
    WARD v. STATE.
    (No. 3137.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Weapons (§ 14*) — Unlawful Display — “Prí-vate Residence.”
    Where, in a prosecution for rudely display-ting a deadly weapon in a manner calculated to disturb the inhabitants of a private residence, it appeared that the tenant who had occupied the residence had loaded all his household articles preparatory to moving off the premises, but had not left the premises when trouble arose, and defendant displayed his rifle in such a way as to frighten the tenant’s wife and children, the place was properly found to have been the “private residence” of the tenant at the time of the offense.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 19; Dec. Dig. § 14.
    
    For other definitions, see Words and Phrases, vol. 6, p. 5578.]
    Appeal from Montague County Court; Levi Walker, Judge.
    Lee Ward was convicted of rudely displaying a deadly weapon in a manner calculated to disturb the inhabitants of a private residence, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under an indictment charging him with going into and near a private residence and rudely displaying a deadly weapon — a gun — in a manner calculated to disturb the inhabitants of said private residence.

R. N. McCabe was a tenant of appellant. On the 29th of last December McCabe loaded up his household goods preparatory to moving off the premises of appellant, and, after he had loaded up all his household goods, and his wife and children had gotten in the wagon appellant drove up and said to McCabe, “You have taken my double shovel off, and I want you to bring it back,” when McCabe admitted he had taken it off, but claimed it was his, and said, “I turn the place over to you.” While McCabe was attempting to drive his cow out, McNabb, who was assisting McCabe in moving, and appellant had some words, and appellant got his Winchester out of his wagon, and Mrs. McCabe testifies:

“He [appellant] held his gun in front of him in both hands [indicating and showing how the gun was held], and she and her children became frightened and jumped from off the wagon and ran.”

Appellant objected to Mrs. McCabe being permitted to testify that she became frightened and ran, on many grounds, but none of them we think are tenable. He was being prosecuted for going near to a private residence and disturbing the inhabitants, and, if his acts and conduct were such as to frighten the wife, she would undoubtedly be permitted to so testify. It is true that whether his acts and conduct on the occasion were such as to disturb the inhabitants would be a question for the jury; but, if a witness was frightened by his conduct, it is a fact she would be,permitted to testify to. However, the court withdrew this testimony from the jury, and instructed them not to consider it.

The only other question presented by the record is that, at the time appellant displayed the Winchester, the house was not the private residence of McCabe, but that be had surrendered possession to appellant. This was raised by excepting to the charge of the court, which instructed the jury:

“You are further charged that as to whether the house in question was or was not the private residence .of R. N. McCabe and family at the time of the disturbance, if any, is a question of fact to be proven like any other fact, and, if you have a reasonable doubt as to whether it was the private residence of said McCabe, you will acquit the defendant.”

Appellant desired the court to find as a fact that the place was not the residence of McCabe at the time, and instruct the jury to acquit. We think, within contemplation of the statute, this house was the private residence of McCabe at the time, and the jury did not err in so finding, and the court submitted the matter as favorably as appellant had a right to expect under the evidence by instructing the jury it was a question of fact upon which they must pass. It is true Mc-Cabe had loaded all his household articles preparatory to moving off the premises; but he had not got off the premises before the trouble arose, and before appellant displayed his rifle in a way to frighten McCabe’s wife and children.

The judgment is affirmed.  