dissenting. In my opinion the fundamental principles controlling the present case are as follows:
1. In a case of arson the corpus delicti is not established by proof of the burning alone. In the absence of satisfactory evidence to the contrary, the law presumes every burning to be accidental; and hence, to prove the corpus delicti in a case of arson, it is as essential to show that the burning was not due to accidental or providential cause as that it should be shown that the burning in fact occurred.
2. A confession corroborated by proof of the corpus delicti will authorize conviction of crime. But a confession by one accused of arson that he burned the building in question is not corroborated, within the meaning of the rule just stated, when there is no evidence aliunde that the building was feloniously fired.
3. Since in a case of arson the corpus delicti is not shown until the fact that the burning was intentional and felonious has been proved and the presumption that the fire was due to providential *718or accidental cause has been rebutted, it follows that in tlie trial of one accused of arson the jury should be charged that there is a presumption, where nothing but the fact of the burning appears, that the fire resulted from accidental or providential cause; and it is error to omit an instruction to this effect although there be no request upon the subject.
4. Since the verdict of guilty in this case was not demanded, it is my opinion that the error to which reference is made in the preceding headnote must be deemed to have been so prejudicial to the accused that it was error to overrule the motion for a hew trial.
The motion for a new trial is based upon the general grounds and certain exceptions to the charge of the court.' I shall not discuss the general grounds of the motion, and it is unnecessary to deal with the complaint- that the court erred in failing to instruct the jury that the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis than that of the guilt of the accused, in order to warrant a conviction on circumstantial evidence; because no reason is assigned why it was error on the part of the court to omit an instruction to that effect. The only valid exception presented to the charge of the court is that complaining that the trial judge did not charge the jury, although not requested, to the effect that the mere fact that a store alleged to have been burned was discovered to be on fire on the night in question was not sufficient of itself to show that the fire was a felonious one, and in not telling- the jury that the law presumes that a fire was accidental or originated from providential cause. In the state of the present record, I think it was error for the court to omit to inform the jury that the mere proof of the burning of a building alleged to be the subject of arson will not authorize the conclusion that the fire was felonious; for in the trial of one accused of. arson the law presumes, in the absence of proof of some kind to the contrary, that the fire was accidental or due to providential cause. I do not maintain that if it should be shown that the accused was seen to set fire to the building in question, it would be necessary to instruct the jury as to this presumption. As was once said by Judge Bleckley, there are certain inferences which, after serving a long apprenticeship in the jury box, have 'finally mounted the bench and thus have *719been transformed from mere inference of fact into presumption of law; and the importance of this new dignity requires that the court call the attention of the jury to their presence. In a case in which a presumption of law is operative and may shape or control the finding of the jury, it is the duty of the judge to call the attention of the jury to that presumption, and, in order to adequately instruct them as to the law of the case, he must tell the jury the scope and effect of the legal principle involved. This is peculiarly important in a case of arson, where, as in the ease now before us, a conviction must largely, if not entirely, rest upon a confession corroborated by proof of the corpus delicti.
A confession corroborated by proof of the corpus delicti is generally. sufficient to authorize a conviction of crime, but it must be remembered that to complete the proof of the corpus delicti where the charge is arson, two fundamental facts must be shown. It is not enough to show a burning, but it is also necessary to rebut the presumption that the fire was due to accidental or providential cause. In the present case the State introduced testimony as to a confession of the accused, in which it was testified that he admitted actually setting fire to the building; and, unless the court had told the jury that the corpus delicti must be established independently of the confession, what was more likely than that the confession would be treated by the jury as a part of the proof of the corpus delicti? Since the jury were not told that in the absence of satisfactory proof that a burning was felonious the fire must be considered to have been of accidental or providential origin, it is not possible to say that their finding to the effect that the fire was not accidental does not rest entirely upon the alleged confession of the accused that he actually burned the building. And if this confession as to the burning was what induced the jury to find that the fire was of felonious origin, then we have the anomalous condition of using the confession to create the corpus delicti, when the law does not permit a confession to be considered until after the corpus delicti has been proved. In other words, since a confession is absolutely worthless unless corroborated by proof of the corpus delicti, necessarily so much of the proof of the corpus delicti as depends solely upon a confession for its validity is absolutely worthless. I recognize, of course, that circumstances evidencing controlling motive, such as desire for reward, or the influence of ill will, and such circumstances as threats, may be suffi*720cient to rebut the presumption that the burning was accidental. But all the circumstances disclosed in the present record, except , the testimony as to the presence of the accused near the storé a short time before the fire, have their origin in the confession and are supported by it alone. Even if the presence of the accused near the scene of the burning authorized the jury to find that the burning was felonious, we can not say that the result reached by the jury was induced alone by this slight circumstance, since the store in question was the place where the defendant was employed, and outside of his confession no reason appears why his presence near the store was not the result of a proper, rather than an improper, motive. As to its facts the case at bar is much weaker than that of Murray v. State, 43 Ga. 256, in which Judge McCay, delivering the opinion, said: “There is, as we understand it, really nothing here but the confession." The defendant may be guilty, and the jury may be authorized to convict him upon the proof in the record, but a verdict of guilty was not demanded under the evidence and the statement of the accused. The jury may be authorized to find, from the circumstances detailed by some of the witnesses, as to the conduct of the accused on the night of the burning, that the fire was felonious, but in view of the court’s failure to call the attention of the jury to the presumption of law in his favor, it can not be said that the jury, in reaching the conclusion that the fire was not accidental, were influenced alone by circumstantial evidence upon that subject aliunde the confession. This being true, the defendant may have been deprived of a decision by the jury that the circumstances outside of the confession were insufficient to establish the fact that the building was feloniously set on fire, and thus have been deprived of a substantial right, created by a presumption of law, which might have operated to acquit him because the State had failed to carry the burden of proving his guilt beyond a reasonable- doubt. Even actual guilt does not deprive one of the right to a legal trial, or authorize him to be punished for crime, unless the evidence shows that he is actually guilty.
In the case of Randall v. State, 3 Ga. App. 653 (60 S. E. 328), in which it was held that, in the absence of a written request, the failure to charge the jury as to the presumption that the fire was accidental was not reversible error, the arson was proved by direct testimony, as stated in the decision.