
    471.
    Selman v. Malcom.
    Distraint, from city court of Monroe — Judge Arnold. April 13, 1907.
    Argued April 9,
    Decided November 11, 1907.
    The motion for a new trial, the refusal of which is assigned as error, is on the grounds, that the verdict is contrary to law, evidence, etc., and that the court erred in charging as follows: “I charge you that a fact testified to by one positive witness is to be believed in preference to one who swears that he did not see or know of its having transpired. That is, if a witness swears that he saw a man drawing a bucket of water out there at the well, that would be positive evidence, and is to be believed in preference to one or many witnesses who might have had the same opportunity of seeing it, but swear they did not. Their testimony would be negative, and entitled to less weight and consideration than one swearing positively that a certain thing did transpire.” It is alleged that this instruction was erroneous because it did not embrace an instruction that the jury, in weighing the testimony of the witnesses, should consider and pass upon the question of their credibility, — as to whether the witnesses were of equal credibility.
   Hill, C. J.

This case is controlled, on the only error of law assigned, by Wood v. State, 1 Ga. App. 684 (3), and Phillips v. State, Id. 687.

Judgment reversed.

W. O. Dean, for plaintiff. Napier & Cox, for defendant.  