The opinion
*597
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
Evidence from third parties of the fact that at some given time or place the accused was identified by some one in the hearing or presence of witness, is undoubtedly in the nature of hearsay testimony, and this is the effect of the holdings in Turner v. State, 232 S. W., 801 , and the other authorities cited in support of appellant's motion for rehearing. We have here no such case. The alleged injured party, while a witness, was asked how he identified appellant when he was arrested and brought back to the store on the night of the alleged robbery. The witness answered: “By his eyes”. This called for no hearsay. The witness was not reproducing a statement made by some other person in his hearing, but was expressing his own judgment or belief. Nor do we see how same was objectionable as calling for an opinion and" conclusion. It seems rather a statement of the belief or knowledge of this witness obtained as a result of the use of his own senses. Peculiarities of features are not unusual, and one who offers to testify that he identified another by his mouth or nose or chin or voice or teeth or eyes, merely states the fact upon which he bases his testimony. In a sense all testimony of identification is, in effect, but the expression of the opinion or conclusion of the witness who, — under all the authorities, — may testify that based upon scars, marks, complexion, size, features, defects, voice or other evidence of conduct by him observed, the person referred to is identified by him. Mr. Branch in sections 2482 and 2483 of his Annotated P. C. cites authorities holding that a witness may state his belief as to the identity of a given person. See also section 108, Underhill’s Criminal Ev., 3rd Ed. Whether the witness tells the truth, also the sufficiency of his testimony, are questions for the jury. The use of the expression regarding this testimony: “This evidence was not patently and obviously inadmissible per se” was probably inadvertent. We are of opinion that the testimony was competent, and are of the further opinion that other circumstances in the record strongly supported the proposition of appellant’s identity.
The motion for rehearing will be overruled.
Overruled.