dissenting.
I respectfully dissent.
OCGA § 24-4-6 provides as follows: “To 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.” And “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.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). Mims enumerates as error the refusal of the trial court to give his timely submitted written request to charge the law as provided by OCGA § 24-4-6.
Although the testimony of the victim as to the act done is direct *908evidence, as is testimony relating Mims’ incriminating statement to the investigator that he touched the victim, the state also adduced on direct examination the following circumstantial evidence that Mims committed the act charged: (1) Mims had been drinking that night; (2) the child made an immediate outcry to her brother; (3) her general demeanor immediately after the alleged incident was one of excitement and hysteria; (4) Mims had a recent scratch or bruise under his eye; and (5) Mims was weeping when the police arrived.
Decided July 16, 1993 — Reconsideration denied July 30, 1993 — Lloyd J. Matthews, for appellant. Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.In this case, the state’s case depended in part upon circumstantial evidence that appellant committed an act in violation of a state statute and that he did so with the requisite criminal intent. The trial court erred in refusing Mims’ timely written request to charge on the law of circumstantial evidence as required by Robinson v. State, supra. I cannot agree that this error was harmless, and therefore, in light of Robinson, a new trial must be had. Russ v. State, 204 Ga. App. 689 (1) (420 SE2d 373) (1992).