Walker, P. J.
The first ground of objection to the testimony of witnesses as to the plaintiff’s declarations is that the defendant had filed no plea alleging abandonment by the plaintiff. This ground of objection is not well taken. This action, being in form an action of trespass to try title, it admitted, under the plea of “not guilty,” evidence of such facts as may show that the plaintiff has no right to recover. The plaintiffs in their petition set out the right or title under which Mrs. Burcham claims, viz., her right to the premises in virtue of her homestead rights in the same, which sh'e alleges she still claims, and has never at any time since her occupation and designation of said tract of land, nor at any time, abandoned nor relinquished her claims or right to said land as her homestead.
The case which the plaintiff presents by her petition is that she was, at the date of the institution of the suit, entitled to recover by virtue of her homestead rights in the premises; she sets out distinctly the right and title under which she claims, as has been "above stated. Mo other plea than that of “ not guilty ” was required to admit evidence which disputed and controverted the title and claim thus set up by her. Punderson v. Love, 3 Tex., 60; Blair v. Cisneros, 10 Tex., 34; Rivers v. Foote, 11 Tex., 662; Dalby v. Booth, 16 Tex., 563; Mann v. Falcon, 25 Tex., 271.
The cases to which we have been cited by the appellant’s brief do not conflict, we think, with the view taken by us. Such evidence is strictly in rebuttal of the allegations made by the plaintiff’s petition.
The other grounds of objection are equally untenable; to render such evidence admissible it was not essential that the defendant should have known of its existence when he purchased, and that he should have been influenced by and relied on it as assertions on the part of Mrs. Burcham, disclaiming further claim to her homestead, so as to estop her from now setting up a claim thereto as against the conveyance to him. The material issue was of a character that essentially involved the inquiry as to Mrs. Burcham’s intentions in respect to returning again to her home in Texas at [340]*340the time she left, and during the subsequent period of her continuing absence. Her expressions from time to time going to show the state of her mind respecting a disposition to remaining temporarily or permanently; admissions or statements indicating a reason or motive for a departure from her home, and which would tend to explain whether her contemplated absence was intended by her to be permanent or otherwise, whilst they do not constitute of themselves the act of abandonment, nor are they conclusive evidence of such intention, nor that such intention, if existing at the time of making such declarations, continued after-wards to remain the same, nevertheless they are facts and circumstances, which, together with all the other evidence, may properly be adduced and considered in determining the true motives which influenced her departure, and from which may be interpreted and construed the actual intentions of Mrs. Burcham in respect to her domicile during a long protracted absence from her former residence and home. •
The remaining ground of objection, of remoteness of the period when most of the declarations were made, when considered in relation to the nature of the facts sought to be established by the evidence, must be regarded as insufficient to exclude it. The continuity, consistency and persistency in making similar expressions on the same subject during a period of consecutive years would afford a proper basis for judgment and discrimination, on the part of the jury, in determining the weight to be given to exclamations of dissatisfaction with the country, made just before leaving it. It would be proper evidence whereby to distinguish, at their just value, between expressions which might otherwise be deemed ill considered, hasty sallies of petulant humor, arising from irritation produced by care and anxiety, and a sedate and fixed dissatisfaction which may at last have culmination in a stern resolution to pursue a given course with a mind fully made up as to the future. We conclude that the evidence was properly admitted, over the objections which were made to its introduction.
The third assignment of errors is, that the court erred in [341]*341instructing the jury that “ citizens resident in another state cannot claim homestead rights in this state; and if the pleadings show the plaintiffs are domiciliated [citizens] of Missouri, and the evidence is that plaintiffs have come to Texas only to attend to this suit, they have no rights in this court/’ because the same is not applicable to the evidence.
The fourth assignment is that the court erred in instructing the jury.11 that in this case, if the jury believe from the evidence that the plaintiff was nota citizen of Missouri by actual domicile, but was only remaining in the state until she could come to Texas, and that she was not domiciled in Missouri, then she cannot assert her claim to homestead rights as alleged in this case,” because the same is not applicable to the evidence and was therefore calculated to mislead the jury. The verbiage of the first recited instruction appears to be subject to some criticism; the idea, however, which is prominently developed in it, presented properly the law on the question. It would have been more accurate for the court to have wholly pretermitted the reference which is made to the pleadings, unless it bad in that connection-^ stated what they contained, and to have explained the purport and effect thereof, and to have submitted plainly the legal proposition that a citizen of another state cannot claim a homestead nor homestead rights in this state, and that the jury would, from all the evidence before them, determine whether the plaintiffs, at the date of the institution of their suit, were or were not domiciliated in the state of Missouri, as resident citizens of that state. The jury have nothing to do with the pleadings as such. Bradshaw v. Mayfield, 24 Tex., 482.
The reference made in the charge to the plaintiffs coming to Texas merely to attend to this suit is rather an antithetical statement—a supposed fact, which is propounded as the converse of citizenship in Texas, and defining it to be citizenship in Missouri, rather than a charge upon the weight of evidence; nevertheless, that form of propounding the legal proposition is objectionable, as savoring at least Of emphasizing certain parts of the evidence, if not as charging [342]*342on the weight of the evidence. The plaintiffs’ petition alleges that they are residents of the state of Missouri, and the evidence left it a disputable fact whether Mrs. Burcham was simply eommorant in Missouri, or whether the facts relating to her residence or inhabitancy there at that time, and previous thereto, were not characteristic of actual domiciliation as a citizen of Missouri. A charge presenting somewhat more clearly the legal proposition which was evidently aimed tó be presented by the court would not have been incorrect in law, and would have been applicable to the evidence; and we do not suppose that the want of exact precision'in the terms of this charge caused any misapprehension by or misled the jury.
The other charge, above quoted, cannot be objected to by the plaintiffs; itnvas given upon the same legal proposition as that above discussed, and is but the converse of it, to the effect that if the plaintiff, Mrs.
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Walker, P. J.
The first ground of objection to the testimony of witnesses as to the plaintiff’s declarations is that the defendant had filed no plea alleging abandonment by the plaintiff. This ground of objection is not well taken. This action, being in form an action of trespass to try title, it admitted, under the plea of “not guilty,” evidence of such facts as may show that the plaintiff has no right to recover. The plaintiffs in their petition set out the right or title under which Mrs. Burcham claims, viz., her right to the premises in virtue of her homestead rights in the same, which sh'e alleges she still claims, and has never at any time since her occupation and designation of said tract of land, nor at any time, abandoned nor relinquished her claims or right to said land as her homestead.
The case which the plaintiff presents by her petition is that she was, at the date of the institution of the suit, entitled to recover by virtue of her homestead rights in the premises; she sets out distinctly the right and title under which she claims, as has been "above stated. Mo other plea than that of “ not guilty ” was required to admit evidence which disputed and controverted the title and claim thus set up by her. Punderson v. Love, 3 Tex., 60; Blair v. Cisneros, 10 Tex., 34; Rivers v. Foote, 11 Tex., 662; Dalby v. Booth, 16 Tex., 563; Mann v. Falcon, 25 Tex., 271.
The cases to which we have been cited by the appellant’s brief do not conflict, we think, with the view taken by us. Such evidence is strictly in rebuttal of the allegations made by the plaintiff’s petition.
The other grounds of objection are equally untenable; to render such evidence admissible it was not essential that the defendant should have known of its existence when he purchased, and that he should have been influenced by and relied on it as assertions on the part of Mrs. Burcham, disclaiming further claim to her homestead, so as to estop her from now setting up a claim thereto as against the conveyance to him. The material issue was of a character that essentially involved the inquiry as to Mrs. Burcham’s intentions in respect to returning again to her home in Texas at [340]*340the time she left, and during the subsequent period of her continuing absence. Her expressions from time to time going to show the state of her mind respecting a disposition to remaining temporarily or permanently; admissions or statements indicating a reason or motive for a departure from her home, and which would tend to explain whether her contemplated absence was intended by her to be permanent or otherwise, whilst they do not constitute of themselves the act of abandonment, nor are they conclusive evidence of such intention, nor that such intention, if existing at the time of making such declarations, continued after-wards to remain the same, nevertheless they are facts and circumstances, which, together with all the other evidence, may properly be adduced and considered in determining the true motives which influenced her departure, and from which may be interpreted and construed the actual intentions of Mrs. Burcham in respect to her domicile during a long protracted absence from her former residence and home. •
The remaining ground of objection, of remoteness of the period when most of the declarations were made, when considered in relation to the nature of the facts sought to be established by the evidence, must be regarded as insufficient to exclude it. The continuity, consistency and persistency in making similar expressions on the same subject during a period of consecutive years would afford a proper basis for judgment and discrimination, on the part of the jury, in determining the weight to be given to exclamations of dissatisfaction with the country, made just before leaving it. It would be proper evidence whereby to distinguish, at their just value, between expressions which might otherwise be deemed ill considered, hasty sallies of petulant humor, arising from irritation produced by care and anxiety, and a sedate and fixed dissatisfaction which may at last have culmination in a stern resolution to pursue a given course with a mind fully made up as to the future. We conclude that the evidence was properly admitted, over the objections which were made to its introduction.
The third assignment of errors is, that the court erred in [341]*341instructing the jury that “ citizens resident in another state cannot claim homestead rights in this state; and if the pleadings show the plaintiffs are domiciliated [citizens] of Missouri, and the evidence is that plaintiffs have come to Texas only to attend to this suit, they have no rights in this court/’ because the same is not applicable to the evidence.
The fourth assignment is that the court erred in instructing the jury.11 that in this case, if the jury believe from the evidence that the plaintiff was nota citizen of Missouri by actual domicile, but was only remaining in the state until she could come to Texas, and that she was not domiciled in Missouri, then she cannot assert her claim to homestead rights as alleged in this case,” because the same is not applicable to the evidence and was therefore calculated to mislead the jury. The verbiage of the first recited instruction appears to be subject to some criticism; the idea, however, which is prominently developed in it, presented properly the law on the question. It would have been more accurate for the court to have wholly pretermitted the reference which is made to the pleadings, unless it bad in that connection-^ stated what they contained, and to have explained the purport and effect thereof, and to have submitted plainly the legal proposition that a citizen of another state cannot claim a homestead nor homestead rights in this state, and that the jury would, from all the evidence before them, determine whether the plaintiffs, at the date of the institution of their suit, were or were not domiciliated in the state of Missouri, as resident citizens of that state. The jury have nothing to do with the pleadings as such. Bradshaw v. Mayfield, 24 Tex., 482.
The reference made in the charge to the plaintiffs coming to Texas merely to attend to this suit is rather an antithetical statement—a supposed fact, which is propounded as the converse of citizenship in Texas, and defining it to be citizenship in Missouri, rather than a charge upon the weight of evidence; nevertheless, that form of propounding the legal proposition is objectionable, as savoring at least Of emphasizing certain parts of the evidence, if not as charging [342]*342on the weight of the evidence. The plaintiffs’ petition alleges that they are residents of the state of Missouri, and the evidence left it a disputable fact whether Mrs. Burcham was simply eommorant in Missouri, or whether the facts relating to her residence or inhabitancy there at that time, and previous thereto, were not characteristic of actual domiciliation as a citizen of Missouri. A charge presenting somewhat more clearly the legal proposition which was evidently aimed tó be presented by the court would not have been incorrect in law, and would have been applicable to the evidence; and we do not suppose that the want of exact precision'in the terms of this charge caused any misapprehension by or misled the jury.
The other charge, above quoted, cannot be objected to by the plaintiffs; itnvas given upon the same legal proposition as that above discussed, and is but the converse of it, to the effect that if the plaintiff, Mrs. Burcham, was then not a citizen of Missouri by actual domicile, etc., that she could assert Ber homestead rights, as alleged in her petition. The charge was more favorable to her in connection with the subject of residence and citizenship, as applied to the issue in the case, than she had a right to ask; for it makes her right to'sue here for her homestead rights depend too much on whether the jury believed her to be a citizen of the state of Missouri; whereas, if she "was not a citizen of Texas, that fact was quite sufficient to defeat her right to recovera homestead right in this state, even though she may have acquired no permanent domiciliation or citizenship in the state of Missouri or elsewhere, provided she had definitely abandoned her residence and homestead in Texas. If she had ceased to be, and was not then, a citizen of Texas, she did not answer to the class of persons for whom the laws of Texas provide the benefits of homestead privileges, estates and exemptions. Jordan v. Goodman, 19 Tex., 275; Trawick v. Harris, 8 Tex., 312.
The sixth assignment of errors, objecting^ to the sixth charge because it is contrary to the law and the evidence, arid was, therefore, calculated to mislead the jury, is vague [343]*343and general. The main proposition in it, that actual abandonment of a homestead and taking up a domicile in another state is the same in effect as acquiring a new homestead in it, is abstractly correct; it is, however, subject to this criticism, that the proposition is unnecessarily prefáced with this "statement, viz.: “ it matters not what may be the secret intent of a person abandoning her homestead, if it is actually done,” which was calculated to confuse and even to mislead. It would have been unexceptionable in a charge on those points if the court had carefully defined the elements which constituted an actual abandonment, as to both the intent of the mind and also the corresponding act or fact, and then to have followed that explanation with the main proposition; otherwise, the charge, as given, was liable to lead the jury to infer that a bona fide intention, if unexpressed, not to abandon nor relinquish the homestead right, would not avail against the mere fact of protracted absence from the home. The charge of the court had elsewhere, however, very well defined what was required to constitute abandonment; still, on the proposition of law having, as it might have seemed to the jury, a specific application to a domiciliation abroad, rendered it proper for the court either to have presented the two subjects separately and disconnected from each other, or else to have preserved clearly, by discriminating explanations, the elements of both subjects, if they are presented together in the same proposition. Hot-withstanding the criticism we do not regard the inaccuracy referred to such as probably liad the effect to mislead the jury, nor would the judgment be reversed therefor.
The fifth assignment of errors is that the court erred in the following instruction, viz.: “The jury will look to the declarations of the'plaintiff, Mrs. Cowan, to see whether she ever claimed the property in question as her homestead, and to her declarations about leaving it; and they will look to the evidence to see whether she did leave it or leave the state in accordance with her declarations, and if so, then her declarations are evidence of her intention, and if the evidence shows that she left the state in 1866 and refused to [344]*344return when requested by her husband by letter, then the abandonment is complete and the jury will find for defendant.” The assignment complains that this instruction is contrary to law and the evidence, and is without any pertinent meaning, and was, therefore, calculated to mislead the jury.^
This charge is materially and essentially erroneous; it confines the jury to the consideration of plaintiff’s, Mrs. Buiv. chain’s, declarations, from which to determine whether she claimed the property as her homestead, instead of leaving the jury to determine that fact from all the evidence before them, tending to show her claim and intention, continuously, to claim the same as her homestead. The jury are further instructed to look to the evidence to determine whether she left her home, or left the state in accordance with her declarations, and if they were satisfied of that fact from the entire evidence, that her declarations are evidence of her intention. Intention to do what? The jury rightly would imply the meaning to be, intention to permanently abandon her home and the state. Such a limitation, thus confining the jury to the consideration of her declarations, was in effect instructing them that they would not regard, in that connection, any other fact or evidence which may have tended to prove her intention of permanently abandoning her home and the state, except her declarations. These declarations must have been understood by the jury to refer, not to her testimony explanatory of her actions and motives, but to the remarks and declarations testified to by several witnesses concerning her intention to leave the state.
The charge further instructed them that, if she refused to return when requested by her husband by letter, that then the abandonment was complete, and the jury would find for the defendant. This portion of the charge was clearly a construction placed by the judge upon the force which he assigned to the act in question, and the jury were directed to act upon it as a conclusive fact against the plaintiffs. It was manifestly a charge upon the weight of the evidence; it was a charge in express derogation of the peculiar prov[345]*345ince of the jury to weigh all the evidence before them, and is in contravention of the letter and spirit of the law regulating trials by jury. Kimbro v. Hamilton, 28 Tex., 566; Andrews v. Marshall, 26 Tex., 212. The judge should not decide upon the facts, nor endeavor to influence the jury in their decision upon the facts. Jones v. The State, 13 Tex., 175. It is improper for the court to call attention of the jury to particular parts of the evidence. Woods v. Chambers, 20 Tex., 247; Castro v. Illies, 22 Tex., 479.
“The judge should distinctly separate questions of law from questions of fact; and a charge which determines both, without separating them, and without submitting the questions of fact to the decision of the jury, is erroneous.” Rogers v. Broadnax, 24 Tex., 538, If an erroneous charge has been given to the jury, which may have influenced the finding, and in the absence of which the finding might have been different, a new trial will be granted, although the court may be satisfied with the verdict. Mims v. Mitchell, 1 Tex., 443; Chandler v. Fulton, 10 Tex., 2; Bailey v. Mills, 27 Tex., 434. The charge which was given was well calculated to influence the finding of the jury; and if a proper charge had been given instead, we are not authorized to determine that the jury might not have found a different verdict. We cannot weigh probabilities as to the conclusions the jury might have reached under a correct instruction, where, as in this case, they may have been and probably -were influenced to act decisively against the plaintiff, Mrs. Burcham, under a positive charge bearing upon the effect of the plaintiff’s refusal to return to Texas at the request of her husband. The evidence before the jury was not such as to leád to but one possible result, and that result a verdict in favor of the defendant; and unless the verdict rendered by the jury was necessarily correct, and one which the jury, under proper instructions, must have rendered, it cannot be sustained, and for the error in the charge the judgment should be reversed.
It is not necessary to consider any other of the numerous assignments of error, as those which we have noticed em[346]*346brace substantially all the rulings of the court which have been definitely presented involving questions subject to recur on another trial.
[Opinion delivered May 31, 1880.]
We conclude that there is error in the judgment, for which it ought to be reversed and the cause remanded for further proceedings.
Reversed and remanded.