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CAROLINA v. ALBERT COOPER" ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant\u2019s contentions on this appeal are that the trial court erred: (1) In requiring the defendant to plead to the indictment and to stand trial thereon; (2) in admitting into evidence, over objection, the testimony of Nurse Bass, Attendant Williams and Dr. Parmelee concerning statements made by the defendant to them at the Wayne Memorial Hospital; (3) in denying the defendant\u2019s motion for a directed verdict of not guilty; and (4) in its instructions to the jury concerning insanity as a complete defense to the charges and in its failure to instruct the jury concerning the defendant\u2019s mental condition with reference to the matters of premeditation and deliberation. In all of these, the crucial factor is the defendant\u2019s mental capacity. The test of sufficient mental capacity in each of these areas is different from the test to be applied in the other three.\nIf there was no error in the trial court with reference to these matters, the imposition of the several sentences to imprisonment for life was proper, these offenses having been committed prior to our decision in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19. The defendant concedes in his brief that his exceptions and assignments of error directed to the denial of his motion in arrest of judgment, to the denial of his motion to set aside the verdict and to the entering and signing of the judgments are formal and present no additional question for review. We turn, therefore, to a consideration of mental capacity as related to his four contentions.\nThe test of a defendant\u2019s mental capacity to stand trial is whether he has, at the time of trial, the mental 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 cooperate with his counsel to the end that any available defense may be interposed. State v. Jones, 278 N.C. 259, 179 S.E. 2d 433; State v. Propst, 274 N.C. 62, 161 S.E. 2d 560; State v. Sullivan, 229 N.C. 251, 49 S.E. 2d 458; Strong, N. C. Index 2d, Criminal Law, \u00a7 29; 21 Am. Jur. 2d,. Criminal Law, \u00a7 65. When, as here, this question is properly raised before the defendant pleads to the indictment, it should be determined prior to the commencement of the trial, as was done 'ih' this instance. State v. Propst, supra, at page 69. It may' be \u2018determined by the trial court with or without the aid of a jury; State v. Propst, supra, at page 68. When the court, as here, conducts the inquiry without a jury, the court\u2019s findings of fact, if supported by evidence, are conclusive on appeal. State v. Squires, 265 N.C. 388, 144 S.E. 2d 49. The fact that, at an earlier; date, a judge had found the defendant was, at that time, lacking.in capacity to stand trial does not prevent the same or a different judge from conducting another hearing and reaching a different conclusion at a later date. See, State v. Midyette, 270 N.C. 229, 154 S.E. 2d 66.\nIn this instance, there was ample expert medical testimony to support the trial court\u2019s finding that the defendant was competent to plead to the charges against him and to stand trial. The fact that the defendant had to be given medication periodically during the trial, in order to prevent exacerbation of his mental illness by the tensions of the courtroom, does not require a finding that he was not competent to stand trial when, as here, the undisputed medical testimony is that the medication did not have the effect of dulling his mind and that the specified dosage was adequate to keep his mental illness in remission. Ur. Maynard testified that, in his opinion, the defendant, at the time the case was called for trial, had the capacity to comprehend his position, to understand the nature and object of the proceedings against him and to cooperate with his counsel to the end that any available defense might be interposed. He further testified that, in his opinion, the defendant, at the time the case, was called for trial, had the capacity to remember what happened on the night of the alleged offenses and could intelligently discuss those events with his counsel, if he would. Under these circumstances, there was no error in requiring the defendant to plead to the indictments and to stand trial on the charges against him.\nThe statements by the defendant to Nurse Bass, Dr. Par-melee and Attendant Williams in the emergency room of the Wayne Memorial Hospital were confessions that he had killed his wife and the four small children. \u201cA confession is an acknowledgment in express words by the accused in a criminal case of the truth of the,guilty fact.charged or of some essential part of it.\u201d Wigmore on Evidence, 3d Ed, \u00a7 821; State v. Hamer, 240. N.C. 85, 81 S.E. 2d 193. At the time these confessions of the defendant were made, he was not in custody and was not under police interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, is inapplicable. Nevertheless, to be admissible in evidence against him, the confessions of the defendant to the hospital attendants must have been made voluntarily and understandingly. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1; State v. Whittemore, 255 N.C. 583, 122 S.E. 2d 396; State v. Hamer, supra.\nFor a confession to have been made understandingly, the defendant, at the time of making it, must have had the requisite mental capacity. In State v. Whittemore, supra, at page 587, Justice Rodman, speaking for the Court, said: \u201cIf the accused has sufficient mental capacity to testify, he has sufficient mental capacity to confess.\u201d The test of the mental competency of a witness to testify is his capacity to understand and to relate, under the obligation of an oath, a fact which will assist the jury in determining the truth with respect to the ultimate facts at issue. Strong, N. C. Index 2d, Witnesses, \u00a7 1. The trial court\u2019s finding that a confession was voluntarily and understandingly made is conclusive on appeal if there is evidence in the record to support it. State v. Fox, 277 N.C. 1, 24, 175 S.E. 2d 561; State v. Gray, supra.\nIn this instance, the trial judge found that, at the time the defendant made the statements in question, he had a sufficient understanding to apprehend the obligation of an oath, he was capable of giving a correct account of the matters which he had seen or heard with respect to the deaths of his wife and children and he made the statements in question freely, voluntarily and understandingly.\nThere was evidence that while the defendant was in the emergency examining room at Wayne Memorial Hospital he was, at frequent intervals, nervous and shaking and, from time to time, stared off into space. One who had, but a few hours previously, brutally killed his wife and four tiny children would naturally exhibit signs of nervousness and emotional stress. These manifestations by the defendant in the emergency room of the hospital fall far short of a conclusive demonstration of his lack of memory and understanding sufficient to make his confession inadmissible as a matter of law.\nThe attending physician, the nurse and the hospital attendant who heard the statements testified that, in his or her opinion, the defendant, when making them, was in his right mind, could comprehend what he was saying, responded normally to questions, knew and understood the meaning of what he was saying and was capable of relating recent facts stored in his memory. Dr. Maynard, the psychiatric expert who had the defendant in his care before and at the trial, testified that, in his opinion, the defendant was \u201cin contact with reality\u201d when he made these statements. All the evidence is that the statements were made spontaneously by the defendant to persons who knew nothing of and were not interrogating him about the subject matter of his statements prior to his making them. There was no error in the admission of the testimony concerning these confessions by the defendant.\nG.S. 8-53 specifically authorizes the trial judge to compel disclosure of a statement otherwise within the physician-patient privilege when necessary to the proper administration of justice. The judge so found and ordered with respect to the st\u00e1t\u00e9ments made to Nurse Bass and Attendant Williams and, thereupon, the defendant withdrew his objection as to Dr. Parmalee\u2019s testimony.\nA motion for a directed verdict of not guilty has the same effect as a motion for judgment of nonsuit. State v. Britt, 285 N.C. 256, 204 S.E. 2d 817. On such motion the evidence for the State is taken to be true, conflicts and discrepancies therein are resolved in the State\u2019s favor and it is entitled to every reasonable inference which may be drawn from the evidence. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679. The basis for the defendant\u2019s motion for a directed verdict of not guilty was that, at the time the alleged offenses were committed, the defendant was insane and, therefore, not criminally responsible. Obviously, the evidence was sufficient otherwise to require the submission to the jury of the charge of murder in the first degree in each case. There was evidence that each victim was bound before he or she was killed. Four of the victims were children six years of age and under. Each death was caused by a brutal assault. Brutality in a slaying is evidence of intent to kill, not, per se, a basis for finding the defendant insane. State v. Reams, 277 N.C. 391, 402, 178 S.E. 2d 65; State v. Stanley, 227 N.C. 650, 44 S.E. 2d 196; State v. Bynum, 175 N.C. 777, 783, 95 S.E. 101.\nOver and over again, this Court has said that the test of insanity as a defense to a criminal charge is the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation. State v. Humphrey, 283 N.C. 570, 196 S.E. 2d 516; State v. Jones, supra; State v. Benton, 276 N.C. 641, 174 S.E. 2d 793; State v. Rogers, 275 N.C. 411, 168 S.E. 2d 345, cert den., 396 U.S. 1024; State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241, reversed on death penalty only, 403 U.S. 948; State v. Spence, 271 N.C. 23, 155 S.E. 2d 802, reversed on another point, 392 U.S. 649; State v. Creech, 229 N.C. 662, 51 S.E. 2d 348; State v. Swink, 229 N.C. 123, 47 S.E. 2d 852. As Justice Branch, speaking for the Court, said in State v. Humphrey, supra, \u201cNorth Carolina, as well as many other jurisdictions, has steadfastly refused to recognize the \u2018irresistible impulse doctrine\u2019 as a test of criminal responsibility.\u201d\nIn State v. Duncan, 244 N.C. 374, 93 S.E. 2d 421, Justice Parker, later Chief Justice, speaking for the Court, said:\n\u201cTo determine the issue as to whether the defendant was insane at the time of the alleged commission of the offense evidence tending to show the mental condition of the accused both before and after the commission of the act, as well as at the time of the act charged, is competent, provided the inquiry bears such relation to the person\u2019s condition of mind at the time of the alleged crime as to be worthy of consideration in respect thereto. It would be impracticable to limit the evidence to such condition at the exact time.\u201d\nIn State v. Atkinson, supra, at page 313, we said that a witness, who was an expert in the field of psychiatry, was competent to relate to the jury his opinion as to the defendant\u2019s knowledge of right and wrong at the time of the alleged offense even though the witness did not observe the defendant on the precise date of the alleged offense.\nIn the present instance, Nurse Bass, who observed the defendant closely at the Wayne Memorial Hospital approximately 24 hours after his wife and children were killed, testified that, in her opinion, he then seemed to be in his right mind. In the opinion of Attendant Williams, the defendant knew right from wrong at the time they were talking; i.e., approximately 24 hours after the alleged offenses. In the opinion of Dr. Parmelee, who attended him in the emergency room, the defendant then knew right from wrong, although he was suffering then from paranoid schizophrenia and, assuming that the killings occurred while the defendant was under a delusion that his children were from outer space, the defendant nevertheless knew the difference between right and wrong and was able to control his behavior and adhere to the right and he acted according to his own free will in killing his wife and children. Dr. Maynard, an expert psychiatrist, testified that the defendant did have the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation. In view of this evidence, it is clear that the question of the defendant\u2019s insanity, as a'defense to the charges of murder, was for the jury under proper instructions by the court and the motion for a directed verdict of not guilty was properly overruled.\nThe court\u2019s charge to the jury contained the following:\n\u201cNow, in this case as to each of the bills of indictment you will be required to enter one of four verdicts. You can find the defendant guilty of first degree murder; you can find the defendant guilty of second degree murder; you can find the defendant not guilty by reason of insanity and you can find the, or you can find the defendant not guilty. That is you will have to consider five different bills of indictment, five different charges and enter one of those four verdicts as to each charge.\n[Here follow correct instructions as to the elements of first degree murder and second degree murder and the burden of proof with reference thereto.]\n\u201cNow, the defendant has the burden of proving that he was insane. However, unlike the State which must prove the defendant\u2019s guilt beyond a reasonable doubt, the defendant must only prove his insanity to your satisfaction. Therefore, I charge that if you\u2019re satisfied from the evidence that the defendant at the time of the alleged crime, and as a result of a mental disease or defect, although intelligent, either did not know the nature and quality of his act or did not know that it was wrong, you must find him not guilty.\n* * *\n\u201cNow, if on December 1, 1971, you should find and find beyond a reasonable doubt that the defendant did commit the acts which I\u2019ve described for you: first degree murder or as to second degree murder, if you are satisfied that on that date the defendant by reason of his mental disease or defect did not know the nature or quality of his act or did not know the difference between right and wrong at the time and in relation to the matters under investigation, then you would find the defendant not guilty by reason of \u2022 insanity.\u201d\nIn these instructions we perceive no error. Where, as here, there is evidence justifying the submission to the jury of the question of insanity as a defense to the charge, we believe a better r procedure would be to submit to the jury as the first issue for their consideration, \u201cWas the defendant (at the time of the alleged offense), by reason of a defect of reason or disease of jthe mind, incapable of knowing the nature and quality of the act which he is charged with having committed, or if he did know this, was he, by reason of such defect or disease, incapable of distinguishing between right and wrong in relation to such act?\u201d An affirmative answer to that issue would end the case. If the jury answers that issue in the negative, it should then proceed to determine the defendant\u2019s guilt or innocence of the offense charged just as if the defendant were a person of normal mental capacity. The failure to submit such an issue to the jury specifically, or to give it the priority here suggested, is not, however, ground for a new trial.\nThe defendant\u2019s final contention is that the court failed to charge the jury on all substantial features of the case arising on the evidence and failed to apply the law to the evidence.\nThere was no error in the failure of the court to include in its. recapitulation of the evidence the statement by Dr. Peter, contained in the discharge summary by which the defendant was returned by Cherry Hospital to the Superior Court for trial on 2 March 1972. Dr. Peter did not testify before the jury but Dr. Maynard, who did testify, said, on cross-examination by the defendant, that he, in arriving at his own expert opinion as to the ability of the defendant to distinguish right from wrong at the time of the alleged offenses, had available, and took into consideration, Dr. Peter\u2019s opinion as set forth in the discharge summary. That statement of Dr. Peter, put before the jury by the defendant\u2019s cross-examination of Dr. Maynard, was that the defendant knows right from wrong but \u201cat the time of the alleged offense wm not able to apply his knowledge of right and wrong and the alleged offense was the product of his mental illness.\u201d (Emphasis added.) This was the expression of an opinion that the defendant, by reason of his mental disease, acted under an irresistible impulse, notwithstanding his ability to distinguish between right and wrong with reference to such act. Since an irresistible impulse is not a defense under the law of this State, as above noted, it was not error for the court to fail to refer to this statement by Dr. Peter in his recapitulation of the evidence.\nThe defendant says the court also erred in its failure to instruct the jury that it should consider the evidence of the defendant\u2019s mental disease on the question of premeditation and deliberation.\nIt is well established that to convict a defendant of murder in the first degree, when the killing was not perpetrated by one of the means specified by G.S. 14-17 and was not committed in the perpetration of or attempt to perpetrate a felony, the State must prove beyond a reasonable doubt that the killing was with premeditation and deliberation. G.S. 14-17; Strong, N. C. Index 2d, Homicide, \u00a7 4, and the numerous cases therein cited. It is also well established that a specific intent to kill is a necessary ingredient of premeditation and deliberation. State v. Baldwin, 276 N.C. 690, 700, 174 S.E. 2d 526; State v. Robbins, 275 N.C. 537, 169 S.E. 2d 858; State v. Propst, supra, at page 71. It follows, necessarily, that a defendant who does not have the mental capacity to form an intent to kill, or to premeditate and deliberate upon the killing, cannot be lawfully convicted of murder in the first degree, whether such mental deficiency be due to a disease of the mind, intoxication, as in State v. Alston, 214 N.C. 93, 197 S.E. 719, or some other cause. It does not follow, however, that there was reversible error of omission in the charge of the trial court in the present case.\nThe jury, by its verdict, has established that the defendant, at the time of the alleged offenses, had the mental capacity to know right from wrong with reference to these acts. This distinguishes the present case from cases such as State v. Alston, supra, dealing with intoxication as a defense. That finding, supported as it is by ample evidence, is conclusive on appeal, irrespective of a contrary opinion by the defendant\u2019s mother and irrespective of inferences which might reasonably be drawn from the State\u2019s evidence as to the defendant\u2019s appearance and manner when first observed by the police officer and when being examined in the emergency room of the Wayne Memorial Hospital.\nWe may take judicial notice of the well known fact that a dog, a wild animal or a completely savage, uncivilized man may have the mental capacity to intend to kill and patiently to stalk his prey for that purpose. The law, however, does not impose criminal responsibility upon one who has this level of mental capacity only. For criminal responsibility it requires that the accused have, at the time of the act, the higher mental ability to distinguish between right and wrong with reference to that act. It requires less mental ability to form a purpose to do an act than to determine its moral quality. The jury, by its verdict, has conclusively established that this defendant, at the time he killed his wife and the four little children, had this higher level of mental capacity. It necessarily follows that he had the lesser, included capacity. The jury also determined that he did, in fact, premeditate and deliberate upon the intended killings. It made these determinations in the light of proper instructions as to what constitutes premeditation and deliberation. Premeditation and deliberation do not require a long, sustained period of brooding. State v. Fountain, 282 N.C. 58, 70, 191 S.E. 2d 674; State v. Reams, supra.\nNo error.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.", "type": "majority", "author": "LAKE, Justice." }, { "text": "Chief Justice Sharp\ndissenting:\nI concur in the majority\u2019s conclusion that the trial court correctly ruled: (1) that on 30 October 1972 defendant was competent to stand trial upon the five indictments which respectively charged him with the first degree murder of his wife Catherine and their four children, Pamela, aged six; Albert, Jr., aged five; Dawn, aged three; and Josephine, aged seven months; (2) that the statements which defendant made to hospital personnel in the emergency room on 2 December 1971 were admissible in evidence; and (3) that defendant\u2019s motion for a directed verdict of not guilty was properly overruled. I dissent from the holding that the judge correctly charged the jury with reference to insanity and mental disease as it bears upon an accused\u2019s guilt of murder in the first degree.\nPlenary undisputed evidence established that on 1 December 1971, the date of the homicides for which defendant now stands convicted, he was and had been suffering from the diagnosed, serious mental disease of paranoid schizophrenia, which was then in a state of exacerbation. This evidence was for the jury\u2019s consideration in determining whether defendant had proved to the satisfaction of the jury that he was insane as defined by this Court and therefore completely exempt from criminal responsibility for the homicides of which he has been convicted. The trial judge purported to charge the jury to this effect. However, he failed to charge the jury that this evidence was also for consideration in determining whether the State had proved beyond a reasonable doubt the elements of specific intent to kill, after premeditation and deliberation, essential to conviction for murder in the first degree. In my judgment, defendant is entitled to a new'trial for error of both commission and omission in the judge\u2019s instructions to the jury.\n. My views with reference to this case are those stated by former Chief Justice Bobbitt at the Fall Term 1974 in an opinion which was not adopted by the Court. With minor variations the statement of facts and propositions of law contained in this dissent are taken from that opinion, in which I concurred when it was tendered to the Court. In the main, the variations herein are necessary to make the phraseology of a majority opinion conform to that of a dissent and to set forth the facts, insofar as possible, in chronological order.\nThat the statement of facts in this dissent and in the majority opinion contain duplications is regrettable. However, consideration of the question whether the court should have instructed the jury to consider evidence of defendant\u2019s mental disease on the issue of premeditation and deliberation requires detailed consideration of the evidence relating to defendant\u2019s mental disease and his abnormal behavior which was characteristic of the disease. To indicate as clearly as possible the basis of the legal opinions herein expressed, in the facts set out below, I have endeavored to narrate defendant\u2019s story chronologically as it emerged from all the evidence.\nDefendant was born on 14 August 1944. In September 1965, while in military service, he married his wife Catherine, who was 15 or 16 years old and a resident of Goldsboro. At that time she was expecting a child, which, defendant told his mother, was his.\nIn 1965, while defendant was on active duty in Vietnam, he experienced his first acute schizophrenic reaction and fired an M-16 rifle into a headquarters tent occupied by troops. He was sent by plane to Walter Reed Hospital in Washington, D. C. On 1 June 1966 he was returned to his unit in Vietnam. In 1968 he was in Womack Hospital at Fort Bragg for six months. There he \u201cwas diagnosed schizophrenia, and received a medical discharge from the service.\u201d In 1969 he returned to Goldsboro where he worked intermittently at various jobs. Frequently he \u201cwas out sick.\u201d In 1970 he was treated as an outpatient at Seymour Johnson Air Force Base Clinic.\nIn 1971 defendant, his wife, and their five children were living in Lincoln Homes, a low-rent housing project in Golds-boro. In July 1971 defendant\u2019s mother-in-law heard him tell Catherine that four of the five children were not his. (As noted in the majority opinion, nothing in the evidence substantiates defendant\u2019s belief that his wife was unfaithful.)\nOn or about 1 September 1971 defendant arrived at the home of his mother, Mrs. Suevonia Stewart, in Kansas City. With him was his four-year-old son, Suevonia (Boney), his mother\u2019s namesake. Two weeks before he had telephoned Mrs. Stewart four times in one day to tell her that he was coming. Upon his arrival defendant was \u201cvery frightened and disturbed.\u201d He \u201cput the baby down,\u201d closed the door and a Venetian blind, and said \u201cthat someone was after him to kill him and the baby; that he just did make it.\u201d He asked her to take him to Richard Gebur Air Base, saying: \u201cThere\u2019s a plane there that is going to take me directly to Thailand.\u201d He said he was going to Thailand \u201cto keep those people from killing me. . . . I\u2019ve got to get'away fast before they get here.\u201d All of this conv\u00e9rsation occurred within an hour or so after he arrived at Mrs. Stewart\u2019s house.\nDefendant was so determined that she took him in her automobile to Richard Gebur Air Base. There they learned that no planes were \u201cfixing to leave,\u201d and defendant said: \u201cThey must be gone; they are not coming back; we\u2019ll have to go back to the house and I\u2019ll make other arrangements.\u201d He was still very frightened when they got back home. He asked her not to turn on any lights, to make sure the doors were locked, and for all the family to stay in the same room. No one went to bed that night. She slept in a chair, holding the baby in her lap. Her younger daughter sat by her. Defendant sat across from them and said, \u201c[d]on\u2019t make a sound because those people are all around the house.\u201d She knew he was sick and tried in every way to comfort and reassure him. She told him her dog would bark if anyone came around the house; that no one was going to bother him. She \u201ckept talking to him this way all night and finally got him kind of calmed down.\u201d\nThere were other nights when he could not sleep. He would not stay in a room by himself but stayed with his mother. He was afraid \u201csomething or some people from outer space were coming.\u201d One night he reported to his mother that [they] came after [him] and they wanted to talk to [him]\u201d but that he refused to talk to them at night. Another night when Mrs. Stewart woke up, defendant was sitting over her, staring down on her \u201cwildly and frightened looking.\u201d At that time she had the feeling he was about to harm her. When she asked what was wrong, he replied: \u201cYou\u2019ve suffered so much in raising us up; now you still have to go to work.\u201d His mother explained that she was happy; that she still had her health and strength and was self-supporting; that she thanked God for letting her raise her children, and that she hoped he would raise his in the manner she had raised him.\nShe took him to the airport at least three more times because he kept insisting that a plane was supposed to take him to Vietnam. He was \u201cin such a state of mind and such a rage\u201d that she \u201csaw no other way but to put him in the car and carry him out there.\u201d\nDefendant did not leave the home alone. Although employed, Mrs. Stewart did not go to work regularly because defendant would cry like a small child and beg her not to leave because he was afraid to stay at home. On the days she worked, she would leave Boney with a neighbor in the same apartment.\nAbout a week after his arrival, Mrs. Stewart first took defendant to the Veterans Hospital in Kansas City, but he became frightened and would not stay. He said the people in the waiting room were some of the \u201cpeople from outer space.\u201d He returned to his mother\u2019s apartment where he stayed until, at his request, he was admitted to this hospital on September 17. His medical history at that time shows he was under the delusion he was being controlled by a cat. There he was rediag-nosed \u201cschizophrenia, paranoid type.\u201d\nHis.mother saw him frequently while he was a patient in the hospital. After he had been in the hospital about fourteen days, he called her to come for him. She did not go because a nurse also called and asked her not to come. However, upon her return from a trip to a grocery store, she found' defendant at her home. He had taken \u201cunauthorized leave\u201d from the hospital because (he said) he wanted \u201cto go to Walter Reed where [he could] be near Catherine and the children.\u201d The next morning, 30 September 1971, she took him to the airport where he obtained passage to Washington on a military flight. Defendant left the; child Boney with his mother. He had previously told her he had brought that child with him because Boney was the only one who could help him; that Boney took care of him.\nIn Washington, Walter Reed Hospital refused to admit him but referred him to a VA Hospital there. However, nothing in the record suggests that he attempted to secure admission to this hospital.\nWhen Mrs. Stewart learned by a telephone call to-Walter Reed Hospital that defendant was not there, she made two calls to Goldsboro, one to Goldsboro\u2019s Chief of Police, Roy Renfro, and the other to Mary Jane Harper, the occupant of the apartment adjoining defendant\u2019s. She told Chief Renfro to watch out for defendant; that he was mentally disturbed; that he had left the hospital without the doctor\u2019s permission and to lock him up \u201cif there was anything wrong.\u201d Renfro promised to call Catherine and let her know defendant was on his way home, but told her \u201che couldn\u2019t lock Albert up because Albert hadn\u2019t done anything.\u201d\nMrs. Harper testified that Mrs. Stewart told her she thought defendant was \u201con his way back home and if he comes there and you hear anything over there you call the police. I\u2019ve already called the police there, and I\u2019m telling you and I have wrote Catherine a letter because I told him all of those children could not be light.\u201d According to Mrs. Harper, all the,children were light like defendant and his mother except the little boy, Albert, Jr., who was darker like Catherine.\nTwo days later when Mrs. Stewart reached defendant by telephone, he told her that because Walter Reed did not have a bed for him he \u201chad come home\u201d; that \u201che and Catherine had made everything all right and he wanted to come back to Kansas City and buy a home.\u201d Thereafter Mrs. Stewart talked with Catherine, with whom she \u201chad a wonderful relationship,\u201d more often than with Albert. Her last conversation with Catherine \u201cwas about a week before December 1, 1971.\u201d\nMrs. Stewart testified that none of the children had a lighter complexion than either defendant or herself; that defendant \u201cnever told [her] that none of the children were his except the one he brought out to Kansas City\u201d; that he did say \u201che wasn\u2019t sure about Albert, Jr., his second child.\u201d She reprimanded him and refused to \u201clisten to that conversation.\u201d She told him she \u201cdidn\u2019t want him being like so many other young men. They wait, they love their wife to death until they get pregnant and then they want to deny their children.\u201d Thereafter, defendant made no other statement to her \u201cabout not being the father of any of the other children.\u201d\nMrs. Stewart\u2019s testimony on direct examination concludes as follows: Based upon her observations of defendant during the entire time he was visiting her in Kansas City \u2014 before he went to the VA Hospital there, while he was in the VA Hospital, and after he left the VA Hospital \u2014 it is her opinion that he \u201cdidn\u2019t know right from wrong at that time . . . that he was not acting in his right mind . . . that he was insane.\u201d\nIn October 1971 and thereafter defendant went to Seymour Johnson Air Force Base Clinic at Goldsboro several times. Being on \u201ctemporary retirement,\u201d he was entitled to and did receive medications at this clinic. However, because of his continued failure to keep appointments, the clinic refused to give him any more time. In the opinion of Dr. Ladislaw Peter, the psychiatrist who is the Superintendent of Cherry Hospital, defendant\u2019s condition \u201cwas getting gradually worse and worse\u201d after his return to Goldsboro in October 1971.\nOn Wednesday, 1 December 1971, between 11 and 11:30 a.m., George Uzell, a neighbor, saw Catherine run from the Cooper apartment. Defendant caught her,- threw her to the ground, beat her with his fists, and pulled her back into the apartment. Shortly thereafter, Uzell heard \u201csome screams\u201d and noises \u201clike somebody knocking over furniture or something.\u201d He figured it was \u201ca family problem\u201d and did nothing to help Mrs. Cooper. Nor did he call the police. About 5 p.m. Catherine ran from her apartment to the front door of Mrs. Harper\u2019s apartment. When Mrs. Harper went to the door defendant pulled Catherine back, threw her down on the ground, and was \u201cmashing her in the bosom.\u201d Catherine called out, \u201cMiss Mary, call the police,\u201d and defendant said, \u201cYes, Miss Mary, call the police and call the rescue squad.\u201d Mrs. Harper requested the operator to send the police to her address, and the operator said, \u201call right.\u201d When she went back to the door, neither Catherine nor defendant was in sight. The police never came to Mrs. Harper\u2019s house. About 7 p.m. Mrs. Harper knocked on the door of the Cooper apartment. When she identified herself, defendant said, \u201cMiss Mary, I can\u2019t see you now.\u201d At that time she heard no sound in the apartment. The radio in the Cooper apartment, \u201cone of those stereos,\u201d played all during the night of December 1.\nThe radio was still playing on Thursday, December 2, about 5 p.m. when defendant came over to the Harper apartment, and called a cab. At that time he \u201cwas nervous and trembling and real wet with perspiration.\u201d As he turned to go, he said, \u201cCat is sick.\u201d When Mrs. Harper asked for details, defendant did not answer. The cab arrived, defendant went back into Ms apartment, got his coat, and left in the cab. About 7 p.m. Mrs. Harper went to the Cooper apartment. No one answered her knock and the door was locked. She then called Mrs. Jackson, Catherine\u2019s mother, to come over and check on Catherine, that defendant had said she was sick. When Mrs. Jackson and her sons arrived at the Cooper apartment, they were met by a policeman. (A description of the situation they found in the Cooper apartment is deferred.)\nNothing in the evidence discloses the whereabouts or activity of defendant on December 2 from 5 p.m. until about 8 p.m. when Sergeant Whaley of the Goldsboro police force found him in the locker room of a bowling alley after having been advised of the presence of a sick person there. Defendant appeared to be \u201cin a nervous condition.\u201d He had \u201ca slipper on one foot and a shoe on the other.\u201d Although defendant insisted that \u201cnothing was wrong,\u201d Whaley thought he needed to: see a doctor and asked if he could take him to the hospital. Defendant said, \u201cNo, I want to go home, that\u2019s what I want to do.\u201d Asked if he \u201chad a knife or anything on him,\u201d defendant replied, \u201cNo,\u201d and gave Whaley permission to \u201cpat him down.\u201d Whaley found no knife but felt something on defendant\u2019s stomach which defendant referred to as \u201ca package.\u201d He told Whaley he could not see the \u201cpackage,\u201d that he was going to deliver it on Lincoln Drive. Whaley, apprehensive that the package contained sticks of dynamite, telephoned Lieutenant Harvell to meet him at Jefferson and Ash Streets. Defendant got into the car \u201cof his own free will and accord\u201d after Whaley told him he \u201cwas going to take him home.\u201d Whaley drove to the intersection and was met by Harvell, who had known defendant. At Harvell\u2019s request, defendant opened his shirt. Three table legs were taped to his stomach. Defendant ripped off the tape and the table legs were removed. Each was about an inch in diameter and about eleven or twelve inches long.\nLeaving Harvell, Whaley took defendant to the Wayne County Memorial Hospital between 8 and 8:30 p.m. Upon arrival, defendant \u201cwas nervous and shaking.\u201d Every once in a while he \u201cwould just shake all over.\u201d During the time defendant was in the hospital, he was not under arrest. Whaley took him there to find out what was wrong with him. He thought defendant \u201cmight be on drugs or something like that.\u201d Whaley observed defendant during six or eight periods of shaking; Harvell, during two. According to Harvell, \u201cOverall, taking his overall behavior, he acted like a man not in his right mind.\u201d When he was shaking and staring into space, he did not appear to be in his right mind. At other times he did. After defendant was received in the emergency room, Whaley had no further conversation or contact with defendant, but he observed him occasionally through the open door to the room in which he had been placed.\nIn the emergency room defendant told Mrs. Bass, the nurse in charge, that he needed help. He told her to \u201ccall the police\u201d; that \u201csomething awful is wrong at my house\u201d; that \u201che had destroyed his wife and children\u201d; that he \u201cbeat them.\u201d When Mrs. Bass talked to defendant, \u201che acted relaxed at times; at times he was shaking almost over his entire body and was staring about in the room.\u201d In the treatment room, he looked \u201cplace to place and from person to person\u201d for ten to fifteen minutes. On more than one occasion, defendant said, \u201cI don\u2019t understand; I don\u2019t know why I did it.\u201d When questioned, he \u201cstarted shaking and looking from place to place again.\u201d\nDefendant also made these statements to Mrs. Bass: \u201cI was walking around like a normal man listening to the radio. Then I started dancing around like a wild man. I destroyed my family. . . . The music gave me sensations which told me my family was people from the moon to kill me.\u201d All during the time defendant was in the emergency room (almost three hours) he \u201cwas in certain intervals shaking, and glancing from place to place.\u201d Defendant\u2019s statements to Mrs. Bass were \u201cin sketches sort of\u201d over a period of 30 to 45 minutes.\nAbout 9 p.m. when Isaiah Williams, Jr., a medical attendant, asked him how he was feeling, defendant said he did not know and \u201cstarted trembling and shaking and looking all around the room.\u201d Later, defendant told him he needed help to try to make up for what he had done, \u201cmaybe to make things right again\u201d; that he had killed his wife and children; that the reason he did it \u201cwas sensations from the music going to his brain.\u201d\nDuring Williams\u2019s first conversation with defendant on December 2, defendant \u201ctalked only as if he was in a total state of confusion and he knew nothing that had happened.\u201d He was in a nervous state, shaking, trembling, and looking all about the room, and reeling off, \u201cI need help; I need help; I need help.\u201d After an hour or two Williams thought defendant seemed a little calmer, but he was still trembling as from fright. In answer to Williams\u2019s questions as to why he did it, defendant said, \u201cIt was sensations going to my brain, music from the radio giving these sensations.\u201d At one point defendant said that \u201cthey wanted him to dress like an Indian and fight the Americans.\u201d After making this statement, defendant dropped back into his confused state and did not respond to Williams again.\nDr. Warren Parmelee, the physician on duty, in the emergency ward, is a medical doctor who had had \u201csome studies, in psychiatry.\u201d He attended defendant for about an hour and a half on the night of December 2. He testified that at first defendant was so nervous and upset it was difficult to communicate with him, but after 20 or 30 minutes he began to make such statements as, \u201cThey\u2019re after me . . . they will get you . . . trou-. ble at home.\u201d Later he expressed himself .in more complex phrases. He said, \u201cThere is someone dead at home and the police should check.\u201d At the end of an hour he was reporting that he had killed his wife and children because they were from outer space. At one time when the hospital radio ceased to play music and began a news broadcast, defendant told Dr. Parmalee that \u201cthose voices\u201d were telling him to kill Dr. Par-melee. He was very disturbed by those voices. It was Dr. Parmelee\u2019s opinion, and he so advised the police officers, that defendant \u201cshould not be sent to jail and confined\u201d; that he should be put in Cherry Hospital with maximum security. Dr. Parmelee diagnosed defendant\u2019s condition as schizophrenic reaction, paranoid type, with homicidal expression.\nDuring the late hours of 2 December 1971, Chief District Court Judge Nowell signed an order \u201cthat Albert Cooper be confined to Cherry Hospital for a period of sixty days for the purpose of undergoing psychiatric examination.\u201d After having remained in the Wayne County Memorial Hospital \u201csome four hours,\u201d defendant was taken on a stretcher in a rescue squad truck to Cherry Hospital. Whaley and Captain Flores followed the truck in a police car. Harvell went to defendant\u2019s apartment.\nWhen Lieutenant Harvell arrived at defendant\u2019s apartment at'approximately 8:80 p.m., he found Officer Isler, Mrs. Jackson, arid' her sons outside. The doors were locked, and no one had entered. Harvell helped Mrs. Jackson\u2019s young son through a window, and he opened the front door. Upon entering the apartment, the group came upon a scene of death and destruction,' described in part as follows-:\nThe apartment \u201cwas in a total and complete disarray.\u201d The. tables were turned over; legs were off of chairs and couches; and contents of drawers and closets were scattered around the house. Three legs missing from one of' the tables were those defendant had on his person when Whaley found him in the bowling alley at 8 p.m. Bedclothes covered some of the victims. Albert, the five-year-old, had been put in a pillowcase, \u201chead and all,\u201d and was completely covered. In the living' room, music was playing very loud; the television was not turned on. The front of. the television was covered with masking tape. The light sockets and light switches were also taped. The bodies of Catherine and Pamela were in the living room. Albert\u2019s. body was near a closet. The body of Dawn, the three-year-old, was in the kitchen. The body of Josephine, the baby, was in the bathroom. All were dead, their hands tied behind them, principally with 'electric cords.\nDr. Jack Newton Drummond, Medical Examiner for Wayne County, joined the police at the Cooper apartment at 8:40 p.m. on December 2. In Dr. Drummond\u2019s opinion, Catherine bled to death from severed arteries and veins in her neck; Pamela died of a skull fracture, probably inflicted by a baseball bat;: and Albert, Dawn, and Josephine died of skull fractures, probably inflicted by a hammer. It was his further opinion that all the victims had been dead \u201cone and a half to three hours\u201d when he examined the bodies; that all of them \u201cwere within the same state of rigor mortis.\u201d ' ' -'T\nDr. Drummond testified that he found in the bathroom of the apartment \u201ca bloody butcher knife on the floor, a hammer and a baseball bat bloody\u201d; that \u201c[t]here was a large puddle of blood on the carpet extending from under [Catherine\u2019s] neck and head,\u201d and that he observed there \u201cwere socks on [Catherine\u2019s] hands\u201d; that he found a radio in the refrigerator and records in the washing machine. Dr. Drummond \u201ccouldn\u2019t say either way as to whether a person who would create the condition or situation as existed in the Cooper apartment on the night in question [was] a person who did not know right from wrong at the tim\u00e9 that this took place.\u201d All he could say was that the mental condition of the person who did this was \u201cseverely disturbed.\u201d\nDefendant was admitted to Cherry Hospital on the morning of 3 December 1971 in such a state of agitation that he was put under heavy sedation. He was disoriented except as to place and person, suffering severe thought disorders, and admitting to both auditory and visual hallucinations. Dr. Ladislaw Peter, who was then assistant superintendent of the hospital and regional director for forensic psychiatry and attendant for the forensic unit, examined him on December 4 and thereafter.\nOn 9 March 1972 Dr. Peter reported to the court that \u201cdue to treatment with psychiatric drugs in adequate doses\u201d defendant\u2019s disease, paranoid schizophrenia, was presently in partial remission, and that he was able to stand trial.\nAt April 1972 Session Judge Cowper conducted a hearing to determine whether defendant had sufficient mental capacity to plead to the bill of indictment and conduct a rational defense. After hearing the testimony of Dr. Peter and statements by defendant\u2019s court-appointed counsel, Judge Cowper found as a fact that at time defendant was suffering from mental disease to such an extent that he could not stand trial or assist counsel in the preparation of his defense. Judge Cowper ordered that defendant \u201cbe recommitted [to Cherry Hospital] to remain indefinitely and to receive treatment.\u201d\nIn an order dated 9 August 1972, signed by Judge Fountain, provided for the return of defendant from Wayne County jail to Cherry Hospital. The record does not show the circumstances leading up to the entry of this order.\nPursuant to a report and discharge summary from Cherry Hospital, signed by Dr. Eugene V. Maynard, Director of the Forensic Psychiatric Unit at Cherry Hospital, dated 12 September 1972, defendant was taken from Cherry Hospital to the Wayne County jail. Later he was returned to the Cherry Hospital for \u201csubstantial\u201d medication, having regressed while in jail awaiting trial.\nPursuant to a discharge dated 5 October 1972, defendant was sent'from Cherry Hospital to the Wayne County jail. However, the record shows that he was recommitted to Cherry Hospital on 9 October 1972 by order of Judge Fountain. The record does not disclose the circumstances leading up to the . entry of this order. -.\nThere was no further discharge of defendant from Cherry Hospital. He was classified there \u201cas a boarder only.\u201d-During the trial at 30 October 1972 Session, defendant was transported d\u00e1ily between the courthouse and Cherry Hospital and received medication at the hospital given under Dr. Maynard\u2019s- supervision.\nAt 30 October 1972 Session, before pleading, defendant\u2019s counsel again raised the question and asked for a determination of whether defendant was then capable of pleading to the indictment and of conducting a rational defense. To determine this question, Judge Webb conducted a voir dire hearing. The evidence consisted of the testimony of Dr. Peter, who was then the Superintendent of Cherry Hospital, and of Dr. Maynard. Reports previously submitted by each of these psychiatrists were also in evidence. Both agreed that defendant was then able to stand trial, and Judge Webb so found.\nIn addition to the voir dire to determine defendant\u2019s competency to stand trial, Judge Webb also heard evidence to determine whether defendant\u2019s statements to personnel at the Wayne County Hospital on the night of 2 December 1971 were admissible in evidence. Dr. Peter, Dr. Maynard, and Dr. Parmelee testified on this second voir dire. Dr. Maynard and Dr. Parmalee also testified before the jury. Dr. Peter, however, did not. The record offers no explanation why the defense failed to call him as a witness.\nThe doctors all agreed that defendant had been and was then suffering from paranoid schizophrenia. In brief summary their descriptions of the characteristics and symptoms of this serious mental disease are narrated below.\nAccording to Dr. Maynard: \u201cParanoid schizophrenia is a mental disease of psychotic depth, that is, of insanity depth. . . . Psychosis simply that the mental functioning of an individual is so impaired as to prevent his meeting the everyday problems of life in an external environment.\u201d Paranoid schizophrenia \u201cis characterized by disorders of thinking, behavior and emotional feeling, often manifested by hallucinations and delusional thinking.\u201d It is characterized by periods of exacerbation and of remission. Exacerbation is an acute schizophrenic episode in which there may be \u201ca complete disorganization of a personality.\u201d Although \u201c[t]here is no heal to schizophrenia,\u201d the disease may be kept in remission by tranquilizing drugs.\nAccording to Dr. Peter: Schizophrenia is characterized by an estrangement of the individual from reality which is sometimes complete. Paranoid means that a person has false ideas, delusions, such as delusions of grandeur and of morbid fears of persecution. There is usually no factual basis for the suspicions of a person who is paranoid, but he cannot be shaken from his delusions by any argument or reason. A paranoid schizophrenic has symptoms of two separate mental disorders simultaneously. A worsening of the condition creates a relapse or exacerbation of the disease. Paranoid schizophrenia is in remission when under control by drugs.\nAccording to Dr. Parmelee: Hallucination is a sensory perception; it is something a person hears, smells, feels, or sees which does not really exist. A delusion is the interpretation of a situation contrary to what is actually happening. A paranoid schizophrenic who is experiencing either delusions or hallucinations is at 'that time out of contact with reality and is not in his right mind.\nThe testimony summarized below reveals the divergent views of Dr. Peter and Dr. Maynard, the two psychiatrists, and the views of Dr. Parmelee, a medical doctor, with reference to defendant\u2019s mental condition at the time of the homicides and during the time he was in the Wayne County Hospital on December 2.\nDr. Peter, who first saw defendant three days after the homicides, testified that he had \u201cexamined him, his background, his medical records, and everything pertinent to his psychiatric evaluation\u201d; that in his opinion \u201cat the time of the alleged offense he [defendant] was not able to exercise his capacity to distinguish between right and wrong\u201d; that when a person suffering from paranoid schizophrenia is experiencing either auditory or visual hallucinations he is in a state of relapse, and is less able to distinguish between right and wrong and to understand the nature and consequences of his actions. \u201cIt is possible that he knows the nature and character of his act but is not able to distinguish between right and wrong with reference to it. Based on the testimony of the Wayne County Hospital personnel who saw defendant on the night of December 2, Dr. Peter formed the opinion \u201cthat at that time he [defendant] was out of contact with reality.\u201d\nOn voir dire Dr. Peter said: \u201cI am familiar with the M\u2019Naghten rules under the legal concept of insanity. In my opinion on the date that this offense was committed the defendant, because of his mental disease, was unable to decide at that point, apply the rule of right and wrong in this particular case. In my opinion as regards this particular offense he was not able to distinguish between right and wrong and adhere to the right.\u201d\nDr. Maynard, basing his evaluation of defendant upon Dr. Parmelee\u2019s report, hospital records, information from members of the staff, his personal examination and observation of him since 1 June 1972, and other testimony in the case with reference to defendant\u2019s conduct before and after the killings, made the following statements upon voir dire and before the jury:\n\u201cI could not give an answer as to whether he was suffering from the disease [paranoid schizophrenia] on the date of the alleged offense. The disease is one of remission and exacerbation. In my opinion on the date of the alleged offenses he did understand the nature and quality and wrongness of his actions.\n\u201cI have examined Dr. Peter\u2019s report in which he stated that it was [his] opinion that due to exacerbation of his longstanding mental illness, the defendant at the time of the alleged offense was not able to apply his knowledge of right and wrong and that the alleged offense was the product of his mental illness. I do not agree with that conclusion. Dr. Peter is my superior at Cherry Hospital.\u201d\n\u201cIt is a frequent thing for psychiatrists to disagree on diagnosis on the same facts and in this case there actually was a disagreement between myself who first saw the defendant in June 1972 at which time I had been a psychiatrist for a month and the opinion of Dr. Peter who at the time was acting superintendent of Cherry Hospital and had been a psychiatrist for 32 years.\u201d\n\u201cIf a person completely believes what imaginary voices are telling him [kill or be killed], he can choose the alternative of being killed.\u201d Dr. Maynard added that, in deciding upon a course of behavior, every person \u201cis presented with alternatives whether he is hallucinating or whether he is not hallucinating\u201d; that it has been his \u201cexperience with paranoid schizophrenics that most of them select the correct alternatives.\u201d\nDr. Maynard also testified that in his \u201cpsychiatric opinion,\u201d defendant should not go free in society; that most persons suffering with paranoid schizophrenia resist medications; that d\u00e9fendant\u2019s disease was in remission because of drugs, the continued use of which is essential to keep the disease in remission; that if defendant should be returned to uncontrolled living in his community where he is not properly supervised and medicated-it is likely he could commit acts just as violent as those charged in this case; that, in the event of his acquittal, he should be recommitted to Cherry Hospital to protect himself and society \u201cfrom a possible regression to an active schizophrenic process\u201d; that \u201can active schizophrenic process can well result in the commission of acts of violence over which the person who is mentally ill has no control.\u201d\nIn the opinion of Dr. Parmelee a person can be out of touch with reality and simultaneously know right from wrong. He testified: \u201c[I]t is true that as far as he [defendant] was concerned there were voices telling him that his family were from outer space and that he was going to be attacked by them:. . . yet he was capable of feeling that these were wrong, and I. feel that in my opinion he acted according to his own free will in committing these crimes .... I would say that if you and I are told to do something we know better than to do it. I am not suffering from any severe mental disorders to my knowledge. I feel that my response to a command that was completely unreasonable could be judged under the same context as Albert Cooper\u2019s response even though he was suffering from an exacerbation of his disease. I feel that he is still just as capable of refusing to commit an immoral act as a person not suffering from the disease.\u201d\nThe foregoing resumes make it quite clear that, despite their conflicting opinions as to whether defendant had mental capacity to understand what he was doing at the time of the homicides and, if he did, to know what he was doing was wrong, the doctors all agreed that defendant was the victim of a serious mental disease.\nIn this case, upon each of the five bills of indictment, the State asked for a verdict of guilty of murder in the first degree as a \u201cwillful, deliberate and premeditated killing\u201d within the meaning of G.S. 14-17.\nIn his charge to the jury, after defining each of the elements of first degree murder and of second degree murder, the judge gave instuctions that the burden of proof was on the State to satisfy the jury from the evidence beyond a reasonable doubt of every element of the crime before they could find defendant guilty of such crime.\nWith reference to insanity as a complete defense, the court instructed that the burden of proof was on the defendant to prove to the satisfaction of the jury that he was insane when the alleged crime was committed.\nIn accord with the indicated prior instructions, near the conclusion of the charge, the court instructed the jury as follows:\n\u201c . . . [I] f you find from the evidence and beyond a reasonable doubt that on or about December 1, 1971, Albert Cooper intentionally and without justification or excuse used either a knife, baseball bat or hammer or any other thing as a deadly weapon thereby proximately . . . causing the victim\u2019s death, and that Albert Cooper intended to kill the victim, and that he acted with malice and premeditation and deliberation, it would be your duty to return a verdict of guilty of first degree murder; however, if you do not so find or have a reasonable doubt as to one or more of these things you will not return a verdict of guilty of first degree murder.\n\u201cNow, if you do not find the defendant guilty of first degree murder in any of the bills of indictment you must determine whether he is guilty of second degree murder .... If you find from the evidence and beyond a reasonable doubt that on or about December 1, 1971, Albert Cooper intentionally and with malice and without justification or excuse and using either a knife, baseball bat or hammer or any other object as a deadly weapon and attacked the victims, thereby causing the victim\u2019s death, nothing else appearing, it would be your duty to return a verdict of second degree murder; however, if you do not so find or have a reasonable doubt as to one or more of these things you will not return a verdict of second degree murder.\n\u201cNow, if on December 1, 1971, you should find and find beyond a reasonable doubt that the defendant did commit the acts which I\u2019ve described for you: first degree murder or as [sic] to second degree murder, if you are satisfied that on that date the defendant by reason of his mental disease or defect did not know the nature or quality of his act or did not know the difference between right and wrong at the time and in relation to the matters under investigation, then you would find the defendant not guilty by reason of insanity.\n\u201cOn the other hand if you should not be satisfied beyond a reasonable doubt as to any of the things necessary to find the defendant guilty of either first degree murder or second degree murder, then you should find the defendant not guilty.\u201d\nIn order to form a specific intent to kill, after premeditation and deliberation, one must have the required mental capacity. A person who is legally insane is devoid of such mental capacity. The instructions place upon the State the burden of establishing beyond a reasonable doubt defendant\u2019s specific intent, after premeditation and deliberation, to kill the deceased. They place upon defendant the burden of establishing to the satisfaction of the jury that defendant was legally insane. These instructions are in conflict. To instruct the jurors to return a verdict of guilty of murder in the first degree if the State has satisfied them beyond a reasonable doubt that defendant intentionally killed the deceased after premeditation and deliberation but not if defendant has satisfied them that he was legally insane, is illogical and can only lead to confusion.\nWhen insanity is pleaded as a complete defense to the charge of murder in the first degree, in which proof of a \u201cwillful, deliberate and premeditated killing\u201d is essential, and the commission of the homicide by defendant is judicially admitted, the first issue is whether, by reason of his insanity, defendant is not guilty of the crime charged or of any lesser included criminal offense. If the jury finds that defendant was insane, the prosecution fails completely and further consideration becomes unnecessary.\nIn the absence of a judicial admission that defendant committed the homicide, it would be appropriate to submit as the first issue an issue worded substantially as follows: \u201cDid the defendant kill the deceased?\u201d The burden of proof rests upon the State to establish beyond a reasonable doubt the affirmative of such issue. A negative answer would end the case. If answered in the affirmative, the jury would consider a second issue worded substantially as follows: \u201cIf so, was defendant insane when the killing occurred?\u201d Upon this issue, the defendant would have the burden of proving to the satisfaction of the jury that this issue should be answered \u201cYes\u201d. An affirmative answer to this issue would end the case. If answered in the negative, instructions appropriate to a prosecution in which insanity is not pleaded as a complete defense would be applicable.\nIn this jurisdiction, there has been no requirement that a defendant specially plead insanity as an affirmative defense. In State v. Potts, 100 N.C. 457, 460, 6 S.E. 657, 658 (1888), the defendant, when arraigned, answered: \u201cI admit the killing, but was insane at the time of the commission thereof; therefore, not guilty.\u201d The trial judged rejected as irrelevant and surplus-age all portions of tendered plea execpt the words, \u201cnot guilty.\u201d Holding this ruling \u201cwas entirely proper,\u201d this Court stated that, under the plea of not guilty, \u201cevery defense to the charge, in repelling, or mitigating and reducing the offense to a lower grade, was admissible.\u201d Accord, State v. Nall, 211 N.C. 61, 188 S.E. 637 (1936), which quotes with approval the above statement in Potts.\nIn Nall, the defendant, when arraigned, entered a general plea of not guilty. After testifying that the fatal shot was fired by another person, the defendant, through counsel, announced to the court that he pleaded insanity, his plea of not guilty being-based \u201cfirst, upon the ground that he did not commit the act, and, second, upon the ground that if the jury should find he committed the act, that he was not responsible for the reason that he was insane.\u201d Cf. State v. Sandlin, 156 N.C. 624, 626, 72 S.E. 203, 204 (1911).\nNall is cited in State v. Johnson, 256 N.C. 449, 452, 124 S.E. 2d 126, 128 (1962), but solely with reference to rulings on evidence.\nThere is no reason why a defendant may not enter simultaneously a general plea of not guilty and a plea of not guilty by reason of insanity. A plea of not guilty by reason of insanity does not per se constitute an admission of any of the elements necessary to be established by the State beyond a reasonable doubt as a prerequisite to a verdict of guilty. But cf. State v. Bowser, 214 N.C. 249, 254, 199 S.E. 31, 34 (1938), in which the decisions cited do not seem to support certain of the statements in the opinion.\nIn State v. Swink, 229 N.C. 123, 125, 47 S.E. 2d 852, 853 (1948), Ervin, J., restated the rule in this jurisdiction as follows : \u201c [A] n accused is legally insane and exempt from criminal responsibility by reason thereof if he commits an act which would otherwise be punishable as a crime, and at the time of so doing is laboring under such a defect of reason, from disease of the mind, as to be incapable of knowing the nature and quality of the act he is doing, or, if he does know this, incapable of distinguishing between right and wrong in relation to such act.\u201d (Our italics.) Subsequent decisions of this Court are in strict accord: See State v. Potter, 285 N.C. 238, 249, 204 S.E. 2d 649, 656-57 (1974), and cases cited.\nWhen a defendant in a criminal case pleads insanity, the applicable rule with reference to the burden of proof on this issue has been well stated as follows: \u201cSince soundness of mind is the natural and normal conditions of men, everyone is presumed to be sane until the contrary is made to appear. This presumption of sanity applies to persons charged with crime, but it is rebuttable. [Citations omitted.] These considerations give rise to the firmly established rule that the burden of proof upon a plea of insanity in a criminal case rests upon the accused who sets it up. But he is not obliged to establish such plea beyond a reasonable doubt. He is merely required to prove his insanity to the satisfaction of the jury. [Citations omitted.]\u201d State v. Swink, swpra at 125, 47 S.E. 2d at 853.\nPrior to the enactment of Chapter 85, Public Laws of 1893, our statute relating to murder and its punishment provided: \u201cEvery person who is convicted, in due process of law, of any wilful murder of malice pretense, shall suffer death.\u201d Chapter 25, Section 1057, Code of 1883. Under the Act of 1893, now codified as G.S. 14-17, \u201c[a] murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, tor-tue, or by any other kind of willful, deliberate and premeditated killing . . . shall be deemed to be murder in the first degree. . . . \u201d (Our italics.) The intent and effect of the 1893 Act are discussed in State v. Benton, 276 N.C. 641, 657, 174 S.E. 2d 793, 803-04 (1970).\nThis dissent herein relates solely (1) to homicide cases in which proof beyond a reasonable doubt of a specific intent to kill, formed after premeditation and deliberation, is prerequisite to a conviction for murder in the first degree, and (2) to those homicide cases in which there is substantial evidence that at the time of the homicide defendant had been and was suffering from a recognized serious mental disease and engaged in abnormal behavior characteristic of such disease. If such evidence fails to satisfy the jury that defendant was insane under the rule approved by this Court and therefore completely exempt from criminal responsibility, is such evidence competent for consideration by the jury in determining whether at the time of the alleged homicides he was capable of forming a premeditated and deliberate intent to kill, and whether he did so? If so, was defendant entitled to an instruction to that effect?\nDefendant assigns error in the court\u2019s charge \u201cfor that nowhere in the charge did the court instruct the jury that it should consider the evidence of the defendant\u2019s mental disease on the matter of premeditation and deliberation.\u201d This assignment presents a serious question, apparently one of first impression in this jurisdiction. A similar question has been considered in homicide cases in which proof of a specific intent to kill, formed after premeditation and deliberation, is prerequisite to conviction for murder in the first degree, and there is substantial evidence the defendant was intoxicated when the crime was committed.\nAlthough voluntary drunkenness is not a legal excuse for crime, when a specific intent to kill, formed after premeditation and deliberation, is an essential element of the first degree murder for which defendant is prosecuted, the fact of intoxication may negate the existence of that intent. State v. Propst, 274 N.C. 62, 71-72, 161 S.E. 2d 560, 567 (1968), and cases cited; State v. Bunn, 283 N.C. 444, 458, 196 S.E. 2d 777, 787 (1973), and cases cited. In State v. Murphy, 157 N.C. 614, 72 S.E. 1075 (1911), Hoke, J. (later C.J.), states: \u201c[S]ince the statute dividing the crime of murder into two degrees [G.S. 14-17] and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the \u2018killing 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. Dowden, 118 N.C. 1148), a mental process, embodying a specific, definite intent, and if it is 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\nAlthough a number of jurisdictions adhere strictly to the view that insanity is either a complete defense or no defense at all, the weight of authority now supports the proposition that mental disease short of legal insanity may be considered in determining whether the accused at the time of the alleged homicide was capable of forming a premeditated and deliberate intent to kill, and whether he did so. Pertinent earlier decisions are cited and classified in a footnote to the opinion of Justice Reed in Fisher v. United States, 328 U.S. 463, 473-74, 90 L.Ed. 1382, 1389, 66 S.Ct. 1318, 1323-24 (1946).\nIn at least three jurisdictions, earlier decisions holding a person is either legally sane and therefore wholly responsible for all his acts, or insane and wholly irresponsible, have been overruled: United States v. Lee, 4 Mackey (DC) 489, 54 Am. Rep. 293 (1885), and District of Columbia cases in accord, were overruled in United States v. Brawner, 471 F. 2d 969 (1972) ; People v. Troche, 206 Cal. 35, 273 P. 767 (1928), app. dismd. 280 U.S. 524, 74 L.Ed. 592, 50 S.Ct. 87 (1929), and California cases in accord, were overruled in subsequent California decisions including People v. Henderson, 60 Cal. 2d 482, 35 Cal. Rptr. 77, 386 P. 2d 677 (1963) ; State v. Maioni, 78 N.J.L. 339, 74 A. 526, 20 Ann. Cas. 204 (1909), and New Jersey cases in accord, were overruled in subsequent New Jersey decisions including State v. Vigliano, 43 N.J. 44, 202 A. 2d 657 (1964).\nLater decisions are cited in footnotes 55 through 67 in United States v. Brawner, supra, at 1000-1001, and in Comment Note, 22 A.L.R. 3d 1228, \u00a7 7, at 1246. The A.L.R. Comment Note follows the report of People v. Goedecke, 65 Cal. 2d 850, 56 Cal. Rptr. 625, 423 P. 2d 777, 22 A.L.R. 3d 1213 (1967). As indicated, a substantial majority of these decisions support the proposition that evidence of mental disease short of legal insanity is competent for consideration in determining whether the accused at the time of the alleged homicide was capable of forming a premeditated and deliberate intent to kill, and whether he did so. The decisions referred to below will suffice to indicate the present majority view.\nIn Becksted v. People, 133 Colo. 72, 292 P. 2d 189 (1956), this question was presented: \u201c[U]pon trial of the issues raised under the \u2018not guilty\u2019 plea is accused entitled to introduce all competent evidence, including that of experts, which is relevant to the question of whether he lacked the mentality to form the specific malicious intent which is an essential ingredient in the crime of first degree murder, namely, the specific intent deliberately and premeditatedly to unlawfully take the life of another?\u201d This question was answered in the affirmative.\nIn State v. Green, 78 Utah 580, 6 P. 2d 177 (1931), the opinion states: \u201cIf the appellant was so afflicted with insanity that he was \u2018mentally incapable of deliberating or premeditating, and to entertain malice aforethought, and to form a specific intent to take the life of the deceased, in such event the.jury should not find him guilty of murder in the first degree.\u2019 The language just quoted is the law announced by this court in the case of State v. Anselmo, 46 Utah 137, 148 P. 1071. While the defense urged in the Anselmo Case was intoxication, the law there announced is equally applicable where, as here, the defense of insanity is made an issue.\u201d\nIn State v. Padilla, 66 N.M. 289, 347 P. 2d 312, 78 A.L.R. 2d 908 (1959), a new trial was awarded because the court failed to instruct the jury that evidence of the defendant\u2019s mental condition and defects was competent for consideration in determining whether defendant had the mental capacity to deliberate the killing. The court noted that its holding was not based on a doctrine of \u201cdiminished\u201d or \u201cpartial\u201d responsibility. In explanation of the basis therefor, the opinion states: \u201c [I] t means the allowing of proof of mental derangement short of insanity as evidence of lack of deliberate or premeditated design. In other words is contemplates full responsibility, not partial, but only for the crime actually committed.\u201d Too, the opinion, after referring to New Mexico decisions similar to our State v. Propst, supra, continues: \u201c[T]he question immediately arises as to why there should be a different rule and perhaps a more lenient one with respect to a user of alcohol or drugs than in the case of one who may be afflicted with a mental disease not of his own making. If alcohol or drugs can legally prevent a person from truly deliberating, then certainly disease of the mind, which has the same effect, should be given like consideration.\u201d\nIn State v. Gramenz, 256 Iowa 134, 126 N.W. 2d 285 (1964), the defendant was convicted of murder in the second degree. The Supreme Court of Iowa approved the trial court\u2019s instruction which, under the facts of the case, permitted the jury to consider evidence of defendant\u2019s mental condition on the issues of willfulness, deliberation and premeditation, but rejected defendant\u2019s contention that the jury should have been allowed to consider the evidence of defendant\u2019s mental condition on the elements of malice aforethought and general criminal intent.\nUnder the present California rule, a person who is suffering from a mental disease that prevents his acting with premeditation and deliberation is not guilty of murder in the first degree. Moreover, when the court is sufficiently advised that the defendant is relying upon evidence of such mental disease to negate the elements of premeditation and deliberation in first degree murder, the court is required without request therefor to instruct the jury as to the legal significance of such evidence. People v. Henderson, supra. It was so held in New Jersey in State v. Vigliano, supra.\nIn addition to the abnormal behavior of defendant herein, all of the medical testimony tends to show defendant had been and' was suffering from paranoid schizophrenia which, at the time of the homicides, was in a state of exacerbation. Under these circumstances, not withstanding the absence of a specific request therefor by defendant\u2019s counsel, it is my view that defendant was entitled to instructions that this evidence was for consideration by the jury in determining whether the State had proven that the homicides were committed pursuant to a specific intent to kill, formed after premeditation and deliberation. See State v. Propst, supra.\nCertain of the cases cited as adhering strictly to the view that \u201ca person is either \u2018sane\u2019 and wholly responsible for all his acts, or \u2018insane\u2019 and wholly irresponsible,\u201d Weihofen, Mental Disorder as a Criminal Defense, at 177-78 (1954), involved factual situations in which this Court would reach a like result. For example, in State v. Flint, 142 W. Va. 509, 96 S.E. 2d 677 (1957), it was held that the trial court properly excluded the proffered testimony of a psychiatrist to the effect that his examination of defendant disclosed that defendant\u2019s \u201cmental age\u201d was not greater than that of an average person of the age of \u201cten years and eleven months.\u201d Under our decisions such evidence of low mentality would not be competent to establish legal insanity, State v. Shackleford, 232 N.C. 299, 59 S.E. 2d 825 (1950), or to negate the elements of premeditation and deliberation in first degree murder, State v. Scales, 242 N.C. 400, 87 S.E. 2d 916 (1955). The evidence herein with reference to defendant\u2019s mental disease and abnormal behavior characteristic thereof is quite different from testimony tending to show \u201clow mentality.\u201d\nAs stated above, the rule urged herein relates solely (1) to homicide cases in which proof beyond a reasonable doubt of a specific intent to kill, formed after premeditation and deliberation, is prerequisite to a conviction for murder in the first degree, and (2) to those homicides in which there is substantial evidence that defendant was suffering from a recognized serious mental disease and engaged in abnormal behavior characteristic of such disease. The record here discloses that defendant had been and was a chronic sufferer from paranoid schizophrenia, described by all experts as a serious mental disease of psychotic depth and when in exacerbation characterized by abnormal conduct resulting from hallucinations and delusions.\nIn my view, there was ample medical and circumstantial evidence from which the jury could have found that, at the time of the homicides, defendant\u2019s disease was in relapse; that he was experiencing an active schizophrenic process, characterized by both visual and auditory hallucinations; and that he was out of touch with reality. It was Dr. Maynard who testified upon cross-examination, \u201cI do know and it is my opinion as an expert that an active schizophrenic process can well result in the commissions of acts of violence over which the person who is mentally ill has no control. I thought this was possible in the case of Albert Cooper.\u201d\nFor the reasons stated, I vote for a new trial.", "type": "dissent", "author": "Chief Justice Sharp" } ], "attorneys": [ "Attorney General Robert Morgan and Assistant Attorney General Raymond W. Dew, Jr., for the State.", "Herbert B. Hulse and George F. Taylor for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT COOPER\nNo. 89\n(Filed 14 April 1975)\n1. Criminal Law \u00a7 29\u2014 mental capacity to stand trial\nThe test of a defendant\u2019s mental capacity to stand trial is whether he has, at the time of trial, the mental 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 cooperate with his counsel to the end that any available defense may be interposed.\n2. Criminal Law \u00a7 29\u2014 mental capacity to stand trial \u2014 determination prior to trial\nWhen the question of defendant\u2019s mental capacity to stand trial is properly raised before the defendant pleads to the indictment, it should be determined prior to the commencement of the trial.\n3. Criminal Law \u00a7 29 \u2014 mental capacity to stand trial \u2014 determination by court or jury\nThe mental capacity of defendant to stand trial may be determined by the trial court with or without the aid of a jury.\n4. Criminal Law \u00a7 29\u2014 mental capacity to stand trial \u2014 determination by court \u2014 appellate review\nWhen the court conducts without a jury the inquiry into a defendant\u2019s mental capacity to stand trial, the court\u2019s findings of fact, if supported by evidence, are conclusive on appeal.\n5. Criminal Law \u00a7 29\u2014 mental capacity to stand trial \u2014 effect of previous determination\nThe fact that, at an earlier date, a judge had found the defendant was, at that time, lacking in capacity to stand trial does not prevent the same or a different judge from conducting another hearing and reaching a different conclusion at a later date.\n6. Criminal Law \u00a7 29\u2014 mental capacity to stand trial \u2014 medication during trial\nThe trial court did not err in finding that defendant was competent to plead to the murder charges against him and to stand trial, notwithstanding defendant had to be given medication periodically during the trial in order to prevent exacerbation of his mental illness by the tensions of the courtroom, where the undisputed medical testimony was that the medication did not have the effect of dulling his mind and that the specified dosage was adequate to keep his mental illness in remission, and an expert in psychiatry testified that, in his opinion, the defendant had the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to cooperate with his counsel in his defense, and to remember what happened on the night of the alleged offenses and to discuss those events intelligently with his counsel, if he would.\n7. Criminal Law \u00a7 75\u2014 confession to hospital attendants \u2014 voluntariness \u2014 understanding\nThe confessions of defendant to hospital attendants must have been made voluntarily and understandingly in order to be admissible in evidence against him.\n8. Criminal Law \u00a7 75\u2014 confessions \u2014 understanding \u2014 mental capacity\nFor a confession to have been made understandingly, the defend.ant, at the time of making it, must have had the requisite mental capacity. . \u2022. ..\n9. Criminal Law \u00a7 75\u2014 confession to hospital attendants \u2014 mental capacity\nIn a prosecution for the murder of defendant\u2019s wife and children, the trial court did not err in the admission of defendant\u2019s confessions :to hospital emergency room personnel where the court found that, . at the time defendant made the statements, he had a sufficient understanding. to apprehend the obligation, of an oath, he was capable of giving a correct account of the matters he had seen and heard with respect. to the deaths of his wife and children, and he made the statements freely, voluntarily and understandingly, the attending physician, the nurse and the hospital attendant who heard the statements gave opinion testimony that defendant, when making them, was in his right mind, could comprehend what he was saying, responded normally to questions, knew and understood the meaning of what he was saying and was capable of relating recent facts stored in his memory, a psychiatrist treating defendant testified that, in his opinion, defendant was in contact with reality when he made the statements, and all the evidence was that the statements were made spontaneously by the defendant to persons who knew nothing of and were not interrogating him about the subject matter of his statements prior to his making them; evidence that defendant, at frequent intervals while in the emergency room, was nervous and shaking and from time to time stared off into space did not show a lack of memory and understanding so as to make his confessions inadmissible as a matter of law.\n10. Criminal Law \u00a7\u00a7 5, 63; Homicide \u00a7\u00a7 7, 18\u2014 brutality in slaying \u2014 intent to kill \u2014 insanity\nBrutality in a slaying is evidence of intent to kill, not, per se, a basis for finding the defendant insane.\n11. Criminal Law \u00a7 5\u2014 insanity as defense to crime\nThe test of insanity as a defense to a criminal charge is the ' capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation.\n12. Criminal Law \u00a7 5; Homicide \u00a7 7\u2014 insanity as defense to murder \u2014 jury question\nIn this prosecution for the murder of defendant\u2019s wife and children, defendant\u2019s motion for directed verdict on the ground of insanity was properly overruled, the issue of insanity being for the jury, where a nurse who observed defendant in a hospital emergency room some 24 hours after the crimes testified that he seemed to be in his right mind, a hospital attendant gave opinion testimony that defendant knew right from wrong at that time, the attending physician at the emergency room gave opinion testimony that defendant then knew right from wrong, although he was suffering from paranoid schizophrenia and that, assuming the killings occurred while defendant was under a delusion that his children were from outer space, defendant nevertheless knew right from wrong and was able to control his behavior and adhere to the right and acted according to his free will in killing his wife and children, and an expert psychiatrist testified that defendant did have the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation.\n13. Criminal Law \u00a7 5; Homicide \u00a7\u00a7 7, 28\u2014 defense of insanity \u2014 first issue for jury\nWhere there is evidence justifying the submission to the jury of the question of insanity as a defense to a murder charge, the better procedure would be to submit the issue of insanity as the first issue for the jury\u2019s consideration since an affirmative answer to that issue would end the case; however, it was not error for the court to instruct the jury to consider the issue of whether defendant was not guilty' by reason of insanity if it found that defendant committed either first degree murder or second degree murder.\n14. Criminal Law \u00a7\u00a7 5, 113; Homicide \u00a7\u00a7 7, 28\u2014 recapitulation of evidence \u2014 testimony as to-irresistible impulse\nThe trial court in a homicide case did not err in failing to include in its recapitulation of the evidence a doctor\u2019s statement that defendant knew right from wrong but \u201cat the time of the alleged offense was not able to apply his knowledge of right and wrong and the alleged offense was a product of his mental illness\u201d since this was opinion testimony that defendant acted under an irresistible impulse and irresistible impulse is not a defense under the law of this State.\n15. Homicide \u00a7 7\u2014 mental capacity \u2014 premeditation and deliberation\nA defendant who does not have the mental capacity to form an intent to kill, or to premeditate and deliberate upon the killing, cannot be lawfully convicted of murder in the first degree, whether such mental deficiency be due to a disease of the mind, intoxication, or some other cause.\n16. Criminal Law \u00a7\u00a7 5, 63; Homicide \u00a7\u00a7 7, 28\u2014 evidence of mental disease \u2014 effect on premeditation and deliberation \u2014 failure to instruct\nFailure of the trial court in a first degree murder case to instruct the jury that it should consider evidence of defendant\u2019s mental disease on the question of premeditation and deliberation did not constitute reversible error where the jury, by its verdict of guilty of first degree murder, established that defendant had the mental capacity to know right from wrong with reference to the acts in question, since the mental capacity to determine the moral quality of the acts included the lesser capacity to form a purpose to do such acts.\nJustices Copeland and Exum did not participate in the \u25a0 hearing or decision of this case.\nChief Justice Sharp dissenting.\nAppeal by defendant from Webb, S. J., at the 80 October 1972 Session of Wayne. This case was docketed and argued as No. 3 at the Fall Term 1973.\nBy separate indictments, each proper in form, the defendant was charged with the murder of his wife, Catherine Cooper, and four of their five children, whose ages ranged from six years to seven months. The five cases were consolidated for trial. The jury found the defendant guilty of murder in the first degree in each case. In each case a sentence to imprisonment for life was imposed, the first three to run concurrently, the fourth to commence to run at the expiration of the sentences imposed in the first three and the fifth to run concurrently with the fourth.\nPrior to the commencement of the trial, the defendant, through counsel, requested that, prior to a plea, the court determine whether he was capable of pleading to the indictment and cooperating with his counsel conducting his defense. A hearing was had upon this question in the absence of members of the jury panel. ,\nAt the hearing it was shown that at the April 1972 Session of the Superior Court, Judge Cowper, the then Presiding Judge, ordered the defendant returned to Cherry Hospital on the ground that he was suffering from mental illness to such an extent that he could not stand trial and could not assist counsel in the preparation of a satisfactory defense. Subsequently, on 12 September 1972, the defendant was returned by the hospital to the court for trial. The discharge summary, signed by Dr. Maynard, Director of Forensic Psychiatry at Cherry Hospital, stated that the defendant had paranoid schizophrenia but \u201cmedication has alleviated some of the more obvious manifestations of the disease.\u201d\nThe defendant then contended that a \u201cdrugged man\u201d should not be put on trial. Dr. Maynard testified that the defendant was then suffering from paranoid schizophrenia but the disease had been \u201cput in remission by means of drugs,\u201d that continued administration of the drug three times daily was necessary to keep the defendant\u2019s mental disease in a state of remission, there being \u201cno heal to schizophrenia.\u201d He further testified that, in his opinion, although the defendant had told him he did not remember any of his activities, the defendant, at the time of the pretrial hearing, was competent to stand trial, having the capacity to comprehend his position, understanding the nature and object of the proceedings against him and being able to cooperate with his counsel to the end that any available defense might be interposed. He further testified that, in his opinion, \u201con the date of the alleged offenses he did understand the nature and quality and wrongness of his actions,\u201d and did have \u201csuch recall of these offenses that he can intelligently discuss them with his counsel at this time.\u201d It was his opinion that the defendant \u201ccan recall what happened that night but he is going to tell his attorney he cannot.\u201d\nIn the opinion of Dr. Maynard, \u201cIf the defendant * * * went home as the result of this trial he would be a danger to himself and others if he did not take this medicine three times a day,\u201d but the defendant\u2019s mind was not dulled by the drug so administered, and he should continue to receive the drug three times a day during the course of the trial. (This was done, in the absence of the jury, throughout the trial.)\nDr. Ladislaw Peter, Superintendent of Cherry Hospital, testified at this pretrial hearing to the effect that, in his opinion,' the defendant was suffering from paranoid schizophrenia, presently in partial remission due to treatment with psychiatric drugs in adequate doses. His evaluation of the disease was that, at the time of the alleged offense, the defendant \u201cwas not able to exercise his capacity to distinguish beween right and wrong;\u201d that his delusional thinking centered around the idea that his wife had been or was unfaithful to him; that \u201cassuming that as a result of his mental disorders he has formed in his mind a delusion as to what occurred and that\u2019s all he recalls about it, and if that delusion is based upon irrational thinking or irrational mental processes and that\u2019s all he has to communicate to his counsel,\u201d the defendant could not rationally participate in his defense of these charges. (Emphasis added.) Dr. Peter further testified that when the defendant, while his patient at Cherry Hospital, told him a story of intruders into his home tying up his family and killing them and attempting to kill the defendant, this was not a delusion but was an indication' that \u201cNow that he is aware of what he has done, his mind is working, he\u2019s in a desperate situation so to say and his mind worked out a defense for himself.\u201d\nAt the conclusion of the pretrial hearing the court found:\n\u201cThe defendant is competent to understand the charges against him, the nature of the charges against him; that he is able to plead to the charges. He is competent to confer with his counsel, and the court, therefore, concludes as a matter of law that he is competent to stand trial.\u201d\nThe defendant thereupon entered pleas of not guilty to the several indictments and the trial proceeded. The evidence for the State was to the following effect:\nOn 1 December 1971, the defendant, his wife and the four small children were living in an apartment on Lincoln Drive in the City of Goldsboro, a fifth child, Boney, also less than six years of age, being temporarily with the defendant\u2019s mother in Kansas City. The defendant had previously expressed doubt that the children, other than Boney, were his. (The record discloses no basis for such doubt.)\nOn 1 December 1971, about 11 a.m. and again about 5 p.m., neighbors observed the defendant beating his wife' and dragging her back into their apartment when she tried to flee. Following the morning episode, a neighbor heard Catherine in the house screaming and the sound of furniture being knocked over. At 7 p.m. another neighbor went to the door of the Cooper apartment and called the defendant, who did not open the door but said he could not see the neighbor then. All was then quiet in the apartment. Catherine and the four children were not seen alive by the neighbors after 5 p.m. All through the night the radio in the Cooper apartment played loudly.\nAt approximately 5 p.m. on 2 December 1971, the defendant, nervous, trembling and wet with perspiration, left the apartment, went to a neighbor\u2019s apartment and called a taxi, telling the neighbor, \u201cCat is sick.\u201d He left in the taxi and never returned. Thereafter, the neighbor knocked at the Cooper apartment door, which was locked, receiving no answer. The radio was still playing.\nAbout 8 p.m. on 2 December, Sergeant Whaley of the Goldsboro Police Department, knowing nothing of any events at the Cooper apartment, observed the defendant in the locker room of a bowling alley, apparently quite nervous. He was wearing a house slipper on one foot and a laced shoe or boot on the other. He told the officer there was nothing wrong and that he wanted to go home. The officer replied that he thought the defendant needed to see a doctor but offered to take him home. He patted the defendant down with his consent. He found no weapon but found strapped to the defendant\u2019s abdomen, under his clothing, a package, which the officer suspected to be three sticks of dynamite but which was later found to be three legs from a small table in the Cooper apartment. The defendant then appeared to Sergeant Whaley \u201cto be in his right mind,\u201d but, at times, he would stop talking and would \u201cjust look out like he was staring in space.\u201d\nSergeant Whaley carried the defendant to the Wayne County Memorial Hospital for medical observation. The defendant was not then placed under arrest. He was taken to the emergency room and delivered into the care of a nurse. He was \u201cnervous and shaky.\u201d The officer suspected that he might be \u201con drugs,\u201d but laboratory tests of body fluids, taken at the hospital, revealed no indication of drug use. He walked into the hospital examination room without assistance and was cooperative in being disrobed and examined. Except in the intermittent periods when he was shaking and staring off into space, he appeared to the officer to be in his right mind. He said, \u201cSomething has happened at the house,\u201d but did not say what had occurred there.\nAfter the defendant had been taken to the hospital, another officer, Lieutenant Harvell, went to the Cooper apartment, arriving there about 8:30 p.m. Another officer and Catherine Cooper\u2019s mother were there. The apartment was locked but, by putting a small child through a window to open the door, they entered the apartment and found Catherine Cooper and the four small children dead. Each was bound with an electric appliance cord. The furniture and contents of the apartment were greatly disarrayed. The television screen, light switches and floor sockets were covered with masking tape. The bodies were in different places, partially or completely covered with bed clothing and other articles. One child\u2019s body was substantially stuffed into a pillow case.\nCatherine died from a knife slash of her throat. Each child died from a severe skull fracture, inflicted in some instances with a baseball bat, in others with a hammer. Legs had been removed from a number of chairs and other articles of furniture and were scattered about the apartment. In the opinion of the County Medical Examiner, Catherine and the four children died between 5:30 p.m. and 7:00 p.m. on 1 December 1971, shortly after the observed injuries were inflicted, and the bodies were tied up before death.\nMeanwhile, the defendant was being examined and interviewed in the hospital emergency room by Nurses Bass and Johnson, Dr. Parmelee and Medical Attendant Williams in an effort to determine the nature of his difficulty. They knew nothing of what had occurred at the defendant\u2019s apartment. Before permitting Nurse Bass to testify as to statements made to her by the defendant, the court, in the absence of the jury, conduced a lengthy voir dire, at the conclusion of which the court found the defendant had not been placed under arrest at the time he made the statements in question; he had a sufficient understanding to apprehend the obligation of an oath, was capable of giving a correct account of the matters which he had seen or heard with respect to the deaths of his wife and children in the past 36 hours and made the statements in question, freely, voluntarily and under standingly. (The defendant was, of course, not under oath when making the statements to the hospital attendants.)\nThereupon, the court concluded that the statements to Nurse Bass and Williams were admissible in evidence and that the ends of justice required that they testify as to statements made by the defendant to them. The court further concluded that the ends of justice did not require that Dr. Parmelee testify to statements made by the defendant to him, or concerning specimens of body fluids taken from the defendant in the course of his examination of the defendant, these being privileged communications. However, in view of the ruling of the court concerning the statements made to Nurse Bass and Attendant Williams, the defendant withdrew his objections to evidence of the statements made by him to Dr. Parmelee and to evidence of the results of the examination of such specimens of body fluids.\nFollowing the findings of the court at the conclusion of the voir dire, the jury returned to the courtroom and Nurse Bass testified before the jury that her conversation with the defendant in the emergency room of Wayne Memorial Hospital was initiated by him. No police officer was in the room and no officer had requested her to ask the defendant any question. The defendant asked her to call the police, saying, \u201cSomething awful is wrong at my house.\u201d She asked what he meant and he replied, \u201cI have destroyed my wife and children.\u201d She asked, \u201cHow did you destroy them?\u201d He replied, \u201cI heat them.\u201d He told Nurse Bass: \u201cI was walking around like a normal man listening to the radio. Then I started dancing around like a wild man. I destroyed my family. The music gave me sensations which told me my family was people from the moon to kill me. I don\u2019t know why I did it. I don\u2019t understand. I destroyed my family. Somebody help me. I don\u2019t understand it.\u201d In the opinion of Nurse Bass, the defendant was in his right mind at the time he made all these statements to her. When he first entered the emergency room, he was shaking and looking from place to place and person to person. After about 15 minutes he began to talk without being led and was not shaking or staring out into space when he made the above statements.\nNurse Johnson testified that she also saw the defendant at the hospital on the night of 2 December. Nurse Johnson was of the opinion that the defendant then knew what he was doing and was able to know the difference between right and wrong. He was shaking but answered questions, knew where he was and knew that Johnson was a nurse.\nAttendant Williams testified that when he was in the room with the defendant, he, being also a Vietnam veteran, talked to the defendant about the defendant\u2019s service in Vietnam. The defendant said that he needed help and in reply to Williams\u2019 inquiry as to why he needed help, the defendant' said, \u201cTo try and make up for what I\u2019ve done; maybe to make things right again.\u201d He told Williams he had destroyed his family, had killed his wife and child because of \u201csensations from the music going to his brain.\u201d The defendant also told Williams, \u201cThey [sic] wanted him to dress like an Indian and fight the Americans.\u201d Williams did not know the defendant\u2019s wife and children had been killed until the defendant so told him. While in the hospital, the defendant did not cause any disturbance or create any problems but cooperated with the hospital staff. In the opinion of Williams, the defendant knew right from wrong at the time they were talking.\nDr. Parmelee, the doctor on duty in the emergency room, testified that he examined and talked with the defendant and took samples of his body fluids. The defendant, at first, was nervous and upset about something to the point that it was difficult to establish communication, but after about 30 minutes he began to express himself and was doing so freely and of his own volition by the end of an hour. In the opinion of Dr. Parmelee, he knew right from wrong. In the opinion of Dr. Parmelee, the defendant was suffering from paranoid schizophrenia and a paranoid schizophrenic is \u201cnot in his right mind when experiencing delusions.\u201d The first information Dr. Parmelee had as to people being dead at the defendant\u2019s home came to him from the defendant, who told the doctor that people from outer space were trying to kill him, that his children were from outer space and that he had killed his wife and children by means of a chain, knife, and strangulation. He then asked the doctor if he had done the right thing by killing his children.\nIn the opinion of Dr. Parmelee, assuming the killings occurred while the defendant was under a delusion that his children were from outer space, he nevertheless knew the difference between right and wrong and was able to control his behavior and adhere to the right. In the opinion of Dr. Parmelee, the method of the killings indicated preparation and not an attempt to escape from someone the defendant thought was attacking him and, though the defendant \u201cheard voices\u201d telling him he should kill his family, he was capable of feeling that these were wrong and he acted according to his own free will in killing his wife and children.\nCaptain Flores of the Goldsboro Police Department testified that he entered the room while the defendant was being treated and talked to by the hospital staff on the evening of 2 December and heard some of the foregoing statements. The defendant was not advised of the presence of Captain Flores or of the fact that he was a police officer. At that time no warrant had been issued.\nPursuant to the order of District Judge Nowell and upon the recommendation of Dr. Parmelee, the defendant was transferred to Cherry Hospital for psychiatric observation and care.\nDr. Eugene Maynard, Director of Forensic Psychiatry at Cherry Hospital, testified for the State, both on the above mentioned voir dire and before the jury. Dr. Ladislaw Peter, Superintendent of Cherry Hospital, testified on the voir dire but was not called as a witness before the jury either by the State or by the defendant. The testimony of Dr. Maynard before the jury was to the following effect:\nIt is possible for a paranoid schizophrenic to know the nature and quality of his act and to be able to distinguish right from wrong with reference thereto. A person who completely believes imaginary voices are giving him directions to kill, like the person who receives such directions in reality, can choose an alternative. In Dr. Maynard\u2019s experience most paranoid schizophrenics select the correct alternative. In his opinion, \u201cThis defendant did have the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation.\u201d This opinion is based upon Dr. Maynard\u2019s study of the defendant\u2019s record, including the report of Dr. Parmelee concerning his examination of the defendant at Wayne Memorial Hospital on 2 December 1971 and the defendant\u2019s statements set forth in that report. In the opinion of Dr. Maynard, it would be entirely possible and probable that, due to the stress of what the defendant had done, he suffered \u201can acute schizophrenic episode\u201d after he killed his wife and children. In the opinion of Dr. Maynard, these killings were planned and a person making such plans could distinguish between right and wrong at that time. Unreasonable fear and unreasonable suspicion are characteristics of schizophrenia. In many instances such unreasonable suspicion concerns the matter of fidelity of the spouse of the schizophrenic. In the opinion of Dr. Maynard, the defendant did not have to experience an \u201cacute exacerbation\u201d of his mental disease in order to commit the alleged crimes.\nIn Dr. Maynard\u2019s opinion, it is likely that, unless the defendant continues to receive the medication which he now receives (and received during the progress of the trial each day), an exacerbation of his disease will express itself in acts of violence to himself or to others, and \u201cbecause of the mental disease from which this defendant is suffering he should not be free in society.\u201d An active schizophrenic process can well result in the commission of acts of violence over which the person who is mentally ill has no control.\nDr. Maynard\u2019s opinion as to the danger of the defendant to himself and society is based upon the doctor\u2019s being satisfied that the defendant committed the crimes for which he is under indictment. (The record discloses no objection to or motion to strike this testimony which was given under cross-examination by the defendant.) In Dr. Maynard\u2019s opinion, if the defendant, in fact, committed the offenses for which he was on trial, he did so \u201cwhile in a state of active paranoid schizophrenia at which time he was dangerous to himself and to society.\u201d It is not his opinion that the defendant was then \u201chaving an acute exacerbation.\u201d\nIn reaching his opinion concerning the defendant, Dr. Maynard had access to and considered a discharge summary prepared by Dr. Peter, Dr. Maynard\u2019s superior at Cherry Hospital, when the defendant was sent back from that hospital to the court for trial on 2 March 1972. In that report, Dr. Peter stated that, in his opinion, \u201cthe defendant knows right from wrong but, at the time of the alleged offenses, was not able to apply his knowledge of right and wrong and the alleged offense was the product of his mental illness.\u201d Dr. Maynard does not agree with that opinion insofar as it relates to the defendant\u2019s ability to apply his knowledge of right and wrong and to the killings being products of the defendant\u2019s mental illness.\nDr. Maynard also had available and took into consideration an order signed by Superior Court Judge Cowper, on 12 April 1972, in which Judge Cowper concluded that the defendant was then suffering from mental illness to such an extent that he could not understand or assist counsel in the preparation of his defense and, therefore, ordered him re-committed to Cherry Hospital indefinitely for further treatment. Dr. Maynard, nevertheless, believes the defendant was then competent to stand trial. He also had available and took into account a report by Dr. Kim of the Veterans Hospital in Kansas City, where the defendant had been a patient until he left without permission, approximately two months before the offenses for which he was indicted. The report of Dr. Kim reflected a diagnosis of the defendant as a paranoid schizophrenic \u201cable to cope with his affairs.\u201d The drug dosages administered by Dr. Maynard to the defendant at Cherry Hospital, and during the course of the trial, were not massive but were sufficient, when administered daily, to keep the defendant\u2019s illness in a state of \u201cremission\u201d despite the tensions of the trial.\nThe defendant offered no expert psychiatric witness. He did not testify himself but called as witnesses in his behalf his mother and Chief Renfrow, Captain Flores, and Major Gilstrap of the Goldsboro Police Department. Chief Renfrow and Captain Flores merely corroborated certain parts of his mother\u2019s testimony, and Major Gilstrap testified only that, on the night of 2 December, he concluded the condition of the defendant was such that a warrant should not then be served.\nThe defendant\u2019s mother testified to the effect that he had two tours of duty in Vietnam, being wounded on the second. The defendant visited her at her home in Kansas City in August or September 1971, bringing with him his son, Boney, whom he left with his mother when the defendant, himself, returned to North Carolina some two months prior to the offenses for which he was indicted. Upon the defendant\u2019s arrival at his mother\u2019s home, he appeared very frightened and disturbed, telling her that someone was after him to kill him and the baby and insisting that she keep the house locked and dark. On several occasions he had her take him to the nearby Army Air Base in an effort to get transportation for him to Thailand, which he was never able to do. His stated purpose in going to Thailand was to keep \u201cthose people\u201d from killing him. She did not think there were any people after him and she took him to the Veterans Hospital in Kansas City. On arrival there he thought some of the people in the waiting room were among the \u201cpeople from outer space\u201d and did not want to stay, so she took him back to her home.\nThereafter, he suggested that he go to tiie hospital and she took him back. He was admitted as a patient of Dr. Kim. In about 10 days he left the hospital without the doctor\u2019s permission and the following day flew to Washington hoping to be admitted to Walter Reed Hospital. He was not admitted to Walter Reed, or soon left, and returned to Goldsboro. After he left Kansas City, his mother telephoned Chief Renfrow in Goldsboro. She told him the defendant was sick and had left the hospital without the doctor\u2019s permission and requested the chief to lock him up because he was mentally disturbed. Chief Renfrow replied that he could not lock the defendant up because the defendant \u201chadn\u2019t done anything.\u201d\nIn the opinion of his mother, the defendant did not know right from wrong at the time he was in her home in Kansas City and he was not then \u201cacting in his right mind.\u201d The defendant\u2019s mother and his wife got along well and never had any problem. His mother talked to his wife by telephone several times after he left Kansas City. None of the defendant\u2019s children was lighter in complexion than the defendant or his mother. The defendant, on one occasion, did tell his mother he was not sure that his second child (one of those killed) was his, but his mother refused to listen to any such observation and told him she did not want him to make any such statement as that to her. He did not ever do so again.\n. On the voir dire, conducted to determine the admissibility of the defendant\u2019s statements in Wayne Memorial Hospital on 2 December, Nurse Bass testified that in just three or four minutes after Cooper was undressed and put on the stretcher for examination, he began to talk. Over a period of 30 to 45 minutes he would talk for a few minutes normally and then would just lie on the stretcher shaking and staring out into space. Then again he would start talking. His statements began with his saying, \u201cThere\u2019s trouble at my house.\u201d When Nurse Bass asked what he meant, he said, \u201cThere\u2019s bad trouble at my house; somebody send the police.\u201d When she asked what kind of trouble, he said, \u201cSomething awful has happened; I have destroyed my family.\u201d When she asked, \u201cWhat do you mean,\u201d he repeated the statement, and when she asked how he had destroyed his family, he said, \u201cI beat them.\u201d The defendant seemed to comprehend what she was telling or asking and to know where he was. He cooperated with her. When he talked, he seemed \u201clike a man in his right mind,\u201d \u201cto know what was going on around him,\u201d and \u201ccould comprehend what he was saying.\u201d After he would talk for a few minutes, he would lie still and tremble and stare out into space and around the room. No police officer asked her to interrogate the defendant and she knew nothing of what had happened at the Cooper apartment. All of his statements were initiated by him. In her opinion, he was \u201cin his right mind.\u201d\nThe testimony of Attendant Williams, on this voir dire, was essentially the same. In the absence of Nurse Bass from the room, Williams, just to make conversation, asked the defendant how he felt and he replied, \u201cI need help.\u201d He was asked, .\u201cWhy do you need help?\u201d He replied, \u201cFor what I had [sic] done; to make up for what I done.\u201d When asked by Williams what he had done, he did not respond but began shaking and looking over the room. After a pause of about half a minute, Williams asked, \u201cAlbert can you tell me what you did?\u201d The defendant replied, \u201cI have killed my family.\u201d Williams asked no further questions and the defendant said nothing further to Williams.\nDr. Parmelee testified, on this voir dire, that he saw the defendant at the hospital about 8:30 p.m. on 2 December. During the first 20 minutes the defendant appeared highly agitated and withdrawn but was not in a \u201cmanic hyperactive state.\u201d After about 20 minutes, the defendant began to answer questions to the effect, \u201cThey\u2019re after me; they\u2019ll get you\u201d and \u201ctrouble at home.\u201d For the next hour his thought processes seemed to clear up and he began to express himself clearly without direct questioning and to communicate in a rational manner. There was no inducement by the police to Dr. Parmelee to initiate a conversation with the defendant.\nThe- defendant told Dr. Parmelee there were \u201cpeople dead at home,\u201d that he had killed them and had hit them repeatedly. Prior to this statement the doctor did not know there were dead people at the Cooper apartment. In the opinion of Dr. Parmelee, the defendant at this time \u201cwas oriented and knew and understood the meaning of what he was saying and responded normally to questions,\u201d and was capable of relating recent facts stored in his memory.\u201d In Dr. Parmelee\u2019s opinion, the defendant, at that time, \u201ccould distinguish right from wrong because he s\u00e1id he \u2018wanted to make things right,\u2019 \u201d and he questioned the doctor repeatedly as to how the doctor felt about what he had done and if the defendant could make these things right again.\nIn Dr. Parmelee\u2019s opinion, the defendant was in condition freely and voluntarily to give permission for the withdrawal of body fluids from his body. This was done before the doctor had any discussion with the police and was for the purpose of possible medical diagnosis.\nDr. Parmalee\u2019s diagnosis was \u201cschizophrenic reaction, paranoid'type with homicidal expression.\u201d At the end of the interview, the defendant was not having delusions but was reporting to the'doctor various delusions that he had had. In the opinion of Dr. Parmelee, when the defendant made the statement that he killed his wife and children, he did so freely, voluntarily and knowingly and was in control of his mental faculties and knew what.he was saying. In stating to the doctor that his children were \u201cfrom outer space,\u201d the defendant was reporting as an historical fact the way the defendant felt at a former time. In the opinion of Dr. Parmelee, the defendant \u201cshowed he knew right from wrong\u201d at the time of their conversation in the hospital. He showed he had \u201csome guilt feelings about what he had done\u201d and was trying to find out \u201chow he could set things right.\u201d\nOn this voir dire, Dr. Maynard, who did not see the defendant until a substantial time after these occurrences at Wayne Memorial Hospital, testified that he had reviewed the medical record of the defendant relating to his being in Wayne Memorial Hospital on the night of 2 December 1971 and, in his opinion, the defendant did have the ability to distinguish between the nature and quality of his acts and to distinguish between right and wrong, though he was confused, disturbed, withdrawn, frightened, and at times out of contact with reality and at times in contact with reality. In his opinion, the defendant was in contact with reality when he was \u201cverbalizing\u201d at the Wayne Memorial Hospital on the night of 2 December and could have made the statements, quoted by Nurse Bass, freely, voluntarily and understandingly.\nDr. Peter testified on this voir dire that, in his opinion, the defendant has a mental disease known as paranoid schizophrenia which began in 1965 when he was in military service in Vietnam. In his opinion, if the defendant, while in Wayne Memorial Hospital, stated to Dr. Parmelee that people from outer space were trying to kill him, that his children were from outer space and he had killed his children and if he then asked Dr. Parmelee if he did the right thing by killing them, these statements would be a manifestation of his inability to distinguish right- from wrong.\nIn the opinion of Dr. Peter, the defendant, at the time- of the alleged offense, knew right from wrong, but due to the exacerbation of his illness, he was, at the time of the alleged offenses, not able to apply his knowledge of right and wrong; \u201cas regards this particular offense he was not able to distinguish between right and wrong and adhere to the right.\u201d However, it was also Dr. Peter\u2019s opinion that, on the night of 2 December 1971, the defendant did have the mental ability to recall and relate to another person to the \u201chistorical fact\u201d that he had killed his wife and four children, though he may not have known the full implication of his words.\nCaptain Flores of the Goldsboro Police Department testified on this voir dire that he went into the hosiptal room while the defendant was being examined and was talking with Nurse Bass, Attendant Williams and Dr. Parmelee. The defendant then seemed to be in a state of general confusion. He heard the above quoted statements by the defendant to these members of the hospital staff. He then suspected the defendant of having committed a crime and was present to watch the defendant and to see what the hospital was going to do with him, but he was not there for the purpose of making an arrest and it was never suggested to the defendant that he was under arrest. Captain Flores did not initiate or request any question put to the defendant during this period. (It was stipulated that no warrant' was served on the defendant until after he was transported to the Cherry Hospital for observation pursuant to an order of District Judge Nowell.)\nAttorney General Robert Morgan and Assistant Attorney General Raymond W. Dew, Jr., for the State.\nHerbert B. Hulse and George F. Taylor for defendant." }, "file_name": "0549-01", "first_page_order": 569, "last_page_order": 616 }