Robinson v. State , 199 Ga. App. 368 ( 1991 )

Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of armed robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

The sole enumeration of error relates to the failure of the trial court to give appellant’s requested charge based on OCGA § 24-4-6. He relies upon Horne v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956) and its progeny, which stand for the proposition that if a jury could find that the witnesses offering the direct evidence against a defendant were impeached, so that any conviction would then necessarily have to rest upon circumstantial evidence, the jury should be instructed in accordance with OCGA § 24-4-6. However, in this case, the only evidence that could possibly be classified as “circumstantial” was evidence that the appellant owned a jacket similar to one worn by the perpetrator and that the appellant was at home on the day of the crime and, thus, could have committed the offense. While such evidence may be considered to be “circumstantial,” it certainly would not be sufficient, in and of itself, to authorize a conviction. “The necessity of the charge on circumstantial evidence in Horne v. State, supra . . ., arose because if the jury in that case found the witness[es] offering the direct evidence to have been impeached, the jury was left to decide the defendant’s guilt or innocence entirely from circumstantial evidence without any instruction upon the law of circumstantial evidence. In the case sub judice the [S]tate’s case is predicated entirely upon the direct evidence offered by the [victims]. If the jury determines [these witnesses were] impeached, then there would be no other evidence authorizing a verdict of guilty. Therefore, in this case there is no issue requiring the charge on the law of circumstantial evidence.” (Emphasis supplied.) Mayfield v. State, 153 Ga. App. 459, 460-461 (3) (265 SE2d 366) (1980).

Appellant apparently loses sight of the fact that the charge that he requested provides that “to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” (Emphasis supplied.) It clearly is not reversible error to fail to give this charge in a case, such as this, where the circumstantial evidence alone would not warrant a conviction, but would, in fact, mandate a reversal on the general grounds. The “circumstantial evidence” in the instant case was, at most, corroborative of the victims’ direct eyewitness testimony and is not otherwise relevant to appellant’s guilt. Since appellant’s conviction is dependent entirely upon the victims’ eyewitness testimony and a charge on impeachment was given, the jury in the instant case was not left to decide appellant’s guilt or innocence entirely from circumstantial evidence because there was no circumstantial evidence which, standing alone, would authorize his conviction. It follows that the trial court did not err in failing to give appellant’s requested charge.

Judgment affirmed.

McMurray, P. J., Banke, P. J., and Pope, J., concur. Beasley and Andrews, JJ., concur in judgment only. Sognier, C. J., Birdsong, P. J., and Cooper, J., dissent.