Able v. Lee (6 Tex. 427, 1851)

Wheeler, J.

It is objected that the court attached to the first instruction aslced by the defendant a qualification.

Tiie proposition embraced in this instruction had been distinctly given by tiie court in tiie first branch of tiie general charge. The court, however, gave it as asked, but added the qualification embraced in the general charge; that is, tiie judge in effect said to tiie jury tiie instruction asked is true, and you are so to receive it, hut you are to consider .it in connection with tiie charge previously given you oil this subject. In this there was no error. It was in accordance witli every day’s practice. It is true that it is tiie duty of the court to respond directly to the questions of law propounded by tiie parties, and so the court did in this instance. Tiie judge gave the instruction as asked. It surely requires no argument to show that he liad the right to give such other instructions as might be proper to qualify or explain those given and to present tiie law of tiie case clearly and truly to the apprehension of tiie jury. Undoubtedly the counsel for the defendant had the right to have their proposition laid before tiie jury; but they had not tiie right t,o restrict the instructions of the court to that proposition, nor can they object that the court gave it with such qualifications and further instructions as were necessary to prevent the jury from being misled by tiie terms and form of the proposition. Otherwise it. would be in tiie power of counsel constantly to mislead by placing before tiie jury propositions which, though true in tiie abstract, may iiave but a partial application to the case, and, unaccompanied by snub qualifications or explanations as might he necessary to their proper application to the facts, would be calculated to give the minds of the jury a wrong bias and direction.

The remaining instruction asked by the defendant had also been given in substance in tiie general charge, and in a form quite as favorable to the defend-as under the evidence lie had a right to ask. And when it was repeated, in such terms as implied that there was evidence before the jury from which they might find that certain “amounts” had been paid “in cash or property,” tiie court did not err in refusing the instruction. There was no evidence of tiie payment of any particular “amounts,” either in cash or property. The de-fondant having pleaded payment, the burden of proof rested with him to establish the truth of his plea by evidence of payment. lie had no right to ¡i