with whom CHIEF JUSTICE CARRICO and JUSTICE STEPHENSON join, dissenting.
Tried by the court, sitting without a jury, the defendant- was convicted of involuntary manslaughter, although a third person actually killed the victim and pled guilty to involuntary manslaughter for the homicide.
At the trial level, the Commonwealth proceeded on two theories. First, the prosecutor, in opening statement, said that although the defendant did not “actually kill” the victim, “it is our position that she is guilty nevertheless ... as a principal in the first degree under an involuntary manslaughter theory.” Second, the prosecutor stated, “you have the second theory of liability” that the defendant was guilty of “gross and wanton [conduct] that . . . shows a complete disregard for human life” likely to lead to harm or death.
The trial judge did not find the defendant guilty under the first theory. Instead, the court convicted the defendant under the second theory only. The Court of Appeals likewise did not rely upon the first theory, the so-called “innocent agent” concept in which “one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree.” Bailey v. Commonwealth, 229 Va. 258, 262, 329 S.E.2d 37, 40 (1985). Rather, the Court of Appeals *453ruled solely that the evidence was sufficient to support a finding that the defendant was guilty of criminal negligence that “was a concurring, proximate cause” of the victim’s death. Gallimore v. Commonwealth, 15 Va. App. 288, 295, 422 S.E.2d 613, 617 (1992). Thus, the latter issue is the only question properly before this Court for review.
In my opinion, the evidence was insufficient, as a matter of law, to support a finding beyond a reasonable doubt that the defendant’s criminal negligence was a proximate cause of the victim’s death; the killing by the third person was not a reasonably foreseeable result of defendant’s criminal negligence.
The evidence is uncontradicted that the victim was shot accidentally during a “scuffle” between the assailant and the victim. The killing stemmed from a bizarre set of circumstances remote in time and space from the criminally negligent conduct of the defendant. The risk of death or serious harm could not have been reasonably foreseen from defendant’s reckless utterances. In other words, the “scuffle” was an independent, intervening act that alone caused the victim’s death.
Even though the issue of proximate cause is generally a question for the fact-finder, “when the facts are not disputed and are susceptible of but one inference, the question becomes one of law for the court.” Hubbard v. Murray, 173 Va. 448, 457, 3 S.E.2d 397, 402 (1939), cited in Delawder v. Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973). This is such a case.
Accordingly, I would reverse the judgment of the Court of Appeals and dismiss the indictment.