19 N.C. App. 660 | N.C. Ct. App. | 1973
After both sides rested and the case was submitted to the jury, defendant’s counsel moved to reopen the case in order that he might present the testimony of an additional witness. The trial court denied the motion but permitted defendant’s counsel to place in the record what the testimony of the witness would be. The witness then testified for the record that on 19 May 1972 he was employed by the same company as defendant and on that day defendant was working under his general supervision, but he was not the same person who had signed defendant’s time card for that day; that two or three weeks prior to the trial he told defendant’s counsel he did not remember whether defendant was on the job on 19 May 1972 and for that reason no subpoena was issued for him; that since having that conversation and after defendant’s brother had called him on the preceding night and told him it was urgent if he could remember anything, he had reviewed his own time cards for 19 May 1972 and now remembered exactly where he was on that date; that he knew that at about 3:00 p.m. on 19 May 1972 defendant was on the State Highway Building putting up screen around the cooling tower; that on 19 May 1972 he had himself worked on another job for two hours in the morning but had worked with defendant on the State Highway Building job from 9:30 a.m. until 4:00 p.m.; and that he felt he had shirked his responsibilities to the court.
“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. Ordinarily, the trial judge’s ruling, whether to reopen or to refuse to reopen, being a matter within his sound discretion, will not be reviewed on appeal. However, because of the special circumstances of the present case, we have elected to review the ruling in this case and are of the opinion that defendant should be granted a new trial.
The State’s evidence revealed the commission of a brutal and vicious crime by someone. The sole issue was defendant’s identity as the person who committed it. The record reveals that the State’s witnesses, who saw the robber only briefly at the time the crime was committed, did not identify the defendant as the perpetrator until on or about 23 February 1973, some nine months after the crime was committed. At that time they
New trial.