As the evidence is not before us, it is our duty to affirm the judgment and order denying a new trial, unless some one of the instructions was erroneous in any conceivable state of the evidence. Portions of the charge may be subject to criticism, and are not to be commended as models of clear and accurate statements of propositions.of law; but other portions explain these, so that the charge, as a whole, fairly presents the law bearing on the evidence which may be assumed to have been before the jury. The instructions, therefore, are not materially erroneous.

Judgment and order affirmed.