Swinney, Green & Co. v. Booth , 28 Tex. 113 ( 1866 )

Moore, C. J.

—The charge given by the court correctly announced the legal principles applicable to the issues involved in the case. The jury were instructed that the burden of proof was upon the, claimant, and that it was incumbent upon her to establish the facts upon which she relied to sustain her claim to the property in controversy. There was no reason for reiterating the law in this particular by the charge asked by the plaintiffs in execution, even if the language in which their proposed instruction was couched had been altogether unexceptionable. - This, however, was not the case. It is asked by it, that the jury shall be directed that the claimant must sustain her title to the property in suit, not by reasonable or satisfactory evidence, but by “abundant proof.” Such an instruction would probably have misled the jury, rather than have guided them in arriving at a correct conclusion in making up their verdict.

The objection that the witness Edwards was improperly permitted, to testify as to his “impression” about a matter of fact, which could have been proved by recorded evidence, cannot be sustained. The title of the claimant may not have been of record; at least the brief and imperfect history imbodied in "the • transcript before us, of the proceedings in the case, does not indicate, with sufficient certainty, that her title or right to the property in dispute depends upon or grows out of a matter of record, or is evidenced by an instrument in writing, to require a reversal of the judgment. Hor should the evidence have been rejected, because .the witness qualified the certainty and conclusiveness of his reply to the question asked by adding, he had stated the facts, as to which he was interrogated, in conformity with his impression. He was testifying about a matter which had transpired sometime previous. His answer is, in substance, the same as if he had said, “ this is my recollection of the matter;” “I have answered to the best of my recollection, though I am not absolutely certain.” These are expressions frequently used by cautious and truthful witnesses, which, though they may detract from the weight of their evidence, certainly furnish no sufficient reason for its entire exclusion. The testimony on behalf of the claimant is quite vague and indefinite, and. we have had some hesitancy in holding it sufficient to sustain the verdict; but, as we cannot say that the finding of the jury was without or clearly contrary to the evidence, and it was satisfactory to the judge before whom the case was tried, it is not believed the judgment should be reversed solely on this ground.

There is no error in the judgment, and it is therefore

Affirmed.