concurring in part and dissenting in part.
Where the State’s case depends solely on circumstantial evidence, a charge based on OCGA § 24-4-6 must be given even if it is not requested by the defendant. Hamilton v. State, 96 Ga. 301 (22 SE 528) (1895); see also Williams v. State, 239 Ga. 12 (2) (235 SE2d 504) (1977); Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Henderson v. State, 200 Ga. App. 200 (2) (407 SE2d 448) (1991); Yarn v. State, 215 Ga. App. 883 (452 SE2d 537) (1994).
Judge Andrews suggests that Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changed this longstanding rule. He notes that Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) reiterates the rule of Robinson that “ ‘where 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.’ ” However, he omits the sentence immediately preceding this quote: “In Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), we intended to establish a bright-line rule with regard to the trial court’s duty to charge the jury in circumstances where the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Emphasis supplied.) Mims, 264 Ga. at 271.
In both Robinson and Mims the defendants did request the circumstantial evidence charge. That was the only situation before the Court, and that was the only situation addressed in its holding. What we have are two different rules governing two separate situations: one governs when the trial court must instruct the jury on OCGA § 24-4-6 if it is requested, and one governs when it must do so even without a request. If the instruction is requested, it must be given if the State relies to any degree on circumstantial evidence; but if the charge is not requested, it must be given only if the State’s case depends solely on circumstantial evidence. As these rules are in no way inconsistent, the Supreme Court’s statement of the former rule in no way implicitly overrules the latter. And if the Court had intended to overrule such a longstanding rule, surely it would have done so more clearly.
*879Notably, this is the first suggestion that a 1991 case changed a rule which comes up fairly frequently. Indeed, we have assumed on several occasions since Robinson that the OCGA § 24-4-6 charge must always be given if the case against a defendant is wholly circumstantial. See, e.g., McGarity v. State, 212 Ga. App. 17 (3) (440 SE2d 695) (1994); McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993); Jenkins v. State, 209 Ga. App. 19, 20 (432 SE2d 270) (1993).
With respect to this case, the determinative question is whether the evidence against Stubbs was wholly circumstantial. As Justice Hunt pointed out in his special concurrence in Mims, 264 Ga. at 273, n. 5, “direct evidence” is a relative term. Testimony is direct evidence of a given proposition when, if believed, it proves the proposition without further inference; “[d]irect evidence is the testimony given by a witness who has seen or heard the facts to which [he] testifies.” Suggested Pattern Jury Instructions, Vol. 2, p. 11; see also Black’s Law Dictionary at 413-414 (West 5th ed.); IA Wigmore on Evidence, § 25. “Circumstantial evidence is the proof of facts or circumstances, by direct evidence, from which [jurors] may infer other related . . . facts which are reasonable and justified in the light of [the jurors’] experience.” Suggested Pattern Jury Instructions, Vol. 2, p. 12. All testimony is direct evidence of something, but if it is not the testimony of someone present at the time the crime occurred (or at the time an act constituting an element of the crime occurred), it is probably not direct evidence of the defendant’s guilt.
Here, the officer actually observed defendant’s possession of the metal bar, and thus was able to provide direct evidence of defendant’s guilt of that crime. However, neither the officer nor any other witness saw defendant participating in the burglary; the evidence against him on this charge was wholly circumstantial, as his guilt of burglary could only be inferred from various circumstances which the officer did see and relate to the jury. Accordingly, defendant’s conviction for possessing tools for the commission of a crime should be affirmed, but his conviction for burglary should be reversed.
In my opinion, the legislature, judiciary and bar should seriously consider abolishing the distinction in treatment between direct and indirect or circumstantial evidence. This case is a perfect example of the fact that almost no one — not judges, not lawyers, and certainly not jurors — understands the distinction between direct and circumstantial evidence. And the distinction should not matter. As I used to instruct juries when I was a trial judge, “No greater degree of mental conviction is required to base a conviction on circumstantial evidence than on direct evidence”: the State has the burden of proving its case beyond a reasonable doubt, regardless of the type of evidence it uses. See White v. State, 210 Ga. 708 (1) (82 SE2d 498) (1954). I do not believe the instruction based on OCGA § 24-4-6 adds to that burden *880or helps to clarify it for the jury. “Instructions to the jurors seeking to differentiate between ‘direct’ and ‘circumstantial’ lines of proof are not helpful.” I Weinstein’s Evidence, § 401 [09] at p. 401-64; see also Roura v. State, 214 Ga. App. 43, 52 (447 SE2d 52) (1994). I therefore suggest we consider eliminating such instructions, as the federal courts have done. See I Federal Jury Practice & Instructions, § 12.04, pp. 337-344 (4th ed.).
In the meantime, however, the rules we have should be correctly applied. And in this case, that means defendant’s conviction for possession of tools for committing a crime should be affirmed and his conviction for burglary should be reversed.
I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this opinion.