While defendant sets forth in the record on appeal -a great many assignments of error, he debates in his brief mainly the group relating to the exclusion of the expert testimony pertaining to psychopathic personality. In excluding the testimony error is not made to appear.
In this connection, it is noted that in this State the-test of responsibility of a person charged with a criminal offense is the capacity, to distinguish between right and wrong at the time and in respect of the matter under investigation. S. v. Brandon, 53 N.C. 463; S. v. Potts, 100 N.C. 457, 6 S.E. 657; S. v. Harris, 223 N.C. 697, 28 S.E. 2d 232; S. v. Matthews, 226 N.C. 639, 39 S.E. 2d 819; S. v. Swink, 229 N.C. 123, 47 S.E. 2d 852; S. v. Creech, 229 N.C. 662, 51 S.E. 2d 348.
Considering this test with the statement of the expert psychiatrist that psychopathic personality “has nothing whatever to do with” a person’s “intellectual appreciation of the difference between right and Avrong, or of his ability to know the nature and consequences of-his acts,” it becomes apparent that the proffered testimony is-immaterial, irrelevant and incompetent, and was properly excluded. ....
*302But defendant, in bis brief filed bere, calls attention to Section 4 of Chapter 299 of 1949 Session Laws of North Carolina, in which the statute Gr.S. 14-21 pertaining to punishment for rape is rewritten, and contends that since by this act the General Assembly has empowered the jury to exercise its discretion, within limitations, in fixing punishment in eases of rape, there is more compelling reason for admitting in evidence the testimony excluded by the trial court.
In this connection, the statute as so rewritten by the General Assembly roads: “Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.” It is noted that the only changes in the statute are embraced within the terms of the proviso.
However, it is clear from a reading of the amendment that the General Assembly did not attempt to make any change in the elements constituting the crime of rape, or in the rules of evidence applicable in the trial on a charge of rape. Rather, it is patent that the sole purpose of the act is to give to the jury the right on the evidence in the ease to render a verdict of guilty of rape, with recommendation of life imprisonment, even though the jury may find facts sufficient to constitute rape as defined by the statute. In the case of Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214, this headnote epitomizing the opinion is pertinent to subject under consideration: “The action of a jury in recommending or failing to recommend mercy in a first degree murder case is a matter entirely within its discretion; it is not an issue in the case, nor can evidence be introduced directed specifically toward a claim for mercy.” Compare S. v. McLean, 224 N.C. 704, 32 S.E. 2d 227. Prior to the amendment a verdict of guilty of rape made punishment by death imperative.
Moreover, the clause “and the court shall so instruct the jury,” merely directs the court to instruct the jury that such verdict may be returned.
Each of the other two exceptions treated in defendant’s brief have been considered, and fail to show merit. Both are directed against portions of the charge. The one is to a portion of the instruction on reasonable doubt. When read in connection with that which immediately precedes, it is not likely that the jury could have misunderstood the meaning of the term. And the other is to a portion of the charge in which the court was stating a contention of defendant. If it were a misstatement of contention, it does not appear that defendant called the matter to the attention of the court. Failing in this, objection is waived.
*303Moreover, other assignments of error set forth and grouped in the record on appeal are not set out in appellant’s brief filed here, nqr is reason or argument stated, or authority cited in support thereof. Hence they are taken as abandoned. Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562.
After careful consideration, we find in the judgment from which appeal is taken,