dissenting.
Try as I may, I cannot reach the same conclusion as that of the majority opinion, and therefore dissent for the following reasons: (a) I do not interpret the critical facts upon the record in the same manner set forth in the majority opinion and (b) I do not agree that the majority opinion follows the rule requiring this court to consider all facts and all favorable inferences therefrom in a light most favorable to the state, and that all contrary evidence and inferences therefrom be disregarded.
The majority opinion correctly outlines the evidence that the owner and the family of the dwelling were being harassed, that the dwelling was broken into, that the woman of the dwelling was raped and that she left the dwelling to take up residence with relatives. The evidence further shows that the owner of the dwelling gave the key to the dwelling to appellant with the request that appellant check on the dwelling. This evidence, in reality, serves no other purpose than to place appellant at the scene of this arson and affords appellant the opportunity to commit the arson.
Appellant, with an associate, arrived at the dwelling around midnight. Appellant backed his employer’s van into the garage. This activity, accompanied by the sound of breaking glass, attracted the attention of a neighbor. The neighbor called the police. Two policemen arrived, talked with appellant and his associate, looked through the house and garage (but not the basement), secured the license number of the van, determined that the key in appellant’s possession fit the front door and then departed. One police officer was asked, at trial, to note any unusual observations he might have made while in the house. • At this point in the trial, the following conversation occurred:
“Q. Did you notice anything unusual about the house while you were there?
A. No, I didn’t at that time. I could smell something but I’ve got hay-fever and was all stopped up and I couldn’t really tell what it was I was smelling at the time.”
These officers left and about 1:10 a. m., the officer who testified above that he may have noticed an unusual odor, was again dispatched to the dwelling because of the blaze. In the meanwhile, the neighbor who had earlier contacted the police,- testified *345that he and his wife had just gotten into bed, “ * * * and we couldn’t have been in bed maybe 5 minutes and then we heard like a big puff, two big puffs coming from across the street.” The neighbor peered through the window and observed “flames shooting out of the window (basement) well”. The neighbor proceeded across the street and as he approached the dwelling, observed the van occupied by appellant and appellant’s associate. At trial, the neighbor was asked to relate what happened after he noticed the van:
“Q. Okay, and they were in the driveway?
A. Coming out of the driveway.
Q. Did you overhear them say anything?
A. Just, ‘Let’s get out of here.’ And then I shouted at them.”
When the neighbor shouted at the occupants of the van, there was no response. The testimony reveals the following:
“Q. I shouted at them to stop and pounded on the side of the van and said ‘Where are you going?’ and there was no reply. And I said, ‘Say there’s a fire.’ And they said, ‘Yes we know and we’re getting out of here’, and then they just, they took off, you know (indicates) va-room down the street.”
Fire officials and police authorities arrived on the scene to extinguish the blaze. Arson experts were dispatched to the scene. The cause of the blaze was determined to be gasoline soaked clothing and cardboard strung out in the basement and ignited by the flame on the gas hot water heater.
This dwelling (house) was located in Clay County. At approximately 2:00 a. m., appellant and his associate were stopped in Jackson County a short distance from appellant’s place of employment. When the police stopped them, one police officer detected a strong odor of gasoline coming from the van. This officer inspected the interior of the van and his testimony was as follows:
“Q. Please relate to the jury what you smelled and what you did?
A. It was a strong odor of gasoline.
Q. All right sir, so what did you do?
A. And at that time I then inspected the interior of the van. And in the floorboard I found a large puddle of what appeared to be gasoline. And it was eating away at the rubber floor mats. Also you could tell that it had began to evaporate. And for fear of losing the evidence through evaporation I then took a sample of the floor mat and tried to preserve what I believed was gasoline.”
After testifying why he thought the liquid found was gasoline, the officer was asked to identify the location within the van and this is what the evidence reveals:
“A. This was a Chevrolet van and you have a driver’s seat and a passenger’s seat. And the back area was empty for transporting purposes, I suppose. In between the two seats on the floor (indicates) it would be to the right of the driver and to the left of the passenger right between the two front seats.” (emphasis added)
The majority opinion, after referring to the foregoing testimony of the officer regarding the location of the puddle of gasoline, then turns attention to the evidence offered by appellant’s employer. The majority opinion concludes that the “employer Walton explained that a gasoline container was often carried in the front area of the van as a precaution against an empty tank.”
I must disagree with the majority view on the employer’s testimony. What he testified to is as follows:
“Q. Aii right, did you ever let Mr. Sira-guso use the truck with permission for his own use?
A. Yes, I have.
Q. Now, can you tell me whether or not prior to June the 9th you had ever had an occasion to keep a can of gasoline in the truck, and if so for what purpose?
*346A. Well, now, the vehicle being used on the route we, or I, had previously used a two gallon container of gasoline strapped to the back of the wire mesh which separates the front cab from the back loading area of the truck for the prime purpose, primarily, for running out of gas on the freeways because this vehicle carries approximately close to fifteen hundred to two thousand dollars worth of merchandise and money collectively together. And one thing that we didn’t want to do was to leave it out on the freeway which we do travel a lot of times. We’d use a two gallon can of gas.”
In my reading of that testimony, I find that the employer testifies that the extra container was affixed in a location not “in the front area of the van” as the majority opinion concludes, but in fact was located to the rear of the area where the puddle of gasoline was found by the officer. The continued testimony of the employer is of further interest in that at no time does he testify that on the date of the arson was the extra container in the van. In fact, when his testimony is further viewed, a contrary inference arises. He testified:
“Q. All right, and did you do that all year around or did you do that primarily during the winter months and why?
A. Well, we mainly done it during the winter months because we found out during the winter months that’s when you broke down and ran out of gas, primarily running out of gas at times. It was hard to get anybody to come out because they’d be doing other things and we couldn’t get a response to get the vehicle off of the freeways one way or another. So, primarily we had it during the winter time. Come up to the summer it was just too heavy, too hot and I had just thought primarily that it was too much to be kept in the truck during the summer time.
Q. The danger factor?
A. Well, the fumes aspect of it, the heat, and the material that is kept in there could possibly cause some type of a bad fire.
Q. Now, you checked that van from time to time, did you not?
A. I have, yes, periodically.
Q. And it was then under your control, and near your place of business every day, wasn’t it?
A. Yes.
Q. All right, had you looked at it and noticed any fumes or odor of gasoline in the area where the can had sat prior to June the 9th, 1978?
A. Well, I can’t say I really noticed any particular odors other than what is usually there. I didn't notice any extra situation (sic), but there is a certain amount of odor that’s left.”
The arson occurred on June 9, 1978. From the foregoing, it is my contention that the jury could properly infer the odor of gasoline observed by the officer exceeded even the amount that the employer states was attributable to the carrying of the extra container; the jury could infer that no extra container for the use of the employer’s business was in the van at the time in question because the employer never testified that such container was in the van; plus, by the employer’s own testimony, the practice of carrying the extra container was not followed in the summer months because it was a fire hazard. In addition, the employer’s testimony locates the extra container in the van at or in an area to the rear of where the puddle of gasoline was located, and the jury thereunder could properly infer that gasoline, other than the extra container used for business purposes, was transported to the scene of the arson by appellant and his associate.
The majority opinion references the testimony of the employer that appellant had personal use of the van. That is not disputed on the record. The employer testified he knew appellant had extra or odd jobs and made use of a lawnmower. The employer, in his testimony, only speculates that appel*347lant carried the mower in the van from time to time. The critical evidence on this issue comes from the testimony of the appellant himself, because in answer to his counsel’s question concerning the odd jobs, appellant not only confirms that he did not have such an odd job on the date in question, but responds in a much broader scope, thusly:
“Q. All right, do you have any other part-time jobs or did you have any other part-time jobs at that time?
A. At that time, no, I didn’t.”
It is my feeling that since the employer’s testimony permits the aforementioned inferences, it also follows that the jury could have inferred that appellant transported the gasoline (and hence the puddle of gasoline) to the location of the arson.
Before turning to the question of the majority analysis of circumstantial evidence and the rule requiring this court to accept the facts and inferences in support of the verdict, one more area of evidence bears discussion. The majority opinion declares:
“The evidence raises clear inference that the process of combustion was of a duration beyond the presence of the defendant on the premises that night.”
I cannot agree that the evidence suggests, let alone “supports” such an inference. The evidence places appellant and his associate on the premises anywhere from an hour to an hour and 10 minutes. Although there were two witnesses who testified, as experts, regarding arson, neither witness attributed any time relationship between the time the clothes were soaked with gasoline and the time that the actual ignition took place. What one expert did testify to is that gasoline soaked clothing was found as close as 10 feet from the water heater and that ignition was caused by the gasoline vapors coming into contact with the flame on the heater. There is nothing to support the conclusion reached by the majority opinion, and this question was one of fact which should be left to the province of the jury. It is just as reasonable to declare that the jury inferred appellant was on the premises a sufficient duration between the time of the soaking of the clothes and the instant of the ignition or combustion. The majority opinion overrides the trier of fact on this point and draws its own inference premised upon no evidence as to the required amount of time involved.
Without a doubt, two conclusions can be drawn from the evidence in this case. There was an arson of a dwelling place; and the evidence against appellant was circumstantial. The majority opinion concludes as a matter of law the evidence was insufficient to submit the issue of guilt or innocence to the jury. I cannot agree.
Without unduly belaboring the point concerning the evidence and with regard to the foregoing relative to the evidence, it suffices to say that this appellant went to the dwelling and was there for anywhere from one hour to one hour and 10 minutes. The majority opinion relies upon State v. Miller, 536 S.W.2d 524 (Mo.App.1976) for the proposition that there must be more than mere suspicion of a criminal act. Miller can hardly be considered controlling in the instant case because Miller reversed a conviction of an accused who was at the scene of a burglary the day prior to the commission of the criminal act and the state merely contended the accused may have observed the existence and whereabouts of stolen property. Incidentally, in Miller, the accused was arrested five days after the offense some 100-120 miles from the scene and while merely a passenger in a vehicle not owned by the accused.
After the ignition of the gasoline soaked clothing occurred, appellant and his associate fled the scene. They were in the process of driving the van down the driveway when confronted by a neighbor. It must be remembered that the only claimed purpose for appellant to have been in the dwelling at that time was to protect the dwelling on the owner’s behalf. What did appellant do? The evidence shows the neighbor heard a voice from within the van saying, “Let’s get out of here”. After being confronted by the neighbor, a voice from inside the van stated, “Yes we know and we’re getting out of here”. The witness then stated that the *348van rapidly drove away. The witness, on cross-examination, stated that as best he could recall, the occupants of the van might have stated, “There is a fire, we’re getting out of here, call the police and call the fire department.” The evidence reveals that appellant asserted he told the neighbor to call the police and fire departments. The issue is that the evidence gave rise to a question of flight. Flight alone does not suffice as a circumstance for conviction, but when coupled with other circumstances, evidence of flight is a circumstance to be considered by the jury. This question, under the facts of the instant case was for the jury and not this court to resolve. State v. Castaldi, 386 S.W.2d 392 (Mo.1965) stands for the proposition that flight from the scene is, by itself, insufficient to support a conviction. However, the court, in Castaldi, was quick to point out that the accused had left the scene with another with the explanation that the claimed offense had occurred in a remote area and the accused had no other means of leaving the area. The court pointed out that such action alone was not sufficient to sustain a conviction for tampering with an auto. In the instant case, appellant was at the scene of an arson. Contrary to what the majority opinion assumes, the jury could have reasonably inferred from the evidence that appellant was on the premises a sufficient time, he had the opportunity to commit the offense and then when ignition occurred, appellant fled the scene. Giving appellant all the benefit of doubt regarding the leaving of the scene, the most that can be concluded is that he was returning the van to the place of his employer’s business.
Since the only purpose for appellant to have been at the dwelling was for the protection thereof, when the evidence reveals that appellant left the scene making no further attempt to fight the fire, call the police or call the fire department, such action can hardly be held to be consistent with the very reason why he was at the dwelling. The majority opinion passes this off as human fear and concludes that such action is consistent with a hypothesis of innocence, see State v. Castaldi, supra. Castaldi also stands for another proposal in that flight is a circumstance to be considered against an accused in connection with other evidence of crime. Under the facts of the instant case, appellant was on the premises, an arson occurred, appellant fled the scene and was arrested in another county some 40-50 minutes later, and gasoline (puddle of gas) was found in the van. This chain of circumstances is consistent, unto itself, with a hypothesis of guilt. The majority opinion, in citing State v. Eye, 492 S.W.2d 166 (Mo.App.1973) declares the circumstances of the instant case to be consistent with appellant’s innocence as they are with his guilt. Eye hardly stands as controlling in the instant case, for that case involved an accused being arrested some 3-3½ miles from the scene of a burglary without any evidence of the accused being nearer the scene of the burglary; nor was there any other evidence to place the accused at the scene of the offense. State v. Eye, supra, also stands for the rule that appellant’s actions do not exclude every reasonable hypothesis of innocence.
The facts in the instant case form a chain of circumstances from which the jury could reasonably infer the guilt of appellant. While the majority opinion relies heavily upon the consistency versus the inconsistency requirement in cases involving circumstantial evidence, the majority opinion overlooks a very important part of that rule, which is:
“First, the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded ... (citations omitted) Second, when the state’s case rests upon circumstantial evidence, ‘the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence ... (citations omitted) Third, the prevailing circumstantial evidence rule, supra, is realistically tempered in its *349application since ‘[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] ... the mere existence of other possible hypothesis is not enough to remove the case from the jury.’ ” State v. Franco, 544 S.W.2d 533, 534, 535 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
In my surmise of the evidence in the instant case, the majority opinion violates the rule announced in State v. Franco, supra, in three separate but cumulative ways, and thus arrives at the conclusion (erroneously) that the evidence was insufficient to submit to the jury. First, the majority opinion predicates its conclusions upon circumstances and inferences therefrom not to the state’s favor but to appellant’s. Secondly, the majority opinion reaches the conclusion, without sufficient basis of fact upon this record, that appellant was absolutely innocent.
While the majority opinion, by footnote, clearly denotes the federal rule supporting the proposal that evidence must be viewed in the light most favorable to a conviction, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), it is the failure to follow the rule in Jackson, coupled with the failure to adhere to the rule in Franco, which leads to the conclusion reached by the majority. It is interesting to note that in the Jackson decision, at 99 S.Ct. 2793, the federal court declared:
“Under the standard established in this opinion as necessary to preserve the due process protection in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” (emphasis added)
Thirdly, and lastly, the rule in State v. Franco, supra, provides that the mere existence of another hypothesis is not sufficient to remove the cause from the jury. By even the most strained view that there existed a mere existence of another hypothesis, and the facts herein do not support even that conclusion, the matter was for the jury’s determination. The record reflects that the trial judge was faced with that question when appellant moved to dismiss on the basis of the insufficiency of the evidence. The trial court properly overruled the motion. This court now attempts to invade the province of the jury and this is, in my opinion, a conclusion totally unsupported by the evidence upon the record.
For and upon the foregoing bases, I would affirm the judgment of conviction.