Phillips v. State

57 S.E. 1079, 1 Ga. App. 687, 1907 Ga. App. LEXIS 79

Opinion

Powell, J.

1. The rule announced in the Penal Code, §985, declaring the distinction ordinarily existing between the weight to be given to positive testimony and that to be given to negative testimony, while ofttimes useful to the jury as tending to facilitate the reconciliation of apparent conflicts in the evidence, is so inaptly stated in the code section referred to that to instruct the jury in the language there given is ordinarily error. Warrick v. State, 125 Ga. 142; Minor v. State, 120 Ga. 490; Cowart v. State, 120 Ga. 510; So. Ry. Co. v. O’Bryan, 119 Ga. 148; and the same case, 115 Ga. 659; Innis v. State, 42 Ga. 473; Atlantic Coast Line R. Co. v. O’Neill, 127 Ga. 685.

2. This rule does not apply at all, even with the qualifications mentioned in the eases cited above, to a case where two witnesses directly contradict each other as to the existence or non-existence of a thing, or as to the occurrence or non-occurrence of an action, when such thing, if it existed, or such action, if it occurred, would necessarily have been equally known to'both of them. Skinner v. State, 108 Ga. 747; Humphries v. State, 100 Ga. 263; Killian v. Ga. R. Co., 97 Ga. 728; Civil Code, §5165. Judgment reversed.