Jernigan v. Wainer , 12 Tex. 189 ( 1854 )

Wheeler, J.

The principal question in the case is whether there was evidence sufficient to warrant the verdict, as to the defendant Jernigan. That a gross and flagrant fraud and outrage was practiced upon the plaintiff, there can be no question. That there was a combination and conspiracy to cheat, defraud and deprive him of his property is placed by the evidence beyond a doubt. The defendant Root was a principal conspirator. Albright must have been a participant; and the evidence leaves little room to doubt that the appellant was also a participant, and as deeply implicated in the fraud as either of his confederates.

Frauds, of the character of that disclosed by the record, can seldom be proved by direct and positive evidence. When men enter into conspiracies, they are not likely to call in a witness. They resolve their schemes clandestinely and in secret. Their purpose is imposition and deception ; and secrecy is necessary to its accomplishment. In such cases the injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses. Independently of the deposition of the witness Beaty, the evidence, we think, was sufficient to warrant the jury in the belief that the appellant was a participant in the fraud practiced upon the plaintiff, and interested in the profits which it was proposed to derive from it; and if the witness Beaty was entitled to credit, it is scarcely possible to resist the conviction, that the appellant was not only an active participant, but the principal instrument in the deception and wrong practiced upon the plaintiff. In the attempt to impeach his testimony, two witnesses testified ; one as to his character for honesty, and one as to his character for veracity, and that it was bad. Without inquiring into the sufficiency of this evidence effectually to impeach the character of the witness for truth and veracity, it will suffice to remark, that, one of these witnesses was the brother of the defendant, and that his was the only testimony in the case which was irreconcilable with that of the witness impeached, and that only as to some minor particulars ; and that the witness’s statements were corroborated in the main, by the other evidence in the case. There was no discrepancy or inconsistency in his statements ; and they were not improbable in view of the facts disclosed by the other witnesses. Under the circumstances, it was, we think, proper for the jury to weigh his statements, and decide upon the truth of the facts to which he deposed; and we see no cause to be dissatisfied with their verdict.

We do not think the evidence showed such a subsequent dealing with the subject matter of the contract; or such voluntary acquiescence by the plaintiff in the fraud practiced upon him, as, under the circumstances of the case, to preclude his right of action.

We deem it unnecessary to review the evidence. The questions submitted to the jury were questions of fact, of a character peculiarly within their province to decide. The law applicable to the facts in evidence was given them in a clear and succinct charge by the Court, quite as favorable to the defendants as they had the right to ask. And we see no reason to apprehend that injustice was done them by the verdict.

The application for a new trial was to obtain the testimony of Albright, by" whose active agency the fraud was consummated. The evidence leaves no doubt that he was partioeps eriminis in the fraud ; a confederate, equally implicated with the other defendants; and equally liable to be held pecuniarily responsible for its consequences. His testimony, if obtained,' would have tended directly either to inculpate or exculpate himself; either to charge or discharge him from civil responsibility to the plaintiff. He, therefore, if competent to testify was not worthy to be believed. And there manifestly was no error in refusing to grant a new trial for the purpose of enabling the defendants to obtain his testimony.

The judgment is affirmed.

Judgment affirmed.