concurring specially.
Because appellant failed to request the trial court to give a specific instruction to the jury utilizing the statutory language of OCGA § 24-4-6, and because the trial court did give detailed instructions defining, inter alia, circumstantial evidence, properly placing the burden of proof on the State, and charging that mere presence at the crime scene was insufficient to support conviction, I would affirm.
The time has come to clarify this area of the law in a manner compatible with the recent holdings of the Supreme Court of Georgia in Mims v. State, 264 Ga. 271 (443 SE2d 845) and Robinson v. State, 261 Ga. 698 (410 SE2d 116). In Mims, supra at 272, the Supreme Court held: “Since a jury could consider circumstantial evidence in *875every instance where it has been introduced, upon request, the trial court must give the charge so that the jury will be familiar with how to weigh that circumstantial evidence.” (First emphasis supplied.) In Dunaway v. State, 214 Ga. App. 128, 129 (1) (447 SE2d 153), it was further clarified that “[w]henever the State introduces circumstantial evidence of a defendant’s guilt, OCGA § 24-4-6 must be charged if the defendant requests it.” (Emphasis supplied.) The only reasonable legal corollary to this rule is that it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request to do so. Compare Brown v. State, 214 Ga. App. 481, 482 (2) (448 SE2d 259) (physical precedent only), citing Jenkins v. State, 209 Ga. App. 19 (432 SE2d 270).
The rule of Mims, supra, and Dunaway, supra, should be construed as follows: Whenever the State introduces circumstantial evidence of the defendant’s guilt, it is error not to give an OCGA § 24-4-6 charge if such has been timely requested; however, it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request where, as here (as clearly established in fact recitation of the majority’s opinion), the State’s case depends both upon direct and circumstantial evidence. This is not a case where the State’s evidence was solely circumstantial. It is well-established that, even absent a request to charge, where the case against the defendant is doubtful and is composed solely of circumstantial evidence, it is reversible error for a trial court not to charge substantially in the statutory language of OCGA § 24-4-6. Jenkins v. State, supra at 20.
Whether a particular charging error would be harmless, of course, would depend upon the circumstances of the case then under consideration in light of existing law pertaining to the doctrine of harmless error.
In Croker v. State, 101 Ga. App. 742 (115 SE2d 413), the facts are distinguishable, as there was only opinion evidence offered that certain items found in the automobile were items commonly used as burglary tools. In this case, the arresting officer personally observed in the car not only a bar with pry marks on it but also a lock, which was later identified as coming from the burglarized premises. Secondly, neither Hogan v. Atkins, 224 Ga. 358 (162 SE2d 395), nor Croker, supra, expressly address the legal issue here before us. It is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529); Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152). Thus, Croker, supra, does not constitute binding precedent for the proposition that an instruction as to the statutory language of OCGA § 24-4-6 must be given in the absence of a timely and specific request for such charge. *876Incidentally, although Croker, supra, was decided over 34 years ago, it has never been cited previously as authority by any appellate court of this state.
As the record reveals that appellant failed to tender a timely request for a charge in the statutory language of OCGA § 24-4-6, I would find that no charging error has occurred as enumerated. Accordingly, there exists no need to determine whether appellant failed to present a reasonable hypothesis save that of his guilt, thereby rendering any charging error harmless, by his testimony that a fleeing stranger who apparently had just committed the burglary threw the metal bar and padlock into the back seat of his car.