In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same may legitimately appear from the trial. The jury may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number.
(Code 1981, §24-14-4, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Law reviews.- For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008).
JUDICIAL DECISIONSANALYSIS
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) (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) (decided under former Civil Code 1910, § 5732); Hatcher v. Bray, 88 Ga. App. 344, 77 S.E.2d 64 (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) (decided under former Civil Code 1910, § 5732).
Province of jury.
- It is the province of the jury to determine the credibility of witnesses. Caldwell v. Caldwell, 59 Ga. App. 637, 1 S.E.2d 764 (1939) (interest of witness) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708 (1945) (bias of witness) (decided under former Code 1933, § 38-107); Pantone v. Pantone, 206 Ga. 305, 57 S.E.2d 77 (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) (interest of witness) (decided under former Code 1933, § 38-107); Freedman v. Housing Auth., 108 Ga. App. 418, 136 S.E.2d 544 (1963) (bias of witness) (decided under former Code 1933, § 38-107); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133 (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) (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).
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) (decided under former Civil Code 1910, § 5732); Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834 (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) (decided under former Code 1933, § 38-107); American Cas. Co. v. Windham, 26 F. Supp. 261 (M.D. Ga.); 107 F.2d 88 (5th Cir. 1939), aff'd, 309 U.S. 674, 60 S. Ct. 714, 84 L. Ed. 1019 (1940), cert. denied, Pantone v. Pantone, 206 Ga. 305, 57 S.E.2d 77 (1950) (decided under former Code 1933, § 38-107); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133 (1972); Brown Transp. Co. v. Parker, 129 Ga. App. 737, 201 S.E.2d 17 (1973) (decided under former Code 1933, § 38-107);(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).
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).
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).
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. Owens-Illinois, Inc., 138 Ga. App. 80, 225 S.E.2d 473 (1976) (decided under former Code 1933, § 38-107).
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).
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).
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 Gas-Light Co. v. Cook, 35 Ga. App. 622, 134 S.E. 198 (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).
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).
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).
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), cert. denied, 2015 Ga. LEXIS 403 (Ga. 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) (decided under former Civil Code 1910, § 5732); Reaves v. Columbus Elec. & Power Co., 32 Ga. App. 140, 122 S.E. 824; 32 Ga. App. 807 (1924), cert. denied, Crawley v. Marta, 147 Ga. App. 293, 248 S.E.2d 555 (1978) (decided under former Civil Code 1910, § 5732); Coleman v. State, 150 Ga. App. 380, 258 S.E.2d 12 (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) (decided under former law); Rome Ry. & Light Co. v. King, 33 Ga. App. 383, 126 S.E. 294 (1925); Loftin v. Carroll County Bd. of Educ., 70 Ga. App. 315, 28 S.E.2d 372 (1943) (decided under former Civil Code 1910, § 5732); Flatauer v. Goodman, 84 Ga. App. 881, 67 S.E.2d 794 (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, 168 S.E. 903 (1933) (decided under former Code 1933, § 38-107); Travelers Indem. Co. v. Paramount Publix Corp., 52 Ga. App. 239, 182 S.E. 923 (1935); Sconyers v. State, 67 Ga. App. 902, 21 S.E.2d 504 (1942) (decided under former Code 1933, § 38-107); Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610 (1942); Smaha v. George, 195 Ga. 412, 24 S.E.2d 385 (1943) (decided under former Code 1933, § 38-107); Turner v. Joiner, 77 Ga. App. 603, 48 S.E.2d 907 (1948); Southern Ry. v. Florence, 81 Ga. App. 1, 57 S.E.2d 856 (1950) (decided under former Code 1933, § 38-107); Georgia Power Co. v. Pittman, 92 Ga. App. 673, 89 S.E.2d 577 (1955); Bell v. Proctor, 212 Ga. 325, 92 S.E.2d 514 (1956) (decided under former Code 1933, § 38-107); Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343 (1959);(decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(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) (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) (decided under former Code 1933, § 38-107); Callaway v. Fischer, 69 Ga. App. 251, 25 S.E.2d 131 (1943); Cedrone v. Beck, 74 Ga. App. 488, 40 S.E.2d 388 (1946) (decided under former Code 1933, § 38-107); City of Louisville v. Clark, 108 Ga. App. 389, 133 S.E.2d 45 (1963); Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966) (decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(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) (decided under former Code 1933, § 38-107); Collins v. Porterfield, 102 Ga. App. 294, 116 S.E.2d 105 (1960); Chandler v. Alabama Power Co., 104 Ga. App. 521, 122 S.E.2d 317 (1961) (decided under former Code 1933, § 38-107); 217 Ga. 550, 123 S.E.2d 767 (1962);rev'd on other grounds,(decided under former Code 1933, § 38-107).
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).
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, cert. denied, 32 Ga. App. 807 (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) (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) (decided under former Code 1933, § 38-107); Campbell v. State, 53 Ga. App. 380, 186 S.E. 137 (1935); Moore v. State, 57 Ga. App. 287, 195 S.E. 320 (1938) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708 (1945); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263 (decided under former Code 1933, § 38-107); 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943); Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955) (decided under former Code 1933, § 38-107); McDonald v. State, 104 Ga. App. 578, 122 S.E.2d 145 (1961);cert. denied,overruled on other grounds,(decided under former Code 1933, § 38-107);(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) (decided under former Code 1933, § 38-107); Eller v. State, 48 Ga. App. 163, 172 S.E. 592 (1934); Sconyers v. State, 67 Ga. App. 902, 21 S.E.2d 504 (1942) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708 (1945); McDonald v. State, 104 Ga. App. 578, 122 S.E.2d 145 (1961) (decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(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) (decided under former Code 1933, § 38-107); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263; 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), cert. denied, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), overruled on other grounds, Harper v. State, 201 Ga. 10, 39 S.E.2d 45 (1946) (decided under former Code 1933, § 38-107); Fountain v. State, 207 Ga. 144, 60 S.E.2d 433 (1950); Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 (1975) (decided under former Code 1933, § 38-107);overruled on other grounds,(decided under former Code 1933, § 38-107).
Examples
1. Civil Cases
Failure to charge certain portions of statute harmful error in the following cases: Hinson v. Hooks, 27 Ga. App. 430, 108 S.E. 822 (1921) (number of witnesses) (decided under former Civil Code 1910, § 5732); Farmers State Bank v. Kelley, 166 Ga. 683, 144 S.E. 258 (1928) (number of witnesses) (decided under former Civil Code 1910, § 5732); Shankle v. Crowder, 174 Ga. 399, 163 S.E. 180 (1932) (credibility) (decided under former Civil Code 1910, § 5732); Tucker v. Talmadge, 186 Ga. 798, 198 S.E. 726 (1938) (number of witnesses) (decided under former Code 1933, § 38-107); Garner v. Wood, 188 Ga. 463, 4 S.E.2d 137 (1939) (number of witnesses) (decided under former Code 1933, § 38-107); Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610 (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) (number of witnesses) (decided under former Code 1933, § 38-107); Bank of Loganville v. Briscoe, 93 Ga. App. 558, 92 S.E.2d 326 (1956) (probability of testimony) (decided under former Code 1933, § 38-107); Bell v. Proctor, 93 Ga. App. 816, 92 S.E.2d 807 (1956) (interest of witnesses) (decided under former Code 1933, § 38-107); Sheridan v. Haggard, 95 Ga. App. 792, 99 S.E.2d 163 (1957) (witnesses' means of knowing facts) (decided under former Code 1933, § 38-107); Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337 (1958) (credibility) (decided under former Code 1933, § 38-107); Willard v. Willard, 221 Ga. 2, 142 S.E.2d 849 (1965) (number of witnesses) (decided under former Code 1933, § 38-107).
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, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5732); Travelers Ins. Co. v. Anderson, 53 Ga. App. 1, 184 S.E. 813 (1936); Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834 (1940) (decided under former Code 1933, § 38-107); Rushing v. Akins, 210 Ga. 450, 80 S.E.2d 813 (1954); Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955) (decided under former Code 1933, § 38-107); Bank of Loganville v. Briscoe, 93 Ga. App. 558, 92 S.E.2d 326 (1956); Bell v. Proctor, 212 Ga. 325, 92 S.E.2d 514 (1956) (decided under former Code 1933, § 38-107); Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343 (1959); Southern Ry. Sys. v. Yancey, 102 Ga. App. 159, 115 S.E.2d 693 (1960) (decided under former Code 1933, § 38-107); Chandler v. Alabama Power Co., 140 Ga. App. 521, 122 S.E.2d 317 (1961); 217 Ga. 550, 123 S.E.2d 767 (1962) (intelligence of witnesses and probability of the witnesses' testimony) (decided under former Code 1933, § 38-107); City of Louisville v. Clark, 108 Ga. App. 389, 133 S.E.2d 45 (1963);(decided under former Code 1933, § 38-107);(nature of facts to which witnesses testified) (decided under former Code 1933, § 38-107);rev'd on other grounds,(decided under former Code 1933, § 38-107);(decided under former Code 1933, § 38-107);(nature of facts to which witnesses testified, incidental issues) (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) (credibility) (decided under former Civil Code 1895, § 5146); Rome Ry. & Light Co. v. King, 33 Ga. App. 383, 126 S.E. 294 (1925) (credibility) (decided under former Civil Code 1910, § 5732); Daughtry v. Georgia Power Co., 61 Ga. App. 505, 6 S.E.2d 454 (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) (credibility) (decided under former Code 1933, § 38-107); Georgia Automatic Gas Co. v. Fowler, 77 Ga. App. 675, 49 S.E.2d 550 (1948) (nature of witnesses' testimony) (decided under former Code 1933, § 38-107); Ludwig v. J.J. Newberry Co., 78 Ga. App. 871, 52 S.E.2d 485 (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) (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) (credibility of witnesses) (decided under former Code 1933, § 38-107); King v. Faries, 120 Ga. App. 393, 170 S.E.2d 747 (1969) (number of witnesses) (decided under former Code 1933, § 38-107).
2. Criminal Cases
Instructions harmless error in the following cases.
- See Howard v. State, 60 Ga. App. 229, 4 S.E.2d 418 (1939) (manner of testifying) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708 (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) (error which party invited) (decided under former Code 1933, § 38-107); Morris v. State, 97 Ga. App. 762, 104 S.E.2d 483 (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, cert. denied, 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), overruled on other grounds, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955) (credibility) (decided under former Code 1933, § 38-107); Carter v. State, 69 Ga. App. 570, 26 S.E.2d 374 (1943) (reasonable doubt) (decided under former Code 1933, § 38-107); Couch v. State, 73 Ga. App. 153, 35 S.E.2d 708 (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.