Lead Opinion
We granted certiorari to the Court of Appeals in Stubbs v. State,
Stubbs was convicted of burglary and possession of tools for the commission of a crime.
2. Because Stubbs did not request a charge on circumstantial evidence, it was not incumbent upon the trial court to charge on the law of circumstantial evidence if the State’s case rested on both direct and circumstantial evidence. Yarn v. State, supra. Thus, the pivotal question is whether the State presented direct as well as circumstantial evidence of Stubbs’ guilt.
Our Code defines direct evidence as that “which immediately points to the question at issue.” OCGA § 24-1-1 (3). It describes circumstantial evidence as that “which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.” OCGA § 24-1-1 (4). Unfortunately, these statutory definitions do not provide a clear-cut formula for identifying direct and circumstantial evidence. Thus, deciding whether evidence is direct or circumstantial remains a difficult and confusing task. See Mims, supra at 273, n. 5 (Hunt, Chief Justice, concurring).
Traditionally, the term “direct evidence” pertains to the testimony of witnesses. See 1A Wigmore, Evidence, p. 950, § 24 (Tillers rev. 1983), quoting Patterson, The Types of Evidence: An Analysis, 19 Vand.L.Rev. 1 (1965). From that perspective, direct evidence is simply that which comes from the witness stand. This adds little, if anything, to the task of distinguishing direct from circumstantial evidence because the witness may not be testifying about a fact which “immediately points to the question at issue.” OCGA § 24-1-1 (3). He may, instead, be testifying about a fact which only “tends to establish the issue.” OCGA § 24-1-1 (4). Suppose, for example, an eyewitness testified that he saw the defendant commit the crime. There can be no doubt that such testimony is direct evidence because it immediately points to the question at issue — whether the defendant committed the crime. See, e.g., Nance v. State,
The distinction between direct and circumstantial evidence has best been explained this way: Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence
In this case, Stubbs was convicted of burglary and the possession of tools for the commission of a crime. We summarize the evidence presented by the State
With regard to the burglary, the State’s evidence is consistent with both the proposed conclusion and its opposite, i.e., it is consistent with Stubbs’ guilt (he was a participant in the burglary) and his innocence (he was a mere bystander). Thus, the State’s evidence with regard to the burglary is wholly circumstantial and the trial court erred in failing to charge on the law of circumstantial evidence.
With regard to the offense of possession of tools for the commission of a crime, the arresting officer’s testimony that the metal bar was in Stubbs’ automobile is consistent only with the proposed conclusion, i.e., it is only consistent with Stubbs’ guilt.
Notes
He was also convicted of operating a motor vehicle with an improper tag.
The conviction was affirmed per curiam. Judge Andrews, joined by Judges Johnson and Smith, concurred specially, holding that a circumstantial evidence charge need not be given in the absence of a request even if the State’s evidence is wholly circumstantial. Presiding Judge Birdsong concurred specially holding that the evidence against Stubbs was direct and circumstantial and that, therefore, it was not incumbent upon the trial court to charge on circumstantial evidence in the absence of a request. Then Presiding Judge (now Chief Judge) Beasley concurred specially, holding the failure to charge on circumstantial evidence was not reversible error. Then Chief Judge (now Presiding Judge) Pope, joined by Presiding Judge McMurray and Judge Blackburn, dissented, opining that (1) the evidence against Stubbs was wholly circumstantial on the burglary offense, and therefore, the failure to charge on circumstantial evidence was error with regard to that offense and (2) the evidence against Stubbs was direct and circumstantial with regard to the possession of tools for the commission of a crime, and therefore, the failure to charge on circumstantial evidence was not error with regard to that offense. Judge Ruffin agreed with the dissenters, in part, adding that, in his view, the evidence with regard to the possession of tools for the commission of a crime was wholly circumstantial and that, therefore, it was also error to fail to charge on circumstantial evidence with regard to that offense.
We point this out only to help the bench and bar distinguish direct and circumstantial evidence generally. In cases of this kind, when a court must decide whether to charge on the law of circumstantial evidence, the defendant’s testimony will be of no consequence because the court’s decision turns only on the evidence presented by the State. See fn. 4, infra.
We look only to the State’s case in determining whether a charge on the law of circumstantial evidence must be given. See Yarn v. State, supra; Mims v. State, supra; Robinson v. State, supra.
Evidence that Stubbs was in possession of a burglary tool is only circumstantial evidence with regard to the burglary charge. The proposed conclusion is that Stubbs was a participant in the burglary. Stubbs’ possession of the burglary tool is consistent with both the proposed conclusion and its opposite. Likewise, although a defendant’s confession is direct evidence, see Yarn v. State, supra, and Harris v. State,
Although possession of tools for the commission of a crime requires the State to prove two elements, possession and intent, see Hogan v. Atkins,
Concurrence Opinion
concurring specially.
The majority’s opinion is yet another example of the futility of attempting to define direct evidence and circumstantial evidence. Contrary to the majority’s conclusion, the officer’s testimony that he found a metal bar in Stubbs’ car is also consistent with Stubbs’ theory of innocence: that the actual burglar dropped the bar into Stubbs’ car.
A review of countless appellate opinions, including the several generated in this one case, leads to the conclusion that the difference between direct and circumstantial evidence lies only in the eye of the beholder. Because appellate courts are unable to provide a workable test that will clarify this area of the law, why do we continue to impose this additional burden on trial courts and continue to confuse juries? We should not continue to perpetuate distinctions in evidence when it is unnecessary to preserve fundamentally fair trials.
As I said in Yarn v. State