a. 419 ( 126 S.E. 16) (1924); King v. State, 163 Ga. 313 ( 136 S.E. 154) (1926); Rawlings v. State, 163 Ga. 406 ( 136 S.E. 448) (1926); Tanner v. State, 164 Ga. 490 ( 139 S.E. 5) (1927); Clarke v. State, 165 Ga. 326 ( 140 S.E. 889) (1927); McCloud v. State, 166 Ga. 436 ( 143 S.E. 558) (1928); Brown v. State, 168 Ga. 282 ( 147 S.E. 519) (1929); Powers v. State, 172 Ga. 1 ( 157 S.E. 195) (1930); Wright v. State, 186 Ga. 863 (1) ( 199 S.E. 209) (1938); Allen v. State, 187 Ga. 178 (3) ( 200 S.E. 109) (1938); Daniel v. State, 187 Ga. 411 ( 1 S.E.2d 6) (1939); Sheffield v. State, 188 Ga. 1 ( 2 S.E.2d 657) (1939); Coates v. State, 192 Ga. 130 ( 15 S.E.2d 240) (1941); Pressley v. State, 201 Ga. 267 ( 39 S.E.2d 478) (1946); Montgomery v. State, 202 Ga. 678 ( 44 S.E.2d 242) (1947); Johnson v. State, 204 Ga. 528 ( 50 S.E.2d 334) (1948); Hobbs v. State, 206 Ga. 94 ( 55 S.E.2d 610) (1949); Harris v. State, 207 Ga. 287 ( 61 S.E.2d 135) (1950); Patrick v. State, 209 Ga. 645 ( 74 S.E.2d 848) (1953); Green v. State, 210 Ga. 745 ( 82 S.E.2d 703) (1954); Fields v. State, 211 Ga. 335 ( 85 S.E.2d 753) (1955); Weatherby v. State, 213 Ga. 188 (2) ( 97 S.E.2d 698) (1957); Edwards v. State, 213 Ga. 552 ( 100 S.E.2d 172) (1957); Bloodworth v. State, 216 Ga. 572 ( 118 S.E.2d 374) (1961); Jackson v. State, 225 Ga. 553 ( 170 S.E.2d 281) (1969); Robinson v. State, 232 Ga. 123 ( 205 S.E.2d 210) (1974); Bonds v. State, 232 Ga. 694 ( 208 S.E.2d 561) (1974); Davis v. State, 234 Ga. 730 ( 218 S.E.2d 20) (1975); Birks v. State, 237 Ga. 861 ( 230 S.E.2d 294) (1976); Gaines v. State, 239 Ga. 98, 100 ( 236 S.E.2d 55) (1977). HILL, Justice, concurring.
" The defendant contends that the effect of this statement to the jury was to instruct them that all the evidence introduced in the case was direct evidence as distinguished from circumstantial evidence; and circumstantial evidence having been admitted into the case, it was incumbent upon the court to instruct the jury to consider only the direct evidence or else to charge the law of circumstantial evidence. It is not error to fail to charge the law of circumstantial evidence in the absence of a request, when there is direct evidence in a case ( Jones v. State, 210 Ga. 94 (7), 78 S.E.2d 18; Wise v. State, 209 Ga. 115(1). 70 S.E.2d 598; Green v. State, 210 Ga. 745 (2), 82 S.E.2d 703); but when direct and circumstantial evidence is introduced in a criminal case, it is the better practice to charge the law contained in Code § 38-109. There was direct evidence in this case.
new trial excepts to the charge of the court on the law of confessions of guilt, upon the ground that such a charge was not authorized by the evidence. While this court has held many times that it is harmful and prejudicial error to give in charge to the jury in a criminal case the law in reference to confessions of guilt when there is no evidence of a confession of guilt, but only evidence of an admission which might tend to criminate ( Dumas v. State, 63 Ga. 600 (5); Covington v. State, 79 Ga. 687, 7 S.E. 153; Fletcher v. State, 90 Ga. 468 (3), 17 S.E. 100; Suddeth v. State, 112 Ga. 407 (1), 37 S.E. 747; Weaver v. State, 135 Ga. 317, 69 S.E. 488; Owens v. State, 156 Ga. 835 (2), 120 S.E. 413; King v. State, 163 Ga. 313 (11), 136 S.E. 154; Clarke v. State, 165 Ga. 326 (6), 140 S.E. 889; Powers v. State, 172 Ga. 1 (30), 157 S.E. 195; Pressley v. State, 201 Ga. 267 (1, 2), 39 S.E.2d 478; Hobbs v. State, 206 Ga. 94 (1), 55 S.E.2d 610; Harris v. State, 207 Ga. 287, 61 S.E.2d 135; Green v. State, 210 Ga. 745, 82 S.E.2d 703) — where, as in this case, the defendant, in the written statement which the jury was authorized to find he freely and voluntarily made, and as quoted in part above, admitted that he attempted to and did rob the police officer of his pistol by force and violence, which is itself a capital felony (Code, Ann., §§ 26-2501 and 26-2502), and that, during the progress of this robbery, the pistol which was held by him was discharged and the officer quit struggling, this was a confession of guilt of the crime of murder, even though in another portion of the statement he said that he had no intention of shooting anyone, for in Ford v. State, 202 Ga. 599 (3) ( 44 S.E.2d 263), it is held: "Where the evidence shows, and it is admitted in the defendant's statement, that the homicide occurred by the discharge of a gun held by the accused and used in an attempt to rob the deceased, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involv
Accordingly, it was not error to fail to charge on a conviction on circumstantial evidence alone as authorized by Code § 38-109. Nobles v. State, 127 Ga. 212 (5) ( 56 S.E. 125); Hegwood v. State, 138 Ga. 274 ( 75 S.E. 138); Bowen v. State, 181 Ga. 427 (4) ( 182 S.E. 510); Green v. State, 210 Ga. 745 (2) ( 82 S.E.2d 703). 2.
1. It is never error to fail to charge on circumstantial evidence absent a request in writing therefor, where there is direct evidence sufficient to support the verdict of the jury. Nobles v. State, 127 Ga. 212 (5) ( 56 S.E. 125); Hegwood v. State, 138 Ga. 274 ( 75 S.E. 138); Bowen v. State, 181 Ga. 427 (4) ( 182 S.E. 510); Green v. State, 210 Ga. 745 (2) ( 82 S.E.2d 703). 2.
The defendant cites cases in which it was held that a charge on the subject of confession was unauthorized, because while the statement of the defendant admitted inculpatory facts or admitted a homicide, or admitted the defendant's presence when a homicide was committed, it also related circumstances of excuse or justification, and was not an acknowledgment of guilt of the offense charged. See Dumas v. State, 63 Ga. 600; Covington v. State, 79 Ga. 687 ( 7 S.E. 153); Pressley v. State, 201 Ga. 267 ( 39 S.E.2d 478); Green v. State, 210 Ga. 745 ( 82 S.E.2d 703). There was evidence in this case that the defendant stated to the investigating officer that a case of wine found in the house where the defendant was, was hers and that the two pints of liquor found in the case of wine were hers, too.