dissenting:
I must respectfully depart from the majority because it is obvious to me that the State failed to meet its burden.
Borza was convicted solely upon the testimony of his accomplice, Credge, who, after a homosexual affair with Borza had been rejected by him in preference for a more natural relationship with one of the opposite sex. The testimony was gratuitously volunteered after two years of silence following the fire. Suffice to say, Credge was not a reluctant witness. More than that, his testimony at most established only that he and appellant had discussed burning the store the preceding April or May, that he, Credge, had twice traveled to Baltimore in September to burn the store, and that on the night before the fire, appellant had mentioned that he might set fire to the store. This factual posture presented at least four possibilities:
1. that Credge told the truth and appellant wilfully and maliciously set fire to the store;
2. that Credge told the truth but that the fire was accidental and Credge wrongfully deduced appellant’s guilt;
3. that Credge lied about the previous conversations;
4. that Credge himself set the fire knowing appellant would be in the store that day.
I recognize, of course, that fact-finding is left to the jury. The majority, however, inexplicably fails to recognize that it is for that reason the courts have engrafted on the fact-finding process certain fundamental legal protections *413for a criminal accused. To insure that the second hypothesis is not the case, the State must prove the substantial fact that a crime has been committed, the corpus delicti-.
“The burden is on the state to show that the burning was with a criminal design, — this is the corpus delicti. The corpus delicti cannot be established by proof of the burning alone, or by the naked confession of the accused. Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the state must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.” [Emphasis added]. Bollinger v. State, 208 Md. 298, 304, quoting 2 Wharton’s Criminal Law, (12th Ed., Anderson) § 1063.
To minimize the possibility of the third and fourth hypotheses being the case, the State must introduce corroborative evidence when an accomplice testifies. The State totally failed in both regards.
Assuming Credge told the truth, his testimony did no more than establish that appellant was contemplating setting the fire, not that he set it. Had the State then proven that the fire was deliberately set — indicating a criminal act — the evidence may have been sufficient to eonvict. The State did just the opposite.
The only permissible evidence submitted by the State to meet its burden of overcoming the presumption of accident was that of Captain Richter of the Fire Investigation Bureau. From the majority’s depiction of his testimony we are told:
“Captain Richter could not fully ascertain the cause of the fire....
He could not eliminate spontaneous combustion
He surmised that the fire probably resulted from careless smoking . . . .” although the employee on the fifth floor had been a nonsmoker.
*414Even though the Captain had “effectively eliminated electrical or heating fixtures as a cause of the fire” certainly his testimony seemed more to establish that the fire arose from natural or accidental cause than to establish a deliberate burning.
The majority has transformed evidence of criminal agency, ie., if there was a crime, appellant probably committed it, into evidence of agency and corpus delicti, i.e., the fire was deliberately set and appellant set it. That is a leap of faith wholly unwarranted by the evidence and diametrically opposed to the Court of Appeals’s clear and simple expression of the State’s burden. In McDowell v. State, 231 Md. 205, 208 1 Chief Judge Brune said:
“ ‘As Wharton points out ‘[pjroof of the defendant’s connection with the crime as the operative agent, although essential for conviction is not part of the corpus delicti.’ ” (Reference here is to 1 Wharton’s Criminal Evidence, (12th Ed., Anderson 1955) § 17 at 48).2
The majority dismisses the requirement of independently proving the “actus reus”, of arson simply because it is a crime requiring “a special mens rea” i.e., proof of “wilful and malicious” intent. Because “mens rea” is also an element of criminal agency does not excuse the necessity of independently proving the act charged was a crime. “Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the State must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.” Bollinger, 208 *415Md. at 304. However you read that sentence, whether in or out of context, its clarity dispels the notion that it is a “freakish accident of murky exposition.” It is not conceivable that the Court of Appeals meant that an accusation that a defendant discussed committing a crime, is sufficient to prove that a crime was committed. In laying their “ghost to rest” the majority may find themselves haunted by the apparition of a dormant corpus delicti.
Corroboration is the other fundamental legal protection that this case erodes. The only corroborative evidence of Credge’s testimony was the presence of the accused in his own store on the day of the fire.3 Significantly, this fact in no way detracts from either of the third and fourth exculpatory hypotheses suggested above.
The test for corroboration of an accomplice has been many times stated. In Luery v. State, 116 Md. 284 the Court wrote:
“[T]he important matter is to have [the accomplice] supported in at least some of the material points involved. . . .”
In Judy v. State, 218 Md. 168, 176 the Court held that corroborating testimony “need only support some of the material points of the accomplice’s testimony.” [Both cited with approval in McDowell v. State, 231 Md. 205, 211-212], Appellant’s presence in his own store, though perhaps relevant, surely cannot be regarded as assuring Credge’s verity by supporting “some of the material points” of his testimony. Presence of an accused may be adequate corroboration when it is “under unusual or suspicious circumstances.” 3 Wharton, Criminal Evidence (Torcía Ed., 1973) § 649 at 368. But the presence of a furniture store owner at his own store can hardly be regarded as either unusual or suspicious. In that situation, mere presence is not sufficient corroboration. Hatton v. Commonwealth, 253 Ky. 103, 68 S.W.2d 780.
*416The majority alludes at length to language in McDowell suggesting that presence was there a corroborative circumstance. With that narrow statement I have no quarrel. Non-accomplice testimony of the accused’s presence took on special significance in McDowell because of the accused’s statements which were “contradictory and untruthful . . . relating to his whereabouts at the time of the fife.” The McDowell Court, relying on Wright v. State, 219 Md. 643, stressed the fact that the testimony of non-accomplice witnesses was consistent with that of the accomplice and inconsistent with that of the defendant. That is a circumstance conspicuously absent here.
The potentially vengeful motivations of appellant’s lone accuser and the unexplained delay of two and one half years before he made the accusation create a most tenuous setting in which to undermine the safeguards provided by the requisites of proof of corpus delicti and corroboration. Strain we have and strain we should to meet a technical mischance in a case where guilt and culpability of the accused is otherwise readily apparent. But what meaning can we give to the platitudes upon which our system of justice is said to rely if we need strain so hard here, even to ascertain if a crime was committed. To permit a rejected homosexual paramour to supply that, plus every other element necessary for conviction, is to allow the accuser to make a mockery of our time-honored safeguards. In trying to stabilize the tenuous structure upon which this case is built, the majority has exacted another chip from the foundation structure of the system.
. Recognizing that this was judicial dictum since that case focused on proof of criminal agency rather than the corpus delicti, it is not without precedent for this Court to adopt policy concepts in reliance upon Court of Appeals’ dicta. Cf., Transamerica Insurance Company v. Brohawn, 23 Md. App. 186.
. The most recent edition of 1 Wharton’s Criminal Evidence (13th Ed., Torcia 1972) § 17 at 27 reiterates the same concept:
“Proof that the defendant was the person who engaged in the unlawful conduct is of course necessary for a conviction, but it is not an element of the corpus delicti.”
. Although prior to the fire Credge contacted an FBI agent and told him about his and appellant’s fire discussions, it would be the ultimate in tautological thinking to treat such self-serving groundwork — whether or not termed “operative verbal acts” — as corroboration.