State v. Hatch , 21 N.C. App. 148 ( 1974 )

MORRIS, Judge.

Defendants assign error to the trial court’s denial of the jury’s request that the court reporter read back a portion of the testimony. There is no merit to this assignment; for as we said in State v. Crane, 11 N.C. App. 721, 182 S.E. 2d 225 (1971), it is discretionary with the court to grant or refuse the jury’s request for a restatement of the evidence. There is likewise no merit to the assignment of error to the court’s refusal of the jury’s request that additional testimony be taken. It is defendants’ contention that the request was denied, not in the exercise of discretion, but rather under a misapprehension of law. The specific exchange between the court and the jury was as follows:

“Foreman: One other question, this particular type shotgun, when does it eject that shell, can we know that, do you have to pump it?

Court: Again, you remember the evidence and take your own recollection.

Foreman: This came up in the discussion back there and it hasn’t been established the type of shotgun.

Court: I can’t help you with the evidence, that is solely a matter, for your determination.”

It is within the discretion of the trial court to reopen a case and admit additional evidence, even after the jury has retired for deliberation. However, if the trial court denies such a motion, not in the exercise of its sound discretion but rather in misapprehension of law, a new trial will be granted. State v. Jackson, 19 N.C. App. 370, 199 S.E. 2d 32 (1973). In Jackson, supra, a new trial was granted because the court refused to reopen the case to receive additional witnesses on the defense of alibi on the ground that the parties were limited by law to three witnesses on a given point. The above-quoted colloquy in this case can by no means be regarded as a statement that the court was forbidden by law to reopen the case. The court properly instructed the jury that the evidence was a matter for their determination, and this assignment of error is overruled.

Defendants next contend that the court violated G.S. 1-180 by commenting on the evidence when he neglected to instruct the jury that if defendants fired into the house in order to cause Moorefield and Baker to cease firing at them, their conduct would not be willful and wanton. They contend, in addition, that certain portions of defendants’ evidence were not called to the attention of the jury. The trial court instructed the jury that defendants contended that the firing was not willful or wanton, and he defined “willful and wanton.” Furthermore, a careful review of the court’s instruction reveals that the principal features of the evidence relied upon by the State and by the defendants were recapitulated. A recapitulation of the principal features relied on satisfies the requirement of G.S. 1-180. State v. Guffey, 265 N.C. 331, 144 S.E. 2d 14 (1965); State v. Craig, 11 N.C. App. 196, 180 S.E. 2d 376 (1971).

No error.

Chief Judge Brock and Judge Carson concur.