Eidson v. State , 66 Ga. App. 765 ( 1942 )

It is well to note that the charge referred to in division 1 of the majority opinion does not relate to correct, but abstract, rules of law which are to be applied to the impeachment of witnesses on account of general bad character, but which should not have been given because there was no evidence to which the rules could possibly be applied. Kelly v. State, 118 Ga. 329 (45 S.E. 413); Geer v. State,184 Ga. 805 (193 S.E. 776), and cit.; American Fidelity Casualty Co. v. McWilliams, 55 Ga. App. 658 (8) (191 S.E. 191). But here the charge related to the actual general good character of the defendant, which under our law is a substantive fact, and positive evidence of such a fact may of itself, by the creation of a reasonable doubt, authorize an acquittal. Seymour v. State, 102 Ga. 803, 805 (30 S.E. 263). Here, in a long and arduous trial, the recollection of the judge was faulty, and he charged the jury in effect that evidence of the defendant's actual general bad character had been introduced, creating a material issue, when in truth and in fact no such evidence had been introduced. I think there is a strong probability that the jury assumed from this definite and positive statement from the judge in his charge that such evidence had been introduced, and that such evidence raised an issue which they must determine, and was in effect giving to the State the benefit of evidence that had never been introduced, and this was not only error but harmful error. Hart v. State, 93 Ga. 160 (20 S.E. 39); Moore v. State 57 Ga. App. 287 (4) (195 S.E. 320);American Surety Co. v. Smith, 55 Ga. App. 633, 642 (191 S.E. 137); Bryant v. State, 65 Ga. App. 523, 531 (16 S.E.2d 241).

ON MOTION FOR REHEARING.