¶1(concurring).
¶2I reluctantly concur in the result reached for I cannot conclude that appellant has brought himself within either one of the two rules set forth and distinguished in Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.
¶3While the witness Thompson acknowledged that he had refreshed his memory from a copy of the instrument in question at his office on the morning of the trial, and that he brought such copy to court with him, the record does not support appellant’s claim that it was used or exhibited before the jury by the witness, or that the prosecutor made use of the original or another copy of such instrument in his interrogation of the witness before the jury.
¶4The “use before the jury” rule has always been applied literally, and before the rule comes into play the writing or object must be actually used in the jury’s presence.
¶5Under such rule, however, reversal will result without any showing of injury upon the defendant’s timely request for inspection of any document, instrument or statement, which has been used before the jury by which its content becomes an issue. It is clear that if used before the jury, the document, statement, etc,, is obtainable regardless of whether it has been made by the witness or not.
¶6The so-called “Gaskin rule” is limited to a previous statement made by the witness testifying for the State. Artell v. State, Tex.Cr.App., 372 S.W.2d 944. “The rule applies where demand is made after the witness has testified on direct examination and is for the purpose of cross-examination, and possibly impeachment purposes, whether the statement has been used by the witness before trial to refresh his memory or not.” Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467. If an accused brings himself within this rule, then it is error for the trial judge to fail to require production of a prior and available statement of the witness, though the error may be harmless. The harmfulness of the error is dependent upon whether an examination of the statement by this Court demonstrates that the defendant should have been allowed the statement for the purpose of cross-examination and possible impeachment. Error, of course, will result if the defendant is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any.
¶7Utilization of a combination of the limitations of the two rules
¶8In discussing these limitations the following opinion was expressed in 16 Baylor Law Review 51, 60:
“The necessity for the right to inspect is not changed by virtue of the fact that another person’s work is used to refresh one’s memory. In fact, it would seem that there would be added reason to allow an inspection as a matter of right. Not only are the same safeguards needed (ie.' a right to see that the evidence is not merely fabricated, the right to see if there is anything in the report which would detract from the witness’ memory) but an additional safeguard is needed. This additional safeguard is the right to test the witness on cross to see if the facts about which he is testifying were his own observations and independent recollections or were merely gleaned or memorized by him from this hearsay report. At the very least, the defendant should be entitled to have such a report made a part of his bill of exceptions to allow the appellate court to decide if the defendant was injured by not being permitted by the trial court to inspect the report.”
¶9The instrument which the court refused to permit appellant to inspect and to use for cross-examination was not laid out in the appellate record so the appellant could point out any inconsistencies to this Court. The court apparently deemed it necessary to have the instrument sealed in a separate envelope and brought forward in the record on appeal for the inspection of this Court. Such action was permissible and well within the court’s discretion. The instrument appears to be a summary of the facts of the case prepared by the District Attorney following his interview with various witnesses. The statement is not that of the witness Thompson, though much of the summary is attributed to the interview or interviews with the witness Thompson, and I cannot conclude from a study of the record that any harm or injury resulted from the court’s action which would justify reversal. I do observe, however, that the trial court’s inspection of the instrument in question in camera and his statement that no inconsistency appears, and this Court’s subsequent examination of the instrument forwarded under seal is often a poor substitute for actual use by appellant of such instrument on cross-examination.
¶10In this discussion it should be borne in mind that the statement, report or other memorandum used to refresh a witness’ recollection need not be one written or prepared by himself, since it is not the memorandum but the recollection of the witness which is evidence. See McCormick and Ray, Texas Law of Evidence, 2d Ed., Sec. 550, p. 446. Memoranda by other persons are constantly used for this purpose, but if the witness has no personal knowledge of the transaction, he has no recollection to be refreshed and no memorandum can be used. The danger, as I see it, is when" the memorandum prepared by another and *614used by the witness contains many facts about the transaction of which the witness has no personal knowledge. In such situations the memorandum may be easily misused so as to put into the mouth of the witness a fictitious story which does not represent his recollection at all, or color his recollection in such a manner as to distort the true picture.
¶11While it is true that there is no showing of how Thompson gained possession of a copy of the District Attorney’s summary of the^case, neither was it shown that this State’s witness obtained possession thereof without consent of the prosecutor. The record does not reflect that other State’s witnesses were afforded the same treatment as Thompson, and it may well be he obtained a copy by inadvertence. Nevertheless, this case should not be interpreted as approving such practice. In fact, I deplore, and I think this Court should condemn the practice of any prosecutor who willingly permits his witnesses to make a wholesale review of his personally prepared narrative account of the case indicating what dates, places, times and other facts various witnesses have stated to him, despite the fact that the summary is unsigned or sworn to by any witness or the fact that it is truly the work product of the State or any or its agencies.
¶12To permit such practice is to reduce the trial to a staged play for which the dress rehearsal has already been had. Further, the Rule of Evidence as to witnesses is circumvented. It would serve no purpose if the practice is permitted, for the defendant to invoke the Rule as to the State’s witnesses, for the horse is already stolen by the time the barn is locked.
¶13Both the District Attorney and appellant’s counsel are to be commended for the forthright, candid and enlightening oral arguments before this Court on this very question. This writer found" such arguments most useful. Let it be hoped that their efforts will result in some guidelines beneficial to the bench and bar of this state in this rather difficult and growing area of our law.
¶14Finding no reversible error, I concur.
¶15. In oral argument before this Court counsel attempted to explain the arrangement of the courtroom and particularly the witness stand which made it difficult for the trial judge or the attorneys to observe whether the witness Thompson was actually using the instrument in question.
¶16. Such limitation has been criticized. 16 Baylor Law Review 51, 58. See also Wigmore on Evidence, 3rd Ed., Vol. 3, Sec. 762, p. 111.
¶17.Limitations referred to are the Gaskin rules (must be a statement made by the witness testifying and the “use before the jury” rules must be actually used or exhibited.)
¶18. The opportunity for such a situation is frequently presented. Peace officers often work as partners. They arrive at the scene of a crime together and make a joint arrest. Only one officer makes the offense report. The other officer alone is often called to testify for various reasons. If he testifies without referring to any offense report, no problem exists. All too often, however, he carefully examines his partner’s report outside the courtroom and refreshes his memory. This may be a matter of practical necessity as officers are involved in many offenses between the time of the arrest in question and the trial. Nevertheless, the limitations of the two rules discussed often prevent the accused from inspecting the offense report when such officer has testified.