McCallen v. Sterling

• Decision Date: 31 July 1833
• Citation: 13 Tenn. 223
• Parties: MCCALLEN v. STERLING.
• Court: Tennessee Court of Appeals

13 Tenn. 223

MCCALLEN

v.STERLING.

Supreme Court of Errors and Appeals of Tennessee.

July Term, 1833.

In this casethe counsel for the plaintiff tendered to the circuit judge for signature a bill of exceptions, on his refusing to grant a new trial.This stated only so much of the charge (entirely omitting the evidence) as to show that the judge had not charged the jury as requested on particular points raised by the counsel in his argument to the jury.The court stated to the counsel“that as this was a motion for a new trial, he should set out the evidence in the bill of exceptions, and the whole charge of the court, to the end that the grounds for refusing a new trial might appear to the revising court in the same light they appeared to the judge who tried the cause, and that it ought the more especially to be done in this case; for admitting, for the sake of argument, the counsel was right as to the points he raised, yet the court was clearly satisfied, from the whole facts and circumstances of the case, a new trial ought not to be granted.”But the counsel utterly refused to state the evidence in the cause in the way suggested by the court, and tendered his bill of exceptions to the opinion of the court in deciding that he ought to set out the evidence in the cause, as above suggested by the court.And from the decision and judgment of the circuit courtthe defendant prosecuted his appeal in the nature of a writ of error to this court.

Thomas L. Williams, for the plaintiff in error; Robert M. Anderson, for the defendant in error.

CATRON, Ch. J., delivered the opinion of the court.

1.Was the circuit court bound to seal a bill of exceptions containing a part of his general charge to the jury on the whole facts of the case, without setting forth the facts on which that charge was grounded, or any part of the facts?It must be recollected that the jury was charged, retired, deliberated and found a verdict.A new trial was moved for, because it was alleged the court had misdirected the jury on points of law arising on the facts.By our constitution, article 9, section 4, the judge could not, as is the English practice, instruct the jury how to find on the facts, but he had the right to state the testimony, and then declare the law arising on a case made out by the proof.The charge in every case should apply strictly to the facts proved, or rather, the case made out; at least, as much so as may be without charging how the matters of...