State v. Jackson

199 S.E.2d 32 (1973)

19 N.C. App. 370

STATE of North Carolina v. Ronald F. JACKSON.

No. 7320SC590.

Court of Appeals of North Carolina.

September 12, 1973.

*33 Atty. Gen. Robert Morgan by Asst. Atty. Gen. James E. Magner, Jr., for the State.

Paul L. Whitfield, and David R. Badger, Charlotte, for defendant appellant.

PARKER, Judge.

The record indicates that trial of this case commenced on the afternoon of 12 March 1973 and that presentation of evidence by the State and defendant and argument of counsel to the jury was completed on that day. Upon convening of court on the following morning and prior to the court's instructing the jury, defendant's counsel moved in the absence of the jury to reopen the case in order that he might present two additional witnesses who had not been present on the preceding day and who would testify that defendant was in Bennettsville from 2:30 to 4:00 o'clock on the afternoon of the robbery. The trial judge denied the motion, stating that defendant "already had three or four witnesses, including himself, to testify that he was there; and under our rules you can only use three witnesses to prove any particular point."

"It is well settled that it is within the discretion of the trial judge to reopen a case and to admit additional evidence after both parties have rested and even after the jury has retired for its deliberations." State v. Shutt, 279 N.C. 689, 185 S.E.2d 206. Accordingly, this Court has found no error when the trial judge in the exercise of his sound discretion has either granted a motion to reopen a case, State v. Brown, 1 N.C.App. 145, 160 S.E.2d 508, or has refused to grant such a motion, State v. Stack, 12 N.C.App. 101, 182 S.E.2d 633. In the present case, however, the trial judge did not deny defendant's motion in the exercise of his discreton but did so under the misapprehension that some rule of law prevents a party from using more than three witnesses to prove any particular point. While undoubtedly it is within the sound discretion of the trial judge in any case to require the parties to move expeditiously in the presentation of their evidence and to refrain from needlessly consuming the time of the court by presenting an excessive number of witnesses whose testimony would be merely cumulative, there is no rule which limits a party to no more than three witnesses to prove a particular point.

While it was discretionary with the trial judge to grant or deny defendant's motion to reopen the case in order to present the testimony of the additional witnesses, where, as here, the record discloses that the trial court did not make its ruling in the exercise of its discretion but did so under a misapprehension of law, the ruling is reviewable on appeal. 1 Strong, N.C. Index 2d, Appeal and Error, § 54. The ruling here complained of was erroneous, and we are unable to determine that the error caused defendant no prejudice. The point which defendant sought to prove by the additional witnesses related to his alibi and was crucial to his defense.

We do not discuss appellant's remaining assignments of error, which present questions *34 which may not arise upon a new trial. For the error above noted, defendant is entitled to and is awarded a

New trial.

CAMPBELL and MORRIS, JJ., concur.