delivered the opinion of the court.
Petitioner, Edith Maxwell, and Ann Maxwell were jointly indicted in the Circuit Court of Wise county for the murder *492of Trigg Maxwell, the father of Edith and the husband of Ann Maxwell. Edith Maxwell was separately tried, convicted of murder in the first degree, and sentenced to confinement in the State penitentiary for twenty-five years.
The principal assignment of error is that the evidence is not sufficient to support the verdict.
Taken in the light of the verdict, the record discloses these facts: Petitioner is a young woman twenty-one years of age, still living with her parents in Wise county where she was born and reared. Largely through her own efforts she had finished high school and obtained two years of college education fitting herself as a teacher. She had taught for one year in the public schools of her native county and was preparing to continue such work.
Trigg Maxwell, petitioner’s father, was some fifty odd years old and a coal miner by occupation. When sober he was kind and good to his family, but unfortunately he was addicted to drink and when under the influence of liquor was quarrelsome, abusive to his wife and children, and inclined to otherwise treat them unreasonably. Whether he was drunk at the time of his death is the subject of much conflict in the evidence. The accused and her witnesses claim that he was, while the Commonwealth’s witnesses contend that he was not. The jury’s verdict, of course, settled this conflict adversely to the accused. But even so, the Commonwealth’s evidence shows that he had been drinking shortly preceding the occurences leading to his death.
On Saturday afternoon,' July 20, 1935, Trigg Maxwell left home and did not return until about 10:30 P. M. Only his wife, Ann Maxwell, and his twelve year old daughter, Mary Katherine, were then there and both had retired. He turned on the light and immediately began quarreling with his wife as to where she had been picking berries that day and where she intended going the next. Something was said by him about giving her “thirty minutes to leave the house” the next morning. Thinking that he was drunk, the wife remonstrated with him and urged him to go to bed, but he declined to do so *493and went out of the house. Mrs. Maxwell and Mary Katherine then went to sleep.
About 12:30 A. M. the husband returned home. Upon finding that Edith had not then returned he became irritated, remarking that “A man ought to take a club and break her neck.” His wife again remonstrated with him, accused him of being drunk and again tried to induce him to retire, which he refused to do.
According to the next door neighbors, who testified for the Commonwealth, shortly before 1:00 o’clock that night a car drove up, some one got out and went into the Maxwell home. Almost immediately an altercation began and continued for about ten minutes. Loud voices of the father, mother and Edith were heard. The parties appeared to be “scuffling.” In a short while the voice of Trigg Maxwell was heard repeatedly crying in distress, “Oh Lordy, Oh Lordy!” Edith, partly clad, was seen to run out of the house and heard to call to her younger sister, Mary Katherine, to bring her shoes and clothes.
Chant Kelly, the head of the family living next door and still awake, went over to the Maxwell home to render aid. He was met by the accused, who refused his proffered assistance., Kelly then returned to his own house. Immediately the radio began playing in the Maxwell house with sufficient volume to drown out any other noises therein. This continued for about ten minutes, then there was quiet. .
After a period of about thirty minutes Mary Katherine Maxwell ran to the Kelly residence calling for help, saying that her father was dying. Upon the arrival of the neighbors and a physician, Trigg Maxwell was found lying in the doorway leading from the kitchen to the porch, with his head about thirty inches from a meat block. He was clad only in his underclothing, was unconscious and died within fifteen minutes.
In explanation the accused, her mother and younger sister, Mary Katherine, said that the deceased had been drunk and had fallen and struck his head against the meat block, sustaining the injuries of which he died. Not until after the *494arrest, a day or so later, of the accused and her mother, upon the charge of having murdered the deceased, was anything said by either of them, or by Mary Katherine, as to there having been any altercation between Edith and her father.
An autopsy performed on the body of the deceased disclosed three wounds upon the head. The first was a fairly clean cut three-fourths of an inch long commencing one inch above the hair margin and extending down through the entire scalp to the bone. The skull was not fractured. One of the other wounds was on the left side of the head and the other was on the right. They were not cuts but more in the nature of severe bruises. There was likewise a slight bruise above the nose and both eyes were somewhat swollen and bruised. The deceased had also sustained a bruise on the left forearm and a slight cut on the right little finger. According to the physicians, death was caused by a brain hemorrhage attributable to the wound just above the forehead and first described.
While there is some conflict in the details, the testimony of Edith, her mother and sister is substantially in accord. They say that Edith returned home about 1:00 o’clock in the morning and prepared to retire. She looked under the couch on which she slept to get her bed covers but found that they were not there. She then started into her father’s room for the necessary covering and was warned by her younger sister not to go in there as her father was drunk, had been quarreling with her mother and had threatened to run the latter away from home the next day. To this Edith replied: “That doesn’t make any difference. It’s not the first time he has been drunk. He is not going to run mama off.”
Edith then procured her bed covers from her father’s room and returned to her sister’s room and began talking to the latter. Her father was then moving around in his room and muttering to himself. He said something about whipping Edith for having stayed out so late. Despite her remonstrances that she had been out with his nephew and her first cousin, he proceeded to attack her. They were then in the kitchen. He first picked up a chair but at her command dropped it. He then grabbed a butcher knife, which she *495attempted to take away from him. The knife dropped from his hand and the younger sister secured and hid it behind the clock: In the meantime he had. seized Edith by the hair. In the ensuing scuffle they overturned a bucket of water and knocked several kitchen utensils from the wall. Having broken loose Edith went into her mother’s room, but was followed by her father who renewed the altercation. He seized her by the neck or near the throat and pushed her over a chair and she fell to the floor. She felt something at her back, reached for it and found that it was a shoe. This she grabbed and struck several times in his direction in the effort to free herself from his grip. As soon as her father released her she dropped the shoe, ran out of the front door between her home and that of Chant Kelly, her next door neighbor. Her clothes had been almost torn from her body. She went to the side entrance of the house and requested that her sister bring her shoes and clothes.
Just about this time Mr. Kelly appeared on the scene and offered his assistance. But this she declined as she did not wish her neighbors to know of the family difficulties and did not suspect that her father had been seriously hurt.
Shortly after Mr. Kelly’s visit the mother and younger sister succeeded in quieting the father and getting him to bed. Mrs. Maxwell found that her husband was bleeding from his head wounds and washed the blood from his face. Mary Katherine mopped up the water from the overturned bucket and scrubbed from the floor the blood spots.
Before retiring the father’s bloody shirt was removed and by Mrs. Maxwell put in the stove (in which there was then no fire), along with some powdered carbide which her husband had overturned.
About thirty minutes after the altercation had ended, the household had quieted down and the parties had retired, Mr. Maxwell arose from his bed and went out on the porch to get a drink of water. He was heard to fall. His wife went immediately to his assistance and found him lying unconscious in the doorway leading from the kitchen to the porch, with his head near the meat block as above described.
*496It will be observed that except in the one particular as to whether the deceased was drunk at the time of the altercation, this story of the witnesses for the accused is not materially at variance with that of the Commonwealth’s witnesses.
But the Commonwealth lays great stress on certain additional circumstances as showing the testimony of Mrs. Maxwell and her two daughters was unworthy of belief, and as demonstrating that the accused was guilty of first degree murder.
A search of the premises on the day following the killing revealed a blood stained pillow slip and other bloody bed clothing buried under some soiled clothes in a clothes basket or barrel on the porch. It is argued that a concealment of these bloody bed clothes shows a guilty conscience on the part of some one. Mrs. Maxwell testified that she put the articles in this, the usual receptacle for the soiled clothes. This is not controverted. There is no evidence that the accused even knew of the disposition of these articles. In view of the fact that Mrs. Maxwell has likewise been indicted for the murder of her husband, is it possible that she would have assumed responsibility for the concealment (granting it to be such) of this bed clothing, if, in fact, Edith had thus attempted to dispose of it?
The same is true of the bloody shirt which Mrs. Maxwell admitted she had put in the stove and later burned.
It is next said that the evidence shows that the accused had a feeling of hatred toward her father, as the result of which she wilfully, premediatedly and with malice aforethought killed him. There is testimony that the father had frequently reprimanded her for what he considered to be her improper conduct in staying out late at night with men. At times he even threatened to whip her for such acts. All of this, she resented, and not entirely without cause since the evidence does not disclose that she was guilty of any more reprehensible conduct than keeping late hours with young men.
When these occasions arose the accused undoubtedly, as the evidence shows, assumed a defiant attitude towards her *497father and even gave vent to her feelings in what may be termed wild and unguarded remarks. But the chances are that such were soon forgotten by both the accused and her father.
Furthermore, the evidence clearly shows that some of the so-called “threats,” on which the Commonwealth lays the greatest emphasis, were made in jest when she was being taunted by her young companions as to what punishment her father would probably inflict upon her for driving late at night with a young man, or like conduct.
And not without significance is the fact that nearly all of the “threats” were made a year or more previous to the killing.
The general rule is thus laid down in 13 R. C. L., section 216, page 912: “In almost any situation—whether the fact of the killing is denied, or whether self-defense is pleaded, or whether it is contended that by reason of provocation the killing is reduced to manslaughter—proof of the previous relations of the prisoner and the deceased, whether friendly or hostile or whatnot, is relevant and competent. Quarrels, altercations and hostile acts, ordinarily are provable to show animus, but such proof must not relate to a time too remote from that of the fatal encounter.” See also, Evans v. Commonwealth, 161 Va. 992, 1007, 170 S. E. 756, and cases there cited.
While the fact that some of the remarks .attributed to the accused were made more than a year previous to the killing does not render them inadmissible, as claimed by the accused, it may weaken, in the minds of the jury, the probative value of the words spoken. Wigmore on Evidence (2d Ed.), volume I. section 105, page 340; Redd v. State, 68 Ala. 492, 496; State v. Merrick, 172 N. C. 870, 90 S. E. 257.
The Commonwealth next argues that it is highly improbable that the wounds were inflicted with the heel of a shoe, as testified to by the accused. Indeed, there is an insinuation in the cross-examination of the accused, her mother and sister, and in the brief of the Attorney-General, that the blows were struck with some other instrument,—a hatchet or hammer, per*498haps,—which was thrown into the river running within a few feet of the rear of the Maxwell residence. There was some intimation that a smoothing iron had been used to strike the deceased.
Except for the nature and extent of the fatal wound itself there is no ground for these suggestions. No other weapon of any kind was in any way connected with the killing. No hammer or hatchet was found. The smoothing iron was in evidence at the trial and bore no marks of suspicion. Furthermore, the physicians who testified for the Commonwealth admitted that it was possible to have inflicted the wounds with the heel of the shoe as claimed by the accused.
The record shows that the deceased came to his death by blows inflicted by the accused. The killing was done either in the manner detailed by the accused and her witnesses or in some other way which is unexplained.
In Hannah v. Commonwealth, 153 Va. 863, 869, 149 S. E. 419, 421, Mr. Justice Holt said: “In Virginia murder is by statute divided into two classes. Every unlawful homicide is presumed in law to be murder in the second degree; that is to say, it is presumed to have been done with malice. To elevate the offense to murder in the first degree, the Commonwealth must in addition show that it was done deliberately, but whether it be first or second degree murder, malice either express or implied must appear. There can be no murder without it.” See also, Puckett v. Commonwealth, 157 Va. 800, 160 S. E. 19.
In Mercer v. Commonwealth, 150 Va. 588, 594, 142 S. E. 369, 370, Chief Justice Campbell said: “In Litton’s Case, 101 Va. 833, 44 S. E. 923, however, it is held that, when the Commonwealth has proven the commission of a homicide, and has pointed out the accused as the criminal agent, then it may rest its case, and unless the accused shows circumstances of justification, excuse, or alleviation, a verdict of murder in the second degree will be warranted.” See also, Adams v. Commonwealth, 163 Va. 1053, 1061, 178 S. E. 29.
If there is a reasonable doubt as to whether the accused is guilty of murder in the first or second degree, that doubt *499must be resolved in her favor. Dingus v. Commonwealth, 153 Va. 846, 853, 149 S. E. 414.
True it is the jury has declined to accept the story of the accused and her witnesses that the killing was in self-defense. This they had the right to do. While their story was not controverted by any direct testimony, yet there was evidence of circumstances affecting the credibility of the witnesses themselves and casting a doubt on the probability of their account of the killing. All of these made the defense of justifiable homicide, as detailed by the accused and her witnesses, a question for the jury under the principles laid down by Chief Justice Campbell in Puckett v. Commonwealth, 157 Va. 800, 808, 809, 160 S. E. 19.
But this does not mean that the jury had the right under the evidence to find the accused guilty of a “wilful, deliberate and premeditated killing”—that is, murder in the first degree. We think the evidence as disclosed in the record before us is insufficient to sustain a verdict of murder in the first degree. On it the jury had the right to find the accused guilty of murder in the second degree but nothing more.
It follows that the trial court erred in not setting aside the verdict and granting the accused a new trial.
We find no merit in any of the other assignments of error. The claim that the short form of indictment, drawn according to Code, section 4865 (as amended by Acts 1930, chapter 238), and under which the accused was tried, does not give sufficient notice of the cause and nature of the accusation, guaranteed by section 8 of the Virginia Constitution, is, we think, sufficiently answered by what Mr. Justice Hudgins said in Hurd v. Commonwealth, 159 Va. 880, 884, 885, 165 S. E. 536, and in Bausell v. Commonwealth, 165 Va. 693, 695, 181 S. E. 453, 459. What was there said need not be repeated here.
After the writ of error was granted in this case the petitioner applied to the judge of the trial court for bail for her appearance before the trial court upon the final determination of her cause. To the judgment refusing such bail a writ of error was awarded.
*500The petition and record in that matter presented this question: Did the trial court err in refusing to admit the accused to bail after she had been convicted of murder in the first degree, and pending the determination of her cause on appeal?
But since the judgment of conviction must be reversed and the cause remanded for a new trial, the situation has changed and that question has now become moot. Should the accused hereafter renew her application to the judge of the trial court, the latter will be confronted with a situation quite different from that found in the present record. As to what action he should then take, we, of course, express no opinion.
The writ of error granted in the matter of the application for bail will be dismissed.
The judgment of conviction of murder in the first degree will be set aside and the petitioner awarded a trial de novo.
Reversed and remanded.