dissenting.
I dissent from the majority’s holding that Kennedy Fitzgerald Hancock could be tried for attempted capital murder, because he merely aided and abetted his companion while his companion ignited a chair cushion for the purpose of facilitating an escape from a robbery.
In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; provided, however, that except in the case of a killing for hire under the provisions of § 18.2-31(b) an accessory before the fact or principal in the second degree to a capital murder shall be indicted, tried, convicted and punished as though the offense were murder in the first degree.
Code § 18.2-18.
In accordance with the explicit provision of the statute, it is “essential in a prosecution for capital murder, except in the case of murder for hire, that the heretofore unnecessary distinction be drawn between principals in the first and second degree, assuring that only the person who is the immediate perpetrator may be a principal in the first degree and thus liable to conviction for capital murder.” Johnson v. Commonwealth, 220 Va. 146, 150, 255 S.E.2d 525, 527 (1979), cert. denied, 454 U.S. 920 (1981) (em*785phasis added). Because attempted capital murder is a lesser included offense of capital murder, the Commonwealth concedes on brief the logical proposition that “[t]he defendant . . . can be convicted of attempted capital murder only if he is shown to have been a principal in the first degree.”
The Commonwealth prosecuted this case on the same theory that it argues on appeal: that whether Hancock poured the gasoline or lit it, he was the criminal agent in starting the fire. However, in interpreting Code § 18.2-18, the Supreme Court observed the obvious: “only the person who is the immediate perpetrator may be a principal in the first degree and thus liable to conviction for capital murder.” Johnson, 220 Va. at 150, 255 S.E.2d at 527 (emphasis added). A principal in the first degree generally is one who has committed each and every constituent element of the defined offense. See W.R. LaFave & A.W. Scott, Jr., Handbook on Criminal Law 496-97 (1972). No evidence in this record proves that Hancock carried the gasoline into the building, poured the gasoline onto the cushion, or ignited the cushion. Only one of the eighteen persons who was present in the building testified at trial. He testified that he could not identify which of the robbers lit the match. When asked, “Was it just one individual who did most of the acts as far as pouring the gasoline on the cushion and lighting it?” he responded, “yes.” Indeed, the Commonwealth proved in a separate prosecution that Hancock’s companion, Kevin Winzell Bell, did all of those acts. See Bell v. Commonwealth, 11 Va. App. 530, 532, 399 S.E.2d 450, 452 (1991). On this evidence, the Commonwealth failed to prove that Hancock did more than aid in preparing the cushion for his companion, who lit the fire.
Under the so-called “triggerman” rule, only the actual perpetrator of a crime delineated in Code § 18.2-31 may be convicted of capital murder and subjected to the penalty of execution, except in the case of murder for hire. One who is present, aiding and abetting the actual murder, but who does not actually fire the fatal shot, is a principal in the second degree and may be convicted of no greater offense than first-degree murder.
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (citations omitted).
*786According to the majority’s rationale, any person who aids, counsels, or procures the burning is a “perpetrator of arson” and could be found guilty of attempted capital murder. Presumably, the majority would also hold that one who directly counsels an arsonist could be convicted of capital murder even if another person was the immediate perpetrator who actually caused a death. This reasoning does not withstand close scrutiny. It is of no consequence that Hancock “played an active role in the direct setting of the fire” or that the arson statute declares aiders and abettors to be perpetrators. Hancock was neither a principal in the first degree, the immediate perpetrator, nor the party who actually committed the arson.
The evidence in this case proved at most that Hancock was a principal in the second degree to the arson offense. Thus, although he may be treated identically as a principal in the first degree for the purpose of punishment as an arsonist, he cannot be considered the immediate perpetrator. See Code § 18.2-18; Cheng v. Commonwealth, 240 Va. 26, 42-43, 393 S.E.2d 599, 607-08 (1990). For purposes of the crime of arson, “[a] principal in the first degree is the one who actually starts the fire; while a principal in the second degree is one who is present and assists the actual incendiary.” A. Curtis, The Law of Arson 124 (1936) (emphasis added). To prove Hancock was an aider and abettor of the crime of arson:
the evidence must show that [he] was not only present but that [he] procured, encouraged, countenanced, or approved commission of the crime. . . . [He] must share the criminal intent of the party who actually committed the arson or be guilty of some overt act in furtherance thereof.
Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d 886, 888 (1983) (emphasis added). The Commonwealth’s case proved exactly this and no more. There is no evidence that Hancock was the one who actually committed the arson although the record is replete with evidence that he was present and “procured, encouraged, countenanced, [and] approved commission of the crime.” Id. That suffices to prove only liability as a principal in the second degree.
The majority’s theory is based on a faulty premise: it mischaracterizes the attempted capital murder convictions by including the words “by arson.” The trial court tried and convicted *787Hancock of “an attempt to commit a capital offense, to-wit: murder, during the commission of robbery.” The means to accomplishing the murder, under the Commonwealth’s theory, was through the burning. Arson, on the other hand, is a category of crime, a combination of mens rea and actus reus elements. That the means used to accomplish the attempted killing also amounts to an independent crime is incidental to this issue. Thus, it is more accurate for the majority to say “by burning,” if it need be said at all.
This seemingly semantic distinction clarifies that the issue is not whether Hancock can be treated as a principal in the first degree for arson under Code § 18.2-79, but is whether Hancock was an actual principal in the first degree, the immediate perpetrator, or the “triggerman” in the attempt to murder by whatever means so chosen. Johnson, 220 Va. at 150, 255 S.E.2d at 527. That incendiary means were employed in this case has no bearing on the analysis. The question remains the same whether the attempt to murder was made through shooting, knifing, bombing, or burning: was Hancock the triggerman? This was the issue presented on appeal and addressed by both parties on brief. Whether Hancock was equally as culpable of the arson offense as the unknown offender who lit the fire is immaterial. The Commonwealth’s evidence unequivocally fails to prove who doused the cushion with gasoline and who struck the match, thus triggering the fire. The greatest crime for which Hancock could be prosecuted is attempted murder in the first degree. Code § 18.2-18.
Because of Code § 18.2-18, “it is . . . essential . . . that the heretofore unnecessary distinction be drawn between principals in the first and second degree, assuring that only the person who is the immediate perpetrator may be . . . liable to conviction for capital murder.” Johnson, 220 Va. at 149-50, 255 S.E.2d at 527. The failure of the Commonwealth to prove who doused the cushion and who lit the match is indistinguishable from the Commonwealth’s failure to prove who pulled the trigger. See id. In my judgment, the majority’s analysis is contrary to the Johnson decision. In clear and unambiguous terms, “Code § 18.2-18 does not permit a principal in the second degree to be convicted of capital murder.” Cortner v. Commonwealth, 222 Va. 557, 563, 281 S.E.2d 908, 911 (1981).
*788No evidence establishes that the degree of Hancock’s participation exceeded the bounds of aiding and abetting. This record contains no evidence to support the majority’s assertion that Hancock was a principal in the first degree. To state that “he was one of two masked men acting in concert” in the incident simply does not suffice to prove that Hancock was an immediate perpetrator rather than a principal in the second degree. I agree with the majority that even “[p] lacing the flammable material in place for another to ignite makes that person a perpetrator” for purposes of the arson statute. See Code § 18.2-79. However, for a conviction of attempted capital murder, the requirement of Code § 18.2-18 must also be satisfied. Thus, the proof must establish that he was “the immediate perpetrator,” i.e., that he actually set the fire. Johnson, 220 Va. at 149-50, 255 S.E.2d at 527. Since the evidence proves only that Hancock was a principal in the second degree, the majority erroneously concludes that he could be convicted of attempted capital murder.
I disagree that this case is controlled by Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert. denied, 112 S. Ct. 386 (1991). Rather, it is more akin to Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990), where the Supreme Court found the evidence insufficient to prove the accused guilty of being a principal in the first degree even though the accused actively participated in the preparation and execution of the crime.
The evidence show[ed] that Cheng “masterminded” the criminal plan. He expressed an intent to commit robbery. He directed his accomplices to obtain the “sawed-off” shotgun. He was seen talking with [the victim] on the evening [the victim] was last seen alive. He possessed a .32 caliber semiautomatic pistol — the type [of] weapon used to kill [the victim]. Additionally, Cheng made incriminating statements to Officer Kwan.
* * *
Kwan . . . stated, “[Cheng] . . . told me that he had to do it because the man put the contract on him.”
Id. at 43, 393 S.E.2d at 608. The Court concluded that this was only sufficient to prove Cheng was a principal in the second degree. “The evidence, at most, creates a strong suspicion that Cheng was the ‘trigger man’ . . . , however, suspicion of guilt, no *789matter how strong, is insufficient to sustain a criminal conviction.” Id.
Hancock’s case is similar to Cheng. The evidence demonstrated that Hancock participated extensively in the preparation and execution of the crime. There is, however, no more than a suspicion that Hancock actually set the cushion afire. Consequently, there is only a suspicion that he was the “immediate perpetrator” to the attempted capital murder, that being a principal in the first degree. Strickler is dissimilar because in that case “the physical evidence point [ed] to a violent struggle between [both] assailants and the victim,” during which the victim was killed. Id. at 494, 404 S.E.2d at 235. Consistent with its earlier cases, the Supreme Court “adhere [d] to the view that where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an ‘immediate perpetrator’ for purposes of the capital murder statute.” Id. I would agree that Strickler would control if the evidence showed that Hancock and another both lit a match and jointly ignited the cushion. But that is not the evidence in the record before this Court.
Accordingly, I disagree and dissent.