Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3749, former Code 1882, § 3749, former Civil Code 1895, § 5144, former Penal Code 1895, § 986, former Civil Code 1910, § 5730, former Penal Code 1910, § 1012, former Code 1933, § 38-105, and former O.C.G.A. § 24-4-3 are included in the annotations for this Code section.

Degree of proof.

- Proof should be satisfactory, but the proof need not be perfectly clear or wholly unimpeached. M.J. Atkins & Co. v. Cobb, 56 Ga. 86 (1876) (decided under former Code 1873, § 3749); City Bank v. Kent, 57 Ga. 283 (1876); Poullain v. Poullain, 76 Ga. 420, 4 S.E. 92 (1886) (decided under former Code 1873, § 3749); Patton v. State, 117 Ga. 230, 43 S.E. 533 (1903);(decided under former Code 1882, § 3749);.

Conviction as prima facie evidence of murder.

- In a case in which a husband had been convicted of killing his wife, the estate executors were entitled to summary judgment for an order of distribution of life insurance proceeds under O.C.G.A. § 33-25-13. The husband's criminal conviction was prima facie evidence under former O.C.G.A. § 24-4-3 (see now O.C.G.A. § 24-14-3) that he was guilty of his wife's murder for the purpose of determining that he could not receive proceeds of an insurance policy on her life. Cont'l Cas. Co. v. Adamo, F.3d (11th Cir. July 1, 2008)(Unpublished) (decided under former O.C.G.A. § 24-4-3).

Preponderance of evidence.

- It is improper to charge in a civil case that proof must establish the contention to a reasonable and moral certainty; a preponderance or superior weight of evidence is sufficient. Supreme Conclave Knights of Damon v. Woods, 120 Ga. 328, 47 S.E. 940 (1904) (decided under former Civil Code 1895, § 5144); Youmans v. Moore, 11 Ga. App. 66, 74 S.E. 710 (1912); Masonic Relief Ass'n v. Hicks, 47 Ga. App. 499, 171 S.E. 215 (1933) (decided under former Civil Code 1910, § 5730); Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1 (1954); Hospital Auth. v. Eason, 113 Ga. App. 401, 148 S.E.2d 499 (decided under former Code 1933, § 38-105); 222 Ga. 536, 150 S.E.2d 812 (1966);(decided under former Code 1933, § 38-105);rev'd on other grounds,.

In a civil action under the Georgia RICO Act, given the similarities in the purpose and language of the federal and Georgia RICO statutes, together with the General Assembly's mandate to liberally construe the Act to effectuate the Act's remedial purposes, under O.C.G.A. § 16-14-2(b), the applicable standard of proof in state civil RICO actions was held to be a preponderance of the evidence; thus, the Supreme Court of Georgia overruled Simpson Consulting, Inc. v. Barclays Bank PLC, 227 Ga. App. 648 (1997), and those other cases holding to the contrary, specifically, Blanton v. Bank of America, 256 Ga. App. 103 (2002), In re Copelan, 250 Ga. App. 856 (2001) and Tronitec, Inc. v. Shealy, 249 Ga. App. 442 (2001). Williams Gen. Corp. v. Stone, 279 Ga. 428, 614 S.E.2d 758 (2005).

Preponderance standard establishing terms of lost document.

- In a divorce case, applying the preponderance of the evidence standard, and deferring to the trial court's finding that both a husband and a wife believed their opposing positions regarding the contents of a lost antenuptial agreement, the husband failed to prove the terms of the lost agreement, and the agreement could not be enforced. Coxwell v. Coxwell, 296 Ga. 311, 765 S.E.2d 320 (2014).

Charging entire former statute was not injuriously inapplicable to a civil case. Central of Ga. Ry. v. McGuire, 10 Ga. App. 483, 73 S.E. 702 (1912) (decided under former Civil Code 1910, § 5730).

Charge ignoring former statute in an action for debt was erroneous. Central of Ga. Ry. v. Swann, 144 Ga. 11, 85 S.E. 1001 (1915) (decided under former Civil Code 1910, § 5730).

Question for jury.

- Preponderance is a question for the jury and should be decided not from mere number of witnesses, but from interest, opportunity, and general deportment and manner of testifying. Clark v. Cassidy, 62 Ga. 607 (1879).

Question of law.

- When the evidence as a whole, with all reasonable inferences and deductions to be drawn therefrom, presents no conflict in any material particular, and points only to one result, and in that sense there is no question of fact to be determined, then it becomes a question of law, when the evidence is properly presented, to decide whether the verdict is supported by the evidence. Dyal v. Sanders, 194 Ga. 228, 21 S.E.2d 596 (1942).

In res ipsa loquitur case the plaintiff is not required to eliminate with certainty all other possible causes or inferences, which would mean that the plaintiff must prove a civil case beyond a reasonable doubt. All that is needed is evidence from which reasonable men can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not. It is enough that the court cannot say that the jury could not reasonably come to that conclusion. Hospital Auth. v. Eason, 113 Ga. App. 401, 148 S.E.2d 499, rev'd on other grounds, 222 Ga. 536, 150 S.E.2d 812 (1966).

Specific performance.

- Notwithstanding the former statute, to authorize specific performance of a parol contract for the sale of land or to authorize reformation of a written contract for such sale, the evidence must be so clear, strong, and satisfactory as to leave no reasonable doubt as to the agreement. Redman Bros. v. Mays, 129 Ga. 435, 59 S.E. 212 (1907) (decided under former Civil Code 1895, § 5144); Williams v. Segers, 147 Ga. 219, 93 S.E. 215 (1918); Gordon v. Spellman, 148 Ga. 394, 96 S.E. 1006 (1918) (decided under former Civil Code 1910, § 5730); Lloyd v. Redford, 148 Ga. 575, 97 S.E. 523 (1918); Allen v. Allen, 151 Ga. 278, 106 S.E. 81 (1921) (decided under former Civil Code 1910, § 5730); Ezell v. Mobley, 160 Ga. 872, 129 S.E. 532 (1925);(decided under former Civil Code 1910, § 5730);(decided under former Civil Code 1910, § 5730);(decided under former Civil Code 1910, § 5730).

Administrative hearings.

- Preponderance of evidence standard was applicable in a disciplinary proceeding conducted by the Board of Dentistry. Georgia Bd. of Dentistry v. Pence, 223 Ga. App. 603, 478 S.E.2d 437 (1996).

Instances when preponderance of evidence was sufficient.

- In the following cases the preponderance was sufficient to satisfy the jury: Berry v. Mathewes, 7 Ga. 457 (1849) (whether a party has waived lien given by contract) (decided under former law); M.J. Atkins & Co. v. Cobb, 56 Ga. 86 (1876) (proving that goods purchased were inferior) (decided under former Code 1873, § 3749); Crockett v. Crockett, 73 Ga. 647 (1884) (to correct a mistake in a voluntary deed) (decided under former Code 1882, § 3749); Poullain v. Poullain, 76 Ga. 420, 4 S.E. 92 (1886) (to overcome findings of fact by an auditor or master) (decided under former Code 1882, § 3749); Atlanta Journal v. Mayson, 92 Ga. 640, 18 S.E. 1010, 44 Am. St. R. 104 (1893) (in an action for libel although a plea of justification, imputes crime to the plaintiff) (decided under former Code 1882, § 3749); Drakeford v. Adams, 98 Ga. 722, 25 S.E. 833 (1896) (action by receiver to recover money to prove that the respondent had such money) (decided under former Civil Code 1895, § 5144); Brothers v. Horne, 140 Ga. 617, 79 S.E. 468 (1913) (to authorize a recovery in trover) (decided under former Civil Code 1910, § 5730); Harp v. Adams, 142 Ga. 5, 82 S.E. 246 (1914) (to prove the material allegations in a probate of a nuncupative will) (decided under former Civil Code 1910, § 5730); Cowart v. Strickland, 149 Ga. 397, 100 S.E. 447, 7 A.L.R. 1110 (1919) (to prove forgery of a deed in an action of ejectment) (decided under former Civil Code 1910, § 5730); Carter v. Norton, 25 Ga. App. 79, 102 S.E. 648 (1920) (in a plea of justification, in an action for slander) (decided under former Civil Code 1910, § 5730); Currie v. State, 153 Ga. 178, 111 S.E. 727 (1922) (defense of insanity on a trial for murder must be proved by a preponderance) (decided under former Civil Code 1910, § 5730); Goosby v. State, 153 Ga. 496, 112 S.E. 467 (1922) (insanity by preponderance of evidence in murder trial) (decided under former Civil Code 1910, § 5730); Mansor v. Opelinsky, 30 Ga. App. 158, 117 S.E. 113 (1923) (purchase price of goods) (decided under former Civil Code 1910, § 5730).

Proof required.

- Burden of proof is on the state to show that defendant's guilt to a moral and reasonable certainty and beyond a moral and reasonable doubt. Blakeley v. State, 78 Ga. App. 516, 51 S.E.2d 598 (1949) (decided under former Code 1933, § 38-105); Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1 (1954);.

Degree of certainty required.

- Mathematical certainty is not required and cannot be attained in a legal investigation; moral and reasonable certainty is all the law requires. McNaughton v. State, 136 Ga. 600, 71 S.E. 1038 (1911), appeal dismissed, 223 U.S. 744, 32 S. Ct. 532, 56 L. Ed. 639 (1912).

"Moral and reasonable certainty."

- Better practice in charging the jury on reasonable doubt is to omit the phrase "moral and reasonable certainty", since "what is perceived as 'moral' may differ from group to group, from class to class, and from individual to individual," and the equivocal nature of the term "reasonable" might conceivably lead a juror to apply to the evidence a lesser standard of proof than beyond a reasonable doubt. Gearin v. State, 208 Ga. App. 878, 432 S.E.2d 818 (1993).

Court's instruction that "No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty..." was not reasonably likely to be interpreted by the jury to allow conviction on proof not meeting the standard of beyond a reasonable doubt or on factors other than the government's proof when, in defining reasonable doubt, the court did not equate it with anything else and repeated the "beyond a reasonable doubt" standard many times. Nevertheless, the "moral certainty" terminology should not be used in jury instructions. Lloyd v. State, 214 Ga. App. 564, 448 S.E.2d 729 (1994).

Charging entire former statute not prejudicial.

- While it is the better practice in criminal cases to omit from the charge the portion of the former statute relating to preponderance of the evidence, no prejudicial error is shown when the entire former statute was charged. Howell v. State, 124 Ga. 698, 52 S.E. 649 (1906) (decided under former Penal Code 1895, § 986); Williams v. State, 125 Ga. 302, 54 S.E. 108 (1906); Holmes v. State, 131 Ga. 806, 63 S.E. 347 (1909) (decided under former Penal Code 1895, § 986); Brundage v. State, 7 Ga. App. 726, 67 S.E. 1051 (1910); Fowler v. State, 187 Ga. 472, 1 S.E.2d 18 (1939) (decided under former Penal Code 1895, § 986);(decided under former Penal Code 1910, § 1012);(decided under former Code 1933, § 38-105).

Failure to charge former statute not prejudicial.

- When the court properly instructs the jury as to the law of reasonable doubt, the failure to charge the provisions of the former statute afforded no cause for a new trial. Skinner v. State, 98 Ga. 126, 26 S.E. 475 (1896) (decided under former Penal Code 1895, § 986); Middleton v. State, 7 Ga. App. 1, 66 S.E. 22 (1909); Fort v. State, 31 Ga. App. 525, 121 S.E. 128 (1924) (decided under former Penal Code 1895, § 986); Albritton v. State, 175 Ga. 891, 166 S.E. 643 (1932);(decided under former Penal Code 1910, § 1012);(decided under former Penal Code 1910, § 1012).

Province of jury.

- When evidence is adduced to authorize a conviction in a criminal case, it is the province of the jury to decide the weight and credit to be given the evidence and whether the state's proof when considered together with that submitted on behalf of the defendant meets the standard of removing every reasonable doubt as to the guilt of the accused. Whitus v. State, 222 Ga. 103, 149 S.E.2d 130 (1966), rev'd on other grounds, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967).

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 173, 185.

C.J.S.

- 32A C.J.S., Evidence, §§ 1272, 1274, 1277.

ALR.

- Admissibility and probative force on issue as to mental condition, of evidence that one had been adjudged incompetent or insane, or had been confined in insane asylum, 7 A.L.R. 568; 68 A.L.R. 1309.

Quantum of proof in civil case on issue involving fraudulent, dishonest, or criminal misappropriation of property, 62 A.L.R. 1449.

Rule of reasonable doubt as applicable to proof of previous conviction for purpose of enhancing punishment, 79 A.L.R. 1337.

Degree or quantum of evidence required to establish oral rescission or modification of written contract, 94 A.L.R. 1278.

Reasonable doubt rule as applicable to evidence in civil case of facts amounting to felony or misdemeanor, 124 A.L.R. 1378.

Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362.

Conviction of perjury where one or more of elements is established solely by circumstantial evidence, 88 A.L.R.2d 852.

Admissibility of expert medical testimony as to future consequences of injury as affected by expression in terms of probability a possibility, 75 A.L.R.3d 9.