie. When Donald went in the hosiery mill, I was four or five feet behind him; J. D. was in the tool room and I spoke to him; Donald went on down to where Charlie Polk was. I seen Donald slap Charlie; Ralph came out and I said Ralph, Donald is drunk, and Ralph said I don\u2019t give a damn what he is; and he grabbed Donald and Donald shoved Ralph; whenever Ralph staggered, he caught his footing again and ran into the tool room and went inside; Donald went up there close to the tool room door; I was within two or three feet of Donald and the door then; I was standing directly at the tool room door and Donald was just a little ways on the other side.\n\u201cI seen Ralph turn from his tool box with the hammer in his hand; Ralph came back to the door and I heard Donald say: Ralph, put that hammer down; and at that time when Donald first seen the hammer, Donald had the gun out. Ralph stood there in the entrance to the tool room door and kind of looked around and when he done that, he came down with the hammer onto Donald\u2019s right hand and I heard a shot. I heard two shots. After the first shot, there was another. Ralph hit Donald on the hand with the hammer; he hit Donald\u2019s right hand between the thumb and' forefinger and that is when I heard the first shot. I later observed Donald\u2019s hand and it had a-black spot between the thumb and forefinger. After the shots, I looked into the tool room and said, \u2018Oh, God, no, Ralph.\u2019 Donald said come on, Frank, let\u2019s go; and we left. Donald went out the door first and I was second.\n\u201cDonald went out to the truck; we backed out into the highway and went down by Curley\u2019s Fish Camp and went back to the trailer. There was no laughter; I didn\u2019t laugh and Donald didn\u2019t laugh. Donald drove on back to the trailer.\u201d\nWith reference to defendant\u2019s actions on February 21, 1966, prior to defendant\u2019s arrival at the hosiery mill about 3:00 p.m., Frank Propst testified in substance, except where quoted, as narrated below.\nFrank and Donald got up \u201cbetween 9:00 and 10:00 o\u2019clock\u201d and went over to the hosiery mill (at Hildebran) and got Frank\u2019s check. After getting the check cashed, they went to Smith\u2019s Barbecue in Longview and ate breakfast. After breakfast, they got some groceries and took them to their trailer-home. Afterwards, en route to Newton, they \u201cstopped at a whiskey store and bought one fifth of whiskey down at Sky City.\u201d The whiskey was opened and Donald \u201cdrank some of it, . . . about an inch or so.\u201d Leaving the whiskey store, they went to Newton where they paid a bill at a cold storage plant. While in Newton, Donald drank \u201csome\u201d of the whiskey. Upon their return to their trailer-home, Donald drank \u201cthe rest of the whiskey\u201d \u2014 \u201cpractically all of the fifth\u201d \u2014 \u201call of the whiskey except about one inch that is still in the bottle\u201d \u2014 \u201cbefore going to the laundry.\u201d Frank drank none of the whiskey. Instead of going to the laundry, defendant stopped at the hosiery mill.\nFrank did not have a driver\u2019s license. In going from place to place as set out in the preceding paragraph, defendant was driving his truck. \u201cHe had difficulty with his driving that morning; he acted like he didn\u2019t know where we were going, although we had lived around Newton for awhile and Donald had been to the cold storage place about 15 times. . . . Donald had difficulty finding his way back home; he made several wrong turns on the way and I (Frank) had to tell him which way to go. . . . He (Donald) acted like he was awfully nervous and he took a great big drink of it; he had really been tore up for the past several days; a bad case of nerves. He took a box of aspirin between the time we got up and the time we left to go to Newton. He was complaining with his head.\u201d\nWade McGalliard, a deputy sheriff, testified in substance, except where quoted, as follows: He arrested defendant at his trailer home about 3:30 p.m. He located the hammer. There was a bruise or grease spot on the section of defendant\u2019s hand between his thumb and index finger on his right hand. He \u201cdidn\u2019t smell anything unusual\u201d about defendant. About 7:35 p.m., at the sheriff\u2019s office, Frank stated \u201che saw Taylor when he hit Donald\u2019s hand which held the gun and that the gun fired,\u201d and that \u201cTaylor grabbed his side and that Donald fired again.\u201d Frank identified the pistol as belonging to defendant and said defendant \u201chad beat him badly on several occasions.\u201d\nDr. Sikes testified in his opinion defendant \u201cdid not know on February 21, 1966, the difference between right and wrong.\u201d He testified: \u201cIt is my opinion that the defendant is suffering from schizophrenic reaction chronic undifferentiated type. In laymen\u2019s words, he has lost contact with reality and has false ideas; they have difficulty distinguishing between what is real and what is not real; they at times hear voices and people talking to them that are not there; they develop ideas that are of various nature; people are against them; they have unusual powers. They are being persecuted.\u201d\nDr. Nunnally gave testimony relating to defendant\u2019s mental condition on February 21, 1966, and on May 3, 1966.\nThe jury returned a verdict of guilty of murder in the first degree with a recommendation of life imprisonment; and judgment that defendant be confined in the State\u2019s Prison for the term of his natural life was pronounced.\nDefendant excepted and appealed.\nAttorney General Bruton and Deputy Attorney General Moody for the State.\nSim/pson & Simpson for defendant appellant." }, "file_name": "0062-01", "first_page_order": 80, "last_page_order": 91 }