*1 883 fail damage, to alleviate the the court injunction instead issue an closing the business. We should not trial seek- discourage courts from ing practical, today’s problems, economic solutions to difficult based on the costs and benefits all who majority would be affected. The opinion certainly partial diminishes the a injunction usefulness of like that utilized trial court this case.12 Id. at 472 reasons, I foregoing majority I opinion. dissent to the am authorized to state that joins Justice Hunstein this dissent. 1995 Decided October
Reconsideration denied November & Moldovan, Wayne Phears, Jr., Phears H. Norton, Albert L. for Akin, William M. appellees.
S95G0660. STUBBS v. THE STATE. (463 686) SE2d Justice. Thompson, State, granted Stubbs v. We Appeals certiorari Court of (452 571) (1994), 215 Ga. SE2d to re-examine this issue: a required give When is trial court jury charge a in a charge say? criminal trial and what reit- should the erate holding previous our cases: If the State’s case includes both evidence, the trial court must law of circumstantial request; State’s case is solely composed of circumstantial the trial charge on the law of request. evidence even without a case, In either trial court’s Yarn v.
evidence should follow OCGA 24-4-6. 359) (1995); 845)
(1994); Stubbs was convicted of tools commission a crime. did not on appeal, argued none was On Stubbs that the holding Man, Our in Stone opera “enjoin[ed] aspects In that dissent. we held that the trial court those tion which those constitute^] nuisance remedies fashion[ed] address[ed] problems making operation impossible.” Enjoining aspects without certain continued judgment ruling a trial as a business that court finds to be nuisance is not the same final operation those never be a business under restrictions can nuisance. improper tag. operating He was also convicted of motor vehicle with jury law court should have Appeals The Court of dis- dence even the absence plurality opinion.2 and affirmed a fractured State, supra, Mims 1. In Robinson v. on the law of circumstan- Court held that it is error to refuse However, as requested defendant. tial evidence such a *2 nor Mims in Yarn v. neither Robinson recently we noted that, longstanding rule the ab- departing read as from the can be request, charge sence wholly if case is based
must be (1) request, Even the absence of a evidence. Our law remains clear: on the law of circumstantial evidence when charge a trial court must (2) solely upon charge The the State’s case rests such 24-4-6. language should consist of the set forth OCGA § charge on circumstantial evi- request 2. Because Stubbs did not dence, charge on the law upon it was not incumbent the trial court to the State’s case rested on both direct pivotal and circumstantial evidence. Yarn question State direct as well as circumstan- is whether the tial evidence of Stubbs’ immediately
Our Code as that “which defines direct evidence (3). 24-1-1 cir- points question at issue.” OCGA It describes § to establish the issue cumstantial evidence as that “which tends facts, consistency by proof sustaining by hypothe- of various their (4). Unfortunately, statutory 24-1-1 sis claimed.” OCGA these defi- § identifying nitions do not a clear-cut formula for Thus, deciding circumstantial evidence. whether evidence is direct or Mims, confusing remains a difficult and task. See (Hunt, supra n. concurring). Chief Traditionally, pertains the term “direct evidence” to the testi- Andrews, per Judge joined Judges The conviction was affirmed curiam. Johnson Smith, specially, holding charge concurred that a circumstantial evidence need not be given ing Judge Birdsong wholly in the absence of a even if the State’s evidence is circumstantial. Presid specially holding against concurred that the evidence Stubbs was direct that, therefore, and circumstantial and on circumstantial evidence in incumbent was not (now Presiding Judge Then the absence of a Chief Judge) Beasley specially, holding concurred the failure to on circumstantial evidence (now Judge Presiding Judge) Pope, joined not was Judge reversible error. Then Chief (1) McMurray Blackburn, dissented, Judge opining against that therefore, the evidence wholly offense, Stubbs was on circumstantial evidence was error with Stubbs was direct and circumstantial with sion of a with his was circumstantial on the the failure to against to that offense and the evidence of tools for the commis crime, the failure to on circumstantial evidence was not error dissenters, that, part, adding to that offense. Ruffin view, the evidence with that, therefore, circumstantial and it was also error to fail to on circum stantial evidence with to that offense. mony p. of witnesses. See 1A 24 § 1983), Types Analysis, Evidence: An perspective, Vand.L.Rev. From that sim- evidence is ply little, any- that which comes from witness This adds stand. thing, the task distinguishing from dence testifying because witness not be about a fact “immediately points question at issue.” OCGA 24-1-1 § instead, may, be testifying about fact which “tends to establish (4). Suppose, the issue.” OCGA 24-1-1 eyewitness testified he saw the defendant commit the crime. be There can no doubt that such is direct immedi- — ately points question at issue com- Nance v. See, e.g., mitted the crime.
752) (1977) (eyewitness’s identification of defendant is direct evidence hand, guilt). suppose that, a witness testified hour one before the commission of the he standing saw the defendant away corner blocks from the crime scene. Such can hardly be considered to be evidence because it tends — i.e., establish issue the defendant committed See, Williams v. e.g., crime. 12Ga.
(testimony that company defendant had been seen in the partici- pants evidence). Thus, in the crime is circumstantial testimony dence comes the form of does not determine is direct circumstantial.
The distinction between direct and circumstantial has explained way: best been this Direct evidence that which consis- either conclusion or its tent proposed opposite; with the circumstan- both tial evidence is that which is con- proposed consistent with the clusion and its Wigmore, pp. 948, 949, 1A 24§ supra. pro- if the posed victim, conclusion is that robbed the the defendant others victim’s voice identification of the as one of the defendant robbers is is, only therefore, with proposed consistent conclusion and DePalma v. See (1971) (voice evidence). Similarly, of robber is identification proposed that others robbed testimony victim, the defendant’s that he did not rob the victim is only is, consistent with opposite proposed conclusion and hand, testimony evidence.3 that the de- company fendant was seen in the of the robbers hour before the distinguish point only help out to the bench and kind, generally. In cases of when a court decide whether to on the testimony consequence law of circumstantial be of no only presented turns the State. See fn. court’s decision infra. both and its i.e., robbery opposite, the conclusion Al- his innocence. guilt is consistent both the defendant’s with only proposed it is though the is relevant to the 1A evidence of defendant’s See burglary possession In this and the Stubbs was convicted of tools for the commission of a crime. We summarize the evidence parked Stubbs’ car near a fur- the State4 as follows: was car, holding next a TV niture store while another man stood car, set; put approaching the man saw an the TV down and padlock, ran. The officer observed a metal bar and a which had been store, pried from the front door of the furniture Stubbs’ car. thereafter, Shortly burglar signalled the furniture store’s alarm an in- police, In statement that trusion. Stubbs said he had sick; stopped ap- his car because he was intoxicated and that he was TV; proached by wanting a man to sell a and that the man threw the padlock something else into his car before he ran off.
With burglary, the State’s evidence is consistent both conclusion and its i.e., proposed opposite, it is consis- (he guilt participant burglary) tent with Stubbs’ was a in the and his (he Thus, bystander). innocence a mere was the State’s evidence with burglary and the trial court erred in failing evidence.5
With
offense
of tools for the commis-
arresting
sion of a
officer’s
the metal bar
only
was in
Stubbs’ automobile
is consistent
con-
clusion,
i.e.,
guilt.6
it is
consistent with Stubbs’
rested,
burglary
evidence with
tools
determining
We look
to the State’s case in
whether a
on the law of circum
supra;
State, supra;
stantial evidence must be
See Yarn v.
State, supra.
burglary
Evidence that Stubbs was in
tool is
circumstantial evi
burglary charge.
dence with
conclusion is that Stubbs was a
participant
burglary.
in the
Stubbs’
tool is consistent with both
*4
Likewise,
opposite.
although
conclusion and its
a defendant’s confession is di
(5) (108
rect
see Yarn v.
Harris v.
and
concur, Fletcher, J., except specially J., P. who concurs Carley, who judgment only concurs in the as to Division 2.
Fletcher, concurring specially. majority’s opinion yet example futility another attempting to define direct evidence and circumstantial Contrary majority’s the officer’s that he found a metal Stubbs’ car is also consistent with Stubbs’ the- ory of innocence: that the burglar dropped actual the bar into Stubbs’ car.
A appellate review of opinions, countless including the several generated in this one leads to the conclusion that the difference eye between and circumstantial evidence lies appellate beholder. Because courts are unable to a workable clarify law, test that why this area of the do we continue to im- pose this additional burden on trial courts and continue to confuse juries? perpetuate We should not continue to distinctions in evidence unnecessary preserve when it is fundamentally fair trials. As I in Yarn Pope said v. State opinion said his case, prove the state guilt beyond a reason able doubt and the state’s evidence must exclude all reasonable theo direct, ries of innocence circumstantial, the evidence is both. The continued life of the distinction between direct and circum stantial purpose evidence serves no worthwhile and should be elimi nated.
Decided November Lamb,
Lewis R. Priddy, Britt R. Attorney, Gregory Edwards, District W. Assis- tant Attorney, District appellee. 359) (1995) (Fletcher, J., dissenting). P. 571) (1994). App. 873,