Bagly v. Birmingham

23 Tex. 452 | Tex. | 1859

Wheeler, C. J.

An erroneous proposition or statement, in the charge of the court, which is corrected in another part of the charge, so as to prevent the jury from being misled thereby, is not a ground for reversing the judgment. (Mercer v. Hall, 2 Texas Rep. 284.) Such is the case with the error here complained of. In the next sentence, the court said to the jury, “ You will consider the whole evidence, and if by it you are fully satisfied that John A. Bagly admitted the plaintiff to be the owner of the slave in controversy, in this suit, and that he made such admission because the fact was so, you will find for the plaintiff.” This was all the plaintiff could ask. It was so plainly applicable to the evidence, that the jury could not mistake its meaning. It shows plainly that the court did not intend to convey the meaning which the language of the preceding sentence literally imports; and the jury could not so have understood the court upon the whole charge. Considered altogether, we are of opinion that the charge was not calculated to mislead, and that it was not unfavorable to the plaintiff.

The statements or admissions of the husband of the plaintiff, cannot, we think, be considered as entitled to much weight, as evidence of title in the plaintiff, when it is shown, that he had a motive and purpose for making these statements, irrespective of, or even contrary to what might be the fact. Under the circumstances, they can scarcely be supposed to amount to any evidence that the title was as represented by him. In Bradshaw v. Mayfield, 18 Texas Rep. 26, it was said, that “verbal sales and gifts, between husband and wife, ought not to be admitted, unless on clear and satisfactory proof that the property was divested out of the vendor or donor, and vested in the vendee or donee.” It is unnecessary, in this case, to decide whether the evidence was sufficient to warrant a verdict for the plaintiff. It clearly was not such as to require the jury to find in her favor. The question of fact was fairly left to their decision, and we see no cause to be dissatisfied with the verdict.

We are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.