The defendant, at the close of the State’s evidence and at the close of all the evidence moved to dismiss the action or for judgment of nonsuit. C. S., 4643. The court below denied the motions, and in this we can see no error.
C. S., 4213, is as follows: “If any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, he shall be guilty of a felony and shall be punished by imprisonment in jail or in the penitentiary for not less *448than twelve months nor more than twenty years, or by a fine not exceeding two thousand dollars, or both, in the discretion of the court.”
In S. v. Bridges, 178 N. C., at p. 738, we find: “The defendants were waiting in the dark for him, as much concealed as if they had been hidden in ambush, prepared to slay without a moment’s warning to their victim, who was thus unexpectedly confronted by this hitherto unseen peril. J. W. Cole describes the situation in such way as to show conclusively, if his testimony was truthful, that he was so surprised that he was instantly rendered helpless because he did not know of the presence of the defendants behind the house, as they were hidden by the darkness. As was said, 'they loomed up before him’ with a suddenness of an apparition; and he first saw them when the gun flashed.”
In S. v. Kline, 190 N. C., at p. 178-9, is the following: “It appears that on the night of 22 April, 1925, the prosecuting witness, Truby Proctor, was visiting at the home of J. F. Wicker, near Colon in Lee County. While there some one secreted himself in the rear of his automobile. The prosecuting witness left about 10 :00 o’clock and was driving towards the public highway from the Wicker house, when the person in the rear of the car struck him over the head with an iron bar, inflicting serious injury upon him. Proctor testified that in the scuffle which followed, partly in the light of the automobile, he recognized the defendant as his assailant; that the defendant left the car, ran down the road, across the field and towards the woods. The defendant testified that he was at the home of Mr. R. S. Kelly on the night in question; that he roomed there; that he knew nothing of the occurrence until about 1:00 or 1:30 o’clock that night when he was aroused from his bed and charged with the offense. The evidence was plenary on both sides. It was sufficient on behalf of the State to warrant a conviction and on behalf of the defendant to warrant an acquittal.” The evidence in both of the above cases was held sufficient to be submitted to the jury as to a secret assault. S. v. Oxendine, 187 N. C., 658.
The defendant contends that as a defense he set up an alibi. To corroborate the prosecuting witness Jackson, who testified that he recognized the defendant, that certain evidence offered by the State was prejudicial as the evidence did not show similarity of the conditions. These exceptions and assignments of error cannot be sustained.
Speaking to the subject, we find the following in 22 C. J., p. 755, sec. 842(1) : “The conditions of a relevant occurrence may be artificially created in an experiment, and where the material facts bearing on the particular issue are precisely duplicated in the experiment, the result may be received in evidence. Such evidence is appropriate where the question to be determined relates to such matters as whether an object in a *449certain position can be seen from a given beigbt above a designated spot, or from a given distance,” etc. Section 843(3) at p. 756: “Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court, in the exercise of its discretion, which will not be interfered with by an appellate tribunal unless an abuse is made clearly to appear.” Blue v. B. R., 117 N. C., 644; Cox v. R. R., 126 N. C., 103.
In Conrad v. Shuford, 174 N. C., at p. 722, in reference to similarity in essential conditions, quoting from 17 Cyc., at p. 285, it is said: “Evidence of other facts or occurrences is then admitted, provided the court deems this course a wise exercise of its administrative discretion. The probative fact or occurrence may be (1) found in actual life by observation, or (2) reproduced voluntarily in an experiment. A sufficient ground of admissibility is furnished where physical conditions are shoAvn to have been identical on the two occasions.”
The defendant contends that the court below admitted a question “which called for a conclusion from the witness rather than the witness stating facts from which the jury could draw its own conclusions. This is clearly an erroneous method of questioning witnesses and is an intrusion into the duty of the jury.” We can see no prejudicial error, if error at all, in the question and answer.
Nor do we think the exclusion of certain hearsay evidence can be sustained in an attempt to £x the time that defendant was in Owens’ store by John Avery Cox: “I went to Mr. Owens’ store twice that night, the first time about ten o’clock to get a drink. I saw Mr. Lee Stevens, Jesse Ashford and Charlie (McLamb, defendant). Mr. Precise’s son was clerking in the store, and he waited on me. Mr. Jackson lives on another road from Charlie. Q. Was there anything said, and if so, what, between Charlie McLamb and Ealph Precise about what time they were going to close the store? (If permitted to answer, the witness would have said, Mr. Precise asked him about selling him some fish, and Charlie said he was not ready to go home, and Charlie asked what time it was then, and Mr. Precise said it was twenty minutes to ten o’clock).” The defendant thereafter had Ealph Precise to testify, and the time fixed by him “It was around ten o’clock.”
We do not think the objections of defendant to the charge can be sustained, taking it as a whole and not disconnectedly. The court below, in the beginning of the charge, read the bill of indictment in which it set forth fully all the ingredients of a secret assault.
In S. v. Kline, supra, at p. 178, the principle is set forth as follows: “The statute under which defendant was indicted and convicted provides that if any person shall commit an assault and battery upon another (1) *450maliciously, (2) with a deadly weapon, (3) in a secret manner, and by waylaying or otherwise, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, (4) with intent to kill such other person, ho shall be guilty of a felony and shall be punishable by imprisonment in jail or in the penitentiary (State’s prison) for not less than twelve months nor more than twenty years, or by a fine of not exceeding two thousand dollars, or both, in the discretion of the court. O. S., 4213. In order to warrant a conviction under the statute, all of the essential elements of the crime must be proved by competent evidence (S. v. Crisp, 188 N. C., 800), and the burden is on the State to establish the defendant’s guilt beyond a reasonable doubt, where a plea of ‘not guilty’ is entered, as was done in the instant case. S. v. Redditt, 189 N. C., 176; Speas v. Bank, 188 N. C., p. 527.” The evidence on the part of the State was plenary.
The court below accurately defined reasonable doubt, and charged the jury: “If the State has satisfied you beyond a reasonable doubt, it would be your duty to convict the defendant. If it has not so satisfied you, it would be your duty to acquit him.”
The court fully instructed the jury as to the alibi set up by the defendant, and further charged: “As to the first count, you will remember that I read the count and read the words ‘wilfully and feloniously and in a secret manner.’ The State contends that the crime was done wil-fully and maliciously and that he went up there with malice in his heart against Mr. Jackson and shot him with a shot gun and that it was done in a secret manner, and that Mr. Jackson was bathing, preparing to go to bed and take his night’s rest and that McLamb shot him, inflicting serious injury upon him.”
On the aspect of secret assault, the defendant did not ask for fuller or more specific instructions.
In S. v. O’Neal, 187 N. C., at p. 24, the following is set forth: “The statute, it is true, requires the judge plainly and correctly to state the evidence and to declare and explain the law arising thereon (C. S., 564), and this requirement has been construed as implying that on all the substantial features of a case a correct charge must be given without regard to a special prayer, but as subordinate features or particular phases of the evidence a litigant who desires special explanation should make proper request for appropriate instructions.”
Although we have considered the material exceptions and assignments of error to the charge of the court below made by defendant yet nowhere are they set forth in the body of the charge as “continuity of the charge is necessary with the ‘specific’ exceptions.” Rawls v. Lupton, 193 N. C., at p. 432.
*451The defendant further complains of the court below changing the punishment. In S. v. Crook, 115 N. C., at p. 764, we find: “The judgments, orders and decrees of a court as a general rule are under its control and subject to modification during the term at which they are entered; but where a defendant had undergone a part of the punishment, the sentence cannot be revoked and another, except in diminution or mitigation, substituted for it, because he would be twice placed in jeopardy and twice subjected to punishment for the same offense. S. v. Warren, 92 N. C., 825; Ex parte Lange, 18 Wall., 173.”
It is well settled in this jurisdiction that the court below, in its sound discretion can, during the term, as said in S. v. Warren, 92 N. C., at p. 827, “correct, modify or recall an unexecuted judgment in a criminal, as well as in a civil case.” This cannot he done when the defendant has undergone a portion, though an inconsiderable part, of his sentence. Warren’s case, supra.
We think under the facts and circumstances of this case, that the defendant had not undergone a part of the punishment. He had given notice of appeal, he was still in jail, it was during the term of court in which he was tried, and we think the whole matter remained in fieri. The punishment of defendant was the responsibility of the court below. Succinctly the defendant with malice, in a secret manner at the prosecuting witness’ home, in the night time, without provocation, assaulted and maimed him by shooting out one of his eyes. The final judgment of the court below was six and a half years. Under the law the court below could have sentenced defendant to twenty years imprisonment and fined him $2,000. From the record, we find in law