dissenting.
The defendant in this case was arrested by a warrant charging disorderly conduct and assault. The judgment of *75the justice is not in the record, but, as I recall, it was a general judgment of guilty. On appeal the court in instruction No. 3 told the jury:
“The court instructs the jury that the warrant in this case contains two charges, and that the jury should render separate verdicts on each charge.”
Whereupon the jury returned this verdict:
“We the jury find the accused, Barbara Lewis, guilty of disorderly conduct as charged in the warrant and fix her punishment at (60) sixty days in jail and ($50.00) fifty dollars fine.
Signed D. R. Stratton, Foreman, and
“We the jury find the accused, Barbara Lewis, guilty of common assault as charged in the warrant and fix her punishment at four months in jail and ($150.00) One Hundred and Fifty Dollars fine.
Signed D. R. Stratton, Foreman.”
Conceding for the sake of argument that disorderly conduct of a passenger in a bus is not a misdemeanor in Virginia, it is plain that Barbara Lewis did make an assault upon the bus driver. A jury has found her guilty of that offense. The evidence is ample to sustain its finding.
The plaintiff, a colored woman, occupied the third seat from the rear of the bus. Two white people came aboard. The conductor asked her to move to one of the two rear seats that these white people might be seated. This she declined to do. A colloquy then ensued, in the course of which she said: “They (these two white people) ain’t a damn bit better than I am.” ■ It culminated in an assault, preceded by this observation addressed to the bus driver: “You dumb son of a bitch.”
Evidence of her conduct preceding the assault is inseparably connected with it. Plainly the preceding conduct of one who has murdered another may be shown. And for the same reason that preceding an assault may be shown. To say without more that A ’struck B would be to leave a. jury to guess where blame rested.
*76The bus driver, in the proper discharge of his duties and in a proper manner sought to rearrange the seating of these passengers. Evidence which went to show this is a part of the res gestae. It should properly have been admitted had there never been a charge of disorderly conduct.
There is no force in the suggestion that the penalty of assault was augmented because there was also evidence of disorder. Most assaults are so preceded. If I were to hazard a guess, it is probable that had the charge of disorder been withdrawn, the jury would have added its penalty to the penalty assessed for assault; and certainly the plaintiff cannot object because the penalty for disorder has been set aside.
When the court told the jury that if the evidence tendered on behalf of the Commonwealth plainly sustained the charge of assault it was plainly right. And it was still right though in error it also told the jury they should find the defendant guilty of disorderly conduct if there was evidence to that effect. This error the court has corrected and she cannot complain.
Hudgins and Gregory, JJ., concur in this dissent.