276 N.C. 690
N.C.
1970
Husiuns, J.

On mоtion of defendant a special venire of 150 persons had been summoned from Person County and was present in court when defendant was arraigned. Upon arraignment the solicitor read the bill of indictment and addressed the prisoner as follows: “How say you, Amos Baldwin, Jr., are you guilty of the felony of murder wherein you stand indicted or not guilty?” The solicitor then addressed the court and' said, “The defendant stands mute; if your Honor please, I would like the court to enter a plea of not guilty for him.” The defendant, speaking for himself, answered, “No sir, 1 have to plead guilty, your Honor.” Defense counsel thereupon said, “Motion.” The motion was denied, and the -court entered a plea of not guilty for the defendant. Defendant assigns as error the denial of his motion.

As shown by the record, no grounds for the “motion” were stated- In a conference at the bench defense counsel advised the court “that the entire jury panel had heard the defendant and that motion as for nonsuit,should be allowed.” In his brief counsel refers to “defendant’s motion for a mistrial made during the arraignment.” It is obvious that defendant’s motion — by whatever name it may be called — was not in order at that point. No plea had been entered, no jury had been impaneled, and no evidence had been offered. Furthermore, defendant’s position is not strengthened by treating — as we do — the motion as one for continuance on the ground that defendant’s remarks had prejudiced his case with the prospective jurors then present in court so that he could not obtain a fair trial. This is true because no prejudice is shown. There was no challenge to the array before plea as there might have been. State v. Rorie, 258 N.C. 162, 128 S.E. 2d 229; State v. Corl, 250 N.C. 258, 108 S.E. 2d 615. The jurors were not questioned as to whether they heard defendant’s unsolicited, spontaneous utterance and were biased as a result. None were challenged for cause or peremptorily on that ground. If defendant exhausted his peremptory challenges, the record fails to show it. Objection to the special venire was waived by failure to challenge the array (State v. Kirksey, 227 N.C. 445, 42 S.E. 2d 613); and defendant may not object to the acceptance of individual jurors when he has failed to exhaust his peremptory challenges. State v. Anderson, 228 N.C. 720, 47 S.E. 2d 1; State v. McKethan, 269 N.C. 81, 152 S.E. 2d 341. How, then, can it be determined if the jurors who served in this case heard the defendant's statement and, if so, were prejudiced thereby? The record fails to show that any juror was accepted to which defendant had legal objections upon any ground. The judge in his discretion overruled the motion and entered a plea of not guilty. His action in that respect effectively removed the slightest suggestion of prejudice which might otherwise be attributed to the occurrence. We see no merit in this assignment, and it is overruled.

Defendant’s second assignment is based on the denial of his motion for continuance on the grounds of newly discovered evidence. Examination of the record is necessary to bring this assignment into focus.

On 18 June 1969, Charles B. Hodson, defendant’s court-appointed counsel, filed affidavit and motion that, in his opinion, defendant did not know right from wrong and did not have sufficient mental capacity to undertake his defense. Counsel therefore moved that defendant be cоmmitted forthwith to the State Hospital at Goldsboro, North Carolina, for a period of sixty days for observation in accordance with the provisions of G.S. 122-91. The motion was allowed. At the end of the observation period, the superintendent of the hospital was directed to report his findings and recommendations to the Clerk of the Superior Court of Orange County as provided by law.

In obediencе to said order, defendant was admitted, examined and observed for sixty days; and on 20 August 1969 a Clinical Summary containing findings and recommendations was submitted to the Clerk of the Superior Court of Orange County signed by E. C. Fowler, M.D., Clinical Director, and Bruce Kyles, M.D., F.A.P.A., Assistant Superintendent. Copies were furnished for the solicitor and defense counsel. This summary shows defendant has an IQ of 84 (indicating dull, normal intelligence) and contains the fоllowing pertinent information:

“Family history said to be negative for nervous or mental disorder. . . . He denies DT’s or other disturbances. . . . Hallucinations of any kind at any time were denied and none were apparent. . . . The content of thought showed no evidence of a thinking disorder, delusional material or any other abnormality. . . . Because of the complaint of blackout following drinking an electroеncephalogram (EEG, brain wave test) was done. This was reported as normal and there is no indicated basis found for 'blackouts when drinking’ other than the amount of liquor that would be taken. Skull x-ray was normal. . . . Subject stated that he had never had a nervous disorder and was not a regular drinker but did over drink when he would get upset. . . . and stated that there was nothing wrong ‍‌​​​​​​​‌‌‌‌‌‌​​​​‌‌‌‌‌‌​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌‌​‍with his mind but T was just out that day.’ He states he had been upset as he stаted he had found out his wife had been out all night and . . . that perhaps Mr. Cole, the victim, had been at the same party which was in that neighborhood.. Careful examination failed to elicit any significant disorder and subject understood his charge and his situation quite clearly.
DIAGNOSIS: WITHOUT MENTAL DISORDER.
DISPOSITION: 1. Return to court as able to stand trial.
2. It is the carefully considered opinion of the medical staff of this hospital that Amos Baldwin, Jr. is able to plead to the bill of indictment against him. Hе knows right from wrong, is aware of the nature and probable consequences of the offense with which he is charged, and, in our opinion, is able to consult with counsel in the preparation of his defense.”

Following arraignment and in the absence of all prospective jurors, defense counsel moved for continuance on the ground of newly discovered evidence which had come to his attention on Sunday afternoon (the day before the arraignment). Counsel stated that he had been supplied “some information regarding alcoholic pathological intoxication, which I understand, is a form of insanity which occurs with automatic behavior and frequently results in violence. . . .” Counsel stated that he had previously caused Dr. Silas B. Coley, a psychiatrist with the Pathological Service Center of Hills-borough, North Carolina, to make a personal examination of the defendant “and had him examine the report from Goldsboro.” Dr. Coley, an expert in the field of psychiatry, then testified under oath that, based on his interview with defendant and on information supplied by defense counsel, he had come to the conclusion “that there was a possibility that at the time the crime of murder was alleged to have taken place, that the prisoner Amos Baldwin, Jr. was suffering from a state that is known as pathological intoxication.” Dr. Coley stated that such condition was difficult to prpve without some documentation and that proof would be provided by an abnormal reading in an EEG (electroencephalogram) following the ingestion of alcohol; that a person 'suffering from pathological intoxication would be capable of complicated behavior including violent behavior and, based on the description of defendant’s personality state and mental state at the time the crime was committed, “it bears a strong resemblance to the condition of alcoholic pathological.” Dr. Coley went on to state that from what he had sеen of defendant “it sounded like an abrupt change in personality” and that he felt the psychiatric investigation made during the period defendant was under observation at Cherry Hospital in Goldsboro was incomplete in that it lacked the test of administering alcohol prior to the EEG which, if done, would reveal whether or not defendant was subject to pathological intoxication. Dr. Coley rеcommended that defendant be given an EEG following a test dose of alcohol — a neurological procedure that he was not in a position to perform. He stated that the professional fee for this procedure would be approximately $500.00.

Defense counsel thereupon requested a continuance in order to carry out such an examination at public exрense. The court in its discretion denied the motion, and this constitutes defendant’s second assignment of error.

The record shows counsel had received a letter from Dr. Coley dated October 2, 1969, containing the doctor’s conclusion that defendant possibly could have been suffering from pathological intoxication when the murder was committed and further shows that on Sunday afternoon at aрproximately one o’clock counsel received a telephone call “which brought forth new evidence in this matter.” The content of the telephone call is not revealed. The only newly discovered evidence mentioned is information that defendant had not ingested a test dose of alcohol prior to being given the brain wave test at Cherry Hospital. The record is unclear as to when counsel rеceived this information. Apparently that constitutes the newly discovered evidence relied on as the basis for á continuance.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. 2 Strong’s N. C. Index 2d, Criminal Law § 91; Slate v. Moses, 272 N.C. 509, 158 S.E. 2d 617; State v. Stinson, 267 N.C. 661, 148 S.E. 2d 593; State v. Ferebee, 266 N.C. 606, 146 S.E. 2d 666; State v. Arnold, 258 N.C. 563, 129 S.E. 2d .229; State v. Stroud, 254 N.C. 765, 119 S.E. 2d 907; Cleeland v. Cleeland, 249 N.C. 16, 105 S.E. 2d 114. If, however, the motion is based on a right guaranteed by the Federal and State Constitutions, the motion presеnts a question of law and the order of the court is reviewable. State v. Phillip, 261 N.C. 263, 134 S.E. 2d 386; State v. Lane, 258 N.C. 349, 128 S.E. 2d 389; State v. Hackney, 240 N.C. 230, 81 S.E. 2d 778; State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520. Defendant urges both abuse of discretion and denial of constitutional rights as error.

This continuance was sought on the opening day of a special term of court which had been ordered specifically for the trial of this case. On defendant’s motion, a special venire of 150 jurors summoned from another county was present in court to insure him a fair trial by an impartial jury. Defendant and his counsel had known Dr. Coley’s views on the subject of pathological intoxication since October 2, 1969. A copy of the Clinical Summary containing the findings and recommendations of Drs. Fowler and Kyles, based on a sixty-day observation of defendant at the State Hospital at Goldsboro, bad been in their possession since approximately 20 August 1969. If they desired a further examination of defendant for the purpose of making a brain wave test (EEG) after ingestion of alcohol, diligence required them to bring such desire to the court’s attention before the term was set and the veniremen summoned. The judge was fully justified in his discretionary denial of a last-minute motion for continuance when it could and should have been made before extensive prеparation for trial had been completed. No abuse of discretion has been shown.

Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, ‍‌​​​​​​​‌‌‌‌‌‌​​​​‌‌‌‌‌‌​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌‌​‍if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. State v. Utley, 223 N.C. 39, 25 S.E. 2d 195; State v. Farrell, 223 N.C. 321, 26 S.E. 2d 322; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; Powell v. Alabama, 287 U.S. 45, 77 L. ed 158, 53 S. Ct. 55; 2 Strong’s N. C. Index 2d, Constitutional Law § 29; 14th Amendment, U. S. Constitution; Art. I, §§ 11 and 17, N. C. Constitution.

Pathological intoxication has been described as follows:

“In this syndrome the patient is apparently susceptible to extremely small amounts of alcohol and reacts to such amounts violently. Pie consumes a small amount of alcohol, perhaps 2 or 3 drinks, and develops total amnesia for the events that follow. He often carries out automatic behavior and sometimes this behavior is violent and dangerous to others. From this standpoint the illness is of considerable importance as' a medico-legal problem. While patients suffering from alcoholism are responsible for their acts, a patient with acute pathological intoxication is insane at the time and therefore not responsible for his acts.
“A peculiar and interesting relationship between pathological intoxication, psychopathic personality, and psychomotor epilepsy has been found by this writer, and the evidence, particularly electroencephalographic, points to the fact that the disorders are essentially identical. This interesting association of some cases of psychopathic personality with psychomotor epilepsy and pathologicаl alcoholic intoxication indicates that pathological alcoholic intoxication and psychomotor epilepsy may be the same disease under two different names. In one case (psycho-motor epilepsy), psychomotor epileptic attacks simply occur spontaneously; in the other (pathological intoxication), psycho-motor attacks occur under the stimulus of alcohol.” Thompson, Alcoholism, p. 467 (1966)

Several states have adopted a so-called theory of diminished responsibility with respect to specific intent crimes and hold that defendant may offer evidence of an abnormal mental condition, although not sufficient to establish legal insanity, for the purpose of showing that he did not have the capacity to deliberate or premeditate at the time the homicide was committed — -elements necessary for a conviction of murder in the first degree. People v. Gorshen, 51 Cal. 2d 716, 336 P. 2d 492 (1959); Becksted v. People, 133 Colo. 72, 292 P. 2d 189 (1956); State v. Gramenz, 256 Iowa 134, 126 N.W. 2d 285 (1964); State v. Vigliano, 43 N.J. 44, 202 A. 2d 657 (1964). But California is apparently the only state which thus far recognizes pathological intoxication as a defense to first degree murder. People v. Castillo, 70 A.C. 274, 74 Cal. Rptr. 385, 449 P. 2d 449 (1969); People v. Conley, 64 Cal. 2d 310, 49 Cal. Rptr. 815, 411 P. 2d 911. The problem was discussed in Kane v. United States, 399 F. 2d 730 (9th Cir. 1968), cert, den., 393 U.S. 1057, 21 L. ed 2d 699, 89 S. Ct. 698 (1969). The Court held that the disability which prevented Kane from knowing the nature and quality of his action at the time he shot his wife was acquired from drinking liquor — an act within his own control — and could not be classified as a mental illness excusing criminal responsibility.

The general rule that voluntary drunkenness is no legal excuse for crime (State v. Potts, 100 N.C. 457, 6 S.E. 657; State v. Wilson, 104 N.C. 868, 10 S.E. 315) does not obtain with respect to crimes where, in addition to - the overt act, it is required ‍‌​​​​​​​‌‌‌‌‌‌​​​​‌‌‌‌‌‌​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌‌​‍that a definite, specific intent be established as an essential feature. State v. Murphy, 157 N.C. 614, 72 S.E. 1075. Murder in the first degree is a specific intent crime in that a specific intent to kill is a neсessary-ingredient of premeditation and deliberation. Intoxication which renders an offender utterly unable to form the required intent may be shown as a defense. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (murder in the first degree); State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473 (attempting to burn a dwelling house); State v. Oakes, 249 N.C. 282, 106 S.E. 2d 206 (murder in the first degree); State v. Bunton, 247 N.C. 510, 101 S.E. 2d 454 (murder in the first degree); State v. Absher, 226 N.C. 656, 40 S.E. 2d 26 (murder in the first degree). Even so, where the facts show that the intent to kill was deliberately formed when sober and executed when drunk, intoxication is no defense to the capital charge. State v. Kale, 124 N.C. 816, 32 S.E. 892; State v. Murphy, supra.

“All the authorities agree that to make such defеnse available the evidence must show that at the time of the killing the prisoner’s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. . . . [A]nd where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense.” State v. Shelton, 164 N.C. 513, 79- S.E. 883; accord, State v. English, 164 N.C. 497, 80 S.E. 72; State v. Foster, 172 N.C. 960, 90 S.E. 785. See Annotation, “Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge,” 8 A.L.R. 3d 1236, for a collection of cases in other jurisdictions relating to intoxication as a defense.

Had the opinion of Dr. Coley been substantiated by a brain wave test following ingestion of alcohol by defendant, it would not have established an insanity defense in the usual sense nor a defense that defendant was so drunk that he was utterly unable to form the required specific intent to kill. It would have established only that, after the intent to kill was deliberately and premeditatedly formed when sober, defendant voluntarily drank enough intoxicants to produce pathological intoxication and then executed his murderous intent. This is not recognized in North Carolina аs a valid defense to murder in the first degree. Hence denial of the motion for' continuance nowise impinged upon defendant’s constitutional rights. Due process does not include the right to fish in psychiatric ponds for immaterial evidence.

For decisions in other jurisdictions relating to abnormal mental conditions and purposes for which evidence thereof may ‍‌​​​​​​​‌‌‌‌‌‌​​​​‌‌‌‌‌‌​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌‌​‍be considered, see Annotation, “Comment Note. — Mental or Emotional Condition as Diminishing Responsibility for Crime,” 22 A.L.R. 3d 1228. Defendant’s second assignment of error is overruled.

Assignments of Error Nos. 3, 4 and 5 are not discussed in defendant’s brief and are therefore deemed abandoned under Rule 28, Rules of Practice in the Supreme Court. State v. Strickland, 254 N.C. 658, 119 S.E. 2d 781; State v. Cole, 270 N.C. 382, 154 S.E. 2d 506; State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416.

Defendant’s Assignment No. 6 is based on Exception No. 6 which appears on page 75 of the Record in these words: “The defendant excepts to the entire charge of the court.” The charge covers thirty-nine pages. In his brief, defendant asserts that “the Court erred in its entire charge to the jury in that he gave more weight, stress and credibility to the evidence of the State than to that of the defendant.”

This is a broadside assignment which is ineffectual to bring up any part of the charge for review by this Court. State v. Kirby, supra; Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736. Objections to the statement of contentions must ordinarily be brought to the attention of the court before verdict — -otherwise they are deemed to have been waived. Doss v. Sewell, 257 N.C. 404, 125 S.E. 2d 899; Peek v. Trust Co., 242 N.C. 1, 86 S.E. 2d 745; 1 Strong’s N. C. Index 2d, Appeal and Error § 31.

Defendant next contends the court erred in that the “charge to the jury was not fair and impartial and was prejudicial to the defendant.” This is designated as Assignment No. 7.

This assignment is likewise broadside and ineffectual. “Assignments of error to the charge should quote the portion of the charge to which aрpellant objects, and assignments based on failure to charge should set out appellant's contention as to what the court should have charged.” State v. Kirby, supra; State v. Wilson, supra; Samuel v. Evans and Cooper v. Evans, 264 N.C. 393, 141 S.E. 2d 627.

The requirements of the rules and the reasons for them have been reiterated throughout our Reports. These rules are mandatory and will be enforced. State v. Kirby, supra; Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E. 2d 313; Pamlico County v. Davis, 249 N.C. 648, 107 S.E. 2d 306; Hunt v. Davis, 248 N.C. 69, 102 S.E. 2d 405; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

Defendant does not except to the verdict or to the judgment of life imprisonment based thereon. Even so, the appeal itself is an exception to the judgment and to any other matter of law appearing upon the face of the record. Balint v. Grayson, 256 N.C. 490, 124 S.E. 2d 364; Dilday v. Board of Education, 267 N.C. 438, 148 S.E. 2d 513; Cratch v. Taylor, 256 N.C. 462, 124 S.E. 2d 124. The record, in the sense here used, refers only to the essential parts of the record, such as the pleadings, verdict and judgment. “It refers only to such constituted mattеrs of the action as must necessarily go upon and constitute the record of it, and which the Court sees and must take notice of, such as the pleadings, the verdict, and the judgment; it does not refer to such matters and things as are of, but incident to the action and do not necessarily go upon the record, such as the rulings of the Court upon questions ‍‌​​​​​​​‌‌‌‌‌‌​​​​‌‌‌‌‌‌​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌‌​‍arising upon motions, evidence, its instructions to the jury, and thе like. Such matters as those last mentioned, do not go upon and become part of the record, unless the correctness of the decisions of the court, upon them is questioned, in which case, they are made part of the record, to the end, the complaining party may enter his objections, and the grounds thereof, and assign error. Such decisions of the court are presumed tо be correct and acceptable to the parties, in the absence of objections so made.” Thornton v. Brady, 100 N.C. 38, 5 S.E. 910; State v. Stokes, 274 N.C. 409, 163 S.E. 2d 770; Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729; In re Will of Adams, 268 N.C. 565, 151 S.E. 2d 59; Lowie and Co. v. Atkins, 245 N.C. 98, 95 S.E. 2d 271.

While defendant does not assign the form of the verdict as error, we call attention to the fact that the jury’s “recommendation of mercy” is not in accord with G.S. 14-17. “The punishment specified in G.S. 14-17 for first degree murder is either death or imprisonment for life.” State v. Benton, 276 N.C. 641, 174 S.E. 2d 793. Even so, the court treated the verdict as if the jury had recommended that “the punishment be imprisonment for life in the State’s prison” and imposed a sentence of life imprisonment. Hence the irregularity in the verdict has not prejudiced defendant and the judgment will not be disturbed. State v. Locklear, 253 N.C. 813, 117 S.E. 2d 763; State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165; State v. Foye, 254 N.C. 704, 710, 120 S.E. 2d 169, 173.

Since prejudicial error has not been shown and error of law does not appear upon the face of the record proper, the verdict and judgment will be upheld.

No error.