Freiberg, Klein & Co. v. Lowe , 1884 Tex. LEXIS 120 ( 1884 )

Willie, Chief Justice. —

-There is no statement of facts in the record, and the errors assigned relate wholly to the charge of the court.

We have frequently held that a charge not glaringly erroneous under any state of facts that could arise under the pleadings will not be revised without a statement of facts. See T. & P. R. R. Co. v. McAllister, 59 Tex., 349, and authorities there cited.

The present charge, so far from being clearly erroneous, would be entirely appropriate under a state of facts admissible to proof under the issues in the case made by the parties.

As to the point made, that the record does not show affirmatively that the jury were sworn, it was not saved by bill of exceptions or assigned as error, and it was held to be no ground for reversal in a civil cause in Clark v. Davis, 7 Tex., 556, however much so it might be in a criminal action. There the point was made in the assignment of errors; hero it is relied on as a fundamental error. It is not well taken, and the judgment is affirmed.

Affirmed.

[Opinion delivered April 25, 1884.]