The complaint and information contains two counts, one charging a violation of the pistol law, and the other with rudely displaying a pistol in a manner calculated to disturb the inhabitants residing along or upon a public road. The conviction was for rudely displaying the pistol. The State's case was made by the witness McNeal, who states that on the night previous to the transaction charged he and appellant and some others were engaged in a gambling matter; that he had won appellant's money; that appellant requested the loan of a "stake" which he had declined. On the occasion of the alleged disturbance this witness was driving one of the wagons run at the convict camp hauling gravel. While McNeal was going along the road appellant was standing in the gap of a fence which led into a pasture, and as the witness passed appellant requested the *Page 443 witness to stop, and he declined to do so because Mr. Chesher, boss of the convict gang, and in charge of it, told him to hurry. Appellant then said, "Hold on there"; the witness said he looked around and saw appellant throw his hand to his left side and draw a pistol about half way out; that he (witness) continued his journey. This witness stated he told another witness Lee of the fact that appellant had partially drawn a pistol on him, and told Mr. Chesher, the foreman, that appellant was "raising sand." Lee testified that the witness McNeal did not state to him that appellant had a pistol partially drawn. Appellant took the stand, and testified that he did not have the pistol or attempt to draw a pistol on McNeal. This is the substance of the case on both sides. We do not believe this makes out a case for rudely displaying a pistol so as to disturb the inhabitants residing along or upon a public road. As we view the facts they are not sufficient to support the conviction, and the judgment, therefore, is reversed and the cause remanded.
Reversed and remanded.