
    John Barton v. The State.
    1. Practice. — Though in a trial for a felony, as well as for a misdemeanor, a jury may, after retirement to consider of a verdict, require that a witness be recalled to restate his testimony on a particular point, yet when the trial is for a felony the presence of the defendant is necessary when the • proceeding is had.
    2. Same. — If a jury disagree as to evidence, there is no rule which authorizes the attorneys in the case to make statements to them as to what the proof was.
    Appeal from the District Court of Dallas. Tried below before the Hon. Gr. ¡N. Aldbedge.
    The conviction was for theft of cattle, and two years in the penitentiary the punishment assessed.
    
      No brief for the appellant.
    
      W. B. Dunham, for the State.
   White, P. J.

On the trial, which was for a felony, to wit: theft of a cow, and after the cause had been submitted to the jury and they had considered of their verdict, they returned into court to have certain witnesses recalled, that they might restate their testimony upon a certain point about which there seemed to be some doubt or disagreement amongst the jury. The witnesses were placed upon the stand and interrogated in the absence of defendant, who was at the time off at a distance, confined in jail. When the witnesses who were recalled both stated that they had not testified as to the mattter inquired about, the county attorney and one of the attorneys for defendant were each permitted to make a statement to the jury as to what the evidence was on the disputed point.

The proceeding was error. The statute expressly requires the presence of the defendant in every case of felony when a witness is recalled by the jury to restate his testimony. Code Cr. Proc., arts. 697, 698.

There is no rule of law which we are aware of that would authorize the attorneys to make statements with regard to the evidence about which the jury had disagreed. Edmondson v. The State, 7 Texas Ct. App. 116.

The judgment is reversed and a new trial awarded.

Reversed and remanded.  