
    LLOYD v. STATE.
    (No. 3986.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Weapons <&wkey;17(6) — Unlawful Display — PROSECUTION — INSTRUCTIONS.
    In a prosecution for unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants, it appeared that accused went to the rear of a store and fired his pistol out of the door several times. Accused contended that he brought the pistol to the store to trade for a shotgun and fired it to exhibit its quality to the storekeeper, and there was evidence that persons frequently discharged firearms from such rear door. Meld that, in view of accused’s contention, a charge that to hold a pistol in the hand and fire it in a public place is to rudely display it was improper, as taking from the jury the question whether it was customary to discharge firearms from the rear door which led only into uninhabited woods.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 32; Dec. Dig. <g==>17(6).]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Coke Lloyd' was convicted of unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants, and he appeals.
    Reversed and remanded.
    
      R. E. Oarswell and L. D. Ratliff, both, of Decatur, for appellant O. 0. McDonald, Asst. Atty. Gen., for the State.
   HAEPER, J.

Appellant was convicted under an indictment charging him with unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants of said public place.

Mr. Mann testified: That about 9 o’clock at night he was in the store of Foster & Best, in the town of Greenwood, and that appellant came in with a pistol, or part of a pistol, in his hands, and he, appellant, and Foster walked to the rear door. He heard them talking, but did not understand what was said. That while they were at this door, appellant fired the pistol out of the door several times, and said:

“Foster, come and fix this thing. Where is your damned constable? If any one turns me in, I will put one in him.”

That witness, Glint Kingsly, appellant, and Mr. Foster were the only persons in the store. This is the state’s case, and would perhaps sustain a verdict that appellant was guilty of the offense charged.

Mr. Foster, one of the proprietors of the store, testified that appellant had been trying to trade him the pistol for a shotgun, and that night appellant went to the store of J. P. Rudd to get the pistol and bring it over to trade to him; that the pistol was made to shoot steel cartridges, and he wanted to see if it would shoot lead cartridges; that when appellant returned with the pistol they went behind the counter and got several kinds of cartridges and went to the back door of the store to try the pistol; that he and appellant both fired the pistol out of the back door; that his store was 120 feet long, and at the rear door there was nothing but woods, and the pistol was fired into the woods; that the firm of Foster & Best sold cartridges, pistols, and other firearms, and people frequently tried them by shooting out of the back door into the woods; that the town was not an incorporated town.

J. P. Rudd testified that the pistol of appellant had been in his store some three months or more; that he had it to trade for a shotgun; that on the night appellant shot it out of the back door, appellant came and got the pistol, stating he had a chance to trade it off.

Clint Kingsly, the only other person in the store, says he heard appellant and Foster talking of trading the pistol for a gun; that he saw appellant and Foster go to the back and shoot the pistol out of the back door.

This is all the testimony. At the request of the state the court instructed the jury:

“To hold a pistol in the hand and fire the same in a public place, as herein defined, is to rudely display the same, as contemplated by law.”

Appellant excepted to the giving of this special charge, insisting it was upon tlie weight to be given the testimony, and we think such exception well taken. The state relies on the case of Gozy v. State, 34 Tex. Or. R. 147, 29 S. W.' 783, as sustaining the charge. Under the peculiar facts of that case, tlie court does say that the shooting of the pistol in the air would justify a finding that it was rudely displayed. In that case Gozy had gone near a church, while services were in progress, and fired his pistol. It was a willful and wanton act, without excuse or justification, under the evidence in that case. It might be the state’s witness makes this just such another case, but the defendant’s witnesses certainly do not, and it is a question of fact, to be determined by the jury, whether or not his conduct amounted to rude ly displaying the pistol in a manner calculated to disturb the inhabitants of the public place. The court in this charge takes this issue from the jury, and instructs them, as a matter of law, that his conduct amounted to rudely displaying a pistol. Had he submitted the issue to the jury and they had so found, we might sustain the verdict as we did in the Gozy Case, supra, but it is a matter to be determined by the jury, under the evidence, in every case whether or not one is guilty of rudely displaying a pistol in a manner calculated to disturb the peace, and is not a question of law to be determined by tlie trial court. On' account of this error, it will be necessary to reverse the cause, and on another trial the court in his charge, if he gives a charge, should submit the defense’s theory; that is, if the jury should find, under the evidence, it was customary to shoot firearms out of the back door of this store, in trying them out, as testified to by Mr. Foster, and appellant and Foster were on a trade involving the pistol, and they fired it for the purpose alone of determining whether or not it would shoot leaden cartridges, and appellant at the time he fired the pistol had no intention of disturbing the inhabitants of the public place, and they were not in fact disturbed, the appellant would not be guilty of the offense charged.

The judgment is reversed, and the cause remanded. 
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