23 Ga. App. 366 | Ga. Ct. App. | 1919
Lead Opinion
Judgment affirmed.
Dissenting Opinion
dissenting.
Where the judge makes an erroneous charge it is presumably prejudicial, unless its harmful effect is- removed and corrected in his language elsewhere, or unless it appears that such language was harmless and did not affect the verdict. The judge charged the ■ jury that should they believe a witness has been “successfully impeached” by contradictory state-' ments previously made, they should “disregard his testimony altogether.” This is .conceded to have been error. To my mind its harmful effect was not cured by the language immediately following it or appearing elsewhere in the charge. To tell the jury, “What credit you will giye to the testimony of each and every witness is a matter entirely for you as jurors to determine,” does not negative the idea that in passing upon, the credit of a particular witness the jury is bound to reject his entire testimony when they disbelieve it in part. The testimony of the witness sought to be impeached was material to the defense, and if believed in part might have resulted in a different verdict. The charge being erroneous and not cured, and upon the controlling issue in the case, I am of the opinion that a new trial should be granted.