dissenting.
The sole witness for the State testified that he saw the defendant draw a pistol from his pocket; and also testified that the defendant had on a coat. The testimony for the defense was as follows: One witness testified that “the defendant, Robert Williams, did not draw a pistol, and did not have one at that time. He did not have on a coat.” Another witness testified: “I saw Robert Williams distinctly. He did not draw a pistol at that time, and did not have one that I saw. I was in full view of him all the time. If he had one I did not see it. He did not have on a coat.” Another witness testified: “Robert Williams did not draw a pistol and did not have one at that time that I could see. He did not have on a coat. He was in plain view of me, and if he had .a pistol I could have seen it.” All of the above testifying, as I construe it, was positive. In the case of Heywood v. State, 12 Ga. App. 643 (2), this court held: “Testimony that the witness was present and had as good opportunity to see the transaction as others who were present, and that no such transaction took place, because he did not see it, when he would have seen it if it had taken place, is positive testimony.” In the case of McConnell v. State, 67 Ga. 633 (4), the Supreme Court held that “It is positive to say that a thing did or did not happen; it is negative to say that a witness did not see or know of an event’s having transpired.” In the case of Neill v. State, quoted from supra, in the majority opinion, it clearly appeared that part of a witness’s testimony was negative. The court in its opinion in that case said: “It was negative as to the acts of Neill all the time that Neill was in the house. He could not testify that he saw Neill the whole time he was in the house.” (Italics mine.) In the instant ease the testimony of all the witnesses for the defendant was to the effect that the defendant was in full view of the witnesses during the whole period of the transaction testified to by the sole witness for the State.
*545There being no negative testimony in the case, it was highly prejudicial to the accused, and was virtually a direction of a verdict against him, for the trial judge to instruct the jury as follows: “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 they did not see or know of its having transpired, provided the witnesses are of the same credibility.” The judge practically told the jury that the evidence for the State was to be believed in preference to the evidence for the defense. The defendant was denied a fair trial, and his conviction should be set aside and a new trial granted.