(dissenting) :
The majority opinion would reverse the judgment of conviction and order a new trial because evidence was admitted at the trial of a prior act of violence by appellant against his wife without instructing the jury (1) that such evidence was admitted only on the issue of malice and (2) that the jury could consider such evidence only after they determined that the defendant was guilty of the unlawful killing of the decedent. Since the trial judge did, in effect, instruct the jury twice substantially as outlined in (2) above,1 in my view there *247is nothing to that point. Thus, (1) is the only remaining basis asserted to support reversal.
Such contention requires us to consider whether substantial prejudice to appellant resulted from this evidence and its admission without a cautionary instruction. To answer this question necessitates considering the evidence in its proper posture.
Early in the trial the judge ruled that he would not admit evidence of an altercation between appellant and his wife that occurred on August 5, 1967, about seven months before the accident which caused her death. His ruling restricted the evidence to those acts between appellant and his wife which did not go back beyond the night before her death (Tr. 82). However, after that ruling, the defense opened up the subject generally as to the relationship between the two parties, during periods of time which antedated the time limit specified in the judge’s ruling, by the cross-examination of the daughter (Carolyn) of appellant and deceased.2
In support of its conclusion the majority opinion asserts that defense counsel brought out prior acts of violence which were the fault of appellant and that accordingly it was “most peculiar then to admit testimony of an additional act of violence * * * to rebut the defense’s line of questioning.” This observation completely misinterprets the real purpose of defense counsel in pursuing that line of questioning which was to show not that they fought frequently but that they fought infrequently. That this was counsel’s objective is clearly disclosed by his interrogation:
“They didn’t fight and argue then very often?”
It is perfectly obvious that by this question he was trying to minimize in the mind of the jury the occasions upon which appellant fought with his wife. And his questions went to the entire relationship between the two of them.
“Did your mother and father fight often?”
This question has no time limit on it. Nor did the next question:
“When was that?”
Carolyn’s answers were likewise not restricted in time “He always hit her in the face” is a good example. To which counsel inquired, “When did he do *248that?” Again no time limit. And two other questions by counsel related to the “past week before this occurred” and “even a month before.” Also, “How often did she carry that white pocket knife ?” Again, no time limit.
So the situation was that the trial court in its ruling restricted the parties to evidence that did not go beyond the day before the decedent’s death and that defense counsel by his interrogation exceeded that restriction. In so doing he completely opened up the subject by asking questions that went to the entire relationship between the parties without any time limit. Therefore, it was perfectly proper for the court and the United States Attorney to interrogate witnesses with respect to an incident which occurred seven months before decedent’s death to show' precisely when the parties did fight.3
Appellant on this appeal also contends that the court should have instructed the jury to give limited consideration to the prior altercation; but it is a sufficient answer thereto that appellant did not request or offer such instruction, either when the evidence was introduced or later.4 The Federal Rules of Criminal Procedure provide:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No pg,rty may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
Fed.R.Crim.P. 30. (Emphasis added). The obvious purpose behind such rule is to give the court an opportunity then and there to correct any errors or omissions. Burns v. United States, 274 U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077 (1927). The same rule has been applied in civil cases, Pennsylvania R. R. Co. v. Minds, 250 U.S. 368, 375, 39 S.Ct. 531, 63 L.Ed. 1039 (1919); United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936); Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and the underlying premise is the same i.e., that in fairness to the trial court, to the parties and to the public interest, there should be an end to litigation when all parties have had a fair opportunity to present all issues of law and fact. The rule is particularly applicable where a party might have obtained all he was entitled to by way of a charge merely upon request. That is the situation here as no one doubts that the judge would have given the instruction if either side had requested it. Under such circumstances an accused should not be permitted to profit by his own failure to make the request.
It is also clear that evidence of the prior altercation was properly admissible on the issue of malice to show appellant’s state of mind and probable intent and to show motive, the identity of the aggressor and absence of any mistake or accident. Wakaksan v. United States, 367 F.2d 639, 645 *249(8th Cir. 1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967); accord, Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 90 (1964); United States v. Deaton, 381 F.2d 114 (2d Cir. 1967); United States v. Cifarelli, 401 F.2d 512 (2d Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968). A beneficial argument for appellant could also have been made to the jury that since the parties continued to live together thereafter the malice indicated was not so deep-seated as to indicate a desire to cause decedent any great bodily harm. Finally, since I find that it was proper for the court to interrogate the witness, Griffin v. United States, 83 U.S.App.D.C. 20, 21, 164 F.2d 903, 904 (1947), cert. denied, 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137 (1948), that the instructions were proper on second degree murder and manslaughter, and otherwise, I would affirm the conviction.
. The first instruction was given on August 21, 1968:
Now, ladies and gentlemen of the jury, before you can find this defendant, Earnest McClain, guilty of homicide in any degree, you must find the decedent in this case, Mary Prances McClain, did in fact die from the injuries incurred from a shove or push inflicted by this defendant, Earnest McClain. * * * If you find from the evidence, that the government has proved beyond a reasonable doubt, that he shoved or pushed the deceased, Mary Prances McClain, and the deceased fell to the ground hitting her head on the pavement, and such fall was wholly or in part the result of such a condition caused by the shove or push inflicted by the defendant, then you may find the decedent’s death was caused by the defendant, Earnest McClain.
And if you find that the other essential elements of second-degree murder were proved beyond a reasonable doubt, or if you find that the other essential elements of the lesser included offense of manslaughter has been proved beyond a reasonable doubt, you may find the defendant guilty.
The second instruction was given on the morning of August 22, 1968 at the request of the jury:
Now, with respect to manslaughter, the lesser included offense, I told you that manslaughter is the unlawful killing of a human being without malice. Now, manslaughter is committed when a person unlawfully kills another in a sudden heat of passion caused by adequate provocation. Manslaughter is the unlawful killing of another human being in a sudden heat of passion caused by adequate provocation.
The first essential element of the offense of manslaughter is that the defendant, again, Earnest McClain, inflicted an injury or injuries upon the deceased resulting in her death.
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So with respect to any consideration from the evidence to be given to the matter of manslaughter, the lesser included offense, there are four essential elements as I have just enumerated, each of which the Government must prove beyond a reasonable doubt: that he inflicted injuries upon the deceased from which she died; that at the time he inflicted the injuries he did so in the heat of passion; and that the heat of passion was induced or caused by adequate provocation; and, fourthly, that the homicide was committed without legal justification or excuse.
*247Now, as with the first essential element of the offense of second degree murder, to establish this first element it is necessary that the defendant have inflicted an injury or injuries upon the decedent from which the decedent died.
* * * * *
Malice is involved in second degree. Manslaughter is without malice. * *
H? * H« * H«
Now, in this case, before you ladies and gentlemen of the jury can find homicide to any degree, that is, second degree murder or manslaughter, you must find that the Government has proved beyond a reasonable doubt that Mary Frances McClain did in fact die as a result of a shove or a push inflicted by the defendant. * * *
* * * * *
Thus if you find from the evidence in this case that the defendant shoved or. pushed Mary Frances McClain from the stoop and that she fell to the ground and she struck her head, and that this fall was the result either wholly or in part of a condition caused by the defendant when he shoved or pushed his wife, then you may find that the decedent’s death, Mary Frances’ death, was caused by the defendant. And if all of the other essential elements of the offense either of second degree murder or manslaughter have also been proved beyond a reasonable doubt, you may find him guilty of such offense, whichever of the offenses you find have been proven beyond a reasonable doubt by the Government in the presentation of the evidence to you in this case.
Now, on the other hand, if you find from the evidence that the Government has failed to prove that the fall was caused in whole or in part by the defendant’s shove or push of his wife from the porch, and that the fall was caused entirely by an intoxicated condition of Mary Frances McClain on this date, then you cannot find the defendant guilty of homicide to any degree. And, accordingly, you must acquit him.
. See note 1, majority opinion.
. Griffin v. United States, 83 U.S.App.D.C. 20, 21, 164 F.2d 903, 904 (1947) cert. denied, 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137 (1948) ; Roberts v. United States, 109 U.S.App.D.C. 75, 284 F.2d 209 (1960), cert. denied, 368 U.S. 863, 82 S.Ct. 109, 7 L.Ed.2d 60 (1961).
. United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968) ; Mansell v. State, 364 S.W.2d 391 (Tex. Cr.App.1963).