dissenting.
I must dissent from Division 1 of the court’s opinion (and to the judgment), as the requirements of Code Ann. § 38-109 have been confused and misapplied in this case. The court’s opinion states that, "... the evidence presented at trial is entirely sufficient to be completely consistent with the verdict of guilty. Based on this evidence, there is no other reasonable hypothesis other than the guilt of the accused.”
Code Ann. § 38-109 provides that: "[t]o 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.” The fact that "the evidence presented at trial is entirely sufficient to be completely consistent with the verdict of guilty” is not enough to conclude that the evidence excludes every other reasonable hypothesis except guilt.
A review of the evidence from the trial court persuades me that this conviction is based entirely upon circumstantial evidence. Consequently, the provisions of Code Ann. § 38-109 should have been explained to the *385jury in this case. I dissent.
I am authorized to state that Presiding Justice Undercofler joins in this dissent.