Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5165, former Penal Code 1895, § 985, former Civil Code 1910, § 5751, former Penal Code 1910, § 1011, former Code 1933, § 38-111, and former O.C.G.A. § 24-4-7 are included in the annotations for this Code section.

Reason for the former statute was probably that the law would not care to attribute perjury to a witness unless necessary, and negative testimony as a result may be taken as an oversight on the part of a witness to observe the fact in question. The last provision of the former statute provided for those cases where a witness could swear positively to the nonoccurrence of a fact. Such testimony was of as much weight as positive testimony. Skinner v. State, 108 Ga. 747, 32 S.E. 844 (1899) (decided under former Penal Code 1895, § 985); Nelms v. State, 123 Ga. 575, 51 S.E. 588 (1905); Hunter v. State, 4 Ga. App. 761, 62 S.E. 466 (1908) (decided under former Penal Code 1895, § 985);(decided under former Penal Code 1895, § 985).

Rule of the former statute was so inaptly stated that to instruct the jury in the language of the former statute was ordinarily error. Warrick v. State, 125 Ga. 133, 53 S.E. 1027 (1906) (decided under former Penal Code 1895, § 985); Moore v. State, 57 Ga. App. 287, 195 S.E. 320 (1938); Great Am. Indem. Co. v. Oxford, 68 Ga. App. 884, 24 S.E.2d 726 (1943) (decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111).

Failure to charge not error in absence of request.

- In the absence of a request, it was not error for the court to fail to charge the former statute as to positive and negative testimony. Grice v. State, 224 Ga. 376, 162 S.E.2d 432 (1968) (decided under former Code 1933, § 38-111).

Witnesses of equal credibility.

- Former statute applied only if the witnesses were of equal credibility. Great Am. Indem. Co. v. Oxford, 68 Ga. App. 844, 24 S.E.2d 726 (1943) (decided under former Code 1933, § 38-111); Rider v. State, 196 Ga. 767, 27 S.E.2d 667 (1943); Kaylor v. Kaylor, 199 Ga. 516, 35 S.E.2d 1 (1945) (decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111).

Qualification of rule.

- Former statute did not apply when two parties had equal facilities for seeing or hearing a thing and one swears that it occurred and the other that it did not. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887) (decided under former law); Skinner v. State, 108 Ga. 747, 32 S.E. 844 (1899); Nelms v. State, 123 Ga. 575, 51 S.E. 588 (1905) (decided under former Penal Code 1895, § 985); Wood v. State, 1 Ga. App. 684, 58 S.E. 271 (1907); Benton v. State, 3 Ga. App. 453, 60 S.E. 116 (1908) (decided under former Penal Code 1895, § 985);(decided under former Penal Code 1895, § 985);(decided under former Penal Code 1895, § 985).

Credibility of witnesses.

- When the former statute was applicable, it is error for the court to give the statute in charge to the jury without further instructing the jury that in weighing such testimony the jury should take into consideration the credibility of the witnesses. Central of Ga. Ry. v. Sowell, 3 Ga. App. 142, 59 S.E. 323 (1907) (decided under former Civil Code 1895, § 5165); Georgia R.R. & Banking Co. v. Radford, 144 Ga. 22, 85 S.E. 1006 (1915); Georgia Ry. & Power Co. v. Pounds, 20 Ga. App. 201, 92 S.E. 1026 (1917) (decided under former Civil Code 1910, § 5751); McDuffie v. State, 24 Ga. App. 653, 101 S.E. 812 (1920); Green v. State, 26 Ga. App. 109, 105 S.E. 634 (1920) (decided under former Civil Code 1910, § 5751); Carter v. State, 34 Ga. App. 230, 129 S.E. 10 (1925); Moore v. State, 57 Ga. App. 287, 195 S.E. 320 (1938) (decided under former Penal Code 1910, § 1011); Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639, 37 S.E.2d 713 (1946); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 49 S.E.2d 184 (1948) (decided under former Penal Code 1910, § 1011);(decided under former Penal Code 1910, § 1011);(decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111).

Jurors not obliged to discard negative evidence merely because of the existence of positive evidence in conflict with it. Innis v. State, 42 Ga. 473 (1871) (decided under former law); Hunter v. State, 4 Ga. App. 761, 62 S.E. 466 (1908); Pendergrast v. Greeson, 6 Ga. App. 47, 64 S.E. 282 (1909) (decided under former Penal Code 1895, § 985); Pollard v. Gorman, 52 Ga. App. 127, 182 S.E. 678 (1935); Jefferson Std. Life Ins. Co. v. Bentley, 55 Ga. App. 272, 190 S.E. 50 (1937) (decided under former Civil Code 1895, § 5165); Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944); Abbot Inv. Co. v. Jefferson County, 77 Ga. App. 76, 49 S.E.2d 918 (1948) (decided under former Code 1933, § 38-111); Ellis v. Southern Ry., 96 Ga. App. 687, 101 S.E.2d 230 (1957); Allison v. Cobb County, 97 Ga. App. 331, 103 S.E.2d 195 (1958) (decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111);(decided under former Code 1933, § 38-111).

Reconciliation of testimony.

- When the testimony of witnesses who testified positively may be true without it being necessary to reject any of the negative testimony as untrue, and the testimony can be harmonized without discrediting any witness, it is the duty of the jury to prefer the positive testimony. Gamblin v. State, 33 Ga. App. 51, 125 S.E. 517 (1924) (decided under former Penal Code 1910, § 1011).

Types of evidence.

- Law and logic both recognize the fact that testimony as to a thing may be positive, negative, or contradictory. Hughes v. Etheridge, 39 Ga. App. 730, 148 S.E. 358 (1929) (decided under former Civil Code 1910, § 5751).

Failure to explain meaning of positive and negative evidence is not error in the absence of a special request. Southern Ry. v. Maddox, 63 Ga. App. 508, 11 S.E.2d 501 (1940) (decided under former Code 1933, § 38-111).

Instruction on latter part of statute is usually necessary to fully explain to the jury the distinction between testimony which is negative in character and that which is contradictory of positive testimony, and which otherwise might be thought to be negative. Benton v. State, 3 Ga. App. 453, 60 S.E. 116 (1908) (decided under former Penal Code 1895, § 985).

Positive and negative evidence defined in the following cases: McConnell v. State, 67 Ga. 633 (1881) (decided under former law); Hunter v. State, 4 Ga. App. 761, 62 S.E. 466 (1908); Heywood v. State, 12 Ga. App. 643, 77 S.E. 1130 (1913) (decided under former Penal Code 1895, § 985); Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639, 37 S.E.2d 713 (1946);(decided under former Penal Code 1910, § 1011);(decided under former Code 1933, § 38-111).

Charge favorable to losing party.

- If the positive evidence in regard to the facts under consideration was introduced by the losing party, and the negative evidence in regard to such facts was introduced by the successful party, a charge to the effect that positive testimony should outweigh that which is negative without qualification, would be more favorable to the losing party than the losing party would have a right to ask; and such error in favor of the unsuccessful litigant would not furnish ground for a reversal on the losing party's motion. Rider v. State, 196 Ga. 767, 27 S.E.2d 667 (1943) (decided under former Code 1933, § 38-111).

Testimony sufficient to charge on positive and negative evidence as to whether automobile turned over in accident. Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639, 37 S.E.2d 713 (1946) (decided under former Code 1933, § 38-111).

Issue properly submitted to jury.

- When the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury. Pollard v. Gorman, 52 Ga. App. 127, 182 S.E. 678 (1935) (decided under former Code 1933, § 38-111); Abbot Inv. Co. v. Jefferson County, 77 Ga. App. 761, 49 S.E.2d 918 (1948);(decided under former Code 1933, § 38-111).

Positive and negative testimony at play.

- When there was testimony that immediately before plaintiff's mule was struck by a train, a horse and colt crossed the track in front of the train and this testimony, by a section hand was corroborated by the section foreman, but the engineer of the train testified that the engineer did not see such a horse or colt cross the track in front of the train, although there was nothing which could have obstructed the engineer's view of them, the rule relative to positive and negative testimony is called into play, and, under a proper instruction from the court, the jury was authorized to believe the positive testimony of the section hand and section foreman rather than that of the engineer. Atlantic Coast Line R.R. v. Hodges, 90 Ga. App. 870, 84 S.E.2d 711 (1954) (decided under former Code 1933, § 38-111).

Refusal to charge former O.C.G.A.

§ 24-4-7 was not error. - See Green v. State, 253 Ga. 693, 324 S.E.2d 181 (1985) (decided under former O.C.G.A. § 24-4-7).

On appeal.

- Former statute would not justify the setting aside of the jury's verdict on appeal when there was evidence to support the verdict. Kelly v. Gaskins, 238 Ga. 730, 235 S.E.2d 386 (1977) (decided under former Code 1933, § 38-111).

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1368.

C.J.S.

- 32A C.J.S., Evidence, § 1602.

ALR.

- Conclusiveness of uncontradicted testimony of interested witness where opposed to presumption, 72 A.L.R. 94.

Comparative value of positive and negative testimony, 98 A.L.R. 161.

Relative weight of testimony of attesting witnesses in support of mental competency of testator, 123 A.L.R. 88.

Admissibility, in support of general credibility of an accomplice-witness who has not been impeached of evidence from nonaccomplice witness not otherwise relevant or of probative value as against defendant, 138 A.L.R. 1266.

Distinction between positive and negative evidence, 140 A.L.R. 530.

Probative force of testimony offered to show that crossing signals were not given on approach of train, 162 A.L.R. 9.