
    No. 11,107.
    New v. New.
    Supreme Court. — Instruction.—Evidence. —Record.—Where the evidence is not in the record, rulings in giving or refusing instructions are not ground for reversal, if upon any supposable state of the evidence under the issues the rulings would have been correct.
    
      Same. — Harmless Error. — The Supreme Court will not reverse a judgment for error in giving or refusing instructions, where the verdict is clearly right upon the evidence. Nor will the Supreme Court reverse a judgment unless material and substantial error is shown.
    From the Hamilton Circuit Court.
    
      R. Hill, J. W. Nichol, T. J. Kane and T. P. Davis, for appellant.
    
      J. E. McDonald, J. M. Butler and A. L. Mason, for appellee.
   Elliott, J.

It has long been the rule that where the evidence is not in the record, the rulings of the trial court in giving and refusing instructions will not be ground for reversal, if upon any supposable state of the evidence that might have existed under the issues the rulings might have been correct. We have given full consideration to the able brief of appellant’s counsel, but find nothing that influences us to make this case an exception to the long established rule. We are clear that under the issues the evidence might have been such as to have warranted the rulings of the court, and as the evidence is not in the record we must presume that the trial court committed no error.

Filed April 26, 1884.

The rule of this court has been for many years not to reverse a judgment for error in giving or refusing instructions, if the verdict is clearly right on the evidence, and this consideration should be borne in mind when passing upon cases in which the evidence is not before us, for it may have been of such a conclusive character as to require an affirmance of the judgment irrespective of the effect of the instructions.

It is also a familiar rule that one who seeks a reversal of a .judgment must show affirmatively not only that there was an error,, but that there was a substantial error, which did him material harm. It is not enough to show an error; it must be shown to have been such as prejudiced the appellant’s cause, or, at least, was likely to have done so.

There are, therefore, strong reasons for the rule that errors in instructions are seldom cause for reversal in cases where the evidence is not in the record, and these reasons also prove that the rule is one which should be strictly adhered to.

Judgment affirmed.  