Article 1024a of our Penal Code provides, among other things, that if any person shall willfully commit an assault upon another with a pistol while the same is being carried unlawfully, he shall be deemed guilty of an assault with a prohibited weapon and may be punished by a fine not to exceed ⅞2,000, or by imprisonment in the county jail not to exceed two years, or by confinement in the penitentiary for not more than five years.
Appellant was indicted under said article for an assault with a pistol-upon John Woodward, and upon conviction his punishment was assessed at confinement in the penitentiary for two years.
The prosecuting witness testified that he heard a disturbance among his chickens about 2 o’clock in the morning and went to investigate the cause. Just as he approached his chicken house, one party ran out with a chicken in each hand and jumped over the fence. Witness commanded him to drop the chickens, and about this time appellant appeared from the chicken house with a sack full of chickens. He presented a pistol at witness, delivered his" sack of chickens to the party who had jumped over the fence, and then with the pistol appellant compelled witness to hack some distance toward his residence, when appellant took his departure.
No exceptions were presented to the charge of the court, and no special charges requested, and only two hills of exception appear in the record. These may be considered together, as they both complain of the action of the court in the admission of certain testimony. Two officers testified that they went to the home of appellant, and near his residence and on his premises they recovered certain chickens; that they also went to the house of one Mrs. Dittlinger, where they also took several chickens and carried all of them to the home of one of the officers, where prosecuting witness later identified one chicken that was taken from appellant’s premises as one stolen from him on the night of the assault and so testified at the trial. The objection made to this testimony as shown by the qualification to the bill was that the transaction testified to by the officers was not in the presence and hearing of appellant. It further appears from the qualification to the bills that the prosecuting witness in his direct examination identified appellant as one of the parties engaged in the theft of the chickens and as the party who made the assault, but that upon cross-examination his testimony with reference to the identity was questioned and shaken to some extent. The fact that one of the chickens stolen at the time, of the assault was later found upon the premises of appellant xwas clearly admissible. It does' not appear from the record whaij connection, if any, the chickens found by the officers at Mrs. Ditt-linger’s had with the transaction under in-, vestigation. The party with appellant at the time of the transaction was never identified or apprehended so far as the record shows. While the state did not show any connection of appellant with the Dittlinger chickens, yet *171we have not been able to determine in what way the evidence of the officers with reference to talcing some chickens from her premises could have affected appellant. We cannot regard this evidence as so palpably injurious as to call for a reversal.
Th'e facts support the verdict, and the j judgment will be affirmed.