Seal v. State , 28 Tex. 491 ( 1866 )

Willie J.

—There is no error in the judgment of the court below for which it should be reversed. The charge of the court was in accordance With the law of the case, as applicable to the facts in evidence. It was not the duty of the judge to give instructions to the jury, which, though correct as abstract principles of law, were not authorized by the testimony produced upon the trial. It certainly was not his duty to give such abstract charges when they were not even asked by the complaining party. There is nothing in the record from which it appears that the charges asked by appellant were refused, nor is the refusal of them assigned for error. The presumption therefore is, that they were given as asked. *

Sufficient testimony was introduced hy the State to warrant the jury in finding the defendant guilty as charged in the indictment. In some material points there was a conflict between the testimony given in by the State’s witness, and that produced on the part of the defendant. The jury had the witnesses before them, and were the best judges of their credibility. If there was a discrepancy or conflict in their testimony, it was the province of the jury to reconcile it if possible, and, if not, to give credence to that party who, in their opinion, was best entitled to it. They have chosen to disregard the statements of defendant’s witness and give credit to the evidence offered by the State; and as the judge who tried the case below, and who of course had every opportunity of seeing the manner of the witnesses at the time of giving their testimony, and of knowing all the other circumstances under which their evidence was taken, did not see proper to set aside the verdict, we see no reason: why this court should disturb it. The judgment is

Affirmed.