
    Art Hobbs v. State.
    No. 24676.
    March 8, 1950.
    
      
      Allen, Locke & Kouri, Wichita Falls, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   BEAUCHAMP, Judge.

Two complaints were filed against appellant, each of which contains two counts. In Cause No. 30,871, J. L. Coleman signed a complaint charging that appellant made an assault on him by shooting at him with a pistol. The second count in the same complaint alleges that appellant rudely displayed a deadly weapon, to-wit: a pistol in a public place.

In Cause No. 30,876 it is alleged that appellant made an assault on J. D. Chandler by shooting at him with a pistol. A second count charges him with rudely displaying a weapon in the same language.

When the cases were called for trial appellant asked that the two cases be consolidated and tried together. A jury was empaneled and, at the close of the evidence, the court instructed the jury, submitting to them both counts in each of the two complaints. The jury returned its verdict in which they assessed the maximum penalty of $25.00 fine on each of the two assault charges and $50.00 on each of the two charges under the second counts of the complaints. We think that each of the two complaints correctly charged an assault and that each is sustained by the evidence of the case.

The second count in each complaint charges that the pistol was rudely displayed in and near Lake Wichita Pavillion. This is not a public place per se and the state offered no evidence to show that the public resorted to such place. In fact, no evidence was offered whatsoever as to the nature of the place and it is not made clear as to any fact supporting such allegation. Consequently, the conviction on the two counts of rudely displaying a pistol at a public place is not sustained by the evidence.

Accordingly, the judgment of the trial court is affirmed as to the two counts assessing a fine of $25.00 each, for assault, and is reversed as to the two counts charging that he rudely displayed a pistol in a public place.  