Bluestein v. State

Broyles, C. J.,

dissenting. It is well settled that in every prosecution for the offense of arson the burden is on the State to establish, beyond a reasonable doubt, two fundamental facts; first, *581a burning; and second, that the burning was due to some criminal agency. West v. State, 6 Ga. App. 105, 106 (64 S. E. 130); Davenport v. State, 12 Ga. App. 102, 103 (76 S. E. 756); Sevier v. State, 17 Ga. App. 277 (86 S. E. 533). If these two fundamental facts are shown beyond a reasonable doubt, the State then has the burden of proving the guilt of the accused; and where the evidence tending to connect him with the offense is wholly circumstantial, the circumstances must exclude every reasonable hypothesis except that of his guilt. Kinsey v. State, 12 Ga. App. 422 (4) (77 S. E. 369); Sevier v. State, supra. In the instant case, conceding (but not deciding) that the evidence authorized a finding that the burning of the house in question was the work of a criminal agency, the evidence tending to connect the accused with the burning was entirely circumstantial, and, while raising a strong suspicion against him, was insufficient to exclude every reasonable hypothesis save that of his guilt. In my opinion the verdict of guilty was not supported by the evidence.