Woodmen of the World v. Holmes , 1921 Tex. App. LEXIS 511 ( 1921 )

LEVY, J.

(after stating the facts as above).

[1] There was sufficient conflicting evidence to make an issue for decision by the jury of suicide, and the court did not err in refusing to peremptorily instruct a verdict for the defendant. And in view of the evidence of the attending physician the court did not legally err in refusing, as within his province, to set aside the verdict as contrary to the evidence. We conclude that assignments of error Nos. 1, 2, and 3 should be overruled.

[2] The court did not err in the charge respecting the burden of proof. It is incumbent on the party making the plea of suicide to prove it. The court’s charge merely required, and not further—

“the defendant to show by a preponderance of the evidence that the deceased came to his death by his own hand or act.”

The assignment is overruled.

[3] Error is predicated upon the ruling of the court in refusing to continue or pass the case for trial before a drawn jury, and in trial of the case before a jury summoned by the sheriff. The plaintiff demanded a jury, and paid the jury fee at a time after the regular jury had been excused for the term. There does not appear any injury to the defendant by the mere fact, as here, of trial under the circumstances before a jury not previously drawn for the term. Any improper selection of the jury is not complained of, nor is it claimed that any improper juror was forced upon the defendant. The assignment does not warrant a reversal, we think, because no material right was interfered with nor any injury caused.

Judgment affirmed.

<&xoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes