Gray v. Burk

• Decision Date: 01 January 1857
• Citation: 19 Tex. 228
• Parties: ALEXANDER GRAY v. CASWELL BURK.
• Court: Texas Supreme Court

19 Tex. 228

ALEXANDER GRAY

v.CASWELL BURK.

Supreme Court of Texas.

1857.

Where the court has sufficiently instructed the jury upon the law of the case, it is proper to refuse instructions applicable to isolated facts, or parts of the evidence, which, though correct in point of law, would have the effect to give the matters to which they relate an undue prominence in the minds of the jury.

See this case as to charging the jury upon the weight of evidence.

Where the matter in controversy was the ownership and identity of a three-year-old steer, which the defendant claimed he had purchased from a person who was proved to reside in the county, the plaintiff's counsel, in his closing argument to the jury, was commenting on the fact that the defendant had failed to call his vendor as a witness, and arguing that it was a powerful fact against him, when he was interrupted by the counsel for the defendant, who requested the court to prevent such argument; but the court refused, and defendant excepted. Held, there was no error, as the unexplained omission by the defendant, to call his vendor to identify the steer, was undoubtedly a circumstance which admitted of an inference unfavorable to him.

Appeal from Cherokee. Tried below before the Hon. John H. Reagan.

Suit by appellee against appellant, in a justice's court, for detaining a red steer, marked split in each ear, three years old, of the value of fifteen dollars. Judgment for defendant, July 5, 1856, on the verdict of a jury. There had been two previous trials, in which the jury failed to agree. Certiorari by plaintiff.

The steer in controversy was of a pale red color, with white on its back, flanks and belly; was a yearling in the spring of 1854; and was marked with a slit in each ear and an underhack in the left ear; there was also a small notch, about half as large as witness' finger nail, which was a large one, in the right ear.

The plaintiff had sold a white cow to one of the witnesses who lived at or near a place known as the Guin place, where witness' cattle ranged; in 1853 witness let plaintiff have the cow back, and he drove her home; she returned to the Guin place, and with her was a pale red steer. This was in the early part of the year 1854. The plaintiff's witnesses testified that this steer belonged to plaintiff; that, at that time, it was marked with a slit in each ear, which was plaintiff's mark, and that it was the same steer now in controversy; none of the witnesses could say positively that there was not, at that time, an underhack in the left ear; one witness, who had not noticed it at first, did so afterwards, while in same range, but it was not stated how long afterwards, and another witness, whose testimony the defendant endeavored to impeach by proof of inconsistent statements out of court, testified that the dogs had torn the ears of the plaintiff's steer, and that he had cut them out to make them heal better, one deeper than the other.

The defendant's witnesses testified that defendant purchased the steer in controversy from Dr. Privitt, in December, 1853, with its mother; that it ran in defendant's field for a couple of months, and was turned out, and left about grass rising in the spring of 1854; and defendant saw nothing more of it until January, 1856, when he found it, and drove it home and put it in the field. Hearing soon afterwards that plaintiff was hunting a red steer, he told him to look at the one in his field, and plaintiff did so, and claimed the steer. Dr. Privitt's mark was a slit in each ear and an underhack in the left ear; and the testimony was, that the steer was marked when defendant bought it. There was some testimony, also, that plaintiff said, if the steer had any white on it, it was not his. One of the defendant's witnesses was his daughter, and another his son-in-law. The defendant was called as a witness by plaintiff, and testified without objection. He stated his belief that the steer was his. He was asked whether Dr. Privitt did not reside in the county, and he replied that he did.

The statement of facts showed that the charge of the court was not inapplicable to the case, in its reference to the manner of the witnesses and course of the testimony.

The court charged the jury, without request, as follows: You are to determine from the testimony before you, whether the steer in controversy belongs to the plaintiff or to the defendant. If there are conflicts in the testimony, it is your province and duty to reconcile them in view of all the facts of the case; and in order to do this correctly, you should consider the means of information possessed by each witness, and whether his testimony was fairly and impartially detailed to you; to do which you should have reference to the manner of the witnesses, whether they testified too freely for the one party, or unwillingly for the other; whether the manner of the witnesses manifested passion and bias for one or the...