dissenting.
I respectfully dissent because the evidence was sufficient to authorize a rational trier of fact to find defendants guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We must consider the evidence in a light most favorable to the verdict, not as we might see it. Chastain v. State, 260 Ga. 789 (1) (400 SE2d 329) (1991).
In these cases, motions for new trial on the general grounds were heard by the trial judge and unequivocally denied. Thus we have also the opinion of the “thirteenth juror,” who of course was present to evaluate weight of evidence and credibility of witnesses when it came to a consideration of the motion for new trial. “Before the verdict of the jury becomes final it should, where the defendant requires it by a motion for a new trial, receive the approval of the mind and conscience of one more man — the trial judge. Until all 13, the 12 jurors and the judge, agree upon the prisoner’s guilt, his conviction is not legally final. The finding of the jury is not binding on the judge. It may be and for the most part should be highly persuasive upon him; but he is authorized to set it aside, and indeed is under the duty of doing so if he does not approve it as a finding of fact.” Walters v. State, 6 Ga. App. 565, 567 (65 SE 357) (1909). See also 1983 Ga. Const., Art. VI, Sec. I, Par. IV; Seaboard Air-Line R. Co. v. Benton, 43 Ga. App. 495, 505 (19) (159 SE 717) (1931), reversed on other grounds 175 Ga. 491 (165 SE 593) (1932); Housing Auth. of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984).
This authority and duty is not shared with the appellate court. Thus we cannot discount the evidence given by the fire department investigator in favor of the opinion evidence of defendants’ expert witness. Likewise we are powerless to accept rather than reject the explanations given by the defendants, which were in large part uncorroborated. Merritt v. State, 190 Ga. 81, 87 (8 SE2d 386) (1940). See also Thornton v. State, 161 Ga. App. 296 (1) (287 SE2d 749) (1982).
*298“ ‘ “Three things are necessary to sustain a conviction for arson: that the real property alleged in the indictment was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency.” ’ ” Bragg v. State, 175 Ga. App. 640, 641 (1) (334 SE2d 184) (1985). Accord Campbell v. State, 169 Ga. App. 112, 114 (312 SE2d 136) (1983). The controlling statute is OCGA § 16-7-60 (a) (3).
It is not contested that the property burned. The evidence is in conflict as to whether such burning was of incendiary origin, caused by a criminal agency. There was sufficient circumstantial evidence that defendants were the criminal agency. They were at the house trailer a few minutes before the fire was detected by neighbors. They had driven up, stayed a short time with the motor running, and left again just before the neighbor who discovered the fire looked out the window. Then they were seen driving nearby when a neighbor went to the maintenance man’s home to summon the fire department. As the maintenance man was walking towards the burning trailer, the defendants passed him in their car, “driving real slow.” They “pulled in of (sic) the street headed in, and shut the lights down, there was nobody got out of the car that I could see, and a few minutes when the fire department got there, the car left.” The street on which he saw it stopped was a dead end street. He told the investigating officer that when he saw the car as it drove past him, he wondered why they were leaving, going in the opposite direction, when he was going to the fire at their trailer.
Defendants did not reappear at the scene until about 1:15 a.m. the next morning. They had with them their young son, clothing, valuable personal documents, and a number of family photographs as well as a photo album. The relative whom the defendants allegedly visited did not testify. Moreover, the evidence as to timing was in conflict, and there was evidence to refute defendants’ evidence that they were in East Ridge, Tennessee, at the time they contended. The officer who assisted them on the highway testified that defendant Shaw told him they were going to the Golden Gallon to get bread and cigarettes, whereas Collins told the investigating officer that the officer assisted them when they were returning from her relative’s home.
The maintenance man, who also collected rent, testified that defendants were late in the rent payment. He had told defendant Shaw, several hours before the fire, that they were being given notice that they would be evicted if they did not pay. They apparently did not have the money, inasmuch as the witness testified that Shaw told him that he would “go to his mother’s and see what I can do, . . .”
As to motive, not only were they about to be evicted from the trailer park because of financial difficulties, but also it was shown that *299insurance, the papers for which defendant Collins had in her purse at the time of the fire, paid off the note which they owed on the trailer. See Kennedy v. State, 172 Ga. App. 336, 340 (4) (323 SE2d 169) (1984).
Decided December 4, 1991 Reconsideration dismissed December 19, 1991. Ronald C. Goulart, for appellant (case no. A91A0957). Bruce & Hentz, W. Davis Hentz, for appellant (case no. A91A0990). Ralph L. Van Pelt, Jr., District Attorney, for appellee.As repeated in Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983), also an arson case based on circumstantial evidence, we must “construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. . . the jury is the final arbiter [of evidentiary conflict] . . . [A]fter the verdict is approved by the trial court, the evidence must be construed so as to uphold the verdict even where there are discrepancies. ... An appellate court has no yardstick to determine what in a given case is a reasonable hypothesis except to rely on the informed and weigh[t]ed conclusions of twelve intelligent jurors . . . [who] heard the witness, and are better qualified to judge the reasonableness of a hypothesis raised by evidence (or its lack) than is this court which is restricted to a cold record and to issues of law.”
I am authorized to state that Judge Pope and Judge Andrews join in this dissent.