concurring in result and dissenting in part.
I am in accord with the decision that no prejudicial error was committed in defendant’s trial below and that his conviction should be affirmed. I do not agree, however, that in order to reach this proper result it is necessary to repudiate our unanimous holding in State v. Mercer, 275 N.C. 108, 117, 165 S.E. 2d 328, 335 (1969), that “unconsciousness is never an affirmative defense.”
The rationale of Mercer is that (1) one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness; (2) in every prosecution the State has the burden of establishing beyond a reasonable doubt the identity of the defendant and that he voluntarily committed the unlawful act charged; and (3) when it proves these essential elements of its case it necessarily disproves the defense of unconsciousness.
Seemingly the majority have concluded — in my view, entirely erroneously — that at one point in his charge the trial judge put upon defendant the burden of proving his defense of unconsciousness, and that unless we confess error in Mercer and now hold that unconsciousness is an affirmative defense, a new trial must be awarded for prejudicial error in this case. Since a charge must be construed contextually, in order to put in proper perspective defendant’s exceptions to it, as well as the majority’s analysis of it, the charge is briefed below in pertinent part.
*292In the beginning, immediately after reading the indictment, which charged defendant with kidnapping Catherine Sutton, Judge Martin instructed the jury as follows:
“The defendant has entered a plea of ‘not guilty’. The fact that he has been indicted is no evidence of guilt. Under our system of justice, when a defendant pleads ‘not guilty’, he is not required to prove his innocence; he is presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt.”
Next, after briefly summarizing the evidence of both State and defendant and after defining kidnapping, the judge stated defendant’s contention “that he had no knowledge of and did not consciously commit the act charged in the indictment, and that he was unconscious at the time the alleged act was made.”
Subsequently, with reference to defendant’s claim of unconsciousness, the court charged:
(D) “Now, members of the jury, as I have told you, the defendant contends that he was unconscious at the time that Catherine Sutton was taken from the driveway of her residence and put in an automobile and taken to a point two and a half miles away to an old sawmill road in Randolph County.
“Now, members of the jury, a person cannot be held criminally responsible for acts committed while he is unconscious. Unconsciousness is never an affirmative defense. Where a person commits an act without being conscious thereof, such act is not criminal even though if committed by a person who was conscious it would be a crime. The defendant has no burden to prove that he was unconscious. (If you find that the defendant was completely unconscious of what transpired when Catherine Sutton was taken violently from her driveway at her residence, put in an automobile and held down by an arm, and, thereafter, was beat about the head and sexually molested, by having fingers and a hand placed in her vagina, then he would not be guilty and it would be your duty to so find.) (E) (Emphasis added.)
* * *
“So, members of the jury, the Court charges you that if you find from the evidence beyond a reasonable doubt that on or about the 16th day of March 1971, Willis Tony Caddell wilfully and intentionally took Catherine Sutton and carried *293her from her residence, the driveway of her residence in Guil-ford County, to a point on an old sawmill road some two and a half miles away in Randolph County, against her will, by taking her forcibly from the driveway of her home, placing her in an automobile and taking her in the automobile to the place in Randolph County on an old sawmill road, and without lawful authority, and that this constituted a substantial carrying away, it would be your duty to return a verdict of guilty of kidnapping.
“However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.... ”
Defendant assigns as error that portion of the charge included above between the letters (D) and (E). Specifically, he contends that the sentence enclosed in parenthesis immediately preceding the letter (E) contains two prejudicial errors: (1) the judge assumed, and thereby expressed the opinion, that it was an established fact defendant had violently taken Catherine from her driveway, put her in an automobile and thereafter sexually assaulted her; and (2) the judge laid upon defendant the burden of proving unconsciousness, thereby making his plea an affirmative defense in contravention of Mercer.
With reference to contention (1) I will concede that any reader, considering the challenged sentence out of context, would be justified in assuming that defendant’s identity as the kidnapper had been admitted or determined. However, the majority opinion disposes of this assignment of error by citing the well-established rule that “a charge must be construed contextually and as a whole,” and then noting (1) that the judge had begun his charge by saying to the jury, “It is now your duty to decide from this evidence what the facts are”; (2) that immediately before reviewing the facts he told the jury the Court expresses no opinion or intimations of opinion as to what the facts are. . . .You can determine what the facts are from your consideration of the evidence in the case; (3) that immediately after reviewing the facts he again warned the jury that what “this evidence does show is a matter for you and you alone to consider, to weigh and pass upon”; and (4) that in his final mandate he told the jury to acquit defendant if they were not satisfied beyond a reasonable doubt that he “wilfully and intentionally took Catherine Sutton and carried her from her residence. ...”
*294When the charge is considered “contextually and as a whole” I agree with the majority that the challenged sentence provides no basis for a new trial on the ground that the judge violated G.S. 1-180. By the same token, it seems to me utterly impossible that any juror could have construed this charge to place the burden of proof on defendant to establish his plea of unconsciousness.
As heretofore noted, at the beginning of the charge the jury were told the defendant had no burden to prove his innocence; that the burden' was on the State to prove his guilt beyond a reasonable doubt. Later, in words too plain to be misunderstood, the judge charged that a person cannot be held criminally responsible for acts committed while he is unconscious even though such acts would be criminal if committed by a conscious person, and that unconsciousness is never an affirmative defense. He then said, “The defendant has no burden to prove that he was unconscious. If you find that the defendant was completely unconscious of what transpired when Catherine Sutton was taken violently from her driveway . . . put in an automobile [etc.] .-. .he would not be guilty and it would be your duty to so find.” (Emphasis added.)
Defendant contends the last sentence in the preceding paragraph put the burden on defendant to establish his defense of unconsciousness notwithstanding the positive statement which immediately preceded it that defendant had no such burden. This contention, I believe, will not withstand analysis. The instruction, “If you find that defendant was completely unconscious of what transpired when Catherine Sutton was taken violently from her driveway at her residence . . . then he [defendant] would not be guilty and it would be your duty to so find,” makes no reference to burden of proof. The sole import of this instruction is that defendant would not be guilty unless he knowingly committed the act on which the bill of indictment is based. The instruction as given was entirely correct. Had the jury made the finding that defendant was unconscious at the time of the kidnapping it would certainly have been its duty to acquit him of the charge.
Although I do not entertain the idea that the jurors were even momentarily confused by the challenged instruction, were we to assume the possibility that they might have been, surely their confusion was dispelled by the judge’s final mandate to acquit defendant unless they were satisfied beyond a reason*295able doubt he “wilfully and intentionally” took Catherine Sutton without lawful authority from her driveway, placed her in an automobile and carried her into Randolph County. Proof beyond a reasonable doubt that defendant acted wilfully and intentionally negates unconscious action.
I can perceive no conflict between the judge’s charge in this case and our decision in Mercer. On the contrary, the judge meticulously followed the law as laid down in that case. Hence, upon the present record, there is no need to consider whether the Mercer holding that unconsciousness is never an affirmative defense should be reaffirmed or overruled. Notwithstanding, the majority purport to overrule it upon the grounds stated in that opinion. Since I consider those grounds unsound I am constrained to express my contrary view.
In writing the well documented opinion in Mercer, Chief Justice Bobbitt pointed out that if a person is actually unconscious when he does an act which would otherwise be criminal, the absence of consciousness not only excludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. Unconsciousness, therefore, can never be an affirmative defense, which imposes the burden of proof upon the defendant, because the State has the burden of proving the essential elements of the offense charged, and “a voluntary act is an absolute requirement for criminal liability.” LaFave and Scott, Criminal Law 181 (1972). Although the defense of unconsciousness “is sometimes explained on the ground that such a person could not have the requisite mental state for commission of the crime, the better rationale is that the individual has not engaged in a voluntary act.” Id. at 337. “Criminal responsibility must be judged at the level of the conscious.” State v. Sikora, 44 N.J. 453, 470, 210 A. 2d 193, 202 (1965).
In a specific-intent crime the State must prove that the accused voluntarily did a particular act for a specific purpose. Thus, in a prosecution for burglary in the first degree the State must prove that the defendant broke and entered an occupied dwelling (in the nighttime) with the specific intent to commit the felony alleged in the bill of indictment. State v. Thorpe, 274 N.C. 457, 164 S.E. 2d 171 (1968). A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder. State v. McLaughlin, 286 *296N.C. 597, 213 S.E. 2d 238 (1975) ; State v. Hamby and State v. Chandler, 276 N.C. 674, 174 S.E. 2d 385 (1970).
In prosecutions for “general-intent offenses” the State need only prove that the defendant intended to do the act which the law declares criminal. “[I]ntent in the meaning of the criminal law is present in all cases where the act is done voluntarily or willingly, that is, through no compulsion or lack of mental capacity.” 1 Burdick, Law of Crimes § 129 j. (1946). “The general criminal intent necessary to convict is deduced from the doing of the criminal act.” See Annot., 8 A.L.R. 3d 1246 et seq. (1966).
Common law kidnapping is a general-intent crime. As defined in our decisions, it is the unlawful taking and carrying away of a human being against his will by force, threats, or fraud. State v. Dix, 282 N.C. 490, 493, 193 S.E. 2d 897, 898 (1973). Thus, in kidnapping “the criminal intent is the intent to do the act prohibited.” 1 Wharton Criminal Law and Procedure § 372 (1957). The purpose for which the person is kidnapped is immaterial. It is enough that the prohibited act is done voluntarily. See 51 C.J.S., Kidnapping § 1 (1967).
Whether the offense charged be a specific-intent or a general-intent crime, in order to convict the accused the State must prove that he voluntarily did the forbidden act. Here I note that in In Re Winship, 397 U.S. 358, 25 L.Ed. 2d 368, 90 S.Ct. 1068 (1970), in an opinion expressing the views of five members of the Court, Mr. Justice Brennan said: “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 25 L.Ed. 2d at 375, 90 S.Ct. at 1073.
The plea of unconsciousness is analogous to a plea of accident or of alibi, neither of which is an affirmative defense. Each plea merely negates an essential element of the crime charged. The plea of accidental homicide imposes no burden upon the defendant because the State cannot convict unless it first proves that the killing was culpable. “The claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable, doubt.” State v. -Phil*297lips, 264 N.C. 508, 513, 142 S.E. 2d 337, 340 (1965). When proof of defendant’s presence at the scene of the crime charged is essential to his guilt, his plea that he was elsewhere and therefore could not have committed the crime is merely a denial of guilt, not an affirmative defense. To convict, the State must prove beyond a reasonable doubt that he was present at the scene and participating. “Such proof, of course, would demolish an alibi.” State v. Malpass and State v. Tyler, 266 N.C. 753, 754, 147 S.E. 2d 180, 181 (1966). Similarly, proof of a voluntary act negates unconsciousness; voluntary action and unconsciousness cannot coexist.
When the State’s evidence tends to show that, at the time in question, a defendant was “up and about,” acting as if he had full possession of his faculties and knew what he was doing, it makes out a prima facie case of consciousness, and nothing else appearing, the law will assume he was conscious. State v. Mercer, 275 N.C. 108, 118, 165 S.E. 2d 328, 336. Thus no issue of unconsciousness or automatism arises until some evidence of it is adduced. If the defendant offers such evidence, or if it is elicited from the State’s own witnesses, the jurors must determine whether they are satisfied beyond a reasonable doubt that defendant voluntarily committed the act. From the beginning of the case and throughout the trial the burden remains upon the State to establish defendant’s guilt beyond a reasonable doubt. This rule is supported by both reason and authority.
In Government of the Virgin Islands v. Smith, 278 F. 2d 169 (3rd Cir. 1960), defendant, who was charged with involuntary manslaughter by automobile, defended on the ground that he was suddenly stricken by an epileptic seizure and was unconscious at the time of the accident which resulted in a death. In its findings, the trial court said that the question was whether defendant’s evidence convinces the court that he had a seizure which rendered him unconscious. In awarding a new trial, the Court of Appeals said: “This was an erroneous statement of law for the defendant did not have the burden of convincing the court he had an epileptic seizure. On the contrary, his burden was merely to go forward with the evidence to the extent necessary to raise a doubt ... as to the defendant’s consciousness . ...” Id. at 173. In arriving at this conclusion the Third Circuit Court of Appeals relied heavily upon the reasoning of the Supreme Court of California in People v. Hardy, 33 Cal. 2d 52, 198 P. 2d 865 (1948), which is briefed below.
*298In Hardy, the defendant, whose defense was unconsciousness, was convicted of first degree murder. On appeal she assigned as error the trial court’s charge that when the evidence shows a defendant acted as if he was conscious the law presumes he was then conscious, and that presumption remains until overcome by a preponderance of evidence to the contrary. In ordering a new trial the court said that this instruction deprived the defendant of the benefit of the “cardinal rule in criminal cases that the burden rests on the prosecution to prove the offense beyond a reasonable doubt.” Id. at 63-64, 198 P. 2d at 871.
“The mere fact that there is a presumption which tends to support the prosecution’s case does not change the amount or quantum of proof which the defendant must produce. . . . The prosecution is required to prove the offense beyond a reasonable doubt and, in so doing, may rely on any applicable presumptions. The defendant, on the other hand, is not required to prove his innocence by a preponderance of the evidence, but only to produce sufficient evidence to raise a reasonable doubt in the minds of the jury. . . . ‘Men are presumed to be conscious when they act as if they were conscious, and if they would have the jury know that things are not what they seem, they must impart that knowledge by affirmative proof.’ This is merely another way of saying that defendant has the duty of going forward with the evidence, and it is entirely consistent with the rule that defendant has only the burden of producing evidence which would raise a reasonable doubt in the minds of the jury.” Id. at 64-65, 198 P. 2d at 872. Accord, People v. Wilson, 66 Cal. 2d 749, 59 Cal. Rptr. 156, 427 P. 2d 820 (1967). See Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879).
In Bratty v. A.-G. for N. Ireland, 3 All E.R. 523 (1961), a case from which the majority opinion quotes extensively but which does not support its conclusion, the Lord Chancellor and each of the four Lords who considered the case with him, expressed views in accord with those of Hardy.
The Lord Chancellor (Yicount Kilmur), while noting that “a defence of automatism is very near a defence of insanity,” said, “Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington’s case (21), that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused’s state of mind; normally the presumption of mental capacity is suffi*299cient to prove that he acted consciously and voluntarily and the prosecution need go no further. But, if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea — if indeed the actus reus — has not been proved beyond reasonable doubt. . . .” Id. at 531.
“My conclusion is, therefore, that once the defence have surmounted the initial hurdle to which I have referred and have satisfied the judge that there is evidence fit for .the jury’s consideration, the proper direction is that, if that eveidence leaves them in a real state of doubt, the jury should acquit.” Id. at 532.
Lord Morris agreed that if, during the trial, defendant advanced the defense of unconsciousness in explanation of the act, “and if such explanation was so supported that it had sufficient substance to merit consideration by the jury, then the onus which is on the prosecution would not be discharged unless the jury, having considered the explanation, were sure that guilt in regard to the particular crime charged was established so that they were left in no reasonable doubt.” Id. at 537.
Lords Tucker and Hodson each agreed with the views of both the Lord Chancellor and Lord Morris.
Lord Denning began his remarks by saying: “ ‘When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.’ The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case. No act is punishable if it is done involuntarily. . . .” He then noted that (1) an act is not involuntary “simply because the doer does not remember it ...' (or) could not control his impulse to do it” or “because it is unintentional or its consequences are unforeseen”; (2) automatism which results from drunkenness cannot lead “to a complete acquittal”; (3) “if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a defence of automatism.” These exceptions noted, Lord Denning perceived that “the category of involuntary acts is very limited.” Id. at 532-533.
While Lord Denning did not doubt that there were “genuine cases of automatism and the like” he observed that “black-out” was a popular excuse and “one of the first refuges of a guilty conscience,” and he doubted that without help of scientific evi*300dence the layman-juror could distinguish the genuine from the fraudulent. In his opinion the evidence of the defendant himself would rarely be a sufficient foundation for the defense unless supported by medical evidence which pointed to the cause of the unconsciousness. He was convinced, however, that “ [o] nee a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other; and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act.” (Emphasis added.) Id. at 535-536.
The decision in Bratty was that the trial judge had not erred when he refused to submit to the jury defendant’s defense of unconsciousness. In my view this was clearly correct, for the evidence was that the defendant remembered and gave the police a detailed account of the manner in which he had murdered his victim, and his only explanation for his conduct was that “something terrible” came over him and that he “didn’t mean to do what really happened.” Id. at 526. Obviously such testimony constituted neither a “proper foundation” nor “evidence fit to be left to the jury on the question.”
In discussing the relationship between the defenses of automatism and insanity, the “Law Lords” noted that the defendant acquitted by reason of insanity could be detained in a hospital where he was not a continuing danger to the public, whereas one acquitted on the ground of unconsciousness was unconditionally released. LaFave and Scott have noted the judicial tendency to characterize instances in which the condition of unconsciousness is likely to recur as insanity rather than automatism so that the defendant may be committed. LaFave and Scott, Criminal Law § 44, p. 337 (1972).
It is quite obvious that judges everywhere distrust the plea of unconsciousness and apprehend that jurors may repose hasty confidence in it. I think, however, there is no need for such concern, since jurors are sensible people too. For example, the jurors who tried this case were no more impressed with defendant’s plea of automatism than is this Court. In my view we can safely assume that ordinarily a defendant’s unsupported plea of blackout will aid the prosecution rather than the defense. But however that may be, were we to deny a defendant the defense of *301unconsciousness unless his testimony tending to establish unconsciousness be corroborated by medical testimony, we would violate a fundamental and long-established principle of our criminal jurisprudence — that defendant has no burden to prove his innocence and that he is entitled to testify in his own behalf. N. C. Const, art. I § 23 (1971) ; G.S. 8-54.
“In criminal trials the jury must try every pertinent issue of fact the evidence conduces to prove. When evidence is offered, the sole question for the court is, will it conduce to prove any fact material in the case? and if the law gives an affirmative response, the evidence must be admitted.” Fain v. Commonwealth, supra, 78 Ky. at 188-189, 39 Am. Rep. at 216 (1879). “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” People v. Wilson, supra, 66 Cal. 2d at 762, 59 Cal. Rptr. at 165, 427 P. 2d at 829 (1967).
It is quite possible that to require corroboration of a defendant’s testimony that he was unconscious at the time the act with which he is charged was committed would, in effect, deprive an accused, who was actually unconscious at the time in question, of that plea. Presumably such a person would have no recollection of the acts with which he is charged. In such a case if his automatism resulted from a concussion of the brain caused by an injury or attack which he does not remember, he might well be in no position to provide the testimony upon which to base a hypothetical question an expert medical witness might answer in his favor. Unconsciousness resulting from unknown causes, or as the first manifestation or symptom of a previously undiagnosed condition or disease, might create similar problems.
In support of its thesis that the defense of automatism should be equated with the affirmative defense of insanity, the majority opinion says, “An affirmative defense is one in which the defendant says, T did the act charged in the indictment, but I should not be found guilty of the crime charged because. . . .’ ” A plea of unconsciousness, however, is not routinely one of confession and avoidance. Assuming a genuine case of unconsciousness — and the majority opinion concedes the possibility — the defendant who had been unconscious could not always know for certain whether he committed the act charged, and it therefore *302seems most unlikely he would admit having done so. Of course, until the jury is satisfied beyond a reasonable doubt that the defendant indeed committed the act charged, his mental condition at the time is irrelevant. In this case the defendant did not admit he kidnapped Catherine. On the contrary he denied having done so.
Specifically, he said: “But if I did this, which I don’t think I could — I never did a degrading thing like this before. I have been charged with nothing like this. I don’t believe it. And if I did this, there is something wrong. . . . No, I have never seen the lady and didn’t know who she was until I seen her walk up here on the stand. ... I don’t even know where she lives at. I never seen the lady before in my life, as far as. I know. . . . I say I don’t know nothing about driving a car out there.”
The opinions in both Mercer and Bratty point out the fundamental difference in the pleas of insanity and automatism. A plea of insanity raises this question: Was the defendant, at the time he committed the offense charged, so incapacitated from a disease of the mind that he was incapable of knowing the nature and quality of his act, or if he did know, was he incapable of distinguishing between right and wrong with relation thereto? No such question arises upon a plea of unconsciousness. One who is completely unconscious cannot know the nature and quality of his act or judge whether it is right or wrong. He is incapable of any voluntary action. Automatism “means unconscious involuntary action, and it is a defence because the mind does not go with what is being done.” Automatism is action by one who has no knowledge of action, “no consciousness of doing what was being done.” Bratty at 527.
For the reasons stated herein I concur in the decision of the Court that there is no reversible error in the trial below, but I dissent from the statement in the majority opinion that unconsciousness is an affirmative defense. In my view unconsciousness, as held in Mercer, is never an affirmative defense.
Justice Copeland joins in this dissenting opinion.