Swinney, Green & Co. v. Booth

Citations

• 28 Tex. 113

Syllabus

<p>On the trial of an issue of the right of property, the plaintiifs in execution asked the court to instruct the jury that the claimant must sustain her title to the property “by abundant proof.” The court had already, of its own motion, charged the jury that the burden of proof was on the claimant, and that it was incumbent on her to establish the facts on which she relied to sustain her claim. Held, that the court was under no obligation to reiterate the law in this particular, even if the plaintiffs’ proposed instruction had been entirely unexceptionable; that the charge asked, however, was objectionable, as calculated rather to mislead the jury than to conduct them to a correct conclusion; and that there was no error in declining to give the instruction so asked.</p> <p>A witness testifying by deposition that the property in controversy had been acquired by the claimant from her father’s estate, added the remark, “this is my impression.” Held, that the qualifying remark was tantamount to a statement by the witness that he only testified to the best of his recollection, and however the implied uncertainty might impair the weight of the evidence, it could furnish no reason for its exclusion.</p> <p>The proof in this case, as disclosed in the record, appeared to be vague and indefinite, and this court hesitates to pronounce it sufficient to warrant the verdict in favor of the claimant; but, as it cannot be said to be without evidence, or that it was clearly contrary to the evidence, and as it was satisfactory to the judge before whom the cause was tried, the judgment will not be reversed.</p>