dissenting.
I must respectfully dissent to Division 4 of the majority opinion and to the judgment. Appellant’s argument, that it was possible for the jury to convict appellant of simple battery based solely on appellant’s conduct testified to by Goodroe, which was not the battery alleged in the accusation, and his motion to strike Goodroe’s testimony or, in the alternative, to instruct the jury that Goodroe’s testimony was not direct evidence of the crime charged, appear to me to be valid. Goodroe’s testimony was admissible only for the purpose of shedding light on what had already occurred inside the trailer (which was the battery charged in the accusation), and could not serve as an independent basis for finding appellant guilty of a separate battery, which had not been charged. The trial court refused, and in its ruling stated “there’s no reason why the jury cannot find that what [Goodroe] witnessed was a simple battery and convict him on the basis of that offense having occurred in her presence,” despite the fact that appellant had not been charged with that battery in the accusation, and Goodroe’s testimony had been admitted only as part of the res gestae.
In my view, that statement by the trial court brings the error of its ruling into focus. Although the majority concentrates on the admissibility of Goodroe’s testimony, I have no quarrel with the majority’s view that Goodroe’s testimony was admissible as part of the res gestae. The majority fails to inform us, however, why the requested limiting instruction was not required. “It is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Here, however, as in Harrell, appellant made such a request, and the “requested instruction would have informed the jury as to the limited purpose of the evidence and would have eliminated the possibility of the jury considering the evidence for any purpose other than that for which it was intended.” Id. Despite the majority’s attempt to distinguish Harrell on the basis that it involved hearsay, which is not relevant here, the quoted holding in Harrell is not restricted to hearsay matters. Moreover, although the majority finds Goodroe’s testimony merely cumulative of that of the victim, the victim testified only that appellant “drug” her off the doorstep, and not that he pulled or kicked her, as did Goodroe.
Appellant made a proper request for a limiting instruction, and the trial court’s failure to give such an instruction raised the possibility of the jury convicting appellant of an uncharged simple battery based solely on Goodroe’s testimony. I believe that was reversible error. Id.
*837Decided February 20, 1990 Rehearing denied March 13, 1990 John D. McCord III, T. Stanley Sunderland, for appellant. Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Faye S. Pous, Assistant Solicitors, for appellee.I am authorized to state that Chief Judge Carley, Judge Birdsong, and Judge Cooper join in this dissent.