SHARP, Chief Justice.
The assignments of error which defendant brings forward challenge the admission of certain portions of the State’s evidence and the court’s instructions to the jury.
We first consider defendant’s contention that the trial judge committed prejudicial error by permitting State’s witness Victor Holdren, a special agent with the Federal Bureau of Investigation, to testify about statements which defendant made to him in the emergency room at Duke Medical Center between 4:00 and 5:00 a.m. on 15 November 1976. These statements, the substance of which Holdren related to the jury, included defendant’s explanation of the circumstances which prompted his trip from Atlanta to Baltimore on 14 November 1976 and the details of his initial en
counter with Trooper Fisher. Other statements made by defendant during this interview dealt with his ride from McKenney, Virginia, to the road block in North Carolina. Often quoting defendant verbatim, Agent Holdren recounted the substance of their conversation in his testimony to the jury. His testimony, except when summarized, is quoted below:
After defendant forced Fisher into his patrol car, defendant “told the trooper, ‘Drive me to Atlanta, to the Atlanta Police Department and you are free.’ ” As they drove south defendant “allowed the trooper to use the radio and talk to his headquarters. Connley said he also talked on the radio but wouldn’t tell me [Holdren] what the conversation was. He said they continued along Interstate 85 into North Carolina and came to a road block made up of a tractor-trailer across the road. He said he saw a number of people around the tractor-trailer and when the car stopped, the officers began shooting at their car and Trooper Fisher hit his arm and appeared to be trying to get out of the car. He [defendant] stated and I quote: T was shooting at the dude on top of the trailer and don’t know if I shot the trooper or not.’ I questioned him how many times he had fired his gun. He didn’t recall but he said that he fired the guns he had in his possession which included his gun, a .38 caliber revolver and the trooper’s gun. He told me that his gun held 5 rounds of ammunition. He said everything went off pow, pow, pow, pow. At this point I was trying to determine if he had in fact shot Officer Fisher. I asked him if he had been allowed to continue to Atlanta, Georgia, would he have shot Fisher and he replied quote ‘No, I wouldn’t have. I’m sorry, no.’ Mr. Connley said that during the drive from Virginia to the road block he and Trooper Fisher talked about life in general.” At that point defendant terminated the conversation.
For the reasons hereafter stated, defendant’s assignment of error based upon his exceptions to the foregoing testimony must be sustained and a new trial granted.
When Special Agent Holdren was called as a witness and asked to recount his conversation with defendant, the court,
ex mero motu,
conducted a voir dire to determine the competency of that testimony. Only Agent Holdren testified; defendant offered no evidence. Upon completion of the voir dire the trial judge entered findings of fact upon which he concluded (1) that defendant waived his right to an attorney and his other constitutional rights as explained by Officer Holdren; (2) that defendant “knowingly, understandingly, and voluntarily . . . intelligently and intentional
ly answered” Holdren’s questions; (3) that his statements were “made with a full understanding” of his constitutional rights; and (4) that these statements should be admitted into evidence against him.
On voir dire Holdren testified that he in no way coerced, or attempted to coerce, defendant into giving a statement; and that he made no threat or promise nor offered defendant any hope of reward. He “observed that Mr. Connley was alert and responded to questions in a normal, rational way.” Holdren also told the court that before interviewing defendant he had spoken with Dr. W. R. Belts, one of defendant’s attending physicians. Whereupon the State’s attorney who was examining Agent Holdren propounded this question, “And what advice was given to you by Dr. Belts?”
The court overruled defendant’s objection to the question and Holdren answered: “I was concerned about whether he [defendant] would be able to talk to me. He [Dr. Belts] described Mr. Connley as having been treated for a gunshot wound in the left chest area and the right hand and apparently what he thought was a bullet crease across his left knee. He said that Connley was in a stable condition; that he had recieved no medication to sedate him at all, and that he was alert and entirely capable of talking to me about this.”
The admission of this testimony from Agent Holdren was, of course, error. It was unmistakable hearsay which was not within any exception to the general rule rendering hearsay incompetent and inadmissible evidence. Patently, this testimony was the only basis for the court’s finding that “FBI Agent Victor Holdren went to the hospital and talked with one of Connley’s attending physicians; that at this time, he was advised by the doctor that Conn-ley was not under medication and sedation, and that he could be talked with concerning the matters that occurred at the previous evening and early morning hours.” It is equally obvious that the incompetent hearsay also supported the court’s finding that defendant’s answers to Holdren’s questions were “knowingly, understandingly, voluntarily . . . willingly and intelligently and intentionally” made. The only other evidence tending to support that finding was Holdren’s testimony that Connley “was alert and responded to the questions in a normal, rational way” when the agent talked to him.
“Unquestionably it is the rule in this jurisdiction that a judge’s findings of fact will be reversed where it affirmatively appears they are based in whole or in part upon incompetent evidence. . . . However, ‘in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.’ ”
State v. Davis,
290 N.C. 511, 541-42, 227 S.E. 2d 97, 115 (1976). However, “this presumption is weakened when, over objection, the judge admits clearly incompetent evidence.”
Ibid.
Defendant argues that the admission of this testimony requires a new trial. Because the record in this case reveals other error requiring a new trial, we need not determine whether the court’s finding as to what Dr. Belts told Holdren with reference to defendant’s condition constituted prejudicial error.
See State v. Patterson,
288 N.C. 553, 566-67, 220 S.E. 2d 600, 610 (1975).
The trial court’s conclusion that defendant waived his right to counsel was based upon the following factual findings:
“[T]hat while the defendant did not specifically make the affirmative statement that he did not have a desire, that he did not desire to have an attorney present, he nevertheless fully was advised of his rights to have an attorney present and knew and understood his right to have an attorney present and knew and understood his right to have an attorney present before he answered any questions put to him by Officer Holdren.
“And the Court finds as a fact from the totality of these surrounding circumstances that he did in fact waive his right to an attorney and his other constitutional rights. . . .”
On voir dire Holdren had testified that he approached defendant in the emergency room and asked him if he would talk. Defendant said he would, and Holdren informed defendant of his constitutional rights, reading the Miranda warning from a form entitled “Interrogation and Advice of Rights.” This form also contained a “waiver of rights” section, under which was a line for defendant’s signature. Additionally Holdren gave defendant a copy of the form and told him to read it for himself. The agent then asked defendant if he understood his constitutional rights and defendant replied, “I know what it says and I understand, but I’m not going to sign it.” The record discloses no further statement by defendant bearing upon his rights. He did not sign the form.
Although a trial judge’s findings of facts are binding upon appellate courts when supported by competent evidence, whether such evidence supports the findings and whether the findings themselves support the court’s conclusions are questions of law reviewable on appeal.
State v. Thompson,
287 N.C. 303, 214 S.E. 2d 742 (1975);
State v. Pruitt,
286 N.C. 442, 212 S.E. 2d 92 (1975). The findings in this case, quoted above, are insufficient to support the conclusion that defendant waived his right to counsel. Defendant unequivocally refused to sign a waiver, and Holdren’s testimony on voir dire fails to show a specific oral waiver. As this Court said in a recent case involving similar findings:
“Measured by
Miranda
standards it is apparent that the findings of fact are not supported by the voir dire testimony of Agent Martinez. Failure to request counsel is not synonymous with waiver. Nor is silence. . . . The trial judge erred in holding that since defendant had been fully informed and understood his right to the presence of counsel at the in-custody interrogation and did not request a lawyer, his act in making the statement amounted to a waiver of counsel.”
State v. Butler,
295 N.C. 250, 255, 244 S.E. 2d 410, 413 (1978).
As we have frequently noted, the Supreme Court said in
Miranda v. Arizona,
384 U.S. 436, 470, 16 L.Ed. 2d 694, 721, 86 S.Ct. 1602, 1626 (1966), that a waiver must be explicit and cannot be presumed from silence:
“An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we have delineated have been given. . . .”
In
State v. Blackmon,
280 N.C. 42, 49-50, 185 S.E. 2d 123, 128 (1971), this Court ordered a new trial because there was no evidence that the defendant expressly waived his right to counsel. “Although the evidence at the
voir dire
is ample to support a finding that the defendant made the statements in question freely and voluntarily, having been fully advised of and having full understanding of his right to have an attorney present, the plain language of the
Miranda
decision above quoted in addition requires a waiver of right to counsel knowingly and intelligently
made by defendant. . . [F]ailure to ask for a lawyer does not constitute a waiver.’ ” We reiterated this principle in Blackmon’s second appeal,
State v. Blackmon,
284 N.C. 1, 9-10, 199 S.E. 2d 431, 437 (1973), and have noted or applied it in other decisions.
See State v. Lawson,
285 N.C. 320, 204 S.E. 2d 843 (1974);
State v. Thacker,
281 N.C. 447, 189 S.E. 2d 145 (1972);
State v. Turner,
281 N.C. 118, 187 S.E. 2d 750 (1972);
State v. Hudson,
281 N.C. 100, 187 S.E. 2d 756 (1972),
cert. denied
414 U.S. 1160.
Since defendant’s statements were admitted in violation of his constitutional right to have counsel present at his in-custody interrogation, a new trial must be granted because we cannot say that there was no reasonable possibility that the evidence complained of contributed to defendant’s conviction.
State v. Chapman,
386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967);
State v. Thacker,
supra;
State v. Hudson,
supra;
State v. Taylor,
280 N.C. 273, 185 S.E. 2d 677 (1972). The most hotly contested issue in this case was whether Fisher was killed by defendant or by the law enforcement officers who fired into the patrol car in attempting to rescue him. The import of Agent Holdren’s testimony was that defendant first said he did not know whether he shot Fisher; that he later said he could have shot him; and that he finally said he was sorry, because he would not have shot Fisher had they been allowed to continue to Georgia. It cannot be denied that such a quasi confession by an accused would ordinarily make a profound impression upon the minds of the average juror.
See State v. Blackmon,
280 N.C. 42, 50, 185 S.E. 2d 123, 128 (1971). Therefore, the erroneous admission of defendant’s in-custody statements entitles him to a new trial.
Of the remaining assignments of error only assignment No. 1 raises a question likely to recur at defendant’s second trial. Notwithstanding, we note assignment No. 9, which is not an assertion of legal error; it is but a recurring plea to this Court to reverse the rule that a defendant pleading insanity has the burden of proving that at the time of the crime he lacked capacity to know the nature and quality of his act or to distinguish between right and wrong in relation to it. Defendant concedes that this test, known as the M’Naghten rule, has “existed in North Carolina for well over a century.”
State v. Helms,
284 N.C. 508, 201 S.E. 2d 850 (1974). He argues, however, that the rule is “incommensurable” with present psychiatric thinking, “archaic and
unyielding,” and places an “insurmountable” burden upon a defendant. We again reject this argument.
In recent years we have repeatedly reaffirmed our adherence to the M’Naghten rule; we now do so again. Although the science of psychiatry has made great strides since
M’Naghten
s
Case,
in our view, the psychiatrists have offered nothing better than the standard it established. As Justice Huskins, speaking for the Court, said in
State v. Helms,
284 N.C. 508, 514, 201 S.E. 2d 850, 854 (1975) “[T]he M’Naghten rule is constitutionally sound; and our adherence to it is based on reason and common sense.”
Accord, State v. Pagano,
294 N.C. 729, 242 S.E. 2d 825 (1978);
State v. Willard,
292 N.C. 567, 234 S.E. 2d 587 (1977);
State v. Harris,
290 N.C. 718, 228 S.E. 2d 424 (1976);
State v. Taylor,
290 N.C. 220, 226 S.E. 2d 23 (1976);
State v. Hammonds,
290 N.C. 1, 224 S.E. 2d 595 (1976).
Further, we again point out, as we did in
State v. Caldwell,
293 N.C. 336, 237 S.E. 2d 742 (1977), that the decision in
Mullaney v. Wilbur,
421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975) did not change our rule that the burden of proof with respect to insanity rests upon the defendant pleading it.
See Patterson v. New York,
432 U.S. 197, 53 L.Ed. 2d 281, 97 S.Ct. 2319 (1977);
State v. Pagano, supra; State v. Jones,
293 N.C. 413, 238 S.E. 2d 482 (1977).
Finally, we proceed to defendant’s assignment No. 1, which challenges the admission of the testimony of two Virginia State Police Dispatchers, Thomas M. Richardson and Frances C. Houchins, dealing with radio transmissions they received from Trooper Fisher while on duty late in the evening of 14 November 1976 and the early morning hours of November 15th. Both dispatchers knew Fisher and had engaged in radio communications with him prior to November 14th.
Richardson testified that while on duty he received two transmissions before midnight from Trooper Fisher, who identified himself by his coded “batch” number of 1309. He also stated that he heard the substance of a third communication from Fisher which was received by Mrs. Houchins, who relieved Richardson at midnight. Mrs. Houchins testified that she received one communication from unit 1309 and identified the speaker as Patrolman Fisher. When the State sought to elicit from each dispatcher the substance of the broadcasts he or she had heard
(three broadcasts for Richardson and one for Mrs. Houchins), defendant objected. The trial judge overruled defendant’s general objection and admitted the following testimony pertaining to the content of the three communications.
(1) Communication received by Richardson at 11:44 p.m., November 14, 1976:
“Q. And what did [Fisher] say to you at that time?
“A. His transmission was . . . T have a subject who now has me in his custody. He has my service revolver. He wants me to take him to Atlanta, Georgia, and I am now on Interstate 85, ten miles south of McKen-ney. I have been shot once.’ ”
(2) Communication received by Richardson at 11:52 p.m.:
“Q. Would you tell the court what G. W. Fisher told you on this occasion?
“A. His transmission was 1309. T am now escorting the subject to Atlanta Police Department.’ ”
(3) Communication received by Houchins and heard by Richardson at 12:08 a.m., November 1976:
“Q. (To Richardson) And at approximately 12:08 a.m. on the morning of November 15, 1976, what if anything, did Patrolman G. W. Fisher say to you at that time?
“A. (By Richardson) He called in on his radio and Mrs. Houchins, the other dispatcher, was with him at this time. And his transmission was 1309. She said, ‘Go ahead.’ He said, ‘The subject now has both pistols on me. If anybody or any officer hits him, he is going to kill me.’
“Q. (To Houchins) What, if anything, did [Fisher] say to you at 12:09 a.m. on the morning of November 15, 1976?
“A. (By Houchins) He called me, he said, ‘1309 to Richmond,’ and I acknowledged him and then he said, ‘Mrs. Houchins, the man in the car with me has two pistols on me. He said if we are interfered with in any
way, or if he is hit, that he will kill me.’ I waited for him to continue and he repeated the same thing over.”
Defendant contends that the trial court’s admission of this testimony regarding the content of the broadcasts received from Patrolman Fisher constituted reversible error.
Radio communications, by analogy to telephone conversations, are governed by the rules of evidence regulating the admission of oral statements made during a face-to-face transaction, once the identity of the speakers is ascertained.
See Everette v. D. O. Briggs Lumber Co., Inc.,
250 N.C. 688, 110 S.E. 2d 288 (1959). That the radio messages received by Mr. Richardson and Mrs. Houchins were sufficiently identified as being those of the deceased is undisputed. Accordingly, this assignment of error may be analyzed in light of the general principles of evidence governing hearsay.
Evidence, whether oral or written, is hearsay (1) “when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.”
State v. Deck,
285 N.C. 209, 213, 203 S.E. 2d 830, 833 (1974). “Hearsay evidence, unless it falls within one of the recognized exceptions to the hearsay rule, is inadmissible.” 1 Stansbury’s North Carolina Evidence, § 138 (Brandis rev. 1973). Indisputably, the content of the radio transmissions by Patrolman Fisher was hearsay; the evidence was offered to show (1) that the trooper was being forced to drive to Atlanta and (2) that his armed abductor was threatening to kill him should a rescue be attempted. This testimony, however, falls within two well-established exceptions to the hearsay rule and was therefore properly admitted.
First, Fisher’s entire report to the dispatchers — both the stark statement of his predicament and his repetition of defendant’s threats — were admissible under the “res
gestae
concept.” An excellent general statement of this concept appears in 1 Underhill’s Criminal Evidence § 266, p. 664 (5th Ed. 1956), as follows:
“The rule of res gestae, under which it is said that all facts which are" a part of the res gestae are admissible, is a rule deter
mining the relevancy and not the character or probative force of the evidence. If the court determines that the fact offered is a part of the res gestae, it will be accepted, because, as it is said, that fact is then relevant. . . . Circumstances constituting a criminal transaction which is being investigated by the jury, and which are so interwoven with other circumstances and with the principal facts which are at issue that they cannot be very well separated from the principal facts without depriving the jury of proof which is necessary for it to have in order to reach a direct conclusion on the evidence, may be regarded as res gestae.
“These facts include declarations which grow out of the main fact, shed light upon it, and which are unpremeditated, spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication. A statement made as part of res gestae does not narrate a past event, but it is the event speaking through the person and therefore is not excluded as hearsay, and precludes the idea of design.”
The res gestae concept was the basis of decision in the following cases:
In
Brown v. State,
249 Ala. 5, 31 So. 2d 681 (1946) the defendant shot and killed his brother-in-law, Wilkey, in front of the deceased’s restaurant after considerable argument in and around the premises. During the course of the disturbance, Wilkey twice telephoned the sheriff and told him that two men armed with a shotgun were outside his place, cursing and threatening to kill him. On the second call he told the sheriff “to get on out here; they are going to kill me.” Before the sheriff could get there the defendant did kill Wilkey. Defendant was convicted or murder. On his appeal to the Court of Appeals the conviction was vacated because the trial judge permitted the sheriff to testify about those conversations between the deceased and himself. Upon the State’s appeal, the Alabama Supreme Court reversed the Court of Appeals, holding “that the conversation between the deceased and the sheriff superinduced by the menacing presence and threats by the defendant are within the res gestae of the killing, ‘substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character.’ (Citations omitted)”
Id.
at 7, 31 So. 2d at 682.
The case of
Commonwealth v. Coleman,
458 Pa. 112, 326 A. 2d 387, 74 A.L.R. 3d 954 (1974) is also illuminating. The evidence tended to show that at approximately 6:15 a.m. on 3 May 1971 the deceased telephoned her mother and, in an agitated voice, stated that defendant (her boyfriend) “would not let her leave the apartment, that he would hang up the phone, and that he was going to kill her.” When the connection was broken at approximately 6:25 a.m. the girl’s mother called the police, as she had been implored to do. At 6:35 a.m. policemen found the girl in her apartment, dead of multiple stab wounds. Defendant appealed his conviction of murder, contending that the trial judge had erred in permitting the decedent’s mother to testify for the Commonwealth as to the decedent’s statements to her on the telephone. The Supreme Court of Pennsylvania held that decedent’s statements to her mother over the telephone were properly admitted in evidence as one of the “res gestae exceptions to the hearsay rule.” However, one group of Justices thought the decedent’s statements came in as “an exception to the hearsay rule for present sense impressions.” The other was “satisfied” that the challenged statements were “admissible under the so-called ‘excited utterance’ exception, another variant of the res gestae exception.” The consensus was that the indicia of reliability for such a declaration is its con-temporaneousness with the observation of the occurrence or condition.
Hearsay testimony in
Knight v. State,
338 So. 2d 201 (Fla. 1976) indicated that the defendant confronted one Mr. Gans in his business parking lot and ordered him, at gunpoint, back into Gans’s car. Defendant and Gans returned to the Gans home and picked up Mrs. Gans, whereupon defendant forced the two hostages to drive to a bank. Mr. Gans was instructed to go inside the bank and obtain $50,000 or Mrs. Gans, who remained in the car as hostage, would be killed. Mr. Gans entered the bank and related the situation to Mr. Gill, the bank president, who provided Gans with the money and promptly alerted the FBI and local authorities. Before the law enforcement officers could react, however, Mr. and Mrs. Gans were shot to death. At the defendant’s trial for murder Mr. Gill’s testimony recounting Mr. Gans’s description of the kidnapping and extortion plot was admitted over objection. On defendant’s appeal from his conviction of murder, the Supreme Court of Florida held that “[t]he testimony
given by Mr. Gill was admissible as being within the res gestae of the crime of kidnapping. . . . The trial court properly held this evidence admissible as res gestae, an exception to the hearsay rule.”
Id.
at 204.
The above cases support this Court’s conclusion that the total content of Trooper Fisher’s radio broadcasts, including defendant’s alleged threats, were admissible under the “res gestae concept.” Statements made by a deceased immediately prior to or during the course of a continuing criminal transaction are frequently admitted under this theory.
See generally,
2 Wharton’s Criminal Evidence § 297 (13th Ed. 1972); Annot., 74 A.L.R. 3d 963 (1976). However, admission of Fisher’s radio communications, in their entirety, is also supported by other formulations of certain other exceptions to the hearsay rule.
Trooper Fisher’s radio reports to the Virginia State Police Control Station for the area through which he was traveling were made “in the regular course of business,” and in the midst of the transaction he was reporting. As it was his duty to do, the trooper was informing his headquarters of an extraordinary situation which threatened the public safety, his life, and State property; he and his patrol car were under the control of an armed abductor who had possession of Fisher’s weapon. The reasonable probability of the truthfulness of Fisher’s report is obvious: (1) Common experience would reject the suggestion that a highway patrolman on duty would falsely report the loss of his service revolver and his forcible abduction. (2) In Virginia (as in North Carolina) to falsely report the commission of a crime with intent to mislead State authorities is a criminal offense. Va. Code § 18.2-461 (Replacement 1975). (3) The subsequent tragedy fully corroborated his report.
Fisher’s oral dispatches were admissible for the same reason written entries in the regular course of business are admissible.
State v. Cawthorne,
290 N.C. 639, 227 S.E. 2d 528 (1976);
Geralds v. Champlin,
93 N.H. 151, 37 A. 2d 155 (1944).
See
1 Stansbury’s N.C. Evidence § 155 (Brandis rev. 1973); C. McCormick, Evidence §§ 307, 310 (2d Ed. 1978); 93 Univ. of Pa. L. Rev. 101 (1945). Of course, that portion of these dispatches which reported defendant’s threat to kill Fisher if anyone attempted to impede their progress to Atlanta is a classic example of “double hearsay.”
However, as stated in 2 Jones on Evidence § 8.8 (6th Ed. 1972), “[TJhere is no good reason why a hearsay declaration, which within itself contains a hearsay statement, should not be admissible to prove the truth of the included statement, if both the statement and the included statement meet the tests of an exception to the hearsay rule.”
See Yates v. Bair Transport, Inc.,
249 F. Supp. 681, 688 (S.D.N.Y. 1965); 13 U.L.A., Uniform Rules of Evidence § 805 (West 1975). The dispatches challenged here meet this requirement. Had Fisher survived, upon a trial of defendant for kidnapping, or any other offense growing out of the events involved here, he could have testified to defendant’s out-of-court statements which are now in question. They would have been competent against defendant either as admissions, a statement of his mental condition, or a declaration of intent.
See
Stansbury’s North Carolina Evidence §§ 161, 162, 167 (Brandis rev. 1973).
For the reason set out above the verdict and judgment from which the defendant appeals are vacated and a new trial ordered.
New trial.