#### STATE OF NORTH CAROLINA v. BARRY LEE CHAPPELL

No. 749SC702

(Filed 2 October 1974)

Criminal Law §§ 113, 119— instructions on evidence — instructions not requested

In the absence of a request, the trial court was not required to instruct the jury that they were to use their own memory in recalling the evidence and that they were not to take his recapitulation of the evidence as fact.

Appeal by defendant from Bailey, Judge, 18 February 1974 Session of Superior Court held in Person County.

Defendant was convicted of resisting a public officer while the officer was attempting to arrest defendant, a violation of G.S. 14-223. After a verdict of guilty, judgment was entered imposing an active sentence within the limits provided by law.

Attorney General James H. Carson, Jr., by Walter E. Ricks 111, Assistant Attorney General, and C. Diederich Heidgerd, Associate Attorney, for the State.

Burke and King by Ronnie P. King for defendant appellant.

*229VAUGHN, Judge.

Defendant’s court appointed counsel contends that it was error for the judge to fail to instruct the jury that they were to use their own memory in recalling the evidence and that they were not to take his recapitulation of the evidence as fact. Defendant did not request the Court to give that instruction and it is not required in the absence of a request. State v. Harris, 213 N.C. 648, 197 S.E. 142.

Defendant has brought forward other assignments of error which we find to be without merit. We find no prejudicial error in defendant’s trial.

No error.

Judges Campbell and Parker concur.