The only error assigned is, tbe refusal of the Circuit Court to give tbe charge requested by tbe appellant. A charge not applicable to tbe evidence, or which assumes as proved a fact or facts of which there is no evidence, or assumes there is evidence tending to prove such facts, when there is a total absence of evidence in reference to them, ought not to be given. It would bave an immediate tendency to confuse and mislead tbe jury, distracting their attention from tbe matter which they are to try, and render trials almost interminable. We have carefully examined the bill of exceptions, and bave not discovered any evidence having a tendency to prove tbe tacts on wbicb tbe charge is based. Whether it asserts tbe law correctly or not, is immaterial. It was properly refused.
Tbe judgment must be affirmed.