State v. Bunn
196 S.E.2d 777
N.C.
1973
Check Treatment
SHARP, Justice.

Defendant’s defense to the charges of murder and felonious assault of which he was convicted is that at the time he shot both Mrs. Smith and Tommie Stevens he was so drunk he was utterly incapable of forming a deliberate and premeditated purpose to kill or to form any criminal intent whatever; and that he did not know the nature and quality of his acts and the difference between right and wrong in relation to them.

It is settled law “that voluntary drunkenness is not a legal excuse for crime.” State v. Propst, 274 N.C. 62, 71, 161 S.E. 2d 560, 567 (1968). See State v. Potts, 100 N.C. 457, 6 S.E. 657 (1888). “ [I] nvoluntary intoxication is a very rare thing, and can never exist where the person intoxicated knows what he is drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion.” Perryman v. State, 12 Okla. Cr. 500, 502, 159 P. 937-38 (1916). In People v. Morrow, 268 Cal. App. 2d 939, 948-49, 74 Cal. Rptr., 551, 558 (1969), it is said that the law does not permit a person who commits a crime in a state of intoxication “to use his own vice or weakness as a shelter against the normal legal consequences of his conduct. . . . When, on a given occasion, a person takes his first drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even though he may be an alcoholic.” See also State v. Potts, supra. With reference to the defense of drunkenness Sir Matthew Hale said, “[I]f a person by the unskilfulness of his physician or by the contrivance of his enemies, eat or drink such a thing as causeth such a temporary or permanent phrensy, as aconitum or mix vomica, this puts him into the same condition, in reference to crimes as any other phrensy, and equally excuseth him.” In his view, these were the “two allays to be allow’d” in the case of drunkenness. 1 Hale, History of the Pleas of the Crown 32 (1778).

Thus it is only when alcohol has been introduced into a person’s system without his knowledge or by force majeure that his intoxication will be regarded as involuntary. See *458 Annots., 8 A.L.R. 3d 1236 (1966) and 30 A.L.R. 761 (1924). In this case there is no evidence tending to show that defendant, if he was drunk at the time of the shootings, was involuntarily drunk, or that he had become chronically or permanently insane in consequence of his excessive use of alcohol.

Although voluntary intoxication is no excuse for crime, where a specific intent is an essential element of the offense charged, the fact of intoxication may negate the existence of that intent. State v. Propst, supra. “A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter.” State v. Gordon, 241 N.C. 356, 358, 85 S.E. 2d 322, 324 (1955).

If it is shown that a person on trial for murder in the first degree was so drunk at the time he committed the homicide charged in the indictment that he was utterly incapable of forming a deliberate and premeditated purpose to kill, an essential element of murder in the first degree is absent. State v. Propst, supra. In such a situation it is said that “the grade of the offense is reduced to murder in the second degree.” State v. English, 164 N.C. 498, 511, 80 S.E. 72, 77 (1913). See also State v. Alston, 210 N.C. 258, 262, 186 S.E. 354, 356 (1936); State v. Foster, 172 N.C. 960, 966, 90 S.E. 785, 788 (1916); State v. Shelton, 164 N.C. 513, 517, 79 S.E. 883, 885 (1913); State v. Murphy, 157 N.C. 614, 618, 72 S.E. 1075, 1077 (1911); Annot., 8 A.L.R. 1052 (1920).

In this case the judge instructed the jury that it might return one of three verdicts: murder in the first degree, murder in the second degree, or not guilty. He correctly charged that in order to convict defendant of murder in the first degree the State was required to satisfy the jury beyond a reasonable doubt that defendant unlawfully killed Tommie Stevens with malice and in the execution of an actual specific intent to kill, previously formed after premeditation and deliberation; and that if they found defendant was so drunk at the time of the killing as to be utterly incapable of forming a deliberate and premeditated design to kill Stevens he could not be guilty of murder in the first degree, for the essential element of premeditation and deliberation would be lacking.

Defendant assigns as error the court’s refusal to submit manslaughter as a permissible verdict and “to instruct the jury *459 as to the crime of manslaughter as it applies to the facts, circumstances, evidence and defense presented in this case.”

Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Downey, 253 N.C. 348, 117 S.E. 2d 39 (1960) . Defendant’s argument is that the evidence of his intoxication tended to prove not only that he was incapable of forming a deliberate purpose to kill but also that he could not have intentionally used the gun as a weapon; that therefore the presumption of malice which arises from a killing by the intentional use of a deadly weapon as a weapon was not present. He contends that he was not guilty of either first or second degree murder and that it was error for the court to refuse an instruction on manslaughter. This assignment of error is overruled.

“[T]he great weight of authority is that intoxication will not reduce a homicide from murder to manslaughter.” Annot., 12 A.L.R. 861, 888 (1921). See also Annots., 8 A.L.R. 3d 1236 (1966), 79 A.L.R. 897, 904 (1932). Our decisions contain statements in accord with the majority rule. See State v. Alston, supra; State v. Foster, supra; State v. Shelton, supra; State v. Murphy, supra.

We also note that when the jury found defendant guilty of murder in the first degree it found (1) that he specifically intended to kill Tommie Stevens and (2) that he intentionally used the pistol with which he shot and killed Stevens as a weapon. Since, under proper instructions, defendant was found guilty of murder in the first degree, he was not prejudiced by the court’s failure to submit manslaughter. See State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969).

Defendant’s next assignment is that the court erred in refusing to instruct the jury as follows:

“Under the provisions of General Statutes 20-139.1 (a) (1) in criminal actions arising out of actions alleged to have been committed by any person while driving a motor vehicle under the influence of alcoholic liquor, the following presumption arises: If there is at that time 0.10% or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time the test was given.

“A person is under the influence of intoxicating liquor within the meaning of the law with respect to driving under the *460 influence when he has drunk a sufficient quantity of intoxicating beverage to cause him to lose the normal control of his bodily or mental faculties to such an extent that there is an appreciable impairment of either one or both of those faculties.”

Sergeant Wilson testified that he gave defendant the breathalyzer test approximately four hours after he was put in jail and defendant’s blood-alcohol content then registered 0.10%. At the conclusion of Wilson’s testimony defendant requested the court to take judicial notice of G.S. 20-139.1 (a) (1.) (Supp. 1971). The request was refused upon the ground “that defendant was not under arrest for driving under the influence.”

Defendant’s contention is, that by enacting G.S. 20-139.1(a) (1), the legislature “has decided as a matter of public policy that a breathalyzer reading of 0.10% or more raises a presumption that a person is under the influence of alcohol”; that this presumption is pertinent upon the issue of a defendant’s guilt or innocence of any crime; that its application is not restricted to charges involving the operation of a motor vehicle; and that the court prejudiced his defense by refusing to instruct the jury as requested. This contention is untenable.

The tendered instructions state the correct rule of law for determining whether one is guilty of operating a motor vehicle “under the influence of an intoxicating beverage,” a violation of G.S. 20-138, but they do not state the law with respect to the effect of voluntary intoxication upon criminal responsibility for homicide and assault.

A person is under the influence of an intoxicant within the meaning of G.S. 20-138 (Supp. 1971) whenever he has consumed sufficient alcohol to appreciably impair his mental or bodily faculties or both. State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688 (1946).

Certainly one too drunk to form and carry out an intent to kill is under the influence of an intoxicant. However, one may be “under the influence” as that term is defined in State v. Carroll, supra, and yet be quite capable of forming and carrying out a specific intent to kill. We note that defendant’s breathalyzer test showed his blood-alcohol content to be only 0.10%, the lowest percentage which gives rise to the statutory presumption. “[W] hether intoxication and premeditation can coexist depends upon the degree of inebriety and its effect upon the mind and passions. ... ‘A person may be excited, intoxicated *461 and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree.’ ” State v. Hamby, 276 N.C. 674, 678, 174 S.E. 2d 385, 387 (1970).

Our decisions establish that “ [n] o inference of the absence of deliberation and premeditation arises as a matter of law from intoxication; and mere intoxication cannot serve as an excuse for the offender. The influence of intoxication upon the question of existence of premeditation depends upon the degree and its effect upon the mind and passion. For it to constitute a defense it must appear that defendant was not able, by reason of drunkenness, to think out beforehand what he intended to do and to weigh it and understand the nature and consequence of his act.” State v. Cureton, 218 N.C. 491, 494, 11 S.E. 2d 469, 470-71 (1940). See State v. Duncan, 282 N.C. 412, 193 S.E. 2d 65 (1972); State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22 (1972).

By its express terms, G.S. 20-139.1 (a) (1) is applicable only to criminal actions arising out of the operation of a motor vehicle. We may not extend its application and, were we to do so, confusion could be the only result.

Defendant’s other assignments of error require no discussion. The court explicitly and repeatedly put the burden upon the State to satisfy the jury beyond a reasonable doubt of defendant’s guilt of the crimes charged. We think it impossible that the jury, at any time during the charge, could have been confused about this requirement. Defendant’s motion in arrest of judgment was properly overruled. This court has repeatedly held that an indictment in the words of G.S. 15-144 (1965) charges the essentials of murder and is sufficient. For recent decisions see State v. Talbert, 282 N.C. 718, 194 S.E. 2d 822 (1973); State v. Duncan, supra.

After a careful consideration of each of defendant’s assignments of error, in his trial we find

No error.