On motion for rehearing appellant insists that the facts were insufficient to support a conviction.
Appellant had a difficulty with Petrosky on October 12, 1916, and at the time of this difficulty he exhibited a pistol. He claimed that the pistol was not in condition for use, and exhibited at the trial of the case a pistol which he claimed was the same that he had in his possession at the time of the difficulty, and this pistol exhibited at the trial was admittedly so out of repair as to be useless. An issue of fact was raised with reference to the identity of the pistol exhibited at the trial and that in the possession of appellant at the time of the difficulty. At the time of the difficulty he snapped the pistol a couple of times, and one of the witnesses, Frank Markel, who saw the difficulty, testified that the pistol exhibited at the trial was not the same one that appellant had in his possession at the time of the difficulty. After the difficulty appellant went to Petrosky and asked him not to prosecute him on account of the pistol. In this conversation appellant did not tell Petrosky that the pistol was broken, but told him that he had it for his protection, as he worked negroes down on his place and he kept it for his own protection; at least Petrosky so testified. We think that this evidence is sufficient to support the finding of the jury that the appellant was unlawfully carrying a pistol at the time of the difficulty.
In addition to this, there was testimony that two or three weeks before the difficulty appellant had a pistol out on the road and fired it several times. No request was made of the State to elect as to which occasion the prosecution would be founded upon, and in this state of the record the testimony last mentioned above would of itself authorize a conviction.
The motion for rehearing is overruled.
Overruled.