dissenting.
The judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed unless it is plainly wrong or without evidence to support it. King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 315 (1977). Nevertheless, in my view, the finding of the trial court that Gooden’s conduct was so gross, wanton, and culpable as to show a reckless disregard to human life was plainly wrong or without evidence to support it.
The trial court as the fact finder properly could find Gooden’s testimony incredible. The evidence on which the Commonwealth relies, however, is insufficient to support his conviction of involuntary manslaughter. The victim was shot as he looked into thickets where he thought he heard a deer. His companion, Sipe, heard two or three shots before and two after Wyant shouted and fell *574mortally wounded. Sipe saw no deer in the vicinity. In addition to the bullet from Gooden’s .30-.30 Winchester rifle which killed Wyant, four shell casings from Gooden’s .30-caliber carbine were found after the accident. The shell casings were located about 430 yards from the place where Wyant was shot. As the majority observe, the evidence indicates that a horizontal shot fired south from the location of the four shell casings would probably have hit the bank of a gulley. But Sipe testified that a bullet went past his ear after Wyant had fallen. The conclusion is compelling that the fatal shot was fired from a point near the shell casings. The evidence leaves unanswered, however, the question whether from this point Gooden in the exercise of due caution could or should have seen Wyant.
I do not agree that Sipe’s testimony that he saw no deer nearby before or after the shooting eliminates the theory that Gooden may have fired inaccurately at a deer and struck Wyant. Nor do I think Commonwealth’s evidence shows that Gooden did not in the exercise of due caution shoot a human mistaking him for a deer.
The majority find that Gooden “fired a weapon capable of inflicting serious bodily harm or death directly at two persons . . . .” (Emphasis added.) There is no direct evidence supporting this conclusion, and the finding cannot be justified by any reasonable or fair inference to which the Commonwealth is entitled.
No one can deny that this was a tragic accident. But Gooden was engaged in the lawful pursuit of a form of recreation sponsored by the Commonwealth. He was not required to insure the safety of all other hunters within the range of his weapons. The devotees of this sport are aware of a certain inherent risk of danger where high-powered weapons may lawfully be used. To convict Gooden of manslaughter, under the most favorable view of the evidence, is in effect to impose a rule of strict liability. We have not approved such a rule in civil litigation and we are not justified in applying it in a criminal prosecution. Although the evidence is sufficient to establish ordinary negligence, I do not agree that it is sufficient to establish criminal negligence. Therefore, I would reverse the judgment of the trial court.
CARRICO, C.J., and STEPHENSON, J., join in the dissent.