
    (123 So. 109)
    BROGLAN v. STATE.
    (8 Div. 861.)
    Court of Appeals of Alabama.
    June 18, 1929.
    R. E. Smith, of Huntsville, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
   SAMFORD, J.

After the jury had retired to consider the verdict, they came back into the courtroom, and, in the presence of defendant and his attorney, inquired: “We want to know whether Mr. Crutcher said that he saw Mr. Drake take the bottle out of this gentleman’s (defendant) hand.” The court replied: “The judge is not supposed to pass on the evidence, that is for you gentlemen. I can recall Mr. C-rutcher 'if you would like to have him.” Over objection and exception of defendant, Crutcher, who had previously testified as a witness for the state, was recalled and permitted to say that he had stated he saw the bottle in defendant’s hand. Thereupon one of the jurors asked, “Did you see Drake take the bottle out of defendant’s hand?” To which witness answered, “Xes.” There were objections and exceptions reserved. The court then asked defendant if he had other evidence to offer, and he replied that he had not. We find no error in this. It is discretionary with the trial court to recall a jury and give additional instructions or to allow additional evidence. Cooper v. State, 79 Ala. 54.

We find no error in the record, and the judgment is affirmed.

Affirmed.  