Cunningham v. State
| Decision Date | 31 December 1849 |
| Citation | 5 Tex. 440 |
| Parties | CUNNINGHAM v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the testimony is positive on both sides and is contradictory, the verdict ought not to be disturbed, no matter to which side the jury may have accorded belief; but one positive witness to a given fact whose testimony is not impeached is worth more than half a dozen who are not certain. (Note 76.)
Appeal from San Augustine.
Hicks, for appellant.
Hamilton, for appellee.
The only material question on which this case depends is as to the evidence, on which the jury returned a verdict in relation to the age of Williams, under whom the plaintiff claimed, at the date of the Declaration of Independence. If he was seventeen years of age and upwards, his title to the headright certificate does not seem to be controverted. Two witnesses swore as positively as could reasonably be required that they knew him well, and that he was seventeen years of age at that time. No witness swore positively that he was not, and only one that could throw any doubt on the subject. Under such evidence it seems that the jury ought to have found a verdict for the plaintiff; and in not doing so they found contrary to the evidence. One positive witness whose testimony is not impeached is worth more than half a dozen who are not certain as to a given fact. Had the testimony been positive on both sides, the verdict ought not to be disturbed, no matter to which side they may have accorded belief. The judgment ought therefore to be reversed and the cause remanded.
Judgment reversed.
NOTE 76.--Willis v. Lewis, 28 T., 185.
To continue reading
Request your trial
-
Willis v. Lewis
...for considerations pertinent to the relative value of affirmative and negative testimony. For the proof, see Pas. Dig. art. 4140; 5 Tex. 440. One positive witness, whose evidence is unimpeached, is of more value than a hundred merely negative witnesses. While a verdict must appear to be cle......
-
Titus v. Latimer
... ... are informed that the decision of the court below rested on the construction of the 10th section of the IVth article of the Constitution of the State, and it is not contended but that if the [5 Tex. 434]Legislature had power under the Constitution to give an appeal, it has been given. The 10th ... ...
-
Self v. Whittler
...were before him, and he was in a position to weigh their evidence and judge of their credibility. As said by Judge Lipscomb in Cunningham v. State, 5 Tex. 440, after laying down the proposition that one positive witness, unimpeached, is worth more than half a dozen who are not certain as to......