
    JONES v. STATE.
    (No. 6743.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.)
    1. Weapons <@=cl7(4) — Evidence held sufficient to support conviction. ,
    In a prosecution under Pen. Code 1911, art. 470, for displaying a pistol in a manner calculated to disturb the peace, evidence held sufficient to support conviction.
    2. Weapons &wkey;>l7(2) — In prosecution for displaying pistol in garage, state must prove latter was public place.
    In a prosecution under Pen. Code 1911, art. 470, for displaying a pistol in a garage, the burden was on the state to prove that such garage was a public place, as defined in article 472, no presumption that a building not named in the statute as a public place per se is such being indulged, in view of Code Cr. Proc. 1911, art. 785, as to presumption of innocence.
    Appeal from Collingsworth County Court;1 C. C. Small, Judge.
    E. E. Jones was convicted of conduct calculated to disturb the peace, and he appeals.
    Reversed and remanded.
    R. Q. Murphree and R. L. Templeton, both of Wellington, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for violation of the statute prohibiting conduct calculated to disturb the peace. Penal Code, art. 470.

The specific complaint is that in a public place, namely a building commonly resorted to by the public for business purposes, he rudely displayed a pistol.

Without stating it in detail, the evidence, while controverted, was sufficient to show that the appellant went into a garage, drew his pistol, waved it around, pointed it at a person who was present, and pulled the hammer back, stating that he was drunk, but that he did not intend to shoot any one. This evidence, we think, so far as the conduct of the appellant was concerned, will support the verdict, but we' fail to fipd in the statement of facts any testimony to the effect that the garage in which the conduct took place was a public place. In the statute, a “public place” is defined as:

“ * * * Any public road, street or alley of a town or city, or any inn, tavern, store, grocery, or workshop, or place at which people are assembled, or to which people commonly resort for the purposes of business, amusement, recreation or other lawful purpose.” P. 0. art. 42.

The building into which the appellant went is not described. There is no evidence of the use to which it is put; no proof that it was a place at which people assembled or resorted for any purpose. It was designated in the information as the Wellington Motor Company Garage. In the evidence it is described as the Wellington Garage, but, so far as the proof reveals the facts, the record is silent as to whether it was a public or private garage, or whether its character or use brought it within any of the provisions of the statute defining a public place. To designate a place called a “livery stable” as a public place, some evidence was held necessary in the case of Taylor v. State, 65 Tex. Cr. R. 469, 145 S. W. 600.

To the point that the building, not named in the statute as a public place per se, must by some evidence be shown to come within its terms; other precedents are found. Grant v. State, 33 Tex. Cr. R. 527, 27 S. W. 127; Cyc. of Law & Proc. vol. 32, p. 1249; Underhill on Crim. Evidence (2d Ed.) § 473; Bradford v. State, 147 Ala. 118, 41 South. 1024; Cyc. of Law & Proc. vol. 20, p. 892.

If the place at'which appellant displayed the pistol was a public place within the meaning of the statute, the evidence, being available to the state, should biave been introduced to prove it. The presumption that it was, in the absence of evidence, cannot be indulged against the accused. Code of Crim. Proc. art. 785; Vernon’s Texas Crim. Statutes, vol. 2, p. 675.

The judgment is reversed, and the cause remanded. 
      ®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     