Duffell v. Noble , 14 Tex. 640 ( 1855 )

Wheeler, J.

We do not understand the Court, in its charge to have maintained, that, to constitute a valid gift, there must necessarily have been an actual, manual delivery of the property; but only that it must have been placed subject to such control and possession by the donee, as in its nature, it was susceptible of. This we understand to be the import of the charge upon that point; and so, we think, it must have been understood by the jury. In view of the whole evidence, we see no reason to apprehend that the jury were mislead by anything contained in the charge given; or to suppose the result would have been different, had the instructions, asked by the appellants, been given. Though the instructions asked may have been correct in point of law, the giving of them as asked, would have been calculated to give undue prominence to, and make the case turn upon, a few isolated facts; when in such a case, especially, it was proper, that the jury should be allowed to form their judgment upon a view of all the facts and circumstances of the case; and to judge of the real character of particular acts deposed to, by their consistency with the conclusion warranted by the whole evidence before them. After having given the law in charge to the jury, as applicable generally to the evidence, we think the Court might refuse to charge in reference to particular parts of the evidence in detail. We see no reason to apprehend that the jury were unapprised of the legal principles embraced in the instructions asked; or that they did not give to them sufficient consideration in making up their verdict.

The deposition of the witness, Bruce, in answer to the fifth interrogatory, was, perhaps, liable to criticism and objection, as being too broad and general in its statements; but the objection to the interrogatory seems rather critical than sound. The deposition, however, was objectionable in the form and manner of deposing to the facts; and we are not prepared to say that there was error in excluding it. Had a new trial been awarded, we see no cause to suppose that it would have been attended with a different result; and upon the whole we are of opinion that the Court did not err in refusing a new trial, and that the judgment be affirmed.

Judgment affirmed.