Hunter v. State , 1908 Ga. App. LEXIS 533 ( 1908 )

Powell, J.

1. While “the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired,” nevertheless the weight of the testimony as a whole is for the jury; and ordinarily they are not absolutely bound to accept positive in preference to negative testimony. Innis v. State, 42 Ga. 474.

2. When two persons llave equal facilities for seeing or hearing a thing, and one swears that it occurred and the other that it did not, the testimony of neither witness is negative, within the purview of the foregoing rule. Civil Code, §5165.

3. The foregoing principles are applicable to the trial of a criminal case for the carrying of concealed weapons, where the witnesses for the State testify that the defendant’s person was in their view, that she drew a pistol from under the cover of an apron she wore, and that it was hidden from view till she drew it, and the witnesses for the defendant testify that she had the pistol in her hand, by her side, open to view and not under the apron. - Judgment affirmed.