concurring specially.
I agree with the majority opinion that the trial court’s jury charge on the law of circumstantial evidence was insufficient. Where the state depends entirely upon circumstantial evidence to prove the defendant’s guilt, the jury must be informed on the quantum of evidence which will authorize a conviction. The trial court’s jury charge failed to do so in this case.
1. The general law regarding circumstantial evidence is codified at OCGA § 24-4-6, which provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Emphasis supplied.) This statute represents a codification of the rule requiring a charge on circumstantial evidence where the state’s case depends entirely upon circumstantial evidence, derived from Martin v. State, 38 Ga. 293 (1868); Carter v. State, 46 Ga. 637 (1872); and Simmons v. State, 85 Ga. 224 (11 SE 555) (1890), which were such cases.
2. If the évidence of the defendant’s guilt had been a mixture of direct and circumstantial evidence, a different rule would have applied. Based upon the three cases from which OCGA § 24-4-6 and its predecessor statutes were derived, it was originally intended to apply only to those cases that were based entirely upon circumstantial evidence. Subject to certain exceptions, subsequent cases held that the general rule is that unless the evidence relied upon for the conviction is entirely circumstantial, a jury charge under OCGA § 24-4-6 is not required. “Where . . . there is some direct evidence against the defendant, it is not error to fail to charge on circumstantial evidence.” Terrell v. State, 258 Ga. 722, 724 (373 SE2d 751) (1988).
However, this court has held that “if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request.” (Emphasis supplied.) Whittington v. State, 252 Ga. 168, 176 (313 SE2d 73) (1984); Horne v. State, 93 Ga. App. 345 (4) (91 SE2d 824) (1956). The theory underlying this rule was that where both direct and circumstantial evidence of the defendant’s guilt are admitted, and the jury is authorized to find that all the direct evidence in the form of witness testimony has been impeached, the jury is left to determine the guilt or innocence of the defendant based solely on the circumstantial evidence, and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction. See Green *615v. State, 167 Ga. App. 548 (306 SE2d 354) (1983).
In Robinson u. State, 261 Ga. 698 (410 SE2d 116) (1991), the Supreme Court found it impossible to determine whether the jury found the state’s witnesses had not been impeached and thus based its verdict on the direct evidence, or whether the jury found that the state’s witnesses had been impeached and thus based its verdict on circumstantial evidence (giving rise to a need for a jury charge on circumstantial evidence). To avoid such problems in the future, the Supreme Court devised the following rule: “[W]here the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Id. at 699-700.
The questions which must be answered in applying Robinson, are: what is the meaning of the word “depends” as used therein, and what charge on circumstantial evidence must be given, where a charge is required? It is only where the state’s case “depends” upon circumstantial evidence that such a jury charge becomes necessary. The State’s case “depends” upon circumstantial evidence only where such evidence is necessary to prove one of the essential elements of the offense for which the defendant is on trial. See Rash v. State, 207 Ga. App. 585 (5) (428 SE2d 799) (1993).
Robinson by no means requires a jury charge on the law of circumstantial evidence in every case in which some circumstantial evidence is adduced. See, e.g., Berry v. State, 262 Ga. 614 (422 SE2d 861) (1992), wherein the Supreme Court, citing Robinson, found no error in the trial court’s refusal to give a requested jury charge on circumstantial evidence that was not properly adjusted to the evidence in the case.
If the state depends upon a mixture of direct and circumstantial evidence to prove essential elements of the offense, no charge on circumstantial evidence is required absent c proper request to charge the law on circumstantial evidence adjusted to the facts of the case. There is no independent duty on the court to create and give a proper charge on circumstantial evidence, adjusted to the evidence of the case. It is only where the state relies wholly on circumstantial evidence that a charge on circumstantial evidence must be given without request. Gentry v. State, 208 Ga. 370 (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (44 SE2d 903) (1947). This rule has not been changed by Robinson.
Inasmuch as OCGA § 24-4-6, as written, applies only to cases in which the state depends entirely upon circumstantial evidence, where the state’s case against a defendant involves a mixture of direct and circumstantial evidence, it is not error for the court to refuse to *616charge said Code section. Indeed, to do so would mislead the jury, as OCGA § 24-4-6 provides, in part, “[t]o warrant a conviction on circumstantial evidence. . . .” (Emphasis supplied.) “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618, 621 (414 SE2d 919) (1992); Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404) (1989).
In summary, the rule regarding a jury charge on circumstantial evidence set forth in Robinson v. State, supra, applies only where the state relies upon such evidence to prove one of the essential elements of the offense for which the defendant is on trial. The current status of the law concerning charging the jury on circumstantial evidence can be stated as follows:
(a) Where the state relies wholly on circumstantial evidence to prove its case a charge on circumstantial evidence as provided by OCGA § 24-4-6 is required, without request from the defendant; (b) Where the state relies on a mixture of direct and circumstantial evidence to prove essential elements of the charged offense, a proper charge on circumstantial evidence adjusted to the fact of there being mixed direct and circumstantial evidence is required, upon proper request, without regard to whether or not the state’s witnesses may have been impeached.
In the instant case, it is undisputed that the evidence relied upon by the state to prove the defendant’s guilt was entirely circumstantial. Accordingly, a jury charge covering the principle contained in OCGA § 24-4-6 was required, so that the jury could determine whether the evidence authorized the defendant’s conviction. As noted by the majority opinion, one critical aspect of the law on circumstantial evidence is the requirement that the proved facts must exclude every other reasonable hypothesis save that of the defendant’s guilt. The trial court’s instruction that the jury could infer the defendant’s guilt from the circumstantial evidence “unless there should be from the evidence a reasonable explanation of the possession of such property consistent with a plea of innocence” did not adequately communicate that principle.
Viewed in the light most favorable to uphold the verdict, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, the trial court’s failure to give an adequate charge on the law of circumstantial evidence requires a new trial.
I am authorized to state that Chief Judge Pope joins in this special concurrence.