#### STATE v. HERMAN MATTHEWS and CALVIN COOLIDGE WILLIAMS.

(Filed 30 October, 1946.)

1. Criminal Law § *78á (1)*—

A motion to strike a question and answer is ineffectual to present the competency of the evidence for review when there is no prior objection to the question and answer.

2. Criminal Law § Sic—

A witness who has observed defendant, and has had reasonable opportunity of forming an opinion satisfactory to himself, may give liis opinion as to the sanity of the defendant or his ability to understand the difference between right and wrong, though he may not invade the province of the jury by testifying as to his opinion as to defendant’s mental capacity to commit a particular crime.

3. Criminal Law § 5a—

The test of mental responsibility for crime is not low mentality but the capacity to distinguish between right and wrong.

*6404. Homicide § 27h—

Where all the evidence tends to show murder committed in the perpetration of a robbery pursuant to a conspiracy and that both defendants were present and participated in the crime, the court properly limits the jury to verdicts of guilty of murder in the first degree or not guilty.

Appeal by defendants from *Thompson, J.,*at April Term, 1946, of SampsoN. No error.

The defendants were indicted for the murder of one John Addison. The jury returned verdict of guilty of murder in the first degree. From judgment imposing sentence of death, the defendants appealed.

*Attorney-General McMullan and Assistant Atiomeys-General Bruton, Rhodes, and Moody for the State.*

*J. Faison Thomson and Walter T. Britt for defendants.*

Devin, J.

The evidence offered at the trial showed that the murder was committed in the perpetration of a robbery and that both defendants were present and participated in the crime. The defendants made confessions at the time of their arrest, giving the details of the slaying of deceased with a shotgun for the purpose and in the course of robbing him, and that this was pursuant to a concerted plan conceived and consummated by the defendants. They lured the deceased into the woods under pretext of selling him whiskey, and there they told him to cross his arms behind him and shot him, killing him instantly. Then they robbed his body. The confessions of the defendants were admitted without objection. Neither of them went on the stand.

The defendants were young. At the time of the crime defendant Matthews was 18 years of age and Williams 17. Evidence was offered in their behalf that the mentality of both was of a low order. A mental expert testified, after examining them at the time of the trial, that both were border-line cases, with mental age of nine years and six months. The father of defendant Matthews said he was “frenzied minded,” and Williams’ father said his son was “frazzle minded.” In rebuttal the State offered several witnesses who had known defendants for some time and for whom in several instances the defendants had worked, that the mental capacity of the defendants was apparently normal for persons of their age, and that in the opinion of the witnesses they had sufficient mental capacity to know right from wrong.

The defendants noted exception to the testimony of several of these non-expert witnesses on the ground that it was not competent for them to give in evidence their opinions as to the ability of the defendants to know right from wrong. It appears that in each instance no objection was made to the question or answer but only to the denial of a subse*641quent motion to strike tbe question and answer. Tbe objection came too late. *S. v. Stancill,*178 N. C., 683, 100 S. E., 241. But we'think tbe evidenee.was competent. It is well settled in tbis jurisdiction that a witness wbo bas observed another and bad reasonable opportunity of forming an opinion satisfactory to bimself as to bis mental condition, may express an opinion as to bis sanity or bis ability to understand tbe difference between right and wrong. *S. v. Harris,*223 N. C., 697, 28 S. E. (2d), 232; *S. v. Hawkins,*214 N. C., 326 (333), 199 S. E., 284; *S v. Nall,*211 N. C., 61, 188 S. E., 637; *S. v. Keaton,*205 N. C., 607, 172 S. E., 179; *S. v. Jones,*203 N. C., 374, 166 S. E., 163; *S. v. Hauser,*202 N. C., 738, 164 S. E., 114. “His objections that non-experts were allowed to express opinions upon bis sanity or ability to know the difference between right and wrong are not well founded.” *S. v. Stefanoff,*206 N. C., 443, 174 S. E., 411.

Furthermore, there was no evidence in tbis case that either of tbe defendants was insane, or was unable to distinguish between right and wrong. Tbe mental expert offered by tbe defendants gave it as bis impression that they did know right from wrong. Tbe defendants’ evidence pointed to low mentality, but fell short of indicating mental irresponsibility or incapacity to commit crime. *S. v. Haywood,*61 N. C., 376. However, tbe rule which permits opinion evidence as to tbe sanity of a person charged with crime, when bis mental responsibility is in issue, may not be extended to permit a witness to testify whether defendant bad mental capacity to commit tbe particular act charged, or to render competent opinion evidence which invades tbe province of tbe jury as to 'defendant’s capacity for a particular crime. *S. v. Hauser,*202 N. C., 738, 164 S. E., 114; *S. v. Journegan,*185 N. C., 708, 117 S. E., 27; *In re Will of Lomax,*224 N. C., 459, 31 S. E. (2d), 369.

Low mentality is not tbe test of responsibility for crime. *S. v. Jenkins,*208 N. C., 740, 182 S. E., 324. Tbe test of responsibility is tbe capacity to distinguish between right and wrong at tbe time and in respect of tbe matter under investigation. *S. v. Hairston,*222 N. C., 455, 23 S. E. (2d), 885; *S. v. Potts,*100 N. C., 457, 6 S. E., 657. “He wbo knows tbe right and still tbe wrong pursues is amenable to tbe criminal law.” *S. v. Harris,*223 N. C., 697, 28 S. E. (2d), 232.

Under tbe evidence in tbis ease tbe trial court properly limited tbe possible verdicts of tbe jury to murder in tbe first degree or not guilty. *S. v. Mays,*225 N. C., 486, 35 S. E. (2d), 494; *S. v. Miller,*219 N. C., 514, 14 S. E. (2d), 522; G. S., 14-17.

Exceptions were noted to tbe judge’s charge to tbe jury, but a careful examination of tbe portions criticized, as well as tbe entire charge, fails to disclose error. Tbe court’s instructions both as to tbe facts necessary to be found by tbe jury before they could convict tbe defendants or either *642of them, as well as his instructions on the question of their mental responsibility, were in substantial accord with the uniform decisions of this Court. *S. v. Murray,*216 N. C., 681, 6 S. E. (2d), 513; *S. v. Mays, supra; S. v. Cooper,*170 N. C., 719, 87 S. E., 50; *S. v. Harris, supra; S. v. Hairston, supra; S. v. Miller, supra.*

We think the comment of the present *Chief Justice*in *S. v. Wingler,*184 N. C., 747, 115 S. E., 59, is appropriate in this case. The only error we find in the record is the great error of the defendants in felo-niously slaying the inoffensive victim of their lust for robbery. This error we have no power to correct. The only extenuating circumstance is the youth of the defendants, but that is not a matter for the consideration of this Court, since they possessed capacity to commit the crime charged, and were in law responsible for their wrongful acts.

In the trial we find

No error.