
    GANDY v. STATE.
    (No. 8109.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.
    Rehearing Denied April 30, 1924.)
    I. Criminal law &wkey;>859 — Permitting reporter to read testimony at request of jury held not error.
    Where, at time of jury’s request that testimony of a witness be read to them, such witness had been excused and departed, and could not be recalled, as authorized by Code Cr. Pl-oc. 1911, art. 755; held, under Rev. St. arts. 1920-1926, making the reporter an officer of the court, he was properly permitted to read to jury the testimony which the jury desired repeated. i
    On Motion for Rehearing.
    2. Intoxicating liquors <&wkey;236(4) — Identification of defendant sufficient.
    Evidence of appearance, dress, etc., and that man who sold witness liquor stuttered, as did defendant, held sufficient identification.
    <5moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Milam County; John Watson, Judge.
    John Gandy was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    B. P. Matocha. of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, .for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The state relied upon the testimony of the witness Crouch, who testified that he purchased whisky from the appellant. He was quite definite in his identification; particularly was this true with reference to his cross-examination. After their retirement, the jury, in the proper manner, expressed the wish to have that part of Crouch’s testimony read which related to his identification of the appellant, or that Crouch be brought into court, and stated that there was a disagreement among them touching his testimony. Efforts were made by the court to recall the witness. He resided in a distant county, however, and had gone to his home. The testimony was closed at 11 o’clock in the morning. Shortly after 2 o’clock, Grouch asked the state’s attorney if he might return to his home, which was in Ellis county. He was told that ihe could be excused, and the other witnesses were likewise excused. About 5 o’clock in the afternoon the jury expressed the wish to have Crouch’s testimony reac(. Appellant objected to its reading. The shorthand reporter, who had been sworn as an officer of the court, produced his notes and read to the jury, both on direct and cross examination, all of the testimony of Grouch touching the matter of identification of the appellant, in question and answer form, which had been given upon the trial.

Article 755, C. C. P., provides in substance that, if the jury disagree as to the statement of any particular witness, the witness may be brought upon tihe stand and be directed by the judge to detail his testimony to the particular point of disagreement, and no other, and shall be instructed to make his statement in the language used in his examination as nearly as he can. In the present ease, at the time the jury expressed its disagreement touching the identification of the appellant, the witness was not available. He ¡had been excused after the testimony of both the state and the appellant bad been closed. The letter of the statute, therefore, could not be complied with by putting him on the stand. Appellant claims that the procedure followed was erroneous and prejudicial. The learned trial judge refers to the eases of Moore v. State, 52 Tex. Cr. R. 364, 107 S. W. 355, and American National Bank v. Haggerton (Tex. Civ. App.) 250 S. W. 279. Reference is also made to Galan v. State, 76 Tex. Cr. R. 619, 177 S. W 124, and Wesley v. State, 67 Tex. Cr. R. 507, 150 S. W. 197. The court reporter is an officer of the court, and under oath as such, and is required upon request of either party to make a certified copy of his transcribed notes. See R. S. arts. 1920 to 1926. Article 1933, referring to the transcribed notes, says:

“Whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event, so much of the transcript of the official shorthand reporter’s report with reference to such disputed fact or facts shall be inserted in the statement of facts as is necessary to show what the witness testified to in regard to the same, and constitute a part of the statement of facts, and the same shall apply to the preparation of bills of exception.”

This section deals with the procedure on appeal. However, article 755, providing for the reproduction of the testimony of a witness by letting him repeat his former testimony, was enacted before the use of stenographers became general, and before the court stenographer became an officer of the court. It is believed that the procedure followed was in substantial accord with article 755, C. C. P., supra. If, however, the procedure followed was not within the purview of the statute mentioned, it was within the inherent power of the court to have the court reporter read, in tihe presence of the court, the appellant, and his counsel, the official record of the testimony in question. Moreover, there is no claim that in the stenographer’s reproduction of the testimony there was any inaccuracy or departure from the testimony of the witness given upon the stand, and which he would ¡have given, had he been called. Under the circumstances, there is an absence of injury, and a reversal should not result from the action taken.

A detailed review of the evidence is not deemed necessary or desirable. The identification of the appellant by the witness was definite, and there is nothing in the other testimony in the case which casts doubt upon it; at least, nothing which would warrant this court in concluding that the jury was not justified in accepting the evidence in question. The case of Rochetszky v. State, 94 Tex. Cr. R. 423, 251 S. W. 232, .and those cited therein are distinguishable from the present one.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant bases his motion for rehearing solely upon the insufficiency of the testimony, and in view of his insistence we have again carefully examined the facts. We regret that we cannot agree with appellant’s contention that his identity is not fully shown by the state' witness as being the party who sold ihdm the liquor in question. In addition to his identification, based on appearance, dress, etc., which would seem sufficient alone, we note that the witness testified that the young man from whom he bought the liquor stuttered. Prom the testimony of other witnesses it is made to appear that appellant stuttered. We ¡have no difficulty in concluding upon a careful examination of the facts that the conclusion of the jury is sufficiently supported.

The motion for rehearing will be overruled.  