dissenting, was of the opinion that the instructions did not adequately deal with the concept of deliberation. He said:
This charge as applied to the facts of the instant record fails to draw any distinction between a fixed purpose “deliberately formed” and one engendered from passion suddenly aroused. S. v. Thomas, 118 N.C., 1113, 24 S.E., 431; S. v. Walker, 173 N.C., 780, 92 S.E., 327. It sufficiently defines premeditation, but makes no reference to deliberation. S. v. Fuller, 114 N.C., 885, 19 S.E., 797. “Premeditation” imports prior consideration, “thought of beforehand,” while “deliberation” signifies reflection, “in a cool state of blood.” S. v. Exum, 138 N.C., 601, 50 S.E., 283; S. v. Evans, 198 N.C., 82, 150 S.E., 678. It may not be necessary in every case to refer to the two terms separately, but both ideas are essential to a complete definition of the capital offense. S. v. Exum, supra; S. v. Spivey, 132 N.C., 989, 43 S.E., 475.
Four years after French was decided the legislature added the proviso to our murder statute (and all other capital crimes statutes) permitting juries in their discretion to fix the punishment at life imprisonment for first degree murder. N. C. Sess. Laws 1949, ch. 299, §§ 1-4. This proviso remained in effect until this Court in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973) held that the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972) *581required that the proviso be nullified. After 1949 until our post-Waddell decision in State v. Watson, infra, my research reveals no significant discussion by this Court of the element of deliberation as distinguished from premeditation in first degree murder cases. Undoubtedly the ability of the jury in such cases to fix the punishment at life imprisonment reduced the significance of careful distinction between first and second degree murder in most cases. Since Waddell, however, first degree murder in North Carolina has been punishable only by death. Since the ratification on April 8, 1974, of Section 1, Chapter 1201 of the 1973 Session Laws, codified as N. C. Gen. Stat. 14-17 (1974 Cum. Supp.), murder in the second degree has been punishable by a maximum of life imprisonment.
Punishment for murder in North Carolina is now nearly the same as it was before 1949, first degree murder being punishable only by death and second degree murder by a term of years up to life imprisonment. (Prior to April 8, 1974, second degree murder was punishable by a maximum of thirty years imprisonment. N. C. Gen. Stat. 14-17 (1969)). Consequently the maintenance of a clear distinction between the two crimes has returned to its pre-1949 significance. Since Waddell, moreover, this Court has intimated that it would closely scrutinize the principal distinguishing feature — deliberation—both in terms of whether the evidence was sufficient to support a jury finding of its existence, State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975), and whether the concept was properly explained to the jury. State v. Watson, 287 N.C. 147, 214 S.E. 2d 85 (1975). State v. Thomas, suspra, was, in fact, quoted and analyzed at length in Buchanan and characterized as placing a “sound interpretation . . . upon the Act of 1893.” 287 N.C. at 418, 215 S.E. 2d at 86.
This case presents a close question as to the degree of defendant’s culpability. The jury might well have returned a verdict of second degree murder had it been fully and properly instructed on the concept of deliberation and told specifically that if defendant’s intent to kill was formed and executed during a passion suddenly aroused by the deceased’s verbal abuse and not thereby deliberated he could not be convicted of first degree murder. I believe it was prejudicial error for the trial judge to fail first, to give a definition of deliberation which included this principle and second, to apply the principle to the facts in the case. I vote for a new trial.