dissenting.
Although I concurred in this court’s decision in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) less than three years ago, experience with the Robinson rule and further reflection on my part have convinced me that Robinson was wrongly decided. The cases that have followed it, including the present case, persuade me that our well-intentioned effort to state a bright-line rule for the use of the circumstantial evidence charge based on OCGA § 24-4-6 has fostered confusion and threatens to weaken the criminal justice system. I agree with Chief Justice Hunt’s statement in his concurrence and with Presiding Judge Birdsong’s statement in Johnson v. State, 210 Ga. App. 99 (435 SE2d 458) (1993), that if Robinson is to remain good law, it will be necessary for trial courts to give the charge requiring exclusion of every other hypothesis other than that of the guilt of the accused in every criminal trial. I do not agree, however, with Judge Birdsong’s assertion in Johnson, that “the charge is a fundamental principle of criminal law and there is no reason not to give it . . . .” To the con*275trary, I now believe that if the charge is given in cases in which there is both direct and circumstantial evidence, it is likely to confuse juries and to lead them to believe, inappropriately, that they should acquit if there is any other possible explanation than that of guilt of the accused, even if there is unimpeached direct evidence on the point. While it is true that jurors may disbelieve even unimpeached direct evidence and may acquit a defendant even though the evidence would demand a verdict of guilt, this court should not encourage such juror misconduct.
A preferable way to deal with the problems that have arisen from the extension of the rule is to limit the applicability of the charge to those cases for which it was first intended, those in which the only evidence presented is circumstantial. The language used in OCGA § 24-4-6 appeared in Orr v. State, 34 Ga. 342, 345 (1866), in the course of a discussion of the sufficiency of the evidence in that case to support the conviction. The court noted that the evidence against Orr was “entirely circumstantial” and held that in order to convict “upon this character of testimony, ‘it is essential that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.’ [Cit.]” Id. By 1895, the language was codified and the word “entirely” had been dropped. Nonetheless, as recently as 1980, at least, the appellate courts of this state were still limiting the necessity for the instruction to those cases in which the evidence was entirely circumstantial. See, e.g., Arnett v. State, 245 Ga. 470 (265 SE2d 771) (1980). Confusion was already creeping into the issue, however, in such cases as Ramsey v. State, 212 Ga. 381 (2) (92 SE2d 866) (1956), where this court held that “when direct and circumstantial evidence is introduced in a criminal case, it is the better practice to charge the law contained in [OCGA § 24-4-6].”
It is my view that the cause of criminal justice would have been better served by maintaining the rule as it was originally stated and for the purpose it originally served, insuring that defendants were not convicted under evidence which served only to raise a conjecture of guilt. To alleviate the problems which have arisen and the need for splitting hairs to determine what evidence a case “depends” upon, I would simply reinstate the rule as it was intended and apply it only when the evidence adduced at trial was entirely circumstantial. That would do away with the strained analyses to which the appellate courts have been put to avoid reversing otherwise valid convictions. Adopting such a rule, I would affirm the judgment of the Court of Appeals in the present case because there was some direct evidence adduced at trial.
Since the majority reverses the judgment of the Court of Appeals and extends the already overextended rule even further, I must respectfully dissent.
*276Decided June 13, 1994. Lloyd J. Matthews, for appellant. Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee. I am authorized to state that Justice Carley and Justice Hunstein join in this dissent.