Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3699, former Code 1873, § 3752, former Code 1882, § 3752, former Civil Code 1895, § 5149, former Penal Code 1895, § 988, former Civil Code 1910, § 5735, former Penal Code 1910, § 1014, former Code 1933, § 38-113, and former O.C.G.A. § 24-4-20 are included in the annotations for this Code section.

Constitutionality.

- Presumption that allowed, but did not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that placed no burden of any kind on the defendant was not inherently unconstitutional, but was to be tested by a "rational connection" test asking if the ultimate fact to be presumed was more likely than not to flow from the proved fact. Whisenhunt v. State, 152 Ga. App. 829, 264 S.E.2d 271 (1979), cert. denied, 449 U.S. 886, 101 S. Ct. 241, 66 L. Ed. 2d 112 (1980) (decided under former Code 1933, § 38-113).

For a statutory presumption to pass constitutional muster, it must be shown with "substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980), aff'd in part and vacated in part on other grounds, 678 F.2d 511 (5th Cir. 1982), vacated, 463 U.S. 1222, 103 S. Ct. 3565, 77 L. Ed. 2d 1406 (1983) (remanded for further consideration in light of Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (decided under former Code 1933, § 38-113)).

Discussion of relationship of presumptions to due process.

- See Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

Presumption was an inference as to the existence of a fact not actually known arising from its necessary or usual connection with others which were known. Ivey v. State, 23 Ga. 576 (1857) (decided under former law).

Presumptions of fact are different from presumptions of law. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971) (decided under former Code 1933, § 38-113).

Presumptions of law and fact distinguished.

- Presumptions of fact were founded on actual probability, but it was impossible to sustain the doctrine of presumptions of law on the theory that they rest on a probability of fact. Morris v. State, 47 Ga. App. 792, 171 S.E. 555 (1933) (decided under former Penal Code 1910, § 1014).

Presumption of fact was same as inference. Carpenter v. State, 140 Ga. App. 368, 231 S.E.2d 97 (1976) (decided under former Code 1933, § 38-113).

Permissive inference almost identical to presumption of fact.

- No reversible error occurred when a trial court charged the jury in language of permissive inference rather than presumption of fact. A thin line exists at best between a permissible inference of fact and a rebuttable presumption of fact. Pouncey v. Adams, 206 Ga. App. 126, 424 S.E.2d 376 (1992) (decided under former O.C.G.A. § 24-4-20).

Inference drawn by common sense.

- Presumptions of fact are inferences as to the existence of some fact drawn from the existence of some other fact, inferences which common sense draws from circumstances usually occurring in such cases. Morris v. State, 47 Ga. App. 792, 171 S.E. 555 (1933) (decided under former Penal Code 1910, § 1014).

Derivation of presumptions of law.

- Presumptions of law were inferences or positions established for the most part, by the common law, but occasionally by statute, which were obligatory alike on judges and juries. Morris v. State, 47 Ga. App. 792, 171 S.E. 555 (1933) (decided under former O.C.G.A. § 24-4-20).

Function of presumption of law.

- Presumptions of law were rules which, in certain cases, either forbid or dispense with any further inquiry. Morris v. State, 47 Ga. App. 792, 171 S.E. 555 (1933) (decided under former Code 1933, § 38-113).

If presumption was mandatory, it was irrelevant whether other evidence was in the record in addition to basic facts from which presumption was drawn. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

When ultimate fact was element of crime charged, it may not rest on mandatory presumption. This was true in a case where presumption was the only proof of ultimate fact, and it was true in a case when there was additional proof of ultimate fact apart from presumption. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

Reliance on permissive presumption in criminal case.

- If the prosecution relied on permissive presumption as evidence of defendant's guilt, but offered other evidence of defendant's guilt, it may rely on all of evidence in the record to meet the standard of proof beyond a reasonable doubt. There need be only substantial assurance that the presumed fact was more likely than not to flow from the proved fact on which it was made to depend. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

When permissive presumption was sole and sufficient basis for finding of guilt, it was not enough that presumption met "more-likely-than-not" test. The presumed fact must follow from proved fact beyond a reasonable doubt in such cases. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

Court or jury drawing inference.

- When there was a legal presumption, the law did the reasoning, and drew the inference; when presumptions of fact were involved, the jury was left to do the reasoning, and to make an inference or not as the jury believed the premises warrant. Mitchell v. Mayor of Rome, 49 Ga. 19, 15 Am. R. 669 (1873) (decided under former Code 1868, § 3699); Jenkins v. Jenkins, 83 Ga. 283, 9 S.E. 541, 20 Am. St. R. 316 (1889);(decided under former Code 1882, § 3752).

Unrebutted presumption prevails.

- While a legal presumption was only prima facie true and may be rebutted, if it was not rebutted the law draws the conclusion. Good v. Tuggle, 52 Ga. App. 510, 183 S.E. 850 (1936) (decided under former Code 1933, § 38-113); Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970); 227 Ga. 258, 181 S.E.2d 283, aff'd in part and rev'd in part on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971), vacated on other grounds, Strother Ford, Inc. v. First Nat'l Bank, 132 Ga. App. 268, 208 S.E.2d 25 (1974) (decided under former Code 1933, § 38-113);(decided under former Code 1933, § 38-113).

Testimony outweighs presumption.

- Bare presumptions of law give way to testimony, which may shift the burden of proof or of proceeding to the opposite party, who was not then entitled to prevail upon the presumption alone. Jarvis v. State, 71 Ga. App. 617, 31 S.E.2d 673 (1944) (decided under former Code 1933, § 38-113).

Presumption yields to direct evidence.

- Prima facie presumption that negotiable paper is issued for a valuable consideration yields to direct, uncontradicted, and unimpeached evidence that there was in fact no consideration. Goldstein v. Drexler, 102 Ga. App. 90, 115 S.E.2d 744 (1960) (decided under former Code 1933, § 38-113).

Presumption of fact for jury.

- Presumptions of fact are exclusively questions for the jury. Kinnebrew v. State, 80 Ga. 232, 5 S.E. 56 (1887) (decided under former Code 1882, § 3752); Templeton v. Kennesaw Life & Accident Ins. Co., 216 Ga. 770, 119 S.E.2d 549 (1961); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 136 S.E.2d 351 (1964) (decided under former Code 1933, § 38-113);(decided under former Code 1933, § 38-113).

Choice among inferences.

- When a given state of facts bears several different interpretations, it is the function of the jury to say which one of the facts should be adopted, but when only one reasonable inference can be drawn therefrom, the question resolves itself into one of law, and may be determined by the court. Callaway v. Barmore, 32 Ga. App. 665, 124 S.E. 382 (1924) (decided under former Civil Code 1910, § 5735).

Rebuttal for jury.

- Whether a presumption has been successfully rebutted with testimony is ordinarily a question for the jury. Jarvis v. State, 71 Ga. App. 617, 31 S.E.2d 673 (1944) (decided under former Code 1933, § 38-113).

Jury determination of rebutted presumption.

- Pest Masters, Inc. v. Callaway, 133 Ga. App. 123, 210 S.E.2d 243 (1974) is overruled to the extent it holds that "the facts arising from presumption, although rebutted by uncontradicted evidence, must be determined by a jury." Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186, aff'd, 151 Ga. App. 835, 262 S.E.2d 643 (1979) (decided under former Code 1933, § 38-113).

Presumptions in civil cases have an effect at two stages during a jury trial: when a party moves for a directed verdict; and when the trial court instructs the jury. Under Georgia law, a rebuttable presumption of law generally does not vanish when the opposing party introduces evidence contrary to the presumption, and it does not matter how much counter evidence the opponent has presented to rebut the presumed fact, the presumption remains alive through jury instructions and can only disappear if the jury decides to discount it. Beach v. Lipham, 276 Ga. 302, 578 S.E.2d 402 (2003) (decided under former O.C.G.A. § 24-4-20).

Rebuttal of valid marriage presumption.

- Presumption as to the validity of a marriage can only be negatived by disproving every reasonable possibility. State Hwy. Bd. v. Lewis, 46 Ga. App. 162, 167 S.E. 219 (1932) (decided under former Civil Code 1910, § 5735).

Verdict not disturbed.

- When there is proof of facts or circumstances to support the presumption, and the evidence as a whole is conflicting, a verdict in favor of either party will not be disturbed upon general grounds. Jarvis v. State, 71 Ga. App. 617, 31 S.E.2d 673 (1944) (decided under former Code 1933, § 38-113).

No presumption of marriage.

- There was no presumption of law or fact that a given person was married or single. Neil v. State, 117 Ga. 14, 43 S.E. 435 (1903) (decided under former Civil Code 1895, § 5149).

Doctrine of presumption of continuity.

- Whether the doctrine of presumption of continuity - a state of things once existing is presumed to continue until a change occurs - holds true in a particular case is a question for jury determination. Mattison v. Travelers Indem. Co., 157 Ga. App. 372, 277 S.E.2d 746 (1981) (decided under former Code 1933, § 38-113).

Continuation of marriage.

- Marriage once shown to exist, nothing more appearing, was presumed to continue in existence until rebutted by proof of the marriage's dissolution. Walker v. Hall, 123 Ga. App. 457, 181 S.E.2d 508 (1971) (decided under former Code 1933, § 38-113).

Dissolution of first marriage.

- When a second marriage by a person is established, and it is shown that he or she had previously married another person, who was living at the time of the second marriage, the presumption is that the first marriage had been dissolved by a decree of divorce, and the burden is upon the person attacking the validity of the second marriage to show that a divorce had not been granted. State Hwy. Bd. v. Lewis, 46 Ga. App. 162, 167 S.E. 219 (1932) (decided under former Penal Code 1910, § 5735).

Presumption of death.

- When a person moves from this state to a point in another state, and, upon inquiry at such point in the other state, ascertains that the person has been gone and is unaccounted for and unheard of for the past seven years or longer, the presumption of the continuance of life ceases, and a legal presumption as to the person's death at the end of the seven years arises. Goode v. Tuggle, 52 Ga. App. 510, 183 S.E. 850 (1936) (decided under former Code 1933, § 38-113).

Presumption against suicide.

- While proof of death alone, no other facts appearing, is sufficient to raise a presumption against suicide, it is necessary that not only death be shown, but also that death be caused by violent and external means in order to raise a presumption of accidental death. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971) (decided under former Code 1933, § 38-113).

Qualification of officer.

- When it appeared from the minutes of the court that a named person was selected as bailiff, a presumption arose that the person was duly sworn and qualified to act in that capacity. Zeigler v. State, 2 Ga. App. 632, 58 S.E. 1066 (1907) (decided under former Civil Code 1895, § 5149). Bird v. State, 53 Ga. 602 (1875) See also (decided under former Code 1873, § 3752).

Duties of officers.

- All officers are presumed to have properly discharged their sworn official duties. Kirk v. State, 73 Ga. 620 (1884) (decided under former Code 1882, § 3752); Nixon v. Lehman, 137 Ga. 516, 73 S.E. 747 (1912); Alston v. Mobley, 42 Ga. App. 98, 155 S.E. 81 (1930) (decided under former Penal Code 1910, § 1014); Jarrett v. City of Boston, 209 Ga. 530, 74 S.E.2d 549 (1953);(decided under former Penal Code 1910, § 1014);(decided under former Code 1933, § 38-113).

Officer within authority.

- It will be presumed that an officer has not exceeded the officer's authority, unless some showing to the contrary is made. Jones v. McCrary, 123 Ga. 282, 51 S.E. 349 (1905) (decided under former Penal Code 1895, § 988); Jarrett v. City of Boston, 209 Ga. 530, 74 S.E.2d 549 (1953);(decided under former Code 1933, § 38-113).

Genuineness of deed.

- Deed attested by three witnesses, one of whom is an officer authorized by law to attest deeds, and recorded is admissible in evidence without further proof of the deed's execution, and all presumptions are in favor of its genuineness. Guthrie v. Gaskins, 171 Ga. 303, 155 S.E. 185 (1930) (decided under former Civil Code 1910, § 5735).

Honesty.

- Law presumed all men honest in their dealings. Eaves v. Fears, 131 Ga. 820, 64 S.E. 269 (1909) (decided under former Civil Code 1895, § 5149).

Physical and mental soundness.

- There was a general presumption that the ordinary human facilities were possessed by every individual and in the absence of proof the law presumed soundness both as to mental and bodily functions. Holcombe v. State, 5 Ga. App. 47, 62 S.E. 647 (1908) (decided under former Civil Code 1895, § 5149).

Legality of warrant.

- Nothing to the contrary appearing, the presumption is that the warrant was regularly and legally issued. Hilburn v. State, 121 Ga. 344, 49 S.E. 318 (1904) (decided under former Penal Code 1895, § 3988).

Indictment not presumed lawful.

- Indictment will not be presumed regularly returned into court when no return was entered on minutes at term indictment was found. Bowen v. State, 81 Ga. 482, 8 S.E. 736 (1889) (decided under former Code 1882, § 3752).

Interlineations proper.

- Interlineations appearing in an accusation will be presumed to have been made at the proper time and by the proper authority. Crawford v. State, 4 Ga. App. 789, 62 S.E. 501 (1908) (decided under former Civil Code 1895, § 5149).

Influence of juror.

- When a juror overheard remarks prejudicial to the accused, the juror was presumed to be influenced thereby. Downer v. State, 10 Ga. App. 827, 74 S.E. 301 (1912) (decided under former Penal Code 1910, § 1014).

Stolen goods.

- Unsatisfactorily explained possession of stolen goods raises a presumption of guilt against their possessor. This presumption, however, is one of fact, and not of law. Holliday v. State, 23 Ga. App. 400, 98 S.E. 386 (1919) (decided under former Penal Code 1910, § 1910); Morris v. State, 47 Ga. App. 792, 171 S.E. 555 (1933); Stevenson v. State, 143 Ga. App. 813, 240 S.E.2d 123 (1977) (decided under former Code 1933, § 38-113);(decided under former Code 1933, § 38-113).

Recent unexplained possession of stolen goods was a circumstance sufficient to authorize a jury to find that the accused was guilty as charged (assuming other elements of the crime were proved) but it did not create a presumption of law against the accused, and it was not of itself necessarily proof of the accused's guilt. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

While it was the rule that recent unexplained possession of stolen property permitted the jury to infer that the accused committed the theft, it should be emphasized that recent unexplained possession created only a permissible inference of guilt of a "presumption of fact" in terms of former Code 1933, § 38-113 which the jury may or may not draw. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

To convict a accused, the state must prove that: (1) goods in accused's possession were recently stolen; and (2) someone committed the crime. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

Theft.

- Nearer the possession to the time of theft, the stronger will be the inference of guilt; and question of result of lapse of time was for jury. Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981) (decided under former Code 1933, § 38-113).

Confinement to chain gang lawful.

- When a person was confined to the chain gang, the presumption was that the person was lawfully confined there. Williford v. State, 121 Ga. 173, 48 S.E. 962 (1904) (decided under former Penal Code 1895, § 988).

Medical negligence and due care pattern jury instructions.

- Although the presumption of due care pattern jury instructions was a correct statement of the law, in discussing the presumption that health care professionals exercise due care, the pattern jury instruction needs to explain more clearly the presumption's relationship to the plaintiff's burden of proof and the defendant's standard of care. The jury needs to be instructed that: (1) the law presumes that physicians or other medical professionals perform medical services in an ordinarily skillful manner; (2) the person claiming an injury may overcome this legal presumption by introducing evidence that the physician did not treat the patient in an ordinarily skillful manner; (3) expert medical testimony is required to overcome the presumption; and (4) the plaintiff's burden in proving the physician's lack of due care and skill is by the preponderance of the evidence. These suggested changes are intended to uphold the tradition of having physicians judged by their peers while ensuring that jurors are instructed that the due-care presumption does not change the plaintiff's burden of proof in medical negligence cases. Beach v. Lipham, 276 Ga. 302, 578 S.E.2d 402 (2003) (decided under former O.C.G.A. § 24-4-20).

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 7, 198.

9A Am. Jur. Pleading and Practice Forms, Evidence, § 103.

C.J.S.

- 31A C.J.S., Evidence, § 173 et seq.

ALR.

- Presumption from derailment as requiring submission of carrier's negligence to jury in action by passenger, notwithstanding uncontradicted evidence negativing negligence, 23 A.L.R. 1214.

Presumption and burden of proof as to carrier's responsibility for goods received in good condition and delivered to consignee in bad condition, 53 A.L.R. 996; 106 A.L.R. 1156.

Presumption and burden of proof as to loss from failure of pledgee to sell or collect choses in action pledged, 53 A.L.R. 1075.

Province of court and jury respectively as to construction of written contract where extrinsic evidence as to intention has been introduced, 65 A.L.R. 648.

Governing law as regards presumption and burden of proof, 78 A.L.R. 883; 168 A.L.R. 191.

Voluntariness of confession admitted by court as question for jury, 85 A.L.R. 870; 170 A.L.R. 567.

Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 86 A.L.R. 179; 162 A.L.R. 495.

Rebuttal of presumption of receipt of letter properly mailed and addressed, 91 A.L.R. 161.

Presumption and burden of proof of settlement in action by one town or poor district against another for support of pauper, 99 A.L.R. 457.

Presumption of ownership of automobile by one in whose name it is registered or whose license plates it bears, 103 A.L.R. 138.

Presumption against suicide as evidence, 103 A.L.R. 185; 158 A.L.R. 747.

Construction, application, and effect of provision of statute or policy which raises a presumption of total and permanent disability of insured after continuation of disability for a specified period, 110 A.L.R. 631.

Presumption of death as evidence, 115 A.L.R. 404.

Distinction between effect of fact to create presumption of further fact and its effect as prima facie evidence of the further fact in determining burden of proof and weight of evidence, 121 A.L.R. 1078.

Presumption and burden of proof regarding mitigation of damages, 134 A.L.R. 242.

Presumption that description by reference to highway carries fee to center thereof, as affected by presence of water system or other apparatus under highway, 147 A.L.R. 667.

Statute which places burden of proof as to contributory negligence on defendant or creates a presumption against contributory negligence as applicable to actions by one person for consequential damages resulting from injury to another, 147 A.L.R. 726.

May presumption rest upon admission by opponent's pleading without proof of constituent fact, 153 A.L.R. 1106.

Presumption and burden of proof as regards continuance or revocation of will produced for probate, 165 A.L.R. 1188.

Overcoming inference or presumption of driver's agency for owner, or latter's consent to operation, of automobile, 5 A.L.R.2d 196.

Inference of malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.

Validity of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood, 46 A.L.R.2d 1176.

Judicial notice of intoxicating quality, and the like, of a liquor or particular liquid, from its name, 49 A.L.R.2d 764.

Spontaneity of declaration sought to be admitted as part of res gestae as question for court or ultimately for jury, 56 A.L.R.2d 372.

Presumption against suicide as overcome as a matter of law by physical facts related to death in action on accident or life insurance policy, 85 A.L.R.2d 722.

Effect of presumption as evidence or upon burden of proof, where controverting evidence is introduced, 5 A.L.R.3d 19.

Modern status of the rules against basing an inference upon an inference or a presumption upon a presumption, 5 A.L.R.3d 100.

Relation back of presumption of continuance of condition of property, 7 A.L.R.3d 1302.

Validity and construction of statute creating presumption or inference of intent to sell from possession of specified quantity of illegal drugs, 60 A.L.R.3d 1128.

Presumption of payment as applicable to bank deposit, 69 A.L.R.3d 1311.

Amnesiac as entitled to presumption of due care, 88 A.L.R.3d 622.