23 Ga. App. 542 | Ga. Ct. App. | 1919
Lead Opinion
The plaintiff in error was indicted for carrying a concealed weapon and was convicted. The only contention argued in the brief of his counsel is that the court erred in instructing the jury upon the law of positive and negative testimony. It is well settled that where there is both positive and negative testimony in a case, it is not erroneous for the court to charge the jury the law in reference to the comparative value of the two classes of testimony. Heywood v. State, 12 Ca. App. 643 (2) (77 S. E. 1130). „ Hpon the trial of the instant case the State, by positive testimony, showed that the defendant was carrying a concealed pistol. Several witnesses were introduced in behalf of the •defendant, one of them testifying as follows: “I saw Eobt. Williams [the defendant] distinctly, ... he did not draw a pistol at that time, and did not have one that I saw. I was in full view of him all the time. If he had one I did not see it. He did not have on a coat.” Part of this witness’s testimony was clearly negative. His testimony as to the defendant’s not drawing a
In the instant case the undisputed testimony showed that the State’s witness (whose testimony as to the defendant’s guilt was positive) was standing upon a steep embankment, and that all of the defendant’s witnesses who testified in the case were in the road below the'embankment. Thus it does not appear-that the defendant’s witnesses “had as good opportunity to see the trans
Judgment affirmed.
Dissenting Opinion
dissenting.
The sole witness for the State testified that he saw the defendant draw a pistol from his pocket; and also testified that the defendant had on a coat. The testimony for the defense was as follows: One witness testified that “the defendant, Robert Williams, did not draw a pistol, and did not have one at that time. He did not have on a coat.” Another witness testified: “I saw Robert Williams distinctly. He did not draw a pistol at that time, and did not have one that I saw. I was in full view of him all the time. If he had one I did not see it. He did not have on a coat.” Another witness testified: “Robert Williams did not draw a pistol and did not have one at that time that I could see. He did not have on a coat. He was in plain view of me, and if he had .a pistol I could have seen it.” All of the above testifying, as I construe it, was positive. In the case of Heywood v. State, 12 Ga. App. 643 (2), this court held: “Testimony that the witness was present and had as good opportunity to see the transaction as others who were present, and that no such transaction took place, because he did not see it, when he would have seen it if it had taken place, is positive testimony.” In the case of McConnell v. State, 67 Ga. 633 (4), the Supreme Court held that “It is positive to say that a thing did or did not happen; it is negative to say that a witness did not see or know of an event’s having transpired.” In the case of Neill v. State, quoted from supra, in the majority opinion, it clearly appeared that part of a witness’s testimony was negative. The court in its opinion in that case said: “It was negative as to the acts of Neill all the time that Neill was in the house. He could not testify that he saw Neill the whole time he was in the house.” (Italics mine.) In the instant ease the testimony of all the witnesses for the defendant was to the effect that the defendant was in full view of the witnesses during the whole period of the transaction testified to by the sole witness for the State.