
    Howard Fields v. The State.
    No. 22895.
    Delivered June 14, 1944.
    Rehearing Denied (Without Written Opinion) October 18, 1944.
    
      The opinion states the case.
    
      Polk Shelton, of Austin, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction for aggravated assault with a penalty of ninety days in jail.

Appellant was charged by indictment with assault, to murder Clarence Clark. The jury found him guilty of aggravated assault and affixed the penalty. There are no exceptions to the court’s charge and only one bill of exception is found in the record. It complains of the introduction of the testimony of an unnamed witness, which was to the effect that said witness had testified against the accused in a burglary case about two years prior thereto and that the accused was convicted, since which time the accused had never spoken to the witness. There is nothing in the bill to show that it was “prejudicial and immaterial.’* It fails to negative the existence of circumstances making it valid. We have examined the statement of facts and it does not appear that it should have had any prejudicial effect before the jury in view of the penalty assessed under facts that would amply support a conviction for assault to murder. In the absence of a showing that it was not appropriate and that it was prejudicial, we would hardly be in position to presume that it was. Such testimony is rarely admissible. However, we are unable to say that it was not proper testimony in the case now before us, in view of the record as we find it.

The judgment of the trial court is affirmed.  