
    Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 27784.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1955.
    Mark Callaway, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, a fine of $100.

The indictment charges the offense to have been committed by appellant shooting a pistol at Johnnie Ed Simpson.

The state’s testimony shows that Johnnie-Ed Simpson and Robert Rice were travel-ling in an automobile along a public highway when the appellant and a companion, in an automobile drove alongside their car and the appellant in a loud tone of voice and using profane language told them to “pull over or get off the road”. Witnesses Simpson and Rice testified that they then increased the speed of their car and that appellant’s car followed, and that after going a short distance they “heard a shot fired” and later while appellant’s car was behind .them they, heard “more shots fired”.

It was shown that about two weeks prior to the date-in question appellant was seen riding in an automobile with a pistol on the seat between him and his companion.

On cross-examination, witnesses Simpson and Rice testified that they did not see a pistol in appellant’s possession or 'the possession of his companion, and further testified that from the sound of the “shots fired” they thought they were made by a pistol. They also testifiéd that they did not hear the movement of any bullets after the gun fired and, that no bullets struck either of them or their car.

Appellant did not testify, but offered testimony that he was not on said highway at the time of the commission of the offense here alleged and that he did not have a pistol on the date in question.

There is no direct evidence that" the appellant or his companion had a pistol at the time alleged or that either fired a gun toward the alleged assaulted party.

Therefore, the trial court erred in failing to respond to appellant’s exception and request that the jury be instructed on the law applicable to circumstantial evidence.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.  