Justices COPELAND and EXUM did not participate in the hearing or decision of this case.

Chief Justice SHARP dissenting.

By 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.

Prior 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.

At 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 "medication has alleviated some of the more obvious manifestations of the disease."

The defendant then contended that a "drugged man" should not be put on trial. Dr. Maynard testified that the defendant was then suffering from paranoid schizophrenia but the disease had been "put in remission by means of drugs," that continued administration of the drug three times daily was necessary to keep the defendant's mental disease in a state of remission, there being "no heal to schizophrenia." 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, "on the date of the alleged offenses he did understand the nature and quality and wrongness of his actions," and did have "such recall of these offenses that he can intelligently discuss them with his counsel at this time." It was his opinion that the defendant "can recall what happened that night but he is going to tell his attorney he cannot."

In the opinion of Dr. Maynard, "If 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," but the defendant's 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.)

Dr. 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 "was not able to exercise his capacity to distinguish between right and wrong;" that his delusional thinking centered around the idea that his wife had been or was unfaithful to him; that "assuming that as a result of his mental disorders he has formed in his mind a delusion as to what occurred and that's all he recalls about it, and if that delusion is based upon irrational thinking or irrational mental processes and that's all he has to communicate to his counsel," 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 "Now that he is aware of what he has done, his mind is working, he's in a desperate situation so to say and his mind worked out a defense for himself."

At the conclusion of the pretrial hearing the court found:

"The 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."

The 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:

On 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's 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.)

On 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.

At approximately 5 p.m. on 2 December 1971, the defendant, nervous, trembling and wet with perspiration, left the apartment, went to a neighbor's apartment and called a taxi telling the neighbor, "Cat is sick." 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.

About 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's 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 "to be in his right mind," but, at times, he would stop talking and would "just look out like he was staring in space."

Sergeant 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 "nervous and shaky." The officer suspected that he might be "on drugs," 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, "Something has happened at the house," but did not say what had occurred there.

After 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's 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's body was substantially stuffed into a pillow case.

Catherine 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.

Meanwhile, 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's 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 understandingly. (The defendant was, of course, not under oath when making the statements to the hospital attendants.)

Thereupon, 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.

Following 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, "Something awful is wrong at my house." She asked what he meant and he replied, "I have destroyed my wife and children." She asked, "How did you destroy them?" He replied, "I beat them." He told Nurse Bass: "I 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't know why I did it. I don't understand. I destroyed my family. Somebody help me. I don't understand it." 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.

Nurse 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.

Attendant 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's service in Vietnam. The defendant said that he needed help and in reply to Williams' inquiry as to why he needed help, the defendant said, "To try and make up for what I've done; maybe to make things right again." He told Williams he had destroyed his family, had killed his wife and child because of "sensations from the music going to his brain." The defendant also told Williams, "They [sic] wanted him to dress like an Indian and fight the Americans." Williams did not know the defendant's 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.

Dr. 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 "not in his right mind when experiencing delusions." The first information Dr. Parmelee had as to people being dead at the defendant's 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.

In 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 "heard voices" 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.

Captain 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.

Pursuant 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.

Dr. 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:

It 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's experience most paranoid schizophrenics select the correct alternative. In his opinion, "This defendant did have the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation." This opinion is based upon Dr. Maynard's study of the defendant's record, including the report of Dr. Parmelee concerning his examination of the defendant at Wayne Memorial Hospital on 2 December 1971 and the defendant's 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 "an acute schizophrenic episode" 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 "acute exacerbation" of his mental disease in order to commit the alleged crimes.

In Dr. Maynard's 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 "because of the mental disease from which this defendant is suffering he should not be free in society." 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.

Dr. Maynard's opinion as to the danger of the defendant to himself and society is based upon the doctor's 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's opinion, if the defendant, in fact, committed the offenses for which he was on trial, he did so "while in a state of active paranoid schizophrenia at which time he was dangerous to himself and to society." It is not his opinion that the defendant was then "having an acute exacerbation."

In reaching his opinion concerning the defendant, Dr. Maynard had access to and considered a discharge summary prepared by Dr. Peter, Dr. Maynard's 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, "the 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." Dr. Maynard does not agree with that opinion insofar as it relates to the defendant's ability to apply his knowledge of right and wrong and to the killings being products of the defendant's mental illness.

Dr. 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 "able to cope with his affairs." 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's illness in a state of "remission" despite the tensions of the trial.

The 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's 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.

The defendant's 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's arrival at his mother's 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 "those people" 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 "people from outer space" and did not want to stay, so she took him back to her home.

Thereafter, he suggested that he go to the 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's 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's 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 "hadn't done anything."

In 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 "acting in his right mind." The defendant's 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's 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.

On the voir dire, conducted to determine the admissibility of the defendant's 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, "There's trouble at my house." When Nurse Bass asked what he meant, he said, "There's bad trouble at my house; somebody send the police." When she asked what kind of trouble, he said, "Something awful has happened; I have destroyed my family." When she asked, "What do you mean," he repeated the statement, and when she asked how he had destroyed his family, he said, "I beat them." 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 "like a man in his right mind," "to know what was going on around him," and "could comprehend what he was saying." 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 "in his right mind."

The 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, "I need help." He was asked, "Why do you need help?" He replied, "For what I had [sic] done; to make up for what I done." 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, "Albert can you tell me what you did?" The defendant replied, "I have killed my family." Williams asked no further questions and the defendant said nothing further to Williams.

Dr. 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 "manic hyperactive state." After about 20 minutes, the defendant began to answer questions to the effect, "They're after me; they'll get you" and "trouble at home." 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.

The defendant told Dr. Parmelee there were "people dead at home," 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 "was oriented and knew and understood the meaning of what he was saying and responded normally to questions," and was capable of relating recent facts stored in his memory." In Dr. Parmelee's opinion, the defendant, at that time, "could distinguish right from wrong because he said he `wanted to make things right,'" 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.

In Dr. Parmelee's 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.

Dr. Parmalee's diagnosis was "schizophrenic reaction, paranoid type with homicidal expression." 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 "from outer space," 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 "showed he knew right from wrong" at the time of their conversation in the hospital. He showed he had "some guilt feelings about what he had done" and was trying to find out "how he could set things right."

On 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 "verbalizing" 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.

Dr. 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.

In 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; "as regards this particular offense he was not able to distinguish between right and wrong and adhere to the right." However, it was also Dr. Peter's 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 "historical fact" that he had killed his wife and four children, though he may not have known the full implication of his words.

Captain Flores of the Goldsboro Police Department testified on this voir dire that he went into the hospital 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.)

LAKE, Justice.

The defendant's 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's 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's mental condition with reference to the matters of premeditation and deliberation. In all of these, the crucial factor is the defendant's 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.

If 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.

[ 1-5] The test of a defendant's 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, 29; 21 AM. JUR.2d, Criminal Law, 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 in this instance. State v. Propst, supra, at page 69. It may be determined 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's 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.

In this instance, there was ample expert medical testimony to support the trial court's 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. Dr. 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.

The statements by the defendant to Nurse Bass, Dr. Parmelee 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. "A 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." Wigmore on Evidence, 3d Ed, 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.

For 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: "If the accused has sufficient mental capacity to testify, he has sufficient mental capacity to confess." 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, 1. The trial court's 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.

In 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.

There 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.

The 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 "in contact with reality" 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.

G.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 statements made to Nurse Bass and Attendant Williams and, thereupon, the defendant withdrew his objection as to Dr. Parmalee's testimony.

A 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's 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's 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 [ 175 N.C. 778], 783, 95 S.E. 101.

Over 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, "North Carolina, as well as many other jurisdictions, has steadfastly refused to recognize the `irresistible impulse doctrine' as a test of criminal responsibility."

In State v. Duncan, 244 N.C. 374, 93 S.E.2d 421, Justice Parker, later Chief Justice, speaking for the Court, said:

"To 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's 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."

In 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's 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.

In 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's 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.

The court's charge to the jury contained the following:

"Now, 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.

[Here follow correct instructions as to the elements of first degree murder and second degree murder and the burden of proof with reference thereto.]

"Now, the defendant has the burden of proving that he was insane. However, unlike the State which must prove the defendant's guilt beyond a reasonable doubt, the defendant must only prove his insanity to your satisfaction. Therefore, I charge that if you're 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.

* * *

"Now, if on December 1, 1971, you should find and find beyond a reasonable doubt that the defendant did commit the acts which I've 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 insanity."

In 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 procedure would be to submit to the jury as the first issue for their consideration, "Was the defendant (at the time of the alleged offense), by reason of a defect of reason or disease of the 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?" 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's 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.

The defendant's 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.

There 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's opinion as set forth in the discharge summary. That statement of Dr. Peter, put before the jury by the defendant's cross-examination of Dr. Maynard, was that the defendant knows right from wrong but "at the time of the alleged offense was not able to apply his knowledge of right and wrong and the alleged offense was the product of his mental illness." (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.

The defendant says the court also erred in its failure to instruct the jury that it should consider the evidence of the defendant's mental disease on the question of premeditation and deliberation.

It 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, 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.

The 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's mother and irrespective of inferences which might reasonably be drawn from the State's evidence as to the defendant's appearance and manner when first observed by the police officer and when being examined in the emergency room of the Wayne Memorial Hospital.

We 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.

No error.

Justices COPELAND and EXUM did not participate in the hearing or decision of this case.