4 Ga. App. 843 | Ga. Ct. App. | 1908
In a criminal prosecution, when the State’s witnesses have testified that in a difficulty which occurred the defendant drew a pistol from his pocket and had it out in his hand during the difficulty, and the defendant’s witnesses, in whose presence and sight also the transaction occurred, have testified that they did not see him draw or have any pistol, it is error for the court to give the following charge to the jury: “I charge you, if you find some witnesses were present and had opportunity to know the facts and bring them to your consideration, and there was another class of witnesses, who say they didn’t know, the law requires you to believe the positive testimony. Positive testimony is., that of witnesses who know the facts; negative testimony is that where the witness doesn’t know the facts, or didn’t see it.” Hunter v. State, ante, 761 (62 S. E. 466). Judgment reversed.
