ON APPELLANT'S MOTION FOR REHEARING.
CHRISTIAN, Judge.In his motion for rehearing appellant insists that the objection set forth in his bystanders’ bill was sufficient to single out that part of the testimony of Mr. Higdon to the effect that he had arrested appellant on numerous occasions and that appellant was “nothing but a thief and hijacker.” Our re-examination of the bystanders’ bill, in the light of the motion for rehearing, leads us to the conclusion that appellant is correct in his contention. According to the bill, the witness Higdon testified as follows •: “When we drove over the little hill and our lights picked up the car that they were stripping down in the creek bed where all the car-strippers go to strip cars, one ran to the right and one to the left and the defendant here, Fred Solsona, is the one that ran to the right, I knew it was him from *310the way he ran, I knew it was him because I have arrested him numerous times for the same thing, he is nothing but a thief and a hijacker.” The bill recites that appellant objected to the testimony on the ground that it was “highly prejudicial to the defendant and invaded the province of the jury, and permitted the witness to testify as to his opinion that the defendant was a thief and a hijacker, and was calculated to and did prejudice the jury.” (Italics ours.) It is also recited in the bill that the objection was overruled and that the appellant excepted.
The language which we have italicized in the objection appears to refer to the statement by the witness that he was of the opinion appellant was nothing but a thief and a hijacker. In our opinion, such language was sufficient to apprise the trial judge that it. was appellant’s position the witness should not be permitted to testify to the effect that appellant was a thief and a hijacker. That such statement was calculated to prejudice appellant is obvious. It was tantamount to saying that appellant was a criminal generally. It is. the uniform holding of the court that an accused is to be tried upon the merits of the charge against him, and that proof of other crimes is not to be received unless such proof comes within one of the recognized exceptions. Enix v. State, 299 S. W. 430; Verner v. State, 35 S. W. (2d) 428; Minor v. State, 5 S. W. (2d) 775. The statement in question was not admissible under any of the exceptions permitting proof of extraneous crimes. The penalty assessed against appellant was far in excess of the minimum. We are therefore constrained to hold that the bystanders’ bill reflects reversible error.
The bill appears to be properly in the record and is not contested by controverting affidavits filed in the court below, as authorized by Subdivision 9, Article 2237, R. C. S. (1925) which provides as follows: “Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as part of the record relating thereto.”
The decisions of this court are to the effect that the appellate court is “bound by a bystanders’ bill which complies with *311the statute and is not contested by controverting affidavits filed in the court below, as authorized by the statute.” 4 Texas Jurisprudence, page 288; Tadlock v. State, 139 S. W. (2d) 796. It follows that we are bound by the present bill.
The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.