
    J. W. Wroth v. E. H. Norton.
    1. No safe-conclusion can be deduced from circumstantial evidence,-if it.be left reasonable to suppose that the circumstances themselves did not transpire.
    2. On a trial of the right of property levied on, the court below charged the jury that the plaintiff might prove his' case either by'direct evidence1 or “ by circumstantial evidence,—that is, by the proof of Such facte as Will naturally lead the mind- to that -conclusion, and will exclude any other reasonable inference.” Held, that the charge is not necessarily to be understood as requiring the plaintiff to make, out his case by circumstantial evidence of ’ so Conclusive a chat-actor as to admit of no reasona- • ble c'obclüsión to the -CCntrafy; ánd the Charge appearing to have worked ,. no. prejudiCc-tO the appellant, it is not to be error. .
    
      Appjsal from Austin. Triad below before the Hon. I. B. McFarland.
    The facts appear in the opinion of the court.
    
      Sayles •$* Bassetts, for the appellant.
    Under the charge given by the court the jury were not authorized to find for the plaintiff, although the testimony fully supported and decidedly preponderated in favor of the hypothesis presented by him; but they were required to go one step further, and inquire if every other reasonable hypothesis were excluded.
    In Pilkinton v. The State (19 Tex., 217,) it is said that on the subject of doubts there is a distinction between civil and criminal cases. “ In the former the jury weigh the evidence, and after determining on which side there are the greater degrees of probability, or there is the preponderance of evidence, decide accordingly : hut in criminal cases, as every man is presumed to he innocent until the contrary is proved, a mere probability that he may be guilty will not warrant a conviction: the evidence must be sufficient to satisfy the jury that he is guilty, and if there he a well founded or reasonable doubt of his guilt, not merely speculative, imaginative, possible or conjectural, but a real doubt of his guilt, the jury ought to acquit.” In other words, in criminal cases the evidence should exclude every reasonable inference inconsistent with the guilt of the party, but in civil eases the jury should decide in accordance with the greater degrees of probability or preponderance of evidence.
    In Chandler v. Muckelroy (22 Tex., 42,) it is well said that it is one of the substantial rights of the party defendant, when he takes the proper steps, to demand that the facts alleged as a ground of action against him should be established by proof reasonably sufficient to satisfy the mind of the truth of the allegations.” In the case at bar the jury were told not only that the plaintiff must sustain his ease by proof of such facts as will naturally lead the mind to that conclusion, hut that he must also exclude any other reasonable inference. They were not directed to weigh the testimony ; they were not authorized to be controlled by proof reasonably sufficient to satisfy their minds of the truth of the plaintiff’s allegations; they were not permitted to render a verdict in accordance with the preponderance of the testimony and the reasonable probability of the truth; but 'before they could find for the plaintiff, he must have excluded every reasonable inference inconsistent with his case.
    It has been repeatedly said by this court that when the testimony is conflicting, it is the province of the jury to judge of the credibility of the witnesses and the weight of evidence, and their verdict will not be disturbed, although the evidence may not be satisfactory to this court. (McDonald v. Morgan, 27 Tex., 503 ; Clark v. Davis, 7 Tex., 556; Walker v. Walker, 22 Tex., 33; Branch v. Dever, 18 Tex., 611; Howard v. Booth, 16 Tex., 94; Long v. Steiger, 8 Tex., 460.)
    It is peculiarly the province of the jury, in cases of a conflict of the evidence of an equal grade and dignity, to weigh the evidence and find the truth of the contested fact. (Russell v. Mason, 8 Tex., 226; Sims & Smith v. Chance, 7 Tex., 561; Mitchell v. Matson, 7 Tex., 3.)
    The rule is not varied in civil cases, although a question of fraud is involved. u Fraud may be established as any other fact. The law has no scales wherein to weigh the different degrees of probability, still less to ascertain what weight of evidence shall amount to proof of any disputed fact.” (Layton v. Hall, 25 Tex., 212.) Nor do we know of any principles of law requiring a different rule, 'because the facts are to be established by circumstantial evidence.
    In Lynn v. Wright, 18 Texas, 3-7, the exact point is decided. In discussing the case, the facts of which are almost identical with .those of the case in hand, the court say (fo. 336) : t: To warrant the jury in so finding, it was not necessary that the circumstances tending to that conclusion should have been incapable of being accounted for upon any other hypothesis. There is no such rule of evidence or principle of law as that, in order to authorize a jury to deduce from circumstantial evidence the conclusion of fraud, the circumstances mtist be of so conclusive a nature as to exclude every other hypothesis than the one sought to he established.”
    The,whole paragraph, from which this extract is made, seems so fully to dispose of the question under discussion, that we ask a perusal of it in the original decision, 18 Texas, 336-7.
    
      Hunt Sf Holland, for the appellee.—It
    was admitted that the goods were taken from the. possession of the claimant (appellee here); and plaintiff,- Wroth, , took upon himself the burden' of proving that claimant’s possession was fraudulent, and that the goods levied on were in faet the property of Messner, the defendant in execution; and in order to sustain that position, plaintiff took a very wide range, and brought forward numerous disjointed and disconnected circumstances, more or less pertinent as well as impertinent.
    The whole issue before' the jury was one particular fact as to whether the goods levied upon were the property of claimant, or of Messner, the defendant in execution. On that issue the jury found for- the claimant—upon conflicting evidence it. is true, but none the less conclusive on that account—for they were the sole judges of the weight of evidence, and this court will not disturb •their verdict, unless appellant can show that it was found without evidence, or clearly contrary to the evidence, or that there was so grave error in the charge of the court as to plainly mislead the minds of the jury to a wrong conclusion. This, we confidently assert, the appellant has not done and cannot do.
    The statement of facts will show that the weight of positive evidence of unimpeached witnesses preponderated in favor of the claimant, Norton. (Vide Latham v. Selkirk, 11 Tex. 321; Green v. Hill, 4 Tex. 465; Stewart v. Hamilton, 19 Tex. 101; Anderson v. Anderson, 23 Tex., 641; Baldridge v. Gordon, 24 Tex., 288; Hull v. Hedge, 2 Tex., 323.)
    •“ The verdict must clearly be wrong to induce this court to set it aside.” (Long v. Steiger, 8 Tex., 462; Oliver v. Chapman, 15 Tex., 410.)
    i£ It is not enough that it is not clear that it is right.” (Briscoe v. Bronough, 1 Tex., 340; Cotton v. Campbell. 3 Tex., 495; Carter v. Carter, 5 Tex., 102; Howard v. Ray, 25 Tex, 88; Adams v. George, 25 Tex. supplement; McGloin v. Vanderlip, 27 Tex., 367; 8 Tex., 331 and 439; 7 Tex., 584.)
    We submit that there was no such error in the charge of the court as to require a reversal of the cause.
    The charge was as favorable to the plaintiff as he had any right to ask or expect under the facts of the.case. (Mercer v. Hall, 2 Tex, 284; Powell v. Haley, 28 Tex., 53.)
   Walker, J.

Appellants caused execution to he levied on a stock of goods as the property of D. Messner, to satisfy a judgment in their favor. The goods were claimed by Hcrton, and this was an action to try title. The jury found for the appellee, and the court overruled a motion for a new trial, and this appeal is taken.

The main error assigned, on which it is very earnestly insisted the judgment should he set aside, is much more specious than real. It is to the charge of the court, which is as follows :

“ That the goods belonged to Messner, and not to Horton, the plaintiff may show by direct evidence of the fact, or he may prove it by circumstantial evidence.—that is, by the proof of such facts as will naturally lead the mind to that conclusion, and will exclude aiiy other reasonable inference.”

The court does not herein direct the jury, that the appellant musí prove that the goods belonged to Messner, by circumstantial evidence which would admit of no reasonable conclusion to the contrary., before the plaintiff could hold them on his execution ; but it is rather in the mind, of the court to say that there may be circumstantial evidence so strong as to admit of no reasonable conclusion to the contrary; and if the plaintiff has this kind of evidence he can use it, or he can prove his case by direct evidence. This was all the court intended to say, and all that was said, and it certainly worked no prejudice to any one. In a chain of circumstantial evidence, it might be of the greatest importance to show that A. B. was in the city of Galveston on a certain day; and now, if the facts shown left it reasonable to suppose that A. B. was not in the city of Galveston, but in the city of New York, on that very day, this link being broken, the chain would have no strength; for it can be no stronger than any and every one of its links. Ho safe conclusion can be deduced from circumstantial evidence, if it be left reasonable to suppose that the circumstances themselves are not proven. It may be a very significant circumstance that a footprint is found upon the sand; but if the facts are such as to render it reasonable that there was ño footprint upon the sand, the circumstance that some crazy man had said so, or somebody had dreamed it, would be of very little or indeed of no importance.

There was a conflict in the evidence on the trial, but we can see no reason for disturbing the judgment for an erroneous finding, nor do we see any error on which to reverse. The judgment is therefore affirmed.

Affirmed.  