dissenting.
Even if we assume for the purpose of argument that the fire was of incendiary origin, I cannot agree that the Commonwealth presented sufficient evidence of criminal agency to support Cook’s conviction. The majority opinion attempts to skirt the well-established rule that mere suspicion of guilt, however strong, is not sufficient to convict an accused. As we stated in Poulos v. Common*434wealth, 174 Va. 495, 499, 6 S.E.2d 666, 667 (1940): “In order to make out a case of arson it is essential not only that the evidence reveal that the fire was of incendiary origin, but it must also point unerringly to the guilty party." (Emphasis added.) The majority opinion cuts this principle to shreds.
Here, the evidence does not point unerringly to Cook. One witness testified that there were a number of individuals who frequented the apartment and knew the key was kept under the doormat. Indeed, after the fire, the key was found in the lock on the outside of the door. Moreover, there was also evidence of an individual who had been living in the apartment, and who was forced out of the apartment, against his will, when Cook had the electricity turned off. The inference was that that individual had a motive to seek revenge against Cook.
But even if we discount the opportunity or motive on the part of others to start the fire, the evidence against Cook leaves much to be desired. The most that can be said about Cook is that he admitted being in the apartment on the day of the fire; that a car, similar to one he was later seen driving, passed slowly by the scene of the fire shortly after it was extinguished; that he was having trouble paying his rent; and that he collected on an insurance policy after the fire. This is a far cry from the proof required by this Court, in the past, in cases of this kind.
Certainly the evidence against Cook arouses suspicions. But the circumstances here are no more suspicious than those involved in Poulos. There, the Commonwealth’s evidence showed that defendant and his wife lived above a restaurant that they operated together. At the time of the fire, creditors were in the process of collecting six different debts owed by defendant and his wife which totaled $950.00. After the fire, defendant’s wife sought to collect on a $3,000 insurance policy. In addition to the foregoing, the Commonwealth proved defendant had been outside the restaurant with a friend until 30 to 40 minutes before the fire, at which time he stated that he was going to go to bed. Upon arrival, the fire department found defendant and his stepdaughter on the roof of the building. Defendant’s clothing was afire and he was seriously burned. After the fire was extinguished, a can containing gasoline and moth balls was found at the top of the stairway. A housekeeper testified she had used this mixture four days earlier to do some cleaning, but had left the can downstairs. Upon questioning by a deputy, defendant said he was awakened by smoke *435and heat while in bed and did not know the origin of the fire. However, other evidence showed that defendant’s bed had not been slept in. This evidence was found insufficient to establish that Poulos was the criminal agent. See also Simmons v. Commonwealth, 208 Va. 778, 160 S.E.2d 569 (1968).
If the evidence against Poulos was insufficient to establish that he was the criminal agent, then the evidence against Cook is equally insufficient. To rule otherwise is to ignore established precedent and to overrule, sub silentio, a line of cases stretching back well beyond the turn of the century. See, e.g., Garner v. Commonwealth, 2 Va. Dec. 458, 26 S.E. 507 (1897). If such cases are to be overruled they should be overruled expressly and not by legal legerdemain.
In light of the foregoing authorities, I am of the opinion that Cook’s conviction should have been reversed.