dissenting.
1. Appellant contends that the court did not sufficiently charge the jury on circumstantial evidence with respect to the principle in OCGA § 24-4-6 because it did not charge “that the jury could convict [him] upon circumstantial evidence only if the crime is proved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.”
Appellant submitted requests to charge but did not request the language of OCGA § 24-4-6 or the principle embodied therein. He expressly reserved objections after the charge was given. The jury asked for an explanation of circumstantial evidence and the court obtained defendant’s approval before recharging them on direct and circumstantial evidence. The court repeated its earlier charge: “Evidence may be either direct, or circumstantial, or both. Direct evidence is the testimony given by a witness who has seen or heard the facts to which the witness testified. It includes exhibits admitted into evidence during the trial. It is that evidence which points immediately to the question at issue. Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts which are reasonable and just in the light of your experience.” No further clarification was requested by the jury or by defendant.
During the charge, the court had among other things also instructed on the presumption of innocence, its steadfastness unless overcome beyond a reasonable doubt, the State’s burden of proof beyond a reasonable doubt, alibi as a counter to the element of presence, and that guilt could be inferred, if the jury saw fit, from recent possession “unless there should be from the evidence a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.”
The State’s witness McWilliams testified that as he was approaching the house of defendant’s brother in his truck near noon, he came upon defendant walking away from the house. Defendant had with him some fishing equipment and asked to be taken to a pawn shop in a town which was about 15 miles away. They drove first to the brother’s house, and then the three proceeded to the pawn shop. The defendant went in with the rods and reels and other articles and emerged with money. The pawn shop keeper testified that he bought the equipment, identified by the victim, from defendant that same day and that defendant said he had gone fishing but now needed money.
Defendant and his brother testified that McWilliams and defendant had been at defendant’s brother’s home early in the morning and had left to go to the store for beer. On the way defendant spotted *618some fishing equipment by the side of the road and had McWilliams stop for it. They took it back to the brother’s house and subsequently went to the pawn shop, where defendant sold it. Defendant had no idea it was stolen, did not know who it belonged to, and thought it had blown off a truck. He made no effort to find the owner and did not notify “lost and found” at the sheriff’s office.
All of the evidence of guilt was circumstantial. Although there was direct evidence that defendant was in possession of the fishing equipment, that he sold it, and that it was missing from the victim’s yard, none of this is direct evidence that defendant took it or did so with the intention of depriving the owner of it. These are the elements of the crime as charged in the indictment and by the court’s charge.1 OCGA § 16-8-2. (Of course, value is an element as related to punishment. OCGA § 16-8-12.) The evidence of guilt being entirely circumstantial, the court was required to give a proper charge on this subject, even without request. Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (44 SE2d 903) (1947). The question is, was the charge proper?
A charge need not be given in the exact language requested, so long as the court correctly charges on the subject matter of the request. Burnett v. State, 240 Ga. 681, 687 (7) (242 SE2d 79) (1978). The same must hold true for charges which the court is required by law to give. In Burnett the language requested was not set out, but the Supreme Court found no error when the trial court charged instead: “ ‘Circumstantial evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with defendant’s guilt, wholly inconsistent with any reasonable theory of defendant’s innocence and are so convincing as to exclude a reasonable doubt of defendant’s guilt.’ ” This charge contains in other words the principle encompassed in OCGA § 24-4-6.
In Cook v. State, 185 Ga. App. 585 (1) (364 SE2d 912) (1988), the trial court did not give the requested OCGA § 24-4-6 or any other charge to the effect that the jury could not convict on circumstantial evidence unless “it” (the evidence) excludes every other reasonable hypothesis. The court recognized that the exact language of the Code section was not required but concluded that “there is nothing in this *619charge that warns the jury of the special limitations of circumstantial evidence.” Id. at 586. Charges on presumption of innocence and proof beyond a reasonable doubt were not enough.
The same question had arisen in Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740) (1986), but the following charge was held sufficient, considering the jury instructions as a whole, and even more beneficial than a charge in the exact language of OCGA § 24-4-6: “[W]hen the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, justice and humanity of the law compel the acceptance of the theory that is consistent with innocence.” This two-theories charge has been criticized as going too far in defendant’s favor, beyond the concept embodied in OCGA § 24-4-6. See, e.g., Booker v. State, 156 Ga. App. 40, 42 (4) (274 SE2d 84) (1980), rev’d on other grounds 247 Ga. 74 (274 SE2d 334) (1981).
In Roman v. State, 155 Ga. App. 355, 356 (2) (271 SE2d 21) (1980), the court held that the trial court’s charge on circumstantial evidence was not burden-shifting. The charge in pertinent part was: “ ‘Circumstantial evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the defendant’s guilt and wholly inconsistent with any reasonable theory of the defendant’s innocence and are so convincing as to exclude a reasonable doubt of the defendant’s guilt.’ ” Id. at 356. The court referred to this charge as a “restatement of [OCGA § 24-4-6].”
The instructions to the jury were sufficient to advise it of the principle articulated in OCGA § 24-4-6. The court made clear that there were two types of evidence, defined both, and warned of the limitation on finding guilt upon circumstantial evidence. It stated the caveat, the caution to prevent misinterpretation of the circumstantial evidence. The jury was instructed that it could not convict unless it excluded any “reasonable explanation” which was created.
The court’s instructions were tailored to the evidence. Defendant presented an explanation, that he found these seven reels and seven rods scattered out by the side of the road at a corner and had no intent to deprive the owner of them, whoever that was. “ ‘Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the jury.’ ” Singleton v. State, 194 Ga. App. 5, 6 (389 SE2d 496) (1989). The jury was instructed to test this theory of innocence and that if the jury found it to be reasonable, it would block the theory of guilt, which had to be proved beyond a reasonable doubt. As is required, “the charge given substantially and adequately covered the principle! ]” to be followed. Wright v. State, 199 Ga. App. 718, 721 (3) (405 SE2d 757) (1991). The trial court should not be faulted for rewording the principle so as to avoid use of the word “hypothesis,” *620which the average jury may have difficulty comprehending and applying.
Decided July 16, 1993. John G. Walrath, for appellant. Peter J. Skandalakis, District Attorney, Lisa R. Roberts, Assistant District Attorney, for appellee.Looking at the charges in light of the evidence, the two competing theories, and the entire charge, Williams v. State, 249 Ga. 822 (3) (295 SE2d 293) (1982), a new trial is not required.
2. The majority concludes that in light of its holding that the charge was erroneous, the remaining enumerations need not be addressed. The assumption is that a new trial is mandated. However, four of them relate to the sufficiency of the evidence. No new trial would be authorized if the evidence addressed at the first trial would not support a conviction, under the Double Jeopardy Clause of the Fifth Amendment. Glisson v. State, 192 Ga. App. 409, 410 (385 SE2d 4) (1989).
The crime is also committed when one, “being in lawful possession thereof, unlawfully appropriates” property of another, regardless of the manner in which it is appropriated. OCGA § 16-8-2. (Emphasis supplied.) It could be argued that defendant’s version constituted unlawful appropriation because he made no effort to find or return the seven rods and reels to the owner but immediately sold them, despite his professed belief that they had fallen off a passing vehicle and thus were not abandoned. The State did not travel on the theory of unlawful appropriation. Nor was this intended as an alternative theory in the indictment or in the court’s instructions to the jury. If it had been, there was direct evidence of it, i.e., defendant’s own testimony.