292 N.C. 344
N.C.
1977
LAKE, Justice.

Prior, to trial the defendant moved for a psychiatric examination to determine his mental competency to plead to the indictment and to stand trial thereon. For this purpose, he was committed to Dorothea Dix Hospital. During the term of that commitment, the court, being advised that the defendant’s brother planned to break into the hospital and release the defendant, ordered that he be transferred to the hospital at Central Prison and that the psychiatric examination be continued there. This was done, the examination being conducted by the staff of the Dorothea Dix Hospital.

The defendant’s contention that this transfer to the prison hospital was error is without merit. When the capacity of one charged with a criminal offense to proceed is questioned, the court may direct the commitment of the defendant to a State mental health facility for observation or may appoint one or more impartial medical experts to conduct such examination and may make appropriate temporary orders for the confinement or security of the defendant pending the ruling of the court upon the question of his capacity to proceed. G.S. 15A-1002; State v. Washington, 283 N.C. 175, 185, 195 S.E. 2d 534 (1973).

The defendant next assigns as error the failure of the court to hold a hearing on the question of his ability to plead and stаnd trial. Following the above mentioned psychiatric examination, the hospital staff made a report to the court indicating that the defendant did have mental capacity to plead to the indictment and to stand trial. Without conducting any further hearing for the determination of that question, the court proceeded with the triаl. This was contrary to G.S. 15A-1002(b) (3) which specifically requires that when the capacity of the defendant to proceed is questioned, the court must hold a hearing to determine that question, which hearing must be held, upon reasonable notice to the defendant and the prosecutor, after the psychiatric examination if one is оrdered by the court. However, we think it obvious that, under the circumstances of this case, the defendant has waived his right to such hearing. State v. Young, 291 N.C. 562, 231 S.E. 2d 577 (decided January 31, 1977).

The report of the psychiatric examination is admissible in evidence at such hearing. G.S. 15A-1002(b) (1 and 2). The statute further provides that other evidence may be introduced at the hearing by the State and by the defendаnt. The record in the present case shows that the report of the examining psychiatrist was to the effect that the defendant did have the requisite mental capacity to plead to the indictment and to stand trial. Nothing in the record indicates that before going to trial the defendant requested a hearing or otherwise indicаted any adherence to his contention of lack of mental capacity. He offered no evidence on the question. See: State v. Washington, supra. See also: State v. Propst, 274 N.C. 62, 68, 161 S.E. 2d 560 (1968), as to the law of this State upon this question prior to the enactment of the foregoing statute.

The defendant next assigns as error the court’s denial of his motion for change of venue on account of local pretrial publicity. It is well established that this is a matter in the sound discretion of the trial court. State v. Brewer, 289 N.C. 644, 655, 224 S.E. 2d 551 (1976) ; State v. Alford, 289 N.C. 372, 378, 222 S.E. 2d 222 (1976); State v. Harrill, 289 N.C. 186, 190, 221 S.E. 2d 325 (1976). Nothing in the present record indicates an abuse of discretion in this ruling. The record does not show the defendant’s examination of prospective jurors nor does it show that he exhausted the peremptory challеnges allowed him by law. Apparently, ‍​​​​‌‌‌‌‌​‌​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​‌‌​‌​‌​‌​‍jurors were found who were not aware of, or were not affected by, the publicity of which the defendant complains and nothing in the record indicates that, prior to verdict, he was not content with the twelve jurors who found him guilty.

We find no merit in the defendant’s Assignments of Error 5, 6 and 7 relating to the denial of portions of his pretrial motions for discovery. The State is not presently required to disclose to the defendant in advance of trial the names of its prospective witnesses. State v. Carter, 289 N.C. 35, 220 S.E. 2d 313 (1975). However, a list of the State’s witnesses was supplied to defendant’s counsel prior to the commencement of the selection of the jury. G.S. 15A-903 specifies сertain types of information which the defendant is entitled to obtain by discovery procedure. The statute does not support the defendant’s contention that he was entitled to pretrial disclosure of how the State intended to prove Mr. Royal’s ownership of the guns sold by the defendant and his companion. As to the defendant’s rеquest for information as to evidence obtained by the State as a result of the defendant’s statement, it is sufficient to note that the record does not indicate any such evidence was so discovered.

There is likewise no merit in the defendant’s Assignments of Error 8, 9 and 10 with reference to the overruling of his pretrial motions to suppress statements made by the defendant to the investigating officers and evidence obtained by the officers as the result of such statements. As above noted, the record does not indicate any evidence introduced at the trial was so obtained. Furthermore, the statements themselves were properly obtained and were properly admitted in evidence. The rule that evidence, which is fruit of a poisoned tree, is not admissible has no application where, as here, the tree in question was not poisoned and it bore no fruit.

The defendant’s statement to the investigating officers, at the time of the second interrogation, related to a general conversation had by the defendant with others present in a store, in which conversation the defendant remarked that he knew who killed Mr. and Mrs. Royal. That statement, apparently, was not made to police officers. Upon learning of it, the investigating officers would have been exceedingly remiss had they not interrogated the defendant about it. At such interrogation the defendant was not warned of his constitutional rights. However, he was not in custody nor was he then a suspect. The court conducted a pretrial voir dire upon the defendant’s motion to suppress evidence of his statement to the officers concerning this conversation. It found that the defendаnt was not in custody but was free to terminate the interview and leave at will, as, in fact, he did immediately after the conclusion of the interrogation. The rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), relating to the admissibility of confessions made without prior warning of the declarant’s constitutional rights, applies only to statements while in custody. The finding of the trial court that the defеndant was not in custody at the time he made the statement in question, being supported by evidence in the record, elicited on a properly conducted voir dire, is conclusive. State v. Smith, 278 N.C. 36, 41, 178 S.E. 2d 597 (1970); State v. Wright, 274 N.C. 84, 93, 161 S.E. 2d 581 (1968) ; State v. Gray, 268 N.C. 69, 78, 150 S.E. 2d 1 (1966).

The motion to suppress the statement made by the defendant to investigating officers on the afternoon of 30 March 1976 was also properly denied. Both upon the motion to suppress and upon the defendant’s objection to the introduction of the evidence at the trial, the court conducted a full voir dire and made detailed findings of fact which are supported completely by the evidence for the State. At neither hearing did the defendant offer any evidence whatever. It is true that, some eight hours prior to this conversation with the officers, the defendant had stated he wanted an attorney. When he did so, the interrogation then being conducted ceased immediately. The subsequent interrogation, eight hours later, was initiated by the defendant, not the officers. Prior to making the confession, the defendant was once more warned of his constitutional rights, including his right to counsel, and he expressly stated that he was willing to talk to the officers without the presence of an attorney. The evidence indicates no threats and no promises were made or other inducements given to cause the defendant to confess his guilt. Here аlso, the findings of fact by the court, being supported by evidence, are conclusive. State v. Smith, supra; State v. Wright, ‍​​​​‌‌‌‌‌​‌​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​‌‌​‌​‌​‌​‍supra; State v. Gray, supra.

The defendant’s earlier request for counsel did not make inadmissible the confession made at the subsequent conversation with the investigating officers, initiated by the defendant, himself, at which he was again fully infоrmed of his constitutional rights and at which he expressly waived the right to have counsel present. State v. Jones, 278 N.C. 88, 93, 178 S.E. 2d 820 (1971). See also: State v. Bishop, 272 N.C. 283, 296, 158 S.E. 2d 511 (1968).

In his argument to the jury, counsel for the defendant read the statute relating to armed robbery, including the provision thereof prescribing the punishment, this being G.S. 14-87. The trial court sustained the objection of the State. In this there was error since counsel was entitled to so inform the jury. State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (1976). This error was, however, harmless beyond a reasonable doubt. The desired information was thus brought to the attention of the jury and the jury was not instructed to disregard it or that it was erroneous. Furthermore, upon the charge of armed robbery, judgment was arrested.

The defendant next assigns as error the denial of his motion for a mistrial. During the selection of the jury, a prospective juror stated that he had formed an opinion that the defendant was guilty because the defendant’s alleged companion had committed suicide and the defendant had tried to do so. The defendant contends that this response, blurted out by the prospective juror in the prеsence of jurors already selected and others of the panel awaiting interrogation, was so prejudicial that its effect could not be removed by instructions of the judge. In State v. Jarrette, 284 N.C. 625, 639, 202 S.E. 2d 721 (1974), reversed as to the imposition of the death penalty only, _ U.S. _, 96 S.Ct. 3205, 49 L.Ed. 2d 1206, a juror stated on voir dire that he had read in the newspaper that the defendant, chаrged with rape, murder and kidnapping, had been declared an outlaw. We held that there was no error in the denial of the defendant’s motion for mistrial on account of this statement made in the presence of other selected and prospective jurors. As we there stated: “A mistrial is not lightly granted. The granting of the defendant’s motiоn ‍​​​​‌‌‌‌‌​‌​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​‌‌​‌​‌​‌​‍therefor rests largely in the discretion of the trial judge. State v. Self, 280 N.C. 665, 187 S.E. 2d 93; Strong, N. C. Index 2d, Criminal Law, § 128.”

The defendant assigns as error the overruling of his objections to the introduction in evidence of certain photographs admitted to illustrate the testimony of the doctor who performed autopsies upon the bodies of Mr. and Mrs. Royal. The ground for this objection was that thesе photographs had not been supplied to the defendant pursuant to the order for discovery. The record establishes that the District Attorney did not know of the existence of these photographs until the morning on which the witness was called to testify. Furthermore, the exclusion of evidence for the reason that the party offеring it has failed to comply with the statutes granting the right of discovery, or with an order of the court issued pursuant thereto, rests in the discretion of the trial court. G.S. 15A-910.

The defendant next assigns as error the overruling of his objections to the introduction in evidence of certain other photographs of the bodies of Mr. and Mrs. Royal as they lay in the living rоom of the home and in the tool shed and of the areas surrounding them. The defendant contends that these photographs were excessive in number. We find no merit in this contention. The photographs were not merely repetitious, each being useful to illustrate a portion of the testimony of the witness not illustrated by other photographs. It is well settled that the mere fact that a photograph is gruesome, revolting or horrible does not prevent its use by a witness to illustrate his testi mony. State v. Cutshall, 278 N.C. 334, 180 S.E. 2d 745 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969), reversed as to death penalty only, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed. 2d 859; State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1967); State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824 (1948). Nevertheless, an excessive number of such photographs may not properly be admitted in evidence. State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969) ; State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). What constitutes an excessive number of photographs must be left largely tо the discretion of the trial court in the light of their respective illustrative values. The photographs in the present case were not merely repetitious. They portrayed somewhat different scenes and we find in the use of the total number no abuse of discretion.

It is elementary that, upon a motion for judgment as in the case of nonsuit in a criminal action, the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every inference of fact that may reasonably be drawn therefrom. State v. Holton, 284 N.C. 391, 200 S.E. 2d 612 (1973) ; State v. Henderson, 276 N.C. 430, 173 S.E. 2d 291 (1970) ; State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967). The fact that the doctor who performed the autopsy expressed the opinion that Mr. and Mrs. Royal could not have been killed prior to the day after the dates alleged in the bills of indictment does not entitle the defendant to such judgment of nonsuit upon the present record. G.S. 15-155; State v. Holton, supra; State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972); State v. Gore, 207 N.C. 618, 178 S.E. 209 (1935). The evidence of the State, taken to be true, reveals two ruthless, brutal murders in the perpetration of a planned robbery by the defendant and his companion. This assignment of error is ovеrruled.

The defendant next contends that the trial court erred in failing to submit to the jury, as a possible verdict, the defendant’s guilt of common law robbery. There is no evidence whatever in the record to show common law robbery. All of the evidence is that each of ‍​​​​‌‌‌‌‌​‌​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​‌‌​‌​‌​‌​‍the victims was struck on the head with a weapon of such nature and used with such force as to make it a deadly weapon. Thus, the robbery committed was armed robbery, not common law robbery. As this Court, speaking through Justice Sharp, now Chief Justice, said in State v. Lee, 282 N.C. 566, 569, 193 S.E. 2d 705 (1973) :

“The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firеarm or other dangerous weapon whereby the life of a person is endangered or threatened. G.S. 14-87 (1969); State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809 (1971). In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant’s guilt of that crime. If the State’s evidence shows an armed robbеry as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required.”

Furthermore, in the present case, the defendant received no sentence for the robbery, judgment being arrested as to that charge. A murder committed in the perpetration of any robbery, whether armed robbery or common law robbery, is murder in the first degree. G.S. 14-17. Therefore, even had there been error in the failure of the court to submit guilt of common law robbery as a possible verdict, the defendant was in no way prejudiced thereby.

Finally, there is no merit in the defendant’s contention that the court failed to instruct the jury thаt if it found the defendant was merely present at the scene of the crime that circumstance alone would not justify a verdict of his guilt thereof. Actually, the court did so instruct the jury, but, in any event, the defendant’s own statement, properly admitted in evidence, shows that he actively participated in the planning of the robbery and in its execution. This being true, it is immaterial that it was his companion who struck the fatal blows. State v. Scott, 289 N.C. 712, 224 S.E. 2d 185 (1976) ; State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182 (1973).

We have carefully examined all of the defendant’s assignments of error relating to his convictions upon the charges of armed robbery and first degree murder and find no merit in any of them. However, since we are compelled to accept as cоrrect interpretations placed by the Supreme Court of the United States upon provisions of the United States Constitution and to comply therewith in applying those provisions to the statutes of this State, and since that Court, in Woodson v. North Carolina, _U.S_, 96 S.Ct. 2978, 49 L.Ed. 2d 944 (1976), held that the provisions of G.S. 14-17, imposing the death penalty for murder in the first degree, violate the Constitution of the United States, and so may not be given effect by the courts of this State, we must hold that there is merit in the defendant’s attack upon the death sentence imposed upon him by reason of his convictions of murder in the first degree. Consequently, the judgment of the Superior Court sentencing the defendant to death upon these verdicts, must be, and is hereby, vаcated and, by authority of the provisions of the Session Laws of 1973, Ch. 1201, § 7 (1974 Session), a sentence to imprisonment for life must be substituted therefor. State v. Cawthorn, 290 N.C. 639, 650, 227 S.E. 2d 528 (1976).

This case is, therefore, remanded to the Superior Court of Wilkes County with directions (1) that the ‍​​​​‌‌‌‌‌​‌​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​‌‌​‌​‌​‌​‍presiding judge, without requiring the presence of the defendant, enter a judgment imposing upon the defendant a sentence of life imprisonment for the first degree murders of which he has been convicted, in lieu of the sentence of death heretofore imposed upon him; and (2) that, in accordance with this judgment, the Clerk of the Superior Court issue a new commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk furnish to the defendant and to his attorney a copy of the judgment and commitment as revised pursuant to this opinion.

No error in the verdict.

Death sentence vacated.