¶1concurring in part and dissenting in part:
¶2The murder for which defendant was convicted occurred on 8 February 1974, a date between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated in the dissenting opinion in State v. Jarrette, 284 N.C. 625, 666 et seq., 202 S.E. 2d 721, 747 et seq. (1974), I dissent as to the death sentence imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment.
¶3I concur in the decision that defendant is not entitled to a new trial upon the issue of his guilt of the crime charged, for I perceive no error which I believe affected the verdict. However, I do not concur in the statement in the majority opinion that “ [w] e addressed the exact question before us very recently in State v. Cooper, supra[286 N.C. 549, 213 S.E. 2d 305 (1975)], a case very similar on its facts to the present case.” There is a fundamental difference in the two cases:
¶4In this case the defendant himself went upon the stand and testified (as set out in the majority opinion) “that he had planned to kill his father for about one week and decided then how he was going to do it and cover it up.” By his own admission he was able to premeditate and deliberate, for he formulated and executed a plan to kill his father. He was, therefore, not entitled to a charge that the jury should consider whether he lacked the ability to formulate the specific intent to kill as a result of mental illness. The only question here was whether defendant, at the time he killed his father, was laboring under such' a defect of reason in consequence of a disease of the mind *359that he was incapable of knowing the nature and quality of his act, or if he did know, whether he could distinguish between right and wrong in relation to it. As to this, defendant himself testified both ways.
¶5In Cooper the defendant did not testify. For proof that he killed his victims after premeditation and deliberation, the State had to rely upon circumstantial evidence. Since all the evidence tended to show that Cooper was a chronic sufferer from paranoid schizophrenia and subject to hallucinations and delusions, he contended — in my view, correctly — that the evidence of his mental disease was for the jury’s consideration in determining whether the State had proved beyond a reasonable doubt the essential elements of murder in the first degree, i.e., that he had actually formed a specific intent to kill his wife and children and had taken their lives after deliberating and premeditating their deaths.
¶6The dissent in Cooper was not based on a doctrine of diminished or partial responsibility. Its thesis was full responsibility, but only for the crime committed. Id. at 594, 213 S.E. 2d at 334.
¶7In this case, on the issue of insanity, the judge charged the jury as follows: “I charge that if you are satisfied from the evidence that the defendant, at the time of the alleged crime, and as a result of mental disease or defect, either did not know the nature and quality of his act, or did not know that it was wrong, he would be not guilty.”
¶8Obviously this charge assumes that defendant killed his father, a fact which, in the absence of a judicial admission, the State must prove beyond a reasonable doubt. The pitfall of such an assumption lies in wait for every trial judge who charges the jury in a case where insanity is pleaded as a complete defense unless the first issue submitted to the jury is whether the defendant killed the deceased. This is a problem to which I called attention in the dissent in State v. Cooper, supra, at 589-590, 213 S.E. 2d at 331. In the instant case, however, I think the error could not have prejudiced defendant.
¶9Justice Copeland dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 437, 212 S.E. 2d 113, 122 (1975).
¶10*360Justice ExuM dissents from that portion of the majority-opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 439, 212 S.E. 2d 113, 121 (1975), other than those relating to the effect of Section 8 of Chapter 1201 of the 1973 Session Laws.