Lochrane, C. J.,
Without going into the mass of testimony in this case, we may briefly remark that the defendant was indicted for the crime of rape, and was brought to trial in the Court below and convicted. He moved for a new trial on several grounds, one of which only, we propose to review as the grounds of our judgment in this case, viz: “That the Court erred in its charge to the jury upon the effect of positive and negative testimony under the facts of this case.”
The evidence shows that the prosecutrix went with her husband to the office of the prisoner, who was a physician. She went from the room where her husband was seated to an adjoining room, and the doctor asked her if she had any other man beside her husband. Her reply shows that she had one before, and, on cross-examination, it appeared she had had a child by him. The doctor took her by the hand, into a small room with a bed in it, and there, she says, committed the offense, by pushing her down on the bed. She states that [480]*480she halooed as loud as she could more than once. She also states that she saw a man in the bath-room as she went from the second room to the room where the crime is alleged to have been committed.
The defense consisted of some five witnesses; one describing the plan of the house, and the partitions and the bath-rooms, the door to the room being upright plank, not reaching close to the top, etc. One, who was in the bathroom, divided by a partition of upright plank from the bedroom, saw them go into this room, and he saw her come out, heard no noise in the room, nor screaming, and saw nothing unusual in the appearance of either coming out. Another witness, off one room from the bed-room, taking a bath, heard no noise, etc. Another female witness who was about and saw her as she came out, saw nothing to cause her suspicions, etc., no appearance of tears, nothing unusual in her manner, etc., she had walked by the bed-room door, and heard no screams like a lady’s voice or of anything of that sort. Another man who,.was waiting on the baths, and passing and repassing, testified to the same facts. Another man who was passing and repassing the room on a piazza some four or five feet from the door, stated the same facts.
Under this statement of facts, our distinguished brother who presided at the trial, charged the jury: “It is a rule that a witness swearing positively to a fact is to be believed in preference to many who swear negatively to the same fact, that is, that they did not see or hear it. If the existence of a fact be sworn to positively by one credible witness, and many other witnesses who were in a situation to see or hear it, testify that they did not see or hear it, or know that it transpired, you are bound to regard the testimony given' by the witness who swears positively in preference to those who swear negatively.” He then detailed the familiar illustration about the clock striking, and the case of The State vs. Fitzgerald, in 12th Georgia Reports.
[481]*481Was this charge a fair presentation of the law applicable to cases like this under the facts of this case? Judge Nisbit, in 3 Kelly, page 420, says: “ The rules of evidence in indictments for rape are different from what they are in ordinary cases. The offense is peculiar. Lord Hale says, ‘this accusation is easily made, hard to be proved and harder to be defended by the party accused, notwithstanding his innocence: 1 Hale, 635, 636.' Citing Chitty 3, 572: ‘The defendant in consideration of these things is let in, in his defense, to some privileges which are not always allowed to persons accused of crime.”
The considerations which are given for the rule is, that the crime is generally in secret, and there is a consequent absence of direct testimony. The evidence of the prosecutrix is admitted, while that of the accused is excluded. Men are, therefore, put in the power of abandoned and vindictive women to a great extent.
Blackstone says: “ The party ravished may give evidence upon oath, and is, in law, a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact concurring in the testimony.”
To make out this case against the accused it is necessary to prove that the act was committed by force. Force to overcome resistance must have been accompanied by some manifestations of violence. The witness swears she screamed as loudly as she could more than once.
In Palfus vs. State, 36 Georgia, 280, where the question was about a disorderly house, and the defense was by parties who lived above and in adjoining rooms, that they did not hear it, the Court says: “It may be that the jury did not give due weight to the testimony on the part of the defendant, from the impression probably that it was altogether negative in its character.” Thus laying down the rule that negative testimony, when in affirmance of facts sought to be established, becomes positive.
[482]*482And in Bowie & Company vs. Maddox & Goldsmith, 29 Georgia, 285, this Court, Judge Stephens delivering the opinion, held it was error in the Court below to charge the jury, “that circumstances cannot outweigh positive testimony.” The Judge says: “We think the Court erred in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unreliable person, or coming from a source of great respectability, might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony, as such. It is equally impossible to fix a uniform value upon circumstantial evidence, as such. In many cases the one justly outweighs the other, while in many others the preponderance is precisely reversed.”
And again, Judge Lumpkin, in 26 Georgia Reports, 192, sums up the rule and says: “As to the charge respecting positive and negative testimony, no general rule can be laid down respecting it. It depends upon a variety of circumstances, such as the opportunity of the witnesses for hearing, the attention being directed to the matter, etc.” And this principle has been often held in both civil and criminal cases.
In Pollen vs. Servy, 10 Bosw., New York, 38, negative testimony was held to be properly weighed by the jury against positive testimony.
In Reeves vs. Poindexter & Jones, North Carolina, 308, where A. swears that B, C and D liad a conversation, and D swears no such conversation took place, held, the rule giving preference to positive over negative testimony, did not apply.
In Woods vs. Studevant, 38 Mississippi, 68, facts and circumstances were held to outweigh the positive testimony of a witness.
The rule as laid down in Alabama, Pool vs. Devers, 30 Alabama, 672, is: When one witness swears positively and another negatively, both being credible, greater weight is to be given to the former.
[483]*483In the case of Coughlin vs. The People, 18 Illinois, 266, it was held “ the testimony of a witness having a full opportunity of knowing that a person did not strike a blow is affirmative evidence, and entitled to weight as such.”
The rule in 27 Alabama, 520, on the effect of positive evidence is, that it is entitled to greater weight.
In the case of the State vs.
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Lochrane, C. J.,
Without going into the mass of testimony in this case, we may briefly remark that the defendant was indicted for the crime of rape, and was brought to trial in the Court below and convicted. He moved for a new trial on several grounds, one of which only, we propose to review as the grounds of our judgment in this case, viz: “That the Court erred in its charge to the jury upon the effect of positive and negative testimony under the facts of this case.”
The evidence shows that the prosecutrix went with her husband to the office of the prisoner, who was a physician. She went from the room where her husband was seated to an adjoining room, and the doctor asked her if she had any other man beside her husband. Her reply shows that she had one before, and, on cross-examination, it appeared she had had a child by him. The doctor took her by the hand, into a small room with a bed in it, and there, she says, committed the offense, by pushing her down on the bed. She states that [480]*480she halooed as loud as she could more than once. She also states that she saw a man in the bath-room as she went from the second room to the room where the crime is alleged to have been committed.
The defense consisted of some five witnesses; one describing the plan of the house, and the partitions and the bath-rooms, the door to the room being upright plank, not reaching close to the top, etc. One, who was in the bathroom, divided by a partition of upright plank from the bedroom, saw them go into this room, and he saw her come out, heard no noise in the room, nor screaming, and saw nothing unusual in the appearance of either coming out. Another witness, off one room from the bed-room, taking a bath, heard no noise, etc. Another female witness who was about and saw her as she came out, saw nothing to cause her suspicions, etc., no appearance of tears, nothing unusual in her manner, etc., she had walked by the bed-room door, and heard no screams like a lady’s voice or of anything of that sort. Another man who,.was waiting on the baths, and passing and repassing, testified to the same facts. Another man who was passing and repassing the room on a piazza some four or five feet from the door, stated the same facts.
Under this statement of facts, our distinguished brother who presided at the trial, charged the jury: “It is a rule that a witness swearing positively to a fact is to be believed in preference to many who swear negatively to the same fact, that is, that they did not see or hear it. If the existence of a fact be sworn to positively by one credible witness, and many other witnesses who were in a situation to see or hear it, testify that they did not see or hear it, or know that it transpired, you are bound to regard the testimony given' by the witness who swears positively in preference to those who swear negatively.” He then detailed the familiar illustration about the clock striking, and the case of The State vs. Fitzgerald, in 12th Georgia Reports.
[481]*481Was this charge a fair presentation of the law applicable to cases like this under the facts of this case? Judge Nisbit, in 3 Kelly, page 420, says: “ The rules of evidence in indictments for rape are different from what they are in ordinary cases. The offense is peculiar. Lord Hale says, ‘this accusation is easily made, hard to be proved and harder to be defended by the party accused, notwithstanding his innocence: 1 Hale, 635, 636.' Citing Chitty 3, 572: ‘The defendant in consideration of these things is let in, in his defense, to some privileges which are not always allowed to persons accused of crime.”
The considerations which are given for the rule is, that the crime is generally in secret, and there is a consequent absence of direct testimony. The evidence of the prosecutrix is admitted, while that of the accused is excluded. Men are, therefore, put in the power of abandoned and vindictive women to a great extent.
Blackstone says: “ The party ravished may give evidence upon oath, and is, in law, a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact concurring in the testimony.”
To make out this case against the accused it is necessary to prove that the act was committed by force. Force to overcome resistance must have been accompanied by some manifestations of violence. The witness swears she screamed as loudly as she could more than once.
In Palfus vs. State, 36 Georgia, 280, where the question was about a disorderly house, and the defense was by parties who lived above and in adjoining rooms, that they did not hear it, the Court says: “It may be that the jury did not give due weight to the testimony on the part of the defendant, from the impression probably that it was altogether negative in its character.” Thus laying down the rule that negative testimony, when in affirmance of facts sought to be established, becomes positive.
[482]*482And in Bowie & Company vs. Maddox & Goldsmith, 29 Georgia, 285, this Court, Judge Stephens delivering the opinion, held it was error in the Court below to charge the jury, “that circumstances cannot outweigh positive testimony.” The Judge says: “We think the Court erred in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unreliable person, or coming from a source of great respectability, might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony, as such. It is equally impossible to fix a uniform value upon circumstantial evidence, as such. In many cases the one justly outweighs the other, while in many others the preponderance is precisely reversed.”
And again, Judge Lumpkin, in 26 Georgia Reports, 192, sums up the rule and says: “As to the charge respecting positive and negative testimony, no general rule can be laid down respecting it. It depends upon a variety of circumstances, such as the opportunity of the witnesses for hearing, the attention being directed to the matter, etc.” And this principle has been often held in both civil and criminal cases.
In Pollen vs. Servy, 10 Bosw., New York, 38, negative testimony was held to be properly weighed by the jury against positive testimony.
In Reeves vs. Poindexter & Jones, North Carolina, 308, where A. swears that B, C and D liad a conversation, and D swears no such conversation took place, held, the rule giving preference to positive over negative testimony, did not apply.
In Woods vs. Studevant, 38 Mississippi, 68, facts and circumstances were held to outweigh the positive testimony of a witness.
The rule as laid down in Alabama, Pool vs. Devers, 30 Alabama, 672, is: When one witness swears positively and another negatively, both being credible, greater weight is to be given to the former.
[483]*483In the case of Coughlin vs. The People, 18 Illinois, 266, it was held “ the testimony of a witness having a full opportunity of knowing that a person did not strike a blow is affirmative evidence, and entitled to weight as such.”
The rule in 27 Alabama, 520, on the effect of positive evidence is, that it is entitled to greater weight.
In the case of the State vs. Gates, 20 Mississippi, 5 Bennett, 400, when one witness swore two men on horseback met and had an angry conversation, and another witness swears he saw them meet and .they did not, and the Judge charged that when one witness swears affirmatively and another negatively, the affirmative must prevail, the charge was held to be error. The rule in the case of Coles vs. Perry, 7 Texas, 109, is that greater weight will be given to positive than negative testimony.
In 23 Vermont, 186, it is laid down as a rule of law that, other things being equal, positive evidence preponderates over negative evidence; but the Court, in charging the jury, should also direct their attention to the facts and circumstances in the case important to determine its application.
And this, upon the principles found through our decisions, may be asserted as the rule. We are aware of some cases where the expression of the rule is in stronger language, but in others substantially the same. If there be any case where even a spark of evidence should not be excluded from the consideration of the jury, we think it is in cases like the one at bar. The charge of the Court in this case is a strong declaration of the rule, “you are bound to regard the testimony given by the witness who swears positively in preference to those who swear negatively.” This language we hold to be too emphatic, and calculated to mislead the jury under the facts in this case.
In Smith vs. Overby, 30 Georgia, 241, this Court held that, “ although a charge be literally correct, still, if the language was calculated to mislead the jury upon a material point, a new trial may be awarded.”
[484]*484We think, under the facts of this case, that the question of guilt or inuoeence was not to be measured by the character of the proof but by the weight of the proof itself. All the circumstances of the case ought to have been submitted, and the law in regard to what was necessary to establish the charge should have been clearly stated and the jury should have been left to consider for themselves the weight of the evidence in the case.
If the rule laid down be true, then, in cases of this kind, there would scarcely be a defense, except the crime was committed in the presence of others, which is not natural; and even then, if the jury are bound to take a positive witness against many negative ones, the accused would be left at the mercy of the jury. I hold that, while it is the duty of Courts to protect female chastity by every proper protection of the rules of law, still, in cases of this character, care should be taken not to sacrifice justice to sentiment; and negative testimony may be more properly considered by juries to illustrate innocence in this than in other classes of cases; and the instructions of the Court upon its weight as against the positive evidence,- particularly if that comes alone from the prosecutrix, should not be technical, but liberal and comprehensive, and leave the question of guilt or innocence to their decision, not upon the theory of an artificial rule, but upon a sound conviction of the truth of the case, to be gathered from every source and circumstance admitted in evidence.
Judgment reversed.
McCay, J., concurred, but furnished no opinion.