law raises a conclusive presumption in Texas

1911As said further in the case of Heldt v. Webster, 60 Tex. 207 : “Any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption, in the nature of things is a charge on the weight of evidence, and, although other parts of the charge given may have been correct, such an error will require a reversal of the judgment.” Appellant makes the further point by assignment that appellee, under the evidence, should be held guilty of negligence as a matter of law.

1911As said in the case of Flanagan v. Cushman, supra, in respect to taking other security; “If the purchase money is unpaid, it will not be presumed that the lien is waived or abandoned, if, in view of the entire transaction, it appears that it was not the intention to release the land and to rely upon other security.” When sufficiency of circumstances to establish a fact is an issue, an instruction which tells or operates to tell the jury what might be presumed is on the weight of evidence, and an unwarranted invasion of the province of the jury. [5] As said in the case of Heldt v. Webster, 60 T

1889The accident itself irrespective of the circumstances furnished no ground for any presumption one way or the ■other.” In the case of Heldt v. Webster, 60 Texas, 209 , Justice Stayton says: “Any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption in the nature of things, is a charge upon the weight of evidence, and although other parts of the charge given may have been correct such an error will require a reversal of the judgment.” We do not think there was error under the circumstances of this case in admitting

1888In Holdt v. Webster, 60 Texas, 209 , it is said: “Any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption, in the nature of things, is a charge upon the weight of evidence.” We think the court did not err in failing to charge the jury that malice may be inferred from the want of probable oause, as insisted under the fourth assignment, nor in refusing the special charge requested by appellant to the same effect, a& urged under the fifth assignment of error.

1913In Stook-bury v. Swan, 85 Tex. 563 , 22 S. W. 966 , it is held that any charge as to a presumption arising from a given state of facts set out in the charge is upon the weight of the evidence, unless it be in those cases where the law raises a conclusive presumption.

1911As said in the case of Flanagan v. Cushman, supra, in respect to taking other security; “If the purchase money is unpaid, it will not be presumed that the lien is waived or abandoned, if, in view of the entire transaction, it appears that it was not the intention to release the land and to rely upon other security.” When sufficiency of circumstances to establish a fact is an issue, an instruction which tells or operates to tell the jury what might be presumed is on the weight of evidence, and an unwarranted invasion of the province of the jury. [5] As said in the case of Heldt v. Webster, 60 T

1893The rule is settled in this State, that “any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption, in the nature *55 of things is a charge upon the weight of evidence.” Heldt v. Webster, 60 Texas, 207 ; Biering v. Bank, 69 Texas, 599 .