Hawkins v. Collier

Fish, J.

1. Plaintiff in error excepted to the portions of the judge’s charge specified in the third and fourth grounds of the motion for a new trial. As will be seen by reference to the reporter’s statement, the exceptions were, in effect, that such portions of the charge excluded from the jury the defendant’s the-* ory, that the consideration of the note was not rent, and that she had never rented any land from the plaintiff. The entire charge is not in the record, and there is no complaint that the judge failed to explain to the jury the theory of the defendant and to charge the law applicable thereto. We must, therefore, presume that all the contentions of the defendant and all the law pertinent to her defense were fully, fairly, and correctly given by the court in its general charge. It is impossible to charge upon the respective theories of the plaintiff and the defendant at the same time. In the portions of the charge complained of, the court hypothetically stated the plaintiff’s contentions, and charged the jury how they should find if they believed such contentions to be true. There is no pretense that the contentions of the defendant were not stated with equal fairness, and the jury instructed to find for her in the event they believed her theory of the case. There was, therefore, no merit in the third and fourth grounds of the motion for a new trial.

2. There was a painful conflict in the testimony of the witnesses for the plaintiff and those for the defendant. The testimony of the witnesses for the plaintiff, if believed, demanded the verdict. The jury believed them, the verdict was approved by the trial judge, and we are not authorized to set it aside.

Judgment affirmed.

All the Justices concurring, except Lumpkin, P, J, absent.