Hurt, Judge,
Two'grounds are relied on for a reversal of this judgment. 1. That the charge of the court to the jury is-[39]*39not sufficiently full, there being a feature of the case presented by evidence to which the law was not applied. 2. That the verdict of the jury is against the weight of the evidence, and that therefore the court below should have granted a new trial.
Counsel for defendant concede that the charge of the court, to the full extent to which it goes, is without objection; the only complaint being that it did not extend to and apply the law to a certain phase of the case, which has support in evidence. There was no objection urged to the charge as given; no instruction was requested of the court, nor was any complaint made of the charge in the motion for new trial. This being the case, the writer, prior to the argument of counsel for the defendant in this case, entertained the opinion, and may have expressed it in former opinions, that for this court to revise a charge, the error therein must be fundamental. In this view we were wrong, owing to a misapprehension of the opinion in the case of Bishop v. The State, 43 Texas, 309. This subject being most thoroughly reviewed and discussed in the argument of counsel for the appellant, we are now convinced that, though no objection was made to the charge at the time, nor instruction requested which, if given, would have made the charge full and complete, covering each and every phase of the case required by the evidence; and though there was no complaint in the motion for new trial that the charge was not full and complete, and although the omission or error therein was not fundamental, still this court has the power to revise the charge, and under certain circumstances will reverse the judgment.
The error not being complained of at any time or stage of the trial below, by what rule is this court to be governed in determining whether such error will warrant the reversal of the judgment?
The rule we believe to be this: If there be a material misdirection of the law as applicable to the case, or a failure to give in charge to the jury the law which was required by evidence in the case, and the affirmative error, or the omission, is calculated, under all the circumstances of the case, to injure the rights of the defendant, this court should, for either of these errors, reverse the judgment.
But in all such cases as this—a case in which there was no complaint of the charge below-—this vital question presents itself: Does the evidence, or any evidence in the case, tend [40]*40sufficently strongly to the establishment of the defense as to require a charge applicable thereto? Upon this subject Chief Justice Roberts, in Bishop v. The State, 43 Texas, 390, says: “When the evidence tends sufficiently to the establishment of a defense, or mitigation of the offense charged, as to reasonably require a charge as applicable, is a question of sound judgment to be exercised by the district judge in the first instance, and by this court on appeal. If its force is deemed to be very weak, trivial, light, and its application remote, the court is not required to give a charge upon it. If, on the other hand, it is so pertinent and forcible as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.”
It will be seen from this that a failure to charge the law applicable to a defense will not necessarily result in a reversal of the judgment. There may be evidence tending to present a certain defense, and yet its force may bé so “ weak, trivial, light, and its application so remote” that a failure to charge upon it will not require a reversal of the judgment. On the other hand, if the evidence tending to present such defense is so “pertinent and forcible” as that it might be reasonably supposed that the jury could be influenced by it, the law applicable to such" defense should be applied, and a failure to do so would require a reversal of the judgment'; for the extent of the injury to the defendant resulting from a failure to charge the law, or whether defendant be at all injured by such failure, depends upon the pertinency and force of the evidence to raise the defense. If the evidence be pertinent and sufficiently strong for it to reasonably appear to this court that the jury may havé acted thereon and acquitted the defendant, if the law applicable to the case had been given in the charge to the jury, the injury referred to would appear from the record, and this court would reverse.
If, however, this evidence be so “weak, trivial, light, and its application so remote ” as not to render it reasonable to suppose that the- jury would, if the law applicable thereto had been charged, be influenced thereby, clearly this court would not reverse the judgment.
The qüestion upon which this appeal must turn, therefore, is this: Is there a defense presented by evidence which is sufficiently pertinent and strong.“as that it might be reasonably [41]*41supposed that the jury could be influenced by it in arriving at their verdict,” in regard to which the court below failed to apply the law? In determining this question we would remark that all of the facts in the case, whether bearing upon the defence in regard to which the omission in the charge is alleged or not, must be looked to.
In relation to what matter, or defense, in this case did the court fail to apply the law? This requires a statement, and that of the appellant will be adopted. It is; “Appellant’s defense was that he had purchased the horse alleged to have been stolen by him, of the owner, and had authority to sell or dispose of the horse. The court charged the jury that if they believed-from the evidence the owner sold the horse to appellant, or had a reasonable doubt on the question, they should acquit,”
It is insisted that this charge is not sufficiently full, in that it fails to apply the law to the following phase of the case, to wit: That though Kendall, the owner, did not sell the horse to defendant, yet if he, defendant, honestly and in good faith believed that there was a sale, and in pursuance of this belief took the horse from the range and disposed of the same, he would be guilty of no offense. The facts relied upon by the ¡defendant by which this defense is presented are contained in the statement above and the following: “The testimony shows that the owner of said horse was an habitual drunkard; that by the excessive use of whiskey his mind had become impaired and his memory very defective; that just previous to the alleged sale of the horse he had been on a long drunken spree and debauch, and was then and had been suffering with paralysis.”
Now, as we have stated above, there is no complaint of the charge because of misdirection of the jury, but because the court failed to apply the law to all the different phases of the case, or the different state of facts under which, if believed by the jury, they would have probably acquitted defendant. And it must be borne in mind that there is no objection to the charge of the court relating to the purchase, so far as it went. The objection is that the jury may have believed from the evidence that the transaction sworn to by defendant’s witnesses actually occurred, and still.in law there was no sale because of the mental imbecility of Kendall, arising from the excessive use of whiskey; and.
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Hurt, Judge,
Two'grounds are relied on for a reversal of this judgment. 1. That the charge of the court to the jury is-[39]*39not sufficiently full, there being a feature of the case presented by evidence to which the law was not applied. 2. That the verdict of the jury is against the weight of the evidence, and that therefore the court below should have granted a new trial.
Counsel for defendant concede that the charge of the court, to the full extent to which it goes, is without objection; the only complaint being that it did not extend to and apply the law to a certain phase of the case, which has support in evidence. There was no objection urged to the charge as given; no instruction was requested of the court, nor was any complaint made of the charge in the motion for new trial. This being the case, the writer, prior to the argument of counsel for the defendant in this case, entertained the opinion, and may have expressed it in former opinions, that for this court to revise a charge, the error therein must be fundamental. In this view we were wrong, owing to a misapprehension of the opinion in the case of Bishop v. The State, 43 Texas, 309. This subject being most thoroughly reviewed and discussed in the argument of counsel for the appellant, we are now convinced that, though no objection was made to the charge at the time, nor instruction requested which, if given, would have made the charge full and complete, covering each and every phase of the case required by the evidence; and though there was no complaint in the motion for new trial that the charge was not full and complete, and although the omission or error therein was not fundamental, still this court has the power to revise the charge, and under certain circumstances will reverse the judgment.
The error not being complained of at any time or stage of the trial below, by what rule is this court to be governed in determining whether such error will warrant the reversal of the judgment?
The rule we believe to be this: If there be a material misdirection of the law as applicable to the case, or a failure to give in charge to the jury the law which was required by evidence in the case, and the affirmative error, or the omission, is calculated, under all the circumstances of the case, to injure the rights of the defendant, this court should, for either of these errors, reverse the judgment.
But in all such cases as this—a case in which there was no complaint of the charge below-—this vital question presents itself: Does the evidence, or any evidence in the case, tend [40]*40sufficently strongly to the establishment of the defense as to require a charge applicable thereto? Upon this subject Chief Justice Roberts, in Bishop v. The State, 43 Texas, 390, says: “When the evidence tends sufficiently to the establishment of a defense, or mitigation of the offense charged, as to reasonably require a charge as applicable, is a question of sound judgment to be exercised by the district judge in the first instance, and by this court on appeal. If its force is deemed to be very weak, trivial, light, and its application remote, the court is not required to give a charge upon it. If, on the other hand, it is so pertinent and forcible as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.”
It will be seen from this that a failure to charge the law applicable to a defense will not necessarily result in a reversal of the judgment. There may be evidence tending to present a certain defense, and yet its force may bé so “ weak, trivial, light, and its application so remote” that a failure to charge upon it will not require a reversal of the judgment. On the other hand, if the evidence tending to present such defense is so “pertinent and forcible” as that it might be reasonably supposed that the jury could be influenced by it, the law applicable to such" defense should be applied, and a failure to do so would require a reversal of the judgment'; for the extent of the injury to the defendant resulting from a failure to charge the law, or whether defendant be at all injured by such failure, depends upon the pertinency and force of the evidence to raise the defense. If the evidence be pertinent and sufficiently strong for it to reasonably appear to this court that the jury may havé acted thereon and acquitted the defendant, if the law applicable to the case had been given in the charge to the jury, the injury referred to would appear from the record, and this court would reverse.
If, however, this evidence be so “weak, trivial, light, and its application so remote ” as not to render it reasonable to suppose that the- jury would, if the law applicable thereto had been charged, be influenced thereby, clearly this court would not reverse the judgment.
The qüestion upon which this appeal must turn, therefore, is this: Is there a defense presented by evidence which is sufficiently pertinent and strong.“as that it might be reasonably [41]*41supposed that the jury could be influenced by it in arriving at their verdict,” in regard to which the court below failed to apply the law? In determining this question we would remark that all of the facts in the case, whether bearing upon the defence in regard to which the omission in the charge is alleged or not, must be looked to.
In relation to what matter, or defense, in this case did the court fail to apply the law? This requires a statement, and that of the appellant will be adopted. It is; “Appellant’s defense was that he had purchased the horse alleged to have been stolen by him, of the owner, and had authority to sell or dispose of the horse. The court charged the jury that if they believed-from the evidence the owner sold the horse to appellant, or had a reasonable doubt on the question, they should acquit,”
It is insisted that this charge is not sufficiently full, in that it fails to apply the law to the following phase of the case, to wit: That though Kendall, the owner, did not sell the horse to defendant, yet if he, defendant, honestly and in good faith believed that there was a sale, and in pursuance of this belief took the horse from the range and disposed of the same, he would be guilty of no offense. The facts relied upon by the ¡defendant by which this defense is presented are contained in the statement above and the following: “The testimony shows that the owner of said horse was an habitual drunkard; that by the excessive use of whiskey his mind had become impaired and his memory very defective; that just previous to the alleged sale of the horse he had been on a long drunken spree and debauch, and was then and had been suffering with paralysis.”
Now, as we have stated above, there is no complaint of the charge because of misdirection of the jury, but because the court failed to apply the law to all the different phases of the case, or the different state of facts under which, if believed by the jury, they would have probably acquitted defendant. And it must be borne in mind that there is no objection to the charge of the court relating to the purchase, so far as it went. The objection is that the jury may have believed from the evidence that the transaction sworn to by defendant’s witnesses actually occurred, and still.in law there was no sale because of the mental imbecility of Kendall, arising from the excessive use of whiskey; and. that therefore the court should have charged the jury that, though they may not believe from the evidence that Kendall was capable of making a contract, yet, if defendant [42]*42believed him capable, and, acting upon this belief, purchased, and, in pursuance of the purchase and belief, took and disposed of the horse, he would not be guilty. This is a correct proposition, and, if presented by evidence which is pertinent and sufficiently strong as to reasonably suppose that the jury could be influenced by it in arriving at their verdict, the court should have charged so as to furnish them with the appropriate rule of law upon the subject. *
The question, therefore, is, what evidence in this record presents this issue? The testimony of defendant’s witnesses rather tends to negative than to raise this defense—the witnesses to the sale. Pearson says Clark Kendall was on a spree, but was not very drunk at the time. Hunnicut states that Kendall was not drunk the day he made the trade with defendant, although he may have had a drink or two. Dickey says that Kendall and defendant were both drinking. These witnesses, Pearson, Hunnicut and Dickey, depose to the trade or sale, and -certainly it will not be contended that the evidence tends to raise the issue as to the mental imbecility of Kendall. That he was drinking may be conceded, but evidently from their evidence Kendall was competent mentally to make a binding contract. There was nothing in his conduct, or in what he said at the time, tending in the slightest degx-ee to question his capacity to contract.
It is true that Waller and Mullen state that when on a spree, like other men similarly situated, Kendall did not know what he was doing, and could not remember what had occurred while in this condition. This evidence, it may be conceded, tends to raise the presumption that this was his condition when the sale was made, but the question arises, with what force does it thus tend? Has it that pertinency and force which would render it reasonable to infer that the jury would have been influenced by it in arriving at their verdict, if the law applicable thereto had been given in charge? We are of the opinion that it has not. On the other hand, we believe that notwithstanding there is evidence tending to present this defense, still its pertinency and force are so remote and weak that a failure to charge the law applicable to this defense worked no injury to the rights of defendant. We are not to be understood as holding that if the omission complained of had been excepted to at the time, or sought to he cured by the proper charge, that this court would not reverse.
[43]*43The second ground relied upon for a reversal is that the verdict is against the weight of the evidence. We will not discuss the question so ably argued by counsel for defendant in regard to the right of this court to reverse a judgment because the verdict is against the weight of the evidence, for we are of opinion the verdict in this case is amply supported, not only by the evidence but by the great preponderance of the evidence. What are the facts? That defendant took from the range the mare of Kendall and sold her to Charles Williams. This mare was plainly branded 12; when he sold her to Williams defendant “told him that the 12 was his brand, and that he had raised the mare.” It is not contended that this was true, but it is conceded to be false. If, then, Williams swore the truth, defendant, at a time when an honest man ought to tell the truth, was guilty of a deliberate falsehood. How, we ask, does this conduct—this falsehood uttered at such a time—comport with the fact that he had purchased the mare from Kendall, the legal owner? If in fact this transaction actually occurred, what necessity for this deliberate falsehood? The truth would have served the same purpose, and if Williams had been unwilling to rely upon Elam’s statements, Pearson, Hunnicut and Dickey could have established his right to the mare.
How terribly cogent this conduct under the circumstances of this case! But stranger, if possible, than this fact, is the fact that when Kendall claimed the.mare Williams notified Elam of the fact, and he stated that he would make it all right, and went to Dallas to see Kendall, but as stated by Williams, “Elam did not deny Kendall’s title to the mare in question, which I bought from him, after Kendall m.ade the affidavit claiming her.” Here again, under the most pressing circumstances, strange to say no allusion whatever was made by defendant to the purchase from Kendall. These facts were all before the jury, and by the charge they were called on to say whether or not the defendant purchased the mare from Kendall, and having determined this issue against the defendant, we will not disturb their finding.
We have found no such error in this record as will justify this court in disturbing the judgment, and it is therefore affirmed.
Affirmed.
Opinion delivered April 19, 1884,