O.C.G.A. § 24-14-4 (2019)

Annotations

Law reviews. For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION INSTRUCTIONS 1. CIVIL CASES 2. CRIMINAL CASES EXAMPLES 1. CIVIL CASES 2. CRIMINAL CASES General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5146, former Civil Code 1910, § 5732, former Code 1933, § 38-107, and former O.C.G.A. § 24-4-4 are included in the annotations for this Code section. Former statute not mandatory as to jury. - Directions in the former statute were for the jury only and not mandatory as to the jury but merely addressed to the jury’s discretion. Alexander v. State, 1 Ga. App. 289, 57 S.E. 996, 1907 Ga. App. LEXIS 220 (1907) (decided under former Civil Code 1895, § 5146). Jury “may” consider rules. - It was

not error to charge that jury “may” consider the rules of the former statute. Louisville & N.R.R. v. Rodgers, 21 Ga. App. 324, 94 S.E. 321, 1917 Ga. App. LEXIS 587 (1917) (decided under former Civil Code 1910, § 5732); Hatcher v. Bray, 88 Ga. App. 344, 77 S.E.2d 64, 1953 Ga. App. LEXIS 1085 (1953) (decided under former Code 1933, § 38-107). Jury “will” consider rules. - There was no error in using the word “will” instead of the word “may” in connection with the former statute. Robinson v. State, 158 Ga. 47, 122 S.E. 886, 1924 Ga. LEXIS 76 (1924) (decided under former Civil Code 1910, § 5732). Province of jury. - It is the province of the jury to determine the credibility of

General Consideration (Cont’d) witnesses. Caldwell v. Caldwell, 59 Ga. App. 637, 1 S.E.2d 764, 1939 Ga. App. LEXIS 380 (1939) (interest of witness) (decided under former Code 1933, § 38107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708, 1945 Ga. App. LEXIS 410 (1945) (bias of witness) (decided under former Code 1933, § 38-107); Pantone v. Pantone, 206 Ga. 305, 57 S.E.2d 77, 1950 Ga. LEXIS 332 (1950) (weight and credit of testimony) (decided under former Code 1933, § 38-107); Harrison v. Regents of Univ. Sys., 99 Ga. App. 762, 109 S.E.2d 854, 1959 Ga. App. LEXIS 959 (1959) (interest of witness) (decided under former Code 1933, § 38-107); Freedman v. Housing Auth., 108 Ga. App. 418, 136 S.E.2d 544, 1963 Ga. App. LEXIS 663 (1963) (bias of witness) (decided under former Code 1933, § 38-107); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133, 1972 Ga. App. LEXIS 1366 (1972) (credibility of party) (decided under former Code 1933, § 38-107); Brown Transp. Co. v. Parker, 129 Ga. App. 737, 201 S.E.2d 17, 1973 Ga. App. LEXIS 1131 (1973) (party at interest) (decided under former Code 1933, § 38-107). Within the closing argument presented by the state, the probability or improbability of a police officer’s testimony, as well as an interest or want of interest and personal credibility, could properly be considered by the jury. Cantrell v. State, 290 Ga. App. 651, 660 S.E.2d 468, 2008 Ga. App. LEXIS 394 (2008) (decided under former O.C.G.A. § 24-4-4). Equal credibility of witnesses. - Personal credibility of the witnesses in conflict must first be equal before the other contingencies named in the former statute will apply equally. Nashville, C. & S.L. Ry. v. Hubble, 139 Ga. 300, 76 S.E. 1009, 1913 Ga. LEXIS 410 (1913) (decided under former Civil Code 1910, § 5732); Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834, 1940 Ga. App. LEXIS 554 (1940) (decided under former Code 1933, § 38-107). Unimpeached witnesses. - Rule that the uncontradicted testimony of unimpeached witnesses cannot be arbitrarily disregarded does not mean that the

jury are obliged to believe testimony which the jury in fact discredits, but means that the jury are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness. Caldwell v. Caldwell, 59 Ga. App. 637, 1 S.E.2d 764, 1939 Ga. App. LEXIS 380 (1939) (decided under former Code 1933, § 38-107); American Cas. Co. v. Windham, 26 F. Supp. 261, 1939 U.S. Dist. LEXIS 3116 (D. Ga.), aff’d, 107 F.2d 88, 1939 U.S. App. LEXIS 2687 (5th Cir. 1939); Pantone v. Pantone, 206 Ga. 305, 57 S.E.2d 77, 1950 Ga. LEXIS 332 (1950) (decided under former Code 1933, § 38-107); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133, 1972 Ga. App. LEXIS 1366 (1972) (decided under former Code 1933, § 38-107); Brown Transp. Co. v. Parker, 129 Ga. App. 737, 201 S.E.2d 17, 1973 Ga. App. LEXIS 1131 (1973) (decided under former Code 1933, § 38-107). Testimony of party who offers oneself as a witness in one’s own behalf is to be construed most strongly against that party. Western & Atl. R.R. v. Michael, 42 Ga. App. 603, 157 S.E. 226, 1931 Ga. App. LEXIS 63 (1931) (decided under former Civil Code 1910, § 5732). Equivocal testimony of party. - Testimony of a party who offers oneself as a witness in one’s own behalf is to be construed most strongly against that party when it is self-contradictory, vague, or equivocal. Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495, 1980 Ga. App. LEXIS 2040 (1980) (decided under former Code 1933, § 38-107). Court’s charge to jury that equivocal testimony of a party is to be construed most strongly against that party and that there should not be a finding in that party’s favor if that version would support a verdict against that party is reversible error when other competent evidence supports the equivocal testimony of that witness, because such a charge unjustly prejudices the jury. Weathers v. Cowan, 176 Ga. App. 19, 335 S.E.2d 392, 1985 Ga. App. LEXIS 2841 (1985) (decided under former O.C.G.A. § 24-4-4). Testimony of principal witness. - Instruction that “when the testimony of a party or a principal witness is vague, equivocal or self-contradictory, it should

be construed most strongly against the cause for which he is testifying” violates the former statute unless the party is the sole witness testifying in that party’s behalf. Slaton Mach. Sales, Inc. v. OwensIllinois, Inc., 138 Ga. App. 80, 225 S.E.2d 473, 1976 Ga. App. LEXIS 2061 (1976) (decided under former Code 1933, § 38107). Unwillingness of witness to commit oneself. - Testimony of a witness is not to be excluded merely because the witness prefaces the witness’s statement by an expression of unwillingness to commit oneself absolutely and positively to the accuracy of what one says. Holcombe v. State, 5 Ga. App. 47, 62 S.E. 647, 1908 Ga. App. LEXIS 11 (1908) (decided under former Civil Code 1895, § 5146). Number of witnesses. - While a plaintiff may sustain plaintiff’s case by the greater number of witnesses, this does not necessarily mean that the preponderance of the testimony is in the plaintiff’s favor. Sometimes, in the minds of jurors, the testimony of one witness is of more weight and credit than that of a host of witnesses. McGriff v. McGriff, 154 Ga. 560, 115 S.E. 21, 1922 Ga. LEXIS 419 (1922) (decided under former Civil Code 1910, § 5732). When number of witnesses equal. - Ruling that it might amount to reversible error, in charging the provisions of the former statute, to fail to include in the charge the provision that “the jury may also consider the number of witnesses, though the preponderance is not necessary with the greater number,” does not apply to a case if the number of witnesses on both sides are the same. Atlanta GasLight Co. v. Cook, 35 Ga. App. 622, 134 S.E. 198, 1926 Ga. App. LEXIS 1037 (1926) (decided under former Civil Code 1910, § 5732). Argument to jury concerning credibility. - While it is the right of counsel for the defendant in counsel’s argument to the jury to comment on the credibility of a witness for the state, and to accuse the witness of having committed perjury, counsel has no absolute right while doing so to point the witness out to the jury as the witness sits in the courtroom. Corley v. State, 64 Ga. App. 841, 14 S.E.2d 121,

1941 Ga. App. LEXIS 526 (1941) (decided under former Code 1933, § 38-107). Argument to jury concerning deposition testimony. - Counsel may by argument call attention to the fact that the opponent relied on written depositions, and that this manner of the witnesses in testifying cannot in this way be observed, although the witnesses themselves were in court. Georgia, Fla. & Ala. Ry. v. Sasser, 4 Ga. App. 276, 61 S.E. 505, 1908 Ga. App. LEXIS 271 (1908) (decided under former Civil Code 1895, § 5146). Personal knowledge of juror. - Juror must not consider any personal knowledge that the juror might have in reference to the plaintiff’s character. Georgia Ry. & Elec. Co. v. Dougherty, 4 Ga. App. 614, 62 S.E. 158, 1908 Ga. App. LEXIS 489 (1908) (decided under former Civil Code 1895, § 5146). Preponderance of evidence justified immunity to educator. - When the defendant, a special education teacher, was indicted on six counts of cruelty to children and five counts of false imprisonment for actions involving five students, the defendant was entitled to the benefits of the immunity statute because the evidence was sufficient to show by a preponderance of the evidence that the defendant’s actions were undertaken to maintain discipline and restore order in the defendant’s classroom; and that the defendant acted in good faith as the defendant told an investigator that the defendant’s actions were never malicious, that the defendant never tried to hurt any of the students, and that whatever the defendant did with the students was aimed at helping the students. State v. Pickens, 330 Ga. App. 862, 769 S.E.2d 594, 2015 Ga. App. LEXIS 78 (2015), cert. denied, No. S15C1016, 2015 Ga. LEXIS 403 (Ga. May 26, 2015). Appellate court considers only the sufficiency of the evidence; the weight of the evidence is within the sole province of the jury. Sherman v. Stephens, 30 Ga. App. 509, 118 S.E. 567, 1923 Ga. App. LEXIS 519 (1923) (decided under former Civil Code 1910, § 5732); Reaves v. Columbus Elec. & Power Co., 32 Ga. App. 140, 122 S.E. 824, 1924 Ga. App. LEXIS 316 (1924); Crawley v. Marta, 147 Ga.

General Consideration (Cont’d) App. 293, 248 S.E.2d 555, 1978 Ga. App. LEXIS 2658 (1978) (decided under former Code 1933, § 38-107); Coleman v. State, 150 Ga. App. 380, 258 S.E.2d 12, 1979 Ga. App. LEXIS 2323 (1979) (decided under former Code 1933, § 38-107). Instructions 1. Civil Cases Failure to charge on preponderance of the evidence is not error in the absence of a special request. - See Freeman v. Coleman Ray & Co., 88 Ga. 421, 14 S.E. 551, 1892 Ga. LEXIS 34 (1892) (decided under former law); Rome Ry. & Light Co. v. King, 33 Ga. App. 383, 126 S.E. 294, 1925 Ga. App. LEXIS 785 (1925) (decided under former Civil Code 1910, § 5732); Loftin v. Carroll County Bd. of Educ., 70 Ga. App. 315, 28 S.E.2d 372, 1943 Ga. App. LEXIS 305 (1943) (decided under former Code 1933, § 38107); Flatauer v. Goodman, 84 Ga. App. 881, 67 S.E.2d 794, 1951 Ga. App. LEXIS 814 (1951) (decided under former Code 1933, § 38-107). Instruction must be full and complete. - If the court undertakes to charge the jury on the preponderance of the evidence as laid down in the former statute, it is the court’s duty to instruct the jury fully and completely with respect thereto and not merely to charge certain portions of that statute. A.F. Gossett & Sons v. Wilder, 46 Ga. App. 651, 167 S.E. 903, 168 S.E. 903, 1933 Ga. App. LEXIS 161 (1933) (decided under former Code 1933, § 38107); Travelers Indem. Co. v. Paramount Publix Corp., 52 Ga. App. 239, 182 S.E. 923, 1935 Ga. App. LEXIS 121 (1935) (decided under former Code 1933, § 38107); Sconyers v. State, 67 Ga. App. 902, 21 S.E.2d 504, 1942 Ga. App. LEXIS 534 (1942) (decided under former Code 1933, § 38-107); Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610, 1942 Ga. LEXIS 569 (1942) (decided under former Code 1933, § 38-107); Smaha v. George, 195 Ga. 412, 24 S.E.2d 385, 1943 Ga. LEXIS 505 (1943) (decided under former Code 1933, § 38107); Turner v. Joiner, 77 Ga. App. 603, 48 S.E.2d 907, 1948 Ga. App. LEXIS 603

(1948) (decided under former Code 1933, § 38-107); Southern Ry. v. Florence, 81 Ga. App. 1, 57 S.E.2d 856, 1950 Ga. App. LEXIS 806 (1950) (decided under former Code 1933, § 38-107); Georgia Power Co. v. Pittman, 92 Ga. App. 673, 89 S.E.2d 577, 1955 Ga. App. LEXIS 685 (1955) (decided under former Code 1933, § 38107); Bell v. Proctor, 212 Ga. 325, 92 S.E.2d 514, 1956 Ga. LEXIS 357 (1956) (decided under former Code 1933, § 38107); Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343, 1959 Ga. App. LEXIS 891 (1959) (decided under former Code 1933, § 38-107). Incomplete charge not necessarily reversible. - If the language in A.F. Gossett & Sons v. Wilder, 46 Ga. App. 651, 168 S.E. 903 (1933), is so construed that it is always reversible error for a trial judge, in charging the provisions of the former statute, to omit any of the provisions therein, such language is expressly disapproved. Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834, 1940 Ga. App. LEXIS 554 (1940) (decided under former Code 1933, § 38-107). Existence of reversible error depends on particular facts. - In charging to the jury the provisions of the former statute, the better practice is to charge the former statute in its entirety, but the omission of some of the provisions, may or may not be error, depending on the facts of the case. Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834, 1940 Ga. App. LEXIS 554 (1940) (decided under former Code 1933, § 38-107); Callaway v. Fischer, 69 Ga. App. 251, 25 S.E.2d 131, 1943 Ga. App. LEXIS 56 (1943) (decided under former Code 1933, § 38-107); Cedrone v. Beck, 74 Ga. App. 488, 40 S.E.2d 388, 1946 Ga. App. LEXIS 572 (1946) (decided under former Code 1933, § 38107); City of Louisville v. Clark, 108 Ga. App. 389, 133 S.E.2d 45, 1963 Ga. App. LEXIS 657 (1963) (decided under former Code 1933, § 38-107); Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74, 1966 Ga. App. LEXIS 1029 (1966) (decided under former Code 1933, § 38-107). Former statute as means for determining credibility. - It was not error to charge that the language of the former statute is also a means for determining

the credibility of witnesses. Andrews Taxi & U-Drive It Co. v. McEver, 101 Ga. App. 383, 114 S.E.2d 145, 1960 Ga. App. LEXIS 883 (1960) (decided under former Code 1933, § 38-107); Collins v. Porterfield, 102 Ga. App. 294, 116 S.E.2d 105, 1960 Ga. App. LEXIS 603 (1960) (decided under former Code 1933, § 38-107); Chandler v. Alabama Power Co., 104 Ga. App. 521, 122 S.E.2d 317, 1961 Ga. App. LEXIS 731 (1961). Detailed charge unauthorized. - Trial court is not authorized to charge a jury in specific detail as to certain testimony neutralizing other testimony because what has been proven is solely and exclusively to be determined by the jury. Fules, Inc. v. Rutland, 123 Ga. App. 23, 179 S.E.2d 290, 1970 Ga. App. LEXIS 712 (1970) (decided under former Code 1933, § 38-107). Error must be shown. - Even if the court has not instructed in the terms of the former statute, error must be shown for a reversal. Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100, 1924 Ga. App. LEXIS 548 (1924) (decided under former Civil Code 1910, § 5732). Specific exceptions. - In order to take advantage of an omission to charge a specific part of the former statute, it is necessary to make specific exception. Harris v. Central of Ga. Ry., 30 Ga. App. 720, 119 S.E. 349, 1923 Ga. App. LEXIS 645 (1923) (decided under former Civil Code 1910, § 5732). 2. Criminal Cases Applicability to credibility. - Insofar as the former statute relates to matters pertinent to the consideration of the credibility of witnesses, the former statute may be given in a charge to the jury in a criminal case. Bell v. State, 47 Ga. App. 216, 169 S.E. 732, 1933 Ga. App. LEXIS 350 (1933) (decided under former Code 1933, § 38-107); Campbell v. State, 53 Ga. App. 380, 186 S.E. 137, 1936 Ga. App. LEXIS 127 (1936) (decided under former Code 1933, § 38-107); Moore v. State, 57 Ga. App. 287, 195 S.E. 320, 1938 Ga. App. LEXIS 569 (1938) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708, 1945 Ga. App. LEXIS 410 (1945) (decided under

former Code 1933, § 38-107); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263, 1943 Ga. LEXIS 318, cert. denied, 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468, 1943 U.S. LEXIS 227 (1943); McDonald v. State, 104 Ga. App. 578, 122 S.E.2d 145, 1961 Ga. App. LEXIS 739 (1961) (decided under former Code 1933, § 38-107). Inapplicability to quantum of proof. - This statute, insofar as it relates to the determination of where the preponderance of the evidence lies has no application to a criminal case and should not be charged. Baker v. State, 47 Ga. App. 205, 170 S.E. 209, 1933 Ga. App. LEXIS 345 (1933) (decided under former Code 1933, § 38-107); Eller v. State, 48 Ga. App. 163, 172 S.E. 592, 1934 Ga. App. LEXIS 3 (1934) (decided under former Code 1933, § 38-107); Sconyers v. State, 67 Ga. App. 902, 21 S.E.2d 504, 1942 Ga. App. LEXIS 534 (1942) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708, 1945 Ga. App. LEXIS 410 (1945) (decided under former Code 1933, § 38-107); McDonald v. State, 104 Ga. App. 578, 122 S.E.2d 145, 1961 Ga. App. LEXIS 739 (1961) (decided under former Code 1933, § 38-107). Harmless error. - While it is ordinarily inapt to charge the former statute in a criminal case, doing so is not reversible error if the instruction appears to be harmless. Eller v. State, 48 Ga. App. 163, 172 S.E. 592, 1934 Ga. App. LEXIS 3 (1934) (decided under former Code 1933, § 38-107); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263, 1943 Ga. LEXIS 318, cert. denied, 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468, 1943 U.S. LEXIS 227 (1943); Harper v. State, 201 Ga. 10, 39 S.E.2d 45, 1946 Ga. LEXIS 434 (1946) (decided under former Code 1933, § 38-107); Fountain v. State, 207 Ga. 144, 60 S.E.2d 433, 1950 Ga. LEXIS 424 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608, 216 S.E.2d 855, 1975 Ga. LEXIS 1199 (1975) (decided under former Code 1933, § 38-107).. Examples 1. Civil Cases Failure to charge certain portions of statute harmful error in the follow-

Civil Cases (Cont’d) ing cases: Hinson v. Hooks, 27 Ga. App. 430, 108 S.E. 822, 1921 Ga. App. LEXIS 946 (1921) (number of witnesses) (decided under former Civil Code 1910, § 5732); Farmers State Bank v. Kelley, 166 Ga. 683, 144 S.E. 258, 1928 Ga. LEXIS 378 (1928) (number of witnesses) (decided under former Civil Code 1910, § 5732); Shankle v. Crowder, 174 Ga. 399, 163 S.E. 180, 1932 Ga. LEXIS 59 (1932) (credibility) (decided under former Civil Code 1910, § 5732); Tucker v. Talmadge, 186 Ga. 798, 198 S.E. 726, 1938 Ga. LEXIS 661 (1938) (number of witnesses) (decided under former Code 1933, § 38-107); Garner v. Wood, 188 Ga. 463, 4 S.E.2d 137, 1939 Ga. LEXIS 548 (1939) (number of witnesses) (decided under former Code 1933, § 38-107); Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610, 1942 Ga. LEXIS 569 (1942) (intelligence of witnesses and nature of facts to which the witnesses testified) (decided under former Code 1933, § 38-107); Edge v. Dorsey, 78 Ga. App. 70, 50 S.E.2d 227, 1948 Ga. App. LEXIS 683 (1948) (number of witnesses) (decided under former Code 1933, § 38107); Bank of Loganville v. Briscoe, 93 Ga. App. 558, 92 S.E.2d 326, 1956 Ga. App. LEXIS 800 (1956) (probability of testimony) (decided under former Code 1933, § 38-107); Bell v. Proctor, 93 Ga. App. 816, 92 S.E.2d 807, 1956 Ga. App. LEXIS 872 (1956) (interest of witnesses) (decided under former Code 1933, § 38-107); Sheridan v. Haggard, 95 Ga. App. 792, 99 S.E.2d 163, 1957 Ga. App. LEXIS 920 (1957) (witnesses’ means of knowing facts) (decided under former Code 1933, § 38107); Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337, 1958 Ga. LEXIS 464 (1958) (credibility) (decided under former Code 1933, § 38-107); Willard v. Willard, 221 Ga. 2, 142 S.E.2d 849, 1965 Ga. LEXIS 365 (1965) (number of witnesses) (decided under former Code 1933, § 38107). Failure to charge entire statute harmless error in the following cases. - See Palmer-Murphey Co. v. Barnett, 32 Ga. App. 635, 124 S.E. 538, 1924 Ga. App. LEXIS 568 (1924); Travelers Ins. Co. v. Anderson, 53 Ga. App. 1, 184 S.E. 813,

1936 Ga. App. LEXIS 1 (1936) (decided under former Code 1933, § 38-107); Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834, 1940 Ga. App. LEXIS 554 (1940) (decided under former Code 1933, § 38-107); Rushing v. Akins, 210 Ga. 450, 80 S.E.2d 813, 1954 Ga. LEXIS 353 (1954) (decided under former Code 1933, § 38107); Frady v. State, 212 Ga. 84, 90 S.E.2d 664, 1955 Ga. LEXIS 554 (1955) (decided under former Code 1933, § 38-107); Bank of Loganville v. Briscoe, 93 Ga. App. 558, 92 S.E.2d 326, 1956 Ga. App. LEXIS 800 (1956) (intelligence of witnesses and probability of the witnesses’ testimony) (decided under former Code 1933, § 38-107); Bell v. Proctor, 212 Ga. 325, 92 S.E.2d 514, 1956 Ga. LEXIS 357 (1956); Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343, 1959 Ga. App. LEXIS 891 (1959) (decided under former Code 1933, § 38107); (nature of facts to which witnesses testified) (decided under former Code 1933, § 38-107); Southern Ry. Sys. v. Yancey, 102 Ga. App. 159, 115 S.E.2d 693, 1960 Ga. App. LEXIS 576 (1960); Chandler v. Alabama Power Co., 140 Ga. App. 521, 122 S.E.2d 317 (1961) , rev’d on other grounds, 217 Ga. 550, 123 S.E.2d 767 (1962); City of Louisville v. Clark, 108 Ga. App. 389, 133 S.E.2d 45, 1963 Ga. App. LEXIS 657 (1963) (decided under former Code 1933, § 38-107). Instructions proper in the following cases. - See Western & Atlantic R.R. v. Henderson, 6 Ga. App. 385, 65 S.E. 48, 1909 Ga. App. LEXIS 309 (1909) (credibility) (decided under former Civil Code 1895, § 5146); Rome Ry. & Light Co. v. King, 33 Ga. App. 383, 126 S.E. 294, 1925 Ga. App. LEXIS 785 (1925) (credibility) (decided under former Civil Code 1910, § 5732); Daughtry v. Georgia Power Co., 61 Ga. App. 505, 6 S.E.2d 454, 1939 Ga. App. LEXIS 469 (1939) (action for damages) (decided under former Code 1933, § 38-107); Jackson v. Moultrie Prod. Credit Ass’n., 76 Ga. App. 768, 47 S.E.2d 127, 1948 Ga. App. LEXIS 452 (1948) (credibility) (decided under former Code 1933, § 38-107); Georgia Automatic Gas Co. v. Fowler, 77 Ga. App. 675, 49 S.E.2d 550, 1948 Ga. App. LEXIS 615 (1948) (nature of witnesses’ testimony) (decided under former Code 1933, § 38-107); Lud-

wig v. J.J. Newberry Co., 78 Ga. App. 871, 52 S.E.2d 485, 1949 Ga. App. LEXIS 997 (1949) (action for damages) (decided under former Code 1933, § 38-107); Hughes v. Al Grider, Inc., 97 Ga. App. 599, 103 S.E.2d 627, 1958 Ga. App. LEXIS 838 (1958) (number of witnesses) (decided under former Code 1933, § 38-107); Andrews Taxi & U-Drive It Co. v. McEver, 101 Ga. App. 383, 114 S.E.2d 145, 1960 Ga. App. LEXIS 883 (1960) (credibility of witnesses) (decided under former Code 1933, § 38-107); King v. Faries, 120 Ga. App. 393, 170 S.E.2d 747, 1969 Ga. App. LEXIS 790 (1969) (number of witnesses) (decided under former Code 1933, § 38107). 2. Criminal Cases Instructions harmless error in the following cases. - See Howard v. State, 60 Ga. App. 229, 4 S.E.2d 418, 1939 Ga. App. LEXIS 554 (1939) (manner of testifying) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App.

153, 35 S.E.2d 708, 1945 Ga. App. LEXIS 410 (1945) (number of witnesses, inapplicability of preponderance standard in criminal case) (decided under former Code 1933, § 38-107); Smith v. State, 85 Ga. App. 129, 68 S.E.2d 393, 1951 Ga. App. LEXIS 1015 (1951) (error which party invited) (decided under former Code 1933, § 38-107); Morris v. State, 97 Ga. App. 762, 104 S.E.2d 483, 1958 Ga. App. LEXIS 878 (1958) (credibility of witnesses) (decided under former Code 1933, § 38-107). Instructions proper in the following cases. - See Andrews v. State, 196 Ga. 84, 26 S.E.2d 263, 1943 Ga. LEXIS 318, cert. denied, 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468, 1943 U.S. LEXIS 227 (1943) (credibility) (decided under former Code 1933, § 38-107); Carter v. State, 69 Ga. App. 570, 26 S.E.2d 374, 1943 Ga. App. LEXIS 141 (1943) (reasonable doubt) (decided under former Code 1933, § 38107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708, 1945 Ga. App. LEXIS 410 (1945) (credibility) (decided under former Code 1933, § 38-107).

RESEARCH REFERENCES C.J.S. 32A C.J.S., Evidence, § 1275. ALR. Right to cross-examine accused as to previous prosecution for, or conviction of, crime, for purpose of affecting his credibility, 6 A.L.R. 1608; 25 A.L.R. 339; 103 A.L.R. 350; 161 A.L.R. 233.

Instructions on sudden emergency in motor vehicle cases, 80 A.L.R.2d 5. Limiting number of noncharacter witnesses in civil case, 5 A.L.R.3d 169. Limiting number of noncharacter witnesses in criminal case, 5 A.L.R.3d 238.